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NventI Timothy McCormack At t o r n e y At L aw

(206) 381-8888 617 Lee Street, Seattle WA 98109


Copyright Cow™…..

With permission from:

Defending the American Dream FOUNDER & PUBLISHER: Timothy B. McCormack CONTRIBUTORS: Timothy McCormack Eric Harrison Lucas Michaels GENERAL REQUESTS: tim@mccormacklegal.com PUBLISHING/ADVERTISEMENTS: tim@mccormacklegal.com

DISCLAIMER: This magazine is not intended to give legal advice and is not a substitute for the same; if the reader has a concern they should contact a knowledgeable attorney.

Also by Timothy McCormack:

FREE PRESS BOOKS TRADE SECRETS AND CO. SEATTLE ● INTERNET ● EARTH

The Copyright Cow Blog focuses on the untold stories of the second largest export of the United States – intellectual property and technology – through the lenses of law, economics (freaky-economics) and society. Intellectual property is comic books, cartoon characters, the “Book of Life” embodied in the Human Genome, medicine, technology, movies, websites, and, for example, the business of producing and distributing milk (a Copyright Cow favorite). The Copyright Cow BLOG is not only for your local dairy farmer / rancher in Washington state. It is also for the CEOs of Microsoft, Boeing and Getty Images. Although Copyright Cow is a great read for any business owner, it is also good for mothers and fathers, teachers and students and anyone who wants to know more about the legal and economic forces shaping 21st century America. The law can decide, who lives and who dies; who eats and who starves. Who gets the latest HIV medication and who does not? Who owns the critical intellectual property that, literally, holds the key to life and death for over 50 million people? What about the economic and social forces that help to shape the law and also result in both prosperity and misfortune? With the help of Copyright Cow, we will all be better prepared to answer these questions, shape a better future and hopefully be a little happier! With your help, the reader, Copyright Cow can continue to help defend the American Dream!


Intellectual Property Questions?

PROTECT WHAT IS YOURS A MEMBER OF:

• Washington, Oregon and Idaho State Bar • Washington Patent Law Association LITIGATION:

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Licensing Advertising Law Internet Law Information Law

Timothy B. McCormack Experienced Intellectual Property Lawyer for Over 11Years

206.381.888 Email: tim@mccormacklegal.com

617 Lee Street, Seattle WA 98109


Copyright Infringement I didn’t Know! 

Copyright infringement can occur willfully or “accidentally, ” but copyright law prohibits both.

One federal court recently held, “there is no need to prove anything about a defendant’s mental state;

Copyright Infringement is a strict liability tort.” A strict liability tort is a legal wrong that does not require a “mental intent.”

Mere unauthorized use of a picture downloaded from the Internet (even from a “free site”) is enough to create liability for a business using the copyrighted work without permission. This is true, regardless of how the infringement came about. Typical copyrighted works that get businesses into trouble include images and text “acquired” from the Internet.

fendant intentionally infringed the copyright in order to create liability because it is a “strict liability” tort [1]. If you copy a picture from the Internet without permission, for example, you can be liable for damages even if you did not know the picture was copyrighted. That is the essence of “strict liability.” Further, if you hire someone (an employee or an independent contractor or a web designer) you are also liable for using a pictures posted to your website by that third party even if you did not know what they did. Said another way, the business displaying the copyrighted work without permission on their website is liable as the end user.

Copyright infringement can occur willfully or “accidentally,” but copyright law prohibits both. One federal court recently held, “there is no need to prove anything about a defendant’s mental state; [copyright infringement] is a strict liability tort.” A strict liability tort is a legal wrong that does not In fact, two or more people can require a “mental intent.” be liable for the same act or acts In other words, a copyright own- of copyright infringement. This is er, does not need to prove a de-

called “joint liability.” If parties have joint liability, then they are each liable up to the full amount of the damages. Courts have found joint liability in such circumstances as a corporation’s president being jointly liable for publication of imagery from a CDRom. Other examples include website owners held liable for a third-party uploading content on their website (owner of website, infringed copyrights by distributing copyrighted photographs, even when website operator did not know that the photographs had been uploaded onto website). If your web designer is liable so are you. Sadly, the party with the deepest pockets is the one that will likely get sued. In most cases that is the business owner that hired the web designer. The damages for this type of infringement can also be quite steep. Under federal law, a copyright owner can be entitled to a $750 to $30,000 per infringement. If it is shown that the infringement is willful the law allows as much as $150,000 per infringement.


If you copy a picture from the Internet without permission, for example, you can be liable for damages even if you did not know the picture was copyrighted.

Recent jury awards have ranged from $675,000.00 to in excess of $1 Million dollars in damages for copyright infringement. One recent jury in Western Washington awarded over one-million dollars in damages for unauthorized use of as few 5 photographs or images. In another recent case a jury awarded $675,000 for infringing as few as 30 copyrighted works. The old adage, “ignorance of the law is never an excuse” applies to copyright law because even if you didn’t know, you might still be liable.

ance.” Ask your insurance agent if you have such coverage or consult a knowledgeable intellectual property or insurance lawyer can help determine if you have such coverage. Above all, do not use copyright content without permission. A good general rule of thumb is, “if you did not take the picture, it is not yours.”

In some cases a standard business liability insurance policy (“slip and fall” policies) will cover copyright infringement claims made against a business. This is called “advertising insur-

Double check your business insurance policies to make sure you are covered for “advertising” injuries because these types of claims can sneak up on you and in many cases you might be completely unaware of latent liabilities. Lastly make sure you have a good contract with any website developer and use only reputable companies. A development company located abroad might seem cheap until you get served with a copyright infringement lawsuit. ■ [1] Educational Testing Service v. Simon, 95 F. Supp. 2d 1081, 1087 (C.D. Cal. 1999) (holding copyright infringement occurred because the

ABOUT COPYRIGHT COW™ Copyright Cow™ is the Blog and alter-ego-Blogger name for Timothy B. McCormack, a well established and successful Seattle-based intellectual property, technology and business lawyer.

This blog provides is not intended to give legal advice and is not a substitute for the same; if the reader has a concern they should contact a knowledgeable attorney.

COPYRIGHT

COW™

DEFENDING

THE

AMERICAN

DREAM!


EXPERIENCED

EXPERI I M A G I N AT I V E

INVENTIVE

NventI Timothy McCormack At t o r n e y At L aw

(206) 381-8888 617 Lee Street, Seattle WA 98109


A MEMBER OF: • Washington, Oregon and Idaho State Bar • Washington State Patent Law Association Registered to practice before the United States Supreme Court, Federal Circuit Court, Ninth Circuit Court of Appeals, and Federal Court for the Western District of Washington 

When it comes to your Intellectual Property

EXPERIENCE MATTERS.

LITIGATION / CIVIL DISPUTES • Federal Court, State Court, Trial and Appeals

INTELLECTUAL PROPERTY:    

Trademarks Copyrights Patent Litigation Trade Secrets

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Licensing Advertising Law Internet Law Information Law

Experienced IP Attorney for Over 11 Years

TimothyTimothy B. McCormack B. McCorAttorney at Law

206-381-8888

206-381-8888

Email: Tim@McCormackLegal.com • Email: tim@mccormacklegal.com 617 Lee Street, Seattle WA 98109

617 Lee Street, Seattle WA 98109


Intellectual Property Questions?

Call Today!

We provide strategic planning, patent and trademark portfolio management / development, domestic and international technology licensing, patent position competitive analysis, technology and collaboration agreements, technology audits, due diligence studies, cease and desist letters, and invalidity / non-infringement opinions. We represent individual inventors, artists, emerging technology companies, and mature multinational corporations in matters relating to the procurement and enforcement of domestic and foreign intellectual property rights. We recognize that each of our clients'’ needs are unique. This, we adhere to an individualized approach whereby the needs of each client are addressed in accordance with their particular business objectives.

McCormack Intellectual Property Law P.S.

206.381.888

www.mccormacklegal.com 617 Lee Street, Seattle WA 98109


The Copyright Cow Volume 1 Issue 2