Sandee Wolfinger
PO Box 414 • Grangeville, Idaho 83530
Phone: 208-983-0289 • Cell: 208-983-8032 • Fax: 208-983-7998
Email: sandee@ad-designplus.com • Website: www.ad-designplus.com

Classwork For Course:
"Issues In Internet Law"

Week One: Chapters 1, 2, 3, and 4
For my assignment I chose to use as my example the Chapter 2 - Copyright Basics Quiz Question
provided on the website for our textbook: "Issues In Internet Law"

Question as follows:

"Silly Sally has written an opera. She neglected to register her work with the copyright office. However, Sally did place "(c) 2008 Silly Sally" on the opera. Sally wrote the opera while she was working at Fred Flintstone's musical instrument repair shop. Fred claims he should be the copyright holder since it was a "work-made-for-hire." The ever-industrious Sally also invented a new type of guitar pick while she was working for Fred. Both Sally and Fred agree that the guitar pick was developed within the scope of Sally's employment. Fred asked Betty Rubble to creat a sales brochure for his business. Betty was not an employee of Fred's but had produced brochures for several local businesses including Slate's Rock and Gravel Co. Betty started work right away after speaking with Fred and she was almost finished a week later when the contract Fred had mailed arrived on her doorstep. Fred wants to know if the brochure is "work-made-for-hire." Betty included in the brochure several photographs of the various types of musical instruments that "Flintstone's Fiddles" repairs. She used photographs from an educational book on musical instruments and believes this to be a "fair use." Betty also added the copyright holder's information below each photograph. Betty also used a photograph of a Stradivarious violin that she found online for the cover of the brochure. Betty told Fred that since the photograph was on the Internet in public, it was O.K. to use it since it was obviously in the public domain, Betty loved the photo of the Stradivarious but Photoshopped the image to distort its appearance; she also changed the violin's color to pink. Henri Cartier-Boulder, who took the photograph, is upset that the integrity of his work has been changed and "ruined." Betty told him to chill because he should be grateful that she had transformed his stuffy old photo into a modern pop art classic."

List the issues involved and probable outcomes.

For this assignment I need to break this example into several different parts. We will begin with first issue in the example above: the opera which Silly Sally wrote.

Part 1: "Silly Sally has written an opera. She neglected to register her work with the copyright office. However, Sally did place "(c) 2008 Silly Sally" on the opera. Sally wrote the opera while she was working at Fred Flintstone's musical instrument repair shop. Fred claims he should be the copyright holder since it was a "work-made-for-hire."

Silly Sally wrote an opera. It isn't clear from this example if Silly Sally and her boss, Fred, had any kind of an agreement (oral or written) that this opera was a work-for-hire. To me it sounds like it is something that Silly Sally wrote on her own. Her boss's business is a musical instrument repair shop, so writing an opera doesn't fall into "the scope of her employment" - it has nothing to do with repairing instruments. So I believe that the probable outcome of this issue would be that Silly Sally has the right to the copyright of the opera and her boss, Fred, will not have any copyright rights to the opera.

This is true, even though she neglected to register her work. However, the copyright mark that she put on her opera is not a correct copyright mark. She should change this marking to: "© copyright 2008 Silly Sally." Because she used an invalid form of the copyright - this could make the outcome of the copyright with her boss, Fred, change and may give him a little boost to make a claim. But I think he will still have to prove that he asked Silly Sally to write her opera as a "work-for-hire."

Part 2: "The ever-industrious Sally also invented a new type of guitar pick while she was working for Fred. Both Sally and Fred agree that the guitar pick was developed within the scope of Sally's employment."

For this part it is very straight forward: Silly Sally and Fred have both agreed (verbally or written) that the invention of the new type of guitar pick is within the scope of Silly Sally's employment so Fred will win the right to the copyright to this item. However, Silly Sally will have the patent rights to the new invention - not her boss, Fred.

Part 3: "Fred asked Betty Rubble to creat a sales brochure for his business. Betty was not an employee of Fred's but had produced brochures for several local businesses including Slate's Rock and Gravel Co. Betty started work right away after speaking with Fred and she was almost finished a week later when the contract Fred had mailed arrived on her doorstep. Fred wants to know if the brochure is "work-made-for-hire.""

This part is more difficult as there is a very large grey area on this issue. From the way this reads, there was no verbal or written agreement that this was a "work-for-hire" project before Betty began work on the project. I believe the outcome of this will be that Fred will have the copyright to the brochure as he clearly hired Betty, who did not work for him, but is an independent contractor, to do the brochure for him. The courts are split on how to handle this if there is no signed paper prior to the start of the project, but I believe they would rule that the copyright is Fred's.

Part 4: "Betty included in the brochure several photographs of the various types of musical instruments that "Flintstone's Fiddles" repairs. She used photographs from an educational book on musical instruments and believes this to be a "fair use." Betty also added the copyright holder's information below each photograph. Betty also used a photograph of a Stradivarious violin that she found online for the cover of the brochure. Betty told Fred that since the photograph was on the Internet in public, it was O.K. to use it since it was obviously in the public domain, Betty loved the photo of the Stradivarious but Photoshopped the image to distort its appearance; she also changed the violin's color to pink. Henri Cartier-Boulder, who took the photograph, is upset that the integrity of his work has been changed and "ruined." Betty told him to chill because he should be grateful that she had transformed his stuffy old photo into a modern pop art classic.""

This last part of the example I used for this paper is a little more challenging and has some complex issues to solve. Betty used several different photos in the brochure she designed - none of which she personally or Fred personally photographed. So the photos were taken by a third party and those photos were used in other publications prior to Betty using them. The photos of the type of instruments that Fred repairs were taken from an educational book. Betty was using these photos as a promotional brochure for Fred's store - not as an educational source. So the "fair use" rule does not apply to these photos. Betty needed to get permission for the use of these photos from either the person who took the photos or the publisher of the book where the photos were printed. This permission needs to be in writing, not just verbal. Even the fact that Betty added the copyright holder's information on each of the photos does not qualify for the "fair use" rule, in fact it just shows that Betty knew she was aware of the copyright laws and broke them anyway.

Betty found a photo of a Stradivarious violin online, which she used on the cover of her brochure. She didn't use the photo in its original state, but photoshopped it, distorting the photo and changing the violin's color. She also told Fred that it was O.K. to use it as it was in the public domain. However, Henri, who took the photo of the Stradivarious, was not happy about Betty using his photo or the fact that she distorted the image from its original state. Just because the photo Henri took was on line does not make it public domain. It is not stated here if Henri has a copyright on his photo, but I am assuming that he has either registered the copyright or has the copright mark placed on the photo. Betty needed to get Henri's permission, in writing, to use his photo and to also distort the photo for her use. By her distortion of the original photo it become a copyright infringement case and Henri would in all probability win the case in court. Betty could find herself being fined a considerable amount of money for the use of this photo without Henri's permission. I am not sure on this last part of my example who is considered the one that broke the laws. Betty was the one doing the work, but it was Fred who contracted the work and who has the copyright to the finished brochure. So I am a little confused on who would be responsible for the fines that could happen on this project.

The reason I chose this example to write my paper on is that it is something that is very related to my work. I am a small business owner that specializes in designing and publishing websites, designing brochures and advertising literature for other business, etc. Copyright laws are something that I need to be much more informed on and need to understand clearly. I am looking forward to learning a lot of helpful and interesting legal issues in this class.

Thank you for taking the time to read and evaluate this paper and I hope that I understood what you were wanting for this assignment and successfully completed it.

Sandee Wolfinger
Ad-DesignPlus.com
Grangeville, Idaho 83530
Email: sandee@ad-designplus.com

© copyright 2011 Sandee Wolfinger, Ad-DesignPlus.com