Steal A Sidekick? Deal with Copyright Claims.

Added: (Thu Jun 15 2006)

Pressbox (Press Release) - Steal A Sidekick? Deal with Copyright Claims.
The Kling Law Firm tackles the Copyright Issues in the "Stolen Sidekick" Matter


FOR IMMEDIATE PRESS RELEASE:
A 16 year old girl steals your friend's cellphone, takes pictures with it of themselves and others, you get angry and post the pictures on your non commercial website with dozen of daily updates and turn it into one of the most reported on and blogged stories of the net this summer. Your hope is that Internet chatter will pressure the girl to return the cellphone. Sadly, you get no return of the phone but threats of litigation against you from the thieves.

If it sounds interesting, that's what happened this month to Evan Guttman as reported by him on his website in a tale that has placed the U.S. Copyright Act back in the news. Suddenly, copyright law got interesting, all over again, with everyone including Evan on his site www.evanwashere.com/StolenSidekick and messageboard at http://impulse100.net/StolenSidekick/ discussing who owns these pictures of the thieves. With hundreds of thousands of sites referencing this very issue in the last week, even the New York Times reporting on the story and shouting tort, the story has left many guessing on copyright, with Guttman now seeking pro bono attorneys to contact him while he keeps you updated about his conversations with legal referral service attorneys.

Like any great copyright case, the facts in this one are rich with intrigue. Guttman alleges on his website that a teenage girl has possession to a T-Mobile Sidekick, a form of cellphone, that his friend dropped in a taxi. Guttman alleges that the girl and her friends/family took pictures with the Sidekick. Once those pictures were taken they got uploaded automatically to a T-Mobile server of his friend, hence leaving a digital trail back to the alleged culprits. When his friend went to register a new device, Guttman's friend now had physical possession of the digital images. That supposed digital trail enabled Guttman to contact the girl requesting what he called the "stolen" sidekick returned, to which he received a "no" response.

Guttman further alleges on his site that his friend owns the copyrights to the images because they were taken with the friend's Sidekick and digitally transmitted by the photographer(s) to the friend's account with T Mobile.

Is Evan Guttman correct? No.

Under U.S. Copyright law, if I take a Polaroid picture of my friend and then hand them the Polaroid I have not transferred copyright ownership. Why? The U.S. Copyright Act states very clearly under Section 202 that ownership of copyright is distinct from ownership of a material object. "Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object."

In the Guttman matter, the copyright owner of the images is its photographer(s). They are said to be the author of the copyrightable property, the photographs, the owner of the copyright interest, and have the sole and exclusive right to exploit all interests in the photograph which includes the right to depict the image on the Internet.

But the photo was taken with Evan's friend's sidekick? Under the Copyright Act, it doesn't matter. If I walk into your office, steal a pen and paper, and write a ballad for a song that goes to no. 1 on the Billboard charts, you don't own my song because i stole the medium through which I authored the property. The only case in which ownership of the medium - the paper, the pen, the camera or in this case the sidekick, comes into question is in the case of an employer - employee situation where we are asking if the work was for hire.

But Evan's friend has the photo, in his/her T Mobile server account? Doesn't matter. Even if Evan's friend came into possession of the digital file that carries the photograph, possession of that file or even ownership of that file is distinct from ownership of copyright. If after I write that song, I record it, give to my friend and say, "tell me what you think about it," I don't forfeit my interests in giving up possession. Possession doesn't create copyright ownership.

Therefore, the question remains is Guttman's posting of the images on his website rise to copyright infringement? Yes. Guttman has infringed the exclusive rights of the photographer to reproduce the copyright work. Section 106. Only the owner of the copyright interest in the photographs, in this case the photographer(s), has the right to reproduce them on the net.

If the threat of impending litigation against Guttman is true, could an infringement claim be included against Guttman, and what benefit would including such a claim present to the case in total? The answer is one from the strategy books.

Under copyright law Section 504, a copyright owner may recover against an infringer for actual or statutory damages. Actual damages looks to Guttman's gross revenues from the exploitation and any actual damages suffered by the owner as a result of the infringement. Neither factor is present here which leaves only statutory damages as possible.

Under statutory damages here, the photographer would be able to recover a sum of not less than $ 500 or more than $ 20,000 as the court considers just against Guttman, but would only be able to grant if the owner had a registered copyright at the time of the infringement and prior to filing, possible in this case only by virtue of the Copyright Office's expedited services.

As with any great copyright case, the strategy lies in how the complaint is filed with this and state court claims joined in federal court. While $20,000 does not sound to scary to most infringers, many are not aware of a greater hit they could find at the end. The hit is section 505 - attorney's fees and costs.

In copyright infringement cases, the prevailing party - which under case law can include defendants - may, at the court's discretion, recover their attorney's fees and costs. With infringement cases disposed of on summary judgment routinely yielding attorney fee grants of over $50,000, imagine the cost one could bare defending an action, loosing, paying statutory damages, and paying the other's side attorney fees? It's more than the price of a sidekick.

About the Kling Law Firm

The Kling Law Firm is a leading Santa Monica-based boutique entertainment and Internet law firm. As one of the earliest firms on the West Coast to have an Internet presence, the firm has since successfully represented some of Hollywood's leading rights owners against major studios and content providers on copyright, contract, and business matters, and was widely covered for its successful recovery on behalf of a photographer against Andrew Dice Clay and the Venetian Hotel.

The Kling Law Firm is located at www.klinglaw.com and can be reached at klinglaw@email.com.