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Steve C. Vondran

Steve Vondran’s Answers

177 total


  • Who then is the creator?

    Steve’s Answer

    My colleagues are correct. Generally speaking, it is always best to make sure you have something in writing that makes it clear who the owner of the copyrights are. In the past, I have drafted copyright assignment agreements to make sure all the rights are transferred from the creator to the hiring entity. As my colleague noted above, last I checked Fiverr already provides for that, but the reason I like to get it in writing before starting the project is that the artist/creator is 100% clear. You want to be able to register the copyrights and having that document in place will provide you with greater certainty. Best of luck, sounds exciting!

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  • Someone used my copyrighted song in a fitness commercial without my permission. I stumbled upon it online. Can I sue?

    Steve’s Answer

    I recently had a case like this. Potential defendant says he bought an image on Fiverr. However, cannot recall the guys name. If you show someone has made a copy of your copyrighted work, they have the burden to prove their valid license (it sounds like they cannot do that). A valid license means chain of title. Meaning, he is sure 100% that the artist granted him full IP rights. If he cannot show that (and it sounds like he cannot based on your email), then he is still an "infringer" although he might get credit for being an "innocent infringer" (their burden of proof) which would potentially reduce their damages in a Court of law, one court said as low as $200. However, if the image is copyrighted in the U.S. Copyright Office in Washington D.C., you would be able to sue for innocent infringement anyone in the chain of selling your image and contributing to the infringement. In Federal Court (where copyright cases are brought - they are considering a "small claims court" just not approved yet) you can seek your damages and attorney fees. This can help leverage for settlement. Laws may vary so check with a local IP attorney. Best of luck.

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  • How should my husband proceed in allowing a film director to use 6 of my husband’s original songs in a film?

    Steve’s Answer

    My colleagues are right. Without a written agreement, he would have no exclusive rights to demand any action of your husband. However, because oral contracts may be enforceable (to what extent depends on your jurisdiction), it would be EXTREMELY WISE to discuss all aspects of your case with IP counsel. The sooner the better. If they know your husband is represented, they may not be so willing to make demands that on the surface look a bit over the top. As always, all copyrightable content that you care about should be registered with the U.S. Copyright Office in Washington D.C. That is a pre-cursor to filing a federal court lawsuit for infringement and that is not expensive at all. Too many artists do not take this simple step which provides many advantages in negotiating agreements, and resolving disputes if they arise. That registered copyright is key! Good luck

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  • Is a still infringement if I voluntarily removed copyrighted material I posted to a website, without the owner demanding it?

    Steve’s Answer

    If you post someone else's content on the internet, you are making a copy and publicly displaying the creative work (this infringes on the exclusive rights of a copyright holder). If the owner does not see you doing this, it is like the question of whether or not a falling tree makes sound if no one is around to see it or hear it. Infringement is infringement. If the rights holder calls you out, (and assuming no defenses exist such as a "fair use" defense, abandonment, etc.), then it can still be deemed an infringement. Whether that infringement is "innocent" (less damages), or "willful" (for registered works can bring 30-150k in damages, PLUS attorney fees) is where the fight usually goes. Immediate takedown is something that can help mitigate (rather than absolve) you of damages.

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  • (Need immediate answer)Can I take a picture from a movie & post it on internet ?

    Steve’s Answer

    I always tell my clients not to mess with the big music and film production companies. If they don't like what you are doing (their perception of "fair use" is usually not the same as ours), you can end up receiving a cease and desist letter or have your project taken down with a DMCA letter. Now, if you are completely transforming the work into something new, technically you may have a fair use argument, but like I said, fair use is like shooting at the king - you better not miss!! I would have your case reviewed by a fair use law firm.

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  • Can we use 2-3 seconds from many different movies on youtube and edit them into my video?

    Steve’s Answer

    This is a tricky question I get quite often.

    1. If you are using OLD CLIPS (like video clips from the 1900's let's say), these clips can be in the "public domain" and generally these can be used without permission or consent. The main reason is the copyright has expired.

    2. If you are taking video, audio or photo clips and "transforming" them into something new or "repurposing" them as some copyright lawyers like to say then this would qualify as a fair use.

    3. If you are using only short clips (as you mentioned) only 2-3 seconds, this COULD be deemed a fair use. However, as my colleague pointed out, "fair use" is an affirmative defense and if sued by a big music company, artist or video or film production company (companies that take their copyrights very serious) you have the burden to raise the defense and prove it applies. If FAIR USE applies then there is no copyright infringement and there was no need to get consent. However, it can be COSTLY to try to defend your position in federal court.

    NOTE: Short clip usage for purposes of comment, criticism and scholarship, for example, may be deemed more likely to be seen as a fair use. But make sure you go through the FOUR FACTOR TEST for fair use as to each piece you are using BEFORE you take all the time to put together your masterpiece video. There is nothing worse than doing all that work to create a viral video only to get a DMCA "take down" notice which could lead to a Youtube Strike (three Strikes and you could lose your channel and followers). NOT FUN.

    Parody can also be a good way to achieve a fair use.

    Finally, sometimes it can be good to put a "fair use disclaimer" at the beginning of your video to let people know your consider your use to be a fair use. Copyright holders should consider this possibility BEFORE issuing a take down notice or trying to monetize your videos.

    Best of luck - and I hate to say it, but if you are serious about building your channel and distributing your video, you may need to discuss with a California Fair Use Lawyer.

    Steve Vondran, Esq.

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  • Is it illegal to watch, but not download, a film on Youtube if you are not aware of its copyright status?

    Steve’s Answer

    That is the whole point of people posting videos on Youtube - they want people to watch them so they can grow their channels. I have never heard of anyone being held liable in a civil or criminal court for merely watching a video (unless perhaps it is deemed obscene or violates some other criminal law - keep in mind jurisdictions and even countries can differ on their laws so it is best to check with internet counsel in your area of you are unsure). As my colleagues point out, if there is some other type of restriction that you "agree to" or something along those lines, then it could be a different story but I have never heard of "watching" something online being illegal.

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  • Can I use a poem sent in a personal email as source material to adapt to a film (the author is deceased)?

    Steve’s Answer

    The poem was likely subject to copyright if it was a "creative work of authorship fixed in a tangible medium of expression" which is sounds like it was. The question is who owns the copyrights to the poems? Were they ever registered with the United States Copyright Office? It would be important to know if someone has the rights to these poems (copyright protection provide the copyright holder with the right to make derivative works (i.e. a film). So I would want to know if the rights were ever registered or assigned before doing anything. You would not want to make an amazing movie then have someone seek your profits for infringing their copyrights. If it were me, I would do a little research to see if anyone claims the rights. If you cannot find anyone with rights, it might be prudent to seek to secure an insurance policy for intellectual property infringement. So I agree with other counsel, there are more questions to be asked as part of the due diligence process. Copyrights last even after the author dies, so this is a very important question. Good luck.

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  • How do I handle a notice of copyright infringement for a picture I used in a blog?

    Steve’s Answer

    Hi,

    First thing I usually do is use the Federal Pacer court search to see if the party that sent you the copyright infringement notice actually files lawsuits or tends to just serve legal demand letters and see what they can talk people into paying, Masterfile has filed this type of lawsuit in the past (Check Pacer, I saw one filed as recently as 2017), so for me, I would have to take the threat of litigation serious (but this may depend on whether you have a job, assets, etc.).

    In my experience handling these matters, the copyright rights holder may check you out on LinkedIn to see if you have a job, and what type of job you have. If you are a "vice president" for example, this may incentivize them to try to bully you into a settlement and turn the litigation threat on high. So that is the first thing I look for.

    From there, if you decide you do not want to risk being sued (as my colleagues have aptly pointed out), then you might want to engage them in a settlement discussion. However, this may be something you want a lawyer to handle for you, again, if this is affordable and makes sense. For example, you would not want to pay a lawyer 2k to try to settle the case if this money could be used to settle the case for 2k. So you should discuss pros and cons with a copyright attorney.

    If you are engaging in settlement talks, usually you want to start low and negotiate slowly, and there is an art form to this. If you are lucky, they would offer a low settlement, and possibly allow you to pay by credit card, and may also allow you to make payments. It depends on the rights holder.

    In some cases I have found rights holders willing to review financial hardships, and they might take into account military experience or other compelling arguments.

    As my colleagues noted, find out if the work at issue is actually copyrighted or not. Sometimes you will find they are not. At any rate, this too can be a factor in lowering the settlement amount as pointed out.

    If you can settle, you want to make sure you get a good copyright release agreement that allows you to settle the case, usually with a confidentiality clause, and other clauses that are usually negotiable. Again, this is where a good IP lawyer can assist you with reviewing the final contract and making sure the case gets closed.

    Anyway, these are just some general tips to consider. Sometimes people ignore the demand letters and after a few follow up calls or letters (sometimes emails and text messages) these folks MAY go away. In other cases they hound you like a debt collection company. So results can vary.

    Best of luck to you! Great question.

    - Attorney Steve -

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  • Our website company has restricted the number of pges on our website from 700 down to 30 pges with out notice. what can be done

    Steve’s Answer

    Well some things i would consider doing:

    1. Look at the contract you signed, do they have the right to do this? if not, could be a breach of contract. in that event, seek legal counsel to determine whether the case is worth pursuing

    2. As my colleague pointed out, you can call them and see if they will "grandfather" you in, meaning allow you to be an exception to the rule.

    3. If you are not happy, sometimes voicing honest, legitimate discontent (be careful not to engage in defamation) on social media websites such as yelp, or better business bureau for example can sometimes prompt someone from the company to call you and try to make accommodations.

    Hopefully you have been backing up all your pages, so if there is no recourse at least you have your digital content saved. Best of luck, hate to hear stories like that. - Attorney Steve -

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