Formerly, the seal’s use was governed by a variety of financial and administrative restrictions including a written agreement. The FBI’s update now allows the seal to be downloaded for free from their website. Under the new regulation, the Anti-Piracy Warning Seal is available for use by all copyright holders who meet specific conditions. Unlike the original APW Seal program, which restricted the Seal’s use to five associations, the new regulation will enhance the Seal’s availability. The new regulation includes the following conditions:
The APW seal is authorized for use on copyrighted works including films, audio recordings, electronic media, software, books, photographs, etc.
The APW Seal shall only be used on copyrighted works subject to U.S. Criminal Code protection, including 18 U.S.C. Sections 2319, 2319 (A), & 2319(B)
The APW Seal must be accompanied by the Authorized Warning Language included in the regulation, or alternate language authorized by the Director of the FBI in writing.
No additional communication or information may be represented as approved by the FBI.
The APW Seal must be obtained from the FBI’s official website: http://www.fbi.gov
The APW Seal may only be altered in black and white or grayscale. Any other animation or alteration is prohibited.
Copyright holders who use the APW Seal are encouraged to use copyright protection or anti-piracy measures.
The APW Seal may not be used in any manner that suggests FBI approval, authorization or endorsement of any information other than the authorized warning language.
The APW Seal may not be used on any illegal work including infringing material, child pornography, or obscenity.
Any unauthorized use or use that violates the regulation’s conditions may be punishable under 18 U.S.C. Sections 701, 709, or other applicable law.
These new conditions protect the use of the seal and allow it to be used more broadly. Instead of being used only by the previous five industry associations, the APW Seal can now be used by any copyright holder. Since the copyright itself does not even need to be registered, the APW Seal can now protect a wider variety of copyrighted works, including smaller, independent copyright holders. This widespread grant informs the public about criminal penalties and the FBI’s involvement.
Despite some criticism, the majority of feedback to the regulation was positive. Some comments urged the FBI to take a more comprehensive approach, but the FBI pointed out that the APW Seal is only a small part of their larger efforts to curb and punish copyright infringement. The new regulation should help a variety of copyright holders; for example, independent films and sports broadcasts will both benefit from the ease of using the APW Seal to discourage piracy and inform the public. The FBI took into account all comments on the proposed regulation and addressed any concerns expressed.
Some of these comments criticized the regulation as continuing the FBI’s current weak and ineffective APW Seal use. Broader use, they argue, will only serve to further dilute the Seal and will not prevent any infringement. The FBI disagreed, however, and they argue that the regulation was created after a large volume of requests from individual copyright holders. Rather than weaken the APW Seal, the broader grant for use should promote the FBI’s goal of preventing piracy and informing the public about its criminal nature. Additional comments expressed concern that the APW Seal program will dilute the seal generally, but the FBI believes the benefits will outweigh any such risks. The FBI also points out that the APW Seal is protected from misuse by criminal statutes.
This article is not intended as legal advice. If you are a copyright holder and would like to use the FBI’s APW Seal, contact an attorney to ensure you comply with the new regulation’s conditions. While the FBI would like to see the Seal used by all copyright holders, unauthorized use is punishable by law. Stone Law, P.C. is available to guide you through the process of using the APW Seal.
On July 3, the Library Copyright Alliance filed an amicus brief with the Supreme Court as a result of their decision to review the Second Circuit’s decision in John Wiley & Sons v. Kirtsaeng. The decision interpreted the first-sale doctrine, which allows legal owners to resell, lend, or dispose of copyrighted works after purchase, to apply only to works manufactured in the United States. As a result, foreign manufacturers have greater control over their products under U.S. law. Many organizations like libraries and museums have submitted amicus briefs urging the Supreme Court to reject this interpretation since they depend on the first-sale doctrine to operate.
In December 2010, the Supreme Court faced a similar issue in Costco Wholesale Corp. v. Omega. In that case, the Supreme Court held that the first-sale doctrine only applied to U.S. manufactured works. The unwritten ruling was based on a 4-4 split by the court. Justice Elena Kagan did not take part, since she was involved in the issue as the Solicitor General. When Kirtsaeng reaches the Supreme Court next year, however, she could be the deciding vote that finally determines the issue.
In the Kirtsaeng case, the Second Circuit upheld a jury award of statutory damages to John Wiley & Sons, after Supap Kirtsaeng sold foreign copies of their books on eBay. Kirtsaeng’s family and friends mailed him books purchased abroad, which he sold on eBay to U.S. customers. Relying heavily on the Supreme Court’s Costco ruling, the Second Circuit ruled that the first-sale doctrine did not apply since the books were manufactured abroad and that Kirtsaeng could be held liable.
While the outcome of the case certainly has important implications for public services like libraries and museums, many companies or businesses that deal in foreign-made goods, including CostCo Wholesale Corp. and the National Association of Chain Drug Stores, have also submitted briefs to the court urging them to overturn the decision. The Supreme Court’s decision has a great impact on the lawful, yet unofficial, sale and trade of goods. Also known as the gray market, these unofficial sales are a $63 billion industry. The court’s decision could cripple the industry’s ability to avoid liability for a variety of unauthorized transactions by the owners of legal copies. Much like the Library Copyright Alliance, these businesses could be exposed to litigation due to extra rights afforded to foreign manufacturers under the Second Circuit’s decision.
The libraries maintain that the decision effectively outlaws the way they operate by taking away their ability to lend any foreign books. It does not make sense, they argue, for the law to differentiate between owners’ rights merely based on the location their legitimate copies were produced. Under the Second Circuit’s interpretation, the law would also reward and incentivize sending publishing or production to other countries. The libraries believe Congress would never have intended this kind of reward for outsourcing.
According to a press release by the American Library Association, U.S. libraries currently contain over 200 million books from foreign publishers that would be in jeopardy if the decision is upheld. Even more books from U.S. publishers may have been printed elsewhere, and libraries would be in danger of copyright liability if they lent out any books that did not indicate they were printed in the U.S. While it’s unlikely that copyright holders would bring claims, the libraries do not want to engage in unlawful conduct just because the chances of getting caught are low.
The libraries would like the Supreme Court to overturn the decision and find that the “lawfully made” language in Section 109 of the Copyright Act applies to all works protected under it, but that would protect Kirtsaeng from liability under the first-sale doctrine. If the court chose not to accept this approach, the libraries urge them to adopt the Denbicare exception. The Denbicare exception, from a 1996 Ninth Circuit case, allows parties to assert a first-sale defense if foreign copies are authorized for domestic sale. This interpretation would likely result in liability for Kirtsaeng since he was not authorized to sell the books in question by John Wiley & Sons.
The answer to the questions “Who owns my copyright?” and “Who holds the copyright to a work I created?” are far more complex than you might think. Copyrights are created when an original work becomes fixed in a tangible form, but sometimes it can be unclear who holds a given copyright. Usually, the person who generates the work is the copyright holder, but one exception to this rule is works made for hire or under a commission. If a work is created for hire, then it is the employer, be it a corporation or an individual, who holds the copyright rather than the employed creator. Under copyright law, work for hire generally includes:
Work created within the scope of employment OR
Work created under order or commission, including a variety of collaborative or collective works, if there is an express, written agreement between the parties.
Copyright law also includes a variety of case law beyond merely the statutory language, and Stone Law can help you determine whether your work falls under the “for hire” exception. The statutory definition is not suitable to all situations, and yours may be unique. Whether you are an employee or an employer, Stone Law can help you gain control of your work or draft an agreement for copyright licensing or copyrighted work for hire.
Just because you’ve paid to have a work created does not mean you hold the work’s copyright. No matter what you believe a contract says, if you have not consulted a skilled attorney, your copyright may be in jeopardy. A mere mutual agreement that a work is for hire is often not enough. As a result, you may only have an implied license to the work, and the creator may hold the copyright. In order to avoid this, you can have an attorney draft a suitable agreement between the parties. Alternatively, if you are creating work for others, an attorney can help you draft an agreement that will maintain your copyright while granting a license to another party. If you are looking to avoid being categorized as a work for hire, a skilled attorney can help determine if your agreement is binding. Some common mistakes can weaken or destroy a copyright agreement; for example, if your agreement was signed after the work began, it may not be valid. If you believe you may have a claim to a copyright created under employment, Stone Law is available to advocate for you in a copyright dispute, whether you are an employer or an employee.
Copyrights do not automatically transfer in every case if you are working for someone else. In the statute, the term employee differs from the common understanding. In CCNV v. Reid, 490 U.S. 730 (1989), the Supreme Court analyzed the employer-employee relationship under several factors, including:
The type of control an employer has over a work, including both physical and creative control
The type of control an employer has over an employee
The type of employer in question
These factors alone are not determinative, and the law is unclear which factors are required for an employer-employee relationship to result in works for hire.
If work is commissioned to an independent contractor, a written agreement is required and the work must fall under one of the statutory categories. If an independent contractor’s work does not fall within one of the nine categories in the statute, the work is not for hire and the contractor holds the copyright. What kinds of work by independent contractors are considered for hire? The nine categories covered by the statute include:
Contributions to a collaborative work
Parts of an audiovisual work (films, video games, etc.)
Translations
Supplemental works
Compilations
Instructional texts
Tests
Answer materials for tests
Atlases
Additionally, an independent contractor’s work must be specially commissioned and the parties must have a written agreement specifying expressly that the work is for hire. Given all these requirements, it is difficult to create an adequate written agreement for copyrights of for hire work, and skilled counsel can help you determine if you are bound by a given agreement. While standard, salaried employment is usually considered work for hire, your situation may be different. Consulting with an attorney, like the experienced copyright attorneys at Stone Law, can safeguard your interests as either an employer or an employee. Who holds the copyright to a given work depends on the circumstances, and it can be difficult to protect your rights without the help of an attorney. Contact us for copyright services including drafting for hire agreements.
If a work does not qualify as being for hire, then certain rights may still be granted to the hiring party. These granted rights can vary and may or may not be exclusive. Licenses can vary and cover a variety of situations and factors. If you want a license to cover a specific circumstance, you should consult an attorney. Stone Law can help you draft an express license to limit the rights granted for a given work.
If you are an employer under a for hire agreement, you may have special concerns, including certain obligations to your employee. You may be obligated to provide benefits or unemployment compensation to someone you hire to create a copyrighted work. Alternatively, if the creator you hired holds the copyright to a work, they may be able to revoke a license given to you even if you paid for it. It is also important to remember that the other party to your agreement may infringe on copyrighted material without your knowledge and expose you to litigation. An attorney can help you limit your risks when drafting an agreement for commissioned works tailored to your needs. Consulting with an attorney can be valuable to protect yourself and determine what rights and obligations you have under a given agreement.
This page is not intended as legal advice, and if you have a legal question, you should consult an attorney. Stone Law’s attorneys are available to help; contact us through this website or call us at 732-444-6303.
In 1998, Congress passed the Digital Millennium Copyright Act, which includes a variety of provisions to address intellectual property concerns including things like digital material and the Internet. In addition, the DMCA updated U.S. law to implement two World Intellectual Property Organization treaties from 1996. The DMCA strengthens penalties for digital piracy, including criminal penalties for tampering with anti-piracy measures in software. The manufacture of software or devices to circumvent copyright protection measures is also prohibited. There are several exceptions to these penalties, including law enforcement, libraries, and educational institutions, as well as a temporary exception for copying data while repairing your computer. Although it includes these new penalties, Title 1 of the DMCA specifies that there are no changes to the existing copyright infringement rights, remedies, or defenses. The DMCA also exempts foreign copyright holders from the U.S. law that requires copyrights to be registered with the U.S. Copyright Office before an infringement lawsuit can be filed. Stone Law can help you navigate the DMCA’s technological provisions and penalties and protect your rights.
The DMCA makes a special provision for internet service providers that absolves them of copyright infringement liability provided they follow specified guidelines. ISPs can avoid liability if they follow the Act’s guidelines. One requirement is that ISPs block access to any infringing material after they receive notice of an infringement claim from a copyright holder. Additionally, ISPs are required to implement a policy for terminating repeat infringers. ISPs can neither benefit directly from infringement nor have knowledge that would make infringement apparent. Once they are notified of infringing material, ISPs must remove the offending material promptly. If they comply with the DMCA, ISPs are immune from monetary damages, but may be ordered by a court to take action, including blocking infringing content. Not only do ISPs benefit by avoiding liability, but also the notification system allows them to rely on others to determine whether material is infringing. It can be unclear whether material infringes on a copyright, and the DMCA allows ISPs to avoid making that complex decision. Copyright holders are also given the right to subpoena ISPs for the identification of copyright infringers. If you believe your copyright has been infringed upon by someone, Stone Law’s experienced intellectual property attorneys can help you subpoena the necessary records to determine the best way to protect your rights.
While copyright holders can benefit from the DMCA, there are several requirements for the notice they give to ISPs to be adequate. If you believe that information online infringes on your copyright, Stone Law can help you draft and send notification to have it removed. A copyright holder’s notification to an ISP must include:
– A signature of an authorized agent of the copyright holder
– Identification of the copyrighted work(s)
– Information on the infringing materials or activity and how the ISP can locate it.
– Contact information for the party alleging infringement
– A good faith statement that the material is not authorized by the copyright holder, an agent, or the law.
– A statement that the information in the notification is accurate and the party filing it is authorized to do so under penalty of perjury.
Adequate notice is required before an ISP can take action to remove infringing content. It can be difficult to compile the notice required before an ISP can remove infringing content. In order to ensure that removal is not delayed, Stone Law can help you prepare and send adequate notice to an ISP.
If you believe your content has been unnecessarily taken down by an ISP, you can file a counter-notice, stating a good faith belief the material should not have been taken down. Stone Law can help you prepare an adequate counter-notice and navigate any following lawsuit.
The DMCA is part of the body of digital copyright law that is still developing, and, as a result, the rights and remedies available to you can be confusing. Contact us for help if you have concerns about your rights as a copyright holder or if you believe your content has been mistakenly removed.