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

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. 

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.

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. 

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.) 

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.

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. 

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. 

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?
  

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:

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.

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. 

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.