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Incorrect copyright notice
Posted: Thu Aug 28, 2014 9:07 pm
I'm working with a client whose late mother was quite a well-known artist. She signed a licensing agreement many years ago and I have pointed out to the client (who is now the IP owner) that the copyright notice carried on the licensed products has been attributed to the publisher instead of the artist (including publishing dates, on some products), for over 30 years.
I can't find any case studies online that are similar to this case.
In the agreement, the first clause states that the copyright belongs to the licensor (the artist). I know that copyright is automatic but could anyone advise where we stand on this? Is this, therefore a breach of contract? Or worse?
I don't necessarily believe the publisher is trying to claim ownership of the IP but this could undermine my client's ability to exploit the IP through further licensing deals, as it may cast doubt on the ownership of the IP.
Any help or advice welcome!
Posted: Fri Aug 29, 2014 6:13 am
It may be necessary to distinguish between the original art work and the final product as far as the copyright notice is concerned. For example if the product was a coffee table book of the artist's work, then copyright in the published edition would belong to the publishers, but that wouldn't affect the underlying IP in the artwork itself. Something similar would apply to posters. However the more the product becomes an everyday useful item (say, like table mats), the less copyright there is in the actual product itself, and the more appropriate IP protection for the item lies with design right.
However none of that should in anyway affect the artist's continuing claim to copyright, assuming that the licensing agreement was just that, and not an assignment of copyright. The latter is a formal transfer of ownership. I assume that the agreement acknowledges that the licensor is in fact the creator of the art, and if so this would an important piece of evidence if there was ever to be a dispute over who is the rightful copyright owner.
The nature of the licensing agreement will also affect the future use of the artwork, for instance whether other licences can be issued. If the licensing agreement gave exclusive rights to the publisher, then this would prevent the artist (or her heirs) from exploiting the works for the term of the licence and within any geographical area specified. If the licence was non-exclusive then the artist would be free to issue other licences in parallel to the first. Since I assume the licensing agreement was drawn up by lawyers working for the publishers, I think an exclusive licence is more likely, and so it would be necessary to check the term of the licence before contemplating the issue of new licences. There may well be a reversionary clause in the licence which describes what should happen in the event of the artist's death or some other event such as the publisher ceasing to trade etc.
It would also be useful to see what the agreement says about the moral rights of the artist. These rights include the right to be credited as the author of the work, for the work not to be treated in a derogatory manner and so on. The moral right to be credited needs to be asserted by the artist and the agreement would be the logical place to record this fact. Moral rights cannot be transferred by assignment, although they may be waived. The only way moral rights can transfer is by testamentary disposition (ie a Will) or through the normal legal rules of inheritance in the case of someone who died without leaving a will. If the agreement stated that the artist was to be credited, but this in fact did not occur with the final products, then this omission may amount to a breach of the contract.
Posted: Tue Dec 16, 2014 12:54 pm
Hi Andy. Thanks for reply. Yes I am in UK. I constantly tell ebay about the listings but as they never reply even when using live chat or on the telephone, I never know if they are taking listings down. I have completed one of their vero forms as well. I know I can chase the seller, especially as he has a business address but I am at a loss as to how to get ebay to respond. All they ever do is say that they will deal with the matter but they never tell me what they will do. Ebay listings come and go so I have no idea if ebay are taking them down or they are running their course. I though ebay might deal with the seller if the same seller keeps relisting the same item, but so far that hasn't happened. The law seems a little grey about this because if I understand things correctly, infringing my copyright isn't a criminal offence but a business selling my videos for money is a criminal offence.
Posted: Tue Dec 16, 2014 5:49 pm
I cannot see why you have posted in this thread on an entirely different topic. And you have not made it entirely clear what you are asking.
You refer to 'my videos' but give us no clue what rights you hold in the videos. Only a copyright holder or an exclusive licensee can take any legal action in respect of copyright, and this includes asking eBay to remove allegedly infringing products, so maybe eBay are unconvinced that you own these rights.
In any case, where infringement is alleged, the primary dispute lies with the person selling the disputed items. Since you seem reluctant to tackle the alleged primary infringer, it is hardly surprising eBay are unwilling to potentially damage their relationship with another seller, simply because you don't want to use the remedies available to you. Ebay is guaranteed immunity from liability under the EU eCommerce Directive as long as it has no knowledge that infringing items are being listed. The takedown procedure they operate is actually governed by the American Digital Millennium Copyright Act but the prcedures are very similar to the EU requirements. You have to notify them of each and every separate occurrence and you cannot expect them to protect your intellectual property if you are not prepared to put in the legwork. Ebay is not obliged to act on notifications it feels are either spurious or contain insufficient detail for them to identify the disputed listings.