Dear Rich: Nolo’s Patent, Copyright & Trademark Blog

Dear Rich: Is there any problem with using the name of a state government/public entity, like say the Maryland Dept of Natural Resources and making up something for them to say? I am interested in a potential work of fiction where I pretend they would announce something, for example, Maryland Dept of Natural Resources has declared the state's air as unbreathable and recommends all citizens purchase a gas mask. Is there a problem if the work of fiction contains actual facts too and then this example statement above could be construed as true by some, then people get upset or concerned and feel they should take action to protect their health? There should be no problem using real government agencies in fictional thrillers. It's all permitted under the free speech banner (and if it weren't so, Tom Clancy would be out of work). 

Dear Rich: I have an idea for a T-shirt that would involve caricatures of two rival school's (universities - domestic, i.e., USA) team's mascots. Each mascot would, in turn, be wearing paraphernalia that identifies the respective school (possibly obscured, but arguably recognizable). Would I have to get both schools' permission (i.e., trademark licenses) in order to put such marks on such T-shirts (if, ultimately, I were to sell them)? That might be hard if one of the schools is shown in a lesser light than the other. Any thoughts? Thoughts? The Dear Rich Staff has so many thoughts it's like an ant farm inside our collective brains. But we'll try and focus on your question or we'll be late for dinner and you know how that goes. 

Dear Rich: A newly formed wedding gown preservation company has used one of my bridal portraits in their advertising. I did buy the rights to the picture from the photographer that took them. They have used it as the main photo on their web page, on brochures and handouts, and are wanting to make an 8 foot by 10 foot poster of it as a display at the Bridal Extravaganza. They are willing to compensate me for my picture, but I need general idea of how much to request. And do I request more each time they use the picture for something different? Wow, we had no idea that there was an entire industry devoted to preserving wedding dresses (hey, and you new brides better watch out for scams and the unromantic-sounding "anti-sugar treatment.")

Dear Rich: I sell non-Disney tiaras on Craigslist and when I gifted one to my niece I decided to use some of my Disney princess stationary to also write her a letter from a "princess" so she would think the tiara was sent from one of the princesses. I sell the tiaras for $10 if I added a letter to every purchase (if requested) with no extra charge is this a Disney violation? Hey everybody, it's Disney time (Boogety, boogety, boogety shoo!) We get so many Disney letters, the Dear Rich Staff sometimes thinks about a subblog just dealing with the Magic Kingdom. but then we get depressed thinking how sad that we spent all that money on law school and Kaplan courses (not to mention those dopey  payments to the American Bar Association so that we can keep our dopey ABE life insurance) and for what? To tell people whether they can dress like Daffy at the company Christmas party?
Right, you had a question. We like the idea of using the letter and tiara combination. (It's that same kind of personalized gift approach that set Xavier Roberts apart when he created those lovable Little People nee Cabbage Patch Dolls with their adoption papers.) You say that the purpose of your letter is to make the recipient "think the tiara was sent from one of the princesses." Question: Do you need Disney stationery to make the recipient think that thought? If you do, then it seems as if you're really trying to make the letter-getter think it's from Disney Princess Headquarters. Once you imply that Disney is somehow associated with or endorsing the tiara, then you move into a troublesome legal area in which Disney could claim what you're doing trades off their name or falsely advertises their products. That's not to say you can't use Disney stationary to send out gift tiaras. It is stationery, after all. But -- and this is assuming Disney ever finds out about your use and/or cares -- if the use of the stationery is part of your long-term business model you might someday get hassled.

Dear Rich: I have a question regarding the ability to use a sampling of core content from a college course's series of lectures from one semester.  I would be using the content within a fiction book (novel) to be sold commercially.  The lecturer himself claims to have no written or recorded ("fixed") version of the lecture content.  But he believes the university may have some employment clause that anything created for the course/lecture belongs to the university. Since the lecturer has never written down or recorded  ("fixed") the lecture content, I was wondering if there was still any chance that a copyright is owned by the university.  But I wonder if my use of the material within a work of fiction novel that will benefit society might be construed as a new way of using the information in a transformative way (even if it would still educate people like the lecture itself)?  I am adding my own entertaining/educational material around the course content. But could the university claim that this (fiction novel) is a potential new market for its copyrighted work? We had to cut your question by half because we have a pay-by-the word blog service. Psych! (Wow, what if that were really the case --- it would totally redefine "free" speech!) Anyway, we're back at the part where you claim your novel will benefit society. Are you saying that (1) because you know that society will benefit from your book specifically, or (2) because all novels benefit society. If it's the former, then wow, we're impressed, and if it's the latter, then we have to ask if that rule also applies to chicklit and all those Patricia Cornwall forensic crime books where serial killers go berserk on some tiny resort island. BTW, we're undergoing a heat wave here at Dear Rich headquarters so bear with us while we say inappropriate things and then come back later and remove them!
Right, you had a question.  As to who owns lecture notes ... that's the kind of question that can get two copyright geeks into a headlock.  From a purely legal analysis (whoa, you know you're in trouble when the sentence starts like that), the university is the most likely copyright owner of a professor's lectures. The analysis goes as follows: the professor is an employee of the university; the lectures are prepared within the course of employment;  the lecture was fixed (either because the professor wrote it all down somewhere, or because the university/professor authorized students to make notes of the speech); and therefore under work for hire principles, the university is owner. Some universities even use written contracts guaranteeing their authorship.
On the other hand dept. Despite this analysis, many universities and one aberrant California case (Williams v. Weisser, 78 Cal. Rptr. 542 (Cal. App. 1969)), once followed a tradition known as the "teacher exception" to copyright ownership under which instructors owned all copyright in their lectures. Many copyright experts believe that the exception disappeared when the 1976 Copyright Act was adopted. (There are a lot of academic articles on the topic -- for example Legal and Policy Responses to the Disappearing 'Teacher Exception,' Or Copyright Ownership in the 21st Century University by Elizabeth Townsend.) Also, to be considered is that if a lecture is primarily extemporaneous and not fixed with the speaker's authorization, it may not be protected under federal copyright but may be protected under what's known as a common law copyright principles. In any case, the issue has surfaced anew with various lawsuits over websites in which students post lecture notes.
Bottom line dept. The underlying facts in the lecture are not protected by copyright. So that should give you plenty of opportunity to avoid infringing. It also sounds as if the professor doesn't object. That's a good sign. We think you have a tricky fair use argument. Your use may be analogous to using a painting in a movie or using song lyrics in a play ... not truly transformative. In any case, if we were you (wow ... what a clash of pronouns), we'd give it a shot.

Dear Rich: My company wants to post the Top 40 American speeches at our website. I've attached a list. I've researched them and all of them are reprinted in one form or another at other websites. Are we okay to post them as well? Wow, the Dear Rich Staff just gave a speech. We gave it to some crafts artists at the California Lawyers for the Arts  (where we plugged our crafts book) and it went really well. We love the CLA and you should too! It would have been a perfect evening except for the disappointing dinner at Greens.  Can't they get the linguini with zephyr squash right? And why was the rainbow chard and kale fumigated with garlic? And what's with the stiff white foam in the cappucino? (Blue Bottle, all is forgiven!) Oh well. Remember the good times!

Dear Rich: I am a children's minister and try to keep my programming up to date with what the kids are excited about. This fall I wanted to call our program WiiConnect. Would this be a copyright infringement? I might put out a few promotional items but because it is for a church there is no charge for any of it. It's not copyright infringement, but your use of the Wii terminology might violate trademark laws if it creates the impression that Nintendo endorses or is associated with the program you are offering. Even if your use does not violate traditional trademark infringement rules -- after all you and Nintendo are not competing -- it may violate trademark dilution rules. 

Dear Rich: Good day my dear friend. I am a beautiful young and charming girl looking for real friendship and protection, I am very happy to contact you for us to know ourselves the more. You know that distance, age and indeed color cannot stop true love or friendship. So I will appreciate it if you send reply to my mail box to enable me send my pictures and more information about myself to you so that you can know whom you are communicating with and to enable me tell you the more reason why I contacted you. I wait for your positive reply, take care and have a nice day. The Dear Rich Staff prides itself on issue-spotting, but we're having a hard time spotting the patent, copyright or trademark issues in your letter. You say that you are looking for friendship and protection. If you are looking for intellectual property protection perhaps we can assist but you will need to fashion your request more specifically. IP rights -- like true love and friendship -- are also not influenced by distance, age and color, so yes, please forward any photographs (and we hope that they contain the minimal creativity that will enable you to enjoy full copyright protection). Per your request, we will try to have a nice day although its hard to do that knowing that people like yourselves are trapped somewhere randomly sending out letters to IP bloggers. Also, just so you know, responding to your email does not create a relationship ... that is, an attorney-client relationship.

Dear Rich: I have a quick question for you. In June of 2010, I began a blog called "Fun Frugal Family of Five". After a few weeks, I realized that was an obnoxious name and changed it to "Our Frugal Adventures," hired a blog designer and went about my quest to gain readership as all bloggers do! Yesterday, it was brought to my attention by a Twitter follower that my blog's name is very similar to another blog "My Frugal Adventures."I was shocked and immediately sent the owner of "My Frugal Adventures an email letting her know and asking her thoughts. While our sites do have similar content, I do write more family oriented posts as well. My question to you is, does she have a case against me and do I need to change my name? You mentioned this was a "quick question." The Dear Rich Staff would warn against the use of that term as it is grammatically tenuous, the popular meaning is not flattering to the user, and in any case, we find it kind of sad that readers believe our carefully crafted, thoughtful responses can be conjured up with alacrity. 

Dear Rich: We are doing a show and I am going to make fun of Betty Crocker (not even a real person but a trademark). Is this legal? What is the liability...if any? How did Dan Aykroyd get away with making fun of Julia Child? I know he didn't ask Julia - because I met her when she was visiting The Culinary Institute of America and she told me that. Wow you met Julia Child? How cool is that? The Dear Rich Staff never met any famous chefs although we met a few chefs who should be famous like the folks who do the cooking at our favorite seafood hangout (no FTC disclaimer needed because we're not getting any free calamari).