Re: [digital-copyright] FW: Copyright question - lengthy

[Kevin Smith <kevin.l.smith@xxxxxxxx>]

I'm not sure whether he will buy in or not, once the situation is clarified.
Many of his objections are based on the inaccurate language communicated to
him. It might be worth negotiating with on a corrected basis before giving up
on him.

Kevin

Sent from my iPhone

On Apr 2, 2013, at 12:43 PM, "Robert Thomas Hayes Link" <rl@xxxxxxxxxxxxxx>
wrote:

> Kevin:
>
> This is spot on and ready for incorporation in a brief, but misses the
> meat of the matter: The speaker doesn't buy in.
>
> rl
>
>> From: Kevin Smith
>> Sent: Tuesday, April 02, 2013 11:32 AM
>> To: 'Barrera, Ms. Jennifer'; digital-copyright@xxxxxxxxxxxxxx
>> Subject: RE: Copyright question - lengthy
>>
>> I think part of the problem here is miscommunication and inaccurate
>> language.
>>
>> The attorney is correct that he owns a copyright in the material he
>> creates, automatically and from the moment his original expression is
>> fixed in tangible form.  Since copyright has been entirely automatic
>> since 1989, the ACEF language about the event being "copyrighted by
>> ACEF" is inaccurate.
>>
>> ACEF could own the copyright from the moment of creation only if the
>> work was "made for hire," which would require and explicit contract
>> prior to the creation of the work.  I doubt very much that such a
>> contract exists, and the slides, at least, are probably something that
>> the attorney created some time in the past. So there is no question of
>> ACEF "retaining" the copyright; if they really want to own the
>> copyright, they would need to get a signed transfer from the attorney,
>> which he is clearly is not willing to do (and should not be, IMO).
>>
>> What EDGAR 80.34 requires is much less than a transfer of ownership -
>> only a non-exclusive license in the work.  Once it is understood that
>> ACEF acknowledges that the attorney is the copyright holder and will
>> continue to be so, and that ACEF needs only a non-exclusive license in
>> his IP, the negotiations might be smoother.
>>
>> I note that the attorney objects to a film of his presentation being
>> made, which is within his rights.  He is legitimately concerned that a
>> video of his presentation, combined with his slides, could be used to
>> cut him out of future seminars in which he would still be the main
>> (virtual) presenter, but without his consent or any compensation.
>> Again, his ownership of the copyright would probably make this an
>> infringement, but the confused language has left him unclear about his
>> rights.  The ownership issue should be cleared up, and then the scope
>> of a non-exclusive license should be negotiated.  If the license can
>> be narrowed so that only people with a relevant relationship to ACEF
>> can view the materials, and they are not released on the Web or used
>> to create duplicate seminars, he might agree.  But as the language has
>> been presented to him, it is inaccurate and would cause me, as an
>> attorney specializing in copyright who gives frequent presentations
>> and hopes to be able to continue to do so, to object on the same
>> basis.
>>
>> By the way, the fact that a contract is not required in this situation
>> should not prevent one from being used.  Without a contract the
>> copyright will probably remain with the creator (the attorney) and
>> ACEF will not even have a license, so it is their interest to
>> negotiate.
>>
>> Kevin
>>
>> Kevin L. Smith, M.L.S., J.D.
>> Director, Copyright and Scholarly Communication
>> Duke University Libraries
>> P.O. Box 90193
>> Durham, NC  27708
>> 919-668-4451
>> Kevin.l.smith@xxxxxxxx<mailto:Kevin.l.smith@xxxxxxxx>
>
>
> Peace,
>
> --
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