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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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Is it legal for a former employee who has created a website

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Is it legal for a former employee who has created a website and posting (unauthorized) images of my client projects completed while working as my employee on her website?
Hello and welcome

My Name is XXXXX XXXXX I will provide you information in this regard today

So these are photos of the art work that she is posting?

And how did she get these photos?

Customer: replied 3 years ago.

She used her camera while working for me as an art conservator. She claims that she is "allowed" to do so because the work was "by her hand"


These paintings are all my clients property and they gave no permission for their use

Hello

Thank you. I am going to have this question moved to Intellectual property law so a professional there can give you the true and correct information.

Please do not respond here until this has been moved and a new professional contacts you shortly.

Thank you


Hello,

I am a moderator for the legal categories. We will search for an intellectual property professional to assist you. Please let me know if I can be of any further assistance while you wait.
Customer: replied 3 years ago.

I must use my computer for other business while I wait. I will look for a response in my e-mail Peter Crafts THE GILT COMPLEX


YOU ASK

Is it legal for a former employee who has created a website and posting (unauthorized) images of my client projects completed while working as my employee on her website?


YOU HAVE TRIED

A (respectful) letter to her asking her to remove my clients (restored works of art) from her new website.


FACT SUMMARY

It appears you employed a person (EMPLOYEE) that helped "restore works of art" owned by your clients.


The EMPLOYEE would use her cell phone or other camera to take pictures of such art work after she restored same.


Now EMPLOYEE has created a website and is posting her photographs of your client's restored works of art.


Can EMPLOYEE legally post her photographs of your clients's restored art work?


ANSWER

It depends.

PUBLIC DOMAIN WORKS
If a work of art is in the public domain, then yes, it is legal to photograph such work of art.

Link to chart that helps one determine if a work is in the public domain.

PDF FILE
http://copyright.cornell.edu/resources/docs/copyrightterm.pdf


http://copyright.cornell.edu/resources/publicdomain.cfm


For example, any work older than 1923 that was registered and first published in the US is now in the public domain.


COPYRIGHT PROTECTED WORKS
However, if a work of art is not in the public domain, then the artist or the owner of the copyright (if the copyright rights have been transferred) generally has exclusive right to any reproduction.

Taking a photograph or photocopy of art work is a "reproduction."

Therefore, taking a photograph of a work of art protected by copyright is a violation of such copyright.

What can you do cheaply?

Google "DMCA takedown".

see also
https://nppa.org/page/5617












Customer: replied 3 years ago.

I understand your response, but we are addressing my clients personal property. Since their paintings are their personal property, and no permission was given to either my company or the former employee to put images in the pubic domain, I am not sure how "copyrights" apply. Analogy:


I have very wealthy clients. If my ex-employee were to do restoration of a mural on a bedroom wall (on behalf of my firm) in a clients home, would it be legal for her to put a photo of the restoration her website? I fail to see how putting someones private property (unauthorized) on a website can be legal. Please respond.

YOU STATE

". . . but we are addressing my clients personal property. . . . "

Yes, those facts make related actions worse.

I will give plenty of background information (for your reference) and comment at the end.


COPYRIGHT BACKGROUND

Source of Copyright Rights

17 USC § 106 - Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.


Also note this case: In 1834, the Supreme Court, in Wheaton v. Peters, acknowledged that the author of an unpublished work had a common law right to control the first publication.
Further note that the scope of the “fair use” exception is narrower for unpublished works because an author has the right to control the first public appearance of his or her expression.


Thus, unpublished works enjoy more protections than public works.




Comments about Copyright Act Section 106: General Scope of Copyright.

Section 106 of The Copyright Act gives five fundamental rights to copyright owners --- the exclusive rights of/to:


(1) reproduction,
(2) adaptation,
(3) publication,
(4) performance, and
(5) display.


Rights of Reproduction, Adaptation, and Publication


The above enumerated exclusive rights provided by US copyright law, though closely related, are independent; they can generally be characterized as rights of copying, recording, adaptation, and publishing.


While a single act of infringement may violate all of these rights at once, Infringement takes place when any one of the rights is violated.



Reproduction

Read together with the relevant definitions in section 101, the right “to reproduce the copyrighted work in copies or phonorecords” means the right to produce a material object in which the work is duplicated, transcribed, imitated, or simulated in a fixed form from which it can be “perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”

As under the present law, a copyrighted work would be infringed by reproducing it in whole or in any substantial part, and by duplicating it exactly or by imitation or simulation. Wide departures or variations from the copyrighted work would still be an infringement as long as the author’s “expression” rather than merely the author’s “ideas” are taken. An exception to this general principle, applicable to the reproduction of copyrighted sound recordings, is specified in section 114.


Public Distribution.

Clause (3) of section 106 establishes the exclusive right of publication: The right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.”

Under this provision the copyright owner would have the right to control the first public distribution of an authorized copy or phonorecord of his work, whether by sale, gift, loan, or some rental or lease arrangement. Likewise, any unauthorized public distribution of copies or phonorecords that were unlawfully made would be an infringement. As section 109 makes clear, however, the copyright owner’s rights under section 106 (3) cease with respect to a particular copy or phonorecord once he has parted with ownership of it.


Right of Public Display.

Clause (5) of section 106 represents the first explicit statutory recognition in American copyright law of an exclusive right to show a copyrighted work, or an image of it, to the public.

The corresponding definition of “display” covers any showing of a “copy” of the work, “either directly or by means of a film, slide, television image, or any other device or process.”


Since “copies” are defined as including the material object “in which the work is first fixed,” the right of public display applies to original works of art as well as to reproductions of them.


In addition to the direct showings of a copy of a work, “display” would include the projection of an image on a screen or other surface by any method, the transmission of an image by electronic or other means, and the showing of an image on a cathode ray tube, or similar viewing apparatus connected with any sort of information storage and retrieval system.



ANSWER/COMMENTS


Yes, her actions of photographing the works you describe would likely be a copyright infringement of at least the exclusive right of (1) reproduction, (3) publication, and (5) display (as numbered above).




montysimmons, Patent Prosecutor
Satisfied Customers: 328
Experience: Electrical Engineer, South Carolina Attorney, Member of US Patent Bar
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