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Dear Rich: An Intellectual Property Blog (75 unread)

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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 Shloss and her publisher were pressured by Joyce's estate to remove published and unpublished material relating to James and Lucia Joyce.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?
» ‎ Dear Rich: An Intellectual Property Blog

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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?
» ‎ Dear Rich: An Intellectual Property Blog

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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!
» ‎ Dear Rich: An Intellectual Property Blog

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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?
» ‎ Dear Rich: An Intellectual Property Blog

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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
» ‎ Dear Rich: An Intellectual Property Blog

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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

Tags: [edit]

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?
» ‎ 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").
2:30
TEDx Talk Remix?
» ‎ Dear Rich: An Intellectual Property Blog

Tags: [edit]

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

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.
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).
September 13, 2018
16:00
Private Facts
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Dear Rich: I'm thinking of doing a podcast where people share their personal stories of struggle and triumph, which in many cases might include private facts. In your podcasting course, you mention that it's not okay to share private facts, even if they are true. What can I do to minimize that concern?
When potentially embarrassing information is disclosed about an individual without relation to a legitimate public concern it may give rise to a claim of invasion of privacy. For example, wrestler Hulk Hogan sued Gawker for publishing sex tapes.
The claim. The Reporter's Committee has summarized the elements of a private-facts invasion of privacy claim: (1) the information is so personal and intimate that its disclosure would offend a reasonable person, even if the information is true; (2) the information is not generally known to the public; (3) the information is not newsworthy; and (4) the disclosure of the information is widely communicated. You can find summaries of a few lawsuits at the Digital Media Law Project.
Limiting liability. Your interview subjects can safely disclose any facts about themselves, for example, "I used to shoplift." But you would want to avoid identifying others involved, for example, "I used to shoplift with my cousin, Mark." You're okay disclosing private facts about a dead person as the dead have no privacy. You may also defend against a claim by demonstrating that your podcast is not "widely communicated," that the information is newsworthy, or that the information is generally known (for example, it's a matter of public record). If your podcast has a corporate affiliation or you've indemnified the sponsors, you should take a conservative approach as injured parties tend to pursue defendants with deep pockets (Although sometimes the injured parties are bankrolled by equally deep pockets).
September 10, 2018
15:00
Can We Modify "Edelweiss" for Prison Retreat?
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Dear Rich: My church group travels to prisons to conduct retreats for inmates. We'd like to use the song Edelweiss, but with different words. Would this be okay?
Many music lovers believe that "Edelweiss" is an Austrian folk song and that it was included in the Sound of Music to add cultural authenticity. However, the song was co-written in 1959 by Rodgers and Hammerstein (their last song before Hammerstein's death). The song is still protected by copyright. To seek permission, you should contact Concord Music publishers. Under copyright law, altering song lyrics requires permission unless excused by fair use (an issue which is difficult to predict and expensive to litigate). As a practical matter, you're probably not going to run into problems with a "don't ask - don't tell" approach as the copyright owner may not want to bother chasing after a church group for this type of infringement.
October 09, 2017
14:00
Fail to Register Song - Lose Copyright?
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Dear Rich: I read that the government is planning a song database and songwriters who don't register will lose all copyrights. Can you explain?
The Transparency in Music Licensing and Ownership Act (TMLOA) is a proposed law that, should it be enacted, would create a song database run by the Copyright Office. Supposedly, the database would make it easier to locate the song owner or PRO. Note: A song owner does not have to register copyright to provide information to the TMLOA database.
Failing to register. A song owner who fails to register will not lose copyright. The "punishment" for not registering is that if the song owner sues a store, restaurant, web radio, or other industries mentioned in the TMLOA, the song owner can only collect the actual damages, not the statutory damages or attorney fees. The underlying effect of the proposed law would be to discourage lawsuits against various industries. The TMLOA is not considered particularly favorable to song owners, and has been characterized as "an all-stick, no-carrot deal."
Bottom line dept. A few things to keep in mind: (1) ASCAP and BMI are cooperating on their own publicly accessible database in order to discourage passage of this legislation. (2) Regardless whether the legislation passes, any song owner who doesn't file for copyright before infringement occurs, cannot collect statutory damages. (3) Considering the track record for proposed copyright legislation, the cost and technology required, as well as the rumors spreading about the TMLOA, the odds disfavor passage of this partisan business legislation.
September 07, 2017
20:04
Using Midi Music From a Video Game Cartridge
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Dear Rich: I want to know if it is considered sampling when you record sound coming from a synthesizer that is playing electronic note data stored on a memory chip. Technically when you play an NES game (80s video game system), the music that is playing is not pre-recorded. It is actually played "live" from musical note data on the game cartridge (gameplay triggers a MIDI pattern) in the console into the internal synthesizer. When I record synthesized sounds for the purpose of using them in new music, would it count as a sample or a cover?
When MIDI code triggers a synthesizer, it's similar to a piano roll triggering a player piano. In both cases, music written by a human is programmed to be played by a machine. Whenever a human creates an original fixed work (the code is fixed on the game cartridge), it's protected by copyright. In order to record, remix, or repurpose the NES/MIDI melodies or themes, copyright law requires that you get permission from the composition's owner -- either Nintendo, the game company, or in rare situations, the composer. Unless the music has been released on CD or authorized downloads such as MP3s, you would not use the compulsory mechanical license used for cover songs because that only applies to compositions that have been released on sound recordings (not video games or movies). Sample licensing usually includes two licenses, one for the composition, the other for the recorded performance. You wouldn't need the license for the recorded performance (aka the master recording).
What if you don't get permission? Failing to acquire permission won't matter if the copyright owner never learns of your use (a good possibility unless your track goes viral). And even if the owner does learn of your work, the owner may not want to hassle you for financial or publicity reasons. The owner may be most likely to care if you use your music in a video game or movie.
Permission may not be needed. Authorization is not needed if your sampling is excused as a fair use, determined by the four fair use factors. Your use differs from the original purpose of the music -- to enhance the gameplay experience. So, that's transformative (and in your favor). Another fair use factor is how much material you have used. The less you sample, the less you loop, and the less that the song is built around the loop, the stronger the fair use argument. Still, as we always warn: Fair use can only be used as a defense to copyright infringement. That is, you must already be in court. Also, permission might not be necessary if the MIDI composition is not original (for example based on folk music) or is so simple the pattern is considered an essential building block of music composition (for example, the arpeggio associated with boogie-woogie piano). Again, like fair use, these are defenses raised at trial.
August 28, 2017
0:32
Can I Use Promo Photos from The Virginian?
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Dear Rich: I was one of the co-stars in The Virginian TV series and a friend who is creating a Wiki page for me (about to publish my first novel) and asked if the publicity photos taken of me back in the mid-60s were my property or had the copyright to them expired. I know they aren't my property, but don't know about expired copyrights and wondered if you could shed some light on whether I need to contact NBC for use of the photos on Wiki?
We can't say for sure who owns the rights to The Virginian's publicity photos, but if they're like many other publicity photos from that time (The Virginian ran from 1962-1971), there's a good possibility that they're in the public domain.
The Wind and the Wizard. Works published before March 1, 1989, were required to include copyright notice so if the Virginian's publicity stills were distributed without a notice (the word "copyright" or "©" and the name of the owner), you're free to use them. It wasn't uncommon for stills to lack notice.
"An issue of recurring application is publicity photos for motion pictures from the 1920's through 1970's. The films themselves from that era were routinely protected as validly noticed and registered works; but much less care was typically exercised during production and in the publicity office. (1-4 Nimmer on Copyright § 4.13[A][3].)
In some situations, the lack of notice might have been deliberate. A notice might have discouraged reproductions and the whole point of these 8 x 10 glossies was to get publicity. In one case that arose over the use of posters and promo photos from the films The Wizard of Oz and Gone with the Wind, the Eighth Circuit Court of Appeals ruled the materials entered the public domain when they were distributed without a copyright notice.
Before 1964? If any of the stills were distributed before 1964 it's likely they entered the public domain. Works published before 1964 had to be renewed and only a small percentage (estimated to be less than11%) met that requirement.
If it is still under copyright ... there are a few things to consider:
- Who owns the copyright? It's probably either NBC or the production company that created the show (or an assignee of either of the two). It's possible but unlikely that the rights for promo photos were transferred to a third party stock photo house such as Getty. That's easy enough to check using Google's Reverse Image Search
- Will the copyright owner learn of your use, and if so, will they care? If a reverse image search confirms several unauthorized uses, that may indicate that either (1) the copyright owner is not trolling the web for old promo photos, or (2) the copyright owner doesn't care about those reproductions. If the owner of the photos also owns rights to the TV series, it wouldn't be good publicity to go after a former star of the show while the show is still in syndication.
- Does your posting of the picture constitute fair use? Based on the four fair use factors, we think you have a strong fair use argument. However, as we always warn, fair use is a defense made when the case is being litigated -- already an expensive proposition.
August 18, 2017
3:42
Can Trader Joe's Stop My Book?
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Dear Rich: I wrote an 84-page culinary history book proposing that Trader Joe's changed the way America eats. I self-published it recently (as it is their 50th anniversary this year.) The book analyzes a March 1982 flyer, which TJ's had mailed to our house. I scanned the flyer and cut up the food descriptions, then organized them into types of food to provide commentary on food "then and now" as well as commentary on the writing in the flyer as the company encouraged people to discover new foods. There are multiple disclaimers on the book that this was not published by TJ's, and the text of the book is all positive. Once I published the book on Amazon, they stated I did not have the right to use the flyer images. Is this fair use? The illustrations and artwork are all original. There is no copyright statement on the flyer! Only an (R) to trademark the flyer name of "Insider Report."
We've reviewed your book and we're not sure why the company is objecting.
No copyright, no cry. We believe that the failure to include copyright notice placed the flyer into the public domain, making it available for anyone to use. For works published before March 1989, authorized publication without notice typically doomed works, unless excused. (By the way, the U.S. was the only country following this rule.) Even if the flyer were not in the public domain, you have one of the stronger cases for fair use that has crossed the Dear Rich Staff's desk. Only one of the four fair use factors -- the amount and substantiality of the portion taken -- weighs against you. Otherwise, your reproduction of this 35-year old advertisement is highly transformative and should not deprive the $13-billion-a-year chain of any potential market share.
Trademark rights. A company can object if its trademark is used in a manner that confuses consumers as to source -- for example, consumers believe your book is sponsored or authorized by Trader Joe's. This is unlikely considering your prominent disclaimer and your failure to include the company's distinctive lettering or logos. Further, as we've written before, the use of a company's trademark is permitted for editorial purposes, which is clearly the case here. We also don't think there's any trademark dilution.
Bottom Line Dept. It's difficult to understand why the grocery chain is objecting to your book, especially considering how TJ-positive it is. We can only chalk it up to too much Cookie Butter.
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August 11, 2017
6:10
Can We Get Patent Back From Our Employer?
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Dear Rich: Almost two years ago I had an idea and with two other guys that I worked with. We developed a product completely outside of work (none of our jobs were in hardware design etc.). We took almost a year to get the product right, but at the end, we had 10 prototypes created and decided to let our boss know about it as he could benefit from it and we could benefit from his funding us. We came to a verbal agreement that he would fund our further development and that we could use time/space at work to further work on it. He would loan us funding for inventory and circuit changes etc. In return, we would give his company exclusivity for one year before we sell it publicly. That would give him the advantage in the market and after the year we would also give him favored nations pricing. He said he would pay for the patent and wanted us to assign it to him as insurance that we would pay off the debt to him. Once we did that, he would assign it back over to us (it did sound strange but we trusted him). We did try to get our agreement in writing. We have various emails and instant messages with him and the point of contact he wanted us to brief. In hindsight, it seems he was stalling because he recently sold the company and is claiming that we never had an agreement or that since we assigned it to him we don't own anything. But we were never compensated and would never have assigned without the agreement we came to. So, in our minds, we wondered whether it was an assignment based on fraud or was unconscionable? Why would we assign without getting anything at all? Is there anything we can do?
Unfortunately, like many inventors, you've lost control of your invention. To get the rights back, you need to (1) convince your employer to assign the rights back to you (through negotiation or litigation), or (2) convince a judge to invalidate the patent assignment. This may be difficult (and expensive). Note: your employer has only prospective rights. That is, there are no patent rights until a patent is granted.
The Assignment. You and your co-inventors signed a written assignment transferring the patent application for "good and valuable consideration, receipt of which is hereby acknowledged." That document was recorded at the USPTO and your employer subsequently transferred the patent from a corporation to an LLC. Assignments are presumed to be valid
Was the assignment fraudulent or unconscionable? Fraud, also known as misrepresentation, occurs when a false statement is made upon which another party justifiably relies, resulting in damage. In other words, if you can prove that your employer lied to you (or concealed the truth) and you had reason to believe the lie and were damaged, a court may invalidate the assignment. (Damage may be difficult to prove because a patent hasn't yet been granted.) A contract also won’t be enforced if it is unconscionable or grossly unfair. This almost always occurs in situations where the bargaining power is severely imbalanced and the party with more power takes advantage by forcing unfair conditions, clauses, or waivers on the other party. Fraud is often successful as a contract defense; unconscionability is not as successful.
The employment relationship. Further complicating your situation is your relationship with the employer. Ownership rules -- "employed to invent" and "shop rights" -- are more difficult to sort out if (1) the employer funds development, (2) the employee works on the invention on the job, or (3) the employee uses company facilities. Another issue is whether the invention is something that is related to the employer’s business or actual or anticipated research or development.
What to do? We suggest you retain a patent attorney to analyze the situation, and if necessary, apply pressure on your former employer to work out a solution. We doubt whether you want to bear the cost of patent litigation, so be prepared to compromise. You may be able to save on costs by using the services of an attorney connected with California Lawyers for the Arts.
August 03, 2017
6:04
Should I Submit Fabric Designs to Vida?
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Dear Rich: I built my business on printing my designs on fabric and making stuff. Now there's a handy service (VIDA) that makes stuff with your uploaded design and sells it to others. That makes it easier. I am just leery of any "catches." Can you look at the licensing agreement?
VIDA is a socially responsible e-commerce company, launched in 2014, that connects designers with manufacturers around the world and sells the resulting products at its site. Artists and designers submit original fabric designs which, if accepted, are converted to fabric and used for apparel and housewares merchandise. The designer receives a 10% royalty for each sale.
Nonexclusive and Exclusive Licenses. According to Vida's Designer's Submission and Licensing Agreement, by submitting your designs, you give Vida a nonexclusive license to reproduce your design primarily for marketing and promotional purposes. Once an order is made, you give Vida exclusive rights to sell your design in the designated categories (classes of goods that you selected when you submitted your design). (Here's an overview of the merchandise licensing process.)
How does Vida's license stack up?
- Royalty - Artists receive 10% of net revenue (gross revenue minus discounts, shipping and similar expenses). Fabric design royalties typically range between 2 and 10%.
- Length of licenses - You can terminate the nonexclusive license thirty days after providing notice. You can terminate the exclusive license within one year after providing notice. Most fabric licenses are for 1-3 years with one year renewable terms.
- Limitations - The exclusive license is limited to the designated categories that you selected when you submitted your design. If you don't want Vida to have exclusive rights for certain goods, don't select them as designated categories.
- Reliability of the licensee - The company appears to be well-funded and has been around for almost three years (a good sign for a start up).
Though the agreement is relatively friendly to artists, there are some details we are not wild about -- for example, the ability of Vida to freely assign your exclusive rights. You can compare Vida's agreement with a model license agreement and explanation.
June 06, 2017
3:53
Acquiring Rights From Co-Author
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Dear Rich: Currently, my story is unpublished because I had a writing partner who was working on the book with me. Unfortunately, he has quit the project, but I would still like to continue it and see it towards publishing. What are my steps in signing away his portion of the story and giving me the rights? What are the documents he'll need to sign and how may I get those?
The document you'll need is an assignment of copyright, which is a permanent transfer of rights. It must be in writing (not an oral agreement).
Basic assignment. Below, we provide a very basic copyright assignment that should work for you. (For more sophisticated assignments, see our Getting Permission book.) Your co-author is the "Assignor" and you are the "Assignee." Only the Assignor needs to sign the assignment agreement. If you are paying for these rights, you should acknowledge your payments to your co-author somewhere in the agreement.
What if you signed a co-writer agreement? If you have a written co-authorship agreement (sometimes known as a co-writer or co-ownership agreement), you may have to follow the requirements of that agreement as to resolving disputes or other co-ownership issues.

Assignment of Copyright By Co-Owner
I, _________________________ (“Assignor”), am co-owner of the work entitled ______________ (the “Work”) and described as follows: _______ _____________________________________. For consideration which I acknowledge, I assign to ______________________ (“Assignee”) and Assignee’s heirs and assigns all of my right, title, and interest in the copyright to the Work and all renewals and extensions of the copyright that may be secured under the laws of the United States of America and any other countries, as such may now or later be in effect. I agree to cooperate with Assignee and to execute and deliver all papers as may be necessary to vest all rights to the Work.

Signature of Assignor

___________________
May 27, 2017
19:31
Can I Use Couture Photos for Wikipedia Entry?
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GEORGE HALLEY - 1968 COTY "WINNIE" AWARD
Lace Baby Doll Dress with Flower and Bow

Dear Rich: My father was a photographer who at times worked for newspapers and free-lance for himself. He died in 1972 and the works in question were taken in 1957 and the early 1960s, none of which were copy-written. I have inherited his prints and negatives. He took publicity pictures of the works of dress designer George Halley, of whom I have created a Wikipedia entry. I would like to enter my father's works that he owned (not the newspaper work) in the Commons and then link to them from the article as public domain work.
If the photos were published before 1964, they are probably in the public domain and free for anyone to use. That's because works published before 1964 had to be renewed and we're guessing that your father's photos were not renewed, (less than 15% of copyrighted works were). BTW, a photo is "published" when it is made available to the public on an unrestricted basis -- for example, if the photos were reproduced in a magazine or newspaper.
If the photos were not published ... In that case, the photos are protected under copyright until 2042 (70 years after your father's death). Assuming (1) you inherited the copyrights upon your father's death, and (2) your father didn't transfer copyright in the photos under a work for hire agreement, you would control copyright in the photos. As copyright owner you could make them available under a Creative Commons license and reproduce them at Wikipedia. BTW, a CC license doesn't place the work in the public domain (as we explain here). However, Creative Commons can help you make your work public domain if that is your intention.
May 13, 2017
23:55
Can We Use Ancestry and DNA Information in Book?
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19th Century imagery used by abolitionist organizations in
their efforts to turn northern Americans against slavery.
I’m helping two authors with a manuscript about their experiences researching their ancestors who were slaves. So they go back to the slave period and continue up to present day. I am unclear about the legal rights associated with certain material including: (1) publication of information found in public records, (2) publication of information from church records, historical society records, family bibles, etc. (3) publication of information gained through personal communication, other family members, community members, or fellow ancestry.com members, or others doing family research, (4) publication of information about DNA test result sharing on ancestry.com type sites. (The information is related to finding other relatives.) (5) publication of family photos taken by family/friends, (6) publication of information from personal communications, informal interviews. Relatives are named and identifiable. So their contemporary descendants can identify their ancestors. I am thinking they will want to inform family members, prior to publication, about the inclusion of information/photos in their forthcoming publication that relate to them.
There are sometimes moral and ethical issues when you start digging up the roots of the family tree. (Do you really want the world to know that your mother's grandfather was charged with indecent exposure?) As for legal concerns, here are four questions to consider:
- Are you violating the right to privacy? Invasion of privacy can occur when private or embarrassing facts are disclosed about a living individual without relation to a legitimate public concern. This is referred to as "Disclosure of Private Facts." Dead people do not have a right to privacy.
- Have you fact checked any statements that could cause damage to a person's reputation? False statements can give rise to libel/defamation claims. For example, you falsely claim that a relative was born out of wedlock. As with privacy, the dead cannot be defamed.
- Are you violating copyright law? Copyright doesn't protect facts or ideas so you'll have no problems publishing facts found in public records, culled from historical and church records, or provided by an interview subject. Copyright doesn't protect unpublished works whose authors died before 1947 or published works that were published before 1923. You can obtain more details on copyright expiration at the Cornell website. If you interview someone and want to use more than facts -- for example several paragraphs of text -- it's usually best to use an interview release. If you know who holds copyright on a copyrighted photo it's prudent to obtain a permission agreement. You do not need a photo release from the people pictured in the photos. Finally, if challenged, you have fair use as a possible defense.
- Do you have permission to reproduce DNA results? If the DNA test taker consents to publication, you are safe publishing DNA test results. Sites like ancestry.com have privacy policies that allow you to reproduce your test results.
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April 10, 2017
3:01
Lyric Writer Wants to License Song
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Felice and Boudreaux Bryant,
cowriters of Bye Bye Love, Wake Up
Little Susie, All I Have to Do Is Dream,
Rocky Top, and other great hits

Dear Rich: I write song lyrics and about three years ago collaborated by email with a composer. He sent me a musical composition that I have since written lyrics to and would like to pitch for a TV ad campaign and CD production. Unfortunately, I get no response from email and Soundcloud page from composer is inactive. Can I use music legally or do I have to have written permission? Can't think of any other ways to contact person to get authorization.
It sounds as if you and the composer -- like Felice and Boudreaux (left) -- intended to combine words and music into "inseparable or interdependent parts." That makes you and the composer joint copyright owners of the song.
Rights of joint owners. With one exception (see below), joint copyright owners can separately grant permission (a license) for someone to use the song, provided that each writer shares the income with the others. If the writers have not agreed on the percentages, courts often start with the presumption that all songwriters contributed equally. Because you cannot locate the composer, you should put aside the composer's share of any income as a demonstration of your good faith.
First authorization of song. There's one question that's unresolved: Do all cowriters have to consent to the first release of the song? We think so because the first release makes the song available for anyone who pays a fee to record the song. Keep in mind that others may disagree because there is no explicit requirement in copyright law that all writers agree to first release. If you've used best efforts to locate the composer and you've documented your efforts, you may be better served disregarding our advice in this situation.
March 31, 2017
20:44
Pre-1978 Film Restoration and Copyright
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Dear Rich: I'm working on a project digitizing and restoring various films, all of which were released before 1978. (a) Some films have a copyright notice such as “Copyright 19xx John Smith” notice in the credits. Is the copyright good for 28 years? (b) What happens if a work has a notice such as “Copyright 19xx John Smith” but was never registered? Can someone else other than the original creator or transferee step forward and file a copyright claim before the 28th year ends? (c) If a work did not have a notice and wasn't registered as above, can someone (original owner, or other) come forward before the 28th year ends and files a new copyright on it? (d) If a work has a “Copyright 19xx” notice in the credits but no name or entity, is the copyright valid?
A film that is published before 1978 is subject to the Copyright Act of 1909. That copyright law had certain restrictions and formalities that are not included in the current act, three of which are relevant to your questions.
- Films published pre-1978 without copyright notice are probably in the public domain.
- Films published between 1923 and 1964, that were not renewed 28 years after publication are in the public domain.
- Just because a pre-1978 film falls into the public doesn't mean that all of the elements of the film -- for example, soundtracks or underlying story -- are also in the public domain.
Registration or Renewal? Except in certain cases, registration was not a requirement of copyright under the 1909 Act. Renewal, however, was a condition of continued protection. The 1909 Act provided for an initial term of 28 years, and if renewed, a second 28-year term. It is estimated that less than 15% (see fn. 8) of works were renewed. (You can check renewal records for more information.) Renewal was not required for works published after 1963; it was automatic. Finally, the copyright term for all works still under copyright in 1998 was extended by twenty years (for a total of 95 years). So, for example, if a film was published in 1965, it was automatically renewed and is protected until 2060.
Who can register a work? Only the author or the author's transferees, or someone with their authorization, can apply for registration. Film restoration, though it requires great skill and craft, does not demonstrate sufficient originality, by itself, to claim a derivative copyright in a public domain film. However, film restoration plus additions or revisions -- for example, a re-recorded soundtrack and commentary -- may be the subject of copyright. Claiming ownership in a purely public domain work is verboten.Copyright Notice. Until March 1, 1989, copyright notice (with certain exceptions) was required on all copies of a pre-1978 work published with the authorization of the owner. These three requirements -- notice, publication and authorization -- were the subject of many lawsuits. Publication. For example, a film was not considered "published" when it was displayed or "performed" in a movie theater. Publication of a film, according to attorney Stephen Fishman, occurred when "prints of the film were transferred to an independent film distributor that made several hundred copies and sent them to its branch offices (also called “exchanges”) around the world. The exchanges entered into film rental agreements with exhibitors who then showed the films to the public." The Ninth Circuit has held that films were published for copyright purposes when copies were placed in these exchanges for distribution to theater operators, a position supported by the Copyright Office and the film studios. Notice format. There were various rules regarding placement in the film and the notice format. But keep in mind that judges, faced with the invalidation of copyright because of a notice error are often forgiving. Courts will look to determine whether any notice is present that advises the public that there is a proprietor, and that the notice doesn't affirmatively mislead. On that basis, it's not prudent to assume that the failure to name the owner in the notice invalidates the copyright.
March 18, 2017
7:43
What Good is Copyright If You Have to Register to Sue?
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Dear Rich: What does copyright "protection" mean if I don't have a work registered and therefore cannot file a lawsuit?
The term "copyright protection" is misleading as it implies that a defensive shield has been installed around your work. The reality is that a copyright -- which you get automatically -- gives you offensive rights (what author David Pressman calls a "hunting license"). Even without a registration you can pursue infringers, send a cease and desist letter, or enter into a settlement. You can also sell your copyright, license it, or bequeath it without a registration. But if you want to file a lawsuit in federal court, you must register, a process that costs under $60 if you're not in a hurry (or over $800 if you are). As a preventative formality, however, and because it provides benefits, many copyright owners register their work when it is first published.
Copyright v. patent. One appealing feature of copyrights is that with a copyright you can sue people for infringements that occur before registration. Because patent rights are not automatic (you get rights when your application is approved), you can only sue for patent infringements that occur after registration. (Note, there is a procedure for chasing patent infringements that occur 18 months after a patent application is filed.)
March 09, 2017
4:25
It Takes Two to Research Tango Photos
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Dear Rich: I need to identify the copyright owner(s) of a collection of photos related to the Argentinian dance tango. The intention is to use those photos –- mostly if not all of them -- in Argentina, in a book of mine. Can you suggest a commercial service which could help?
Many professional photo researchers (like Laura Wyss) belong to the American Society of Picture Professionals and you should be able to obtain a referral from that organization. Alternatively, you may have better luck obtaining international rights by using a photo researcher affiliated with the British-based Picture Research Association.
March 01, 2017
18:26
How Long Does My Permission Agreement Last?
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Dear Rich: During my graduate research in the mid 1990's. I interviewed individuals that were appropriate and that agreed to participate in my study. I have signed and dated permissions forms that explicitly inform the participant that their recorded interview could end up in a published journal or book. Is there an expiration date on the permission they granted?
Unless your agreement provides an expiration date ("This agreement terminates on March 2, 2017"), the permission is still valid for the purposes stated. Contract provisions may also provide a right to terminate at will or under certain circumstances (often, a set amount of notice is required)
Other reasons your agreement may have terminated. Our contracts book explains other reasons that agreements terminate:
- Both parties have fully performed. Many contracts, particularly oral agreements, end when everybody’s done what they’re supposed to do. For example, you paid for the vintage pink mohair sweater at Etsy and the seller has delivered it.
- One party has committed a material breach. If one party breaches, the other party can say, “That’s it, we’re done,” and terminate.
- Court-ordered termination. Courts have the right to terminate an agreement if there was a breach, the contract was void, or the contract violates the law or public policy.
- Mutual termination. The parties to a contract are always free to mutually terminate a contract.
If none of these apply to you, your agreement is still enforceable. For more on drafting permissions, check out Getting Permission.
February 23, 2017
18:25
Who Controls Robert Capa's D-Day Photos?
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I have a film of D Day that I had copyrighted last year. My project with this film is to add some photographs that first appeared in LIFE magazine on June 19, 1944. They were taken by employee/contractor Robert Capa. These same photographs were then published in a book, "Invasion" and copyrighted by LIFE Magazine in 1944. I have both the original magazine and the original first edition of the book. Magnum Photos is trying to let me think they own the copyright for these photographs, with the belief they included them in a compilation of Robert Capa's photography. Are these in the public domain? Capa was employed by LIFE on June 6, 1944 and he died in 1954.

We believe that the owner of copyright of Robert Capa's D-Day photographs is either (1) the estate of Cornell Capa, (see copyright notice under photo) or more likely, (2) the International Center for Photography (see copyright notices under photos). The ICP was founded by Cornell Capa, Robert's younger brother. In any case, licensing rights are controlled by Magnum Photos. (The Library of Congress appears to validate this conclusion.) Magnum's relationship with Capa runs deeper than publication of a photo compilation. Robert Capa founded Magnum Photos in 1947 with Henri Cartier-Bresson, David Seymour, George Rodger and William Vandivert. In any case, it's amazing that Capa's eleven D-Day photos exist at all considering that a flustered Life Magazine photo lab employee destroyed 95 of the 106 photos Capa shot during the invasion.
February 15, 2017
21:52
Are "Alternative Facts" Protected Under Copyright Law?
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Alternative fact:
Tim Conway is Kellyanne Conway's father
(Click picture for proof)
Dear Rich: You have written that, "[F]acts are not protected [under copyright law] even if the author spends considerable time and effort discovering things that were previously unknown." In this era of fake news, I wondered whether the same holds true for "alternative facts." Just curious.
Seeing as how our mailbag is a little thin this week, the Dear Rich staff is going to wade into this potentially partisan, largely theoretical question.
What are facts and why aren't they protected? According to Merriam Webster, a fact is "something that truly exists or happens: something that has actual existence." According to the U.S. Supreme Court, facts are neither original nor created -- they are discovered or unearthed ("[T]he first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence ... [O]ne who discovers a fact is not its "maker" or "originator." Therefore, copyright law -- which only protects original creations -- will not protect facts. (The Supreme Court viewed facts in their traditional legal context, as statements of objective truth, a view that some legal scholars considered simplistic and flawed.)
What are alternative facts? The term, "alternative facts" was popularized by Kellyanne Conway, counselor to the president, in her defense of false statements regarding the size of inauguration crowds. Alternative facts have come to be known as demonstrable falsehoods (or lies) and they are considered a threat to unbiased knowledge. Some of Conway's defenders have categorized alternative facts as “truthful hyperbole” and others claim the term has a legal meaning, likening it to alternative pleadings. (Partisan proponents quickly constructed a competing Wikipedia entry, prefaced with so many disclaimers and warnings that the definition, itself, seems to have become an alternative fact.)
Copyright protects falsehoods. Harry Potter and Seinfeld have something in common -- they both exist in a universe built upon "created facts." For example, the "fact" that in a Seinfeld episode, Kramer is hypnotized by baggage carousels "is in reality [a] fictitious expression created by Seinfeld's authors." Similarly, "each [Harry Potter] book chronicles and expands on the fictional facts that unfold in the series," and when a number of these fictional facts are borrowed, a court will deem it infringement. Like Vandelay Industries and the Bond of Blood charm, alternative facts (i.e. massive voter fraud in New Hampshire) are created facts, not discovered, and therefore demonstrate the minimum of originality.
The Dillinger case. A 1990 case held that the intent of the creator determines whether a fact is protected. An author named Nash had written a book documenting his theory that John Dillinger survived his 1934 shootout and lived until 1979. A TV show had used the theory as part of its plot. The court ruled that because Nash treated his book as factual, not fiction, his facts were unprotected. ("Nash does not portray [his book] as fiction, however, which makes all the difference.") Following this ruling, alternative facts would not be copyrightable.
Not so fast, Kellyanne ... Regardless of the arguments, above, there remain a few obstacle to copyright protection. First, there is the matter of attribution -- who is the author for copyright purposes? If the author is a federal employee, the work falls in the public domain. At the same time, the brevity of "alternative facts" creates a roadblock for copyright protection. Finally, there is the unlikelihood of enforcement -- that is, it is doubtful that reproduction of falsehoods will lead to copyright lawsuits unless, perhaps, a compilation of alternative facts was published.
February 06, 2017
18:08
How Are 'Territory' and 'Publication' Defined?
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Dear Rich: I work as the Permissions Coordinator for my company, and we have received many agreements for use of excerpts and articles in various publications over the past few years. Now we are trying to ascertain if we are legally permitted to sell/distribute our publications to customers abroad. Each rightsholder seems to have different verbiage when it comes to territory - running the gamut between "territory: North America" and "territory: publication in the United States" to "territory: publication and distribution in the United States." The last one is clear, but how are "territory" and "publication" legally defined in the copyright industry - is "distribution" implicit when only publication is mentioned?
Ideally every copyright license should include: a "grant of rights" that explains what you can do with the copyrighted work; a "term" which provides the period of time you can exercise the rights; and a "territory" which describes where you can exercise those rights. Often these three provisions are merged into one or two clauses, as seems to be the case with some of your agreements. (When we say"copyright license" we're talking about any temporary grant of copyright -- for example a permission agreement.)
Publication includes distribution. Publication is assumed to include distribution unless the agreement provides otherwise. This jibes with trade practice and the copyright law definition of publication -- "the distribution of copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending."
Territory clauses. Territory is assumed to be a geographic area -- for example, "the United States" or "North America." In publishing contracts, territory is often tied with language restrictions-- for example you may be granted publication rights of an article and the territory is defined as "English and French language rights for North America." In that case, you could distribute in Mexico, but not a Spanish language version. It's also possible that your books may end up outside the territory -- for example, Amazon.com fulfills an order, or a third-party buys a carton of books and takes them out of the territory for resale. That won't violate the agreement but what you can't do is engage a distributor who carries your book outside the territory, or sublicense to a publisher outside the territory.
Interpreting contract language. What happens if there is a dispute about interpreting "distribution," "territory," and "publication"? Absent definitions within the agreement, a court when examining contract language, will usually seek out the "plain meaning" of the words--that is, how a reasonable person in the publishing industry would interpret them.
February 02, 2017
1:12
Can I Use Sheet Music as Part of Crafts Product?
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Dear Rich: I'm about to launch an online marketplace for handmade crafts which includes customizable gifts which incorporate a customer's favorite or most inspirational song printed on aged, antiqued paper decoupaged (collaged) on to a keepsake box. I'm subscribed to a third party service and I pay for each printing of the sheet music I then age and use for the keepsake. The copyright is noted at the bottom of each page, along with an additional notation of my personal payment and my name with the date. I generally don't use the entire song sheet. I also print a second "clean" copy of the sheet music and file it in case there are ever questions about permission. Since I'm not familiar with copyright law, I'm a little nervous that this may be problematic.
The question you're wrestling with -- whether the purchase of a copyrighted item permits you to use the item as part of another product -- has come up several times in court cases. For example, a company purchased notecards and affixed them to tiles and a court ruled that was permissible under the first sale doctrine (a legal principle that guarantees you the right "to sell or otherwise dispose" of copyrighted items). Another court took the same position when a fabric manufacturer complained about the use of its copyrighted fabric in children's bedding.
On the other hand ... A federal court in California ruled that ripping out images from a book by Patrick Nagel and reselling them on tiles was not permitted. Another California court ruled that pulling art images from a book and framing them was not permitted. And a New York court prohibited a company from re-selling posters after making them appear like oil paintings on canvas. These cases are based on the idea that the resulting products (framed artwork and decorative tiles) are derivative works (new works that transform, adapt, or recast existing works).
Five things to consider:
- Did you enter into a license agreement when you downloaded the sheet music? Check to see whether you clicked-to-agree to limited uses of the sheet music. A licensing agreement may trump copyright law.
- Don't make copies of sheet music. Only affix purchased copies. If the first sale doctrine shields you, it will offer protection only for authorized copies.
- The likelihood you'll get hassled is proportional to your company's profile. The bigger your company and the more expansive its marketing, the more likely a music publisher may object. The larger your sales, the more incentive there is for a lawsuit. Companies usually go after those with deep pockets especially when the caselaw is as confusing as it is for the first sale doctrine.
- If hassled by a cease and desist letter, consult an attorney. You may want to stand your ground, at least at the letter-writing stage. (Keep in mind that scholars and others have disagreed with the reasoning of the California courts.)
- Don't ask the sheet music company for permission to affix the music to keepsakes. Digital sheet music sellers are distributors with a narrow range of rights. They don't have the power to grant you anything other sheet music. Only the song copyright owner (a music publisher) can grant you the rights.
January 23, 2017
6:44
Spouse's Photo Used on Postcard: Can We Sue?
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Dear Rich: My husband's photo was chosen by a huge non-profit for a postcard. He signed a non-exclusive licensing agreement for the use with payment of $250. They have never paid us and continue selling the postcard into the millions of copies. Can't we sue?
Unless the licensing agreement requires that you arbitrate the dispute, you are free to sue the nonprofit. However, be prepared for the fact that no matter how many copies are sold, your recovery may be limited to $250 (and possibly interest). That's because we think you're dealing with a breach of contract situation in which the remedy is usually compensatory damages. That means the court attempts to put you in the financial position you would have been in if the contract had been performed. Another possibility is to claim that the failure to pay is a material breach of the agreement that entitles you to cancel the agreement. You would write to the nonprofit and tell them the agreement is canceled and any further use of the photo after the termination will be considered copyright infringement. Because the compensatory damages are relatively small, you should try to avoid court and seek payment via correspondence. If that fails, you can handle the matter yourself in small claims court, (assuming the nonprofit is doing business in the state in which you are suing).
Avoiding this problem in the future. To best protect your rights in the future, try to include the following language in any photo licenses: “Company shall have no right to make any use of the work until Licensor (photographer) has been paid the fee established in this Agreement. Any unauthorized use constitutes a willful infringement.” If that clause is in effect in your agreement and the other party fails to pay, you can sue for copyright infringement.