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

Indemnity. The Dear Rich Staff  believes that the clause you're referring to is either a warranty - in which the artist promises the film does not infringe -- or an indemnity clause - in which the artist agrees to pay for any damages resulting from any claim of infringement. Either way the distributor can likely go after the artist for reimbursement if someone sues. Some distributors don't just rely on these contractual promises; they ask to see the documentation verifying the licenses and permissions. 

Fair Use and Other Defenses. The concept of "fair use" is primarily for copyrighted works - the Hannah Montana song -- and not for trademarks (the golden arches). Trademark fair use applies to a different type of defense. As noted above, even if the distributor prevailed, the distributor would most likely have to pay its own attorney fees. So being right doesn't mean that the artist and distributor are free of financial liabilities. Also, you didn't mention if the anti-establishment film is a documentary or feature film. A documentary is likely to provide stronger defenses. (BTW, in today's completely co-opted world does the term "anti-establishment" have any meaning anymore?) 

Insurance and Other Odds and Ends. Does the distributor have insurance? If so, you can be sure that the insurer will proceed after the artist and obtain a judgment (and the distributor may do the same on its own). The artist may not have anything of value right now but a judgment will last for many years should the artist earn or inherit anything in the future.

Struggling Artist? We're not sure why the term "struggling artist" bugs us. But really, everyone's struggling to some extent -- even Lindsay Lohan -- and the artist in your question just got a distribution deal which means he or she is way ahead of the game, at least in the struggle-reduction department. Ennyway, just a thought ... and we'll try and get over ourselves.

For more information about copyright and trademark infringement, see my book Patent, Copyright & Trademark: An Intellectual Property Desk Reference.

Forest or the Trees Dept. Hmm ... We could go into discussions about substantial similarity, the abstractions test, and trademark infringement (and we could review a previous post on this subject). But it really comes down to whether the folks that own the Indiana Jones trademarks and copyrights feel that your insurance company is channeling its brand. 

How can you tell who owns what? Usually, you need to ask the publisher. As a very general rule, authors of articles in scholarly journals and other periodical publications traditionally retain subsequent print publication rights. Also, as a general rule, most authors of books do not control the right to copy portions of their published books since print reproduction rights is one of the exclusive rights universally granted to book publishers. (Note, in the event that the publisher stops selling the book, these rights commonly revert to the author -- or at least they used to in the old days of publishing ...). So even though the author may be enthusiastic about including the work (and may be listed as copyright owner), the publisher may be the one who has to okay the use.

We support your work and wish publishers would support it too (instead of making you beg like Oliver Twist). If the Dear Rich Staff  made more money we would shovel it towards our favorite conservation nonprofit located in the nearby (and beautifully named) town of Petaluma.

Want to learn more about who can give permission? See my book Getting Permission: How to License & Clear Copyrighted Materials Online & Off. 

The party line on audiobooks is that a publisher usually sells one audiobook for every 10 print copies (sometimes the ratio is lower). So if your book sells 5,000 copies in its first year, it might not be commercially reasonable to produce an audiobook (at a cost between $2,000 to $10,000) if it will only sell 500 copies. It's possible -- though not likely -- that your contract will have a " use it or lose it" provision that says something to effect that if, after a certain amount of time, the company has not exercised certain rights, those rights revert to you -- for example audiobook rights. So look for any reversion clauses.