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

Dear Rich: What does "perpetuity" mean in the case of a music publishing contract? I have a friend who signed a deal back in the sixties with a company that doesn't quite seem to exist anymore. The contract says that it is in perpetuity. He has never earned a dime in mechanical royalties. I'm so glad you asked. Perpetuity means forever. U.S. postage stamps and Batman may be forever, but not grants of copyright. If the music publishing deal was signed before January 1, 1978, the copyright owner can terminate it 56 years from the original date of copyright. So if the song was first published in 1960, the deal could be terminated in 2016. Although the Dear Rich staff can't vouch for their reliability, there are companies such as LegacyWorks that will assist you in the termination process.

Your friend may not have to wait until then to terminate. If the company has failed to account for mechanical royalties -- payments that the song writer is entitled to whenever copies of the song are pressed on records or CDs -- then a lawyer may be able to sue for breach and terminate on that basis. It's also possible that the company went out of business, in which case your friend could sue the successor (the company that took over rights). If no company has taken over rights, a lawyer may be able to get a legal declaration that the contract is void. Your friend should also check with the performing rights societies -- BMI and ASCAP -- to make sure that performance royalties from radio and TV are paid. These royalties do not have to go through the publisher and should go directly to the songwriter.

Dear Rich: I have a question. I own a small service business. A few months ago I registered my trademark. I intend to advertise via the Internet but I heard that under Google's trademark policy, bigger competitors can outbid me for the search engine rights for my trademark. So, when possible customers type my trademark in the search bar, the website will display my competitors. Is that legal? I'm so glad you asked. Yes, Google's trademark policy permits the sale of your trademark as a keyword (or in Google's case, an 'adword'). (For readers who are unaware, keywords/adwords are words or phrases sold by search engines to advertisers. When a searcher types the adword into a search engine, an advertisement related to the adword appears on the search results page.) In the case of Google, the purchase of keywords has no effect on actual search results, only on the paid advertising that appears on the right side of the page or above the search results within a colored band.
 

Dear Rich: I have a question. I read about the Target lawsuit and I wanted to know the rules for websites that must be accessible for the blind. I'm so glad you asked (and you're not the only one to inquire). The lawsuit between the National Federation for the Blind and the Target retail chain was settled last month. Until this lawsuit, many retailers believed that the Americans with Disabilities Act (ADA) defined "places of public accommodation" as physical stores, not websites. However, a 2006 federal court decision held that sites that accommodate the public with goods or services are also covered by the ADA (as well as by the California Unruh Civil Rights Act, and the California Disabled Persons Act).

To comply, you should avoid doing what Target was doing: (1) Target didn't have "compliant alt-text" which is embedded text that describes an image. (Visually-impaired users have computers that can vocalize the description.) (2) Target's website contained image maps and other graphical features which are inaccessible to the blind. (An image map is a picture containing multiple links--for example a map of the U.S.) (3) Finally, Target shoppers could only complete a sales transaction using a mouse -- visually impaired users must use a keyboard. You can read all of the web accessibility guidelines at the W3C site. By the way, the Dear Rich staff also wants to report that Congress approved an amendment to the ADA this week that will broaden the definition of disabled persons to include "individuals who could compensate for their disabilities with medications, medical devices or prosthetics" -- a group that the Supreme Court had previously excluded from ADA coverage.

Got a question for Dear Rich? Send it to dearrichquestion@gmail dot com, and make sure it has the header: "Question."

Dear Rich: I have a question. I will be having a political fundraiser for a candidate and I want to play "Blame it On Cain" by Elvis Costello before I introduce the main speaker. About 500 to 1000 people will attend. We're not making any money on the event, just taking donations. Do I need to get permission from anyone? I'm so glad you asked. If the venue at which you are holding your fundraiser has an ASCAP license, then no, you probably don't need to get permission. (An ASCAP license covers public performances of songs by ASCAP-songwriters like Declan Patrick MacManus.) If the venue doesn't have a license, or their license doesn't include your type of event, you'll need to obtain an ASCAP license. (Songwriters who are not affiliated with ASCAP are usually affiliated with BMI.) Of course, if you're hosting a national event, you may want to get the okay from the songwriter to avoid any negative post-fundraiser blowback.

If you do anything other than play the song, you'll need more. For example, if you create a political video using the song, you'll need a sync license. If you use the recorded song as part of an ad campaign, you'll need other permissions, including one from the performers (under a principle known as right of publicity.)  By the way, the fact that your fundraiser is nonprofit or for-profit won't make much difference in terms of your permissions. The Dear Rich staff could go on and on about these rules (we did write the book) but this Slate article says it more succinctly. 

Got a question for Dear Rich? Send it to dearrichquestion@gmail dot com, and make sure it has the header: "Question."

  

Dear Rich: I have a question. I own a domain name -- let's just call it gamingaus.com. I found out that someone has registered the trademark gamingaustralia.com. Would I be infringing their trademark? I'm so glad you asked. The short answer is "probably" (based on the assumption you are both offering gambling services and the fact that the names are fairly similar.)

The billable answer is that many variables arise when choosing a domain name similar to an existing trademark. For example, you may be able to use your domain name if you can show that consumers aren't likely to be confused by the two names, or that you are the first (or "senior") user, or that you are not offering the same services. Say, for example, the other company offers gambling services and you offer "gaming" services (in which you assist in the removal of some species of Australian vegetation). Or, perhaps your site helps people with "gaming" the Medicaid system. If those arguments fail, there's always the possibility that you could challenge the trademark registration on the basis that it is "merely descriptive" (or the generic term) for what the service offers.

The fact is that even unrelated services -- say, wildlife preservation vs. pro wrestling -- can trigger problems. You'll also get hassled if you acquired the domain name primarily to profit by selling it to the other company. The Dear Rich staff would recommend you err on the side of caution, since gambling enterprises are usually well-funded and unafraid to litigate -- or, as our staffers put it: "the bigger the headache, the bigger the pill."

Got a question for Dear Rich? Send it to dearrichquestion@gmail dot com, and make sure it has the header: "Question."