A Lawyer’s Random Musings – 1 Instruction Manuals – 2 USA Sales by non USA Artists

A Lawyer’s Random Musings on Intellectual Property and Other Legal Stuff, Mainly for Visual Artists and Occasionally for Other Creative People.

Free-Photos / Pixabay

Question:  Not sure if this is copyright related but….. If someone were to write instruction manuals for a variety of topics for a specific audience and that person sent them to a second party for editing, clarification, etc and that second party commandeered them for their own use what options would the original author have? 

 Answer:   This might be a copyright question.

Let’s assume this is not a “work for hire,” that it was not created in the course of employment for an employer.

If it is a work for hire, it’s not only your problem, it is also your employer’s problem, because the employer owns the copyright to the manuals, and besides that, prior to release, instruction manuals sometimes contain proprietary technical data.  If the employer’s proprietary technical data was not properly protected, that’s a problem. The employer will most likely need to know that their technical manuals are in the hands of the editor.  Probably it would be best if your employer finds that out from you.  At that point, it would be up to your employer to decide how to handle the situation.

You hold a copyright in your written work the moment it is “fixed in a tangible medium.”  It is copyrighted even if it’s only a draft – every draft you create is copyrighted.  You sent your copyrighted draft manual to an editor (Ed).  With any luck, you were smart enough to discuss the scope of the editing / review work with Ed, and you reached an agreement between you and Ed regarding what he was or was not supposed to do with the manual.  Ideally, the agreement would be written – even an email would be good, but you are not entirely without recourse if the agreement was verbal, or if there was an established pattern of doing business a certain way.

If Ed, instead of limiting himself to only doing the editing / review called for in the agreement, he copied, distributed copies, made derivative works, etc., (and doing that was outside the scope of the agreement), then you might have the option of turning to copyright law for remedies.  Your lawyer should be able to help you with analyzing your copyright infringement options.

If by “commandeering” you mean that Ed took your only copy of the draft manual, and hasn’t given it back, that’s not copyright law, that seems to me to be more along the lines of a bailment agreement.  A bailment is when one person takes possession, but not ownership, of someone else’s property, usually a physical object, with the owner’s authorization.  A bailment is usually for a particular purpose.  You would need to look at what the purpose of the bailment was, and figure out whether or not Ed limited his activities to that purpose.  If the bailment agreement was breached, then you might have contract breach remedies available.  Your lawyer should be able to help you with that.

Often the first step for getting property back is to ask for it to be returned, by a specified date. You should always keep written records of your requests for return, and the responses to the requests.  If the manuals are not returned upon request in accordance with the terms of the bailment agreement, again, your lawyer should be able to help you with finding the best options for getting your manuals back, or suing for damages if the manuals have been lost or destroyed.

You may have other options as well, but I would need to know more about your specific situation to discuss them intelligently, and I would also need to research the law in your jurisdiction.  Please don’t send me more details, your lawyer will not be happy if you send me a bunch of information that ideally should be protected from disclosure under attorney-client privilege.

I wish you well in recovering your instruction manuals.

————————————————————-

Pexels / Pixabay

 Question:   I am not a U.S. citizen, and I have never travelled to the United States, but I sell prints and cards of my paintings online in the United States.  Are my paintings that I sell online protected by U.S. copyright law?

Answer:  Maybe.  While there is no such thing as worldwide universal copyright protection, many countries have treaties with the United States, and of course most, if not all, countries have their own copyright laws.

As a general rule, the extent of U.S. copyright protection depends on:

(a) whether your country has a treaty with the United States (Circular 38a has a list of the countries with which the U.S. has copyright treaties); and

(b) whether you first published the work in the U.S.   If you published the work in the U.S. and in other countries simultaneously, then that counts as “first published” in the U.S., for purposes of U.S. copyright protection.  If you are offering your work for sale, online, in the U.S., then probably that counts as “first published” in the U.S.  I don’t think the law is completely clear on whether offering work for sale online always counts as “publishing,” but I think it is very likely that it does.

If you are in a country that does not have copyright treaties with the U.S., then the “first published” status of your work could matter, and I would recommend talking to a lawyer about what you would need to do to get U.S. copyright protection for your work.

 Foreign nationals can also register their work with the U.S. copyright office, as follows:

“Any work that is protected by U.S. copyright law can be registered. This includes many works of foreign origin. All works that are unpublished, regardless of the nationality of the author, are protected in the United States. Works that are first published in the United States or in a country with which we have a copyright treaty or that are created by a citizen or domiciliary of a country with which we have a copyright treaty are also protected and may therefore be registered with the U.S. Copyright Office. See Circular 38aInternational Copyright Relations of the United States, for the status of specific countries, and Circular 38b, Copyright Restoration Under the URAA

Source:  https://www.copyright.gov/help/faq/faq-who.html#foreigners

 For more free basic information on U.S. intellectual property law, see the following websites:

Copyright:  www.copyright.gov

Patent and Trademark:  www.USPTO.gov

Send in your questions

DISCLAIMER

Disclaimer: This column is intended to provide entertainment, and basic general information about the law. It is not legal advice. No attorney-client relationship exists or is created between the author and the reader or any other parties. This information is not a substitute for legal advice from your attorney. If you think you may need legal advice or if you are engaged in or contemplating litigation, you are encouraged to seek the services of a licensed attorney in your jurisdiction.

The author makes no attempt to protect from public disclosure any attorney-client privileged or other information provided to her. Your attorney may have a more difficult time representing you effectively if you have disclosed attorney-client privileged information, so please don’t be stupid and send to the author information that you don’t want your adversaries to know. All of the ideas, opinions, errors, random thoughts, digressions and everything else she wrote are her own, and are not to be blamed on anyone other than the author.

Copyright Cheryl Emerson Adams, all rights reserved.

For more free basic information on U.S. intellectual property law, see the following websites:
Copyright: Copyright Gov
Patent and Trademark: USPTO Gov

Cheryl Adams

Cheryl Adams

Artist at Cheryl Adams
Cheryl Adams, J.D. Law, is licensed to practice law in Maryland, U.S.A.

She attempts to provide entertainment and basic general information about U.S. law.Enjoy.

To learn more about her: Getting To Know Cheryl Adams
Cheryl Adams

Leave a Reply

avatar
 
 
 
  Subscribe  
Notify of