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

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 in the process of illustrating a book for a friend. I had some ideas about the illustrations and my friend said she would have to patent it right away. This is my idea, so shouldn't I patent it? Should we do it together? How do I go about getting a patent for my illustration ideas? We recently learned that 82% of our blog visitors are coming for the first time. Hmmm...Perhaps that's why we get so many questions from people asking about whether they can dress as Spiderman for children's parties or use Lindsay Lohan quotes at their website. Any of our regular readers (18% or less of our viewers) already know that book illustrations are not protected by patents ... and that copyright doesn't protect ideas. So how do we answer this question without boring our regulars? Uh ... We'll have to think about that ...

Dear Rich: I have recently come across a patent filed by my Great Grandfather, and believe that the device may still be in use. How can I find out if I am owed royalties on the sale of this tool. Let's see, we start with the rule that patents granted before June 8, 1995 terminate 17 years from the date of issue; those filed on or after June 8, 1995 terminate 20 years after the filing date.

Dear Rich: I have a question about a logo for my business. I just started a dog treat business and loved a public domain clip art picture of a dog. I flipped the picture, changed the color, added some shading on his ear, added hearts above his head and grass under his feet. I added my logo, too. I found the original image on the WP Clipart web site. I emailed the site author with a copy of my changes and asked if since it was public domain, could I use it commercially. He said yes. I am now wanting to trademark or copyright my logo. If so which one do I do: a trademark or copyright? The Dear Rich Staff -- who is wondering why we're getting so many dog-related questions these days -- reports that if you want to preserve the exclusive right to use this image with your dog treats, you'll need to (1) start using it in connection with the sale of your treats (that is, on the packaging or in the advertising) and then, if you have the  budget, you should file a federal trademark registration. Assuming the image is truly public domain (and it looks that way from the source website), then the coast is clear. Keep in mind that anyone else can use the same dog as their trademark, as long as it is does not compete with you in the field of pet food and dog treats. As for copyright, you have a copyright in the version of the dog you created although anyone else is free to use the original without infringing your dog. By the way (insert FTC disclaimer), our employer is one of the few websites to offer help for dog owners and trademark owners. 

Dear Rich: I am writing a children's book based on the imaginary and not so imaginary friends my children had growing up...my daughter's imaginary friend and my son's stuffed dog. The stuffed dog had a name embroidered on it but my son never referred to the dog by that name. He gave it a different name. So in my book I refer to the dog using the name my son used. I had drawn a picture of the dog years ago and had it framed in my son's room when he was young (he's 38 now). I want to give the illustrator that picture so he can use it as a guide for drawing this dog in the book. Would that be any kind of copyright infringement? I wondered if I could have the name tag show the name my son used for his dog rather than the real one. Actually this stuffed dog looked pretty much like Snoopy but in different colors. I assume there was no copyright or patent problem since both of these stuffed animals are sold in stores. The one I'm using was not sold for many years but has recently been re-introduced online. I would not be using a photo of this stuffed dog. The illustration in the book will be modeled after my drawing of this dog. You can probably go ahead with your plans. You might run into a problem if you copied Snoopy and Snoopy's owner saw your book and thought your dog drawings were rip-offs. But that presumes a lot of things, including the fact that the stuffed dog is Snoopy or whether it is instead one of hundreds of other stuffed dogs that may or may not be copyrightable. In any case, whatever you can do to distinguish your drawings from the stuffed dog will help -- remember not every cartoon beagle is Snoopy and not every cartoon mouse is Mickey. As for swapping the names, that's more of a trademark than a copyright issue, but it depends on a similar question -- are consumers likely to be confused between the two dogs?

I am preparing a news feed of recent articles in which my company's products or website are mentioned in the news. Ideally, we'd like to have a running archive of articles on the website and when you click on the title, it would show you the article in its entirety. We are considering two options: first, we could link the articles to their actual source. Or second and more preferable since we would be able to ensure the link is never dead and we'd keep people on our website, we could link each article to another webpage where we'd have recreated the article (citing the author, source, date, etc). My question...is the second option legal or are we running into copyright problems? You're much more likely to run into problems with the second option. Linking is usually a safe way to convey information that your company doesn't own. We think you'll be okay with reproducing a few sentences and a link back to the full story at its source (although some European courts may disagree). Larger excerpts may cause problems. As for reproducing complete articles, you can always seek permission. Most news sources provide a means for licensing content. For example, the New York Times, like many publications offers a simple process for obtaining a quote and getting permission. To find the permission information, usually there is a link on the bottom of the publication's home page. 

Dear Rich: A number of years ago I entered into an agreement to consult and design for a learn to knitting & crochet book. It was agreed that I retain the copyright of my designs (as they did not want to pay for them). The contract does not state my consulting includes designing original patterns. The "Work" refers to the entirety of the book. "Use of Material" states that they retain full creative control over all of the Work (the book) and elements of all the Work. I was paid to ensure the writing was correct. I also provide designs (with written instruction) to give example of a stitch or type of knitting. A letter was presented at the end of the project giving my "full permission to use my designs for the works of this book, future revisions of this book, and and future translations or repurposing of this book." It has come to my attention that an iTunes app has this entire book published with all my designs. Would "repurposing" include selling to an app? The entire Dear Rich Staff was consulted about your question and our conclusion is that you probably don't have a legal basis to object to the app, although you might want a second opinion from an attorney who can review your paperwork. (Also, a member of our staff does a lot of crocheting and often complains about the errors in the patterns, so thank you for ensuring that the patterns are correct!)

Dear Rich: When you copyright a song (not a recording) what materials do you really need? Does an audio recording of the song qualify or do you need a lyric sheet/sheet music in written form or any combination of the aforementioned? We assume you're asking about the materials you must deposit when you are registering a musical work (or "song") copyright. The answer can be found in Circular 50, Copyright Registration for Musical Compositions. If your song was never reduced to sheet music (probably the case for 90% of the songs written these days), then a CD is fine. (Alas, the Dear Rich Staff is so old that we remember when the rules were different -- yes, a time before CDs and computers -- when we had to pay a music student at the Indiana University School of Music to reduce our songs to sheet music.)