Re: Moderator

[Bill Westwood <westwood@xxxxxxxxxxx>]

Mr. Upchurch,

I'm a little unclear regarding your initial question about  "a source which
declared
that subscribers to a newslist/discussion group automatically acquire a
copyright to the messages they post". Under the US Constitution, you own the
copyright to any written works that you create. You are granted copyright to
your "work" from the moment it is created in a tangible form.  Your e-mail
is copyrighted and your copyright can only be transferred in writing through
a document signed by you and the party you're transferring the copyright to.

All that said, if you sued for copyright infringement and won, you would
probably not get damages. Suing over an ordinary message would almost surely
get no damages, because the message has no commercial value. Further,
because your work wasn't (I assume) registered before the infringement, you
would not be eligible for attorney's statutory damages or attorney's fees.
But again, consult an attorney.

Mr. Zielinski's excellent comments would not apply if you are a US citizen.
VARA, the Visual Artists Rights Act, is the US version of moral rights
protection.  Unfortunately, it applies only to works of non-commercial
visual art (i.e. fine art) and is further limited to "works of recognized
stature".  

If you live in a country with a more liberal interpretation and true belief
in the concept of moral rights for creator's work, I would suggest seeing an
attorney for advice.  As one who's had extensive (and not always pleasant)
involvement with attorneys and copyright infringement situations, I would
recommend that you do this as soon as possible.

In the US, I would think that your best course of action would be through a
defamation claim.  Although you might also discuss with a US attorney the
possibility of pursuing an "unfair competition" claim under the Lanham Act .
Under Lanham, if someone attempts to pass off an author's work as his/her
own, or conversely tries to pass off his/her own work as the author's, that
person may be guilty of unfair competition.  Lanham, unlike VARA, can
possibly extend some rights of integrity to more "commercial" (in the eyes
of the courts) works.  However, recent court decisions have indicated that
the courts only want Lanham to apply to "products".

I am not an attorney, and offer the above as food for thought.  I would
really suggest that you seek legal counsel sooner rather than later.  There
are statutes of limitation which apply to these things too.

Good luck.

Bill  Westwood

-- 
William B. Westwood, M.S.
Board Certified Medical Illustrator
Westwood Medical Communications
915 Broadway
Albany, NY  12207

p(518) 432-5237
f(518) 432-7106

For Great Medical Art, There's WESTWOOD and There's The Rest









on 4/25/05 11:30 AM, Zielinski, Christopher at zielinskic@xxxxxxx wrote:

> Mr Upchurch,
> 
> You do not say where you are, and national jurisdiction may matter in
> this case. What you are describing sounds like a flagrant breach of your
> Berne-Convention sanctioned moral rights. Berne says, in Article 6 bis
> (http://www.law.cornell.edu/treaties/berne/6bis.html): "(1)
> Independently of the author's economic rights, and even after the
> transfer of the said rights, the author shall have the right to claim
> authorship of the work and to object to any distortion, mutilation or
> other modification of, or other derogatory action in relation to, the
> said work, which would be prejudicial to his honour or reputation." In
> national legislations that fully implement Berne, the moral rights of
> "paternity", integrity and misrepresentation are vouchsafed.
> Unfortunately, in the US, despite its finally being a signatory of
> Berne, moral rights were not formally incorporated in the DCMA, as they
> were deemed to be covered by existing case law. In the UK, moral rights
> are treated as waivable, although the creator has to formally waive them
> (done routinely in contracts by some categories of writer, such as
> script writers and occasionally academics) and those writing for hire.
> In droit d'auteur countries, moral rights are immanent and unwaivable.
> 
> For international uses (such as cross posting of e-mail), it is worth
> noting that the WIPO Copyright Treaty
> (http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html) aligns
> itself with Berne: "(2) Nothing in this Treaty shall derogate from
> existing obligations that Contracting Parties have to each other under
> the Berne Convention for the Protection of Literary and Artistic Works."
> That must be taken to include moral rights.
> 
> Hope this is of some use.
> 
> Chris Zielinski
> Consultant
> 
> 
> -----Original Message-----
> From: Socspace@xxxxxxx [mailto:Socspace@xxxxxxx]
> Sent: 24 April 2005 18:33
> To: digital-copyright@xxxxxxxxxxxxxx
> Subject: Moderator
> 
> Dear Sir or Madam:
> 
> Was the appended post deemed inapproriate, or has some error
> occurred?
> 
> I thank you in advance for your response -- whatever it may be.
> 
> Harley Upchurch
> 
> _________________________________
> 
> Esteemed all:
> 
> Should the following request for help be an inappropriate use of the
> Digital-Copyright mailing list, I most sincerely apologize.  Howevever,
> that I'm submitting it at all is a measure of my
> frustration/desperation.
> Without getting very far into the whys and wherefores, here is the
> relevant history.
> 
> Somewhere on the web I came across a source which declared
> that subscribers to a newslist/discussion group automatically
> acquire a copyright to the messages they post.  Thus, for SOMEONE
> ELSE to crosspost one of MY messages to another newslist, without
> my permission, would not only be contrary to netiquette, but a
> violation of my copyright  -- technically speaking.  However, the
> practice has become so common, that trying to kick up a legal fuss
> about it would ORDINARILY be rather silly.
> .
> However, 1) were the crossposting PURPORTED to be an accurate
> representation of my original message,  but 2) in ACTUALITY a
> (demonstrably deliberate) distortion thereof, and 3) designed to expose
> me to ridicule 3) I might indeed have cause for legal action.
> 
> I know I must have saved the source somewhere, but (disgracefully)
> can not find it.  Nor have I been able to rediscover it on the web.
> 
> BTW, reason suggests (or at least, so it seems to me) that the
> violation at issue would increase in severity could it to be shown that
> 'twas but one element in a larger pattern of of harassment and
> defamation, for which legal action was already being contemplated.
> And, guess what? Such happens to be the case. Surprise, surprise :-)
> 
> Thus, I would be very, very grateful were one of you able to refer me to
> an authoratative source which makes the points discussed in my
> second and third paragraphs above.
> 
> Simply your opinion on the subject would also be quite welcome.
> But -- should you proffer one -- please say whether or not I could
> feel free to quote it WITH ATTRIBUTION.
> 
> Thanking any respondents in advance, I am
> 
> Harley Upchurch (who is clearly a "newbie" on this list