If you’re an indie gamer and have yet to encounter copyright issues, don’t worry, they’re on their way.

Copyright is everywhere and the indie gaming world is no exception.

Though its rapid development has given it a bit of a pass in the area of copyright insurgence, the gaming industry is no stranger to copyright issues.

Take for example the case of Galoob Toys v. Nintendo in 1992, a.k.a the “Game Genie” case.

In this case, courts ruled that altering a game’s content in a certain ways did not violate copyright laws. It resulted in gaming giant Nintendo paying 15 million in losses to the little guy, Lewis Galoob Toys, Inc.

This case has a set a precedent in the gaming industry that basically means that all gamers, from the big wigs to the independents, must guard their creation with a certain amount of informed vigilance. In other words, to avoid common copyright pitfalls, indie gamers must educate themselves on the main sources of legal protection for their original gamer creations.

That said, take a moment of your time to peruse these four things every indie developer needs to know about copyright and IP.

1. Registration means everything.

We all know that one of the biggest obstacles involved in being an indie gamer is lack of resources.

This often means playing bootstrap game to make ends meet and piecing together the priorities of your game development in unique and creative ways in order to get to do the work you love.

However, one aspect of gaming creatively that should not be shortchanged is copyright.

If your eventual goal is to seek acquisition from a bigger fish company and walk away with thousands, nay millions, in your indie gamer pocket, take note. Mergers and acquisitions lawyer are the least likely to mentor you for the fulfillment of your dreams. Instead, why not make copyright registration a top priority from the get go? Here’s why.

Copyright is based on written and formal agreements and forms recognized by the U.S Copyright Office and outlined in the U.S. Copyright Act. Formal arrangements must be made if you are to seek legal remedy when you spot another gaming company highjacking your material or stealing your originality.

This involves applying for a registered copyright from the Copyright Office.

Without registration, you still have rights, of course. The only difference is that these rights are harder to uphold in court in the event copyright infringement becomes an issue. Also, if someone infringes your game before it’s registered, you could miss the chance to receive attorneys fees and statutory damages, and statutory damages could be anywhere between $750 and $30,000. Keep this in mind.

2. You don’t own the materials others contribute.

Everyone knows that in today’s rapidly swift world of speedy technological development, collaboration is key.

Indie gamer developers would do well, however, to watch their steps when it comes to inviting others to contribute work to a completed end product.

This is because copyright issues involving contributions from others (yes, even friends) could get tricky. If you’re an independent developer and you receive graphic material, music, sound effects or written assets from others, you don’t own these materials. Copyright law says, in most instances, the ownership rights to such material belong to the original creator.

Therefore using these materials without prior transfer of ownership rights could mean exposing yourself to costly copyright infringement liability – which leads to the next conclusion of this post.

3. Know and be careful with the concept of derivative works.

One of the main issues in the Nintendo case mentioned earlier was whether the altered game content created a derivative work. This is significant because copyright laws extend to protect derivative works – works based on one or more preexisting works.

A copyrighted game would grant exclusive rights over the initial creation as well as all derivatives.

However, an important distinction must always be made when it comes to copyright and derivative works. For instance, the original creation of others may not be considered derivatives when that work is an authentic creation.

This is why, as explained above, the graphics, music, sounds, or written asset contributions to your gaming project would mean that you do not own all aspects of the game you created.

Another way that derivative works could be a problem for gamers is when the game you created does not have enough original content to be considered a non-infringing work. Under such circumstances, gamers would need to secure representation – a lawsuit could be on the way.

A number of bigwigs in the gaming industry are constantly monitoring new releases for possible infringements. If yours happens to be located, it could mean costly litigation in the future.

A Word on Joint Authorship

A derivative work is vastly different from a jointly authored work. Joint authorship happens when there are one or more original creators for a game. Legally, this means that each developer has an equal and undivided right to ownership. In other words, each owns his own share of the game as well as part of the share of all the other owners.

Joint authorship also affects how the ownership rights to a game can be transferred. Because joint authorship differs from outright ownership, exclusive licenses, say for a company interested in marketing, selling or distributing the game, would require the agreement of each developer.

So, if you and a few friends are working together on a game and can be considered original creators of the work, joint authorship rules could apply. Otherwise, gamers must be careful to transfer ownership rights for all contributors before proceeding with sale and distribution.

4. Beware. Willful copyright infringement is no joke.

Ever wondered what’s at stake if an indie gamer decides to violate copyright laws?

The answer is, quite a bit.

Anyone in violation of a copyright is subject to both injunction, impounding and actual damages plus the duty to pay back any profits made from the infringing game.

An injunction basically stops any new work on the games development. This stops all infringement including an new marketing or publicizing projects. Next, impounding means that all copies of the infringing game could be confiscated and held. Lastly, actual damages to the owner of the copyright must be paid as well as any and all profits made on the game.

Obviously, these costs can skyrocket, especially if the game, as infringing as it is, turns out to be popular. Now imagine being found to be a willful infringer. In that case, expect costs and damages to balloon up to $150,000. Clearly, not a risk any indie gamer wants to take.

So what’s the best way to ensure that copyright does not become a game developer’s nightmare?

Keeping Copyright In Sharp Focus

An indie gamer has a number of obstacles to overcome – but lack of originality shouldn’t be one of them. Lack of resources, an unstable economy, a flooded market and big wig competition are all part of the gaming game, but copyright issues don’t have to be.

The best way to ensure your work is protected and to ensure you’re not overstepping the boundaries of someone else’s rights is to recognize the vital importance of originality and remain committed to it. Keeping this central tenet in sharp focus could keep even an indie gamer well ahead of the game.

Because you care about navigating IP and copyright smartly, follow us on Twitter.

About the Author: Veena Veana is currently a legal document specialist, freelance writer, poet and community activist residing in west Texas. She earned her JD from Chicago-Kent College of Law, specializing in Intellectual Property, and holds a degree in Microbiology from the University of Texas at Austin.

The post 4 Things Every Indie Game Developer Needs to Know About Copyright & IP appeared first on The Official Kunvay Blog.

A shift has occurred in the U.S. workforce over the past two decades, and freelancers know all about it.

Today, nearly 53 million Americans are freelancers.

Experts predict that by the year 2020, the growth of the freelancer segment will even begin outpacing full-timers.

This means that just as our world is rapidly changing, so too is our job market taking on an entirely different mode of operation and expression.

It also means more and more ongoing interaction between full-timers and freelancers as companies begin outsourcing projects on a regular basis. This is where intellectual property issues arise.

Receiving work from a freelancer may seem like an excellent way to save time and effort, but without the right know-how, doing so could land you and your company in a heap of copyright trouble.

Reason #1: You Can’t Control What You Do Not Own

Think about it this way.

The worst thing that could possibly happen is that you hire a freelancer without receiving copyright and IP ownership.

Now you have the work in your possession, but you neither own nor control that work – nor does your employer, if you have one. All of it could mean disaster.

Copyright law states that ownership remains with the creator of an original piece of work. This means that work done by freelancers remains legally theirs in terms of ownership.

If you should choose to use, publish, alter, distribute or copy the work, its important to keep in mind you may be infringing on the freelancer’s rights to the work. That’s why you can’t control what you do not own.

So how does an outsourcer gain ownership of work received from a freelancer? The answer to that question is straightforward. The easiest way to receive ownership is in writing through a copyright transfer.

A Note on Work-For-Hire Agreements

Even though the freelancer is the original owner of work he or she creates, a copyright transfer can convey these rights, in total or in part, to the hiring company. Once the transfer is complete, the company can then manage the work according to the terms of the agreement.

The work received from a freelancer could fall into a special category, however, that represents an exception to the general rules in copyright law.

The general rule is that the original author of a work with at least a modicum of creativity is the exclusive owner of the work. However, in the instance of a work-for-hire, a written agreement transfers the rights to the hiring party under certain conditions.

With work-for-hire arrangements while the author of the work is the freelancer who is also the original copyright holder, the actual owner is the client or the employer. This work-for-hire exception applies only under certain circumstances such as work done under the scope of employment or work hired as a contribution to a collection of works.

Types of Rights Transferred

The type of rights transferred could depend heavily on the industry involved and vary accordingly. A graphics design transfer could be vastly different from a photography transfer. Many magazines expect to receive First North American Serial Rights – the right to print an article first in North America. After the first printing the right reverts back to the freelancer.

Reprint rights and one-time rights could also be established through written transfer agreements. Reprint rights allow an employer to print the first publication and continue reprinting for a designated duration of time. One-time rights allow an employer to print a work only once.

Say, for example, you just purchased a logo from a highly skilled freelance graphic designer – but you did so without first transferring his copyright and ownership right to the logo. This means that if you wanted to place your logo on your website or festival banner or brochures, you’d need permission, and possibly even a license, first before doing so.

Without it, the freelancer could have a claim of copyright infringement against you.

Reason #2: You Can’t (Legally) Make Money Off What You Do Not Own

A theft by any other name is still a theft.

That couldn’t be any more true than with copyright infringement.

When a freelancer does the work, that freelancer owns the work until he or she transfers the ownership right.

If a client decides to use or publish the work in any way after that without receiving copyright and IP ownership, plain and simple, it’s stealing.

Copyright infringement is serious business. For freelancers who can prove willful infringement, the damage award can be up to $150,000 for infringers on top of actual damages and profits in some instances. This can be a pretty steep price to pay for the outsourced work of a freelancer.

Reason #3:  It Pays to Care (At Least Your Employer Thinks So)

As an employee hiring a freelancer for your company the urge to let a bit of apathy set in is tempting.

You know your employer can be held vicariously liable for any mistakes you make, and the responsibility would fall to your company to defend itself in a copyright infringement lawsuit.

That’s just the point. A nonchalant attitude about work received from a freelancer and the necessary copyright and ownership transfer that must and should take place, could backfire.

The repercussions are intense, and an employee could easily suffer a devastating career blow over the resultant losses suffered by the company.

That’s why the better attitude to have is one of diligence and precaution. If your company does not already have copyright transfer agreements in place for freelancer situations, it may be time to approach your supervisor about doing some homework.

Additionally, identifying quick and easy online methods for copyright transfer could make the process convenient and hassle-free for all involved. A copyright and IP ownership transfer is crucial in establishing a hiring company’s rights and avoiding liability.

Transferring Ownership Rights From a Freelancer to Your Company

Often, disputes about freelancer ownership arise after a job has been completed and the freelancer demands his or her work back. Or, a freelancer may continue using the work he or she has created to the utter chagrin of the hiring company. In these instances, the transfer of copyright was obviously not clear enough to prevent detrimental skirmishes.

To be clear, a transfer of copyright and IP ownership must be established from the outset of a project and should be in writing. Some company workers see this step as a particular inconvenience and make the mistake of overlooking its importance, but the more copyright-friendly approach is to take a transfer very seriously.

The agreement need not be elaborate, but it should be enough to clearly define the terms of the ownership transfer and to designate which rights will remain with the freelancer and which rights will remain with the hiring company after the ownership transfers.

One last thing, keep in mind that copyright ownership is only truly legally protectable when the work is registered with the U.S. Copyright Office. This means that even if a freelancer is entitled to the work he or she does, technically, they may have a difficult time persuading a court to protect the work and uphold its copyright if it is unregistered.

Proceeding with Diligence and Caution with Freelancers

The main point here is that the most effective way to receive work from a freelancer is to transfer copyright and IP ownership first and get it in writing. As with other transfers of property, verbal or handshake agreements are less likely to be upheld in court.

Taking a proactive approach by researching the best way to transfer copyright ownership in a freelance project situation is likely the wisest way to ensure the job goes smoothly for all involved.

Because you care about navigating IP and copyright smartly, follow us on Twitter.

About the Author: Veena Veana is currently a legal document specialist, freelance writer, poet and community activist residing in west Texas. She earned her JD from Chicago-Kent College of Law, specializing in Intellectual Property, and holds a degree in Microbiology from the University of Texas at Austin.

The post 3 Reasons Why You Should Never Receive Work From a Freelancer Without Receiving Copyright & IP Ownership appeared first on The Official Kunvay Blog.

The selfie era has long been upon us.

Only a few can resist the urge to express the “exuberance of the moment,” as experts put it: social media and clever smartphone technology in particular have made it ever so easy to throw up a peace sign, strike a pose and voilá – selfie heaven for well-knowns and unknowns alike.

In fact, according to psychologists, the advent of the selfie era has to do with achieving a level of ‘intimacy-at-a-distance’ with those larger than life people and places we admire.

It’s a technological way to zero-in on the moment and place oneself right at the center of attention. This is all somewhat of a good thing from an intellectual property standpoint. The selfie raises a number of interesting issues – particularly in the realm of copyright.

At least one threshold copyright rule for selfies exists: he (or she) who snaps the shutter, owns the selfie. Though this simple adage is easy to apply, selfie issues can still get complicated.

For instance, who actually owns the rights to a group selfie? If you post a selfie on social media networks, can you actually say it’s still yours? What about reposting a selfie? Who owns what then?

1. Selfies and More: The Question of Who Owns What

When it comes to photos, the question of who owns what can get sticky.

That is, unless one central tenet of copyright basics can be remembered: when it comes to photographs, it’s always the shooter (the person who clicks the photo) who owns the photo. This is true regardless of who owns the camera or who is holding the camera at the time the photo is taken.

The golden rule for photo ownership is if you click it, you own it.

This general rule touches on the essence of copyright law. That is, copyright law rests on the notion of original creation. The main question is always who created this photo, this painting, this song, these lyrics, this novel really?

For instance, when a professional photographer takes a photo of a model, we sometimes make the mistake of assuming that it is the model who owns the resultant photo. It is her image, right? Plus, she gets paid based on that image, right? Well, that may make sense from a business standpoint, but copyright law says otherwise.

This is because the root of copyright, its foundation, is based on original and authentic creation.

Copyright law deems the person who manipulates the camera, by clicking the shutter, as the original creator. Thus, the owner of a selfie would be, yes, you guessed it, your very own self.

Photo Copyright Basics: A Quick Primer

As with all photos, the person who shoots a selfie retains ownership under copyright law for 50 years, and if he or she registers the photo with the U.S. Copyright Office, that person is entitled to a possible injunction and monetary compensation when someone else gets caught infringing the copyright.

This is because, as the owner of a copyrighted work, the shooter has the exclusive right to sell, adapt, alter, copy, publish or distribute the photo.

These concepts of ownership have been codified in the U.S. Copyright Act, and a case called Feist Publications, Inc. vs. Rural Telephone Service, Co., 499 U.S. 340 (1991) articulates the originality standard well. In that case, the Supreme Court made independent creation and “at least a some spark of originality” a Constitutional requirement in order for exclusive rights to be granted.

Of course, there are exceptions.

For instance, when the photo is a work-for-hire – a photo created while under the employment of another or as part of a contract for a client – the ownership lies with the employer or client rather than with the photographer, usually according to written agreement. Additionally, the fair use doctrine often plays an significant role in copyright law as an exception to the general rule.

Group Selfies: Same Rule Applies

What happens when a group of friends or family crowd around the smartphone for a group selfie? The ownership guidelines remain the same.

Whoever clicks the photos is considered the original creator and ownership resides with him or her.

Think back, for example to that amazing Oscar moment this year that presented such a telling moment in selfie history when Ellen DeGeneres gathered together a group of front row-seated celebrities for the group selfie of the century.

If you’ll recall, just after a voice yells out, “I’ll take it!” Ellen quickly replies, “No, I’m taking it,” to the cheers and chuckles of the crowd.

Smart thinking, Ellen. If there were ever a legal dispute over the ownership of the famous Oscar group selfie, which might I add, spread like wildfire throughout the social media world, Ellen’s insistence would have paid off.

However, as is so often the case with group selfies, things got mixed up in the “exuberance of the moment”, and Ellen was not the person who actually snapped the photo. It was actually Bradley Cooper who clicked the shutter. The person who clicks the photo owns the photo. In this case, that owner would not be Ms. DeGeneres, but Mr. Cooper. Go figure.

2. Selfies on Social Media: Who Owns What?

The questions about selfie copyrights don’t end here, however.

What about posting your selfie (assuming you clicked it) to a social network site like Instagram or Twitter? Do you automatically lose ownership rights?

The answer here depends. The main factor is whether or not the terms of the site, which presumably you have already read and agreed to at registration, dictate that ownership shifts when photos are posted.

Now, before you think, no a site would never go so far a to dictate such widespread copyright control, recall the Instagram copyright scare that took place not so long ago.

It should be noted that Instagram currently claims no copyright ownership in any content posted there, including photos, and has since denied any intentions of claiming ownership during the scare, but not all sites are the same.

The best advice is to always read site terms and agreements carefully before posting any original content to the Internet. Doing so could pay off when it counts.

3. Look out! Photo Copyright Can Only be Transferred Via Written Agreement

This raises another interesting point. Photo ownership can only be conveyed via agreement, preferably in writing. In other words, the transfer of the original creator’s rights cannot be assumed by anyone else unless there is some agreement stating the creator’s intention otherwise.

In other words, just because you own your photo, you may be prevented from publishing, distributing or using the photo if there is a written document in place indicating you don’t have the right to do so.

All in All: Selfie Copyright Basics Aren’t Complicated

All in all, selfie copyright basics boil down to original creation – even with selfies. Remember the selfie golden rule: she (or he) who clicks it, owns it. It’s also important to keep in mind that the transfer of ownership cannot automatically take place.

Copyright ownership must be conveyed via agreement, preferably in writing. You can transfer copyright & IP ownership online using Kunvay. Keep these selfie basics in mind the next time you throw up your peace sign and strike a pose, and your ownership rights will remain firmly intact.

Because you care about navigating copyright & IP smartly follow us on Twitter, and sign up below to get valuable copyright & IP questions tips in your inbox.

About the Author: Veena Veana is currently a legal document specialist, freelance writer, poet and community activist residing in west Texas. She earned her JD from Chicago-Kent College of Law, specializing in Intellectual Property, and holds a degree in Microbiology from the University of Texas at Austin.

The post 3 Selfie Copyright Photo Basics You Need to Know appeared first on The Official Kunvay Blog.

Situations where potential venture capital investors are grilling start-up management always seems to bring the T.V. show “Shark Tank” to mind.

I don’t know how many times I watched as one of the “sharks” on that show told some poor business bait that money would be offered to invest based on a plan to market a license on an app program that showed great potential.

The shark sure sounds like he knows what he is talking about. Or does he.

Because we know that before licensing anything a startup manager needs to have procured a solid copyright.

Getting a copyright for a program associated with an app, website or any other computer program is no easy task regardless of whether venture capital has been secured. There is a fundamental flaw with the “shark’s” proposed business plan. He can’t market a license on a copyright the startup doesn’t own and likely can’t get.

Venture capital investors, on reality T.V. shows, and in life, don’t always know what they are talking about, and they would do well to “nota bene” that old saying, “if you have some money there will always be someone that is ready, willing and able to take it away from you.”

If you have created an innovative and useful product that you want to market then bring your plan to a bank and ask for a business loan. Don’t waste time with “venture capitalists” that are really just out to snag patentable or copyrightable ideas in order to gain a competitor advantage.

Questions VCs, Banks & Investors Ask about Copyright & Intellectual Property (IP)

The IP questions you would likely be asked by any potential investor would generate from two main sources, your business plan and the IP surrounding product that you envision marketing. Let’s take a look at some of the potential IP question areas.

1. Who owns the computer code, and is it copyrighted?

Let’s say you developed a really unique and useful web app that you want to bring to market. The first questions you will be asked will be whether or not you have secured copyrights on the code, the visual graphics and and any other content and whether you have secured or applied for a patent on you idea or format.

You can’t market the IP aspects of a product or idea you don’t own, and investors are going to be aware of this fundamental fact.

You can copyright a computer program or the associated code. The problem is that to get this copyright you will need to do a search on the code you used to figure out which part of it was a “work of original authorship” and which parts of your product was based on a reuse of code created and possibly copyrighted by somebody else.

You can only apply for a copyright on the specific code you created as an original work of authorship and that is the only portion of the code you may copyright and license to others.

You will need to take steps to get a license, or permission to use and market, all other parts of the code that comprises app’s computer program code that came from other sources that may have copyrighted their codes. This is an IP aspect where you could receive questions by a potential investor.

Once you have your own copyright and any needed permissions or licenses to use and market the code of other contributors in your final product you are “good to go.” You will also need copyrights or licenses for all the graphics and audio you used before you can move ahead to produce and market your product; investors know this and you need to know this as well.

2. Do you own the rights to all the graphics and audio used in the app?

Let’s say you want to market a product that has these really incredible graphic images and music. Investors will ask if you have secured a copyright on the images and for example, the song lyrics used in your music. Your answer can’t be that your sister made the images, and your friends created the music. You need a written assignment of copyright in both situations.

And the artist payment price must be a reasonable one for the envisioned use and reuse by the application or the investors could fear that your “sister and friends” would opt to come back later and simply terminate the assignment and file an action for infringement that could cost the enterprise dearly. Play fairly with associates and your business will in turn be treated fairly and even be promoted by them.

3. Have you applied for any patents?

There are several different types of patents that may be applied for depending on the nature of the product that your business wants to bring to market. But no matter which patent applies in your situation you can bet your life on the fact that any potential investor is going to ask you whether any patent has been applied for and or secured on your product.

Patentable subject matter under a “utility patent” includes; a process, a machine, an articles of manufacture, and a compositions of matter. Most patents are utility patents. A new and original design or ornamentation for an article of manufacture may be granted a patent under the “design patent” category. A design patent will only protect the appearance of an article and not its structure or utilitarian features.

4. Do you own your logo and trademarks?

Inquiring minds will want to know if you have a logo or trade name.

Step one, let your graphic artist know that you intend to use an image they created as a business logo, step two, get a written contract either assigning or licensing the rights to the graphic image to your business and pay the artist for his work, and finally, step three, do a trademark search to make sure nobody else is already using that image or something very close to it as their business trademark.

If nobody is already using the image then apply for a State or a federal trademark based on your graphic image logo and your business name. These are some of the IP property rights that an investor would want to see that you have secured and are able to present the written contracts and agreements to document them in your business portfolio.

If your business has no funds available then just keep using your logo and trade name as before because you may be able to claim a common law trademark arising based on your years of use in the marketplace.

5. Have employees and independent contractors assigned all copyright & IP rights to their work to your startup?

An investor may inquire as to whether or not any of the app code, graphic images, audio tracks or written web content was supplied by an employee or independent contractor.

If your answer is yes then you will need to produce written and signed by the employee or contractor agreements that either assign the copyright in full or license permission to use the copyrighted material in the proposed product.

If you don’t have those agreements the investor could find problems with the foundational aspects of your application for business funds. To transfer and assign copyright & IP rights from independent contractors to your startup you can use an online copyright & IP transfer service like Kunvay.

Don’t be discouraged if it seems like a lot of IP work is needed and you just want to focus on developing your product. Securing a grant or a business loan can depend on showing an investor that you have taken all the steps needed to protect their investment in your business.

All you need to do is collect in a portfolio all the written and signed assignment and licensing agreement documents, and if appropriate, the applications for a patent or trademark. That’s all you need to do to impress investor questioners with your business savvy and know-how to handily achieve an approval for your business plan.

Because you care about navigating copyright & IP rights smartly follow us on Twitter, and sign up below to get valuable copyright & IP questions tips in your inbox.

About Author: Christine Varad is the principal writer and editor for Varacolors Media. She earned her JD in law from New England Law and holds a BFA from Massachusetts College of Art and Design. As an artist and a lawyer she has a long standing interest in Intellectual Property law and promoting the rights and interests of writers and visual and performing artists.

The post 5 Questions VCs Ask Startups about Copyright & IP You’ll Need to Answer appeared first on The Official Kunvay Blog.

The United States Copyright Office defines a “computer program” as a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.

The Copyright Office tells us that “copyright protection extends to all of the copyrightable expression embodied in a computer program,” but no copyright protection is available for “ideas, program logic, algorithms, systems, methods, concepts, or layouts.”

A web developer may create and develop copyrightable code for a website or app commissioned by a client, but he may have no clue as to the process of copyrighting that code or licensing website content.

1. “I’m a web developer — not a copyright expert.”

A web developer may know everything possible that there is to know about computer programming, the development of World Wide Web applications and distributed network applications run from a web server to a web browser but he may be completely in the dark as to the Intellectual Property rights and interests that arise in connection with any program or web application that he develops for a client.

A web developer shouldn’t be expected to provide legal advice as to the rights and responsibilities a client may have in regard to preserving and protecting intellectual property interests in the computer programs and web applications that he creates.

2. “If you don’t know what I’m selling, you probably don’t know what you’re buying.”

Clients of a web developer need to take care to fully examine and understand exactly what services and what product the web developer is planning to provide for them before entering into any agreement to purchase those services. A web developer is experienced at building websites.

He can analyze user needs to meet the goals of the proposed website and find the best web content, graphics, audio and video components to create the website, but he may or may not have any idea as to the procedures for ascertaining copyright ownership or licensing as to separate components used in the web design or even the code he created or used to complete the final website.

If a client envisions owning the program code to his final website or app product or owning all of the copyrights to the written web content, the graphics, the audio features and any other creative content used in the website, then he must be very specific about that requirement in his negotiations with the developer before any contract for services is executed.

Alternatively, a client can also receive copyright ownership of program code, graphics work, and other written content by using an online copyright transfer service like Kunvay.

3. “Not all of the work I produce for you can be copyrighted.”

There are many parts of a website program or related app that can’t be copyrighted at all. All of the typography used can’t be copyrighted because typography can’t be copyrighted. Many of the colors and images a web designer or web developer uses in her work are stock pictures that are not copyrightable.

And again, sometimes the audio or music used in a website program is stock music that is not copyrightable. There are many elements used to design and develop a web page or app that can’t be copyrighted at all.

The final product website may not be considered an original work if large parts of it come from stock that is not copyrightable. In order to make audio or images copyrightable the web developer would need to arrange to have someone create an original picture or an original piece of music or poetry reading.

Typography with a few exceptions is never copyrightable and similarly the words and phrases used in a banner or similar web page function would likely be too common to claim as original for copyright purposes.

4. “The process of copyrighting computer code is different from the process of copyrighting other forms of work.”

The code to a computer program is copyrightable if it meets all other criteria to be eligible for copyright protection.

That means that the code must be an original work of authorship. Most website or app codes probably can’t meet the initial and most important criteria, original authorship, to be granted copyright protection. A website designer or developer can’t sell you a copyrightable product if he basically can’t create a copyrightable product.

But let’s say he could do it and his client was willing to pay him to create a copyrightable code. The process of applying for and being granted a copyright is pretty complicated. The process for copyrighting a computer program is different from that used to copyright novels and photographs.

The “author” website designer or developer would need to describe in detail the copyrightable authorship of the code for which registration is sought. The description may not include references to design, physical form, hardware, algorithm or the code’s features or functions.

An individual may try to copyright a code on a limited basis if the program contains a substantial amount of previously published, registered, or public domain material, underlying the applicant program. And again, the process for making this claim is complicated and includes many phrases that may not be used to describe the applicant code.

If the applicant code is based on original authorship of pictures or graphic images used in the code then the applicant must use the form to register a “visual work of art” and not the regular form.

And then, last but not least, the applicant must send in electronically or in paper form, a copy of the complete code to be copyrights. The process for “depositing the code” is extensive but following the directions should get any applicant to their goal.

5. “Don’t expect me to provide you all the info you may need to copyright the code you receive from me.”

In short, getting copyrightable code for a website or app from a website developer or designer may be challenging, but not impossible, to do.

If you think about the process, which involves copyrighting separately each published version of a computer program when it contains new, copyrightable authorship of some sort, submitting another application and paying yet another filing fee and so forth.

Registration of a first version of a program or code, which is likely a pretty rare situation, can extent to the entire work but only if it includes no previously published code or content that is in the public domain.

It is pretty obvious that filing an application to copyright computer code to a website or app is going to be a process.

Most web developers and designers are not going to be familiar with meeting the criteria to submit a copyright claim for their clients, but honestly, they aren’t lawyers, they are talented designers and developers.

In the end, clients might be better served by letting them focus on doing what they do best; designing and developing web pages.

Because you care about navigating copyright & IP rights smartly follow us on Twitter, and sign up below to get valuable copyright & IP questions tips in your inbox.

About the Author: Christine Varad is the principal writer and editor for Varacolors Media. She earned her JD in law from New England Law and holds a BFA from Massachusetts College of Art and Design. As an artist and a lawyer she has a long standing interest in Intellectual Property law and promoting the rights and interests of writers and visual and performing artists.

The post 5 Things Your Web Developer Won’t Tell You About Copyright & IP Ownership That You Need to Know appeared first on The Official Kunvay Blog.

A copyright confers on its owner a bundle of rights and interests.

But before that copyright interest or right can be validly transferred or assigned to another person or entity, the copyright owner must be sure that they presently own in part or in full the copyright interest that is to be transferred.

Determining copyright ownership means going back to the very origins of the creation or work and tracing all the facts concerning copyright ownership going forward to the present in a “chain of title” search that is similar a real estate title search used to validate land ownership.

If the copyright has never been assigned or licensed or if a previous licensing agreement has expired then the copyright owner is free to assign or license his rights in his work.

Copyright Assignment vs Copyright License

The transfer of a copyright assignment and a copyright license differ greatly in measure and in finality. A copyright assignment occurs when the owner of a copyright transfers to another all of his “bundle of rights” in his original work. On the other hand, a copyright license is an agreement that transfers only a portion of the owner’s rights in the copyright such as a permission to use the copyrighted material in some specified manner and for some limited amount of time. The copyright owner retains ownership of the copyright in the case of a licensing agreement.

Bundle of Rights

Just to refresh some of the memories out there, the Copyright Act of 1976 grants to the author of an original and copyrightable work a “bundle of rights.” The bundle bestows the copyright holder with the exclusive rights of reproduction, adaptation, publication, performance and display of the copyrighted material. There is also a right of distribution of the copyrighted material which is limited by the “first sale doctrine,” which permits that buyer of the copyrighted material to sell or otherwise dispose of the material he bought without the consent of the copyright owner.

Each of the rights and interests contained in the “bundle of rights” is a separate and divisible right conferred on the copyright holder. Each separate and divisible right can be sold or “assigned” or transferred to another and under a written assignment agreement which then makes that person is the new copyright owner as to that specific full or limited transfer of rights.

Copyright Transfer or Assignment Must be in Writing

The most important thing to understand and always remember about a copyright transfer or assignment is that for that assignment to be legally recognizable is must be made through a written agreement signed by the copyright owner.

This rule is established by the Copyright Act of 1976, 17 U.S.C. § 204(a) which requires that any assignment or exclusive license of a copyright be in writing and signed by the person granting the rights. Online computerized agreements are accepted by the courts as a binding form of written agreement sufficient to transfer the rights if signed by the grantor of the rights.

Exclusive vs Non-Exclusive License

There are various types of written transfer of copyright ownership. The Copyright Act of 1976 specifies that the “transfer of copyright ownership is an assignment, mortgage, exclusive license, transfer by will or intestate succession, or any other change in the ownership of any or all of the exclusive rights in a copyright, whether or not limited in time or place of effect, but not including a non-exclusive license.”

That means that if an author grants an exclusive right to publish his novel to his publisher then the publisher receives a part of the copyright to the book.

However, if the author instead grants a non-exclusive right to publish his novel to three small publishing firms then the author alone retains the copyright to work. An “exclusive license” is a written agreement granting one or more rights under a copyright in a manner where no other party will be granted similar rights.

The main “take away” to always keep in mind is that in order for a legally binding transfer or assignment of copyright to take place there must be some sort of “writing” and the writing must be signed by the person granting the copyright interests. In general, if there has been no writing signed then no legally recognizable transfer of copyright ownership has taken place.

Transfer of Copyright under Work-for Hire Agreements

Recognizing copyright transfer or assignment language in work-for-hire and even in general independent contractor work contracts can sometimes be quite difficult.

Unscrupulous employers can intentionally add in assignment of copyright clauses that unjustly benefit the employer and improperly claim copyright assignment and other rights which they have not paid for and are not legally entitled to claim.

If you have questions about your copyright interests or rights, even if under a work-for-hire agreement, it is always worth the few minutes it might take to discuss the situation with an IP lawyer.

In a work-for-hire situation the copyright to the work goes to the employer or the party commissioning the work unless the contract between the parties specifically designates that the employee or creative will retain copyright ownership in any material produced under the contract.

Because you care about navigating copyright & IP smartly follow us on Twitter, and sign up below to get valuable copyright & IP questions tips in your inbox.

About the Author: Christine Varad is the principal writer and editor for Varacolors Media. She earned her JD in law from New England Law and holds a BFA from Massachusetts College of Art and Design. As an artist and a lawyer she has a long standing interest in Intellectual Property law and promoting the rights and interests of writers and visual and performing artists.

The post Copyright & IP Assignment Explained: What Copyright Transfer and Assignment of Rights Really Means appeared first on The Official Kunvay Blog.

Imagine for a moment you have been working hard on your writing all morning.

You stomach is empty and your eyes are aching.

You step out for a break at the local coffee shop.

You have thirty five dollars in your wallet. You can almost taste the confections displayed in the glass case and you can smell the fresh coffee brewing on the bar.

Suddenly a threatening stranger demands that you turn the contents of your wallet over to him.

Would you quietly do as you are told only to go hungry and watch as he spends your money on a stack of tasty snacks?

Web content mills demand that freelance writers hand over their Intellectual Property, their copyrights, for free.

When a writer signs either electronically or on paper a “Writer’s Agreement” or similar so-called “contract” agreeing to submit work acting as an independent contractor or freelancer and that agreement includes a clause that requires that the writer upon submission release all copyright interests he has in his work regardless of subsequent approval and payment he falls prey to the content mill’s copyright high-jacking scam.

The copyright to a work submitted for approval and payment has significant value to a writer because even if a piece is rejected on one forum it can be rewritten and resold on another. And over time, the loss of the copyrights to original material that could have easily been resold creates a tremendous loss of income, creative time and effort for the writer.

Aviso: beware of contractual clauses similar to the following:

“Writer agrees that each Submission is a work made for hire. Upon Writer’s Submission of an Assignment, any Intellectual Property Rights in the Submission will be the sole and exclusive property of [Company name removed], and [Company name removed] will be deemed to be the author thereof. If Writer has any rights to such Intellectual Property Rights that are not owned by [Company name removed] upon Writer’s Submission, Writer hereby automatically irrevocably assigns to[Company name removed] all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth below, Writer retains no rights to use such Intellectual Property Rights and agrees not to challenge the validity of [Company name removed] ownership in such Intellectual Property Rights.”

The clause appearing above is a common “blanket copyright assignment” to which writers are forced to assent if they want to sell their work to a content mill.

Under these illegal contracts a writer’s copyright is high-jacked upon submission of an original work regardless of a subsequent editor approval and company payment for the work. Upon submission, and without more, the “content mill” seeks to be deemed the “author” and the “copyright owner” of the writer’s work.

The Scheme and the Fraud

Once the content mill establishes a relationship with a talented writer the scam will begin to kick in.

Editors will begin finding frivolous reasons to reject meritorious work. The writer will receive no payment the hard work reflected in his submissions.

After the writer receives notice that his work has been rejected “in-house editors” will quickly move to make insignificant edits on the writer’s submission, acting themselves as highly paid piece work freelancers, and the writer’s rejected submission will then be ready for be used by the company for free.

Writers need to steer clear of this fraud and refuse to allow their work to become fodder for their machine.

An Agreement is a Promise Traded for a Promise

But wait, can they do this? Are these agreements legally binding on a writer? Has the copyright validly transferred to the content mill?

In general the answer is no, the content mill does not have a legally binding agreement with the writer and ownership interests in the writer’s copyright have not validly transferred.

The reason is twofold, (1) a contract that does not meet all the legal requirements for contract formation is no contract at all, and (2) a fraudulent contract is a voidable or void contact.

Where no valid contract exists there is no mechanism or function to transfer the writer’s copyright to the content mill.

If the work has been used, such as posted online somewhere in some form, the writer has a right to go ahead with “take down” requests and infringement actions should he be able to uncover facts that show his work was used without payment, license or permission.

In order to be legally enforceable an agreement must have four elements without which no legally recognizable contract ever arises and those elements are: (1) mutual assent, (2) consideration, (3) capacity and (4) legality.

The element that most commonly fails content mill agreements is consideration. Consideration in the context of a contract is a benefit or detriment which a party to the agreement either receives or gives up which reasonably induces them to enter into the contract.

In content mill agreements the writer gives up upon submission not only his original content but valuable property ownership interests in his copyright.

The content mill however neither gives up nor bestows anything at all in return to the writer. Most content mill agreements have no genuine or legally recognizable consideration and as a result, no legally binding contract ever forms with their writers.

Writers Protecting Writers

Writers need to appreciate that every time these content mills succeed in stealing content under a fraudulent “work-for-hire” agreement they undermine not just the individual writer and the individual writer’s property interest in his copyright, they threaten and erode the rights and interests of all writers.

It is important for writers to quickly recognize and refuse provide work for content mill under these types of improper agreements.

With nothing but substandard content to broker these mills would soon be out of business. Let them advertise at all the sites on the Internet but all the writers out there in turn know them for what they are and take steps to avoid them at all costs.

Creative and intelligent minds that want to be able earn their living by using their writing talents must begin by recognizing their own worth on the open market.

If you devalue yourself and your work but agreeing to being fleeced by a “content mill” contract, then know too that you are contributing the overall diminishment of the market value of all writer’s work.

If it isn’t a genuine work opportunity then don’t waste your time or your talents on it. Real jobs and genuine freelance offers and opportunities are out there.

Don’t work with any employer or client that doesn’t reasonably recognize your talent, your property rights and interests in your copyright or the value of your services in the current marketplace.

Because you care about navigating copyright & IP smartly follow us on Twitter and sign up below to get more valuable copyright & IP tips in your inbox.

About the Author: Christine Varad is the principal writer and editor for Varacolors Media. She earned her JD in law from New England Law and holds a BFA from Massachusetts College of Art and Design. As an artist and a lawyer she has a long standing interest in Intellectual Property law and promoting the rights and interests of writers and visual and performing artists.

The post Stop Web Content Mills From High-Jacking Freelance Writer Copyrights appeared first on The Official Kunvay Blog.

Guest post by J. Michael Allen. an intellectual property attorney and Co-founder of Copypedia.

It’s 2014 and the internet continues to evolve and amaze – today we routinely use tablets and touchscreens, and utter phrases like “Google it” or “there’s an app for that”.

Luckily just like the thankful death of black and white TV, gone are the days of dial up modem connections (and irritating disconnections) and clunky laptops.

Today you can be riding in a car, and with a simple ‘click’ on a mobile device, send (or post, share, Tweet, Like, etc.) information to another person on the other side of the planet in the blink of an eye.

A Culture of Copyists

Unfortunately just as easy and fast as it is to send information in the digital age, it is just as easy to copy someone else’s content, and with the sheer magnitude of people (some say 2 billion-ish) using the internet, let alone robots or other automatic programming, there is zero chance to stop it.

After all, “right-click, copy, paste” is something we all do over and over again on a daily basis, and these actions ultimately continue into the online environment.

Contributing to a culture of copying is the reality that most people don’t know (or don’t want to know) that unauthorized copying (or ‘infringement’), is illegal and against the law. Too many times we hear from artists we work with that the response they hear back from someone using their material without permission is “I didn’t know,” which is not an excuse nor a defense to unauthorized copying. Just because you could download (or file share) via the old Napster did not mean you had the right to do it – some found out the hard way. Such a mindset only propagates the problem.

The Digital Millennium Copyright Act (DMCA) & the “Compromise”

But back in the advent of the internet the problem of copying was foreseen, at least to some measure of degree.

In fact, as the eventually enacted Digital Millennium Copyright Act (or DMCA) made its way through various congressional committees and hearings, it became readily apparent the most contentious aspect of the legislation was how the inevitable problem of mass copying would be dealt with.

In the end, the powers that be and related stakeholders came up with the ‘compromise’ of the so-called 512 Safe Harbor provisions.

What the ‘Safe Harbor’ said was [paraphrasing], “Ok, companies like AOL, Netscape, etc. – you grow the internet, and rest easy that you won’t be financially responsible for acts of copyright infringement by your Users, so long as you take down material upon proper notice from owner Creatives” and “Creatives, you go ahead and notify those companies of acts of infringement of your content, and they’ll be responsible for taking it down. Trust us – you’ll see – it’ll be easy and no problem. Just follow all the statutory requirements to a ‘T’”.

How the DCMA is Failing Creatives

Section 512, and particularly 512(c), may have been the most short-sighted component of the DMCA.

Today, millions, perhaps (and probably) billions, of acts of infringement occur on the internet, and somehow some way Creatives are supposed to be able to undertake, handle, and have the resources necessary to stop it?

Never going to happen.

Not even with devoted 24/7 policing. And with no monetary or legal incentive to do otherwise, companies that profit from copyright infringement (ever seen infringing material on sites like CafePress or Zazzle, or an advertisement next to infringing material on YouTube or Facebook?) have no problem with the status quo.

Skip forward from the passage of the DMCA to today, and there can be no doubt that the legislation successfully resulted in (or at least contributed to) the growth of the internet.

But the DMCA also disastrously failed at helping Creatives monitor and otherwise control against infringing acts of their content/material.

The Digital Music News summed it up fantastically by noting, “Google Receives Its 100 Millionth Piracy Notice. Nothing Changes…”

Nothing changes.

Oh sure, you can improve or otherwise squeeze more efficiency from the DMCA Notice & Takedown process, but that just plugs another hole in the dyke. What is needed is a change – a change in mindset. It starts with the simple understanding and admission that copying on the internet will never end.

Innovating A Change In Mindset

Getty Images, well known for its staunch copyright enforcement activities, seems to have figured something out (at least partially). Faced with the reality of never-ending infringement, the company recently announced millions of images could be used for free, albeit presuming users are in compliance with various terms.

While the fine print of Getty’s new plan let’s one realize the ‘change’ is fairly minor, and potentially problematic to those that don’t comply, it is a step forward. Other companies are likely soon to follow.

After all, those involved with the passage of the DMCA should get credit for emphasizing that it encouraged private solutions between Service Providers and Creatives to address copying. Still, the lesson abounds: don’t let Congress be the end all be all to whatever problems arise on the internet.

Foundation for a New Mindset: Crediting the Creatives

In the future, addressing the problem of copying starts first and foremost with one very basic tenant: getting or giving credit to the Creative. This is in stark contrast to the present. To understand this, consider the rigmarole involved with a proper DMCA Notice & Takedown process.

First, it requires (and ultimately wastes) time and resources for both the Service Provider and the Creative.

Second, the work is taken down – thus, the User information, the Creative information, and the fact that a Creative’s work was used, all evaporates into a cyber abyss. Time, money, and chance for credit or attribution are gone. Forever.

And then the fruitless process is repeated. Again, and again, and again. Never-ending.

It’s time for a change to a mindset that results in support and advocacy for responsibility, not just for the users of creative works, but also for the Creatives themselves. At Copypedia, we’re excited to be part of leading this change.

Because you care about navigating IP and copyright smartly, follow us on Twitter.

About the Author: J. Michael Allen is an intellectual property attorney and Co-founder of Copypedia. As a result of working with Creatives over the last couple years (essentially on a daily basis), he has witnessed first-hand the difficulties and challenges encountered when it comes to protecting intellectual property in the online world. After nearly a year of development, Copypedia is a new medium for people to document and publish reports of authorized or unauthorized use in order to help foster attribution, accountability, and amicability for all involved in the use of creative content in an ever changing online world.

The post Copying and the Internet: A Never-Ending Saga of Infringement appeared first on The Official Kunvay Blog.

Summer is coming again and our thoughts inevitably turn to rounding up the usual suspects, a bunch of t-shirts, some cutoffs and a pair of sandals.

No more grabbing vintage tee collectables at the local resale store, this year is going to be different, this is the year you silk screen your own t-shirts.

How about a huge, green, Irish triskele, triple spiral, on a velvet black t-shirt or a banana yellow hibiscus printed over an ocean blue tee?

No question, there are millions of graphic possibilities but coming up with a creative vision that won’t step on someone else’s copyright for some reason invokes a measure of creative block.

No worries; get the screen printing inks ready.  We’ll take a look at the questions, sort out some answers and you’ll be cranking out t-shirts in no time.

1.  Can I print any design on a t-shirt legally?

There are two “bear-trap” words in this question and those are “any” and “legally.”

The answer to this very general question is wholly dependent on facts and circumstances left forever unstated.

There is no way to effectively answer without discerning surrounding facts such as what design, who was the original author or designer of the image, is the t-shirt product limited to personal use or will it be produced for general marketing purposes.

However, that said, we can respond with an overview of some general copyright principals that may apply in most t-shirt situations.

(a) Public Domain

Many symbols that an artist might like to reproduce on a t-shirt have fallen into the category of known as the “public domain.”

A typeface, or a set of letters and related symbols, is not protected under most copyright law.

Most common symbols, such as the Irish triskele I mentioned earlier, are also not protected by copyright law and have entered the public domain.

There are also countless symbols and graphic images that were once copyright protected but the copyright has been allowed to expire or been forfeited for some reason and these have entered the public domain.

Material determined to be within the public domain is free for the general public to use, copy and market in any way and on any terms.

But wait a minute, can’t an artist take a symbol or an image out of the public domain and bring it back to a copyrighted or copyrightable status?

Yes, all it takes is to use a public domain symbol or image in a new, completely original work and the new image, which includes the public domain symbol, is copyrightable. Shark, just when you thought it was safe to go back in the water.

The long and short of this is that if you plan to market those “Freddy’s Fabulous Falafel” t-shirts you need to do the research to make sure the typeface and symbols you want to use are either your own original designs or unencumbered residents of the public domain.

(b) Request Permission or Licensing

Copyrighting an original design for your t-shirts is the safest and easiest method of staying out of any sort of copyright quick mud should your tees suddenly become this summer’s Internet darling.

However, if graphic art is not your profession then using a copyrighted graphic image with a license, or permission from the original artist or author, is fairly simple to arrange.

Simply contact the original copyright owner and ask to use or license their work.

You may find they not only allow you to use their work but that permission is given at little or no cost.

In contrast, serious legal issues can be invoked when the graphic image you have chosen to use on your t-shirt is already in use by an individual or entity as a trademark or service mark, either registered or just used in commerce for a number of years in a particular region.

Obviously, if you do not plan to market the t-shirts and just plan to wear the one you printed to the beach then you need not worry about allegations of trademark dilution or copyright infringement.

However, if you do plan to market the t-shirts or have all your team members wearing it in a video that will be marketed, then again, you need to contact the registered owner of the mark and request their permission to use the mark.

Always get the permission terms in writing just in case minds change later on when your t-shirt team plays in the world series.

2) Can I make a t-shirt related to a movie or TV series? What’s allowed? What’s not?

A person that bought a copy of a movie, TV series or computer game would be allowed under the legal concept “fair use” to take a still from that copyrighted work and use it on a t-shirt to be worn by himself or a family member.

The trouble starts when everybody in the neighborhood wants one of those great white shark tees and making a few extra bucks starts to loom in the minds of the tee creator.

No, you may not use “fair use” copyright principals as legal protection when you effectively go into competition with the copyright owner by marketing the copyrighted image or images on your t-shirts.

Do this and you will get “the letter” inviting you to appear in a federal court in response to allegations of copyright infringement and civil damages.

Always play fair, if you have a great idea for a t-shirt that involves the use of an image from a copyrighted movie, TV show or computer game and you think the product would market well then contact the copyright owner, and ask to have, or buy, a limited permission to use the image on your t-shirts.

The company or artists may be very interested in working with you. In most instances the rightful copyright owner and the licensee both benefit from the co-operative marketing of fashionable t-shirts within the garment industry.

3) How can I capture pop culture themes in my t-shirt designs without violating someone else’s copyrights?

This question puts me in mind of that cool graphic entitled, “Rage the Flower Thrower by Banksy.” The “Banksy” image is used in all sorts of ways including stenciled on t-shirts because it captures a cultural theme that resonates strongly with many people.

First, and foremost, try to create your own unique image that brings a voice to your views on the local culture or on the world.

But if you are not a visual artist, and for example, you want to use “Rage the Flower Thrower” on your t-shirt(s) then the first step is to determine if the image is copyrighted, who the copyright owner is, and if the copyright remains in effect.

Banksy was an anonymous and notorious British graffiti artist. No copyright attached to his work because nobody knew his identity. Another similar scenario is where the original copyright owner has passed away and the estate failed to comply with copyright extension requirements.

In both situations the copyrighted or “copyrightable” material has entered the public domain. They have become images that may be used freely on any t-shirt project.

All in all there are many copyright facets to consider when designing a t-shirt especially when the project manager has a dream of ultimately marketing the shirts.

Check out this comprehensive resource to get additional information about t-shirt copyright.

And feel free to send me one of those black t-shirts with the triple green spiral on it.

About the Author: Christine Varad is the principal writer and editor for Varacolors Media. She earned her JD in law from New England Law and holds a BFA from Massachusetts College of Art and Design. As an artist and a lawyer she has a long standing interest in Intellectual Property law and promoting the rights and interests of writers and visual and performing artists.

The post 3 Common Questions about T-Shirt Design & Copyright Law Answered appeared first on The Official Kunvay Blog.

Mark is a self employed graphic artist.

He routinely works with clients on an independent contractor basis.

Mark decided to work on a particular client’s project without a written agreement or contract stating the terms of the association.

The client later refused to pay Mark for his work.

The client then began to freely use Mark’s work claiming (1) there was no written or verbal contract for services and no “course of dealing understanding” between them and (2) and that based on the lack of any formal agreement Mark retained no copyright ownership interest or rights in the work he contributed to the project.

Mark feels the client not only ripped off his creative input and artwork but he seems to have been able to misappropriate the copyright interest in his work. Mark has proof his client is using his artwork.

Is there anything Mark can do? You bet there is!

Valid Transfer of Copyright Ownership

Let’s assume that Mark has a valid copyright in his own artwork even when he has produced the work under a client’s requests and directions. Can the client claim ownership of Mark’s copyright in the work?

The Copyright Act of 1976 establishes methods of transferring a copyright. Rights can be transferred in an assignment of rights, a mortgage, an exclusive license transfer, a transfer by will or intestate succession, and any exchange of rights within a non-exclusive transfer of rights or a transfer of only specific rights but not all as in an exclusive license.

This transfer of rights is only valid when the individual transferring the rights signs a written agreement detailing the rights to be transferred as required by the Copyright Act of 1976, 17 U.S.C. § 204(a).

Multiple subsequent federal court decisions have also recognized the validity of an author’s transfer of his copyright interests using an electronic agreement such as the one used by Kunvay.

Federal courts now routinely accept an individual’s electronic “click” or “tap” within an electronic transfer of copyright document as a valid “electronic signature” fulfilling the signature requirements of the Copyright Act of 1976.

Based on this understanding Mark should assume that the copyright to his artwork did not transfer to the client due to the lack of the required “signed writing” that is necessary to effectively transfer his rights.

If Mark has proof that his client is using his artwork without permission or license then pursuing an infringement action in court may be an appropriate response.

Infringement Action Awards of Attorney Fees and Damages

What does Mark need to do to initiate an infringement action against his client?

Many times a demand letter, often called a “cease and desist” letter, addressed to a difficult client, whether an individual or entity, will provide a fast and somewhat painless resolution to the matter.

If a letter demanding that the author’s copyright interests be observed is not helpful then the author may want to move on reviewing the pre-litigation requirements of pursuing an infringement action.

Copyright registration may be required as a prerequisite to initiating an action for copyright infringement. The certificate of registration will usually be referenced in the complaint for infringement and will be attached to the complaint at filing.

Copyright registration creates the rebuttable presumption that the copyright ownership interest claimed is a valid one.

Actual and statutory damages may be awarded to a copyright owner that successfully prevails in an infringement action as well as a recovery of all attorney fees. Actual damages are those damages that are provable. This would mean that the plaintiff must be able to prove his losses in connection with the infringement activity.

For example, a plaintiff could show a loss anticipated revenue from the copyrighted material or a loss in actual sales of the copyrighted material. Actual damages can also be proven by reviewing that defendant’s profits from his marketing the copyrighted materials.

The Copyright Act of 1976 also provides the court with the discretion to award statutory damages to a successful plaintiff. Statutory damages can add up well into thousands of dollars and can be awarded concerning each separate instance of copyright infringement.

Damage award rates are set forth within the copyright statute itself. Statutory damages do not require proof of a plaintiff’s monetary loss or proof of a defendant’s unjust enrichment, or profit, before a court may award them.

The intent of the defendant is a factor in a court’s award of statutory damages. A court must determine whether the acts of copyright infringement were innocent or willful before an award.

Willful copyright infringement would be shown where the acts of copyright infringement are committed with reckless disregard for the rights of the plaintiff.

What is Quantum Meruit and How Might it Help Mark?

It is frustrating to any small business owner to have a client refuse to pay for work. Sometimes a proprietor has to make a judgment call as to whether or not a client genuinely has the ability to pay for the work.

However, if a client does have the ability to pay then it makes sense for an entrepreneur like Mark to appreciate that he does have a cause of action against his client for failure to pay even in situations where there was no written or verbal contract or “course of dealing” creating a reasonable expectation of a client’s agreement to pay.

Quantum meruit is a remedy in equity that measures a plaintiff’s recovery under a legally implied contract to pay and at a rate or a value generally reasonable for similar services within that specific trade.

In short, quantum meruit is an equitable doctrine based on the concept that nobody who benefits from the labor and materials of another should be unjustly enriched by that labor and those materials.

In Mark’s situation, there was no written or verbal contract to pay nor any historical course of dealing between the traders to be enforced in the event of the client’s nonpayment for valuable services received and so imposing an implied contract to pay on the recalcitrant client may be an equitable alternative that a court may opt to enforce in Mark’s favor. Quantum meruit recoveries include the possibility of damage awards and attorney fee awards to a prevailing litigant.

How to Write a “Cease and Desist” Letter

It is always good practice to try to stay out of a lawyer’s office and out of a courtroom by taking every possible option that might lead to productive litigation avoidance.

Writing a “cease and desist” letter to a client infringing on a copyright and at the same time demanding payment for work supplied to that client even where there was no formal contract for service exists is an excellent first response and plan of action.

The cease and desist letter must be drafted to inform the infringing party of the copyrighted on the work at issue, the nature of the acts of infringement and the remedies the copyright owner intends to pursue.

The letter is used to demand the infringer’s immediate cessation of all infringing activities and an accounting of all profits from those activities.

Mark should remember that the cease and desist letter he writes should be carefully worded as it will become an exhibit or addendum to papers filed with the court in any subsequent infringement action. T

he letter is an important step to secure rights prior to being forced into any good faith litigation on the issue.

In addition, any infringing party that refuses to cease the acts of claimed copyright infringement after receipt of a “cease and desist” letter will be determined to be an individual or entity engaging in willful acts of infringement for the purposes of statutory damages.

Because you care about navigating copyright smartly follow us on Twitter, or learn how to transfer copyright and IP ownership rights to freelance work online with Kunvay.

About the Author: Christine Varad is the principal writer and editor for Varacolors. She earned her JD in law from New England Law and holds a BFA from Massachusetts College of Art and Design. As an artist and a lawyer she has a long standing interest in Intellectual Property law and protecting the rights and interests of writers and visual and performing artists.

The post What Happens When a Freelancer Does Graphic Design Work for a Client Without a Contract: Mark’s Copyright Case Study appeared first on The Official Kunvay Blog.