Most producers know that the acquisition of appropriate rights and permissions from performers is a necessary part of the content production process. Many producers are not aware, however, that there are often many other parties that may possess intellectual property rights that may be infringed in the production or exploitation of the content if appropriate licenses and permissions are not acquired from these parties as well. This is unfortunate because a failure to acquire adequate rights to exploit the content can limit the producer’s ability to exploit the content and expose the producer and the producer’s content licensees to the risk of infringement.
Most content producers and persons who license content for commercial use understand that photographs and videos are subject to protection under the copyright laws of the United States and most other countries. Because of this, there is a general understanding that such content usually cannot be used without appropriate permission. I have noted, however, that far fewer content providers and persons commercially exploiting photographs and videos are aware that persons depicted in photographs and videos may have the right to prevent the use of the content for the purposes of advertising or promoting the sale of products or services.
On March 14, 2013, the Ninth Circuit Court of Appeals handed down an important ruling for companies that operate websites that allow users to upload content for display, as well as for content producers whose material is uploaded to such sites without their permission. The case, Universal Music Group (UMG) v. Veoh, focused on the issue of what a company that operates a website containing such user uploaded material must and must not do to obtain the limitations of liability for copyright infringement provided by the “safe harbor” provision of the Digital Millennium Copyright Act (“DMCA”) regarding user-uploaded material that infringes a copyright owner’s copyright in the material.
The elections of 2012 are history. And the day after the results were in you could almost hear a collective sigh of relief from what has become an overly politicized and sharply divided America.
This post-election period cannot be more strikingly unlike its counterpart in 2008. After the last presidential election the nation was positively energized by the historic election of its first African American President and the end of the Bush Administration, despite the fact that it was in middle of the worst financial crisis since the Great Depression. This time around I’d say that the dominant feeling has been something like “glad at least that’s over with”. On November 6th America voted and then it unceremoniously just got up to go to work the next day.
Copyright law gives copyright owners the exclusive right to publish and distribute copies of their works. This means that owners of the copyrights in works such as photographs, videos, music and software are provided with a legal monopoly to exploit their works. But in the United States a copyright owner’s rights are subject to an important limitation that allows others to make use of the owner’s copyrighted works without permission and without any required payment of a fee or royalty. This type of unauthorized, but nevertheless legal, use is allowed under what is known as the “fair use” doctrine. Often just called “fair use”, it is a legal concept that acts as an express limitation of the enforceability of the exclusive rights granted to copyright owners under U.S. copyright law. It effectively allows a person or a company to make limited and reasonable use of another’s copyrighted work without permission as long as the use does not otherwise prejudice the copyright owner’s rights or interfere with the owner’s normal exploitation of the work.
When a company purchases an irrevocable assignment of the copyright in a work, such as a video or photograph, the company can rest assured that it will own the copyright and be able to freely exploit the work as it wishes, indefinitely, right? Wrong, at least under United States law.
On January 1, 1978 a revision of U.S. Copyright Law enacted in 1976 became effective. Among the many changes to the copyright law that resulted was a controversial provision that provides to authors and their statutory heirs an opportunity to recapture ownership of intellectual property that had previously been assigned to a third party.
As the adult entertainment industry has matured and obtained greater general acceptance as a legitimate business, so to have the number of abusive lawsuits against adult entertainment companies and their principals. Where once lawsuits against adult entertainment companies were almost always brought by parties outside the industry, such as by patent trolls, and governmental entities, like the Federal Trade Commission (“FTC”), now actions initiated by one adult entertainment entity against another are commonplace. And the number of both legitimate and abusive lawsuits is increasing. So much so, that I sincerely believe that a typical adult entertainment company faces a much greater threat of abusive litigation today than only a few years ago. Whether by actions brought by the FTC, the Department of Justice, patent trolls, copyright owners, disgruntled employees, or class action plaintiffs, assets owned by adult entertainment companies and their principals are now more at risk due to abusive litigation than ever before. As a result, adult industry entrepreneurs are well counseled to learn about how to better protect their assets from loss due to abusive litigation.