Copyright Violation Advice -Reply

[Anthony Lupo <AVLupo@xxxxxxxxxxxx>]

The problem you may have is that the infringement occurred prior to your
registration of the copyright and thus, you will have to prove damages. 
Damages in your case would be the reasonable royalty rate for using the
photograph on an album cover.  If the copyright was registered prior to the
infringement then you would have been entitled to statutory damages in the
amount of $250 to $250,000 per infringement (you would not have had to
prove your damages).

The record company will likely challenge your ownership of the copyright as a
means of negotiating you down on your price.  They may attempt to argue
that you licensed or assigned the band the right to use the photograph.  This
argument is incorrect.  The only way you can assign your copyright is by
means of a written document.

You may have some difficulty striking a deal for the reasonable rate unless
you hire an attorney.  Although not always the case, the record company will
not take you seriously unless you have an attorney.  In addition, an attorney
may be able to argue that the infringement was willful, entitling you to higher
damages.

Call me if you want to discuss this more fully.
Anthony V. Lupo
(202) 857-6353

>>> Ken Schneider <weaselb@xxxxxxxxxx> 10/28/97 10:28pm >>>
Hi all,

Sorry this isn't explicitly related to IR, but it is related to something
that can affect each of us.  I need some advice on what to do when
someone
has been using your copyrighted material without crediting you.  I should
first say that this discussion is probably best taken off-line and that if
you can point me toward other internet resources, I'd greatly appreciate it.

A friend of mine took some pictures several years ago for a band
(Oxygiene-23).  The guy who hired her never paid her (because she was
broke
and couldn't do anything to get the money from him that she was promised).
He ended up using at least one of her pictures as the cover for the band's
CD ("Blue").  My friend is now a business partner of mine and we just got
the paperwork back from copyrighting the pictures from that shoot.  We sent
the record company a notice that they violated the copyright and needed to
contact us immediately.  I also sent them a copy of the copyright.  Short of
getting a lawyer to handle all of this, what sorts of things should I know?
Is anyone aware of how most album covers are handled?  This was not a
"work
for hire", so I'd assume we should get a percentage of sales (does anyone
know where we could find out what the sales were?).  I'd like to settle out
of court if possible, so any advice would be greatly appreciated.  Also,
we're in the USA (as well as the record company).

Thanks,

Ken
- ---------------------------------------------------------------------
Kenneth Schneider (schneider@xxxxxxx)          Phone: (414) 347-1303
Senior Human Factors and Usability Consultant  Pager: (888) 929-5466
Strategic Technology Resources                 
http://www.execpc.com/~weaselb
- ---------------------------------------------------------------------

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