Legal Question in Business Law in California
Copyright and Misrepresentation
We are an online publication and all of our writers and staff are volunteers. In the past our entertainment editor (also unpaid) has contacted and performed interviews with celebrities as well as press coverage of events on behalf of our company.
1) He has launched his own publication and is now publishing these works which were conducted and obtained specifically for our company. Does he have the right to do that? Who owns the copyright in this case? Can we block publication?
2) In the last weeks with our company (he has still not resigned) he conducted an interview via company email, using his new company's letterhead but still as our magazine's interview request (clearly stated numerous times in the letter). The request included a cc. to our editor in chief (he never actually sent it to her) and cast the appearance that our publications have a cooperation.
He has never delivered the interview to us, but has instead posted it on his own site.
What are our legal options in this case? It casts a bad reputation on our company, performing interviews with talent and not publishing it. Plus it certainly seems like misrepresentation to us.
Thanks so much in advance for your responses.
4 Answers from Attorneys
Re: Copyright and Misrepresentation
The advice regarding 'unfair competition' is the best, take action on it and the copyright. The threat of litigation and bad publicity should solve your problem. If not, a lawsuit will. Feel free to contact me if serious about protecting the company.
Re: Copyright and Misrepresentation
Because you don't have any contracts, you don't have any of the normal benefits they provide. If you aren't paying this person, then you can't make a good argument that their work is for the original magazine. Get rid of him ASAP and have an attorney give him legal notice regarding future misrepresentations. You could also inform people that he is no longer with your magazine. Get and use a media attorney; I can help you if you wish. We cover TX and CA.
Re: Copyright and Misrepresentation
I must disagree with Mr. Nance. It seems clear from the facts presented that this work was "for hire" and belonged to your publication. Further, your notion that this writer misappropriated your intellectual property finds some support in US v. Carpenter (the Wall Street Journal case).
I would recommend sending a cease & decist letter. I'm sure you can find many online, but try to find one drafted by a lawyer. The best way to go is have a lawyer dig into your case a little more and draft a strong one.
Should this writer fail to remove your content from his site, AND if either (i) you've been deprived of a quantifiable benefit, or (ii) the writer has obtained a quantifiable benefit, then I'd consider bringing suit.
Re: Copyright and Misrepresentation
I'm inclined to agree with Mr. Mayer. The copyright belongs to the author, unless the work was done 'for hire' by an employee, in which case the copyright belongs to the employer. I have not done any research to see whether an unpaid volunteer is an employee for copyright-law purposes, but I wouldn't be at all surprised to find out that he or she is.
You can't sue for copyright infringement under federal law unless the copyright is registered. State law provides less protection, so you might need to copyright the material now, if it hasn't been.
Finally, you probably have pretty good legal claims against this person for unfair competition under California's Business & Professions Code (see sections 17000 et seq.) and possibly there are trade-secret misappropriations or even a breach of contract or fiduciary duty, but all of these possible claims would need to be reviewed by a lawyer with full access to the facts.
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