Copyright is a recognition of the ‘creative stamp’ expended by an author in creating a piece of work and provides an automatic, unregistered right of protection which lasts for up to 70 years from the death of the owner. With conventions such as the Berne convention bringing together countries from around the world, copyright afforded in the owner’s home country can often be extended to many global jurisdictions.
Be it music, art or literary works, copyright provides a long-lasting form of protection. Something that is lesser known by the public however is that copyright work is automatically owned by the author (unless they are an employee carrying out the work in the course of their employment in which case it is owned by the employer) and not the individual or company instructing the work to be created. The only way copyright ownership can change hands is through an express assignment. In the absence of such an assignment, the use of the work is likely to be (where authorised) permitted through an express or implied licence. This can often be the cause of disputes especially where the author believes that they had only permitted use of their work for a certain purpose and the benefitting party has other ideas. So, before I move on, please do not forget to agree these issues in writing!
Now that we have discussed the issue of ownership, it is important to note that copyright does not have a ‘finders keepers’ kind of rule. Just because you found an image on the world wide web or because the alleyway next to your house has creative graffiti that you walk past daily, does not mean that you have an automatic right to use it for commercial purposes. What you will find in fact, is that you may well receive a nasty letter for using such imagery without permission. A simple mistake can quickly become very costly in such circumstances.
So, whether you are using a picture for your blog or for your weekly newsletter, please ensure that you have the appropriate rights to use it. However, where you have used such work and have become the recipient of a nasty legal letter, do not give in to every demand that is made. In fact, we find that a majority of the demands that are made are often irrational, excessive and not based on law.
From a legal perspective, the court will often attempt to put the aggrieved party back into a position that they would have been had the infringement not occurred. This may well be a calculation of the license fee that the other party would have charged had the infringing party sought authorisation. So, if you have received a legal letter demanding you pay up, there are various things you should consider which include;
1. Whether the other party is authorised to claim against you;
2. Whether the work benefits from copyright protection;
3. Whether the alleged infringement did indeed occur;
4. Whether the owner of the work ordinarily licences the work; and
5. What the licence fee would be had you have sought permission to use the work.
Armed with this information, you could be in a better position to challenge or negotiate a settlement. Ultimately, it is best to let legal professionals handle these claims, especially if the claim is one that could prove costly.
Here at Briffa we offer a free 30-minute consultation in which we can discuss any questions that you may have and ensure that you are well placed to get things right. Get in touch with firstname.lastname@example.org if you would like to arrange a meeting.
Written by Mohammad Khan, Solicitor.
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