Legal Question in Intellectual Property in California

Re: DMCA and Modeling/Pornography

When the US adopted the Berne Convention in 1989, the law was amended for copyrights to apply whenever an original work of authorship is fixed in tangible form. Thus, it is true that a home video automatically has a copyright when it is recorded. However, registration is still required before the court system can be used to protect those copyrights. Registration before an infringement occurs can also affect the type of damages awarded. Furthermore marking the work with an appropriate copyright notice can also affect the damages awarded. The existence of a copyright in your video does not neccessarily cut-off other rights in the material taken. Thus, if I took a snap shot of your video, I would own the copyright in the photo. You would still own the copyright in the video shown in the photo. Thus the photo - derived from two works of authorship- would be subject to two copyrights. Both the photographer and the videographer would need to agree before the photo could be published or even probably developed. In additon other rights other than copyright law may limit what can be done with a video such as right of publicity, etc.

With regard to the use of the phrase "common law" copyright, note that common law copyright was superceded by the codification of the Copyright Laws under Federal Statute long before the DMCA.

Regards,

Don

Re: DMCA and Modeling/Pornography

You are confusing two legal concepts: On the one hand, ownership of property; and on the other, the limitations on your right to use that property.

For example, if you own a gun, you cannot use it to hunt deer out of season or to shoot people. If you own an automobile, you must observe the speed limit.

Similarly, if you own the copyright to some intellectual property, that ownership allows you to exercise some dominion over the property, including preventing others from profiting from it without paying you a royalty.

Owning intellectual property does not, however, authorize you to use that property to defeat someone else's rights, such as the right to privacy. Another protected right is the right of commercial exploitation of one's likeness. Even if you aren't a celebrity, you have the right to prevent another from using your photo for profit.

So, a newspaper can publish photos of any newsworthy event, because public policy says this is important, but you can't use Joe Schmoe's picture to promote anything in ads or posters without Joe's OK, copyright or not.