inTelleCTual properTY MisTakes solo MarkeTers Make
Solo & Small Firm Section
Chairs: Matthew Crist – Crist Legal | PA & Gian-Franco Melendez – Law Office of Gian-Franco Melendez, LLC
A
s a solo or small
firm lawyer, you
wear many hats:
attorney, business
owner, salesperson, chief marketing
officer. For lawyers, that marketing
role is fraught with peril — both
ethically and on the intellectual
property front. The ethics of
attorney marketing is a whole
other article, but here are some
of the biggest intellectual property
mistakes solo marketers make.
Mistake #1: Assuming Works
Are Not Copyrighted.
I hear it countless times: “If it’s
on the internet, it’s not copyrighted,
right?” Or worse, “I can use it if
there is no watermark or copyright
notice, right?” Wrong. Copyright
“subsists” from the moment an
“original work of authorship” is
“fixed” in a “tangible medium of
expression.” 17 U.S.C. § 102(a).
This means that once it is out of
someone’s head and perceivable
to the world, an original work
is protected by copyright law,
whether or not it is registered.
While registration has important
advantages, and not every owner
chooses to enforce copyright
protections, don’t assume something
is not protected. Unless you are sure
it was created in or before 1923, it
is probably protected. Moreover,
removing watermarks or other copy
protection controls is a separate
58
google images is noT your friend — find something
that is properly licensed, in the public domain,
or better yet, create your own content.
violation, in addition to damages
for infringement. 17 U.S.C. § 1203.
Google Images is NOT your friend
— find something that is properly
licensed in the public domain, or
better yet, create your own content.
Mistake #2: Assuming You
Own It Because You Paid
for It.
Small businesses generally don’t
have on-staff photographers or
web designers, but many don’t
realize that if they commission
content for their business from
independent contractors, they
don’t necessarily own the resulting
copy right. “Work Made for Hire”
is a term of art that applies only
to employees working within the
scope of their employment, or
certain kinds of works that are
created subject to an express
written agreement. 17 U.S.C.
§ 101. Be sure to have a written
assignment when commissioning
works — else you may not be
able to enforce your ownership,
and you may be subject to
allegations of infringement if
your relationship sours.
I bought a license” or “I made sure
it was Creative Commons,” you
may not be in the clear. Using a
work outside the scope of that
license can still be infringement.
I’ve seen a business snagged for
incorporating a licensed image into
a logo in violation of the license
terms. And another was dinged by
a photographer for not giving the
proper attribution under a Creative
Commons license. Understand the
scope of your license.
Mistake #4:
Not Vetting Outside Work.
If you didn’t know this stuff,
and you are a lawyer, don’t assume
your web designer does, either.
If a contractor makes some of
these mistakes on your website,
you can still be responsible for
infringement. Keep good track
of where content is coming from,
even from third parties, and insist
on getting
copies of
purchased
licenses.
Author:
Dineen
Pashoukos
Wasylik –
DPW Law
Mistake #3: Exceeding the
Scope of a License.
Even if you think “I am good;
MAR - APR 2019
|
HCBA LAWYER