Reminder. DMCA Agent Designation Deadline Approaching

DO YOU HAVE INTERNET CUSTOMERS WHO UPLOAD CONTENT TO YOUR WEBSITE?

DO YOU WISH SAFE HARBOR FOR COPYRIGHT INFRINGEMENT CLAIMS FOR THOSE UPLOADS?

In some instances, the U.S. Digital Millennium Copyright Act (DMCA) provides a safe harbor for internet service providers (ISPs) against liability for copyright infringement by their users. An ISP meet all statutory requirements.

 

One of the most high-profile requirements for safe harbor is that the ISP must appoint and register a designated agent to receive copyright content complaints.

 

The Copyright Office has instituted a revised registration process for DMCA designated agents. Existing ISPs registered under the old system have until December 31, 2017 to refile (electronically) under the new system. Beginning January 1, 2018, agents registered using the older interim designation procedure will no longer be recognized as registered agents with the U.S. Copyright Office and the ISP will lose any safe harbor protection provided by the DMCA until an agent is registered using the new online registration. If you have not yet registered, you should consider whether you are an ISP and whether users upload content on your website or channel.

 

The U.S. Copyright Office fee is $6 per agent. The registration system can be accessed at https://www.copyright.gov/dmca-directory/ . Additional information from the U.S. Copyright Office and tutorials on the new system are available at https://www.copyright.gov/rulemaking/onlinesp/NPR/ . At this time, after registering an agent using the new online system, that registration must be updated every three (3) years to remain in compliance.

If you wish more detailed information on this issue, please do not hesitate to contact our office.

© 2017, HOLZER PATEL DRENNAN

Co-Authored by Amy Deveraux, Esq. and Judith Keene, Esq.

Designs on Cheerleading Uniforms Protectable by U.S. Copyright Law

Star Athletica, LLC v. Varsity Brands, Inc.

Varsity Brands holds many U.S. Copyright registrations for designs appearing on cheerleading and other uniforms. Varsity sued Star Athletica for copyright infringement when Varsity's designs appeared on Star Athletica's uniforms.

At trial, the court issued a summary judgment stating that no infringement had occurred because designs appearing on cheerleader uniforms could not be conceptually or physically separated from the uniforms and were therefore ineligible for copyright protection. An appeal to the 6th Circuit by Varsity was successful and the summary judgment was reversed. Star Athletica then appealed to the U.S. Supreme Court. Arguments were held on October 31, 2016 and an Order issued March 22, 2017.

The Supreme Court upheld the 6th Circuit's reversal and held that "a feature incorporated into the design of a useful article is eligible for copyright protection under the Copyright Act of 1976 only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic or sculptural work -- either on its own or fixed in some other tangible medium of expression -- if it were imagined separately from the useful article into which it is incorporated; that test is satisfied here."

The Court began its Order with:

"The Copyright Act of 1976 makes “pictorial, graphic, or sculptural features” of the “design of a useful article” eligible for copyright protection as artistic works if those features “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U. S. C. §101."

This case goes to the protectability of industrial designs. Here, the designs consisted of chevrons, zigzags and stripes. The Supreme Court stated:

"Applying the proper test here, the surface decorations on the cheerleading uniforms are separable and therefore eligible for copyright protection. First, the decorations can be identified as features having pictorial, graphic, or sculptural qualities. Second, if those decorations were separated from the uniforms and applied in another medium, they would qualify as two-dimensional works of art under §101. Imaginatively removing the decorations from the uniforms and applying them in another medium also would not replicate the uni- form itself.."

Practical Pointer: 

U.S. Copyright law protects an original work of authorship reduced to a tangible medium. 

This decision appears to indicate that the level of "originality" and "authorship" can be quite modest. For graphic designs appearing on a "useful article" such as clothing, if the designs can be reproduced on paper or other two-dimensional form - separately from the useful article, a claim of copyright can be made.

This article is for informational purposes only and should not be considered legal advice. If you have questions or concerns about your copyright rights, or other legal rights, contact a qualified legal practitioner.

U.S. Digital Millennium Copyright Act electronic registration required

If you provide an Internet website where third parties are able to upload information, including (without limitation) videos, images, audio clips or data or if you provide a search engine, information location tools or directories, you may be considered an Internet service provider. As such, in order to take advantage of the safe harbor provisions of the U.S. Digital Millenium Copyright Act (“DMCA”), you must register with the U.S. Copyright Office. In addition, contact information for your designated agent should be available to the public on your site(s). Through such registration, notice and compliance with the DMCA generally, you may be able to avoid liability should a copyright owner allege infringement through third party postings to your site(s).

Even if you have previously registered through a paper-filing, the U.S. Copyright Office now requires electronic registration. Your paper-filing will suffice until December 31, 2017. If prior registrants do not file an updated electronic application by that date, you will not meet the safe harbor provisions of the Digital Millenium Copyright Act and may be held liable for infringement caused by third parties on your site(s).

The new regulations may be viewed here. Electronic registration can begin here. Should you require any assistance, do not hesitate to contact our office.