Discussion

This analysis is a very fact specific inquiry. Use of a photograph without permission of the subject person or the owner of the subject property, depending upon the specific facts, could result in the following claims (among others) against the person who takes the photograph as well as the person who uses the photograph: (1) violation of the right of publicity; (2) violation of the right of privacy; (3) defamation; and (4) copyright infringement.

Right of Publicity

Ohio has codified the right of publicity in an individual’s persona in R.C. §2741.01 et seq. Pursuant to that statute, a person is prohibited from using any aspect of an individual’s persona for a commercial purpose: (1) during the individual’s lifetime; or (2) for a period of sixty years after the date of the individual’s death. (There are special rules that apply to members of the Ohio National Guard or the armed forces of the United States, including criminal penalties. These are not discussed here). A person may use an individual’s persona for a commercial purpose during the individual’s lifetime if the person first obtains written consent to use the individual’s persona from a person set forth in the Revised Code (basically, persons having a legal interest in the individual’s persona – note that persona is freely transferable or licensable).

The term “persona” is very broadly defined to mean “an individual’s name, voice, signature, photograph, image, likeness, or distinctive appearance, if any of these aspects have commercial value.” The term “commercial purpose” means the use of or reference to an aspect of an individual’s persona in any of the following manners: (1) on or in connection with a place, product, merchandise, goods, services, or other commercial activities; (2) for advertising or soliciting the purchase of products, merchandise, goods, services, or other commercial activities; (3) for the purpose of promoting travel to a place; (4) for purpose of fundraising.

Consent is generally not required in the following instances: (1) in connection with any news, public affairs, sports broadcast or account; and (2) in connection with any political campaign and in compliance with Title XXXV of the Revised Code.

The following activities are excepted from the applicability of the statute:  (1) a literary work, dramatic work, fictional work, historical work, audiovisual work, or musical work regardless of the media in which the work appears or is transmitted, other than an advertisement or commercial announcement; (2) material that has political or newsworthy value; (3) original works of fine art; (4) use of the individual’s name to truthfully identify the individual as an author, contributor, or performer of a work; (5) use in connection with the broadcast or reporting of an event or topic of general or public interest; (6) use solely in the individual’s role as a member of the public if the individual is not named or otherwise singled out as an individual; (7) use by an institution of higher education under specified instances; (8) use protected by the First Amendment to the U.S. Constitution as long as the use does not convey or reasonably suggest endorsement by the individual whose persona is at issue.

Remedies available to the plaintiff include, actual damages; statutory damages of at least $2500 and not more than $10,000 as determined by the jury; punitive or exemplary damages; seizure of profits; reasonable attorney’s fees, court costs and expenses of the civil action; treble damages; injunctive relief; impoundment and destruction of offending items. These remedies are in addition to any other remedies provided by state or federal statute or common law.

Right to Privacy

Ohio recognizes the following invasion of privacy claims:

(1) the unwarranted appropriation or exploitation of one’s personality – one who intentionally intrudes physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person;

(2) the publicizing of one’s private affairs with which the public has no legitimate concern – one who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy, if the matter is of a kind that: (a) would be highly offensive to a reasonable person; and (b) is not of legitimate concern to the public;

(3) misappropriation for an unpermitted use – one who appropriates to his own use or benefit the name or likeness of another is subject to the liability to the other for invasion of privacy.

(4) false light – under the false light theory, it is a tort to give “publicity to a matter concerning another that places the other before the public in a false light … if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”

Defamation

In Ohio, defamation is defined as a false statement published by a defendant acting with the required degree of fault and that injures someone’s reputation or exposes him or her to public ridicule or contempt or shame or disgrace.

Copyright

In the U.S., copyright protection arises automatically when an “original work of authorship” is “fixed in a tangible medium of expression.” In certain circumstances, sculptures, statues, houses, paintings, toys, buildings etc may be protectable by copyright.

Some Tips re Use of Photographs

1.    When in doubt, check with the a competent attorney before using the photograph in question. If you the source of the photograph is not an employee acting within the scope of employment, it is probably copyright infringement if used without permission.

2.    Generally, photographs used in a public place do not need consent as long as you are accurately reporting an event of public or general interest.

3.    Photographs taken in a private place require consent of the subject because of a “reasonable expectation of privacy.”

4.    Avoid any photographs (even if legally obtained in a public place) that unfairly demean or ridicule the subject or that unreasonably intrude into the subject’s private or family life.

5.    It is ok to take and use of a picture of a person, especially as part of a larger crowd. But it may be a good idea to ask for permission if the person will be the main subject of the photo.

6.    Picture of an anonymous street performer or a place where photography is expected is also ok.

7.    Pictures at events open to the public are also generally ok. E.g. basketball games.

8.    Make sure captions and titles to the photographs are truthful and not defamatory or derogatory. If in doubt, anonymize the face i.e. pixellate or crop out the face or take a picture in a way that the person is not personally identifiable.

9.    When in doubt, secure a simple written release from the subject. This is true especially when it involves children. Procuring written permission for the use from the parent will help.

The elements of a cause of action under the corporate opportunities doctrine are: (1) Defendants were officers and/or directors of the corporation; (2) In such capacity, defendant acquired knowledge of an investment or business opportunity; (3) The opportunity was in the line of the corporation’s business; and (4) The opportunity would be advantageous to the corporation and the corporation is able to accept the opportunity.
Officers and directors of a corporation, who acquire information in their fiduciary capacity of a business opportunity in the line of the corporation’s business, cannot appropriate the opportunity for themselves as individuals if the opportunity would be advantageous to the corporation and the corporation is financially able to accept the opportunity.   If a corporate officer or director misappropriates a corporate opportunity for their own gain, a court may require that the opportunity be transferred to the corporation and account for it for their inequitable profits.

Once the plaintiff presents evidence that a corporate opportunity was usurped, the defendant bears the burden of proving that the corporation was unable to take advantage of the corporate opportunity because of the wishes of the customer, financial ability, or other reason.   This burden shift occurs for two reasons.  First, the fiduciary has been involved with both the customer and the corporation and is in a better position to demonstrate why the customer is unwilling to deal with the corporation.  Second, the fiduciary has a primary obligation to use his best efforts to secure the opportunity for the corporation, and he must demonstrate that he has used these efforts before he may usurp the opportunity.

The issue of whether a director misappropriated a corporate opportunity seems to turn on either an issue of timing or an issue of availability.  First, when did the opportunity arise and when did the director first begin to pursue the opportunity.  If either of those things happened before resigning as a director, then a corporate opportunity was usurped.  Second, the director may demonstrate that the opportunity was not available to the corporation because of the client’s wishes, financial ability of the corporation to act on the opportunity, or because the opportunity falls outside of the scope of the corporation’s line of business.

Typical situations in which a “fair use” defense is encountered are:

a)      copying for educational purposes;

b)      quoting from copyrighted sources;

c)      online uploading and downloading;

d)      sampling of music;

e)      parody.

In determining whether something is fair use, courts will looks at a number of factors such as:

a)      The purpose and character of the infringing use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

b)      Is the use “transformative” i.e. has it added some new expressive meaning or is it a blatant copy?

c)      The nature of the copyrighted work;

d)      The amount and substantiality of the portion used in relation to the copyrighted work as a whole;

e)      Is the use consistent with industry practices;

f)        Has the user acted in good faith that the use is fair or has the user knowingly infringed; and

g)      The effect of the use upon the potential market for or value of the copyrighted work

About:  Dr. Rayan F. Coutinho is an Intellectual Property and Technology Law attorney at the law firm of Wood & Lamping LLP and can be reached at 513-852-6030 or by email at rfcoutinho@woodlamping.com.

The General Services Administration (GSA) is a federal agency responsible for oversight of the dot-gov internet domain name. To preserve the integrity of .gov name space, .gov domain names are limited to the United States government organizations at the federal, state and local level.

No private entity can register a .gov domain name. The domain name the community selects  must include the community name and a clear reference to the state in which the communityis located.

Some advantages of registering the .gov domain name are as follows:

(1) .gov conclusively establishes the website as the official website of the Village because no private entity can register .gov as its top level domain name – there can be confusion if two or more entities use the same 2nd level domain name e.g. community.com or community.org or community.net; (2) .gov is usually easier to remember as the official government site; (3) local governments are beginning to develop their websites as places for residents and business to go for government information and services; (4) All .gov Internet domains are registered for a 2-year eligibility period.

Some of the disadvantages of registering the .gov domain names are as follows: (1) The current cost of a .gov domain name is $125 per year, renewable each year with another $125 fee. .com and .org are usually around $30-35 per year; (2) your community will have to update all the business cards, stationery, and other materials bearing the old domain names.

About:  Dr. Rayan F. Coutinho is an Intellectual Property and Technology Law attorney at the law firm of Wood & Lamping LLP and can be reached at 513-852-6030 or by email at rfcoutinho@woodlamping.com.

If you own an establishment and you want to play music, what you need are public performance rights– the right to play music that the general public will hear. Obviously, a business owner would go crazy if he or she had to obtain public performance writes from every artist or label.

Most musicians, composers and publishers join one of three performing rights organizations: (a) American Society of Composers, Authors and Publishers (ASCAP); (b) Broadcast Music, Inc. (BMI); and (c) SESAC, Inc. These organizations grant licensees the right to publicly perform the works of all of their members or affiliates on behalf of whom the organizations collect and distribute royalties for the licenses granted.

Each of these organizations provides a myriad of different licensing options depending on your need. It may be useful to consult with an attorney regarding the license terms.

About:  Dr. Rayan F. Coutinho is an Intellectual Property and Technology Law attorney at the law firm of Wood & Lamping LLP and can be reached at 513-852-6030 or by email at rfcoutinho@woodlamping.com.

Whether or not a particular work is made for hire is determined by the relationship between the parties. In order to determine whether a work is made for hire, one must first ascertain whether the work was prepared by (1) an employee or (2) an independent contractor.

If a work is created by an employee, generally the work would be considered a work made for hire.

If a work is created by an independent contractor, then the work is a specially ordered or commissioned work. Such a work can be a work made for hire only if both of the following conditions are met: (1) it comes within one of the nine categories of works (i.e. contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas) and (2) there is a written agreement between the parties specifying that the work is a work made for hire.

So if you have an employee or independent contractor who is doing work for you that may have copyrightable material, you not only want to state in your agreement that the work is a work-made-for-hire but you want to put in an additional provisions that the employee or independent contractor assigns all right, title and interest over to you.

About:  Dr. Rayan F. Coutinho is an Intellectual Property and Technology Law attorney at the law firm of Wood & Lamping LLP and can be reached at 513-852-6030 or by email at rfcoutinho@woodlamping.com.

a)      The Copyright Act requires, in most instances, that application for copyright registration be made before an action for copyright infringement of a U.S. work can be commenced. So failure to properly register a copyright claim precludes a court from entertaining an infringement action until a registration is obtained.

b)      Registration prior to an act of infringement is generally a prerequisite for the infringement remedies of statutory damages and for attorney’s fees. An exception is where an application for registration is filed within three month’s after publication. This is known as the “safe harbor” for published works.

c)      If a copyright is registered either before publication or within five years after initial publication, the certificate of registration constitutes prima facie evidence of the validity of the copyright and of the facts stated in the certificate.

d)      Registration is also a prerequisite to obtaining the constructive notice benefits that flow from recording transfers of copyright interests.

About:  Dr. Rayan F. Coutinho is an Intellectual Property and Technology Law attorney at the law firm of Wood & Lamping LLP and can be reached at 513-852-6030 or by email at rfcoutinho@woodlamping.com.

Copyright law protects as literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, and graphic works, motion pictures and other audiovisual works, and sound recordings. A copyright owner has several exclusive rights and these include: (a) reproduction, (b) modification, (c) distribution, (d) public performance, and (e) public display. Registration is optional and not required because rights arise automatically when an original work of authorship is fixed in a tangible medium of expression. A registration may be obtained at Copyright Office of the Library of Congress. In general, copyright protection now lasts for seventy years after the author’s death, but under certain circumstances the time is shorter. Some defenses to copyright infringement are: (a) fair use, (b) work is in the public domain, (c) work is factual or an idea.

About:  Dr. Rayan F. Coutinho is an Intellectual Property and Technology Law attorney at the law firm of Wood & Lamping LLP and can be reached at 513-852-6030 or by email at rfcoutinho@woodlamping.com.

There is no law that requires an employer to create, maintain or provide employees with policies pertaining to the use of technology facilities. This requires a delicate balance between the need for employee privacy and employer’s business needs. Every employer must proactively manage employee email, internet use and blogs while at the same time not restricting employee’s freedom of expression and creativity.

Some of the reasons for maintaining and enforcing technology policies are as follows:

Save time. A written policy lets your management spend less time answering the same questions over and over and focus its energy on critical issues like strategic business planning.

Help you introduce a new employee to the organization by providing an overview of the company’s corporate culture and mission.

Documented policies create a sense of fairness and equality. They help avoid accusations of favoritism and help foster employee productivity, loyalty and prevent disputes. Disputes are not taken online to a wider audience.

Written policies may assist in defense against standard employment claims brought by a disgruntled former employee. In the context of litigation, remember that ignorance is not bliss.

Protect your information technology infrastructure from viruses, worms, spyware and malware.

Reduce the possibility of imposition of legal liability on employer for the acts of an employee, e.g. harassment claims due to employees surfing adult websites, downloading of copyrighted material by employees or defamation claims.

My recommendation would be to review such policies and update them frequently as new forms of communication are adopted by the company. Whatever you do, please do not borrow a policy from another company or copy one off the internet without revisions and tailoring to fit your corporate policy and culture.

About:  Dr. Rayan F. Coutinho is an Intellectual Property and Technology Law attorney at the law firm of Wood & Lamping LLP and can be reached at 513-852-6030 or by email at rfcoutinho@woodlamping.com.