022- Understanding Copyright Protection for your Business

Nov 19, 2019

Show Notes:

How much do you know about copyright laws? Do you know what you should be doing, or not doing when it comes to protecting your business material from being used by others without your permission? What about utilizing information, images, video, music on your website or within your marketing materials? Are unknowingly infringing on someone else's copyright? In today's podcast episode, we discuss multiple copyright issues, including:

  • The definition of a copyright
  • When do copyrights get applied to your original work
  • Why register your copyright
  • Liability vs. intent as it applies to copyright violation
  • Avoiding copyright trolls- people seeking damages from copyright infringement
  • Using Create Commons licensed work
  • Ownership of work when it comes to employee's creations
  • Using contracted labor- who owns the copyright
  • Protecting your copyright from being infringed upon by others
  • And much more


U.S. Copyright Office

Show Transcription:

Jeremy Epp: We live in an amazing time. Never before has it been easier to start up, launch and grow profitable businesses. We have limitless tools at our fingertips, resources of abundance and the internet has made things so accessible all around the world, but with this comes certain rights and responsibilities. Today I want to talk about copyright law and what you need to know to ensure that your creative work is protected from theft as well as to know the pitfalls to avoid trouble of accidentally copying other people's work. Today we have a special guest on the show, but before we get there, let's cue the intro.

Jeremy Epp: Welcome to episode #22 my name is Jeremy Epp and I am here to help you Setup, Launch and Grow a Profitable Business. Well, today is the final part of our three part attorney series. We've got Michael Atkins from Atkins Intellectual Property back on the show today and Mike is going to talk about copyrights. What you need to know as you set up and market your business, protecting yourself from putting yourself out there on the internet and other mediums to the public and knowing what you can do to protect your original works as well as ensure that you're not putting yourself in a position of liability by infringing on other peoples copyrighted works. Before we bring Mike on the show, head on over to jeremyepp.com register for the show and that way you're going to be informed of upcoming information, shows, and other business tips and tricks that are going to help ensure success as you grow your business.

Jeremy Epp: So without further delay, let's bring on Mike. Well, welcome everybody. My name is Jeremy Epp and I want to say a big thank you for joining the show today. We have back on the show today, Michael Atkins from Atkins Intellectual Property. Today we're going to talk about copyright, which is a different aspect of intellectual property. So Mike, welcome back to the show.

Michael Atkins: Thanks a lot. Great to be here, back in the hot seat.

Jeremy Epp: So for those that weren't able to listen to the previous episode, and I would certainly encourage you to do that if you haven't done so. Give a brief introduction of how long you've been practicing law, how long you've been focusing on IP, intellectual property, kind of where you are today and the journey that brought you to this point.

Michael Atkins: Yeah, well thanks a lot for having me back. It's been a pleasure. So I've been practicing for say about 22 years I think. I graduated in 1996 from the University of Minnesota Law School and have been practicing ever since, probably for the last 15 years or so focusing on intellectual property, trademarks, copyrights mainly, but also trade secrets, unfair competition, other types of intellectual property, really other types of IP other than patents is kind of what I do. Other than my practice, I used to work at a big law firm and now I've got a solo practice, so it's just me and I mainly focus on trademarks and copyrights. But other than that, I taught trademark law at the University of Washington School of Law for nine years as an adjunct professor and really liked these sorts of talks because kind of wearing my professor's hat a little bit, teaching a little bit of the nuts and bolts of some of these areas of the law that are kind of complicated but hugely important.

Michael Atkins: And really the goal here is to help you as a startup, as an entrepreneur, as a small business owner, to kind of use the law to your advantage and also to make sure that you don't make mistakes that can really kind of detract from your business that are sometimes easily avoidable but otherwise easily made. So that's kind of my goal here.

Jeremy Epp: For those that didn't get a chance to listen to the previous episode, can you just give a brief description of what is a copyright and what does that encompass?

Michael Atkins: Sure. So a copyright is any original work of expression that is fixed in a tangible medium. That's the definition of a copywriter, protectable work. It is protectable under the U.S. Copyright Act and the U.S. Copyright Act is solely a creature of federal statutes. So this is not something that you can go into your local court and enforce your copyrights. You have to go into a federal court, you have to literally make a federal case out of your copyright dispute in order to get relief if you're suing over it. And so what we're talking about in copyright law is essentially protecting your original works of expression. Such as your writings, or your photographs, or your videos, those are collectively known under the statute as a work and you as the creator are known as the author.

Michael Atkins: A copyright statute essentially gives the author of an original work the exclusive right to say how that work is used. It allows you as the copyright owner to stop copying of your work without your permission, adaptation of your work without your permission, the display or their performance. If we're talking about... If you write a play, you can prevent that play from being performed or adapted into a movie without your consent and so you get a bundle of rights as an author of then original work. And what happens under copyright law, it's the way for you as the copyright owner to either dole out rights to third parties through say licenses, through permissions, or to stop the unauthorized use of your original works by copycats. And so that's basically what the copyright statute does, is it allows the owner to stop copying of their work without their permission.

Jeremy Epp: One thing I've noticed, and I'm guilty of this, I'm sure in the past as well, but as a new business owner, typically you're under the gun and you've got a lot of moving parts right out of the gate, you're excited, you're thinking about your logo, your brand, your website, your product, how to market and get it out there. And as people turn to online ways of advertising their business, I see that the uneducated business owner will cut and paste images, maybe quotes, other information from other sites and really put themselves in a dangerous position. Can you talk a little bit about that?

Michael Atkins: Yeah. Just because of that's on the web doesn't mean it's free for you to use. I mean, yes technologically you may be able to copyright or copy that photograph and incorporate it in your blog post or on your website, but that doesn't mean that it's right and it can get you into a real jam sometimes even by people that are just waiting for you to mistakenly copy and use their work that you thought was free for you to use and for them it's a way to monetize their photograph. It's sort of a got you type of claim where they say, "Aha, I've got you. You have used my photograph on your website. You thought it was in the public domain, you thought it was free for the taking but it wasn't. So I want you to pay me $10,000 or $12,000 or $100,000 because if you don't, I'm going to sue you and I'm going to win and I'm going to get money damages from you and I'm maybe even get attorneys fees from you in court." And so these guys are called copyright trolls, and copyright trolls they really just try to monetize their original works of expression through the inadvertent almost or potentially innocent, I would add probably negligent use of their works thinking it was okay but publishing it without permission.

Michael Atkins: Because copyright law is kind of a strict liability statute. Strict liability means intent is not considered, and in the copyright world, if you take somebody's photograph or somebody's article and you put it on your website without their permission and it wasn't in the public domain, it wasn't there free for the taking and you publish it without permission, you are liable, you will lose that lawsuit. And copyright trolls knowing this and knowing that it's going to cost you an arm and a leg to fight it in court will conveniently bring this to your attention and agree to settle for a much lower amount than you would have to pay if you hired a lawyer and fought this out for a year in court, but a much higher amount than is really justified. May cost you tens of thousands of dollars to fight this out in court so they offer, well we'll settle for $8,000 and sometimes it makes sense to pay that amount to make this nuisance go away.

Michael Atkins: You've got to be real careful if you're using something out there to dress up your blog or dress up your website. I mean, I've dealt with law firms even as clients that had an intern or maybe even a lawyer think that something was in the public domain and then they publish something on their website and then they get this letter demanding money. It's kind of a shakedown. It probably should be illegal. It's kind of criminal in my view, but it's out there, it exists. So you've got to be very careful. Use only your own content or content that you pay for you know that you licensed from a stock photo company. And yes, there are freebies out there, the three of the Creative Commons or other public domain type of licenses but you just kind of make sure you read the fine print.

Michael Atkins: Sometimes a Creative Common license says, "You can use this for non-commercial purposes or you can use this even for commercial purposes." But in the fine print of the license that says, "As long as you name the photographer." And if you don't do that, just innocently, just mistakenly failed to do that the photographer can say, "Well, this use was completely unauthorized because you didn't abide by the terms of this license and therefore you owe me 8 grand or 12 grand or 50 grand." And so that's a very common pitfall that you just have to avoid and you can avoid but you just got to be very careful when publishing content that you didn't come up with yourself.

Jeremy Epp: That's a good point. I recently came across a story of a YouTuber that I follow and they shared a story of how they accidentally, they should have known better and they admitted this, utilized some current artists song as background music to their YouTube channel and they were contacted and now they're sharing, I believe it was 80% of the royalties from that particular video went to pay that artist.

Michael Atkins: Yeah.

Jeremy Epp: And that was one of their higher viewed videos. They were having to deal with that.

Michael Atkins: That's right. Actually a couple of years ago, I actually represented the Ted Cruz campaign that was sued by a Seattle company for using their copyrighted song in the background of a commercial for his run for the president. And the company paid the money, my client paid the money, but buried in the click through license said not for political purposes and they never read it, without revealing any behind the scenes client confidences. I mean, it's all in public court filings. This company sued and they said every single time you ran this ad, you committed a separate infringement of my copyright because it was a separate unauthorized use of my song.

Jeremy Epp: Wow.

Michael Atkins: And if you add up the potential statutory damages for each and every use, the way that the plaintiff was calculating damages, my client would have owed billions of dollars or more than $1 billion in damages, which we thought was crazy. The case settled and was dismissed, and I can't get into the terms of the settlement just private and confidential, but you can imagine this is someone that's running for president and them and their advertising agency that puts together their national campaign just because it had somebody's song in the background, which by the way, after receiving the claim, they then had someone re-record that sounded like a riff and they paid like $100 for that, the substitute in and it really didn't do anything to the quality of the commercial, but they were basing $1 billion claim for a copyright infringement.

Michael Atkins: So it can happen to even sophisticated parties, that's the thing, that's the danger. And with this strict liability standard, it doesn't really matter. We didn't mean to, if you infringe your viable period and then it's just a matter of how much money will it take to make the injured copyright holder whole. Which could be a little amount of money or a lot of money depending on the circumstance.

Jeremy Epp: So you just mentioned something Mike, regarding you had a separate musician record a new riff and all was good after that. How close is that exact because I know when we talked last week on the trademark law, you mentioned that trademark is protected from any situations in which it confuses or the likelihood of confusion exists in the general public of comparing the two brands. Is that the same with copyright? Because as I turn on the radio, I hear riffs of two or three songs ago and I'm like, "Hey, that's the same riff that's in these other songs." Or, "That's very similar to this particular song." Or, "That article is basically the same articles just rewritten in a different format, but it's the same content." How close does it have to be to be in violation versus how different does it need to be to be safe from a copyright infringement?

Michael Atkins: Well, we're talking about shades of gray here and so variations of risk and so if it's completely different, there was no risk and no violation, and if it's identical then you're dead. But there's a million shades of gray in between those two ends of the spectrum. Really what copyright protects against is copying, so if you didn't copy a riff and you just independently created it, came up with it on your own, then there's no copyright infringement because no copying occurred. And so even if you had two identical songs, if you could show as the author of the accused work that I was never exposed to the first song and I came up with this on my own and if you could establish that and convince a judge or jury that that's in fact what happened, then there would be no copyright infringement because there was no copy.

Michael Atkins: So the legal standard for copyright infringement is first and foremost copying. But because the accused infringer rarely admits to copying, they deny it, the workaround for the copyright holder is just show substantial similarity between the works and access to the copyright holders work. So if I published a song and I put it out on the internet or it was on the radio, I mean it was widely available, it wasn't behind lock and key, wasn't behind password protected credentials to access, that's one way of showing access. And so if you can show that it was out there and the copycat or the accused copycat had access to it and then you can show them your work, the original work, the copyright holders work, and the accused work are substantially similar, then that will help you prove copyright infringement.

Michael Atkins: But only after certain things are filtered out of the analysis. Think about this as a sieve, a strainer which strains out the unprotectable parts of copyright, the unprotectable parts of a work, and that includes facts. Facts are not protectable by copyright law nor are ideas. General ideas that are not boiled down to an original work of expression are not protected by copyright law. Neither are what's known as scenes a faire. Scenes a faire are stock scenes, like if you're writing a Western and you set it in your woods in Phoenix and you show cactus in the background and the good guy wears a white hat and the bad guy wears a black hat. These are standard tools, standard literary tools of Westerns, and it's not original to you as the author. That's in the literary canon of law of Westerns, right?

Michael Atkins: And so you have to filter out those elements as well. And after you filter out the facts and the ideas and the scenes a faire and kind of other sort of stock scenes, stock parts of a work, what you have left is the protectable element, which is the original work, kind of the nugget, the nucleus of the originality as it's being expressed. And to prove copyright infringement after filtering out these unprotectable elements, you're then looking at the two works for substantial similarity between the protectable elements. And if you can show as a copyright holder that someone had access to your work came after you and lo and behold came out with the work that is substantially similar to the protectable elements of your work then you've got a copyright infringement case.

Jeremy Epp: I had two different situations, one was a trademark infringement for a logo designer that I hired and another one was a copyright infringement for a blog post writer who I hired to produce certain work and then upon receiving that work and checking it, I discovered in the case of the copyright, the blog writing that that individual had basically gone out and gathered three articles and literally cut and paste multiple paragraphs from these three articles to create a new article. So I reached out and said, "This is pure copyright infringement. I need original work if you can't do that, you're fired." So similarly with the logo designer, upon looking at some options that were presented quickly recognized that these were very slight variations of other existing logos that again wasn't going to touch with a 10 foot pole. So my point being is, be very careful on your staff, for those that are listening, your staffing and even the company. The expert companies that you are hiring to help you, whether it's a designer, other writers, other things that may be infringing or have the potential of infringing on copyrights. You need to check their work as well because you're going to be held liable for that.

Michael Atkins: Yeah, that's the unfortunate part. You get a vendor that gives you something that you think is an original work, you think you're good to go, and then you publish it, you're going to be on the hook. Could you theoretically pass that on to the bad actor or lazy actor that you hired who unknowingly copied something that's theoretically you might be able to but if they're in Russia or Pakistan or China, good luck. Good luck passing that liability onto them. One thing, and again, could you enforce this against somebody in Pakistan or China or Russia, remains to be seen. But one thing, if you're going through Mechanical Turk or one of the other Amazon websites or interfaces that pairs you up with somebody, a freelancer abroad right into your contract, make sure that they're representing, they're promising to you as part of your deal that the work is original, not copied from anybody else, get them to say that they will never use it again with client number two and client number three and client number four even if it were original to you.

Michael Atkins: You could even write in indemnities, indemnification, which again, maybe semi worthless if you're trying to collect from somebody far-flung jurisdiction. But at least it would give you some assurance that they know they're responsible for creating original work and they're at least theoretically on the hook if they don't live up to that promise.

Jeremy Epp: That's a really good advice. Mike, can you walk us through what is the process of copywriting your material?

Michael Atkins: Well, copyright protection theoretically in the United States comes automatically by writing original works of expression and fixing it in a tangible medium. So once you put pen to paper or you publish a webpage or take a photograph, you're automatically at least theoretically protected from anyone copying or using that work without your permission. But in practice, turning that metaphysical right into something that really matters in the marketplace, you have to sue over it. And in order to sue over it, you have to have your copyright and your work registered. And so what happens is you create work, say you write a book, you write an article and you're particularly concerned about someone copying it. As soon as you can after finalizing the work, you should consider registering it with the U.S. Copyright Office and that's an arm of the Library of Congress. And what you do is you identify yourself as the author, filling out the form, you say when it was first published and you list your or your company's address and then you describe the work in the application and then you actually upload through the Copyright Office's web interface a copy of the work.

Michael Atkins: And then months go by and then you should get your registration certificate. Once you have a registration certificate, now you can do a lot of things, but the main thing is you can immediately sue, so you can immediately go into court to enforce your rights. And even if you weren't otherwise inclined to go to court, it gives a lot more teeth to your demand letter, your cease and desist letter to the copycat. Knock this off because attached in this letter or enclosed in this letter is a copy of my registration certificate, which means I can immediately sue you if you don't start behaving better. And in addition to that, you get two good tools that also help motivate good behavior. If the copying occurs after the registration occurs, it has to be step one, you write the work, step two, you register the work and then step three, the work is infringed. If that chronology occurs in court or in the cease and desist letter, you can threaten, "When I go to court and sue you, I'm going to seek statutory damages, number one, and attorneys fees, number two."

Michael Atkins: You can only elect statutory damages or seek a recovery of the attorneys fees that you spend enforcing your copyrights in court, if the infringement occurs after the registration has issue. And so that's a real motivation for you to make sure that that chronology of events goes in your favor. Now statutory damages rather than having to prove actual out-of-pocket loss to a reasonable degree of certainty. That's what the normal legal definition of damages are, actual damages, you lost profits rather than having to go through that proof, which could be impossible to prove to the reasonable degree of certainty that's required to recover actual damages. You can instead throw the ball, lateral it over to the judge and give it up to him or her to decide in his or her discretion what would be fair. And the statutory range for awarding damages is from a very small amount to a very large amount and it's even doubled up to a hundreds of thousands of dollars.

Michael Atkins: If the judge separately finds that the infringement was, "Willful," meaning it was intentional and was not by accident. What you get to do when you write this letter, if you had your copyright registered or the copyright in your work registered before the infringement occurs, you get to write a real strong letter that says, "Look, if you don't immediately knock this off, I'm going to sue you. And in court I'm going to ask for statutory damages." Meaning I'm not going to have to prove much of anything other than the infringement has occurred, which I can. And I'm going to ask that the court award attorneys fees, meaning if you defend yourself in this lawsuit and you lose, potentially you're going to have to pay your lawyer and you're going to have to pay mine too.

Michael Atkins: And so even if you're not going to go to court, having the ability to spell this out in a letter makes for a really scary letter and that really encourages good behavior or stopping of copying bad behavior. And so that by itself can be a very powerful tool and this is all set up to motivate authors to register their copyright as soon as reasonably possible after the work is first published.

Jeremy Epp: So if the work is registered, does the party that create a party that owns that work, are they required to give a cease and desist? Or if a situation merits, can they just file a lawsuit?

Michael Atkins: They can just file the lawsuit, but normally you'd shoot a shot across the bow. Because if you can get them to knock off the bad behavior without going through the expense of filing a lawsuit, why wouldn't you do that?

Jeremy Epp: Exactly.

Michael Atkins: I do want to raise an issue, maybe you're going to get to this, but one thing that is very interesting and not intuitive under copyright law is a doctrine called the work made for hire doctrine, which maybe you've heard of before and how that applies or actually does not apply to works created by outside companies or independent contracts. The work made for hire doctrine essentially says that if you have an employee, so if you're Microsoft and you have a whole stable of smart computer programmers writing code for you all day long, Microsoft, the company, and not the individual workers own the copyright to the work, to the output. And so Microsoft, not the individuals would have a right to then sue an infringer and collect money damages and so forth for infringement. But what is not as widely known as should be known that work for hire doctrine, that automatic recognition of the employer as being the owner of the copyright that does not apply to an independent contractor or an outside vendor.

Michael Atkins: And so Jeremy, in your example, you've brushed up against copyright law and infringement a little bit through no fault of your own and through third party vendors.

Jeremy Epp: Correct.

Michael Atkins: And one thing that is another thing to consider when you're dealing with folks like that is to make sure that you have an assignment of all copyrights from them to you because without an express assignment that's signed by them and it is in writing, they are the copyright holder, not you. And so if you hire a web designer, I'm going to pay you 5,000 bucks and make me this fancy website. And if they do that and you're happy with it and you put it to use and you're good to go, that web designer can essentially sell that design to customer number two, customer number three and number four because they are the owners of their work product, the copyright in their web design unless you have them assign in the legal phrases all right, title and interest of the work from them to you. Which basically legally means after the assignment, after the contract is signed, you will own everything and they'll own nothing.

Michael Atkins: Without a document like that, you just have permission to use the website that you paid for, but you don't own it. Surprising that a lot of people don't know that to avoid surprises can have that worked into your web design, professional services contract with your web designer. Make sure that you are the owner and not them at the end of this process, but without those magic language and have that signed by them, it is not automatically transferred over to you unless they're your employee, in which case it is. But they're an independent contractor or an outside company or vendor they're the copyright owner and they're the ones that have the ability to sue over infringement, not you, which is really unintuitive I think.

Jeremy Epp: Interesting. Yeah, that's a really good point. So let's say that I am wanting to utilize, let's say a photograph and it is copyrighted, protected, and I reach out to the owner and I ask for their permission to use it and they grant that to me. What would I want to ensure is included in that permission? Is an email good enough to say, "Yes, I grant you the rights to use this and this." Let's say one time use situation or is there the form that would be ideal to ensure that you're protected from future claims?

Michael Atkins: Well, I think of any contract including a license agreement with the photographer. You know the expression, "Let's get on the same page."

Jeremy Epp: Mm-hmm (affirmative).

Michael Atkins: That's really what a contract does mean. Legally it's enforceable, but what a contract does is in one piece of paper or in one... It can be online of course, it gets the deal hammered out so that both parties know what they're signing up for. Getting on the same page is probably more important than any fancy language that you would have in a particular license agreement with a photographer. You're avoiding misunderstanding, you're avoiding hurt feelings, you're avoiding having a different understanding and expectations of the deal. In this particular agreement, just to get on the same page, I mean, we want to know are there geographic restrictions, can this be copied, is it just a one time only use? Is it a photograph on a website one time only. Or can I use it 20 times in 20 different blog posts. Can I as the licensee sub-license it, can I basically grant permission for someone under me to step in my shoes and exercise my rights under this permission. Are there geographic restrictions, are there... What strings are attached or are there any strings being attached to this permission.

Michael Atkins: Those are the sorts of things that you'd want to know about. I think if you had a particular plan, if I wanted to put this on my website, your next door neighbor is a professional photographer and you wanted to hammer out a simple agreement with your next door neighbor to use a photograph of the New York skyline on your website. You would identify the photograph, photographer would say, I give you the right to use this photograph for forever or for one year or for one month on my website and maybe it's restricted to this web address, maybe it's not. If it's in a commercial is it just in New York City, can I use this on the New York City market or can it be nationwide or can it be worldwide? Are there any other restrictions? Like the example I had with a musician, you can put whatever restrictions you want on this. I mean, very common restrictions are this can't be used in connection with pornography, this cannot be used in connection with political purposes, this cannot be used in connection with maybe commercial purposes. I mean, you can use this for your informational blog, but I don't want my photo being used to Hawk Widgets, just don't want that. Or I'm going to allow that I'm going to charge more money for the right for me to grant you that right.

Michael Atkins: So it's just all about the deal, just think about the restrictions and frankly it might be more of a photographer rather than the user is probably thinking this is only for use in this state or for this purpose and it's not for use outside this region and it's not for this or that or the other. You can really put as many strings on a grant of permission as you can imagine. You're just limited by your imagination and the ability to hammer out a deal with the licensee.

Jeremy Epp: Yeah, that's a good point. Mike, as you were speaking, my mind was thinking about the fine print that we all let our eyes glaze over as we sign up for Facebook or have an Instagram account or different social media sites where do you understand if you put a photo, a unique photo, let's say on Instagram, are you giving up your rights to use that only to Instagram or are there other attachments to it that you haven't paid attention to?

Michael Atkins: Yeah, I mean, I think you probably are. I think that you potentially are even assigning your right, so maybe you don't even own the rights anymore Facebook does. I don't know. I mean it's buried in the fine print, which is your motivation to read the fine print but almost nobody does including me. But knowing that you just got to proceed at your peril. I mean like the... What's the term that I used before the... The troll, the copyrights trolls they're in the business of the, "Aha. I got you." And trying to monetize the photographs by shaking you down for money that is cheaper for you to pay than it is to fight out in court. Unfortunately, if we all read the fine print they would probably be out of business. But we all are busy and few of us actually read the fine print. But that's the risk that you're exposing yourself to if you don't.

Jeremy Epp: It's interesting as we were talking here, because I've been in environments where I want to reiterate that this is not a sue to gain money situation that we're talking about here. You've got open source software, you've got shared information, you've got kind of the mindset of, "Hey, you contribute, we all contribute and together we get a better product." I think what we're really talking here is about unique material that is special to you, you've put in the time, energy and effort to create it and you want others to honor that and not steal it and claim it as their own or certainly not profit from it without your permission to do so. So I'm thinking about courses, books, music, all that kind of stuff where maybe blog posts, it's not so much of a big deal as far as if the ideas are kind of built upon each other, but if somebody's going to copy a book or a course that I'm producing and I'm putting in blood, sweat and tears of my own effort, my research, and my time and money, I want to protect that.

Michael Atkins: Absolutely right. I represented the publisher of a book called The Dolphin. And The Dolphin as it turns out, became very popular in Latin America, I think it was originally written in Spanish and the publishing company started to make a lot of money and the office started to become really famous until it turned out or came to light that there were passages like whole pair, sentences and paragraphs in this 300 page book that were identical to passages and paragraphs in the Jonathan Livingston Seagull book, that was very famous in the 1970s and still is famous today. What we're protecting under copyright law is... I mean maybe it's bare bones, is the economic incentive for creative people to continue to take photographs and make videos and write software and write books that they wouldn't otherwise do if they thought that they could just get ripped off willy nilly by anyone that just liked their tone of phrase or liked their work and could just take it for themselves. And on a more noble level is if you come up with a creative work or take a photograph and it's very popular, there are people out there that will be attracted to the idea of taking a shortcut and sort of grabbing it from you or plagiarizing it or claiming your work as their own. And this is the legal tool to put a stop to that.

Michael Atkins: It's not about got you and making a buck. It's about maintaining your integrity as the author of a work that you're proud of.

Jeremy Epp: Mike, do copyrights ever expire?

Michael Atkins: Well, yes. So copyrights cannot be other than in a metaphysical way they can't be protected without copyright registration. We've kind of already gone through that. Copyright registrations do expire and they expire after a period of years. It's based on the life of the author plus 74 years. I'm not sure that's still the case, but it's something like that. So it's around a hundred years or so. The statute is always changing because mainly at the behest of the lobbying efforts of Walt Disney that wants to protect these cartoons that were made in the '30s and '40s and they're about to go into the public domain. And then the lobby is representing Walt Disney as I understand that, lobby congress and then congress changes the law and extends the date basically to protect Mickey Mouse from falling into the public domain.

Michael Atkins: But any work from like the 1920s and earlier are probably outside copyright and in the public domain. And so if you wanted to publish the complete works of Shakespeare, you could do that. Now you couldn't copy someones recently edited or annotated work of Shakespeare because those additional edits and annotations themselves are likely protected by copyright law and those elements would stop probably used in this hypothetical would still be protected under copyright law. But for an older work you could publish the works of Shakespeare on your own publishing company name and sell it for cut rate because you don't have to pay anybody any royalties and people could buy from you and as long as the work is in the public domain, you're not offending copyright. The copyright has expired, it's no longer private, it's owned by the public and you're just making it available and distributing. It doesn't really offend anything in the law.

Michael Atkins: But it's a very tricky area of the law because with all of the amendments to the copyright act that have occurred over the years, it is very technical and very tricky to analyze and decide whether a particular work is in the public domain or not. Because at some time in our history of the copyright act you needed to register a work and I think you needed to do so in a certain time period after the work was first published and if you didn't, I think this is maybe in the '20s, '30s or '40s then the work is in the public domain because you failed to protect it as the statute required at that time. But it's a whole legal analysis, you want to go and publish some works from that era, the '20s, '30s or thereabouts, your copyright lawyer will have to do a lot of sleuthing around to determine whether or not that particular work is actually protected by copyright or is free for the taking.

Michael Atkins: But it's very hard to make that determination because the way the amendments have been cobbled onto the statute, it's just not at all clear or intuitive on how the public domain works or works of that vintage.

Jeremy Epp: Well, Mike, I want to wrap it up here and say a big thank you. I think in our discussion today we really hammered out the value of the copyright and the need for due diligence on not only what you're doing but also what vendors that you hire or employees are doing to ensure that they're not accidentally or purposely infringing on copyright, but also protecting and setting yourself up for protecting your creative products and creative works from others that are either accidentally or purposely trying to steal your information and produce it and put it out there as their own.

Jeremy Epp: Where can people get ahold of you so that they can inquire about your services.

Michael Atkins: My website, which has my bio and other information is at www.atkinsip.com the middle part is A-T-K-I-N-S-I-P for intellectualproperty.com.

Jeremy Epp: Excellent. Well, thanks again, Mike. I appreciate you joining us and I'm sure our listeners will get a lot of information out of this.

Michael Atkins: Jeremy, thank you. It's been a lot of fun.

Jeremy Epp: I hope you enjoyed that episode with Mike Atkins. I know I certainly have learned a lot and I am sure that you learned a lot regarding copyright law, how to protect yourself and your creative work as you move forward in growing your business. To learn more about how to grow your business, head on over to jeremyepp.com be sure to check out our show notes if you want to follow up on any information that you heard in today's episode, there'll be a link to the transcription as well as some other resources available for you to check out and be sure to sign up for our podcast. Thanks for tuning in on this three part attorney series, I trust that you got tremendous value and I'm excited to hear from you what you most appreciated and what you can implement into your business right away. Thank you again, and I look forward to speaking with you on the next episode.

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