Last weekend, something scandalous happened in Washington.  No, not another mistress or another smoking gun email, but rather a memo released by an arm of the Republican Congressional functionaries known as the Republican Study Committee.  "Three Myths about Copyright Law and Where to Start to Fix it" made waves when it came out, boldly proclaiming shorter copyright periods and urging a return to the Constitutional mandate of "promoting science and the useful arts" rather than rewarding authors and creators.

This article in Slate details the timeline.  My favorite part was the woebegone explanation of why Spider-Man and Iron Man can never appear in the same movie.  On Broadway, maybe...?  

Intellectual Property rights of all kinds live in a sort of half-light, half-dark limbo between anti-competitive monopoly and incentive to all to increase innovation and monetize new ideas.  Copyright laws, of late, seem to be trending in the exact opposite direction as public mores on the topic.  If copyrights were shorter (how much shorter?  we don't know), then there might be less money in copyright "trolling."  Or there might be more -- shorter time to profit could lead to more aggressive behavior.  The fact is, we don't know what will happen if we change the laws.  What we do know is that the laws in the US don't match the behavior of our citizens.  In 2009, a woman who allegedly downloaded 24 songs through Kazaa was hit with a $1.5M verdict for copyright infringement.  (It was later reduced to $220,000 -- what a relief?).  Is this justice?  Would the RIAA have made $1.5M or even $220,000 off of the music she "stole"?  

I think we can all agree that the topic is worth further review.  The RSC made a great first step.  Unfortunately the lobby flexed its muscles and set us back.  However, I think it's fair to say that the RSC drew blood.  Now it's up to us to let the lobbyists know what we expect from our lawmakers.  

You may not realize, but even in this global economy, international laws can be very different.  That's why any attorney you engage in the US should retain international counsel for international matters (unless of course the US attorney is licensed abroad).  Tamar Nathan of the UK law firm Fox Williams LLP explains some of Ms. Kirkbride's legal options here.  Writer Will Lyon has further details in the UK Daily Mail. 

For HLR's previous updates on the plight of Nicola Kirkbride, please see start here or check the tag for Kirkbride. 

We have previously detailed the alleged infringement of fashion student Nicola Kirkbride by retail giant Tesco on several occasions to follow up. 

A UK-based law firm's blog has a new update:  Ms. Kirkbride is pursuing legal action against Tesco.  This is significant because it means Tesco didn't immediately settle upon discovery of this "mistake."  Tesco is denying wrongdoing, saying they have "no idea how the mistake happened" and they are "looking into it." 

It's not clear from this blog post whether Kiteley's Solicitors is representing Ms. Kirkbride, but as HLR finds out more information, it will be posted on this blog.  This is a seminal moment for internet copyright, and if Ms. Kirkbride loses, it could mean a sea change in UK copyright protection.  In the internet age, copyright protection is only as good at the weakest countries' protections.  We will closely monitor developments in this case. 

Nicola Kirkbride, the fashion management student in the UK who found her face all over a yellow children's sweatshirt in the megaretailer Tesco, has gone from "flattered" to "shocked and angry."  The shirts have been pulled from the shelves pending an investiation (that means, Tesco is mitigating damages in case it loses a lawsuit) and Kirkbride is in discussions and has legal representation.

Another interesting detail is that Kirkbride, as someone trying to break into the fashion industry as a profession, has previously engaged in negotiations to license other images to other merchandisers.  It seems her initial thrill of being "in pictures" has given way to a more pragmatic attitude.  Stay tuned here for more updates. 

To contrast the story of the fashion student whose image was commandeered by Tesco in the UK, in the United States, a former employee is suing the producer of online game World of Warcraft for using her voice and original composition song without permission or royalty. 

Ms. Lewis was an employee at the time the work was created, whereas Ms. Kirkbride was a stranger to Tesco.  There is always an argument that work related to her job created by Ms. Lewis while she was a salaried employee could be assigned to the employer.  (This is why lawyers are helpful if you find yourself in a pickle like this, even for a consult.)

As far as the employer is concerned, Ms. Lewis created something for her job, and they own it.  This is called a "work made for hire," typically owned by the employer alone.  However, it is not always clear who the copyright holder is.  From Ms. Lewis' perspective, of course, she created something on her own time related to a part of the game that was not her professional purview.  She clearly thinks this is hers alone, and is demanding royalties.

Whether you are an employer or an employee, works made for hire are like quicksand.  In this age of immediate, widespread dissemination of content, you must protect yourself with empoyment or independent contractor agreements that spell out very clearly which creative works are owned by the creator and what are owned by the employer.  This can cut both ways, and is not just a problem for starving artists.  Engineers, computer programmers, singers, and even bookkeepers and consultants need to have clarity before taking on creative projects. 

Robust non-disclosure and non-compete agreements can protect both the employer and the employee.  It's also important to discuss who has the right to create derivative works based on the product of a particular project.  These boring, boilerplate details can become crucial when a product is successful, because they leave a lot of money on the table. 

Don't let this happen to you:  Nicola Kirkbride,  a fashion management student in the UK, blogged about an outfit she was wearing.  She set the timer on her own camera and snapped a picture of herself wearing a daisy-print blouse in her own backyard to use for the blog.  Somehow, a designer employed by Tesco, a FTSE-100 retailer and the 2nd-largest retailer on earth (behind Wal-Mart), found the etheral image and put it, unchanged, on a sweatshirt for kids. 

The article is here. 

It's important to appreciate that the UK has a very different court system than the US, designed to discourage lawsuits or even the "threat" of a lawsuit in demand letters, so it's not unusual that Ms. Kirkbride's first move was something other than suing the pants off of Tesco.  However, it's jarring to realize that her intended profession is "fashion management" and she doesn't appear to think that she's owed compensation for the use of her image.  Even if she's delighted to lend her image and chooses not to exercise her right to forbid Tesco from profiting off of derivative works based on her photo, she is still owed a reasonable royalty.

There are two lessons for us US-based artists and inventors here.  First, keep your eyes peeled.  Ms. Kirkbride was alerted by a fan that her image was on the shirt.  Remember that having a network of people who like and/or want something from you in the industry in which you work can be priceless.  Even your competitors can ultimately be allies, and it's always wise to resist burning bridges where possible.

Second, value yourself.  You are on this blog because you think your ideas are worth "something."  In the event that you are the unfortunate victim of copyright or trademark theft, you may be entitled to a "reasonable royalty," or actual damages.  Actual damages are hard to prove after the fact, but if you are proactive and take excellent records as soon as you are alerted to the infringement, you can increase the royalty owed to you.  For example, perhaps don't encourage your friends to purchase the infringing item because you think it's "cool." 

As HLR follows this case, we will keep you updated as far as we can just how much a stolen image is worth when it becomes wildly popular.  Tesco may end up selling hundreds of thousands of these shirts, not just because they are a global retailer, but now this story has made the shirt a hot commodity.  It may be pulled from the market -- buy now, then sell on eBay!  This snafu might create artificial demand.  And each one of those hundreds of thousands of shirts should generate a royalty for Ms. Kirkbride. 

Stay vigilant!  Running internet searches on your products is the first step in finding potential infringers, but it's also important to cultivate your professional network for intel.