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Klixxx Magazine Archive - Content |
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Public Domain? Are They Insane?
By Josielyn Chase, www.josielynchase.com
My dear friend in New York has been modeling for a
few years now. To protect her privacy in this article, I will call
her "Gina." She's not just another classic beauty. She's a savvy businesswoman
with a keen intellect.
Of course, like all models she features her portfolio online. She
even added some artistic nudes to her gallery. She had the foresight
to register these photos with the U.S. Copyright Office. I think her
guardian angel was watching over her that day.
Last summer we were working together on a three day commercial shoot
in Las Vegas, Nevada. At the end of the third day we decided to have
dinner at a trendy new restaurant that was within walking distance
of our hotel. One of the photographers joined us for the ten-minute
walk past the manmade volcanoes, street vendors hawking their wares,
cramping traffic, street performers in costume... Halfway to our destination
someone thrust something into his hands. We stared, mouths agape,
at the full color flyer from an Escort Agency, featuring photos of
Gina in some filmy lingerie. These were copyrighted photos, stolen
from Gina's Web site, and the rest of the women on this flyer implied
they were prostitutes. So there was Gina's name and face emblazoned
at the top of the list! Clenching her cell phone, Gina dialed the
number from the flyer and silently handed it to the photographer.
In a clear voice he asked for "Gina." They told him that Gina was
not available that week (I wonder why?) but there was another beautiful
girl that they would highly recommend in her place. He thanked them
politely and ended the call. It was the classic bait-and-switch scam.
Gina's photos were the prize bait to lure men into calling their agency,
and once the agency got these prospective clients on the phone, it
gave them a chance to sell (i.e., switch) them something(one) else.
Later in the week she called them, identifying herself and stating
that they did not have the right to use her images for commercial
or lucrative purposes. She also pointed out that featuring her so
prominently on the flyer implied a personal endorsement. She told
them point-blank to stop distributing the flyers, and in the future
to remove her name and photos from their literature. What was their
response? "Photos from the Internet are Public Domain!"
Public Domain? Are they insane?
Fortunately for Gina, the "Internet" and "public domain" are not synonymous.
Any work published on the Internet does not automatically place it
in the public domain, although there are a few exceptions. 1) Material
published by the federal government, 2) the copyright has been abandoned
by the holder, and 3) if the copyright has expired. In these three
instances the material found on the Web may be copied freely.
What is a Copyright?
These basic definitions regarding copyrights are based on the Berne
Union for the Protection of Literary and Artistic Property (Berne
Convention). Copyright is a protection that covers published and unpublished
literary, scientific and artistic works, whatever the form of expression,
provided that such creations are fixed in a tangible or material form.
If you can see it, hear it, and/or touch it -- it may be protected.
If it is a literary work, a play, a song, choreography, a photograph,
painting, an HTML coding or a computer graphic that can be set on
paper, recorded on tape or saved to a hard drive, it may be protected.
Copyright laws grant the creator the exclusive right to reproduce,
distribute, perform or display work publicly.
Because Gina had registered her photos with the U.S. Copyright office,
she was able to sue for statutory damages. The escort company should
have picked on someone less informed. They settled out of court and
now they are out of business. We can only hope they will eventually
aspire to legitimate business practices.
Many professional models own some of their content. They have photographer
associates and friends who take the photos and can transfer ownership
to the model or anyone else, as long as there is a written agreement
to transfer the ownership. But most models, including myself, have
been given permission to use or display images that have been copyrighted
by the photographer. Some photographer's terms may vary; giving permission
for portfolio and marketing purposes only, and not for lucrative purposes
(to be distributed for sale or placed in membership sections where
viewers pay a fee to view). But having permission to use someone else's
material does not make you the rightful owner of that material. I
always include text on the same page where the material on loan is
being used with permission. This notifies the public that someone
else owns the material, so I'm protecting myself as well as the photographer.
If someone downloads photos from my site, it's unlikely I will be
subjected to a claim for misuse or negligence.
Many photographers, musicians, movie and record producers, as well
as some models are members of APIC World-Wide. (www.a-w.org/) APIC
is an acronym for Association for the Protection of Internet Copyright.
Memberships are available to anyone concerned about copyright protection.
Whenever a member finds unauthorized use of their images; the APIC
is notified and a cease and desist is sent out. When they know whose
copyright is being infringed upon, they also inform the photographers,
webmasters, and other models involved. These notices are very helpful.
How can you stop piracy and misuse of your images when you are not
even aware that it's happening to you?
Whenever I need to get out the big guns, I contact Attorney David
Moser, who is a copyright and publicity rights lawyer or renown, and
author of the book Music Copyright For the New Millennium, available
at www.amazon.com. He says, "A lot of people don't register their
photos with the U.S. Copyright Office because of the cost. It's $30
per photo. But what many people don't realize is that you can also
register a large group of photos for only $30. You must register within
three months of publication to be eligible to sue for statutory damages
and attorney fee reimbursement. If you do not register your copyright
(as many do not), then you will only be allowed to sue for actual
damages. You need to prove the actual damages resulting from that
infringement, which is difficult to do and rarely worth the cost of
pursuing. Whereas, suing for statutory damages is easier, and usually
results in no less than $700, and can go as high as $150,000, if there
is proof of willful infringement."
Gina's experience with stolen content was a perfect example to other
professionals, not to underestimate the benefits of registering copyrights.
It could have turned out very differently...
For more information on registering copyrights, visit the U.S. Copyright Office Web site, at www.loc.giv/copyright. Take a moment to view the Copyright Basics FAQ at www.copyright.gov/circs1.html. Entertainment and copyright Attorney David Moser can be reached at: dmoser@copyrightguru.com.
Josielyn's complete biography is available at: www.josielynchase.com
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