July 3, 2009
July 2, 2009
Possible workarounds?
Some possible workarounds are to contact the reviewer (usually, there's a way to communicate if you click on the reviewer's name) for permission (an email permission should be fine). If that's not possible, using one or two lines from the review is probably permissible under fair use principles -- although, again, the Dear Rich Staff would counsel against using the reviewer's name without permission.
*Speaking of Amazon's Conditions of Use ... You might want to think twice before posting a bad review of that new Lindsay Lohan movie. As an Amazon reviewer, you agree to pay for Amazon's court costs and damages if a lawsuit is filed as a result of your comments! Ouch!
July 1, 2009
June 30, 2009
Dear Rich: My non-profit organization is developing a study guide that centers around the Cultural Revolution. We plan to use a number of propaganda posters from China in the 1960s in the guide. We're having a hard time tracking down the rightful owners of the posters to secure permission and we're wondering if it is because there are laws putting propaganda in the public domain. What do you know about propaganda and copyright? Also, what can you tell me about the Berne Convention and its affect on copyright? Aside from reading RIAA press releases, the Dear RIch Staff doesn't know much about copyright and propaganda. We assume your question is whether Chinese government-authorized posters created in the 1960s are protected by copyright in the U.S. The short answer is "probably not." One reason for this wishy-washy response is that for a period of two decades (from 1957 through 1978), China effectively had no copyright system. Commencing in 1979 and through 1990, the country adopted various copyright regulations and in 1991 China's current copyright law went into effect.
Current Chinese Law
Under the current Chinese law there is no exemption for government-produced posters although Article 5 puts certain government documents into the public domain. Article 59 of the Chinese law grants some retroactive protection to pre-1991 works but it is unclear whether this would provide protection for the posters. In any case. it's difficult to imagine the enforcement of copyright in Cultural Revolution posters -- whether produced by the government or independently by local Chinese artists -- as evidenced by the fact that none of the many books or websites reproducing these posters acknowledge copyright, or reflect any permissions for their use (check the Search Inside feature at Amazon). On that basis, you should not expect your study guide to be the subject of a dispute. ) We are also informed and believe (that's legalese for "we're pretty sure") that at the time these posters were created, it was considered "counterrevolutionary" for a contributing artist to make copyright claims.
What about Berne?
In answer to your second, question, the Berne Convention is an international treaty that standardizes copyright protection among the 100 member countries. Basically, any country that signs the treaty agrees to provide the same treatment to authors from other treaty countries as it does to authors in its own country.
June 29, 2009
The Key to Success
Usually, the most important element in achieving a takedown is locating the agent for service of the DMCA notice. Here's a list of designated agents. In addition to the designated agent (or if you can't find the agent) check the site for other forms of email (or other addresses) for the website owner. Sometimes, you can find it on a "Contact Us" link and often it is simply, "info@nameofsite.com." Many sites that post files or post documents have a special mailbox for dealng with infringements -- often that's "abuse@nameofsite.com" or "copyright@nameofsite.com." If there is no designated agent, and no email address for contacting the owners at the site (not a good sign), search for the owner using the database at Whois.net. If your search results in a "proxy" administrator -- a company that serves as administrator and hides the name and contact info for the owner, that's also not a good sign. Once you locate an agent, or email or mailing address for the administrator of the site, you should prepare and send a DMCA takedown notice. Here's an example. (One site has even automated the process.)
What if the Site Refuses to Take it Down.
The approach described above is usually effective -- at least it often works for the Dear Rich Staff. However, if the person who posted the thesis refuses to take it down (or they respond with the countermeasures we discussed in this entry), you will need to proceed with a copyright registration (you can expedite it) and file a lawsuit. Unless you are independently wealthy, that could be cost-prohibitive. If the website owner has deep pockets and you can demonstrate financial damages, perhaps you can find a lawyer who will handle it on a contingency.
June 26, 2009
June 25, 2009
June 24, 2009
Dear Rich: I've recently been using images from Edward S. Curtis' Portraits from American Indian Life. The book was published in 1972 and has a copyright for that date. Curtis died in 1952 and the book itself is now rare. According to the research I've done the photos themselves were under Curtis' copyright which was forfeited by his daughter and family when he died. Does the book publisher -- who no longer exists but supposedly acquired the copyrighted material from J. P. Morgan (to whom Curtis had sold the original copyright) -- still have the copyright to the material? If so, who do I need to contact in order to obtain perission to continue to use the four images I've used. I have reproduced his images by free hand as closely as I can. [Corrected 06/28/2009 -- Following our initial response to this question, Peter Hirtle offered three corrections. First, he reported that the Library of Congress considers all of Curtis' work to be in the public domain. Second, our dates were off by one year, as corrected below. And third, he reports that "[b]ecause the photographs were individually registered, renewal had to occur according to the date of registration. If they had never been registered, then renewal date would depend upon the date of first publication." Thanks! Check out Peter's copyright duration chart, here.]
The short answer is that you probably don't need to obtain permission from anyone to reproduce the images. Curtis' American Indian photographs were originally published in a series of books from 1907 through 1930. All of the photos in the books published before 1923 are in the public domain. The photos published between 1923 and 1930 are probably in the public domain since it estimated only about 11 percent of copyrights issued before 1964 were renewed. (We explain how to search Copyright Office records in this post.)
What if the copyright was renewed?
If the copyright was timely renewed in the 1923-1930 volumes, those photos won't begin dropping into the PD until 2027 (75 years from Curtis' death). You are probably familiar with the Library of Congress' digital reproductions of Curtis' work (the photo above is currently on loan to the Dear Rich Staff). One nice thing about the LOC project is that it groups the photos by year of publication.
What about your creations?
June 23, 2009
Our three favorite movies featuring patent attorneys
The Last Wave (1977)
The Man Who Fell to Earth (1976)
The Water Engine (1992)
June 22, 2009
June 19, 2009
What If They Won't Answer Your Emails?
Be prepared for the fact that most companies are wary of signing an agreement with someone they don't know -- or they may make you sign an agreement waiving any claims. This doesn't mean you can't trust them; just that they're suspicious of strangers. The best chance for success is to find a person at the company who will speak with you, or find a person who knows someone at the company, or find an agent who represents people in your position. It's only through these people-to-people contacts that any business will get done. There are some suggestions on how to pitch, an evaluation agreement, and an agent agreement in the book, Profit From Your Idea. As for the homemade protective measures like mailing copies to yourself, don't bother unless you enjoy the thrill of getting mail. Finally, the Dear Rich staff understands your desire to speak in current biznez lingo but 'monetizing' is inappropriate slang for making a profit. (Its actual meaning is more specific.) When making a pitch, we recommend plain English.
June 18, 2009
Dear Rich: I'm thinking of starting a wedding videography business and I'm trying to find out if and/or when I need to obtain music license(s) for making wedding DVDs. Researching on the web has proven nothing but confusing. Some places say using any song under any circumstance is illegal. Other's say something along the lines of... the couple has the right to private listening/playing/performing these songs since the wedding is a private event. I'm not wanting to add the music (I have a production music library for that). I'm just wanting to know if any songs played or sung during the ceremony need licenses like what about if someone sings or plays Shania Twain's "From This Moment" during the unity candle.
I even asked a lawyer about this and he said that because only a couple copies are made it's covered under fair use. I've researched fair use and don't think this qualifies. I'm not a lawyer, but if a lawyer doesn't make sense, you understand my apprehension? In order to distribute a DVD in which music accompanies a video, you need a sync license from the owner of the song. Good luck getting one. The Harry Fox Agency tried to organize a system for people like you and you can read about their attempts, here. In addition, if a DJ at the wedding party plays pre-recorded music (not a wedding band covering the song), you'd need permission (a Master Use license) from the owner of the recording (a record company). We assume you won't have the ability to research this stuff and enter into separate licenses for every song (even if you could get the music publisher or record company to take your calls).
Are you an infringer if you don't get a sync license?
Probably. Will you get caught? Probably not. Unless you're videoing a wedding in which someone from the RIAA marries someone from ASCAP, chances are good that nobody will know or care about your work. The legal advice you received may also apply -- if you are hassled, you may be able to argue that it's fair use but that depends on the four fair use factors, particularly the first and last ones. If you're looking for a jerry-rigged solution to your situation, you could obtain a mechanical license for the song from Harry Fox and if hassled, argue that you made these payments in lieu of any other system for compensation. The mechanical license is not intended to cover video but your payment would demonstrate your good faith (and the Dear Rich staff bets that a music publisher is more likely to back off if you took this route). What's the video clip got to do with your question? This movie has our favorite wedding music.
June 17, 2009
June 16, 2009
Can You Really Prevent Theft?
These legal measures provide tools for chasing down thieves and recovering damages. They may discourage theft but none can prevent it. (Websites can be 'scraped' and databases copied.) . As for getting the proper language for your click wrap, start by looking at click wraps for similar sites, or by checking Steve Fishman's book.
Get a License?
Yes, the owner of the database should enter into arrangement with the other partners. A license makes sense because you can contribute the database to the partnership and still retain copyright ownership. You may have to determine the value of the license to assess your partnership contributions and partnership taxes. An accountant's help may be necessary. (Check out this Nolo book or software program.)
What's the Picture Got to Do With Database Protection?
We're not sure; the Dear Rich Staff reports that it's from their favorite movie about eavesdroppping and clogged toilets.
June 15, 2009
