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Dear Rich: An Intellectual Property Blog (75 unread)

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February 01, 2021
3:06
Can We Use Apes Clip in Surf Video?
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Dear Rich: We are filming a travel series with a professional surfer highlighting important cultural and historic locations. One location is the beach where the ending for Planet of the Apes was filmed (the scene with the Statue of Liberty). We filmed the surfer re-enacting Charlton Heston beating the sand as was done in the original film. We'd like to use 20-30 seconds from Planet of the Apes. Can we claim fair use? We think you have a good basis for claiming fair use because you're commenting on the film. Your purpose is transformative -- that is, you're using the clip to highlight the location, not as part of a narrative about anthropomorphic primates. Reality check. Unfortunately, it's not enough to say, "This is a fair use, leave us alone." You can only prove fair use in a courtroom after you've been sued. That means that if 20th Century Fox sees your video and wants to hassle you, they can force you to prove fair use in court (an expensive proposition). If you want to use the clip and take your chances, that's understandable. Plenty of clips fall under the radar and Fox lawyers may not wish to devote energy to your claim and instead pursue others with deeper pockets. If you proceed, here are some tips for use of online video: keep the clip as short as possible and if you can, shrink the frame -- for example picture in picture or split-screen. A favorable fair use ruling is more likely the less you take.
January 06, 2021
3:53
Are Postage Stamps Public Domain?
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Dear Rich: Which (if any) US postage stamp images are in the public domain? I have read that stamps issued prior to 1978 are in the public domain. Is this true?
According to the Copyright Office, U.S. postage stamps issued before 1971 are definitely in the public domain. In 1971, the U.S. Post Office (a federal agency) became the U.S. Postal Service (an independent agency of the executive branch). The new agency's status permitted it to register copyright in stamp images. Or did it? There is some confusion surrounding the copyright status of postage stamps issued between January 1, 1971(when the USPS was created) and January 1, 1978 (the year the revised copyright law was enacted). Wikipedia, for example, states that U.S. stamps are "public domain if issued before 31 December 1977." Because we are unable to verify the public domain status of stamps issued during this seven-year period (1971-1978), the prudent course would be to assume these stamps are protected by copyright. The USPS has a system established for granting rights and permissions for the reproduction of stamps.
December 16, 2020
0:13
How Can I Make Sure I Get Credit for My Work?
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Dear Rich: I want to copyright a report I researched and wrote and hope to sell to a museum. My report includes my collection of 19th-century photographs, most of which are extremely rare. When researchers use the report, I want them to credit me. How do I do that? When I tried to register my report at the Copyright Office, I was told that I could not claim copyright in the photos, only the text. Should I let the Copyright Office switch my registration to merely text and lose all ability to include photographs? Let's start with the things you can't do.
- You can't claim copyright in photos published before 1925 or in unpublished photos taken by photographers who died before 1950. These photos are in the public domain and free for anyone to copy.
- You can't claim copyright solely based on your ownership of a photo. Purchasing a print is not the same as purchasing the copyright.
- You can't register your report with the Copyright Office unless you declare whether your book contains pre-existing works. Pre-existing works might include your public domain photos, a foreword by a third party, or any previously registered or previously published works that are included in your book. The goal is to show what you contributed (the text).
- You can't require attribution unless you have an agreement such as a license that requires it. (You can sue under the Digital Millennium Copyright Act, however, if the infringer removes copyright management information (CMI).)
The Creative Commons License. If attribution is your primary concern, you may wish to pursue a Creative Commons license. (You can use their License Chooser to determine the best match for you.) You don't give up your copyright and you don't need a copyright registration. Instead, you permit users to freely copy your text and as a quid pro quo for the free use, the Creative Commons license requires a specific attribution. If the user doesn't provide attribution, the copyright owner can sue for violation of the Creative Commons license agreement, copyright infringement, and violation of the Digital Millennium Copyright Act.
November 18, 2020
4:52
Can Nonprofit Use NBA/NCAA Trademarks for Fundraising?
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Dear Rich: We are an anti-human trafficking nonprofit creating a team-oriented fundraiser for educational purposes. Could "fair use" be applied if our fundraising teams name themselves after clearly trademarked team names like NBA teams or NCAA teams. We’d recommend against using the names of basketball teams for fundraising purposes. It’s possible that NCAA or NBA trademark owners would not know (or care) about your use of team trademarks. After all, their primary battle is against counterfeit merchandise manufacturers. But, in the event that the teams do care and consumers are likely to be confused into believing that a basketball team endorses or is associated with your nonprofit, then your use violates trademark law and the trademark owners can demand you stop. You might argue that fundraisers and contributors are sophisticated enough to minimize the likelihood of confusion. That is they understand that NBA and NCAA teams are not associated with your nonprofit. But this is a longshot strategy and we imagine you don't want to defend yourself in a lawsuit.Why not fair use? "Fair use" is a copyright defense and doesn't apply to trademark disputes. (There is a trademark “fair use” defense but it is also not applicable to your situation.) If you want to disregard our advice and go ahead with your plan, you might consider a prominent disclaimer to the effect that the NBA and NCAA do not endorse, and are not associated with your use. Keep in mind that disclaimers have little value when used incorrectly.
November 11, 2020
4:41
When Is a Song Published?
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Dear Rich: I'm about to submit a copyright application and have a question about whether or not a song is considered published. What exactly is meant by "distributed to the public"? If I send copies to a few people, is that considered "published," or does it have to be a mass distribution, like a sale?
Publication occurs when your song is first made available to the public on an unrestricted basis. That is, you (the copyright owner) authorized the distribution, and there are no explicit or implicit limitations for the disclosure of the work. For example, you post a link to a new song on your website, you offer your song at Bandcamp or iTunes, you license your song for an ad, or you sell LPs at a concert. Limited publication. The distribution of copies of a work to a definitely selected group with a limited purpose and without the right of diffusion, reproduction, distribution, or sale is a limited publication (an exemption from the publication rule, above). So, for example, sending out a handful of demos to record labels with the restriction, "For evaluation, Not for distribution" or posting the song to an invitation-only website, limiting the listeners, and preventing downloads would not be considered a publication. Copyright killer. Before March 1989, the issue of "publication" could be a copyright-killer. That's because copyright could be lost if a work was published without notice. Once Congress dumped this draconian penalty, the question of whether a work was published became less of a life-and-death affair (though it is still important in disputes over fair use, duration, infringement, registration, and other matters).
October 27, 2020
21:26
Should I Register 2020 Vinyl Re-Release or 2005 Original CD?
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Dear Rich: My band released a CD in 2005, and we never filed Form SR or PA for the album and underlying works. I am planning a vinyl reissue (with expanded artwork) this year, the songs are in the same order and have been remastered, but the artwork will be slightly different. Should I file the SR and PA for the 2005 release? Or should I treat the 2020 vinyl reissue as a new entity? If you're filing Form PA separately (Form PA reflects songwriting), it doesn't matter whether you use the CD or the vinyl because the compositions are the same on both. (The date for the song publication would be 2005.) In order to register a group of published songs as one "unit of publication," you must meet certain rules.
If you're filing the Form SR separately (Form SR reflects the sound recording), we think you should use your newer remastered vinyl because that is the best sonic version and you will likely use that for downloads going forward.
If you qualify to file the SR and PA as one application (or you need more information), you'll be best served by using the vinyl version as deposit materials. You can find more on these filing regulations in our Music Law book and in the music copyright lectures, we recorded for Lynda/LinkedIn. P.S. Dept. In case you weren't aware, you acquire copyright regardless of whether you register your music. However, there are many benefits to registration.
October 15, 2020
1:24
Squishy Animal Infringement
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Dear Rich: I bought several $1 squishy animals and have taken pictures of them and shared the pictures with friends. If I use these pictures in a book do I infringe on the toy company’s trademark?
It's unlikely that your book will trigger an infringement lawsuit or a response from the toy company. Here's why:
- Most squishy animals ("SA") have a generic appearance with indistinguishable features. If yours are similar, it's not likely that a toy company would come after you. It's difficult to protect generic designs.
- If you're making a book that simply displays your collection of SA photos, or you're just going to be distributing your book among friends or relatives, or you don't expect to sell more than a few hundred copies, it's unlikely the toy company will bother going after you even if it had the rights.
- Unless you've created characters from your SAs and unless those characters became a sensation (books, movies) you'll probably never hear from the SA manufacturer.
September 30, 2020
20:43
A Movie Falls Into the Public Domain ....
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Dear Rich: If a movie falls into the public domain, are all of the individual images in it also public domain? What if the image is of a movie star?Yes, you are free to copy the individual frames or images from a public domain movie without permission. Film elements such as music or promotional photos are also usually public domain as well although, on rare occasions, they may be under separate copyright.What about movie stars? You are free to copy a movie star's image from a public domain movie without permission (and use it for informational purposes). You need to be careful in one particular instance -- when you are using the movie star for a commercial purpose (that is to endorse a product). That's because all living celebrities and some deceased ones have a right of publicity that permits them exclusive rights for endorsement purposes.
20:43
A Movie Falls Into the Public Domain ....
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Dear Rich: If a movie falls into the public domain, are all of the individual images in it also public domain? What if the image is of a movie star?Yes, you are free to copy the individual frames or images from a public domain movie without permission. Film elements such as music or promotional photos are also usually public domain as well although, on rare occasions, they may be under separate copyright.What about movie stars? You are free to copy a movie star's image from a public domain movie without permission (and use it for informational purposes). You need to be careful in one particular instance -- when you are using the movie star for a commercial purpose (that is to endorse a product). That's because all living celebrities and some deceased ones have a right of publicity that permits them exclusive rights for endorsement purposes.
September 22, 2020
3:44
Do I Have Right to be Listed on Employer's Copyright?
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Dear Rich, I wrote a book as part of my employment. While others did provide input, no one else actually wrote any of the content. My employer is requiring that they be listed as the second author. They are also requesting that only they are listed on the copyright. As I understand it, this is a work for hire situation, so they of course should be on the copyright. Do I have a leg to stand on in advocating that I should also be on the copyright? If you wrote the book as part of your employment duties, the employer owns the copyright as a work made for hire. According to the Copyright Office, the employer should be listed as the owner (copyright claimant) and as the author on the copyright application.
September 17, 2020
2:54
How Lulu Lost Her Mark
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Dear Rich: A company in Florida filed a trademark on "Louise Brooks" and has used that to remove all Louise Brooks items off of Etsy in order for its company to sell its own Louise Brooks products. My understanding is that all publicity photos taken back in the 1920s and 1930s were never copyrighted, therefore, in the public domain, especially if the photographer is unidentified. Is this legal for a company to suddenly do this? Louise Brooks has never had an active estate before ... to the best of my knowledge.
It's a tribute to Mary Louise "Lulu" Brooks (who would have been 114 this year), that merchandise with her image is still popular. It's probably attributable to her jazz icon persona, the availability of public domain imagery, her always-stylish bob haircut, and the fact that her estate has not exerted control over the sale of Brooks goods (the estate is not behind the series of takedowns you mentioned). Instead, vendors had operated laissez-faire, selling a wide range of goods until December 2019, when a Florida company acquired the exclusive right to use the Louise Brooks trademark on over 40 types of merchandise (listed below). The story behind the trademark. A company from Coral Gables, Florida applied for the Louise Brooks trademark in 2018. The application seemed doomed in February 2019, when the USPTO trademark examiner issued a final office action (FOA) denying registration. The rejection was based on Section 1502(a) of the trademark law -- registration is denied to marks that falsely suggest a connection with a person or an institution (and includes a four-part test). In this case, the examiner stated that "the applied-for mark shows a false suggestion of a connection with the famous actress, Louise Brooks ..."). An FOA rejection is usually the end of the road for most applicants but in August 2019, the Florida company sought reconsideration (on the basis that Brooks had left no estate to assert rights to her name) and the USPTO reversed its stand and approved the application. This gives the Florida company the right to halt sales of listed goods sold under the Louise Brooks trademark. We contacted the USPTO for guidance as to why the FOA was reversed but the examining attorney directed us back to the documentation. Hmmm.The public domain. You're correct that Louise Brooks publicity photos are probably public domain. Any published photos pre-dating 1925 are automatically public domain (although Brooks' career didn't begin until 1925). Publicity photos published after 1924 were rarely renewed (a requirement for works published before 1964) and they often did not include a copyright notice (a requirement for works published before March 1989). So, many, if not most of the popular Brooks photos appear to be public domain.Here's where things go south. Most vendors of Louise Brooks merchandise are not using "Louise Brooks" as a trademark -- that is, they're not using the name to indicate the source of the goods. They're using it to describe the goods -- for example, to identify Brooks as the person in the poster or on the t-shirt. Under the trademark law, there's no infringement if "Louise Brooks" is "used fairly and in good faith only to describe the goods or services of such party." 15 USC Sec. 1115(b)(4) This legal subtlety is lost when companies such as Etsy and eBay issue takedowns at the behest of trademark owners. Their approach is to issue blanket takedowns and to let the parties sort it out under the DMCA or similar laws. So, the combination of trademark ownership and online retail practices has in effect, granted the Florida company the equivalent of Louise Brooks' right of publicity.What to do? Federal law permits you to use public domain imagery of Louise Brooks and to use "Louise Brooks" to describe it. But that may not help if you are forced to defend yourself in a lawsuit, or if an online store turns a deaf ear to your predicament. That's why some Louise Brooks vendors use variations on the name, for example, Lulu, Mary Louise, Flapper Icon, or "Retro Woman," because those names are unlikely to be confused with the "Louise Brooks" trademark. It's a wonky workaround but it should suffice. List of goods that are part of the Louise Brooks trademark registration.

(1) “Works of creative expression, namely, photographs, paintings and printed matter, namely, graphic design prints; art prints; graphic and printed art reproductions; lithographic works of art; calendars; greeting cards; photo albums; books featuring art reproductions and graphic prints; magazines featuring art reproductions and graphic prints; pictures; portraits; postcards; posters; stationery; stickers; decorative stickers; iron-on and plastic transfers; bumper stickers; decals; wrapping paper; pens; business cards,” in International Class 16; and (2) “Clothing, namely, jackets, T-shirts, shorts, pants, aprons; chefs’ clothing, namely, aprons; clothing for sports, namely, jackets, pants, short pants, jerseys, hats and shirts; drawers, gloves, headbands, hoods; ready-made clothing, namely, jackets, sport coats, pants, short pants and shirts; belts, footwear, sneakers, basketball sneakers,” in International Class 25.

That's a laundry list of goods and much of it is available at the trademark owner's website.
September 11, 2020
23:09
Does TuneCore Charge a Commission?
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Dear Rich: I am an independent artist, possessing all of my songs and sound recording material. For uploading my music to Spotify and other platforms I use a music distribution company called Tunecore, which states ''Keep 100% of your sales revenue & copyrights''. If I want to have a Sync Licensing for a TV or movie of one of the music that I licensed to the TuneCore service, would I have any problem or reduction of my percentage?
According to TuneCore, the service allows "any musician to sell their songs worldwide while keeping 100% of their sales revenue." In other words, revenue from digital stores like iTunes, Spotify, Amazon Music, YouTube, and TikTok is not commissioned by TuneCore. However, if you sign up for TuneCore Publishing Administration -- a separate arrangement that covers publishing and sync royalties -- TuneCore acquires exclusive synchronization rights and the company takes a commission of 20% for fees and royalties related to synchronization uses. That's in addition to a $75 setup fee, and a 15% commission from publishing and performance royalties. In summary, if TuneCore distributes your music to online stores, you get 100% of revenue, but if you opt for non-sales publishing/licensing revenue, TuneCore applies a commission. (We discuss the various publishing income sources in this blog entry.)
23:09
Does TuneCore Charge a Commission?
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Dear Rich: I am an independent artist, possessing all of my songs and sound recording material. For uploading my music to Spotify and other platforms I use a music distribution company called Tunecore, which states ''Keep 100% of your sales revenue & copyrights''. If I want to have a Sync Licensing for a TV or movie of one of the music that I licensed to the TuneCore service, would I have any problem or reduction of my percentage?
According to TuneCore, the service allows "any musician to sell their songs worldwide while keeping 100% of their sales revenue." In other words, revenue from digital stores like iTunes, Spotify, Amazon Music, YouTube, and TikTok is not commissioned by TuneCore. However, if you sign up for TuneCore Publishing Administration -- a separate arrangement that covers publishing and sync royalties -- TuneCore acquires exclusive synchronization rights and the company takes a commission of 20% for fees and royalties related to synchronization uses. That's in addition to a $75 setup fee, and a 15% commission from publishing and performance royalties. In summary, if TuneCore distributes your music to online stores, you get 100% of revenue, but if you opt for non-sales publishing/licensing revenue, TuneCore applies a commission. (We discuss the various publishing income sources in this blog entry.)
September 05, 2020
1:06
Do I Need Clearance in the U.S. if I Acquire Rights from a Public Domain Source Abroad?
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Dear Rich: I'm really hoping you can answer my question. I'm in the process of publishing a book that will contain lots of images, mostly of artworks by one artist in particular. The artist is French, I am British, and my publisher is based in the U.S. The artist died over 70 years ago, and in Britain and Europe, his works are out of copyright. But in the U.S., there's a copyright extension on the works. If I, the British author, am getting images from European suppliers, for my American-published book, do I have to pay for copyright clearance?Yes, you will need U.S. clearance for some of the works. Although most countries have placed the artist's works in the public domain (based on the life+70 years rule), the U.S. follows a different course. A work first published outside the U.S. (before 1978) is protected in the U.S. for 95 years from publication. That puts all of the artist's works published before 1925 in the public domain in the U.S. Because your publisher is distributing the book in the U.S. you will need clearance for all works published after 1924, regardless of where you obtained the source artwork.
August 19, 2020
1:41
Is Attribution Needed When Using Public Domain Materials?
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Dear Rich: I have just finished writing a fantasy novel. I have used public domain quotes within the novel (from Aristotle, Lincoln, etc.), but because the world of the novel is not Earth, I claim the quotes are from some nonexistent book that fits in the novel's world. Is this hinky?
Your suggested use is not hinky. According to the Supreme Court, there is no legal requirement to provide attribution when public domain works are copied and placed into new works.
July 08, 2020
5:21
Can Auto Company Use Same Name as Band?
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Dear Rich: A musician friend of mine has had a musical project for 20+ years. He uses a name that he made up (not a real word) and he has included the name on several albums (on several different labels). He has achieved some international acclaim. Well, along comes a Korean automobile company, announcing that they have a new camper/car with the same name. I would hope he has some claim to the name, as he has widely published it for decades now. Did he have to file an official application for a trademark for that name? I know of a band that was paid several thousand dollars to give up its name to another band. Can my friend go to the auto company and get them to basically pay him for the use of the name? Alternatively, and perhaps more reasonably, should he simply be staking a claim to the name to prevent the auto manufacturer from coming after him and claiming some kind of bogus trademark infringement?Your friend isn't the first musician to share a name with an automobile. Consider REO Speedwagon, The Valiants, The Road Runners, The Avantis, The Mustangs, The Rivieras, The Ferraris, The Lincolns, and our musical favorites, Galaxie 500. The difference is that in your friend's case, he was using the name before the car existed. Is there a claim against the car company? Even though your friend may have invented the name and used it first, we don't believe he has a trademark claim against the car company. That's because trademark disputes are resolved using a likelihood of confusion standard. Are purchasers of the Korean car likely to be confused as to whether it originated with your friend's musical project? Are consumers of your friend's records likely to be confused into thinking that the source for the music is the Korean car company? Because the categories of goods are so different (and don't compete with each other), and because purchasers of cars and music are discerning">[httpsredir=1&article=1336&context=jipl">discerning] enough to distinguish between the two, we think that consumer confusion is unlikely. Money from the car company? Because confusion is unlikely, the car company need not pay your friend for the right to use the name. The example you mentioned -- one band paying off another band for the right to use the name -- differs from your friend's situation because consumer confusion is much more likely when two bands have the same name. That doesn't mean car companies can name their vehicles, The Beyonce, or the Beatles. Using a famous band's name implies endorsement and violates unfair business and right of publicity laws.Should the name be registered? Federal trademark registration offers benefits but is not mandatory. If your friend's right to the name is challenged, the most important factor will be evidence of where and when he used it in commerce -- for example, advertisements, reviews, discography, etc.
June 30, 2020
23:39
Record Label Trademark: What's the Proper Class?
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Dear Rich: I am trying to trademark my record label name, but am stuck on which class of goods best describes what I want to sell as a label. I plan on selling vinyl records and digital downloads. Which goods class would be most appropriate?
International Class 009 (IC 009 - Electrical and Scientific Apparatus) is your best choice if you are applying to federally register your record label trademark. Your goods and services (G&S) would be, "musical sound recordings." A trademark examiner -- the government lawyer who examines your application -- may require a more descriptive listing of goods and may even suggest certain goods, for example, "pre-recorded phonograph records, and downloadable music sound recordings."Teach a man to fish dept. There a few ways to determine the proper class. One method is to search the ID Manual at the USPTO website. Type in your goods or services -- for example "recordings"-- and the search will uncover the relevant classes. Alternatively, when you apply online for a federal trademark using the TEAS system, you will be offered the chance to search for your class (and copy and paste the information into your application). Finally, you can either find (or confirm) the right class by searching the trademark database for other companies that sell similar products. For example, we chose Basic Word Mark Searchand searched first for "Polygram" and then, "CBS Records." The registrations appeared and confirm Class IC 009. Note, record labels that also offer recording studio services may want to add a second class (IC 041 - Education and Entertainment Services).
June 16, 2020
22:42
Will They Sue Our Church for Infringement?
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Dear Rich: I work at a church and am conducting our services online. I do a PowerPoint and export it to video. If we are not making money off the videos (they are not monetized on YouTube and won't be), and we are a non-profit, is it a fair use of images to include pictures as long as I reference the source? Can we argue that a church service is educational on a spiritual level? Before we provide our standard fair use explanation, let's make a short risk analysis. What are the odds of being discovered, and what are the chances that the copyright owners will pursue an action against your church?Seek, and ye shall find. As copyright owners employ more sophisticated copyright bots (content recognition software), the chances increase that infringement will be discovered. On the other hand, Content-ID (Google's YouTube bot) searches for audio and video but does not seek out individual images within a video. So, the chances of your video being dinged by a bot are slim. (However, beware that if you post an unauthorized image on a web page, it is easy to discover using Google's Reverse Image Search.) Two other factors can influence whether an infringement is identified: disgruntled employees, competitors, or others may report the offense, and the more popular your work becomes, the more likely you become a target for a takedown. Vengeance is mine. What are the chances that a copyright owner -- once the infringement is discovered -- will pursue a claim against your church? Apparently, copyright owners are not shy about suing churches, causing many religious institutions to reach into the collection box to pay off damage awards.Thou shalt not steal. Does fair use shield you from a lawsuit? Even if your potential infringement qualified as fair use (and we lack the details to guess), that does not automatically shield you from a lawsuit. That's because fair use can only be determined by a court. In other words, a fair use defense is usually useless if you can't afford to "lawyer up."The wise are cautious and avoid danger. Although the chances of a copyright owner discovering infringing images within your video are slim, and although your use may ultimately qualify for fair use, we think the more prudent course is to be copyright compliant. Fortunately, there are numerous Internet resources to help you do that, including church copyright guidelines, tips for finding free Christian imagery, church copyright fact sheets, religious copyright compliance suggestions, public domain Christian clipart, and lots more.PS. And in other religious copyright news, this just in ...
May 11, 2020
4:33
While He Was Sleeping ...
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Dear Rich staff busy at work on your question

Dear Rich: 35 years ago, when I was five, a newspaper photographer took a picture of me while I was sleeping. The picture was for publication though I clearly did not give permission. I recently found this picture online (tagged to me) and I bought the original picture. Now, I want all digital pictures online removed. The photographer died 30 years ago. Assuming the photographer owned the copyright, can I claim it now since I am the subject of the picture?
Copyright law has no provision that permits you to acquire rights to a photo simply because you're the subject of the photo. The exception is a selfie in which the photographer and the subject are the same (provided you're not a monkey ). The copyright can still be acquired by a transfer (assignment) but you'll need to track down the copyright owner -- possibly the newspaper under work for hire rules, or the photographer's estate. There are, however, three other legal bases for prohibiting publication of the photo.
Defamation. Defamation occurs if publishing the photo creates a false impression and injures your reputation. Unless the photo materially ridicules, humiliates, or subjects you to contempt, you'll have a hard time claiming defamation.
Invasion of privacy. Your privacy can be invaded if the photo falsely portrays you in a highly offensive manner; if the photo discloses private or embarrassing facts about you without relation to a legitimate public concern; or if the photographer intruded on you to take the photo in a situation where you had a reasonable expectation of privacy. However, it is not an invasion of privacy to photograph someone in a public place or at any event where the public is invited. Such photos can be used freely for informational purposes, provided that the use does not defame or hold you up to a false light. Because the photo was published 35 years ago and you have not objected until now, we think you may have a hard time claiming your privacy is invaded.
Right of publicity.The right of publicity prohibits using your image to imply that you endorse a product. The use of the photo for news, information, or public interest purposes is not a violation of the right of publicity. If the photo is used to sell products (for example, a mattress ad) you could have a claim for violation of your right of publicity.
April 17, 2020
3:25
Is "The Naked Kiss" Missing Copyright Notice?
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Criterion's pristine version
of "The Naked Kiss"

Dear Rich: I'm having a debate over the legitimacy of a chain of title of the motion picture, "The Naked Kiss" (1964). There are very clear records in the post-1978 Copyright Office database indicating copyright ownership but this person is insisting it is an invalid copyright because there is no “©” insignia anywhere on head or tail. I’ve found a lot of confusion about this, but my understanding is that even without an insignia, its creator could have copyrighted it. Does the absence of the insignia mean that the film is public domain?
Nowadays, the publication of a film without copyright notice won't effect ownership, but in 1964, the penalty was draconian. If the copyright owner failed to include a copyright notice on "The Naked Kiss," then it would likely be in the public domain. This was the rule until March 1, 1989, when the notice requirement was terminated.
Is the copyright notice missing? Distributors of public domain films have considered "The Naked Kiss" as PD for at least twenty years. Ditto for online sources such as the Internet Archives. The IMDB entry states, "No copyright year is shown at the beginning/end credits." [Link may require a subscription.] A proper copyright notice includes (1) the copyright symbol © or the word, "copyright", (2) the year of first publication, and (3) the copyright owner's name. Under the copyright law effective when "The Naked Kiss" debuted, a notice was defective if the date was missing.
What about the copyright records? Documents filed at the Copyright Office as recently as 2011 indicate that various parties controlled copyright to "The Naked Kiss". Yet, if they control copyright why do they permit so many vendors to distribute the film freely? It may be because a lawsuit over the film (we couldn't find any) would officially designate it as PD thereby denying future licensing revenue.
April 06, 2020
5:07
Can I Copy from an Unpublished Library Manuscript?
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Dear Rich: I am in the final stages of publishing an academic monograph. I am seeking to cite a few lines of text from an unpublished manuscript that is held by the Beinecke Library. Is depositing the book at the library a form of "publishing?" I asked the estate for permission to publish small citations but they claimed I would give away the plot and thus their ability to make money on it if they were to publish. A few other scholars have published on the work so they have given away the plot. Would my publishing on this work be fair use? If I don't cite specific passages from the text but paraphrase would that allow me to publish on that work?
If you are simply copying a paragraph or two (say 150 - 200 words) for an academic monograph, a court is likely to consider it fair use because your use is transformative (for commentary) and your borrowing is minimal. The fact that the work is unpublished weighs against fair use but is not by itself dispositive. (BTW, depositing an unpublished manuscript in a library doesn't amount to publication for copyright purposes.) As for paraphrasing and revealing the plot, we'll get to that, below. But before we digress, we must remind you that a judge may disagree with our opinion -- only a court can determine fair use -- and proving fair use can be an expensive proposition.
Paraphrasing. We don't recommend paraphrasing as a means of absolving you from liability. As one court stated, “We recognize that even in the absence of closely similar language, courts have found copyright infringement on the basis of “recognizable paraphrases.”
Can you reveal the plot? If you agreed not to disclose the plot -- for example, you were required to sign an agreement to access the unpublished work -- then that agreement would determine your rights (especially if it forbade copying). Alternatively, if what you disclosed of the plot was considered the heart of the unpublished manuscript, it may weigh against fair use. Otherwise, we don't see how your discussion of the plot for an academic monograph would amount to infringement, especially if others have disclosed it and the manuscript is available to the public. (The results might differ if you were a fiction writer borrowing the plot.) And, of course, some plots -- boy meets girl, boy loses girl, boy gets girl -- are so stock, that they are considered merely unprotectable "ideas," not original expressions, a theory best expressed in this case.
March 28, 2020
23:32
Can I Use James Joyce Case to Justify Copying?
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Dear Rich: I am an Australian author now based on Italy. I have written a biography of a major Italian journalist with the permission/collaboration of his publisher and newspaper, obtained by my former Australian publisher, which approved the manuscript for publication. Unfortunately, very similar to the Shloss case, his heir who inherited the copyright to his work has refused use of the archive material which is central to the biography and I cannot publish the book. Can I use the Shloss case to look for an American publisher?
We don't think you'll have much success using the Shloss case as justification for your borrowing -- that is unless, like Carol Shloss, you're willing to take on your adversary in an expensive lawsuit.
The Shloss case. Shloss v. Sweeney (aka Shloss v. Estate of Joyce) was filed by Carol Shloss, a scholar of James Joyce, who had written a book about Lucia Joyce, James's' daughter. Shloss and her publisher were pressured by Joyce's estate to remove published and unpublished material relating to James and Lucia Joyce. Later, Shloss wanted to publish the excised material as an electronic supplement to the book and she asked a federal court to determine whether she had the right to do so. Shloss's lead attorney, Lawrence Lessig was seeking "a clear statement from the court that such academic use of copyrighted materials is protected under fair use.”
No precedent. Shloss succeded in getting more than she wanted. After failing to knock the lawsuit away with a Motion to Strike, the Joyce estate agreed to settle, removing their objections to the publication of the deleted material, granting Shloss more rights than she originally requested, and ultimately (after a court order) paying $240,000 to compensate Shloss for her legal fees. But as Lessig indicates, even though the case was a victory for fair use, it did not set a legal precedent. That's because the parties settled the matter, not the courts. Unless you can marshall legal forces like the Stanford Fair Use Project, citing the Shloss case will have little value.
March 21, 2020
1:12
Does Coronavirus Trigger Copyright Exemption?
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Dear Rich: I am writing on behalf of a large group of film professors whose colleges and universities are contemplating moving instruction online due to Coronavirus concerns. Can we temporarily move our face-to-face screenings online without violating copyright law? Does the 2018 "Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies" allow us to rip DVDs for this purpose?
The coronavirus creates unchartered territory for copyright lawyers. Fortunately, an assortment of college, university, and public librarians have issued a Public Statement of Library Copyright Specialists: Fair Use & Emergency Remote Teaching & Research. Although the statement did not address face-to-face screenings directly, it did provide some guidance for fair use and circumvention.
Fair use. As for fair use, the librarians wrote:

"While there are no fair use cases squarely addressing copying to help minimize a public health crisis, the other wide variety of public benefits cited by courts leads us to believe that this purpose would weigh extremely heavily in favor of fair use."

We agree and suggest that your adherence to the statement's principles, including documentation of your efforts will go a long way to heading off potential litigation. We would also suggest that you follow the standards presented in 17 U.S. Code Sec. 110 (2) regarding the prevention of unauthorized copying or dissemination.
Circumvention. As for ripping CDs, the statement concludes:

"[T]he current exemptions [to DMCA circumvention rules] extend only to copying “short portions” of motion pictures for use in certain types of teaching, not to copying entire works, even when doing so is clearly fair use. Courts disagree on whether circumvention violates the DMCA when the underlying use is non-infringing (for example, because of fair use) and on what constitutes circumvention."
March 13, 2020
14:00
Is "War with the Newts" in the Public Domain?
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Dear Rich: Is the 1936 novel, War with the Newts, by Karel Čapek copyrighted? Can I write (or legally sell) a screenplay based on the book?
War with the Newts fell into the public domain in most countries on January 1, 2009, 70 years after Karel Čapek's death in 1938. The book had been in the U.S. public domain, but copyright was restored in the United States until January 1, 2032. In other words, you'll need permission currently to sell your screenplay in the U.S.
Why isn't it in the public domain in the U.S.? When the United States passed the Uruguay Round Agreements Act (URAA), it restored copyright in foreign works like War with the Newts that, as of 1996, had fallen into the public domain in the U.S because of a failure to comply with U.S. formalities (apparently the U.S. publisher failed to renew War with the Newts). Copyright was restored in works like this, and they were given a copyright term of 95 years from first publication. To qualify for this extended term: (1) the author had to be a non-U.S. citizen, (2) the book could not have been published in the U.S. within 30 days after its publication abroad, and (3) the book needed to still be in copyright in Czechoslavakia as of January 1, 1996. We believe that War with the Newts meets these qualifications and that copyright protection lasts for 95 years from first publication.
What about the translation? The 1937 translation of War with the Newts qualifies for separate copyright protection and would also qualify for a 95-year copyright term. For more information on determining public domain status, check out Steve Fishman's The Public Domain, The: How to Find & Use Copyright-Free Writings, Music, Art & More.
February 27, 2020
15:00
How Can I Stop Colorizers From "Stealing" My Antique Photo Collection?
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Dear Rich: I have an extensive collection of original antique photo prints. Some are art photos, some are amateur/snapshot photos, some are news photos from Acme and other agencies. I foolishly posted a few on Pinterest a long time ago without watermarks. There are colorizers who swipe images without permission, colorize them, then present the result as their copyrighted art. Instagram has stopped removing colorizations of my photos when I report them saying I can't prove I hold the copyright to the original. I realize the news photos are copyrighted by Getty most likely (they charge $100 per hour to find out), but what about the art photos and private amateur photos? How do I establish copyright to protect my collection?
Owning a photographic print may have value as a vintage collectible but in order for you to stop colorizers from copying and modifying your collection, you need to acquire copyright in the photos. That's unlikely for two reasons: (1) most of the photos are likely in the public domain in which case, no one can claim copyright, and (2) if copyright still existed for some of the photos, you would need to track down the owner (the photographer or the person or company who acquired it from the photographer) and buy the rights. That's a considerable expenditure of time and money.
If the photos are public domain, how can Getty claim copyright? As the Library of Congress explains (in regard to Acme photos), news photos published before 1963 are likely public domain because they weren't renewed. Getty cannot assert copyright in public domain pictures but they may be betting that users would rather pay the licensing fee versus proving that copyright has expired. In short, users are paying to access high-quality scans of vintage photos.
If the photos are public domain, how can colorizers claim copyright?
As we explained a few years ago, it is possible to register a colorized black and white photo with the Copyright Office provided that the results "reveal a certain minimum amount of individual creative human authorship." Analogizing as to how the Copyright Office processes colorized motion pictures, the colorizer would have to demonstrate (1) numerous color selections made from an extensive color inventory; (2) a range of additional colors that is more than a trivial variation, and (3) that the overall appearance of the picture must be modified. A colorized image is considered a derivative work and the copyright extends only to the color choices. If the underlying work is not in the public domain, the colorizer will need permission from the copyright owner to reproduce or sell the derivative (or risk a charge of infringement).
February 19, 2020
15:00
Can I Use Old Trademarks on T-Shirts?
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Dear Rich: I'm a designer and antique collector. I have an idea to recreate old logos, screenprint them on t-shirts and sell them on an e-commerce website. I understand if these logos were trademarked before 1924 they are in the public domain and free to use for commercial purposes. But if this company is still around and uses a new, redesigned logo, am I allowed to use that company name in the product description of my e-commerce website and advertisements? For example, I might name it something like "Vintage COMPANY NAME T-shirt with Distressed Logo."
Apples and Oranges? You may be confusing trademarks and copyrights and we think you should put your t-shirt plans on hold until you sort things out.
What's the diff? Copyright, which protects literature, music, art, and similar expressions, has a limited shelf life (generally 95 years from first publication). That's why any copyrighted work first published in the United States before 1925 is now in the public domain and free for you to print on a t-shirt.
Trademark law, however, protects any distinctive word, phrase, logo, graphic symbol, or other device that is used to identify a product or service. Trademark rights don't expire as long as the trademark owner continues to use the mark in commerce. So, vintage trademarks, once used by existing companies may still be protectable, particularly if they contain a word mark that is still in use or a logo that has been freshened up over the years.
Abandonment. If, however, the vintage mark is for a product that is no longer in existence, you may be free to use it, provided the mark has been abandoned. Abandonment occurs when the mark is no longer used in commerce and there is sufficient evidence that the owner does not intend to use it. Under the Lanham Act, a trademark is presumed to be abandoned after three years of nonuse. This presumption does not mean that the mark is automatically classified as abandoned after three years of nonuse. It means that the burden of proof shifts to the owner of the mark to prove it is not abandoned. The owner must prove an intention to resume commercial use.
P.S. Dept. Beware, some previously abandoned marks may have been revived as zombie trademarks.
February 11, 2020
15:00
Is D.H. Lawrence Poem in the Public Domain?
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Dear Rich: We are publishing a book in conjunction with a museum exhibit. The artwork in the exhibit was inspired by D.H. Lawrence's poem, "Whales Weep Not!" On the website, Poets.org, they indicated the poem may still be under copyright by the poet's estate (Copyright © 1964, 1971 by Angela Ravagli and C. M. Weekly, Executors of the Estate of Frieda Lawrence Ravagli. Used by permission of Viking Penguin, a division of Penguin Books USA Inc.) Is the poem in the public domain or do we need permission?
If the copyright for "Whales Weep Not!" was renewed, it is still under copyright and will not fall into the public domain for several years. The poem was published posthumously in 1932 in the collection, "Last Poems" (Lawrence died in 1930). Copyright law protects such works for 95 years from first publication, provided that it was timely renewed. However, we couldn't find evidence of renewal of "Last Poems" at the Stanford Renewal database. That's not conclusive ("Absence of evidence isn't evidence of absence") and may be due to an error in data conversion or imprecise searching. (The estate had been diligent in renewing Lawrence's other works, including his poetry.) The only definitive proof would be to pay for a certified Copyright Office search.
February 06, 2020
15:00
Can I Publish Library Sketch?
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Dear Rich: I am an architectural historian studying libraries. If I have permission to enter a famous house in order to measure and sketch the library, can I publish my sketch without further permission? Would it make a difference if the sketch is a floor plan of the library instead of an elevation?
It's likely you won't need further permissions ... but you should consider the following before publishing:
Copyright hassles? Not! You won't have to worry about copyright claims if you are (1) the sole author of the sketch, and (2) you haven't reproduced a copyright-protected work within the library, for example, a watercolor, poster, or sculpture, and (3) the famous house was designed before December 1, 1990. (Copyright only protects buildings created after December 1, 1990, and if the house was designed after that date, you should review our article on architectural copyright.)
Contract and privacy hassles? Maybe. Did you sign anything, or make any agreements that conditioned your entry into the home? For example, were there any discussions or requirements regarding privacy or confidentiality? Would the publication of the sketch reveal any private or potentially embarrassing information -- for example, the location of valuable, rare books, or the presence of a pornography collection? Are you publishing the sketch as an advertisement for a product or service? Is it likely that the homeowner would learn of your publication and be unhappy?
Bottom Line Dept. Most likely, your publication of sketches of the library won't give rise to legal claims. But if you answered, "Yes" to any of the questions above, particularly the last one, then publication may trigger a breach of contract claim, invasion of privacy, or violation of the right of publicity. In such cases, your liability would be reduced if you published the floor plans rather than a detailed sketch.
January 27, 2020
15:00
FRANDs as a Royalty Guide
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Dear Rich: I've invented something for the cell phone market and a company I used to work for has expressed an interest in licensing it (and paying for the patent). I'm trying to figure out what is a fair royalty rate. Can I use a FRAND to determine the right rate? If so, where can I find a FRAND for the cell phone industry?
ACRONYM WARNING!! Readers who are upset by the overuse of acronyms should bypass this blog entry.
What's a FRAND? Competing companies often must cooperate to create industry standards. For example, computer manufacturers like Apple and Microsoft must agree on the size, shape, and functionality of USB ports and cables. To establish these industry standards, competing companies cooperate to create standard-setting organizations (SSOs). To implement these standards, companies may need to share patents. Patents that are essential to meeting the standard are referred to as "standard-essential patents" (SEPs). To guarantee that SEPs are available to all competitors, industries have adopted FRANDs (Fair, Reasonable, and Non-Discriminatory terms) for SSO members. In some industries, SSOs are bound by FRANDs; in others, FRANDs are advisory.
Your patent. Unless your invention results in a patent that is essential for establishing a cell phone standard, FRANDs wouldn't provide any assistance. In the rare instance that your patent is standard-setting, there is no consensus or template for resolving FRAND interpretation or application. We recommend that you consult an attorney familiar with patent licensing in order to determine appropriate royalty rates (and to look out for your rights during the drafting of your patent application).
More on FRANDS ... You can learn more about FRANDs in two federal decisions: FTC v. Qualcomm (in which a court imposed a reasonable royalty standard for the licensing of Qualcomm modem chips), and HTC v. Ericsson (in which a court determined that Ericsson's licensing of 4G cell phone technology was FRAND-friendly).
January 22, 2020
4:41
Sold Business, Can I Compete?
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Calvert Vaux - Landscape Architect

Dear Rich: If someone sells their business which owns their copyrighted landscape design work, can they still send pictures of the work to potential clients as something they created? Can they post these photos on a website? If the business they sold has their name in it (e.g. Ann Jones Landscape Group), could she start another business (there is no non-compete) with the name? (i.e. Ann Jones, PLA, LLC)?
If the sale of your business included the transfer of your landscape design copyrights, then you would need permission to reproduce those designs. The transfer (or "assignment") of copyrights must be in writing so check the paperwork connected with the sale of the business. (Look for an "Intellectual Property" provision in the sales agreement.) Portfolio rights. Keep in mind that the purchaser of the copyright may be willing to grant you "portfolio rights" (permission to reproduce as part of your resume or to seek clients). If the sales agreement doesn't address the designs, it's very possible you retain ownership of the copyrights and you can do as you wish with them.
Using your name for a new business. Most sales of businesses include the transfer of the business name. After all, customers associate the name and goodwill with the business. If the buyer acquired the name, then your use would violate the sales agreement. Even if the sales agreement wasn't clear about name ownership, the purchaser could still pursue you under state laws based on unfair competition.
January 15, 2020
15:00
How Do I Fix an Error on Copyright Application
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Dear Rich: How do I correct a mistake on a song copyright that I recently filled out? I need to add a third songwriter.
We assume you're referring to an error made on a copyright application you filed online. If your application is still pending (that is, the Copyright Office hasn't issued a registration certificate), you can submit a request to address the error or omission on the Copyright Office’s website. Alternatively, once the application is being reviewed, you can inform the registration specialist (the Copyright Office examiner of your application) of the required changes.
Registration issued. If the certificate was issued, you should file a supplementary registration to correct errors or omissions. This is done online using the ECO portal. To learn more about supplementary registrations (and the exceptions to online filing), read Circular 8.
January 06, 2020
15:00
Who is the Copyright Claimant? Publisher or Composer?
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Dear Rich: Should an artist who owns a publishing company register it as claimant of copyrights instead of him/her self? In this case, is there a better option?
When filling out the online copyright application, the "claimant" is the copyright owner. So, if you (the composer/author) have assigned the songs to your own publishing company then the claimant would be the publishing company. Assigning a song is fairly simple but it must be in writing. (We've posted a basic copyright assignment online.) For practical purposes, if there is only one composer, and that composer owns the publishing company as a sole proprietor (single owner), then it won't matter whether the publisher or composer is listed as claimant as they are one and the same.
September 20, 2019
15:00
Has Academic Journal Stolen My Copyright?
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Dear Rich: I am a university professor. Two French colleagues organized a conference in 2017 and invited me to speak at it. After the conference, they said they wanted to publish our talks (expanded into articles) in a book, and they told us we should start to revise our talks. Several months later, they wrote to say that a Swiss-based academic journal had agreed to publish the essays as a special issue. I responded to say "sounds good," and I submitted my essay to the two French colleagues, who copyedited it, and I did not hear another word for months until a PDF of the final version of my article arrived in my inbox. I was surprised to see that the article was Copyright 2019 by the Swiss publisher and that I was authorized to distribute no more than 25 copies of this PDF, and that it was not permissible to put the PDF on the Internet. I wrote to the Swiss publisher and asked on what basis they claimed the copyright, given that I never signed an agreement with them. The head of the press cheerfully admitted that there is no signed agreement of any kind and that they claim the copyright by fiat, simply as a consequence of publishing the text ("We pay the printer"). It seems to me that they have illegally usurped (or tried to usurp) my copyright. Am I correct about this?Yes, you're correct. The concept of claiming copyright because "we pay the printer" went out with quill pens and hoop skirts. To claim the copyright to your article (which many journals do), the Swiss would need to have acquired documentation: a written assignment agreement or a work-made-for-hire agreement.Implied license. Under U.S. copyright law, you retain copyright ownership, and the Swiss publisher probably has an implied license to publish your article in the journal. Licenses can be implied from the parties' conduct and reasonable expectations. For example, if a written license expired, but the parties continued as if it hadn't, the license for the extended use would be implied. Your consent to publication was implied by your "sounds good" and by furnishing, revising, and copyediting your article. However, the implied license doesn't permit the Swiss journal to dictate the terms of your use and doesn't allow them to distribute the article in any way other than in the journal.P.S. Dept. The Swiss publisher would be permitted to claim a compilation copyright in the journal. The compilation copyright does not protect the individual articles, but instead, it protects the particular selection and arrangement of those articles together in one journal.
15:00
Has Academic Journal Stolen My Copyright?
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Dear Rich: I am a university professor. Two French colleagues organized a conference in 2017 and invited me to speak at it. After the conference, they said they wanted to publish our talks (expanded into articles) in a book, and they told us we should start to revise our talks. Several months later, they wrote to say that a Swiss-based academic journal had agreed to publish the essays as a special issue. I responded to say "sounds good," and I submitted my essay to the two French colleagues, who copyedited it, and I did not hear another word for months until a PDF of the final version of my article arrived in my inbox. I was surprised to see that the article was Copyright 2019 by the Swiss publisher and that I was authorized to distribute no more than 25 copies of this PDF, and that it was not permissible to put the PDF on the Internet. I wrote to the Swiss publisher and asked on what basis they claimed the copyright, given that I never signed an agreement with them. The head of the press cheerfully admitted that there is no signed agreement of any kind and that they claim the copyright by fiat, simply as a consequence of publishing the text ("We pay the printer"). It seems to me that they have illegally usurped (or tried to usurp) my copyright. Am I correct about this?Yes, you're correct. The concept of claiming copyright because "we pay the printer" went out with quill pens and hoop skirts. To claim the copyright to your article (which many journals do), the Swiss would need to have acquired documentation: a written assignment agreement or a work-made-for-hire agreement.Implied license. Under U.S. copyright law, you retain copyright ownership, and the Swiss publisher probably has an implied license to publish your article in the journal. Licenses can be implied from the parties' conduct and reasonable expectations. For example, if a written license expired, but the parties continued as if it hadn't, the license for the extended use would be implied. Your consent to publication was implied by your "sounds good" and by furnishing, revising, and copyediting your article. However, the implied license doesn't permit the Swiss journal to dictate the terms of your use and doesn't allow them to distribute the article in any way other than in the journal.P.S. Dept. The Swiss publisher would be permitted to claim a compilation copyright in the journal. The compilation copyright does not protect the individual articles, but instead, it protects the particular selection and arrangement of those articles together in one journal.
September 03, 2019
15:00
Do You Have to Be a U.S.citizen to register copyright?
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Dear Rich: Can a non-U.S. citizen or alien register a copyright at copyright.gov? What if one co-writer is a U.S. citizen, but the other co-writers are not?Non-U.S. citizens can register works at the U.S. Copyright Office, and it shouldn't matter what percentage of co-authors are U.S. citizens. According to the Copyright Office, anyone, regardless of citizenship status can register their work provided it is: (1) unpublished, or (2) first published in the U.S., or (3) first published in a country with which we have a copyright treaty, or (4) the work was created by a citizen or domiciliary of a country with which we have a copyright treaty. See Circular 38a, International Copyright Relations of the United States, for the treaty status of specific countries.
June 27, 2019
15:00
Can I Sell Cecil Aldin Coloring Book?
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British illustrator Cecil Aldin (1870 - 1935)
with one of his furry subjects

Dear Rich: Can I sell black and white images by Cecil Aldin? I would like to sell them to potential customers who could color them in?
Yes, you're free to sell the animal illustrations of Cecil Aldin. Except for his imagery for "His Apologies" (Rudyard Kipling's 17-page poem about a Scottish Terrier puppy), all of the artwork by Aldin (sometimes mistakenly spelled "Alden") is public domain. The works were either published before 1924 or were not timely renewed (according to the Stanford Renewals database). "His Apologies" was renewed in 1959, and the drawings are under copyright until 2027.
June 24, 2019
15:00
Does Publisher of Letter Hold Copyright?
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Dear Rich: I am trying to get permission to reprint a letter in a forthcoming book that will be a collection of letters. One letter has previously been published in a "Selected letters of ..." book. The copyright page lists the editor as the copyright holder. I learned that he has recently died so I approached the publisher who took a while to reply. I contacted the estate of the letter writer and they quickly granted permission. Now the publisher has replied and claimed they hold the copyright and have requested a much higher fee. Any advice on how I should proceed with this?
We see you have a UK email address. US and UK copyright laws are similar in many (but not all) ways. Under US law, the letter writer holds the copyright (and the rule is the same in the UK). So, unless the letter writer (or estate) assigned the copyright to the editor or publisher, they (editor/publisher) don't control copyright. Our guess is that the editor/publisher acquired a compilation copyright that gives them the right to prevent someone from compiling a similar collection. If that's the case, you don't need their authorization to use the letter. One way to force the issue is to write to the publisher and ask to see proof of ownership -- a document transferring rights from the letter writer to the publisher. If they balk, it's likely they are mistaken about the rights.
15:00
Does Publisher of Letter Hold Copyright?
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Dear Rich: I am trying to get permission to reprint a letter in a forthcoming book that will be a collection of letters. One letter has previously been published in a "Selected letters of ..." book. The copyright page lists the editor as the copyright holder. I learned that he has recently died so I approached the publisher who took a while to reply. I contacted the estate of the letter writer and they quickly granted permission. Now the publisher has replied and claimed they hold the copyright and have requested a much higher fee. Any advice on how I should proceed with this?
We see you have a UK email address. US and UK copyright laws are similar in many (but not all) ways. Under US law, the letter writer holds the copyright (and the rule is the same in the UK). So, unless the letter writer (or estate) assigned the copyright to the editor or publisher, they (editor/publisher) don't control copyright. Our guess is that the editor/publisher acquired a compilation copyright that gives them the right to prevent someone from compiling a similar collection. If that's the case, you don't need their authorization to use the letter. One way to force the issue is to write to the publisher and ask to see proof of ownership -- a document transferring rights from the letter writer to the publisher. If they balk, it's likely they are mistaken about the rights.
June 19, 2019
3:42
Wants to Use Netflix Series for Language Course
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Dear Rich: I am starting a language coaching business, and I would like to create a language class and discussion group around a foreign language Netflix show. The participants would watch the show on their own via their own Netflix account. I would create quizzes, character descriptions and discussion questions around the show. Are there any legal concerns with this idea in general? Would it be OK to mention the show by name in my ads/promotions for this class? And is there anything I can't/shouldn't do in my promotional materials? (I'm assuming using the show's logo/images is not OK.)
From the Sopranos to Star Wars, TV and movie companies have tolerated and even encouraged courses built around their shows. On the one hand, these companies welcome the publicity but on the other, they're vigilant about fans who borrow too much from the show and commit copyright or trademark infringement (as did the authors of "guides" to Seinfeld and Twin Peaks).
What can you do? Although some course creators freely use logos and imagery, you'll lower your risk of being hassled by not reproducing them. You can include the name of the show in your materials, but you should also include a prominent disclaimer, such as, "THIS COURSE IS NOT AFFILIATED WITH, OR ENDORSED BY NETFLIX OR THE PRODUCERS OF [NAME OF SHOW]" (See section 1(a)(ii) of this Godzilla case for an example of an ineffective disclaimer.) One thing that's in your favor from a copyright point-of-view is that you're using the show for a different purpose -- teaching a foreign language -- than the show was intended. That may bolster your claim of fair use. Finally, Netflix appears open to educational uses, so you may want to pursue permissions, but beware that by asking them for permission, you would be alerting the people who, for whatever reason, may try to shut you down.
3:42
Wants to Use Netflix Series for Language Course
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Dear Rich: I am starting a language coaching business, and I would like to create a language class and discussion group around a foreign language Netflix show. The participants would watch the show on their own via their own Netflix account. I would create quizzes, character descriptions and discussion questions around the show. Are there any legal concerns with this idea in general? Would it be OK to mention the show by name in my ads/promotions for this class? And is there anything I can't/shouldn't do in my promotional materials? (I'm assuming using the show's logo/images is not OK.)
From the Sopranos to Star Wars, TV and movie companies have tolerated and even encouraged courses built around their shows. On the one hand, these companies welcome the publicity but on the other, they're vigilant about fans who borrow too much from the show and commit copyright or trademark infringement (as did the authors of "guides" to Seinfeld and Twin Peaks).
What can you do? Although some course creators freely use logos and imagery, you'll lower your risk of being hassled by not reproducing them. You can include the name of the show in your materials, but you should also include a prominent disclaimer, such as, "THIS COURSE IS NOT AFFILIATED WITH, OR ENDORSED BY NETFLIX OR THE PRODUCERS OF [NAME OF SHOW]" (See section 1(a)(ii) of this Godzilla case for an example of an ineffective disclaimer.) One thing that's in your favor from a copyright point-of-view is that you're using the show for a different purpose -- teaching a foreign language -- than the show was intended. That may bolster your claim of fair use. Finally, Netflix appears open to educational uses, so you may want to pursue permissions, but beware that by asking them for permission, you would be alerting the people who, for whatever reason, may try to shut you down.
May 24, 2019
1:22
My Cover Letter Was Copied for Job Ad!
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Dear Rich: I applied to (and interviewed for) a job. Apparently, they were so taken by the prose in my cover letter that they decided to rip off two very specific, idiosyncratic sentences. They incorporated this text into a recent re-posting of the same position advertised on a major employment search engine. So, in essence, I told them in my own words how I'd be a fit for the position, and they subsequently used those exact words to advertise the position. Does sending a cover letter amount to publication? If so, are statutory damages impossible to obtain?
We can't imagine fighting a lawsuit over your cover letter, but it helps to imagine what would happen in federal court before confronting the employer. Let’s assume that your cover letter meets copyright standards and that your claim is not fair use. Let’s also assume that your case isn’t dismissed as “de minimis” and that your cover letter was infringed (not merely plagiarized). Finally, let's assume that you qualified for statutory damages by making a timely registration* -- that is, you don't have the burden of proving actual damages. Even assuming you could jump through all these hoops, you will still have a difficult time showing you were injured or that the employer profited from the misappropriation. A judge, with the discretion to award $750 to $30,000 per infringement for statutory damages, is likely to award on the low end (especially if the judge concludes that your claim is trivial). Even an award of $1500 would be minuscule compared to the tens of thousands in fees for fighting the lawsuit, making the pursuit of a copyright infringement claim a lose-lose situation.
What about the DMCA route? If your goal is to simply get the employer to stop using your work, we suggest starting with a letter. If that fails, you may pursue the DMCA route (though we don't recommend it). Here's a template for a DMCA notice. Two things to keep in mind: you must consider whether the copying is a fair use before sending the notice; and if the employer rejects your notice and files a counter-notice, then your only option is to pursue a lawsuit (which would be a bad idea as described above). We know you're offended by this company's shameless borrowing from your letter, but lacking any provable injury, we'd suggest you drop your pursuit.

*we consider your cover letter "unpublished," as you've distributed the letter to a select and limited number of people, not to the public.
May 02, 2019
15:00
Does "No Renewal" Equal Public Domain?
» ‎ Dear Rich: An Intellectual Property Blog

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Dear Rich: I am an independent director/producer and I have a book and movie that I would like to remake into new films and I'm running into deadness on both fronts. The book is a sci-fi thriller from 1968 and the author died in the early '70s. The publisher is no longer around, and I have only found registration for the original 1968 copyright to the book. I looked 28 years later and there is no renewal. There are renewals for other titles from the same author made by a woman with same last name (presumably a member of the family). She didn't renew any of his sci-fi pulp novels though. On the other end, I have a low budget war movie from 1958, the director has passed, all the actors have passed and the company dead ends after it's been bought and passed along multiple times.
Works published after 1963 did not need to be renewed. So, the sci-fi author's copyright would go to his heirs and would last for 70 years from the author's death. (If the book had been published before 1964, a failure to renew would put the book in the public domain.)
As for the low-budget war movie, according to Copyright Office records, it was assigned in 1998 along with 31 other films (see below) to American Movie Classics (now known as AMC).
April 29, 2019
15:00
How Can a 100 Year-old Autobiography Still Be Under Copyright?
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Dear Rich: I am writing a play about a real woman who lived from 1839 to 1930. She wrote an autobiography which was not published in her lifetime. In 1994, it was finally published after some editing by a family member. I am using a lot of the original wording from her autobiography in my play because her voice is really interesting. I’m sure that I’m going far beyond what would be considered fair use so I would like to get permission from the copyright holder. Unfortunately, the publisher has gone out of business and the editor/relative has a very common name, so I can’t find him. He could well have passed on by now. I’ve tried to track the relatives, but the trail is cold. Would her heirs still hold copyright in her words at this point? Would the relative who edited her autobiography for publication have some copyright? Is there a best way to prove I’ve shown due diligence in attempting to contact the copyright holders?
Copyright protection typically lasts for the life of the author plus 70 years. So, you would think that copyright for the autobiography would have expired in the year 2000. But the autobiography is still protected because of a quirk in the law that says if an unpublished work created before 1978 was published before January 1, 2003, its copyright would last at least until January 1, 2048, regardless of when the author died. That may have been the reason the relative edited and had the book published in 1994.
Getting (or not getting) permission. Considering the work is under copyright, you'd need permission from the copyright holder (unless you can demonstrate it's fair use). We guess that the relative who edited the work holds the copyright (or his heirs). He apparently instigated the edits and the distribution, so, hard as it might be, you would be tasked with tracking that person down. As you're probably aware "people finder" web searches are available for a fee. (BTW, we don't believe that basic book editing amounts to a separate copyright.)
If for some reason, there are no heirs and after diligently searching, you can't find anyone to ask for the autobiography rights (referred to as an "orphan work"), then you have to decide whether to proceed without permission. If you do proceed, keep a record of the steps you took to find the owner. Those records could minimize (but not eliminate) damages in the event the copyright owner steps forward. Finally, if you have success and a company wants to produce your play, you may be required under the contract to clear all rights in which case you may have to hire a researcher or clearance service.
April 15, 2019
14:00
I Framed a Website; Now PicRights Wants Money!
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Dear Rich: I build websites, and one of my clients is a small auto shop. The auto shop's website includes a listing of brands that they carry and includes links. Some of the links steer the user to the brand website. Some of the links allowed the user to stay at the auto shop website and to view the brand website within a frame. Several months ago, the auto shop got threatening letters and emails from PicRights.com, a photo rights company, saying that two of the framed brand sites each had a photo that was "copied" from one of their stock photo clients. Naturally, the auto shop nor I had any knowledge or control over what one of these brand companies or their web people used on those sites. I removed the links to those companies, and we told PicRights that via email. But the auto shop continues to get threatening letters including one from an attorney.
We can't predict how the auto shop would fare if this matter proceeded to court (and we assume the auto shop doesn't want to litigate), but if we were a betting blog, we'd wager that the auto shop's liability would not exceed $1500. It's even possible that the shop would owe nothing. Here's why:
Framing and copyright. What makes framing different from typical linking is that instead of taking the user to the linked website, the information from that website is displayed in a special “frame.” When you’re viewing framed information, your computer is connected to the site doing the framing, not the site whose page appears in the frame. But in reality, the image isn't duplicated because the link is just HTML code pointing to the image or other material. (A similar result occurs when a single photo from one site is embedded in another site -- a process called "inlining.")
Conflicting case law. Framing and inlining are often used to deliver search engine results. Courts have held in two cases where search engines linked to thumbnail images, that such uses are permitted as fair use. In one of those cases, Perfect Ten, the Ninth Circuit Court of Appeals devised the “server test" in which the court ruled that if the allegedly infringing work is on your server, you infringed. Under the server test, the auto shop might prevail, assuming no copies of the infringing photos were stored on the auto shop servers. Complicating the analysis, a New York judge in 2018 rejected the server test in a case about an embedded Twitter photo. In other words, your case might achieve a different result in California than in New York. (Hopefully, an appellate court or the Supreme Court will resolve the difference between circuits.)
What should the auto shop do? You were wise to remove the framed links immediately as that demonstrates your good faith responding to the claim as well as limiting your potential damages. It's also reasonable for the auto shop to request proof that the images have been registered in the Copyright Office. If they haven't been registered before your posting, PicRights or the stock photo company could not claim statutory damages or attorney fees. Also, they can't sue you in federal court without the registration. (Although not conclusive, we found no copyright registrations under either complaining party's name in the Copyright Office database.) If they have registered the copyright before your posting, the minimum for damages would be $750 per photo (or $200 per photo if you were determined to be an "`innocent infringer"). Feel free to write to the photo rights company and share our information but don't expect a reasoned response. (If we analogize to fishing, the company's policy is to use drift nets, not catch-and-release.)
Will you get sued? Oddly, when we searched PACER, we couldn't find any records of copyright lawsuits filed either by PicRights or by the stock photo company claiming to own rights. Perhaps the companies sue under other names, but it's possible that they never file lawsuits, only threaten them. To be prudent, the auto shop should obtain an opinion from an attorney before blowing off the letter.
P.S. Dept. It’s possible that you may be threatened with contributory infringement. We believe that under Ninth Circuit standards, you would prevail.
April 11, 2019

Permalink for 'Can a California Employer Claim Employee Copyrights?'

6:09

Can a California Employer Claim Employee Copyrights?

» ‎ Dear Rich: An Intellectual Property Blog

If Franz Kafka had an overreaching copyright provision in his
employment agreement, his insurance company employer
might have owned the rights to "The Trial."

Dear Rich: As a condition of working for a large company, I am required to agree to an Intellectual Property and Confidentiality Agreement. The only mention of copyright is in the section with "all copyrights in works authored by me ... during the term of this Agreement are and shall be the exclusive property of the Employer." Unlike Work Product or Inventions, there are no qualifiers on copyrights, such as that the works have to be related to the business of the employer, done as part of working for them, etc. It seems to me that this means that a hypothetical, say, an automotive company would then own the copyright to anything I write on the weekends, even if completely unrelated to the company such as a fiction novel I write about a dog with superpowers. Is there anything in the (specifically California) law that protects copyrights against this very broad-reaching clause?
We doubt that a California judge would permit an employer to own an employee's superpowered dog novel. Here's why:
Public policy. A contractual provision won't be enforced if the provision violates public policy (public policy is the moral and ethical principles upon which the legal system is created). Your provision appears to violate California's public policy which aims to protect employees from overreaching employers as evidenced by (1) a California labor statute that prevents employers from claiming non-work related inventions (innovations that don't involve employer time or resources), and (2) a law that prohibits non-compete agreements. The public policy behind federal copyright law supports an employee's right to own works unless created within the course of employment.
Unconscionability. A contractual provision also won't be enforced if the provision is unconscionable (grossly unfair). What if the Superdog novel is published, attracts a movie deal and becomes a blockbuster with sequels? Your agreement might be considered to be unconscionable because your payment (your paycheck) is so disproportionate in value as to demonstrate bad faith (or “unconscionability”) in the bargaining process.

April 01, 2019
3:41
Can Festival Domain Name Stop Similar Name?
» ‎ Dear Rich: An Intellectual Property Blog

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Rasta Hat

Dear Rich, I decided to create a brand and annual music festival called The Houston Reggae Festival. I registered the domain HoustonReggaeFestival.com, I created social media handles on every major platform, and I've paid for business cards, Facebook advertising, custom brand merchandise like stickers, T-shirts, etc. I registered my domain in May 2015, and I've been publishing content and promoting my event ever since. I own my own small business and listed the festival as a production of my business. I recently discovered another festival infringing on my name, but I've only trademarked under common law so far. I was wondering if I should send a friendly message asking the other events producers to respect my mark for the Houston Reggae Festival, send a cease and desist letter citing my common law trademark/servicemark, or send in my mark application first and send a cease and desist under a pending mark? I'm a little worried my mark might be too generic, but I've listed Houston and Reggae Festival as disclaimers on my application so far. I was also curious what would be the best three services to list for my services as a reggae festival and brand for my SM application?
As you can imagine, legal disputes over festival names are not uncommon (even when the festivals offer different services). But to stop someone from using a similar festival title, you need more than a domain name; you need trademark rights. You receive those rights by being the first to use the name in commerce. In other words, if you used Houston Reggae Festival in commerce starting in May 2015, you might have superior rights (referred to as "priority") over subsequent users.
What is "use in commerce?"Your mark is "in use in commerce" when the services are actually advertised, and you can legitimately deliver festival services to customers. Actual use must be a commercial use, not simply a token use to obtain trademark priority. So, if you promote a festival but you cannot provide festival entertainment, your mark is not in use.
Should you apply for federal registration? We believe Houston Reggae Festival is registrable. You will need to disclaim "Reggae Festival" (but not Houston), and you should register in Class 041. That's based on two existing trademark registrations: Kentucky Reggae Festival (Reg. No. 2292636) and Charlemont Reggae Festival (Reg. No. 88104947).
Registration complications. Although the mark is not generic, a USPTO trademark examiner will likely object to it as being "descriptive." To overcome this and achieve registration, you will need to demonstrate that your mark has become distinctive for reggae festivals. You prove this by demonstrating substantial marketing and advertising, or by five years of continuous use. If the examiner classifies your mark as descriptive and you can't prove distinctiveness, you may need to switch your application to the Supplemental Register. Also, you cannot file an ITU application for a descriptive mark.
What should you do? There are too many variables in play -- your date of first use, whether the mark is descriptive, whether you have the financial support needed to take on a trademark dispute -- that we cannot plot your next move. Surely, if you're hosting or planning to host music festivals, you should resolve your name dispute, and apply for trademark registration. As to the order of events, you'd be best served by consulting an attorney. Consider contacting Texas Accountants and Lawyers for the Arts.
March 23, 2019
4:34
What Type of Drawings for PPA?
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Dear Rich: I have created a very simple product with very few components. I am in the process of preparing a PPA [provisional patent application]. Will the USPTO accept photographs that explicitly show the product and how it functions and is made instead of drawings?
There are no rules for provisional patent application illustrations (referred to as "drawings"), except that they must be understandable and fit in a regular file folder. You can use black-and-white or color photographs, computer-created drawings, or handmade drawings. But whatever method you use, your drawings should -- as yours do -- explain how to make and use your invention.
The reality is: The USPTO will accept just about anything that is submitted as a PPA. That's because provisional patent applications are not examined on their merits. The only time they are likely to be read and evaluated is if (1) within one year you file a regular patent application (RPA), and (2) the RPA results in a patent, and (3) a competitor challenges your claim to the earlier filing date of the PPA. The chances of meeting all three criteria are rare. Even so, prepare your PPA drawings diligently. Making the drawings -- whether schematics, photos, or pen and ink -- can help you visualize, and sometimes improve your invention. For more information on patent drawings and PPAs, check out our book, Patent Pending in 24 Hours.
March 17, 2019
1:12
When Beatmakers Collaborate
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Dear Rich: If a beatmaker gives me a song to write lyrics to, my understanding is that based on their intent to have words created for the beat we split the copyrights and publishing equally. Is my understanding correct? What happens when the beatmaker gives the same song to another person to write a rap or lyrics to it? Can they legally do that?
Your understanding of copyright is correct. Assuming you don't have a written agreement to the contrary, and assuming you both intend to merge your contributions into one song, you and the beatmaker are considered co-authors of a joint work and share in the copyright of the whole song equally. (Note: it's not always clear as to whether "beats" alone qualify for copyright protection.)
Multiple lyric versions. Songs can have more than one lyric -- for example "Love Me Tender/Aura Lee," or "Mr. Sandman/Mr. Santa." Although it may complicate ownership, the beatmaker can solicit different lyrics for the same instrumental tracks. These may be separate joint works, or derivatives of your joint work, depending on the timing of events (whose song is completed and recorded first) and the significance of your contribution (whether your contribution to the song is substantial). The most straightforward course of action is to document your arrangement with a co-writer agreement -- a simple document setting forth the intent of the parties, what the ownership percentages are, and signed by both parties. You can find more information about co-writer agreements at our LinkedIn Learning Course: Music Law: Copyrighting a Song.
March 08, 2019
23:25
I Didn't Get a Model Release
» ‎ Dear Rich: An Intellectual Property Blog

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If Leonardo DaVinci were to paint Mona Lisa today, he would need a release before licensing her image.

Dear Rich: A long time ago, I took a picture of two girls after asking permission from their parents (the two girls were minors). Sometime in 2016, I displayed this picture in an art gallery. I realized that I don't have a model release. What can I do?
If all you've done is display the girls' photo at a gallery, a release probably isn't required.
When you need a release. A properly drafted release protects you from two types of lawsuits: (1) if you use the girls' image to sell or endorse something; or (2) if you use the image in a way that defames, or invades the subjects' privacy. By signing the release, the subject promises not to sue over these uses. A release is usually not required for informational or artistic uses (that is, those uses considered an expression of free speech).
Going forward. If you plan on making other uses of the image, it's not too late, to get a model release. If the women have reached the age of majority, they can sign the release. If they're still minors, a parent/guardian should affirm the contract. You can download free model releases at our crafts law site.
23:25
I Didn't Get a Model Release
» ‎ Dear Rich: An Intellectual Property Blog

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If Leonardo DaVinci were to paint Mona Lisa today, he would need a release before licensing her image.

Dear Rich: A long time ago, I took a picture of two girls after asking permission from their parents (the two girls were minors). Sometime in 2016, I displayed this picture in an art gallery. I realized that I don't have a model release. What can I do?
If all you've done is display the girls' photo at a gallery, a release probably isn't required.
When you need a release. A properly drafted release protects you from two types of lawsuits: (1) if you use the girls' image to sell or endorse something; or (2) if you use the image in a way that defames, or invades the subjects' privacy. By signing the release, the subject promises not to sue over these uses. A release is usually not required for informational or artistic uses (that is, those uses considered an expression of free speech).
Going forward. If you plan on making other uses of the image, it's not too late, to get a model release. If the women have reached the age of majority, they can sign the release. If they're still minors, a parent/guardian should affirm the contract. You can download free model releases at our crafts law site.
February 26, 2019
2:30
TEDx Talk Remix?
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Dear Rich: I am giving a TEDx Talk about remixing education where I would like to use 10 seconds of three songs looped to show how a remix is designed using skills that should be taught to students. I have reached out to one record company who owns the rights to two of the songs while the third song is from 1983. Does the use of these song snippets fall under fair use or do I need to continue trying to find permission?
It's possible that your remix may qualify as fair use (discussed below). But even if it does, you may still have to ask for permission depending on what your TEDx Talk contract/license has to say about using copyrighted material. For example, the standard license for a TEDx event includes a requirement for indemnification for any damage caused by your talk, as well as intellectual property insurance (advertising injury). If the record company wants to challenge your interpretation of fair use, you might be denied insurance coverage (for failing to get permission), and you might have to pay your legal fees as well as legal fees for TEDx Talks' defense.
What about fair use? Keep in mind that fair use is a defense that you make in litigation. In other words, it's not enough to simply claim fair use, you have to prove it in court. With that in mind, we believe that reproducing ten seconds of music for educational purposes is likely to be permitted as fair use. Complicating the analysis is that there are two copyrights at issue: the song copyright and the sound recording copyright. And although we disagree with the decision, there is one case that indicates that a two-second use of sound recording copyright requires permission.
Solutions. Of course, there's always the possibility that (a) the copyright owner won't learn of your use, or (b) learns of your use but doesn't pursue it. If you're risk-averse, one solution is to use Creative Commons music or use music from a production music library (PML). PMLs are companies that acquire licensing rights from copyright owners, group compositions into libraries, and offer them on a nonexclusive basis. A typical PML package may contain 10 to 15 original compositions, including a full-length version of each composition as well as shorter “tag” or “cue” version. Because the PML owns both the music publishing and sound recording rights, obtaining permission to use PML recordings is simple. The downside is that PMLs do not include well-known pop music. If using recognizable music is important, you can also consider the assistance of a music clearance expert (search "music clearance").
2:30
TEDx Talk Remix?
» ‎ Dear Rich: An Intellectual Property Blog

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Dear Rich: I am giving a TEDx Talk about remixing education where I would like to use 10 seconds of three songs looped to show how a remix is designed using skills that should be taught to students. I have reached out to one record company who owns the rights to two of the songs while the third song is from 1983. Does the use of these song snippets fall under fair use or do I need to continue trying to find permission?
It's possible that your remix may qualify as fair use (discussed below). But even if it does, you may still have to ask for permission depending on what your TEDx Talk contract/license has to say about using copyrighted material. For example, the standard license for a TEDx event includes a requirement for indemnification for any damage caused by your talk, as well as intellectual property insurance (advertising injury). If the record company wants to challenge your interpretation of fair use, you might be denied insurance coverage (for failing to get permission), and you might have to pay your legal fees as well as legal fees for TEDx Talks' defense.
What about fair use? Keep in mind that fair use is a defense that you make in litigation. In other words, it's not enough to simply claim fair use, you have to prove it in court. With that in mind, we believe that reproducing ten seconds of music for educational purposes is likely to be permitted as fair use. Complicating the analysis is that there are two copyrights at issue: the song copyright and the sound recording copyright. And although we disagree with the decision, there is one case that indicates that a two-second use of sound recording copyright requires permission.
Solutions. Of course, there's always the possibility that (a) the copyright owner won't learn of your use, or (b) learns of your use but doesn't pursue it. If you're risk-averse, one solution is to use Creative Commons music or use music from a production music library (PML). PMLs are companies that acquire licensing rights from copyright owners, group compositions into libraries, and offer them on a nonexclusive basis. A typical PML package may contain 10 to 15 original compositions, including a full-length version of each composition as well as shorter “tag” or “cue” version. Because the PML owns both the music publishing and sound recording rights, obtaining permission to use PML recordings is simple. The downside is that PMLs do not include well-known pop music. If using recognizable music is important, you can also consider the assistance of a music clearance expert (search "music clearance").
February 19, 2019
15:00
Can I Post Performer's Image Without Consent?
» ‎ Dear Rich: An Intellectual Property Blog

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Photo by Mark Marek Photography

Dear Rich: I am building a webpage where visitors can register how much they would pay to see an artist's concert. Would the use of an artist's image without their consent be considered fair use?
You probably don't need the performer's permission (more on that later), but you would need permission from the owner of the copyright in the performer's photo. That could be the performer, but more likely it's the photographer, a stock photo business or a record label (or management).
Is it fair use? Your use of the pictures doesn't seem transformative, and whether your site sells tickets, or just operates as a virtual tote board of performer popularity, it's a commercial venture. These factors weigh against a finding of fair use.
But no matter ... You can get by without seeking permission by using public domain or Creative Commons images or promotional photos supplied by record labels or a band's management. Another pre-cleared source of imagery is Wikipedia where the provenance of each photo is provided by double-clicking on the Wiki picture (that's where we got the photo of Motörhead, above). If you're especially concerned about disputes, pay attention to any license limitations connected with the license -- for example crediting requirements.
Right of publicity. Aside from copyright, another legal concern is the right of publicity -- the legal right to prevent the unauthorized use of a person's image for purposes of endorsement. This shouldn't be an issue unless you are using a performer's name or image to promote your website, for example in banner ads.
Hassle factor. You may wonder -- after sorting through this legal maze -- how some sites get away without asking for permission when they use copyrighted photos. Three factors make that possible: (1) the owner isn't aware of the use; or (2) the owner doesn't consider the matter worth pursuing; or (3) the owner sees a benefit to the use and doesn't want to remove it.
15:00
Can I Post Performer's Image Without Consent?
» ‎ Dear Rich: An Intellectual Property Blog

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Photo by Mark Marek Photography

Dear Rich: I am building a webpage where visitors can register how much they would pay to see an artist's concert. Would the use of an artist's image without their consent be considered fair use?
You probably don't need the performer's permission (more on that later), but you would need permission from the owner of the copyright in the performer's photo. That could be the performer, but more likely it's the photographer, a stock photo business or a record label (or management).
Is it fair use? Your use of the pictures doesn't seem transformative, and whether your site sells tickets, or just operates as a virtual tote board of performer popularity, it's a commercial venture. These factors weigh against a finding of fair use.
But no matter ... You can get by without seeking permission by using public domain or Creative Commons images or promotional photos supplied by record labels or a band's management. Another pre-cleared source of imagery is Wikipedia where the provenance of each photo is provided by double-clicking on the Wiki picture (that's where we got the photo of Motörhead, above). If you're especially concerned about disputes, pay attention to any license limitations connected with the license -- for example crediting requirements.
Right of publicity. Aside from copyright, another legal concern is the right of publicity -- the legal right to prevent the unauthorized use of a person's image for purposes of endorsement. This shouldn't be an issue unless you are using a performer's name or image to promote your website, for example in banner ads.
Hassle factor. You may wonder -- after sorting through this legal maze -- how some sites get away without asking for permission when they use copyrighted photos. Three factors make that possible: (1) the owner isn't aware of the use; or (2) the owner doesn't consider the matter worth pursuing; or (3) the owner sees a benefit to the use and doesn't want to remove it.
15:00
Can I Post Performer's Image Without Consent?
» ‎ Dear Rich: An Intellectual Property Blog

Tags: [edit]

Photo by Mark Marek Photography

Dear Rich: I am building a webpage where visitors can register how much they would pay to see an artist's concert. Would the use of an artist's image without their consent be considered fair use?
You probably don't need the performer's permission (more on that later), but you would need permission from the owner of the copyright in the performer's photo. That could be the performer, but more likely it's the photographer, a stock photo business or a record label (or management).
Is it fair use? Your use of the pictures doesn't seem transformative, and whether your site sells tickets, or just operates as a virtual tote board of performer popularity, it's a commercial venture. These factors weigh against a finding of fair use.
But no matter ... You can get by without seeking permission by using public domain or Creative Commons images or promotional photos supplied by record labels or a band's management. Another pre-cleared source of imagery is Wikipedia where the provenance of each photo is provided by double-clicking on the Wiki picture (that's where we got the photo of Motörhead, above). If you're especially concerned about disputes, pay attention to any license limitations connected with the license -- for example crediting requirements.
Right of publicity. Aside from copyright, another legal concern is the right of publicity -- the legal right to prevent the unauthorized use of a person's image for purposes of endorsement. This shouldn't be an issue unless you are using a performer's name or image to promote your website, for example in banner ads.
Hassle factor. You may wonder -- after sorting through this legal maze -- how some sites get away without asking for permission when they use copyrighted photos. Three factors make that possible: (1) the owner isn't aware of the use; or (2) the owner doesn't consider the matter worth pursuing; or (3) the owner sees a benefit to the use and doesn't want to remove it.
February 08, 2019
19:03
Musician Looking For YouTube Royalties
» ‎ Dear Rich: An Intellectual Property Blog

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Dear Rich: I signed a publishing deal with a major publisher several years ago. I had established a relationship with a popular Youtube celebrity who began using my music heavily in her posts. I made the publisher aware of this use and asked them to handle monetization. My music was streamed in the background of these posts tens of millions of times, and so far according to my publisher, my total Youtube royalties are less than a dollar. The publisher stated that it would have been the responsibility of the publisher's rep, a person who no longer works for them, to make sure that Youtube had what they needed to pay me for my music. The publisher also stated that it would have been my distributor’s responsibility, although I don’t have a distribution agreement. What can I do?
Your options are limited. There are three types of income generated when someone uses your music as the soundtrack for a YouTube video (referred to as user-generated content, or UGC) and each type of revenue has its own rules.
- The performance royalty is paid by the songwriter's performing rights society (either BMI, ASCAP, SESAC or SOCAN). These payments are small (one songwriter reported receiving $80 for nine million video views). To get paid you have to belong to a performing rights society and have registered your song titles. The society's payment is based on data from YouTube's Content ID system (more on that, later).
- The mechanical-sync payment is made to the owner of the song (usually the songwriter or a music publisher). It's a payment for the right to use the song on the video's soundtrack. Your publisher may have made a confidential blanket arrangement with YouTube and your payment, if any, would be determined by your publishing agreement. Songwriters who have not signed with a publisher can affiliate with a company that collects these payments such as Songtrust, Audiam, or CDBaby Pro Publishing.
- The sound recording royalty is paid to the owner of the master recording of the song (usually a label, producer, or the artist). When your music is included on user-generated content -- for example, your song is used as the soundtrack for a dancing puppies video -- you are entitled to a cut of the revenue from advertising on the dancing puppies' page. However, you are entitled to the revenue only if YouTube has notice that your recording is used on that video. The notice is usually supplied by YouTube's Content ID system.
The Content ID system makes an audio fingerprint of your music and scans YouTube. If it finds a match, the music owner can shut the video down, or monetize it for ad revenue. Music labels have partnered with YouTube to bring their music into Content ID. Unsigned musicians, if they qualify for Content ID, can apply directly to YouTube to be part of the program. Distributors like CDBaby will manage the Content ID collections for you.
What to do? Assuming you own the master recording, you'll have a hard time obtaining sound recording royalties. YouTube pays ad revenue after it receives notice and apparently somebody failed to register your music with Content ID. You should have received performance royalties if you registered your compositions with BMI, ASCAP, etc. Your publishing agreement, if you can decipher it, should spell out your publisher's obligation. Speaking to a lawyer would be your best bet, but unfortunately, considering what musicians earn on YouTube, hiring a lawyer might not be worth it.
February 01, 2019
7:44
Needs Historic Football Photos
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Dear Rich: I am a retired NFL Veteran and also a retired Special Educator. I have written a book called "THE FIRST GAME" which is about the evolution of American Football. I need a recommendation for someone who specializes in historic American football photos.
If you're writing about the first college game (1869) or the first NFL game (1920), keep in mind that all photographs published before 1924 are in the public domain, meaning you are free to use them without anyone's permission. To give you an idea of the breadth of imagery check out the 1,023 historic football photos, prints, and drawings available at the Library of Congress. Other sources of public domain content, for example, the Public Domain Review also contain historic football imagery.
Football photos published after 1923. If the photo you want was published from 1924 through 1963, chances are also good it is free to use if the owner failed to renew it (which 85% of owners failed to do). You can check whether a work was renewed by following the instructions in Circular 22.
If you're seeking photos protected by copyright, you'll need to either (1) deal with a photo researcher/clearance expert, or (2) deal with a photo licensing service. You can find the former by searching online for "freelance photo researcher" or "photo clearance." As for finding photo licensing services, you're best off checking out AP Images, Icon Sportswire, and Getty (for Sports Illustrated's photo collection).
January 17, 2019
1:13
Obtaining 1960 Song From Copyright Office
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Dear Rich: My husband published and obtained a copyright on a song and music in 1960. He subsequently misplaced his copy of the material. How would he go about receiving a copy of his song and music from the Copyright Office?
Because it's been almost 60 years since the song was deposited at the Copyright Office, we think it will be difficult, if not impossible to access your husband's "deposit materials" (as they are known in copyright parlance). Here's why.
The material may not be under copyright. At the time (1960) that your husband's song was registered, works had to be renewed after 28 years. So, unless your husband renewed the registration in 1988, the song is no longer under copyright.
The deposit materials may have been destroyed. In order to reconcile "the storage limitations of the Copyright Office with the continued value of deposits," the Register of Copyright is empowered to destroy deposit materials when necessary. In other words, decades-old deposits without historical value are typically destroyed.
Your husband may not qualify to request deposit materials. The Copyright Office will only furnish a copy of deposit materials if the materials are the subject of litigation, a court has ordered a copy, or "written authorization is received from the copyright claimant of record or the owner of any of the exclusive rights in the copyright..." Because a lack of renewal may have terminated copyright, your husband is no longer the copyright owner.
How to obtain deposit materials. If you still want to try for your deposit materials, follow the instructions at the Copyright Office site and pay the search fees required.
1:13
Obtaining 1960 Song From Copyright Office
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Dear Rich: My husband published and obtained a copyright on a song and music in 1960. He subsequently misplaced his copy of the material. How would he go about receiving a copy of his song and music from the Copyright Office?
Because it's been almost 60 years since the song was deposited at the Copyright Office, we think it will be difficult, if not impossible to access your husband's "deposit materials" (as they are known in copyright parlance). Here's why.
The material may not be under copyright. At the time (1960) that your husband's song was registered, works had to be renewed after 28 years. So, unless your husband renewed the registration in 1988, the song is no longer under copyright.
The deposit materials may have been destroyed. In order to reconcile "the storage limitations of the Copyright Office with the continued value of deposits," the Register of Copyright is empowered to destroy deposit materials when necessary. In other words, decades-old deposits without historical value are typically destroyed.
Your husband may not qualify to request deposit materials. The Copyright Office will only furnish a copy of deposit materials if the materials are the subject of litigation, a court has ordered a copy, or "written authorization is received from the copyright claimant of record or the owner of any of the exclusive rights in the copyright..." Because a lack of renewal may have terminated copyright, your husband is no longer the copyright owner.
How to obtain deposit materials. If you still want to try for your deposit materials, follow the instructions at the Copyright Office site and pay the search fees required.
December 26, 2018
15:52
Band Wants to Use President's Name
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Dear Rich: I read your Music Law book, but it didn't have the answer to my question. I'm the leader of a covers band. As a side project, some members created a group called Trumpelstiltskin and the TrumPets. The bass player's wife is a paralegal, and she said we could get in legal trouble for using the president's name. I can't believe that's true.
If your band is making a statement with its music -- that is, providing an opinion, commentary, parody, or another form of protected speech -- you are most likely free to use the name based on the free speech protections provided in the First Amendment. Equally important, despite their rights under trademark and right of publicity laws, most presidents don't chase after typical uses (or abuses) of their name or persona.
That being said ... Your paralegal friend may be referring to the fact that you won't be allowed to register your band name at the USPTO. For example, in 2017 an individual sought to register DONALD AND THE TRUMPETTES for purposes of a website and a blog. The Trademark Examiner rejected the application unless Trump's consent was provided. (The application was abandoned.) However, registration is not mandatory, and an inability to register does not preclude your use in commerce.
Two final thoughts: (1) If your band does generate sufficient publicity (for example, make it on to Fox News) you may hear from one of Trump's lawyers (presumably, one that's not in jail). After all, Trump is the first president with a trademark portfolio. (2) As to "TrumPets," beware that the sound-alike term, Trump Pets, may eventually become another of the president's marks.
December 20, 2018
19:22
Should I Trademark T-Shirt Phrases?
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Dear Rich: I have a t-shirt company, and I want to know if I need to trademark each phrase or saying I want to print or do I have to list with the Supplemental Register? $325 for each saying doesn't seem to add up.
Save your money for marketing purposes. You're unlikely to get any protection at the U.S. Patent and Trademark Office (USPTO) if you try to register clever t-shirt phrases.
But if Nike can "Just Do It" why can't I? Companies can register slogans and phrases if they signify a source for goods or services. So, if M&Ms brings back their slogan, "Melts in your mouth, not in your hands" on a t-shirt, that's branding for their business. But funny short phrases that are meant to provoke thought or laughter don't serve as branding for your t-shirt business. These phrases are considered "ornamental" by the USPTO because they are a form of decoration, not a source-identifier. You will have a hard time overcoming the trademark examiner's objection ... and the $325 trademark fee is not refundable.
What about the Supplemental Register? The Supplemental Register is like a bullpen for descriptive trademarks that don't presently qualify for Principal Register now but will, after several years of use. A trademark application that's rejected for ornamentality would not qualify for the Supplemental Register. We've written more about the t-shirt business here and here.
December 13, 2018
14:00
All the News That's Fit to Recite With Music
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Dear Rich: I'm a musician who composed a piece of instrumental music inspired by a 1995 New York Times article. When performing the music, there is a section during which I recite 110 words of the 2,443-word article. I am familiar with the Gerald Ford case, and I don't believe the text in question would stand out as the "heart" of the story. When I perform the piece, I tell audiences the source of the text. I'm now planning to record it, and credit for the text will be noted in the attendant printed material. Does this sound like fair use? If not, what do I do? Pay for a reprint?
We think your work qualifies as "fair use" (as explained below). If the New York Times finds out about your use, we hope their lawyers agree with our analysis and leave you alone. But if they don't, they can file a lawsuit and make you prove your right to fair use. That could quickly turn into a battle of financial attrition in which your legal rights take a backseat to your bank account.
What about asking for permission? We believe that you're performing, editing, and adapting the article to a new medium, so pursuing reprint rights won't help. The Times doesn't seem eager to encourage adaptations like yours.

Editing and adaptation of New York Times content is generally not permitted, and must be approved by The New York Times. Use of article excerpts is possible with permission from The New York Times, without alteration to the intended meaning of the original text.

You can try asking the Times for clearance. If they entertain your request, expect to pay a fee of more than $200. If the Times turns down your request, you'll find yourself in an awkward position because the newspaper is now aware of the details of your work. That doesn't prohibit you from using the article and claiming fair use (as this Supreme Court case indicates).
Is it fair use? Juxtaposing text from a New York Times article with original music gives the text a different character, a new expression, and "new aesthetics with creative and communicative results distinct from [the original work]."(Cariou v. Prince). There are other factors to consider when a judge determines fair use but as the Supreme Court stated two decades ago, "[t]he more transformative the new work, the less will be the significance of other factors." Nonetheless, two of the other three factors lean in your favor -- the amount and substantiality of the portion taken (4.5%, and it's not the heart of the work), and the effect of the use upon the potential market (what potential market is there for a 23-year old news article?). BTW, the Gerald Ford case was primarily about the right of first publication which doesn't apply to your situation.
What should you do? We want you to achieve your musical vision and we want you to stay out of court. As for the latter, here are some things to consider.
- Is the Times likely to find out about your use? Obviously, you're better off if the answer is "No."
- Will the Times pursue the matter if they find out?We like to think that the Times would be reasonable, recognize your borrowing as fair use and, as champions of free speech, would not want the publicity of going after a music composer.
- Are you a worthwhile target? If you're not wealthy and not selling a lot of records, you're usually less appealing as a defendant.
December 04, 2018
15:24
Satire, Parody and Fair Use -- Gulliver's Travels
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Dear Rich: I'm working on a modern update of Gulliver's Travels. Like the original it's a satire, and in one of the chapters Gulliver travels to an island populated by film characters like Forrest Gump and Dirty Harry. I am concerned that my use of the characters will infringe copyright. I have read that parody can be protected as fair use but satire cannot.
Yes, parodies are more likely to receive protection but don't give up on fair use just because the work is a satire.
What’s the difference between parody and satire?
Parody is the imitation or copying of a work or a genre to make fun or comment on that work. For example, the film Blazing Saddles copies and imitates many classic western films to make fun of those works. The same is true of Austin Powers, Scary Movie, Spaceballs, This is Spinal Tap, and Shaun of the Dead. In a satire, the work ridicules or derides some aspect of society or human behavior. Some well-known movie satires include Dr. Strangelove, Catch 22, Office Space, Animal Farm, and Idiocracy.
Dr. Seuss v. Dr. Juice. Satire and parody are not mutually exclusive and may be confused with each other. That was the case when the estate of Dr. Seuss sued the creators of The Cat NOT in the Hat!, a book that retold the O.J. Simpson murder trial in the poetic meter used in Dr. Seuss books (known as anapestic tetrameter). Billed as "A Parody," the Dr. Juice book featured a front and back cover illustration similar to The CAT in the HAT. The district court found that the Dr. Juice book infringed Seuss copyrights. On appeal, the creators of Dr. Juice claimed fair use based on parody. The Ninth circuit disagreed ruling that the Dr. Juice book was merely a retelling of the OJ murder trial:

"Although The Cat NOT in the Hat! does broadly mimic Dr. Seuss' characteristic style, it does not hold his style up to ridicule. ... [The creators of Dr. Juice] merely use the Cat's stove-pipe hat, the narrator ("Dr. Juice), and the title (The Cat NOT in the Hat!) "to get attention" or maybe even "to avoid the drudgery in working up something fresh."

The underlined sections are taken from the Supreme Court's holding in the Two Live Crew case in which the court also stated:

"Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing."

What can you do? Just because your work uses humor doesn't mean you have to get caught up in the parody/satire conundrum. The "parody defense" places most of its emphasis on the first of four factors but these factors are configured in many ways to build a fair use defense. The best approach is to review the case law summaries at the Stanford Fair Use site or at the Copyright Office Fair Use Index.
November 21, 2018
15:00
News Aggregator Chased by Photographer
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Dear Rich: I run a news aggregator that uses RSS feeds to pull in a headline, a small photo and a few lines of text. We pull content from maybe 2,000 sources. Visitors who want to read the full story click on a “read more” button and get taken back to the original source. I recently have been sued by a photographer whose photo appeared on our site. We gave the original source credit for the story and the photo, and of course we provided a link back to the original site. This photographer says I didn’t have the right to include her photo on our site. Now it looks like we might be heading to court. If I truly have done nothing wrong and if what I’m doing is considered fair use – whatever that is – why should I be punished or even subjected to all this? My site is relatively new and I have put significant money into the enterprise. I need time to build this up, and now I’m being threatened. I have tried to reach the publication that published the photo to see if it can shed more light on this, but nobody answers my emails or voice messages. It’s a big publication; it’s hard for me to believe they didn’t have the rights to publish on the Internet.
We don't believe it matters whether the big publication had permission to publish the photo. If they did have permission, it wouldn't extend to you. If they didn't have permission, you're still in the same pickle.
So, how do aggregators do it? Not all news aggregators operate from an identical model but it's generally considered "safe" -- meaning you won't hear from any lawyers -- to publish only the headline, a link back to the news source, and perhaps some original text describing the content (without reproducing it). How do news aggregators like Apple, Google and Yahoo! reproduce photos and text? These aggregators pay for permission to reproduce publications like the New York Times and the Associated Press. They don't pay smaller news sources and these publications don't object to being aggregated because they reap the benefits of link backs that result in more traffic. As you can see, a free lance photographer who reaps no financial or linking benefit from aggregation may find it more lucrative to chase infringers, especially small companies that can't afford to fight.
Making a case for fair use. We assume you used the complete photo. And we assume you didn't use it for a transformative purpose. Both of these factors make it hard to argue for fair use. If you had displayed a thumbnail of the photo, you may be in a better position. In a 2007 case, a court ruled that Google’s thumbnail reproductions of images from an adult men’s magazine website were permitted as a fair use primarily because the purpose was transformative -- the thumbnail was used for indexing and searching. (See also this 2003 case.)
What should you do? First get proof that the photographer does own the copyright. Obtain a copy of the registration and look for contradictions -- for example, she assigned the photo copyright to someone else, or the photo was a work made for hire. Second, run an image search for the photo. You should contact the websites who have also reproduced the photo to learn if they have been hassled and if so, what was their resolution? Third, consult with a copyright attorney and ask for an estimate of your odds and your costs. (Be wary of Pyrrhic victories). Also, check your business insurance just in case the policy covers copyright infringement.
November 14, 2018
0:28
How to Donate Book Royalties
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Dear Rich: How do I go about donating a portion of royalty proceeds from a book to a charity?
If your publisher is amenable, the easiest method to donate royalties is to request that your publisher pay a portion of your royalties directly to the charity. You can formalize the payment (or payment system if you wish to cap payments or limit them to a specific time period) by including the details in your publishing agreement or in an amendment.
If the publisher isn't willing to make separate payments to the charity, you can either pay the charity directly from your royalty payments, or you can contact the charity for assistance. Many nonprofits have a mechanism for receiving royalties while the author is alive (or as "legacy gifts" following the author's death).
Taxes. The practice of donating book royalties to nonprofits was popularized in the 1980s when authors and publishers began to reap the marketing benefits of being aligned with a social cause (for example, a portion of royalties for a Rock Hudson biography was donated to an AIDS foundation). Some editors and authors believed the practice would also provide tax benefits. In reality -- unless you assigned the book's copyright (which means you give up ownership of your work) to the charity -- there may not be any tax benefits from donating a portion of the royalties. For example, if your publisher pays 75% of royalties to you and pays 25% to your charity, you would still be taxed for the full 100%. You can receive an income tax deduction for your donation, but this deduction can't be more than 50% of your adjusted gross income for the year -- a formula that may not provide much tax relief.
November 05, 2018
15:00
Is 1963-1964 Horror Film in the Public Domain?
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Chrysler Avanti 1963-1964

Dear Rich: I restore public domain films so I'm familiar with the rules but I'm having difficulty determining the copyright status of an horror exploitation film from the early 1960s. The copyright registration was made in the 1980s and states that the film was first distributed in 1964. However, a few online sites such as IMDB state the film first debuted in1963. According to my research the different years (1963 or 1964) could make a big difference in copyright status. What should I do if the first release was really in 1963?
If the film debuted in 1963, then it is probably in the public domain. If its debut was 1964, the film is very likely still under copyright. The reason: works first published before 1964 had to be renewed otherwise they became public domain. Only 15% of works were renewed so the odds that a B-picture from fifty years earlier was renewed is slim. However, works debuting in 1964 (and through 1977) did not have to be renewed and are protected for 95 years from publication date. (In the case of a 1964 film, that would be until 2059.)
What do you do? Under copyright law, the copyright registration for the film creates a presumption of ownership and you have the burden of rebutting that presumption. You will need evidence. An IMDB listing is helpful but not determinative. You would be better served with newspaper or trade advertisements or reviews. Also helpful would be the date of the copyright notice on the film or posters, as well as research performed by sites like Horrortheque. Finally, you should have a Copyright Office search performed to see if the film was renewed (only renewals for books are available online). All of this evidence gathering may put you off the project but it will all be necessary if the current copyright claimant comes after you and you need to defend your position.
October 31, 2018
22:11
Can I Set Amelia Earhart's Words to Music?
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Amelia Earhart, 1937

Dear Rich: I'm inquiring about setting Amelia Earhart's words to music. She published three books between 1928 and 1937, and a poem (Courage, From an Airplane, To M_). She was declared dead in absentia January 5, 1939 (aged 41). How could we determine whether or not her work is public domain? The website, ameliaearhart.com, states that CMG Worldwide acts as the exclusive agent for Amelia Earhart.
CMG Worldwide represents Amelia Earhart for branding opportunities -- that is, they license Earhart's image, name, or personna to sell a product or service (much like her husband, G.P. Putnam, licensed her name and image for Lucky Strikes). Although CMG states that it "specializes in clearing copyrights, trademarks, and rights of publicity," we couldn't find any evidence that the agency claims or clears copyright on Earhart's literary properties.
Copyright research. In any case, a bit of research may moot any need for permission. Literary works published between 1928 and 1937 are protected for 95 years provided that they were renewed 28 years from first publication. (Less than seven percent of books were renewed). Literary renewals can be searched at Stanford's Copyright Renewal Database. A search for Amelia Earhart turned up one renewal for "The Last Flight," first published in 1937 and renewed in 1964 (see below). So, that work is protected until 2032.

We also searched under Earhart's husband's name (Putnam co-authored many books) but found no other renewals for her. In other words, the poem and two of her books, "20 Hours, 40 Min: Our Flight in the Friendship," and "The Fun of It," are not showing up as renewed. Assuming the database is accurate, these two books (and the poem) would be in the public domain and free to use. However, even if this correct, we're not clear whether CMG Worldwide would pursue you should you choose to create a musical based on Earhart's life (or even a t-shirt with Earhart's image).
October 25, 2018
15:00
Can I Trademark My Cat?
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Dear Rich: Can I trademark my cat? I am writing a book about my cat's fictional adventures and using his name. The book contains drawings and photographs of him, too.
It's possible to use trademark law to obtain exclusive rights for your cat (as one feline has proven). However, there are some things to keep in mind.
The USPTO will only register a book title if it is part of a book series (for example, Pete the Cat for children's books). So you won't be able to federally register your cat's name for books until you've got a second book. You can, however, register in a different class.
What are classes? When you apply for a trademark, you seek exclusive trademark rights for a class (or classes) of goods or services. For example, if your cat were featured in a series of books, you would register in Class 16 (Paper Goods). If your cat was a superstar on Instagram and earning money from live performances, you would register in Class 41 (Educational and Entertainment Services). Your registrations are restricted to those classes of goods or services that you are currently selling or that you plan to offer (if you are registering on an intent-to-use basis). For each class of goods or services that you register, you must pay a separate registration fee and you must meet the basic trademark requirements.
What about copyright? Copyright provides the exclusive right to reproduce or modify a creative work such as music, art, photographs, books, and movies. You'd use copyright law to protect the text, illustrations and photos. Keep in mind that even though it's your cat in the photo, you don't own the copyright unless you took the picture or paid for the rights. (The photographer usually owns the copyright.) A combination of copyright and trademark will augment your cat's intellectual property rights so you can concentrate on earning the big bucks.
P.S. What about your cat's right of publicity? Humans can stop others from using their likeness to endorse products under the right of publicity, but animals don't have a right of publicity as we explained in a related question.
October 15, 2018
15:00
Can I Use Baseball Player's Image in Book on Batting?
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Dear Rich: I'm writing an educational book teaching techniques on how to hit a baseball, using images of professional baseball players showing their swings. Are releases or consents required from each of the players to use their likeness?
No, you probably don't need permission from the players to use their image but you will need permission from the copyright owners of the images you are using.
The right of publicity. The right of publicity gives individuals the ability to stop the unauthorized commercial use of their likeness or personna. The right of publicity typically does not prevent editorial or informational uses, only commercial uses. For example Michael Jordan could prevent the unauthorized use of his likeness in a supermarket advertisement, but James Brown could not halt the sale of James Brown images by Corbis, a stock photo company that provided images for editorial uses. As long as you avoid creating the impression that the baseball players endorse your book -- that is, you don't use the player's likeness in the ads or on the cover of the book -- you should not have any right of publicity issues.
Copyright permissions. What's the source for your photographs? If you've been grabbing screenshots from the Internet, you may run into a problem if the copyright owner sees your book. That's because most baseball imagery from the past fifty years is still protected by copyright. If you've been operating with pictures from fee-based stock photos services such as Getty, AP Images, or MLB, you should be fine.
P.S. Don't forget trademarks. If prudence is your thing, avoid MLB references in ads or on the cover of your book.
October 09, 2018
14:00
Whistleblower Wants to Blow Off NDA
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Dear Rich: Does an NDA (nondisclosure agreement) prevent me from reporting illegal activity at work?
A whistleblower -- an employee who has a reasonable belief that an employer is violating the law and who reports the violation -- is often protected from retaliation by a patchwork of whistleblower laws. In some cases, these laws are aimed at specific employees -- for example, federal employees, military personnel, and employees of companies regulated by federal agencies. In other cases, when whistleblowing involves disclosure of trade secrets, and the employee has signed an NDA (nondisclosure agreement), federal and most state laws grant immunity to the whistleblower for violation of the NDA. In one case, a court ordered a company to revise its NDA to include a clause recognizing whistleblower rights. In addition, some companies have internal whistleblower reporting procedures that may have to be followed. For all these reasons, and because of the risks involved in whistleblowing, an attorney's advice is essential.
October 04, 2018
15:00
Find the Owner of a Registered Trademark
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October 01, 2018
15:00
How Does Landlord Legally Remove Mural?
» ‎ Dear Rich: An Intellectual Property Blog

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pre-historic Lescaux cave drawings

Dear Rich: I own a building and the previous owner had commissioned an artist to paint a mural with maritime themes. The new tenant doesn't want to keep the mural. I was told by another landlord that there is a law to follow before getting rid of a mural. What's the correct legal procedure?
Assuming the mural was created after December 1, 1990 and is recognized as having “artistic merit” or “some level of local notoriety," or is of “recognized stature” as an artistic work, the mural cannot be destroyed without properly notifying the artist. This is based on the federal Visual Artists Rights Act (VARA) and is true regardless of whether the artist owns copyright or whether the artwork is finished. Under VARA, the property owner must give the artist 90 days notice. This article details what happens in the real world and explains that the landlord's primary responsibility is to "give notice at the artist’s last-known address and wait 90 days for the artist to remove [the artwork] at his own expense." A few states have art preservation laws as well. The California Art Preservation Act (CAPA) is often used in combination with VARA lawsuits. For example, when a building owner painted over a famous L.A. mural without first providing notice as required under California law, the artist sued under the California and federal laws and recovered 1.1 million.
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September 25, 2018
4:41
Sony Complains About Bach Soundtrack Music
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Dear Rich: I am an animation student working on a short film that uses Bach's Unaccompanied Cello Suite 1 Prelude as a background audio track. The Bach music track is nine minutes long, edited down to 90 seconds. Since Bach was a composer from the 1700s, I figured I wouldn't be facing copyright claims, but upon posting it to YouTube, I received a copyright claim from Sony Music Entertainment on behalf of Sony Classical. I planned on sending my short to a student film festival.
Two copyrights are associated with musical recordings: the "musical composition" copyright for creating the music (what would have been Bach's copyright); and the "sound recording" copyright for the audio recording and arrangement (Sony's copyright). Although all of Bach's musical compositions including Cello Suite 1 Prelude are in the public domain, some of the recordings are protected. Apparently YouTube's Content ID police tracked down your use.
Getting "master use" rights from Sony for a student film may be difficult, expensive, or impossible. You can start by contacting Sony Music Licensing. If that doesn't work, here are three other choices.
Stock music version. The easiest solution is to license a stock music version of the piece. Companies such as Pond5.com feature multiple versions for $20 to $30. Run a Google search to find other Creative Commons or public domain versions of the cello suite.
Fair use. You could respond to the YouTube copyright claim by claiming fair use. However, if Sony disputes your fair use argument, you may have to make your case in federal court. Also, there could be a problem entering festivals because you may have to warranty that your movie contains no infringing material. Festival directors may not appreciate the fair use analysis.
The semitone/transpose hack. There are anecdotal reports that transposing the audio by a semitone or speeding it up slightly can prevent Content I.D. from catching infringing uses. (There are contrary indications as well.) In any case, it's still infringement.
For your FYI Dept. There was no copyright law in Germany during Bach's life, and according to some scholars, the composer allegedly took advantage of that fact.
September 20, 2018
1:22
Mom Wants Tax Loss From Daughter's Recording
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Many moms have encouraged their pop star daughters' success

Dear Rich: I'm a CPA and I can’t find much information on how a parent of a minor should structure a business with their child. My daughter is a 16-year-old singer/songwriter and she is recording her first EP. Obviously, I am paying for everything. I can’t decide whether an LLC is best and if I did that how would I do the ownership. I’d love to get the tax loss on my tax return.
Your daughter's lucky to have a savvy mom who recognizes the importance of managing her music finances. If the money you spend on your daughter's business exceeds your daughter's income for the year, your business incurs a loss. There are a few ways to address your losses:
Sole proprietor (You own the business). [Pros: Easy to create and manage. Cons: No limitation on liability, only suitable for a single owner.] Claiming the loss as a sole proprietor as a "Schedule C" business requires the least paperwork. You create a business to promote your daughter's music and as sole owner, you file a Schedule C with your Form 1040. That allows you to deduct your music business losses against regular income. There are some caveats, as you probably know, the main one being the 3-out-of-5 year rule. You may want to sign an agreement with your daughter compensating you when she begins making money from music performances or recording.
General partnership (You and your daughter own the business). [Pros: Easy to create and manage. Cons: No limitation on liability, each partner is liable for other partner's actions.] If you want to own the business with your daughter, you can form a general partnership. You don't have to register your partnership with the state and you don't need a written partnership agreement although it is helpful for documenting the percentage of ownership. A partnership does not pay taxes, but it must complete and file a tax return (Form 1065, called an “informational return”) and each partner also receives a Schedule K-1, which contains the relevant profit or loss information. Based on the information in the K-1 form, the partners declare the loss (or profit) on their individual 1040 tax returns using a Schedule E. Like a sole proprietorship, you can deduct the partnership loss against regular income.
LLC (You -- or you and your daughter -- own the business). [Pros: Limits personal liability. Cons: Must register with the state; fees required for formation (and in most states, owners must pay annual maintenance fees).] An LLC reduces personal liability, a factor which may not be of great importance at this point in your daughter's career. Tax forms for an LLC are prepared in the same way as they are for a sole proprietorship (as in the case of a 1-person LLC) or partnership (in the case of an LLC with two or more members). Because of the expenses of forming an LLC, we'd suggest waiting until your daughter has achieved some measure of success with downloads or bookings.
September 17, 2018
20:06
Coach and Player Interview Release
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Dear Rich: I am interviewing members of a high school team and their coaches for a book. I have a release agreement for players but not for the high school coach. How should I adapt the release?
A signed release (as we explain here) should serve two purposes: the subject consents to use of interview statements, and the subject releases you (and your publisher) from being sued for libel, invasion of privacy, or copyright infringement (since the speaker’s words may be copyrightable).
Player v. coach. There shouldn't be a substantive difference between a player's release and a coach's release except for the "parental consent" provision that you can use for players under the age of majority (18 in most states). We've posted a sample interview release at the Stanford Fair Use site that includes an optional "parental consent" provision. (We've written about parental consents here and here).