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September 17, 2002  
Clarity On Copyright Issues

By Joe Obenberger

Copyright is generally considered a fairly straightforward area of law, but there is a significant amount of confusion when it comes to applying the concept to the online industry. Following is a discussion of basic copyright issues and how they apply to the adult industry.

What is Copyright?

Copyright is a method of protection for authors of original works such as literature, computer programs, music, artistic pieces and photographic images. The protection provided by copyright arises under Title 17 of the United States Code. A copyright gives the owner the exclusive right to do or authorize others to: reproduce, prepare derivative works, distribute copies, publicly display and generally use the material that carries the copyright in exchange for something, typically a royalty or fee. The copyright owner often grants this use through a License Agreement, but can sell it outright.

Who Can Claim Copyright?

Copyright protection is created IMMEDIATELY upon the creation of a fixed form of the material in question. For instance, I automatically own the copyright to this article upon completing it. I am NOT required to file for an official copyright with the US Copyright Office to prove that I am the owner of the content. However, if I want to sue a person for using my article without permission, I must first register it.

What If I Hire Someone To Create A Site For Me?

If you hire a person or company to handle, for instance, the design of your site, the question of "work for hire" comes to the forefront. In such a situation, the employer and not the employee is considered to be the author of the material created. To make sure this work for hire concept protects you, the following must occur:

1.the work must be prepared by an employee within the scope of his or her employment, OR
2.the work must be specially ordered or commissioned for use as:
a.a contribution to a collective work,
b.a part of a motion picture or other audiovisual work,
c.a translation,
d.a supplementary work,
e.a compilation,
f.an instructional text,
g.a test,
h.answer material for a test,
i.an atlas.

It is our strong suggestion that you have a contract with any party that you hire that includes a clause clearly establishing that the copyright to the product produced is owned by the hiring party, not the party being hired to produce it. This issue pops up repeatedly, so make sure you protect yourself.

How Long Does A Copyright Exist?

A copyright exists for the life of the author plus 70 years after the author's death. If two people work on the project, both hold copyrights on it that last for the period noted above.

Can I Transfer A Copyright?

Yes. To make the transfer effective, the transfer must be in writing and signed by the owner of the exclusive right to claim copyright on the material. Such a transfer is typically handled by creating a contract between the two parties in question.

Should I Register My Copyright?

As noted above, you do not have to register with the U.S. Copyright Office to have a copyright in the item created. Are there advantages to filing with the Copyright Office? Yes. They are as follows:

1.Establish a public record of the date of creation;
2.Required prior to filing an infringement lawsuit;
3.If made within 5 years of publication, creates an inference that the filing is valid; and
4.If made within 3 months of publication of the work, damages and attorneys fees will be available in court actions.

As you can see, there are significant advantages to registering with the U.S. Copyright Office. This is particularly true if you must sue a party that has copied your images or site elements. As you are undoubtedly aware, such an event only occurs every five minutes or so on the Internet!

Fair Use

Perhaps the single most misunderstood area of copyright law is the concept of Fair Use. Essentially, a third party can use a copyrighted items without the permission of the owner if the third party uses it for purposes such as criticism, news reporting, teaching, research, commentary or scholarship. Copying an image and posting it on the net as part of a pitch to get people to come to a site is not a permissible "Fair Use." For instance, copying images off of a site for the purpose of creating a TGP page is not acceptable unless you are an affiliate of the site and the terms and conditions of the affiliate program allow for such use. Additionally, copying an image that you find posted to a chat group or news group is not a proper basis for defeating a copyright claim based on the concept of "fair use."

If you have further questions regarding copyrights or this article, do not hesitate to contact us.

Richard Chapo

The above discussion is intended to be a general commentary on affiliate program issues. Each situation is different and this article is not intended as legal advice for your specific situation. Further, nothing in this article is intended to create an attorney-client relationship. If you have additional questions, please contact Joe Obenberger at AdultInternetLaw.com.



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