Copy<i>wrongs</i> for Start-up Firms

Simple, But Important

But for the small and start-up firms for which e-commerce is critical, issues concerning copyright protection of their key property are much simpler, and far more practical. In essence, they would prefer that their rights be protected without having to spend exorbitantly ' or at all ' on legal fees to secure, exercise and enforce those rights. Isn't that the premise underlying all intellectual property law?

Unfortunately, the reality is not so clear ' or protected ' for those without the means to use our legal system to support their rights. For example, many authors of creative works believe that copyright law protects them against those who would steal their designs or masterpieces. In this dream sequence, all they need do to obtain an injunction (after finding their work has been knocked off, whether in the United States or abroad) is file suit. If they are truly lucky, along the way they can sue for damages, to fund future creations.

Not So Fast!

That is a great fantasy, and perhaps a copyrightable story in its own right ' as a work of fiction. For many e-ecommerce firms, particularly start-ups with limited funds, the illusion of effective copyright protection blinds them from the practical requirements of protecting their creative work. For examples of this divergence
between the legal ideal and the limits of the real world, see, e.g., the following sites:

• www.edutopia.org/copyright-rules-teachers ' which provides information for teachers, who increasingly use the Internet for a range of academic purposes, from grade school to graduate school, including law school;
• www.medialawjournal.co.nz/?p=549 ' which features perspective from Steven Price, a media-law barrister who writes a blawg from Wellington, New Zealand;
• www.newyorker.com/archive/2002/01/21/020121ta_talk_surowiecki ' for an article on Disney's retention of character copyrights;
• http://prospect.org/article/digital-copywrongs-1 ' which provides a look at exemptions to the Digital Millennium Copyright Act (DMCA);
• http://generationqmagazine.com/2012/03/notions-copy-wrongs-and-rights ' for an interesting story on quilting and copyright (look below the banner when the site loads); and
• www.mltcreative.com/blog/bid/65868/Copyright-to-prevent-copy-wrongs-in-B2B-content-marketing ' where a rundown of avoiding copyright problems with business-to-business content appears.

Practical and Legal Limits

In this article, I survey practical and legal limits of obtaining or using copyright protection, followed by a discussion about practical tools that content creators can try to use. (Basic information from the U.S. Copyright Office about U.S. copyright law, beyond the scope of this article, may be found at www.copyright.gov/circs/circ01.pdf.)

Let me note that I do not intend to discuss a related but distinct topic, policing the voluntary use of work by those to whom it has been licensed or sold. Content creators must always be vigilant to ensure that their licensees (much less knockoff shops or garden-variety infringers) are not diminishing the value of their brand, whether by marketing methods that do not respect the creators' artistic vision, or by discounted pricing that affects the perceived value of the creators' brand and products. (For more on that topic, see, “Watching You ' Steal My IP: Online Vigilance Often Can Pay Off Big Time,” in the May 2011 edition of e-Commerce Law & Strategy, http://bit.ly/Kh7uqh.)

Protecting Against Unilateral Third-Party Use

Instead, my concern here is with rights owners protecting themselves, in advance, against unilateral use of their creations by a third party. For example, content creators or other originators may learn that “imitation is the sincerest form of flattery” when a Google Alert search returns an image or remarkably familiar quote. Creators may receive a buying inquiry from an existing customer interested in a piece in their style that the customer has seen elsewhere ' only to discover that the piece the customer is interested in is not the work of the artist she believed had produced it. Or an author may be given compliments on a new book in his or her style, which the speaker assumed had been written under a pseudonym ' but which the author in question didn't write.

Copyright Can Cost a Bundle

Perhaps the most basic limitation on protecting one's copyrights is the cost of doing so. Although a copyright interest exists immediately upon creation, and expression in a tangible form (see, www.copyright.gov/help/faq/faq-general.html), effective use of that right requires formal registration, in the United States, and (especially in the Internet Age) abroad.

Also, prospective buyers of intellectual property rights will generally insist on registered rights, rather than just common law rights. For that reason, copyright registration (at www.copyright.gov) is, generally, by comparison, less expensive (see, http://1.usa.gov/LzdHPl) than comparable steps to protect trademarks, or patents (see, http://1.usa.gov/Kh7ZQY). Copyrightable works are, in general, created much more quickly and commonly, and the cost of filing fees should not discourage a person from protecting his or her creations.

But it is precisely that accumulation of potential filings that may impose a practical barrier on registration for copyright protection. While a book author may not write several books per decade, much less per year, artists who and businesses that create items from designs ' jewelers, for example ' may have different variations on a single pattern in different colors and combinations, which change with each year or season. A priori, how does such a firm pick out which one to register for protection, or afford to register them all?

Which Works Are Accepted for Copyright Registration

Similarly, it is important to know what the U.S. Copyright Office will accept for registration, and what cannot be protected. The following excerpt is from a Copyright Office document:

What does copyright protect? Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. Circular 1, Copyright Basics, section “What Works Are Protected.” www.copyright.gov/help/faq/faq-general.html (Emphasis added.)

Digital Content Complicates Matters

The cost problem becomes worse for creators of digital content, which can change and be adapted easily and inexpensively. Not only are there, for example, different versions of a work in paper, film and audio, but that work can exist in different digital media, perhaps with different content for different audiences. (See, for example, “Writer's Cramp: In the E-Reader Era, a Book a Year Is Slacking,” The New York Times, http://nyti.ms/Kh8CtU, describing how the e-book has allowed ' or forced ' authors to increase the pace of their content production, and tailor distinct versions for different markets and audiences.) Much as when pondering the question of which item to register for the designer, the digital content creator must also pick and choose what components of a work to register, and whether to update the registration as the work evolves.

e-Commerce Companies Face Special Challenges

For e-commerce firms, the reality of a world economy makes these challenges more daunting. (A brief discussion of international copyright protection appears at www.copyright.gov/fls/fl100.html.)

As the Copyright Office's basic publication notes:

There is no such thing as an “international copyright” that will automatically protect an author's writings throughout the entire world. Protection against unauthorized use in a particular country depends, basically, on the national laws of that country. However, most countries do offer protection to foreign works under certain conditions, and these conditions have been greatly simplified by international copyright treaties and conventions. For further information and a list of countries that maintain copyright relations with the United States, see, Circular 38a, International Copyright Relations of the United States. (www.copyright.gov/circs/circ38a.pdf)

However, registration allows the owner of the copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies (see, http://1.usa.gov/JtS5l5). A knockoff is much more likely to be produced abroad, not within the protective shadow cast by the umbrella of U.S. copyright law, which makes it harder and more expensive for e-commerce and other enterprises' counsel or law-enforcement personnel to find the infringement, much less act against it.

Register for Domestic Protection

U.S. law also offers a huge incentive for content creators to incur this cost of registration. As the same publication cited earlier notes, registration of a work provides several practical advantages (in U.S. courts, at least) if a person or people must do something with it other than hanging the registration certificate on a wall. The following description is quoted from www.copyright.gov/circs/circ01.pdf:

• Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.
• If made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
• If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

(This last right mentioned in the list above is critical, because “actual” damages can be difficult and expensive to prove, and often are speculative, at best.)

Take It or Leave It

So, for the start-up firm, especially in a difficult economy when funds are scarcer than usual, the “protection” of copyright isn't much of a choice. There is every legal reason to register each work it creates, but one overriding practical obstacle that explains why most do not even have a registration strategy, much less a portfolio of registered works, is simple and straightforward: lack of cash for such a process. (Because copyright registration is relatively straightforward, I would not list the cost of legal advice on registration, per se, as an obstacle ' and sorting out a protection strategy is well worth paying that cost.)

A Real Life Example

That question becomes exponentially harder to answer when one is confronted with international use. In a case in my office, for example, a client eager to grow his business was thrilled to receive what appeared to be a sincere expression of interest from a firm in the Pacific Rim. The potential licensee said and did all the right things, including signing a strong confidentiality agreement, but then demanded the copyrighted content in a big hurry. Against counsel's advice, the client sent the materials ' only to find that the prospect's friendly attitude and prompt compliance with requests shut down abruptly once it had the desired information in hand (digitally, of course, to facilitate prompt delivery). No license agreement was signed, nor had any fees been paid.

The company appears to have a great copyright case to shut down the prospective licensee's unauthorized use of its materials in violation of the confidentiality agreement. But in fact it has a claim that will never see the inside of a courtroom, in the United States or abroad, because of the real-world cost of enforcing a copyright on the other side of the world from the copyright owner's country.

While the client remains hopeful about the good intentions of the potential customer, the burden and cynicism of having seen too many trusting clients exploited left counsel far less optimistic than the client was. From a practical perspective, the cost of even speaking to local counsel, much less retaining that counsel to act against the wrongdoer, is totally unrealistic for this client. While it may have a sound case on paper, that does not help when the potential defendant has no U.S. operations (and, therefore, the client would have no jurisdiction in which to enforce an injunction in the United States).

The Truth Is Sometimes Hard to Prove

Similarly, a case in which people are pursuing justice against copyright infringement requires proof. If the plaintiffs don't have an actual copy of the allegedly infringing work, then it is hard to prove the truth of the allegations the plaintiffs are making. Assuming that a client learns of the infringement in the first place ' a heroic assumption if online publication is involved ' getting a copy may be harder still, if the publication is obscure or expensive.

For example, our office had a potential client who believed that a complex form of categorization of hobbyist data he wrote and distributed to other fans was blatantly copied, in a limited-edition book published only in England. He faced the difficult choice of whether to spend several hundred dollars just to see whether he may have any evidence for an infringement case that he might not win (depending on the contents of the book).

A Confidentiality Agreement Can Help

Sometimes infringers have accepted U.S. jurisdiction and venue in a confidentiality agreement ' allowing the rights owner to sue and obtain a judgment in the United States. But (as in the Pacific Rim case mentioned above) that still doesn't let it actually do anything against the wrongdoer on the ground in the foreign county. Even under the best circumstances, if the foreign court does not question the validity of a U.S. judgment, and a foreign registration is not required as a prerequisite, the client must still incur the expense of the U.S. and of the foreign proceedings, and then hire local help to try to get the foreign officials to act on it.

In short, the simple act of enforcing a copyright abroad can quickly swamp a firm's legal budget. As a result, the company must either trust in the kindness of strangers to whom it distributes content abroad ' a nice way of saying do good diligence (the “trust but verify” approach of 1980s diplomacy) ' or choose not to protect valuable assets as effectively as a better-financed firm could do.

Avoiding Perhaps Little-Known Pitfalls

Not All Created Works Can Be Copyrighted

A more fundamental limit of copyright protection, not necessarily obvious to the non-specialist, is that not everything created can be the subject of a registered copyright. While a copyright interest comes into existence upon creation and expression in a tangible form, that interest may not be entitled to all of the procedural benefits and protections that come with registration of it.

In short, an author cannot protect an idea unless it meets the independent standards for obtaining a copyright. The author may protect only his or her expression of an idea; in other words, two people may tell the same story, in different ways, without infringing each other's copyright interest.

From the perspective of the small firm, therefore, its ideas (if not eligible for patent protection) are there for the taking once they have been the subject of a copyright application. While putting the ubiquitous ' legend on a work puts others on notice of an author's claim, it does nothing to restrict others' use of the ideas in the work, as long as they do not copy the expression of them.

Online Infringement Reporting Systems Protection

Another potential trap for people unwary of copyright protection, internationally and domestically, lies in the online infringement reporting systems. In theory, these websites allow copyright owners to report examples of infringing uses of their rights to third-party sites, which then remove the infringing content. For example, China's Alibaba (http://legal.alibaba.com/complaintRule_en_US.html) [Editor's Note: As this issue was going to press, Alibaba bought back half of its shares from Yahoo, valued at up to $7.1 billion], eBay's VeRO system (http://bit.ly/Lzg3h6) and Facebook's violation reporting page (http://on.fb.me/Lzghon).

The rights owner need not incur the cost of retaining counsel, and filing suit; it need only upload evidence, state its case (not a legal task) and wait for the resolution. Also, if the infringer is located abroad, a remedy directly with the website operator, regardless of its physical location, could eliminate the practical difficulties of international copyright enforcement discussed above.

However, from my experiences in occasionally helping clients to file such reports, the hope of an inexpensive “win” against an infringer has, generally, remained just that ' a hope. Whether because of requirements for strict compliance with hypercomplex rules and procedures, requirements for evidence that may not be available at reasonable cost or in a reasonable timeframe, or because the decision-maker simply erred on the side of caution when a result is not indisputable, my experience with these procedures has not included success.

A Costly Course of Action

From an evidentiary standpoint, unless the client registers everything it creates in the ordinary course, requirements to submit proof of copyright registration ignore the current 3- to 10-month delay in processing new copyright filings (www.copyright.gov/help/faq/faq-what.html) ' and the $760 expediting fee (on a $35 filing charge).

In other words, cautious rights owners who delay the expense of filing to determine whether the work succeeds, or if the benefits of filing will be needed, could find that the need to act quickly will be prohibitively expensive (especially if one of the online infringement reporting services requires a registered copyright).

While I believe the availability of such procedures makes tremendous sense to control legal IP costs, the prospect of saving time and money may be as illusory to rights owners as the ability to get more traditional injunctive relief, with all its costs.

The Maze of the 'Work-for-Hire' Rule

My colleague Bruce Bellingham, a recent recipient of Philadelphia Volunteer Lawyers for the Arts' (PVLA) Volunteer of the Year Award for his work protecting artists' rights (http://bit.ly/Khc7jU), highlighted for me another trap of copyright law that he sees repeatedly in his work for PVLA's artist clients: the intricacies of the “work-made-for-hire” rule. That doctrine affects businesses that hire an independent contractor to create a work, and artists or authors who may have to employ another to assist them. Unless the creator of something specifically assigns rights to someone else, then the person “hired” to create the work owns it ' not the person who paid for it.

Copyright Protection on a Non-Grand Budget

Crowdsourcing

In an era when copying can be costless and flawless, how can rights owners police ubiquitous infringement, in a practical, cost-efficient way?

One answer is easy for those who can afford it: through systematic, relentless prosecution, so that potential infringers know that they cannot get away with it. Consider, for example, the firms licensed to promote many cable and closed circuit sporting events, such as J & J Productions (www.boxingseries.com) and Joe Hand Productions (www.joehandpromotions.com). These firms crowdsource their enforcement, as agents for rights owners, by actively recruiting independent contractors to locate and report infringing activity, typically in a bar.

Other Useful Tricks of the Trade

Smaller firms can also rely on common law remedies, such as passing off. If a court can be convinced that a reasonable observer might confuse the offender's work with that of the rightful owner, then the court can take steps to prevent the infringement. The problem, of course, is that even a clear common law remedies case can be expensive to bring, because it is so fact-specific, and use of the courts is still necessary to force the wrongdoer to honor the court's orders.

Similarly, no work (copyrightable or not) should ever leave the creator's side without the standard copyright legend (e.g., “Copyright 2012 Stanley P. Jaskiewicz, Esquire”), which at least puts third parties on notice of the owner's claim, and sets the stage for further litigation for damages.

Another approach is to secure free skilled help, when it is available, from organizations such as Philadelphia's Volunteer Lawyers for the Arts (www.artsandbusinessphila.org/pvla).

Understand the Issues, Get Copyright Registration

In short, to take full advantage of copyright law, an author (or others) must first understand what:

• Is protected;
• Isn't protected;
• Can be protected;
• Rights the law gives a person seeking copyright; and
• Practical obstacles the artist or other content creator may face when asserting the legal rights to which he or she is entitled.

Armed with that knowledge, a person can develop a business plan based on effectively using her rights under laws that protect copyrights, even while working within the practical limits of those laws.

Much virtual ink has been spilled about the complexities of applying traditional copyright law to e-commerce (and the Internet, generally).

The intersection of law developed for the written word on paper, and tangible objects, and digital distribution of their modern equivalents, remains a work in progress, to say the least.

For example, in May, a federal court surprised publishers by rejecting most of their infringement claims against university libraries that had assembled course packs of material, unless such copying included a material amount of the copyrighted work. Cambridge University Press et al. v. Patton et al, N.D. Ga. No. 1:2008cv01425 May 11, 2012 (http://bit.ly/Kh6wtW).

Simple, But Important

But for the small and start-up firms for which e-commerce is critical, issues concerning copyright protection of their key property are much simpler, and far more practical. In essence, they would prefer that their rights be protected without having to spend exorbitantly ' or at all ' on legal fees to secure, exercise and enforce those rights. Isn't that the premise underlying all intellectual property law?

Unfortunately, the reality is not so clear ' or protected ' for those without the means to use our legal system to support their rights. For example, many authors of creative works believe that copyright law protects them against those who would steal their designs or masterpieces. In this dream sequence, all they need do to obtain an injunction (after finding their work has been knocked off, whether in the United States or abroad) is file suit. If they are truly lucky, along the way they can sue for damages, to fund future creations.

Not So Fast!

That is a great fantasy, and perhaps a copyrightable story in its own right ' as a work of fiction. For many e-ecommerce firms, particularly start-ups with limited funds, the illusion of effective copyright protection blinds them from the practical requirements of protecting their creative work. For examples of this divergence
between the legal ideal and the limits of the real world, see, e.g., the following sites:

• www.edutopia.org/copyright-rules-teachers ' which provides information for teachers, who increasingly use the Internet for a range of academic purposes, from grade school to graduate school, including law school;
• www.medialawjournal.co.nz/?p=549 ' which features perspective from Steven Price, a media-law barrister who writes a blawg from Wellington, New Zealand;
• www.newyorker.com/archive/2002/01/21/020121ta_talk_surowiecki ' for an article on Disney's retention of character copyrights;
• http://prospect.org/article/digital-copywrongs-1 ' which provides a look at exemptions to the Digital Millennium Copyright Act (DMCA);
• http://generationqmagazine.com/2012/03/notions-copy-wrongs-and-rights ' for an interesting story on quilting and copyright (look below the banner when the site loads); and
• www.mltcreative.com/blog/bid/65868/Copyright-to-prevent-copy-wrongs-in-B2B-content-marketing ' where a rundown of avoiding copyright problems with business-to-business content appears.

Practical and Legal Limits

In this article, I survey practical and legal limits of obtaining or using copyright protection, followed by a discussion about practical tools that content creators can try to use. (Basic information from the U.S. Copyright Office about U.S. copyright law, beyond the scope of this article, may be found at www.copyright.gov/circs/circ01.pdf.)

Let me note that I do not intend to discuss a related but distinct topic, policing the voluntary use of work by those to whom it has been licensed or sold. Content creators must always be vigilant to ensure that their licensees (much less knockoff shops or garden-variety infringers) are not diminishing the value of their brand, whether by marketing methods that do not respect the creators' artistic vision, or by discounted pricing that affects the perceived value of the creators' brand and products. (For more on that topic, see, “Watching You ' Steal My IP: Online Vigilance Often Can Pay Off Big Time,” in the May 2011 edition of e-Commerce Law & Strategy, http://bit.ly/Kh7uqh.)

Protecting Against Unilateral Third-Party Use

Instead, my concern here is with rights owners protecting themselves, in advance, against unilateral use of their creations by a third party. For example, content creators or other originators may learn that “imitation is the sincerest form of flattery” when a Google Alert search returns an image or remarkably familiar quote. Creators may receive a buying inquiry from an existing customer interested in a piece in their style that the customer has seen elsewhere ' only to discover that the piece the customer is interested in is not the work of the artist she believed had produced it. Or an author may be given compliments on a new book in his or her style, which the speaker assumed had been written under a pseudonym ' but which the author in question didn't write.

Copyright Can Cost a Bundle

Perhaps the most basic limitation on protecting one's copyrights is the cost of doing so. Although a copyright interest exists immediately upon creation, and expression in a tangible form (see, www.copyright.gov/help/faq/faq-general.html), effective use of that right requires formal registration, in the United States, and (especially in the Internet Age) abroad.

Also, prospective buyers of intellectual property rights will generally insist on registered rights, rather than just common law rights. For that reason, copyright registration (at www.copyright.gov) is, generally, by comparison, less expensive (see, http://1.usa.gov/LzdHPl) than comparable steps to protect trademarks, or patents (see, http://1.usa.gov/Kh7ZQY). Copyrightable works are, in general, created much more quickly and commonly, and the cost of filing fees should not discourage a person from protecting his or her creations.

But it is precisely that accumulation of potential filings that may impose a practical barrier on registration for copyright protection. While a book author may not write several books per decade, much less per year, artists who and businesses that create items from designs ' jewelers, for example ' may have different variations on a single pattern in different colors and combinations, which change with each year or season. A priori, how does such a firm pick out which one to register for protection, or afford to register them all?

Which Works Are Accepted for Copyright Registration

Similarly, it is important to know what the U.S. Copyright Office will accept for registration, and what cannot be protected. The following excerpt is from a Copyright Office document:

What does copyright protect? Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. Circular 1, Copyright Basics, section “What Works Are Protected.” www.copyright.gov/help/faq/faq-general.html (Emphasis added.)

Digital Content Complicates Matters

The cost problem becomes worse for creators of digital content, which can change and be adapted easily and inexpensively. Not only are there, for example, different versions of a work in paper, film and audio, but that work can exist in different digital media, perhaps with different content for different audiences. (See, for example, “Writer's Cramp: In the E-Reader Era, a Book a Year Is Slacking,” The New York Times, http://nyti.ms/Kh8CtU, describing how the e-book has allowed ' or forced ' authors to increase the pace of their content production, and tailor distinct versions for different markets and audiences.) Much as when pondering the question of which item to register for the designer, the digital content creator must also pick and choose what components of a work to register, and whether to update the registration as the work evolves.

e-Commerce Companies Face Special Challenges

For e-commerce firms, the reality of a world economy makes these challenges more daunting. (A brief discussion of international copyright protection appears at www.copyright.gov/fls/fl100.html.)

As the Copyright Office's basic publication notes:

There is no such thing as an “international copyright” that will automatically protect an author's writings throughout the entire world. Protection against unauthorized use in a particular country depends, basically, on the national laws of that country. However, most countries do offer protection to foreign works under certain conditions, and these conditions have been greatly simplified by international copyright treaties and conventions. For further information and a list of countries that maintain copyright relations with the United States, see, Circular 38a, International Copyright Relations of the United States. (www.copyright.gov/circs/circ38a.pdf)

However, registration allows the owner of the copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies (see, http://1.usa.gov/JtS5l5). A knockoff is much more likely to be produced abroad, not within the protective shadow cast by the umbrella of U.S. copyright law, which makes it harder and more expensive for e-commerce and other enterprises' counsel or law-enforcement personnel to find the infringement, much less act against it.

Register for Domestic Protection

U.S. law also offers a huge incentive for content creators to incur this cost of registration. As the same publication cited earlier notes, registration of a work provides several practical advantages (in U.S. courts, at least) if a person or people must do something with it other than hanging the registration certificate on a wall. The following description is quoted from www.copyright.gov/circs/circ01.pdf:

• Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.
• If made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
• If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

(This last right mentioned in the list above is critical, because “actual” damages can be difficult and expensive to prove, and often are speculative, at best.)

Take It or Leave It

So, for the start-up firm, especially in a difficult economy when funds are scarcer than usual, the “protection” of copyright isn't much of a choice. There is every legal reason to register each work it creates, but one overriding practical obstacle that explains why most do not even have a registration strategy, much less a portfolio of registered works, is simple and straightforward: lack of cash for such a process. (Because copyright registration is relatively straightforward, I would not list the cost of legal advice on registration, per se, as an obstacle ' and sorting out a protection strategy is well worth paying that cost.)

A Real Life Example

That question becomes exponentially harder to answer when one is confronted with international use. In a case in my office, for example, a client eager to grow his business was thrilled to receive what appeared to be a sincere expression of interest from a firm in the Pacific Rim. The potential licensee said and did all the right things, including signing a strong confidentiality agreement, but then demanded the copyrighted content in a big hurry. Against counsel's advice, the client sent the materials ' only to find that the prospect's friendly attitude and prompt compliance with requests shut down abruptly once it had the desired information in hand (digitally, of course, to facilitate prompt delivery). No license agreement was signed, nor had any fees been paid.

The company appears to have a great copyright case to shut down the prospective licensee's unauthorized use of its materials in violation of the confidentiality agreement. But in fact it has a claim that will never see the inside of a courtroom, in the United States or abroad, because of the real-world cost of enforcing a copyright on the other side of the world from the copyright owner's country.

While the client remains hopeful about the good intentions of the potential customer, the burden and cynicism of having seen too many trusting clients exploited left counsel far less optimistic than the client was. From a practical perspective, the cost of even speaking to local counsel, much less retaining that counsel to act against the wrongdoer, is totally unrealistic for this client. While it may have a sound case on paper, that does not help when the potential defendant has no U.S. operations (and, therefore, the client would have no jurisdiction in which to enforce an injunction in the United States).

The Truth Is Sometimes Hard to Prove

Similarly, a case in which people are pursuing justice against copyright infringement requires proof. If the plaintiffs don't have an actual copy of the allegedly infringing work, then it is hard to prove the truth of the allegations the plaintiffs are making. Assuming that a client learns of the infringement in the first place ' a heroic assumption if online publication is involved ' getting a copy may be harder still, if the publication is obscure or expensive.

For example, our office had a potential client who believed that a complex form of categorization of hobbyist data he wrote and distributed to other fans was blatantly copied, in a limited-edition book published only in England. He faced the difficult choice of whether to spend several hundred dollars just to see whether he may have any evidence for an infringement case that he might not win (depending on the contents of the book).

A Confidentiality Agreement Can Help

Sometimes infringers have accepted U.S. jurisdiction and venue in a confidentiality agreement ' allowing the rights owner to sue and obtain a judgment in the United States. But (as in the Pacific Rim case mentioned above) that still doesn't let it actually do anything against the wrongdoer on the ground in the foreign county. Even under the best circumstances, if the foreign court does not question the validity of a U.S. judgment, and a foreign registration is not required as a prerequisite, the client must still incur the expense of the U.S. and of the foreign proceedings, and then hire local help to try to get the foreign officials to act on it.

In short, the simple act of enforcing a copyright abroad can quickly swamp a firm's legal budget. As a result, the company must either trust in the kindness of strangers to whom it distributes content abroad ' a nice way of saying do good diligence (the “trust but verify” approach of 1980s diplomacy) ' or choose not to protect valuable assets as effectively as a better-financed firm could do.

Avoiding Perhaps Little-Known Pitfalls

Not All Created Works Can Be Copyrighted

A more fundamental limit of copyright protection, not necessarily obvious to the non-specialist, is that not everything created can be the subject of a registered copyright. While a copyright interest comes into existence upon creation and expression in a tangible form, that interest may not be entitled to all of the procedural benefits and protections that come with registration of it.

In short, an author cannot protect an idea unless it meets the independent standards for obtaining a copyright. The author may protect only his or her expression of an idea; in other words, two people may tell the same story, in different ways, without infringing each other's copyright interest.

From the perspective of the small firm, therefore, its ideas (if not eligible for patent protection) are there for the taking once they have been the subject of a copyright application. While putting the ubiquitous ' legend on a work puts others on notice of an author's claim, it does nothing to restrict others' use of the ideas in the work, as long as they do not copy the expression of them.

Online Infringement Reporting Systems Protection

Another potential trap for people unwary of copyright protection, internationally and domestically, lies in the online infringement reporting systems. In theory, these websites allow copyright owners to report examples of infringing uses of their rights to third-party sites, which then remove the infringing content. For example, China's Alibaba (http://legal.alibaba.com/complaintRule_en_US.html) [Editor's Note: As this issue was going to press, Alibaba bought back half of its shares from Yahoo, valued at up to $7.1 billion], eBay's VeRO system (http://bit.ly/Lzg3h6) and Facebook's violation reporting page (http://on.fb.me/Lzghon).

The rights owner need not incur the cost of retaining counsel, and filing suit; it need only upload evidence, state its case (not a legal task) and wait for the resolution. Also, if the infringer is located abroad, a remedy directly with the website operator, regardless of its physical location, could eliminate the practical difficulties of international copyright enforcement discussed above.

However, from my experiences in occasionally helping clients to file such reports, the hope of an inexpensive “win” against an infringer has, generally, remained just that ' a hope. Whether because of requirements for strict compliance with hypercomplex rules and procedures, requirements for evidence that may not be available at reasonable cost or in a reasonable timeframe, or because the decision-maker simply erred on the side of caution when a result is not indisputable, my experience with these procedures has not included success.

A Costly Course of Action

From an evidentiary standpoint, unless the client registers everything it creates in the ordinary course, requirements to submit proof of copyright registration ignore the current 3- to 10-month delay in processing new copyright filings (www.copyright.gov/help/faq/faq-what.html) ' and the $760 expediting fee (on a $35 filing charge).

In other words, cautious rights owners who delay the expense of filing to determine whether the work succeeds, or if the benefits of filing will be needed, could find that the need to act quickly will be prohibitively expensive (especially if one of the online infringement reporting services requires a registered copyright).

While I believe the availability of such procedures makes tremendous sense to control legal IP costs, the prospect of saving time and money may be as illusory to rights owners as the ability to get more traditional injunctive relief, with all its costs.

The Maze of the 'Work-for-Hire' Rule

My colleague Bruce Bellingham, a recent recipient of Philadelphia Volunteer Lawyers for the Arts' (PVLA) Volunteer of the Year Award for his work protecting artists' rights (http://bit.ly/Khc7jU), highlighted for me another trap of copyright law that he sees repeatedly in his work for PVLA's artist clients: the intricacies of the “work-made-for-hire” rule. That doctrine affects businesses that hire an independent contractor to create a work, and artists or authors who may have to employ another to assist them. Unless the creator of something specifically assigns rights to someone else, then the person “hired” to create the work owns it ' not the person who paid for it.

Copyright Protection on a Non-Grand Budget

Crowdsourcing

In an era when copying can be costless and flawless, how can rights owners police ubiquitous infringement, in a practical, cost-efficient way?

One answer is easy for those who can afford it: through systematic, relentless prosecution, so that potential infringers know that they cannot get away with it. Consider, for example, the firms licensed to promote many cable and closed circuit sporting events, such as J & J Productions (www.boxingseries.com) and Joe Hand Productions (www.joehandpromotions.com). These firms crowdsource their enforcement, as agents for rights owners, by actively recruiting independent contractors to locate and report infringing activity, typically in a bar.

Other Useful Tricks of the Trade

Smaller firms can also rely on common law remedies, such as passing off. If a court can be convinced that a reasonable observer might confuse the offender's work with that of the rightful owner, then the court can take steps to prevent the infringement. The problem, of course, is that even a clear common law remedies case can be expensive to bring, because it is so fact-specific, and use of the courts is still necessary to force the wrongdoer to honor the court's orders.

Similarly, no work (copyrightable or not) should ever leave the creator's side without the standard copyright legend (e.g., “Copyright 2012 Stanley P. Jaskiewicz, Esquire”), which at least puts third parties on notice of the owner's claim, and sets the stage for further litigation for damages.

Another approach is to secure free skilled help, when it is available, from organizations such as Philadelphia's Volunteer Lawyers for the Arts (www.artsandbusinessphila.org/pvla).

Understand the Issues, Get Copyright Registration

In short, to take full advantage of copyright law, an author (or others) must first understand what:

• Is protected;
• Isn't protected;
• Can be protected;
• Rights the law gives a person seeking copyright; and
• Practical obstacles the artist or other content creator may face when asserting the legal rights to which he or she is entitled.

Armed with that knowledge, a person can develop a business plan based on effectively using her rights under laws that protect copyrights, even while working within the practical limits of those laws.