HCBA Lawyer Magazine Vol. 29, No. 4 | Page 60

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