Attorney Allan B. Gelbard Explains Copyright and how it may affect your business.

Todays guest is attorney at law Allan B. Gelbard Esq. Allan has been practicing copyright cases for about 27 years. Allan explains what copyright means and how it may affect you and your business.

Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression.

Is your your website copyrighted?
Is your home inspection report copyrighted?
Is your youtube channel copyrighted?

Allan B. Gelbard, Esq.

The Law Offices of Allan B. Gelbard
15760 Ventura Blvd., Suite 801
Encino, CA 91436
T:(818)386-9200

Transcript

John Laforme: 0:00

Buying a home. Don't panic. Just listen to the rest of this podcast Welcome to my podcast everybody. My name is John laforme. I'm a certified home inspector and the owner of home inspection authority. My podcast allows me to share my day to day home inspection experiences and knowledge to help homebuyers, homeowners, realtors and other home inspectors set realistic expectations with each other during the home buying process. Right everybody, we're back again. And this time we have Attorney at Law. Allan Gelbard. How you doing Allan?

Allan B. Gelbard: 0:44

I'm doing okay.

John Laforme: 0:47

You did make it and that's half the battle right there. So Alan is, has been an attorney and one of my attorneys for a very long time

Allan B. Gelbard: 0:57

can't be that long. We're not that old.

John Laforme: 0:59

We are old.

Allan B. Gelbard: 1:00

And we are. Yeah, I met you you had hair. And so did I.

John Laforme: 1:05

There's one thing I have to ask you. Before we get started with, you know what we're going to talk about today, which is copyright and trademark and how all that shit works. Because that is confusing for everybody. I'll make it easy, including myself. So the first question I have for you is Has any of the information you're about to share with us been gathered by any type of time travel?

Allan B. Gelbard: 1:25

Well, opinions vary, but probably not.

John Laforme: 1:29

If you don't know what that means. I'll tell you later. Okay. I have to ask that and that was a good reason for it. Alright. So anyway, copyright. Now as a home inspection company owner. There's a lot of other company owners out there listening right now. And when it comes to copyright, are on my website, it says copyright at the bottom. Okay, why is that there?

Allan B. Gelbard: 1:55

Well, a website is work of authorship. It's an audio audio visual work. And it doesn't actually need to say that it's good that it says that. But it doesn't need to say that. When you create artistic works, it copyright exists from the moment of creation once you make a tangible medium. So if you record a piece of music, or if you take a photograph, once you can perceive the thing, it's a copyrightable work of art. Now, if you want to protect it, that's another story. You can't really do anything with it until you register it with the Library of Congress, because copyright is exclusively federal, and your ticket to federal court in a copyright case is a registration certificate.

John Laforme: 2:35

So if you don't register anything trying to fight, it's useless. It's not useless,

Allan B. Gelbard: 2:40

you can sue somebody for copyright infringement. If you register, like if somebody infringes your work, and then you go out and register it, you can sue them, once it registers. The problem is a it takes six to eight months to get a registration. And B, if you don't register it before it's infringed, or within three months of the date of first publication, you have to prove actual damages, which is what you lost, and you don't get attorneys fees. So it's almost never worth going after somebody for copyright in that situation.

John Laforme: 3:06

Got it. So if it's on your website, that's good. But you don't have to have it.

Allan B. Gelbard: 3:11

You don't it doesn't have to have the C symbol. What that helps with is if somebody says, Well, I didn't know you're asserting a copyright claim, it puts people quote on notice that you assert that that's a copyright. Same thing with trademark, you don't have to have the our, you know, in a circle after something, if you consider a trademark, or the TM, you should because again, that puts people on notice that you consider it a trademark.

John Laforme: 3:33

So they can just say, you know, I didn't know, I didn't know.

Allan B. Gelbard: 3:36

It's bogus, but if it's there, the courts will be much more willing to throw that defense out.

John Laforme: 3:41

Oh, gotcha, gotcha. Okay, so the copyright symbol now what about what about like a home inspection report? Is that Is that something necessary on there?

Allan B. Gelbard: 3:49

Well, you can't really copyright a report, you can copyright the format of a report, you can copyright like, if you've got photos on it, you can copyright the photos. But the data that's in a report is just information and that's not copyrightable. Oh, that's good. If there was an old case about somebody tried to copyright a phone book, they teach this in law school. And the courts came back and said, No, no, no, no, no, it's just a bunch of numbers that's not copyrightable. The data is not copyrightable. Now, if you lay it out in a particularly cool way, if there's like a format that you really like, that's copyrightable. A phonebook a phonebook. Yeah, I know. I can't believe I still remember this stuff from law school.

John Laforme: 4:28

Now, obviously, the guy didn't try to copyright the Yellow Pages, just the phone book itself. Yeah, just the phonebook. Just the phone numbers that's funny. All right, so Okay, copyright it's it's still a little hard to get like grasp it is it is hard to grasp because what you what you said was a whole bunch of information. And it's what happens when you have lawyers on I know when you have lawyers, they talk lawyer ish. So it's, it's a little it's still a bit like unclear the way it's written. So I did a little research it and this is what I come up with looking at stuff online, and we're gonna get to more cooler stuff online a little later. So a type of a copyright is a type of intellectual property that protects creative works. Yep. Would you agree? Exactly. copyright protects the expression of an idea? Correct? governed by federal law? Correct? Title 17 of the United States Code, correct. copyright.gov. If you need to file a copyright, yep. So, okay, so for home inspectors, what Allen's telling us now is we don't need to worry about copyright in our report, unless the images, we want to cooperate the images now those were those images have to be mine.

Allan B. Gelbard: 5:40

Well, you can't copyright somebody else's work of authorship.

John Laforme: 5:44

No, I understand that. But I'm what I'm saying is the picture I took at a at a specific property to put in that report, right? Was that considered mine now?

Allan B. Gelbard: 5:53

That's your picture. That's a work of authorship of yours. Now, it's interesting. And this is where some people get into trouble with copyright. If you are, let's say, for example, you personally take the photo, okay, and you're working for your corporation, you own the photo, but because you're working for the corporation, we call that the shots rights doctrine. So the corporation actually owns a photo, right? If you hire an employee, a real employee, okay? The company owns the photo. But if you have an independent contractor do it and they go out and shoot for you. And they do the report, and you submit it, the independent contractor owns the copyright unless you have a work for authorship a work for hire agreement.

John Laforme: 6:33

I remember those. Yes, we're for hire agreements. Yes. Okay, that's interesting. So you guys get knocked out there, I hope. So if you have a if you have a someone else doing your photography, or anything like that, you need to have a agreement between you. And now it's got to be in writing, it's got to be in writing. That's something I push a lot on the show. And that is, everything has to be in writing. But we

Allan B. Gelbard: 6:54

all say oral contracts aren't worth the paper. They're written on exact, which isn't true, actually. But

John Laforme: 7:00

and I gotta be honest with everybody, the reason why that's embedded in my brain is because of Alan Allen's taught me so much about the law over the years, I feel very, very honored. Well, to have accepted all your knowledge, he's

Allan B. Gelbard: 7:17

paid handily for it. Yeah, I

John Laforme: 7:18

have paid for it. It wasn't free.

Allan B. Gelbard: 7:21

I think it worked out if we, if we actually lay it all out, you probably made a profit on

John Laforme: 7:25

it. I think I made some money. But anyway, it's really, really important. And that's the reason why, you know, me. And like I said, Me and Alan go way back. We've been through many copyright and trademark infringement cases. And we've won every one of them. And that is in the 1000s. Right? Yeah. And we? And that's because we had paper in between us and the other party. Yep. Without paper, you're really good at fighting an uphill battle?

Allan B. Gelbard: 7:51

Absolutely. Yeah. The one thing that I tell everybody is, is is much easier for a lawyer to get you out of trouble. I'm sorry, it is easier for a lawyer to keep you out of trouble than to get you out of trouble. If you're planning on some sort of interesting business venture, if you don't understand what you're doing. If you talk to a lawyer first, they can keep you from stepping in the minefield. Right? You don't, it's really expensive to try to fix it later.

John Laforme: 8:13

Right. And if those of you out there, a couple of close friends who just told me this last week that they couldn't afford to get a lawyer, that's nonsense. You can't afford not to have an attorney, look at your look at your business. It just gives you just give you an overview of what to stay away from what to be careful of. And that's that's a, that's a live and learn type situation. And if you're on the opposite end of that, it's sucks. You don't want to be there. It's a really tough one to deal with. It's

Allan B. Gelbard: 8:41

a gut wrenching when somebody comes in and they you know, they've got a legitimate beef, but they didn't do their homework, right? Or they got the wrong paper, or they signed the wrong contract and just have to look at it like oh, look, you know, sorry, but I can't help you. That's really hard.

John Laforme: 8:53

Yeah. So you know, in the home inspection business, every customer I do business with signs a contract before I even leave my house. I don't get there. Oh, yeah, just when you get a minute, just fill this out? No, it's, I don't take any jobs. Nothing's confirmed until I have a contract. And it's all II signed digitally. It's all done like that. So we'll have all that done every single time. And I push that on everybody listening all the time, we were talking about contracts and stuff like that. So that's always going to be how I explain it. And that is paper, paper Paper, you got to have paper in between you and the other person. So explain like a copyright infringement case? How does that happen? How does that work?

Allan B. Gelbard: 9:35

Well, usually, I mean, the ones that I encounter somebody's you know, ripping off a piece of music or ripping off a video or something like that. And what happens is, they find out hey, you know, somebody's selling this video, and it's yours and they're selling it for a quarter of what you sell it for us, and then you do a little investigation and you buy a couple of fake ones, and so you can prove that they're fake. And then you file a copyright infringement case, assuming that you've registered your copyrights and all It's done exclusively in federal court. It is expensive. It is really expensive. Generally, you're looking at a couple of 100 grand to get a case to trial, if you're lucky. The courts are backed up forever. Federal judges are, shall we say little megalomaniacs? I love them. By the way, it's that one thing and megalomaniacs that they really believe that they are the God in their own little courtroom. And they are. So you do things their way. And there's like, you know, it's funny that there's like the Federal Rules of Civil Procedure. And then there's what we call the local rules. So like, the Ninth Circuit has their rules. And then the Central District of California has their rules. And then we call the judge's rules, the local local rules. So the judge may say, I want you to at 1030 in the morning, or I want you to read 11. And you better be there. You know, it's not like state court hearings at 830. To Trundle in at 915. It's going to be okay, it doesn't work that way.

John Laforme: 10:52

So I got a question regarding that you set yet the amount of money it costs to do these types of things. So how does that amount of money come up? Like what what is it specifically that is it just your hours? It

Allan B. Gelbard: 11:03

is? I mean, look, there are filings, the filing fees in federal court are surprisingly small. in state court, you have to file you have to pay for like every motion in federal court, you don't the filing fees are relatively small. The problem is that discovery takes forever. And discovery disputes run up a lot of hours. And you may recall when we were like digging through a certain company's books, yeah, that ran up the clock quite a bit. I mean, you can you can file a suit and get a case filed for a few $1,000. Right, it'll take you 30 or 40,000, to get into their books, and it'll take you another 50,000 to have somebody read them to know what they're reading. That's because they're fighting you every, every inch of the way. And, you know, when you sue somebody for copyright infringement, it only really makes sense. If they have something right, you can get an order to make him stop. But copyright infringement, in fact, by it can actually be criminal. There are ways there are criminal copyright infringement statutes. But if someone's ripping you off, they probably don't have a lot of money anyway. So you're chasing these people around for nothing? You get what we lawyers call a judgment, you can frame you know, yeah, you had a $17 million judgment, good luck collecting it. The guy's got $42 in his bank account. Today, it's crazy. I mean, you go after people and you find out they're like living in their mom's basement.

John Laforme: 12:17

Okay, so let's, I pulled up my computer here, a couple things on here just to refresh my memory, because I tend to forget it, too. So right here is my Apple as my podcast on Apple podcast right here. So is there any type of copyright symbol I need on here,

Allan B. Gelbard: 12:33

you don't need it. Again, you don't have to put a copyright symbol, okay. Back in the world back in the early 1900s, when the copyright code was was changed. For the fourth or fifth time, you actually had to have the C in a circle to put people on notice. That changed in I believe it was the late 50s. We're gonna have to have that on there. But a website is copyrightable. And all the information on it is copyrightable. And this podcast is copyrightable, and all of that stuff is saving is copyrightable.

John Laforme: 13:02

Right? Okay. And then as far as going back to my business itself, once again, you said the report is only the photos just to be clear. So he said only the photos can be copyrighted in the report,

Allan B. Gelbard: 13:14

the format of the report can be copyrighted as well. So for example, you've got your logo up there, you've got stuff down one side, you've got details in there, the information that's in it isn't copyrightable, but the format of the report and the photos on the report can be

John Laforme: 13:28

okay, the format, okay, so the spacing of everything and the, you know, categories and stuff, right? That's what you mean by that. Okay. That's, that's a little confusing.

Allan B. Gelbard: 13:36

Well, the point is, why would you bother? I mean, a report really isn't worth anything. If you do a report on a house. Okay. And someone wants to show that report. That's three or four different people, what do you care? I got paid for the house, right? If someone is go, Hey, that's a really nice picture. I'm going to use that picture on my website. And, you know, maybe people will think I did that house. That's copyright infringement. It's also potentially trademark infringement. But we can get into that later.

John Laforme: 13:59

Right. Okay. Yeah. All right. So that's interesting. So, let's see. So for example, the people who actually created my software now, that's copyright numbers. copyrightable. Yeah, software is copyrightable. But anyway, okay. Good to know. Now, here's something that is very gray area for me, and that is on, you know, the good old thing called Google. We Google stuff every day everyone's doing it. I'm constantly on there looking for better ways to explain stuff to my customers. So I may look for an image with a I like to use illustrations. As for images as opposed to just an actual photo. Illustrations tend to explain stuff better. So what do I have to be careful of?

Allan B. Gelbard: 14:51

Well, you don't want to do an illustration of somebody else's photo. That's technically considered a derivative work and it could be copyright infringement. If you're going to use sort of doing a match to something or do something like something else. That's probably not infringement. And it's probably not going to be close enough to be problematic. But if you like, take a picture and sort of sketch over it. So you're, you're creating something else from the original image, that's still a derivative work. And that be that can be infringement.

John Laforme: 15:18

How does anybody know if an image on Google is copyrighted already?

Allan B. Gelbard: 15:23

Well, you don't really, I mean, somebody could put a C in a circle on something and they haven't registered with Library of Congress. Now, again, copyright exists from the moment of creation, okay, once you can reduce something to a tangible medium that can be observed or perceived copyright exists. So from that perspective, as soon as you take the picture, it's copyrighted. It hasn't registered. But the copyright exists, that whoever took that photo, owns that photo.

John Laforme: 15:51

I say, and

Allan B. Gelbard: 15:54

unless, of course, they're working for somebody else, and all those other Right, right, right. But with

John Laforme: 15:57

with Google having access to so many different people's pictures, and how are they getting those Dino just people uploading? Yeah, they upload them, just uploading stuff. And it just, it just got

Allan B. Gelbard: 16:07

crazy lawsuits against Google in the early days. Where they were infringing music and infringing, you know, videos, movies and stuff. And they've done very well to skate themselves. But generally speaking, other than intellectual property, internet service providers do have immunity. It's section 230, which we're, we're dealing with a lot of that stuff in the Supreme Court right now in the First Amendment vein. But if a website has a copyrighted image on it, that isn't theirs, the website can be sued, because intellectual property is carved out of section 230.

John Laforme: 16:43

I say, okay, so it's a it's kind of like the Wild West. Yep, you want to pull a picture off there, you got to do it with caution?

Allan B. Gelbard: 16:50

Well, a lot of people make that mistake. And I've represented some people that, you know, they wanted to put up an ad. So they went on Google, and they found some picture that they liked, and they stuck an ad on it and put it up on their website, and they got sued. And the only thing you can do in a situation like that is settle, because I mean, well, that's not necessarily the case, you can always find out whether they actually have the picture rights to begin with. We've had a couple of cases where a client of mine was sued for copyright infringement. And that person had registered the work and then licensed it to somebody else. And the licensing agreement gave the other person the exclusive rights, right, which means they're the only people that can sue. So the people that were suing us didn't have the rights to sue on. But in most circumstances, that's not the way it works out. Right. If you're using someone else's photo, you don't, you got to pay him.

John Laforme: 17:35

Now, I forgot to ask at the beginning, how how long have you been doing copyright and 27 years, 27 years. So you know, a few things.

Allan B. Gelbard: 17:42

One, just one were to do. By the way, there are some copyright trolls out there, there are these little companies that will like stuff, stick stuff all over the internet, and then you inadvertently use something and they track it, and then they go out and they sue you and they want you know, 750 or $1,500 for the license for a picture that's like, you know, a stock photo. It's, it doesn't make sense to do that, as a business owner, put yourself at too much risk. And it's a pain in the neck. And the odds of actually getting caught are virtually zero. But you know, if you do get caught, it can get expensive, real fast.

John Laforme: 18:12

And let me ask you this here. So basically, my reports are property of my clients, because the other one that paid me to create it. So everything still applies to what you just said regarding the report. Well,

Allan B. Gelbard: 18:28

that has actually a little bit tricky. If your agreement with your client says they own the report, they own the report, okay? The photograph that you stick on the report is still technically yours unless you transfer it to them. So if your agreement with them says you get everything you own the report, you own all the intellectual property behind the report, bla bla, bla, bla, bla, they own it all. Otherwise, like when you sell, let's say for example, you sell a t shirt, okay, you're selling T shirts, and there's a logo on the front. Now that doesn't that's not copyrightable. If you're using the logo to identify it as a source of goods and services, that's a trademark. If you're using the logo as a decorative thing, then it's a copyright. You can sell copies of the original work and not give away the copyright.

John Laforme: 19:18

My YouTube channel page look at that, pull that up it right here. So is there anything on here that I need to do as far as a copyright or trademark or anything?

Allan B. Gelbard: 19:30

Copyright and Trademark or are vastly different thing Alright, so let's wait on the trademark. They people dumped them into the same bin because they're both intellectual property, but they really couldn't be more different. Is there anything you have to do? Look? What most people did never register their copyrights with the Library of Congress. They just don't do it. They don't realize they should. They don't realize they you know, the benefits to doing so. If you're doing, you know a video a week, it doesn't make sense. Install register every single one individually, it just doesn't, it doesn't make financial sense. What you can do is every two months and three weeks, and there's a reason for that, you don't want to go three months. Every couple of months, you put everything you did together on one DVD and send it all in, you pay one feed, you've got it registered. The reason you want to keep it under three months is if someone infringes on your work, before you register it, you can still get all the statutory penalties and attorneys fees as long as you register it within three months of the date of first publication. So it's really important that you don't put something out there and wait longer than two months and 30, whatever, 30 days, or whatever it is. To register it, you should do it every three months. And a lot of people in the industry now in the entertainment industry in the music business. If they're not registering every single work, they just every three months, they put everything on one disk, and they send it in and they do it that way. So you got one under three months, under three months, under three months, like you said, two months, three weeks. The drawback to that is if somebody infringes a bunch of your stuff, and you've registered them all as one work, you'll only get one set of statutory penalties. But statutory penalties for infringement for willful infringement can be up to$150,000. And like I said, most of the time, you're chasing some guy working in his mom's basement. So 150 is plenty.

John Laforme: 21:25

Right? Okay. Nice.

Allan B. Gelbard: 21:30

And the big hammer, by the way for statutory penalties is you get attorneys fees. So the other guy has to pay your lawyer, because, again, you're gonna blow a couple 100 grand on a lawyer getting to trial in a copyright case. If the other guy doesn't have the money, it's not worth chasing him. True. Does for teaching.

John Laforme: 21:48

Yeah, get paid, do the time and get paid? So as far as I know, we touched on this a little bit already. But as far as the legal steps to prove infringement, I mean, so you said, first of all, get up, get an attorney who knows what he's doing. And you're looking at what a retainer.

Allan B. Gelbard: 22:08

attorneys work different ways. You know, I'm strictly hourly, some are some attorneys take matters on contingency, I would never take a copyright case on a contingency. I think that's nuts. But that's, you know, attorneys do things differently. It's actually a relatively easy thing to prove the only elements of copyright infringement are access and copying. So if they created something exactly like yours, but they've never seen your thing before. That's not infringement. That's just a coincidence. But you got to show that they had access to your original work, and they made something that's so close to it, or exactly the same, that it's copying. Those are the only elements but those who have to prove.

John Laforme: 22:44

Got it. Okay. So anything else you want to add about copyright that maybe not be thinking about? I'm

Allan B. Gelbard: 22:51

not really, it's, it's not a huge issue. I don't think in your industry. trademark is much more valuable in your industry. Copyright is really for artists, for musicians, for filmmakers, for authors, people that are creating artistic works. That's what's there to protect. And that's one of the biggest differences. It's a nice segue between copyright and trademark. Copyright is designed to protect the author. The person that created the artistic work is the one that copyright is there to protect. trademark is not trademark is there to protect the public from being deceived. The added benefit to it is the owner of the trademark gets to sue the other guy for infringing his stuff. But what it's really there to do is to keep people from palming off fake goods on society. Piggybacking Yep. John mentioned it earlier, I'm gonna mention it again, if you're a proper running business, you should have a lawyer on retainer that does what you do, and knows what you do and can keep you out of trouble. Because again, it is much easier and it is much less expensive to keep you out of trouble than to get you on.

John Laforme: 23:59

That's a great, that's a great takeaway right there. And I've been living by that since I met you. So the years are so good. So far, so good, man. So far, so good. Let's just keep on winning cases. Yeah.

Allan B. Gelbard: 24:11

I got a couple more to go and then I'm not gonna lie. I've been doing this a while and I used to joke about my young boys being a retirement plan. And it turns out I was right so