Attack of Designerzilla

I cannot begin to tell you how many times I have been copied.** Better yet, how many times I have gone designerzilla on the infringer. Poor Paul got her first taste of it.

<---This guy actually got paid 300 dollars for the hacking of my work. She knows I am retentive about watermarking stuff and she is now getting a taste for it. Anything you make for a client falls under works for hire, anything you make for fun, it`s yours and anyone wishing to use it MUST ask for permission and pay fees to license it. The © copyright symbol offers some protection, but nothing beats a lawyer. After having my own site and illustration that I created to my likeness hacked, photoshoped and resold, I made a point of becoming very familiar with copyright laws.

The worst part about it was when I found out that the offender not only contacted me about two months prior, but used software that clones site. He wasn`t smart enough to figure out I had used an e commerce cart script to run my site. He even told his poor client he coded my site! HA! Maybe if he had been sitting on my lap or had his hand up my butt like a puppet.

<---This guy got 1500 dollars for this killing spree and is now in hiding. Where is Judge Judy when you need her?

I recently got an email from another web designer friend who said “my client`s husband is an attorney and they are looking to purchase the commercial rights.” Commercial rights? That`s not even a legal term-and yes I looked it up and I asked Sir O.D (but if you know better, enlighten me.) No one uses the attorney card so quickly in the transaction, but I told her that she should tack on an extra fee. Specially for previously made work, licensing fees, the correct term, will apply.

I cannot begin to tell you how important it is for you to watermark all your work even if a little one, and be VERY clear about what you do and do not allow. Spell it out as if people were dumb. In Paul`s case, this little fruit cake found a way to bypass her very well written TOS and even stole images and created work she planned to use. Not cool!

Here is a nifty little link to help you further. http://norcal.gag.org/legalities/2006/legalities_no25.html

There is nothing worst than an offender who doesn`t get it. In that case, after sending them a standard cease and desist letter, make your attorney do your leg work. He can send the offender a letter stating the quantification of your damages and possible actions against the offender if he/she does not comply.

**Under no circumstances you are to take my post as legal advice. This is merely a resource to better determine whether a possible infringement was done. You should always contact an attorney and seek legal counsel.

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Copyrighted Dag Nab It!!

After exhausting the flying power of my broom stick- A phrase coined by Paul, “You can`t go flying around on your broom stick watching the web to see who is copying you!”- I am finally letting Sir Ol` Dirty A.K.A. My Lawyer, Michael Fiffik, handle my biz.
However, in the mean time I asked him a couple of questions about copyright infringement. Well more like 9 or 10 questions. Here is how it went…

Moi: So what is a copyright? What is copyright infringement?
Sir O.D.: A copyright is a property right in an original work of authorship that is fixed in any tangible medium of expression. Works of authorship include, but are not limited to literary works (including computer programs), musical works (including accompanying words), dramatic works, pantomimes and choreographic works, pictorial, graphic and sculptural works, motion pictures and other audiovisual works, architectural works and sound recordings.

Moi: 2.How many words in a row would have to be copied, in an article, in order to fall under copyright infringement?
Sir O.D.: I wouldn’t concentrate on the number of words. An infringement occurs when someone violates any of the exclusive rights of a copyright owner. Infringement takes the form of unauthorized copying or adaptation of a work or its public distribution, performance or display. For example, an acting troupe that publicly performs a dramatic work without permission infringes the copyright owner’s rights. Proving infringement requires the plaintiff to prove ownership of the copyright, the copying or other violation of the rights by the defendant, and that the defendant’s work bears a substantial similarity to the protected portion of the plaintiff’s works. The copying doesn’t have to be intentional. You can prevail even if the copying was by accident or unintentional.
Moi: How many elements in an illustration to be copyright infringement? E.G. Lamps, awnings, patterns etc.
Sir O.D.: Usually you have to prove infringement through “indirect” evidence. Direct evidence would mean that someone witnessed the actual act of copying (like burning a CD to sell commercially). Indirect evidence usually consists of two parts: access and substantial similarity. The plaintiff must show that the defendant had access to the copyrighted work. If the work had been widely disseminated, the defendant may sometimes be presumed to have had access even though he or she may deny any memory of it. In order to show similarity, the works need not be identical, but the similarities between them must be more than trivial. For example, a work may be substantially similar to another if its overall structure mirrors that of the first work, or if a portion of it is identical to the other work, even though only a portion is identical, not the entire work. So there’s no metric that you can use to determine infringement, like copying some % of the work automatically equals infringement.

Moi: What about color combinations, ideas and concepts? Do those fall under Patents? Are those hard to get?
Sir O.D.:Patents is a whole different subject. In short, they could be.

Moi: Is photoshopping -or drawing over - someone else`s work infringing on anyone? See picture.
Sir O.D.:I suppose it could be if the product of the activity is substantially similar to a protected work.

Moi: What is derivate works?
Sir O.D.: Like dirty pictures (haha).

Moi: Alright I can`t spell!
Sir O.D.: I think you’re referring to derivative works.

Moi: You mean inferring? Haha!!
Sir O.D.: Basing a new work on a preexisting work is a derivative work. A derivative work is defined as a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction or other form in which a work may be recast, transformed or adapted. Such works borrow substantially from the preexisting work. The person wanting to do a derivative work still needs permission from the preexisting work owner to use the work. However, if the derivative work has sufficient originality, i.e. makes more than a trivial contribution to the preexisting work, then the derivative work itself can qualify for copyright protection but only in those elements contributed by the new author and only to the extent the preexisting work was used lawfully. There are also “compilations” which are works formed by the collection and assembling of preexisting materials or of data that are selected, coordinated or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. A compilation is different from derivative work in that the preexisting works are not change in any way.

Moi: What is the punishment for copyright infringement?
Sir O.D.:The copyright owner can recover actual damages (what the owner has lost as a result of the infringement) and, in addition, owner may recover any profits of the infringer that are attributable to the infringement and are not taken into account when calculating actual damages. Alternatively, if there are no significant damages, the owner can claim statutory damages ranging from a minimum of $750 to as much as $30,000 for each work infringed. The maximum damages can be raised to $150,000 for willful infringement and a minimum of $200 if the infringement is innocent. The amount is at the discretion of the court. The court can also award attorneys fees and costs. There is also the possibility of criminal penalties for willful infringement for purposes of commercial advantage or private financial gain.

Moi: Once again in girly terms I can understand, Please explain to me the copyright law passed on 1978?
Sir O.D.:This is the most recent version of our copyright law, which was originally enacted in 1790. However, even the 1978 act has been amended several times.

Moi: What about The Digital Millennium Copyright Act?
Sir O.D.:Enacted in 1998, it addresses issue that have emerged in the digital age. 1) it restores copyright protection to foreign works that may have fallen into the public domain in the U.S. ; 2) it exempts foreign works from having to be registered in the U.S. in order to receive copyright protection in the states; 3) it prohibits the act of circumventing a technological measure preventing unauthorized access to a copyrighted work. It makes illegal making or selling such devices or programs.
Moi: Last but not least, is Tiffany Blue copyrighted? Gap Blue? Cadbury Lavender?
Sir O.D.: I’m not sure what this refers to.
Moi: Don`t you mean inferring? Just kidding! Wikipedia says they are, I tend to believe.But these are colors. Isn`t it counterproductive to copyright or trademark a color. Isn`t like saying ‘okay I am trademarking air, no one breathe!!’ And after the copyright/trademark is granted on something like that how do you enforce it?
Sir O.D.:I don’t think a color, by itself, would be considered an original work, thus it’s not subject to copyright. You might be able to trademark a name that is associated with a color, like “burnt umber”. You also would trademark a color as used in association with a product or service. For example, if you had a business name or logo that you sought to trademark, and the letters in the logo would be colored blue, the blue would be trademarked only as that color is used in association with that logo. It would not be possible to simply copyright or trademark a color by itself.

Moi: What about this? http://www.boingboing.net/2005/03/25/cadbury-trademarks-t.html and http://en.wikipedia.org/wiki/Tiffany_Blue
Sir O.D.:Copyright protection arises under the common law so there’s no need for any type of registration with the US Copyright office for that type of protection. If you want to take advantage of the statutory protections and damages offered by the Copyright act, then you do have to register. If an owner has registered the work, the would generally provide notice as follows: 1) the word “copyright”, the symbol © or the abbreviation “copr.”, 2) the designation of the copyright owner, and 3) the year of first publication. You can use that guide to determine if any work has been registered with the U.S. Copyright Office.

Moi:Okay I think I get it, colors can be trademarked if a company identity is attached to it. Anyway, the girls and I have lovingly dubbed you Sir Ol` Dirty -like the rapper-, because you are nice to have by our side, not so nice to have on the opposite end. Well mostly me.

Sir O.D.: I’ll take that as a compliment!

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