Month: May 2014

People are still wasting their efforts trying to get this Amazon patent “reversed.” We have serious issues facing our industry, but still this is the crise du jour. It’s not worth any of this attention.

Some reports/articles I’ve read note that somewhere around 80% of patents are held invalid in court. As my very knowledgeable friend noted in my previous post on this topic, this is one that would like be so held. And note that language “held invalid in court”–the way this (and any) patent will get tested is in court. You can’t go to the USPTO and make them take back a patent (not to my knowledge and teeny bit of research I’ve done–but I’m not a patent lawyer). Petitions are useless. It is up to the courts to resolve whether or not the patent is valid.

For a court to hold a patent invalid, first there must be a suit and, usually, the patent holder will sue, which is very unlikely here. It is possible for someone to bring a declaratory action in a patent case. That is where someone tries to get the court to say, for example, “this patent is invalid and Amazon cannot sue for infringement.” This is not as easy as it sounds and would cost a ton to do. In order for someone to bring a declaratory action, though, a plaintiff (photographer) would have to show a real “case or controversy”–not just that s/he might be harmed by the patent but that it was imminent/happening. Pretty much, the photographer would have to show that Amazon was, in fact, about to sue her/him. Again, that would mean Amazon would have to make the first move and that is very unlikely to happen.

So please, stop. Just let this go.

If you are a photographer, you have no doubt seen that Amazon has apparently obtained a patent for a specific methodology for shooting on a white background. Everyone has been up in arms about it but, in spite of my lame patent knowledge, I thought there had to be more going on here. Or, actually, less.  I thought that even if Amazon had the patent, it had to be somehow not enforceable. At the very least, it seemed to me that it would be essentially overwhelming for Amazon to even attempt to litigate against each individual (mostly broke) photographer who uses the same set-up and it wouldn’t be cost-effective unless they only went after large photo-factories, but there really aren’t so many of them anymore so that seemed unlikely too.

Even so, photographers are a worrying lot so I thought I’d try to find out the skinny on the patent. Luckily, I have a friend who is a brilliant patent lawyer so I asked her for her general impression. Here is what she told me (of course, none of this is actual legal advice–just her impression):

If this technology is as old as the article indicates, then the patent is likely invalid. Invalidity and non-infringement are the two primary defenses in almost every patent case. Amazon cannot receive a patent to an old technology. They have to establish something is novel about their invention. They have to conceive the invention. But you can argue it existed in the prior art or was obvious from prior art and thus the patent is invalid.

So, it seems that in the patent world, the first defense is similar to the copyright world: invalidate. And here, even though my friend is not from the photo world, even she can tell that the technology likely pre-existed the patent and so, boom, the patent would likely be found invalid.

In other words, Amazon may hold a patent, but that piece of paper is essentially worthless. Might as well use it to wrap a book for shipping.

Whatever the reality, I’m not going to get in a lather about any of it until or unless Amazon not only attempts to enforce its patent, but succeeds in doing so. We have bigger, much more threatening fish to fry.

As a creative professional, you’re probably married to the details of your work. I’ve seen photographers obsess over a farkle on a thingamabob that no one will notice, except the photographer. That’s good. You should want to make your best work. I only wish you could take some of that energy and apply it to the business side of your business.

Specifically, that attention to detail is very much necessary when it comes to your copyright registrations. Being sloppy in your registrations can really bite you in the ass later… trust me, I’ve seen it. And it’s heartbreaking. One of the first things a defendant or potential defendant in an infringement case will do, if s/he’s got an attorney with half a brain, is try to find an error in the registration. If the registration is broken, boom, case is dead.

Here is a list of some of the common errors you should avoid:

• mixing published and unpublished work
• not providing the date or range of dates of publication for published works
• registering work that has already been registered, because of sloppy record-keeping about what you have/have not registered
• registering work that has already been registered because you made a mistake the first time (in that case contact the Copyright Office and inform them of the error rather than trying to register the work again)
• naming someone (usually a spouse or business partner) as a co-author when s/he did not contribute to the work
• not registering the work as a work made for hire if you shot it as an employee of your own company (and want the registration held by your company)
• for group registrations, not including under the heading Previous or Alternative Titles the words “Group Registration” and the number of photographs, for example Group Registration: Photos; approx. 450 photographs.

Now, for some of those errors, making one won’t likely kill the registration all by itself, but it could and some will. For example, registering published work with unpublished (as “unpublished”) will invalidate the registration for the published work. If you make multiple errors, you could be in big trouble. No one wants to get waist deep in litigation only to have the whole thing blow up because you couldn’t be bothered to pay attention to the details.