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Copyright Infringement Redux

Don't wait for Washington, act now.

By Eva-Marie Boyd (November 1, 2004)

(Note: Eva-Marie has been a practicing attorney for approximately 15 years. During that time she has been President of the Orange County Barristers, President of her law school alumni association, served on the Orange County Bar Association Board of Directors for seven years and as chair of the Orange County Bar Association Legal Referral Committee for three years. She was a panel attorney for California Lawyer for the Arts and has lectured for that organization on copyright issues.)

Q. What can a small business owner do to halt the spread of copyright infringement?

A. Unfortunately, with the increased use of the Internet � not very much, but there are some steps the can be taken to put the "infringer" on notice.

The easy access to the Internet is both a bane and a blessing. There are documents anyone can obtain without a fee or danger of an infringement lawsuit such as from the government and various legal associations. However, we know that there a multitudes of images, documents etc., on the Net that are not free but people are helping themselves anyway.

Infringement is not limited to the Internet, of course. CLN sent me a link to a consumer scrapbook message board devoted to the discussion of a lady who was taking a class in a scrapbook store and the teacher was using a particular manufacturer's paper. The instructor had not purchased the paper; instead she had made photocopied the paper for the students to use. The student complained and was amazed at the apathy among the teacher and students that this usage was potential infringement.

The Los Angeles Times Oct. 12 edition included, "With piracy and copyright infringement now among the nation's most intractable and costly crimes, a Justice Department task force has concluded that the federal government must vastly expand its investigation and prosecutorial efforts. The task force stated, 'Theft of intellectual property at all levels ranging from solo operators to international crime rings are costing U. S. businesses an estimated $250 billion a year.'"

A recent "Mr. Boffo" cartoon showed a jail call in which one prisoner says to another, "It is amazing how many things you can do with Photoshop that are illegal."

But don't hold your breath. Nothing will come along soon that will actually help the small business owner. This is only a recommendation from a task force. No legislation has been enacted and the entertainment industry is standing first in line for protection.

If legislation is eventually enacted, most of the prosecutors assigned to the intellectual property units would come from the Justice Department in Washington and "would make the enforcement theft a priority rivaling federal efforts to combat drug smuggling."

This all comes down to the fact that we are currently left with the traditional way to combat infringement:

First, make sure the item is indeed sufficiently creative to merit protection. I cannot stress enough the need to actually copyright your work. Yes, it is true that "technically" your work is yours from the moment you create it. However, the powers that be might disagree that this particular work is copyrightable. Also, it is necessary to have obtained an official copyright before you can bring suit against anyone for infringement.

I will revisit this issue and other ways to protect yourself in my next column. In the meantime, go spend the little time and money it take to protect your work or find out if it is protect-able.

(Note: Have any questions regarding copyrights, trademarks, or other business-related legal issues? Your name will not be used. Mail, fax, or email your questions to Eva-Marie Boyd, 1160 Catalina St., Laguna Beach, CA 92651 fax: 949-497-3148; email lawddaw@aol.com. To read previous Legal Q. & A. columns, click on the titles in the right-hand column.)

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