USPTO/NTIA offer up practical steps to sow the seeds of copyright reform

Over two years ago when we submitted comments in the United States Department of Commerce, United States Patent and Trademark Office and National Telecommunications and Information Administration copyright reform proceedings and again in our roundtable testimony, we advised a cautious approach that avoided the collateral damage that can come with hasty reforms. The final report takes a cautious balanced approach and shows support for many of the points we emphasized including:

  • The importance of developing a flexible criterion to help judges and juries determine the amount of statutory damages awarded. Particularly criteria that: consider whether the defendant use was non-commercial, had reasonable fair use argument and the financial means of the infringer. With flexible standards Copyright Trolls are much less likely to be able to exploit small-scale defendants’ lack of sophistication and resources to extract inappropriate settlements from them. (see pg 75 of the report for some of our thoughts)
  • The need for more public education on matters of copyright law, including fair use, to promote creativity.
  • The creation of easy to read fair use best practices developed within specific creative communities by creators, lawyers and other practitioners working in that specific area to help creators make informed decisions about fair use.
  • Recognizing the importance of having a small claims copyright court to help independent creators resolve disputes that doesn’t sacrifice important copyright safeguards, like fair use, in the process.(see pg 78 of the report for some of our thoughts)

The report also includes many ideas that we’re excited about including:

  • Making sure a copyright symbol doesn’t complete bar innocent infringer status, which is particularly important for the reuse of older archival works where the version with the copyright notice may not be readily accessible to the public.
  • Creating voluntary microlicensing schemes for remixers and creators whose works would not qualify as fair use, that would allow remixers and creators to share profits with content owners.
  • Developing best practices and educational resources to make users aware of what they’re actually purchasing when they buy digital goods like books and music online.
  • Including greater flexibility on claims of non-willful secondary copyright infringement to help spur technological innovation around copyrighted content.

While none of these suggestions are binding, it’s heartening to see practical suggestions for sowing the seeds of a more creative and innovative future.

Value legal services for internet users and creators?  Support them.

Find additional articles by

Unpublished

See you at SXSW 2016!

Thanks to your votes, New Media Rights is heading to SXSW interactive in Austin, Texas. On Tuesday March 17th at 2:00PM in room 5ABC of the Austin Convention Center we’ll be presenting our panel “Can We Just Play? The Legality of Let's Play Video”.

Let's play videos are more popular than ever, however, for many creators what's legally okay and what isn't is more unclear than ever. Come learn the basics of copyright and trademark law that you need to know to keep your videos and streams up. Also get a chance to hear from legal experts and video creators about hot topics like Easter Egg Videos, Esports and using in-game music.

Joining Art and Teri will be Wikimedia Legal Counsel and lifelong gamer Jacob Rogers, as well as Angelo Alcid attorney and writer of the Journal of Geek Law.

So if you'll be at SXSW come check it out! Don't have a badge? No worries! SXSW gaming is open to the public so if you happen to be in Austin and are willing to brave the SXSW crowds come on by! If you can’t make it, you can follow our panel on twitter using #NMR.


 

Value legal services for internet users and creators?  Support them.

Find additional articles by

Erin Murphy Girard

Clinical Intern

Joined NMR in: 

January 2016

Erin P. Murphy joined New Media rights in January, 2016.  After a fast-paced sales career at a pioneer internet company, she decided to pursue a legal degree.  Tired of the cold winters in Boston, Erin headed west for San Diego and is currently in her 4th semester at California Western School of Law.

Erin is extremely interested in internet law and how it can protect works without stifling technological and creative advancement.  She is specifically concerned about how the law can better keep up with technology. 

When Erin is not working or studying, she is likely spending time with her new husband.  She loves dogs, poker, and the New England Patriots.

Rayman Khan

Clinical Intern

Joined NMR in: 

January 2016

Ray attended the University of San Diego where he majored in environmental studies. As much as he loved the field work involved in his major, he developed an affinity for the social implications related to environmental forces. In order to one day become a liaison between people and the environment, he decided to obtain a legal education at California Western School of Law. Now as a matured second year student and because of his fascination with social entrepreneurship, Ray's interests have broadened to include the legal aspects of intellectual property and business law alongside his environmental focus.

In school, he currently acts as the social media chair for both the Environmental Law Society and the Middle Eastern Law Student Association. He is also a competitor for the school's Alternative Dispute Resolution team. As a tutor, he teaches first year students the basics behind contract law. Outside of school, Ray tries his best to keep active by joining pick-up Frisbee and Basketball games (#ballislife), hiking the various landscapes around San Diego, or jogging around Mission Bay.

Daniel Marin

Clinical Intern

Joined NMR in: 

January 2016

Daniel studied international relations at Florida International University, where he developed an interest in the legal field. Daniel has always had a passion for technology, and the entrepreneurial spirit of musicians, software designers, game developers and more.                                                                                                                                                                 

After his first semester of law school he was part of the dean’s list for his academic success. As a second year law student he has been an active member of the international law society, and the student intellectual property law association. His passion for technology, entertainment, music, and software development has driven him to pursue a concentration on intellectual property. Daniel started the journey into the intellectual property field at the beginning of his second year when he began working at the Intellectual Property Tribunal of Chile for his summer internship. Furthermore he has written an extensive research paper on e-Sports, as that is one of his major areas of interest.

Upon graduation Daniel wants to pursue a career in intellectual property law. Specifically he would like to work for a video game company, software developer, or a startup that he believes in.

Outside his studies, Daniel enjoys playing guitar and bass, working with his brother in developing a YouTube channel, reading, and when time allows play video games.

Contact Us

New Media Rights provides free, reduced fee, and competitive full fee legal services to individuals, non-profits, and businesses that have questions regarding Internet, media, and intellectual property law. This includes copyright, trademark, licensing, contracts and First Amendment free speech issues (Learn more about our services).

Before you submit your inquiry please donate in recognition of the fact that it takes alot of resources to have an experienced, licensed attorney review and respond to inquiries. We're offering a unique, nonprofit 501(c)3 service that simply won't continue to exist without your donationsPlease take a moment and give an amount appropriate for you. Note: Becoming a Supporter means we will prioritize a response to your inquiry, but it does not guarantee we can take your case.

If you are NOT a U.S. resident, please know we can only provide services to international clients regarding U.S. copyright law.

If you have a question or want to request legal services, please fill out the form below and an experienced advocate will respond.

Due to tremendous demand for our services, response times may average 6-10 business days. However, we prioritize responses to New Media Rights supporters.

If you would like us to expedite your response, you can become an NMR supporter by clicking here.

By clicking submit, you agree to this Supplemental Terms of Service.

If you have any trouble with this form, you can reach us at support@newmediarights.org

 

 

Click "Submit Inquiry" below to send your question to New Media Rights!

How do I find the copyright holder?

CC0- Unsplash

At New Media Rights we get quite a few questions about how to find out who owns a copyrighted work. In this guide we’ll talk about:

  • Whether or not you need to get permission to use the work.
  • How to get permission if the creator is still alive.
  • How to get permission of the author is dead.
  • Orphan works and what happens when you can’t find the author.

Part I: Do I need to get permission to use the work?

If you don’t own the work, meaning you didn’t create it or created it but gave the rights to someone else, then you may need permission to use the work. But there are a few important exceptions. Here are a few questions you should ask yourself to help determine if you need to get permission to reuse the work you want to use.

Step 1: Is the work in the Public Domain?

Works in the public domain won’t have a copyright owner. Keep in mind the public domain is pretty limited and typically only applies to works created before 1923, however that can vary depending on where in the world the work was produced. We highly recommend using this helpful chart to determine if the work you’re interested in using is in the public domain.

Step 2: Was it released under an open license?

When a work is released under an open license like creative commons, you can use the work under the terms stated in the license without contacting the copyright holder so long as you comply with the terms of the license. To learn more about open licensing options check out the following resources

Step 3: Would your use of the work be considered fair use.

If you intended plans for the work would be considered fair use than you do not need to get permission from the copyright holder to use the work. Since fair use can be pretty tricky, we highly recommend contacting an attorney to make sure your intended use is fair use. You can also try using our new Fair Use App to learn more about fair use.

Step 4: Do you already have permission?

If the work falls under any of the above steps then you might already have permission, but if you’re uncertain about your answers it’s always ok to check in with a copyright attorney first. If there are doubts or if the work does not fit any of the above categories, then your next step is finding the proper copyright owner of the work you intend to use. There are a number of ways to go about finding who need permission from, but it always helps when you have some information about the work itself. At a minimum you’ll need the title of the work and the author of the work before proceeding.

Part II: How to find the copyright owner when you need to get permission to use the work

Who is the copyright owner?

In the US copyright rights are granted the moment the creator of the work fixes their work in a tangible medium of expression. In fact you likely create over a dozen copyrighted works a day. From the moment you type out an email or take a selfie you are granted a copyright in that work, no registration required. Given how easy it is to get copyright rights in a work, it can be especially tricky to find the copyright owner of a work.

Step 1 Is the creator still alive?

Step 1.1 Contact the creator. If the creator of the work is still alive you first step should be to contact the creator of the work. As long as they didn’t assign their copyright to someone else you should be able to get their written permission to use the work.

Step 1.2 If the creator has assigned their work to someone else like a record label or publisher or created their work as part of their job (i.e. to get a license to use clips of Frozen you would approach Disney not one of the films animators). Your next step should be to contact that entity. Most medium to large size entities will have a licensing department you can contact to ask for permission to use the work. Keep in mind the business that the creator assigned their work to may actually be owned by another entity now.

Step 1.3 Performing Rights Organizations & Reproduction Rights Organizations Copyright owners can sign up to certain organizations that help them collect royalties on their works. These are known as Performing Rights Organizations (PRO) and Reproduction Rights Organizations (RRO). While PROs monitor publicly used works, usually music, on a national level, RROs monitor scientific, technical medical and cultural printed works on a national & international level. They might be a bit different in the works they regulate but they are similar in how to get permission to use their works. Permission can be acquired by requesting it through their webpages, which are relatively easy to access and use. The websites for the main PROs and RROs of the United States are the following:

PROs:

RRO:

Step 2 If the author is dead.

Step 2.1 Copyright rights automatically pass to the heir of a creator upon their death. But tracking down the heirs of a creator can often be difficult, particularly for obscure works. To help track down family members look for the author’s obituary online or for better known authors their Wikipedia page will often list surviving family members. To find contact information, reference tools like http://www.familysearch.com and http://www.ancestry.com can be helpful.

Step 2.2: Does the author have a foundation in the honor or a dedicated library?
Many times with famous authors, a foundation or dedicated library will be established in their name; and after their passing the foundation or library gets granted the copyrights to the authors work. In order to check whether the author of the work you want to use has a foundation or dedicated library, a quick Google search should be helpful. Each foundation and library is different when granting licensing for the authors work, so be sure to look at each foundations or libraries requirements before contacting them.

Step 2.3: If the publisher is still in business reach out to them.
Although the trend recently has been for authors to retain their rights rather than reassign them over to publishers, it is necessary to check if the publishers retain the rights to the works you are trying to use. If you have the publisher’s information then you should reach out to them. Sometimes that publisher has gone out of business or been bought out by another publisher, and it might be difficult to track down the rightful copyright owner as a transfer of copyrights registration isn’t mandatory. One way to find the correct owner would be to search the business history of the original publisher and try to find out who bought them out—this might be the company that now owns the rights—if this is the case, or if they went bankrupt. Another way to check that you are reaching out to the right copyright holder is searching databases like the copyright.gov database or the MPA.org (for music related works) for updated information, however remember that transfer of copyright registration isn’t mandatory and most companies might not update the information.

Step 3 Orphan works

An orphan work is a work whose rightsholder can’t be determined, and establishing inheritance of those rights prove impracticable. This means that somewhere down the copyright line the rightful owner never became aware of their rights. This can happen when the copyrights outlive the heirs—because copyright lasts 70 years after the authors death—and down the line the ownership gets lost, or falls through the cracks of estate planning efforts. What also makes it difficult is that under U.S. law, copyrights don’t have to be registered and notice of copyright need not exist, which makes tracking down the rightful copyright owner nearly impossible sometimes. Typically when someone finds a work they want to use but cannot locate the rightful copyright owner, they abandon the work in fear of litigation; however, if it can be proved that the user diligently searched for the copyright owner to no avail, the orphaned work can be used. If the orphan work is used and the owner comes forward the user will have to prove to the court that there was a diligent and reasonable search conducted in good faith to find the copyright owner. Once evidence is shown of this and the court agrees with the user, then the work will be considered orphaned for at the time of use, and the user will not face damages. However any future uses of that work will be subject to a compulsory license with royalties; meaning the user can continue to use the work in the same capacity they previously did but any future use will be subject to royalties paid to the now known copyright owner. So when deciding to use orphan works, it is extremely important to be as thorough and diligent as possible to look for the copyright owner; all the while keeping track of all the methods you used to try and track the rightsholder down.

Additional Helpful Resources:

Special thanks to NMR Intern Stephanie Trejos for helping us get this guide completed!

Value legal services for internet users and creators?  Support them.

Find additional articles by

YouTube's new Fair Use Protection Program

Today YouTube announced a new program to help its users stand up to bogus copyright threats from content bullies. Under the program YouTube will offer select users, with strong fair use cases, who have a video taken down under the DMCA two options:

  • Option 1: Users can follow the current process of filing a counter notice and have the video put back up worldwide in 10-14 days as required by law.
  • Option 2:  Under the new option, users will be able to keep the video up in the US. Google will also provide a vetted list seasoned copyright litigators and up to one million dollars to help with legal fees if they are sued.

While we wish the program didn’t make users choose between keeping the video up worldwide or just in the US, we understand that much of it is a result of the messy state of international copyright law. And we hope that as the program iterates it will be able to expand its scope and hopefully make some great case law reinforcing the legal consequences of sending a bogus takedown in the process. We also like the idea of having a "demo reel" of fair use examples to help YouTubers learn about fair use. You can see the first class of videos YouTube has selected for their fair use program over on YouTube here.

Although we want to applaud YouTube for its program to help users fight back against bogus DMCA takedowns, there is one giant category of claims that this program won’t help with. That is claims made under YouTube’s ContentID system. That system is also often abused by content owners looking to censor speech or individuals seeking to abuse the system to take revenue from creators. For creators that rely on fair use, YouTube's own internal appeals system is their primary recourse because the legal consquences of abusing the ContentID system are far less clear.  As large content holders gain more leverage over user-generated content sites through the threat of crushing litigation, we’re going to start seeing more systems like ContentID pop up that lack critical user safeguards (including legal consequences for abusing the system) present in the DMCA. We don’t point this out to knock YouTube’s new program but instead as a reminder of how far we have to go to truly reform copyright such that it can no longer serve as a tool for those who seek to stifle speech.

We’ll be watching YouTube’s new program with great interest going forward.  If you have thoughts or questions about YouTube’s new program feel free to reach out to us via our contact form.

Value legal services for internet users and creators?  Support them.

Find additional articles by

Our 2015 accomplishments!

Whether you’ve joined us as a Student or an Open Internet Defender we're stronger than ever thanks to support from individuals like you!

If you haven't become a Supporter, we need your support more than ever this year. Please consider joining our community of supporters by making a donation and help us continue to fulfill our mission to:

  • Provide free and dramatically reduced fee one-to-one legal services to underserved creators and innovators that need specialized help with Internet, intellectual property, media, and technology law
  • Defend the Open Internet and push for badly needed copyright reform.
  • Create high quality legal educational materials and to educate the next generation of lawyers.

With your support we’ve done this and more in 2015 by:

In 2016, with your support we plan to:

  • Continuing to provide free and dramatically reduced fee one-to-one legal services to  400+ underserved creators and innovators.
  • Releasing our first book aimed at helping creators and entrepreneurs better understand the legal issues they may encounter while innovating and creating.
  • Sponsoring and organizing more than 12 workshops and community events throughout the San Diego region and throughout the United States about digital rights.
  • Working on policy initiatives to encourage the FCC to adopt real Net Neutrality measures.

Value legal services for internet users and creators?  Support them.

Find additional articles by

Related Types of Content: 

Second Annual Giving Tuesday Night Owl Edition!

This Giving Tuesday, December 1, New Media Rights will be running a one-day, 24-hour fundraiser where your donations will be matched dollar for dollar up to $40,000! We need your support more than ever this year. Please pledge an amount to support@newmediarights now, and then donate on December 1 help us leverage our biggest match opportunity ever!

We’ll also be competing with all of the other wonderful programs at California Western School of Law for that $40,000 match on a first come, first matched basis. In order to maximize your impact we are asking donors to give as close as possible to 12:01am PST on December 1st! As an added bonus the first person to donate on December 1st will get a video thank you from the NMR Team!

Need a reminder? Send the dollar amount you would like to pledge to support@newmediarights.org by Monday November 23 and we'll send you a reminder email at 12:01AM on Giving Tuesday! Even if you're not a night owl, your early bird donations can have a huge impact!

Double your impact! Double our reach!

By giving on Giving Tuesday, you can double your impact, and help us to do more great work like the work we did this year. Thanks to your continued support we:

  • Launched our Fair Use App to provide filmmakers and video creators with a practical tool for learning more about copyright law.
  • We helped secure critical exemptions that allow filmmakers to bypass encryption and technical protections measures for purposes of fair use and were a huge part of the historic Open Internet Order!
  • We Assisted on our 1,500th legal matter and served more than 500,000 people this year through the educational resources on our website.
  • We joined coalitions that supported critical protections for military whistleblowers and helped ensure that you can access the educational materials you pay for with your tax dollars.
  • We were approved to provide the New Media Rights Internet and Media Law Clinic with California Western School of Law year round to better train the next generation of lawyer to understand the needs of creators and entrepreneurs.

See a full list of our accomplishments for the year and our exciting plans for next year here!

All the best,
Art Neill, Teri Karobonik, and the New Media Rights team

Value legal services for internet users and creators?  Support them.

Find additional articles by

Related Types of Content: 

Pages

Learn more about why we have ads