Recently in copyright Category

July 3, 2009

All Federal Works in the Public Domain (NOT!)

obama-taking-oath-of-presidency.jpgDear Rich: Are all works created by the federal government or agents of the federal government automatically in the public domain? Specifically, when the Inauguration Committee commissioned John Williams to arrange "Air and Simple Gifts" is this new work automatically in the public domain and is the recorded inaugural performance also in the public domain?  The short answer to your question is that no, not all federal government works are in the public domain. Those created by federal employees and federal officers in the course of their duties are in the public domain; but contractors who create federal government works sometimes reserve copyright in their work. According to public domain expert Stephen Fishman, it all depends on what the government decides at the time the independent contractor is hired. If the government wants the work to be in the public domain, it can require it; otherwise, the contractor would own the work that's created. That seems to be the case with John Williams' Air and Simple Gifts which is owned by Williams' publisher  Warner-Tamerlane/Marjer Music Corp and can be licensed for reproduction from the Harry Fox Agency. You may also be interested to know that the underlying theme of the piece is borrowed from a shaker hymm, "Simple Gifts" (The Dear Rich Staff assumes that Williams contributed the "Air") "Simple Gifts" was also used by Aaron Copland in his Appalachian Spring. Okay everybody, have a safe Fourth of July. You don't want to have to call on the PI lawyers! (And has it really been a year since we posted this?)

July 1, 2009

Car Used in Graphic Novel

sam-max-culture-shock-desoto.jpgDear Rich: I'm working on a graphic novel/comic book. One of the characters will be driving a vehicle of a highly recognizable make and model. Are there legal issues in doing this? If needed, I could alter the car to the point that it's more generic. The short answer is that you're okay using a popular make of automobile in your graphic novel or comic (that's why they call them car-toons) or in most any type of fictional or "editorial" work (remember Stephen King's use of a red Plymouth Fury as the villain in his novel, Christine?). A car manufacturer may battle other manufacturers over the appearance, but those design patent or trade dress rights -- for example, the C-scoop on a Ford Mustang -- are rarely asserted against editorial uses. You may run into a problem if you use the image of the car on the cover of your work, or in the advertising and it creates the impression that the manufacturer is associated with or endorses your work. And you probably shouldn't offer merchandise -- for example, a miniature replica of the car. Of course, the use can also be lucrative if you partner with a car company or get involved in movie and TV product placements. The Dear Rich Staff recommends that if you want to avoid any potential C&D correspondence, use a car that's no longer in production and for which no manufacturer is claiming rights -- like our favorite anthropomorphic characters, Sam & Max (above), and their speedy customized DeSoto
June 30, 2009

Using Posters from Cultural Revolution

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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 26, 2009

Creating Logo Based on Building

White_Castle.jpgDear Rich: I saw an article on your blog relating to permission to publish pictures of buildings. I'm currently designing a logo which is based on an iconic building in London. You probably need to know 'how much' it's based on the building, but what sort of ground am I on with regard to copyright? The short answer is that you may run into trademark problems (we're assuming your use for the logo is in the U.K,). Copyright is not likely to be an issue for you. The architecture for newer buildings is protected under U.K. copyright law (the life of the author/architect plus seventy years) but there is an exception  (see section 62) that permits graphic or photographic representations for publicly displayed architecture. The Dear Rich staff is more more concerned about your rights under trade mark law (it's two words in the U.K.) A logo is intended to transamerica_logo.gifestablish an association with a product or service. If the building you are using is already associated with a commercial enterprise -- for example, the TransAmerica pyramid in foggy downtown San Francisco  -- then consumers may be confused by your use, or alternatively, a U.K. trade mark examiner, may reject your registration. A trade mark examiner may also reject the application if the use of the building implies royal patronage or if it is prohibited for statutory reasons. Since so much time and money is invested in a new logo (and particularly if you are creating the work for a client), it may be time to bring in the lawyers.


June 25, 2009

Can a Chapter Heading Infringe a Book Title?

Thumbnail image for iStock_000008619225XSmall.jpgDear Rich: I wrote a nonfiction book and it turns out that one of the chapters is the same title as a book on a similar subject. The person who wrote that book also has seminars and a DVD using the same title. I seem to remember that there's no copyright on titles -- but don't know how to make sure. Am I infringing? The short answer is 'No.' Copyright law definitely won't protect the book title. Trademark law (with rare exceptions) only protects book titles when used on a series of books. (The author could federally register the title for her seminars but she hasn't done so, yet.) Even if the author could prove she had trademark rights, she would have to show a likelihood that purchasers would be deceived, confused, or misled (yes, we know we could have said it with one word, but we're lawyers). Proving likelihood of confusion seems difficult since most consumers won't see your chapter heading until after they have purchased your book.  All that said, the author or publisher may still fire off a C&D letter should they learn of your chapter title (and may even dredge up claims of unfair competition). If you're concerned about getting hassled, the Dear Rich staff suggests that in the short term, avoid using the chapter heading in promotional materials for your book; and in the long term -- assuming you do a second printing of your book -- change the heading.
June 24, 2009

Copyright in American Indian Photos

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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?
Since the work is in the public domain, you will own copyright in your contributions, though anyone else is also able to make free hand reproductions. As always, most of what we know about the public domain comes from Steven Fishman's engaging Nolo book and treatise
June 18, 2009

Wedding Videography and Sync License

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 11, 2009

Board Game Based on Movie (NOT!)

boardgame2.jpgDear Rich: I'm thinking of developing a board game based on a friend's idea. The game title and game roles are borrowed directly from a movie. Can I use the movie title and characters' names in my game? Secondly, I want to use characters' portraits from the movie in my design. What if I just draw the portraits by myself, say, in cartoon style? Third, the game rule is based on a party game called Mafia. Is that legal? Before we begin, can we send a shout-out to anyone asking Dear Rich questions about using a movie or TV show as the basis of their book, movie, t-shirt, or coffee mug? Regardless of the legal analysis provided by the Dear Rich staff, if the owner finds out about what you're doing, Games.jpgyou're likely to get hassled. (Yes, we're talking about "sue first, ask questions later.") We're not advising you give up your legal rights, but if you have limited resources, we do advise against investing them in a project with a built-in hassle factor.

Okay, the short (and long) answers to your questions are: (1) copyright does not protect titles, but may protect a title when used in connection with other important elements (like character names); trademark law may also protect the movie title, (2) your drawings may or may not avoid copyright problems (it depends on whether they're considered derivatives) and may or may not avoid right of publicity claims (it depends on how the game is marketed), and (3) the psychologists who invented Mafia don't appear to claim proprietary rights, so you're free to base your game on it as long as you don't copy somebody else's derivative version. Take-away points: enjoy the game; don't sell it.
June 10, 2009

Patenting Sporting Event

coach.jpgDear Rich: I developed a new sporting event and would like to find out how I can go about getting it patented or copyrighted? I have read about other types of inventions but not about the development of a new sport. The short answer to your question is that you may be able to patent your new sport but you will have a hard time claiming a copyright. Patents have been issued for new games, (ping-pong poker, anyone?) for variations on existing games (arena football anyone?), and even for competitive techniques within sports (ready to improve your putting?). (You can read more about these sorts of patents in this article.) Under a recent patent ruling a process or method (such as a sport with rules), may qualify for a patent if it affects some hardware -- that is, it is tied to a particular machine, object, or apparatus, or it transforms an object into a different state or thing. In short, as long as your 'invention' includes a physical element such as a football, hockey stick or some other object or hardware, you probably satisfy this requirement.Games.jpg As for copyright, you cannot copyright a system or method (although you can copyright expressions of that game -- for example, a Wii version of the sport, a book about it, or demonstration videos). Of course, the Dear Rich staff notes that your biggest challenge may not be getting the patent, it could be gathering the resources to stop others from playing it without paying you. 
June 9, 2009

Board Games, the Bible, and Canada

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Hi Rich: I am a Canadian and in 1999 I approached a company (not a board game or toy company) to find out if they wanted to produce a board game. The prototype I sent them was based on a Biblical story and required that the player answer a series of questions to win. I have some emails from this company that I saved that clearly show that I was working with them on the game. After a year of having no contract and no clear answers, I got agitated and contacted the office manager (supposedly the employee's boss) and I was then told that since this company was not a board game producer, they would not be interested in pursuing this with me, but if I did have it produced, they would consider it. Long story short, this company along with their book publisher did in fact produce a board game for kids remarkably similar to mine, although there are some differences. The board itself looks very similar, and the strategy and method of winning are the same. Their board is in a different case and they use a "pop up" device but there are still many similarities. Is this a copyright infringement? Am I protected in Canada just having the idea or did I legally need to do something else to protect my idea?
  
Games.jpgThe short answer to your question -- to paraphrase Bob Dylan -- is that something is happening here but we don't know what it is. Your dilemma falls into a growing area of litigation known as idea-submission disputes. Whether your situation violates Canadian law (we're assuming you submitted to a Canadian company) probably depends on the following: (1) The circumstances under which you submitted your idea. (Was it clear you were making the submission for financial consideration? Probably.) (2) Whether your idea was sufficiently unique. (Have others come up with the same concept or are they likely to? That's a tough call since it's based on the Bible.) (3) Whether there is documentation indicating that the company intended to enter into an agreement or venture with you (or otherwise share revenue). (4) Whether what you provided was sufficiently copyrightable. (Did the company infringe that copyright with their game? Hard to tell without further investigation.) (5) The amount of time that has passed since the company first produced the game. (Did you wait too long to pursue this claim?) (6) Whether Canadian idea submission law differs substantially from U.S. law (according to this article, they appear to be based on similar Anglo-American legal principles). As usual, there are other factors, such as whether you can afford to hire a lawyer, whether you can afford to duke it out, and whether the game is popular enough to make the lawsuit worthwhile. (And of course, the Dear Rich staff suggest that you could always turn your experience into another board game.)
June 8, 2009

Pre-Loaded iPods: Part Two

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Dear Rich: If I buy 20 CDs and load those CDs on to an iPod, is it legal for me to sell that preloaded iPod as long as I send the CDs with the iPod to the customer?
The short answer to your question is that nobody is certain whether this activity violates the law but if we were a betting blog, we'd bet that you could get away with it. (See this related Dear Rich question.) The RIAA's failure (so far) to attack businesses such as RipDigital or MusicShifter may mean you don't need to worry. (That strategy differs from the movie industry approach.) In any case, the law is not clear. Even if it is considered fair use for you to copy a legitimately purchased CD to an iPod, the law doesn't allow you to exercise somebody else's fair use rights. Speaking of fair use, Jim of Povmedia.com, brought to our attention another helpful resource. (Also note that if you must disable any digital rights management software to rip the CD, you would be violating the DMCA.)
 
P.S. Even though you didn't ask what 20 CDs we wanted on our custom iPod, the Dear Rich staff has proceeded to assemble its list, just in case:
June 5, 2009

Rights to Deceased Movie Actor Figurine

ben-living-dead-emcee-thumb.jpgDear Rich: I have a business that sells small collectible figurines. I am interested in finding out whether it is acceptable for me to create figurines of characters in movies which have entered the public domain, without obtaining permission. For example, a classic 1940s movie entered the public domain because of a failure to file a copyright or extension. The actors in this movie are well-known and have been in many other movies. I would like to produce and market a figurine of one of these characters, as portrayed by this well-known actor (who is now deceased). Is this acceptable? The short answer to your question is "yes, for the movie rights; maybe not for the rights connected with the actor's estate." The only way you could be hassled regarding the movie rights is (1) if the movie is based on a book which has not fallen into the public domain and (2) a court feels that the literary character is separately protectible. The Dear Rich staff thinks that's a long shot, since most books published before 1963 are probably in the PD. As for the actor's publicity rights, many states, including California, have a "descendible" right of publicity, meaning that the actor's estate inherits the right to exploit his persona. In California, that right lasts for 70 years after death. That's why Steve McQueen and John Wayne are still making endorsement deals. Since it is sometimes difficult to separate an actor from a character -- think Jimmy Stewart and George Bailey -- the right of publicity may be triggered by your figurine (provided the public can recognize it as being based on the actor). In that case, check your mailbox for a C&D letter.
June 2, 2009

Using TV Commercials in Documentary

Dear Rich: I am producing a documentary and I videotaped a couple of 30-second commercials off the TV -- it is evident from the way I framed the image that the ads are showing on a TV -- in order to make a point about the ad's message. I realize that, as you say, fair use is a defense, not a right, but am wondering if this qualifies as fair use. I'm so glad you asked. Fair use is an affirmative defense. Fair use is not always fair. Stop, you're both right. The problem in answering fair use questions is that there are no bright lines... you can only look at how past cases have been decided, review the four fair use factors and make a guess. The Dear Rich staff believes that adding one or two 30-second commercials to a one-hour documentary has a good chance of qualifying as a fair use and if you want to lower the odds of getting hassled (1) use only a portion of the commercial, (2) make it clear that your use of the ad is conveying a message (not selling the product), (3) avoid commercials that feature celebrities, and (4) avoid commercials that feature pop tunes. Even then, if the other side is well-heeled and driving a steamroller, you'll have a problem -- for example, if the corporate sponsor of the commercial finds out about your use and believes it will harm the business, you can expect a C&D letter in your inbox.

June 1, 2009

Using Music from iTunes at a Website

Thumbnail image for Thumbnail image for itunes7-bluenote.jpgDear Rich: Can I use a piece of music that was downloaded from iTunes for a website I have? Is that legal? If not, how do I make it legal without costing an arm and a leg? I'm so glad you asked. The Dear Rich staff is not sure what an arm and a leg costs and the idea of valuing it and comparing it to a music license is confusing and disturbing since (1) valuation of loss of limbs is so difficult, (2) the valuation may be artificially tied to an insurance calculation, and (3) the valuation would be tripled if the loss involved substantial pain and suffering

Ahh... right, your question. The iTunes terms of service does not permit you to use downloaded music at your website (considered a "public performance" under copyright law). You can obtain a website license from ASCAP (around $300 minimum) or from BMI (less than $300, but dependent on traffic and revenue from your site). Of course, you can only license BMI artists from BMI and ASCAP artists from ASCAP. Each site lists their repertoire. Although it is risky (and you would still be subject to legal action) some sites bypass the permissions process. This may succeed if you stay below the legal radar of music publishers -- for example, by only playing the music at a low-trafficked noncommercial website, and by not offering downloads or any other tagged references to music that's playing.
May 28, 2009

Start a Music Label (or Not)?

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Dear Rich: Our band is putting out its first CD and we are considering creating a record label to release it. What do you think? What's involved in creating a record label? Do we need a lawyer? I'm so glad you asked. You don't need a lawyer to form a record label and there's not that much involved in creating one, as I'll explain below. The bigger question is why are you doing it. One reason artists create labels is that they feel it gives some legitimacy to their release -- as if to say to the world, "see, somebody has signed us." If that's your prime motivator, don't bother. Your fans won't care and anyone in the music industry will be able to discern that you've just created a fictitious label for your release. However, if you're serious about building a small business around a series of releases (including other artists), then it might make sense to create a label. 
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Most importantly, and of greatest concern is money. Who will pay for the pressings and artwork? How will you finance promotion? Are you borrowing money to start up? Or are you seeking investments? Will you pay for recording costs? Can you afford to keep going when distributors are late paying you (or worse, go belly up)? All of these things are worth considering before you launch your music mini-empire. (Here's a quick lesson (PDF) on the flow of money in the music business!) If you're still eager to move forward, you'll need a name for your label and you'll want to make sure no other music or entertainment services are using a similar name. (In a future blog entry, we're going to explain how to perform basic trademark searches at the USPTO.) Next, if you're not familiar with basic business startup information, you might want to get a primer. That's because you may need to figure out your business form -- partnership, LLC, corporation -- and file a fictitious business name with your county clerk. You'll need to open a bank account and use an accounting system -- either an Excel Spreadsheet or Quickbooks should do. You may want to affiliate with an independent music distributor (here's a list by state) which may prove challenging, unless you have an artist that is already selling well. And you will need agreements for the distributor, for consignments, and for your artists (including your band). Digital copies of all these agreements are included in my book Music Law, and the Dear Rich staff reports that there other helpful resources for starting a label on the web. One of the more popular books on the subject is Start and Run Your Own Record Label.