Does Your Business Need a Copyright Audit?

A copyright audit evaluates and reports on the status of your business’ copyrightable works of art.  An audit outlines considerations relevant to your ability to secure, protect and enforce your rights and, if desired, provides an appraisal of the dollar value of these rights.

To know if you need a copyright audit, consider:

• Does your business rely on copyrightable works of art (writings, images, drawings, computer programs, photographs) and do you have certificates of copyright registration for these works?
• Does your business use copyrightable works of art for ancillary business activities (marketing, advertising, website images, product descriptions, product manuals) and do you have certificates of copyright registration for these work?
• Does your business use works of art from others and do you have copies of these written authorizations?
• Does your business have the right to enforce the copyright rights you are authorized to use?
• Does your business authorize others to use works of art and do you have copies of these authorizations?

Your answers to these questions will indicate if it is time to contact an IP audit specialist to discuss a copyright audit. If you have had an audit already and  need marketing guidance visit Victorious.

On the Metaphysics of Intellectual Property Law

How many angels can dance on the head of a pin?  What is the meaning of life?  When might Godot finally show up?  Questions like this can elicit many answers, and they won’t be wrong.

Is intellectual property law the same way?  A recent 2-1 decision by the quixotic Ninth U.S. Circuit Court of Appeals so indicates.  In Garcia v. Google, Inc., a Feb. 26 decision, the appeals court reversed the district court’s denial of a preliminary injunction in a copyright case that would have ordered the removal from YouTube of an anti-Muslim film that included a performance by the plaintiff actress.  Chief Judge Alex Kozinski, writing for the majority, found that the plaintiff had a copyright in her own artistic performance, and that the implied license she would normally have been deemed to have granted to the filmmaker was exceeded when he used it for a polemical movie entirely unlike the “action” film that had been described to her.  Judge Randy Smith dissented, applying a strict legal analysis of the appropriate standard of review.

It seems pretty clear on reading these opinions that this was a case, if not of hard facts making bad law, at least of results-oriented reasoning by the majority, a fact not lost on the dissent.  The defendant filmmaker had lied to the plaintiff and misused her performance, and the result had been that she and everyone else associated with the film had been the subject of an Islamic fatwa and received death threats, and the plaintiff had been forced to move and take other security precautions.  It plainly strained Judge Kozinski’s view of common sense that the plaintiff could not be protected.  And although it would be completely unworkable if every actor and actress in a movie owned a copyright that could be used to hold up publication, the majority was careful to say that normally there would be at least an implied license to use the performance in the finished work.  So all of this may be a distinction without a difference.

Nevertheless it serves as a useful reminder to IP practitioners to never lose sight of the equities.  Judges no less than juries want to feel that they have done the right and moral thing.  How many of us have argued for a defendant that there was no proof of speculative damages, yet have the trier of fact come back with a damages award because they did not like the defendant’s conduct?  At the end of the day — and maybe at the beginning — this is a people business.