Legal Question in Intellectual Property in New York

Can a single person file a DMCA on non-commercial digital work that is used in a collaborate project, or is it protected under Fair Use?

We are a group of people working on a non-commercial non-profit project. One of our (now previous) members had contributed to this project, but has after leaving the project filed a DMCA. 1) Does he have copyright to his material just from the fact that he made it? 2) Can he file a DMCA despite initially agreeing to have his work included? 3) Does the use of his material count as Fair Use, because the project mixes his material with several other free domain materials?

Thanks!


Asked on 1/19/12, 7:16 am

1 Answer from Attorneys
Nancy Delain Delain Law Office, PLLC

Responding to your questions in order:

1. The author of a work holds copyright from the moment that work is affixed in a tangible medium.

2. I can't answer this question without more specific information: did your ex-member agree in writing to have his work included, or is this a verbal agreement?

3. Fair use is the grayest of all gray areas of copyright law. It is set forth in the law at 17 USC 107 (see http://www.gpo.gov/fdsys/pkg/USCODE-2009-title17/html/USCODE-2009-title17-chap1-sec107.htm ). It's certainly one of many defenses you would assert if you are the defendant in copyright litigation. Whether you would prevail, though, is a decision the judge in the case makes and it depends on information that I clearly don't have.

If your ex-member is suing you under DMCA, you NEED to hire an attorney if you haven't yet done so. I handle copyright litigation regularly; feel free to call my office at 518-371-4599 to set up a consultation.

THIS POST CONTAINS GENERAL INFORMATION AND IS INTENDED FOR ENTERTAINMENT PURPOSES ONLY. IT DOES NOT CONSTITUTE LEGAL ADVICE, NOR DOES IT CREATE ANY ATTORNEY-CLIENT RELATIONSHIP. FOR LEGAL ADVICE ON YOUR PARTICULAR MATTER, CONSULT YOUR ATTORNEY.

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Answered on 1/31/12, 9:46 am


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