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montysimmons, Patent Prosecutor
Category: Intellectual Property Law
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Experience:  Electrical Engineer, South Carolina Attorney, Member of US Patent Bar
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Further questions when using photoshop file templates and copyright

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Further questions when using photoshop file templates and copyright and IP rights
If i understand right anything that she might have actually hand drawn is hers. Can at anytime revoke permission to use it even if it was a gift? At the time the files were sent there was no specifics stated about when and how they could be used.

If i understand it right the actual T shirt shape of her files is pattern and not under copyright. If i understand it right anything she used that was an image that she didn't create such as a button, I could infact be infringing on not hers but the actual creator of the "button" if she stole that resource of the internet and did not pay for it or bought it under a license for own personal use not to be resold or given away on its own but must be part of a finished product.

This person is my former partner. My shop is older than hers and much larger. I have my own files. The issue is she now feels that anything I create she can cry "theft" She is breaking all kind of TOS and defaming me. I just want to make sure that I can if need be file a counter if she decides to do what she is threatening to do and file a DCMA. If I understand it right she will have to be able to prove that anyting she claims is the same that she actually did have some kind of creative artistic input into and that it wasnt just put together using "manufactured" details such as a button.
Submitted: 10 months ago.
Category: Intellectual Property Law
Expert:  replied 10 months ago.


YOU STATE

Further questions when using photoshop file templates and copyright and IP rights

If i understand right anything that she might have actually hand drawn is hers. Can at anytime revoke permission to use it even if it was a gift? At the time the files were sent there was no specifics stated about when and how they could be used.

 

ANSWER


A copyright right must be transferred via a written document. Such documents are frequently called assignments.

 

If there was no written assignment and/or no written work for hire agreement, then she still owns the copyrights and can revoke permission to use the copyrighted work whenever she wishes (typically).

However, there is a legal concept called "Joint Works". IF two or more parties work on an artistic work, and they both contribute to the artistic work and they both intend the individual efforts be combined to into one work, then both parties own the copyright in the works.


So if you both worked on the patterns you may both own the copyrights in same.

YOU STATE

If i understand it right the actual T shirt shape of her files is pattern and not under copyright. If i understand it right anything she used that was an image that she didn't create such as a button, I could infact be infringing on not hers but the actual creator of the "button" if she stole that resource off the internet and did not pay for it or bought it under a license for own personal use not to be resold or given away on its own but must be part of a finished product.


ANSWER

Yes, copying the copy of an artistic work MAY amount to copyright infringement of the original, IF, the copy is exact or substantially equivalent to the original.

 

 

YOU STATE

This person is my former partner. My shop is older than hers and much larger. I have my own files. The issue is she now feels that anything I create she can cry "theft" She is breaking all kind of TOS and defaming me.

 

ANSWER

Just consider the "Joint Works" angle described above.



YOU STATE

I just want to make sure that I can if need be file a counter if she decides to do what she is threatening to do and file a DCMA. If I understand it right she will have to be able to prove that anyting she claims is the same that she actually did have some kind of creative artistic input into and that it wasnt just put together using "manufactured" details such as a button.

 

ANSWER

 

While one must have registered a copyright with the copyright office to file a legal suit for copyright infringement, one is not required to have a registered copyright to file a DMCA takedown notice.

 

DCMA : 17 U.S.C. § 512(c)(3)(A)

The DMCA requires that copyright owners provide the following information in a takedown notice:

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 

  • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site

 

  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

 

  • Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

 

  • A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law

 

  • A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. 17 U.S.C. § 512(c)(3)(A) (emphasis added).

Though Congress did not expressly mention the fair use doctrine in the DMCA, the Copyright Act provides explicitly that "the fair use of a copyrighted work . . . is not an infringement of copyright." 17 U.S.C. §107.


Accordingly, in order for a copyright owner to proceed under the DMCA with "a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law," the owner must evaluate whether the material makes fair use of the copyright. 17 U.S.C. § 512(c)(3)(A)(v).

An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA.

So if she files a DMCA takedown notice in bad faith, she would be in violation of Section 512(f) of the DMCA. And failure to consider the "fair use" doctrine could support a bad faith counter claim.

 

 

montysimmons, Patent Prosecutor
Satisfied Customers: 230
Experience: Electrical Engineer, South Carolina Attorney, Member of US Patent Bar
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