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

Dear Rich: Can I use the text and names of people who review my product on Amazon? I'd like to put it on our product packaging. The short is answer is 'No.' Even though the reviewer has given Amazon the right to reproduce the content and reviewer's name under Amazon's Conditions of Use*, they haven't given you the same rights. Using the review without permission could open your company up to a claim of violation of the right of publicity or copyright infringement. We normally might not be this paranoid, but companies that sell products are easy targets and the last thing you would want is to recall your packaging in order to accommodate a court order.

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.)
 

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.

Dear Rich: Are speeches given by leaders in other countries in the public domain or are they owned by the government of that particular country? I'm so glad you asked. The short answers to your questions are "It depends on the country," and "It depends on the country." You're probably already aware that speeches by U.S officials are in the public domain as are works created by federal employees in the course of their employment (with one exception). On that basis, feel free to create your own Bush/Clinton mash-up (watch your volume). However, you can't do the same with Tony Blair's speeches as prime minister. Those are protected under Crown Copyright, as are government works in most British commonwealth nations. Crown copyright is subject to a number of exceptions, and those exceptions vary country-to-country. Some other nations (and the U.N.) also reserve the rights to their leaders' pronouncements. We're not sure why you're asking the question, but if you're considering republishing these speeches for purposes of scholarly analysis, criticism or other commentary, the Dear Rich staff feels that it's likely that a fair use defense will protect your U.S. publication. (Note: We're only discussing the use of the speech itself, not television coverage, which triggers additional copyrights.) Anyway, all that legal stuff aside, you'll probably be able to get away with a Tony Blair mashup, too.

Dear Rich: I have a question. If one uses the name of a quasi-celebrity in the title of a movie that parodies subject matter (organized crime, for example), is one protected under the fair use doctrine? I'm so glad you asked. The fair use doctrine has nothing to do with the use of a name in a movie title. (Copyright does not protect titles.) The fair use defense can only be used when accused of stealing copyrighted expression -- for example, taking text from a book, or a photo from a magazine.

The use of the name may trigger a claim under the right of publicity under which anyone (celebrity, quasi-celebrity, or non-celebrity) can sue if their name or image is used to imply endorsement of a product or service. If it's clearly a parody (or obvious that the title doesn't imply the quasi-celebrity's endorsement) you -- or should we say, "one" -- would likely prevail in a lawsuit under free speech principles. For example, John Gotti's name  has been used in the title of parodies, biopics, and documentaries without any apparent repercussions. All of this information may prove academic, however, as the Dear Rich staff wonders whether a member of an organized crime family will bother pursuing intellectual property rights, when they have other tried and true methods of enforcement.  

 

Dear Rich: I have a question. My cousin is working on a little book for high school students planning to go to college. She wants to use the clip art from Microsoft Word. Do you know if there is a copyright problem in doing so? I'm so glad you asked. Unfortunately, there is a problem. According to Microsoft's official permission statement, "You may not use clip art to illustrate the chapters of a book." The Dear Rich staff believes that if your publication is limited to a group of local high school students, there is unlikely  to be an issue (unless the students have relatives on the Microsoft legal team). However, if your cousin seeks to sign a publishing deal, there will be an issue when the publisher seeks clearance. 

Dear Rich: I have a question. Would I be allowed to have an image of a licenced character -- let's say Homer Simpson -- as an example on my website? The site will have Google's Adsense on it, so technically I will be commercially exploiting a licensed character even if the revenue will be quite small. What sort of copyright info would I need to display on my website as not to be in breach of any copyright rules and regs? I'm so glad you asked. Regardless of how little money you make at your site, using a character like Homer Simpson without permission will violate copyright laws and most likely violate trademark laws. That said, 20th Century Fox (Homer's "owner") appears to be somewhat tolerant of website reproductions of "stationary-frame" images -- at least they were ten years ago, based on this letter from Fox's lawyers). That letter also provides proprietary and disclaimer language that you can add at your site. Fox obviously polices unauthorized Simpsons uses (including infringements by the U.S.  government). But Fox's hesitancy to go after single-image reproductions of Simpsons characters may have something to do with angering fans, as well as the huge task of going after the large volume of unauthorized images of Homer on the web. (Our last Google image search showed 586,000 results. D'oh!). Nevertheless, the Dear Rich staff believes that if you wish to stay below Fox's radar, one way would be to avoid providing audio or video clips, or any other downloadable Simpsons materials.

Dear Rich: I have a question. I was at my bank to deposit a check from a mutual fund. I requested the bank make a photocopy of the check for my personal records. They refused, saying that it would be a copyright violation. Is that correct? If that is true, are they in violation of copyright laws by providing images of my canceled checks with my statements? I'm so glad you asked. The  short answer to both your questions is, "No." The Dear Rich staff was upset to learn of your treatment. Copyright law (37 C.F.R. Sec 202.1(c)) does not protect blank forms, a rule that's consistently enforced by the courts. The underlying principle -- according to the Supreme Court -- is that these forms do not convey information but merely serve as "repositories to structure the recording of information." It's possible that some blank checks may include copyrighted imagery -- for example, photos of sunsets or animals. In that case, the image may qualify for protection but a bank employee's copying of a specific check for a customer would definitely fall within the category of fair use. That's because the purpose is purely transformative -- the copy is being made to record the financial information, not to duplicate the imagery.

Dear Rich: I have some questions: Are old newspaper and magazine columns copyrighted? Is commentary that is printed in newspapers or magazines copyrighted? How about historical photographs? If so, how much can you use (under fair use) in a documentary without getting sued? I'm so glad you asked. The short answers to your questions are: 1) Yes, unless (a) published before 1923 or (b) published between 1923 and 1963 and not renewed. 2) See previous answer. 3) See previous answer. 4) There is no fixed formula for fair use.

Fair use depends on several factors, including whether your use is transformative (you are copying the work in order to make a point -- for example, criticism or parody), the amount and substantiality of the portion borrowed, the nature of the work -- for example, fiction or nonfiction -- and the effect of the use on the market. Practically, you are better advised to read how the law is applied in cases such as the recent suit permitting the use of John Lennon's "Imagine" in a Ben Stein documentary. You can review case summaries at the Stanford Library Fair Use website.

Dear Rich: In 1982, I purchased all rights to a video tape from a "celebrity" of the 1970s (now deceased). With the celebrity's assistance, we used the video tape to make a documentary of the celebrity's life and times. I own copyright to the documentary. The celebrity's family owns the trademarks to the celebrity's name. The name of the celebrity is in the title of my documentary. Am I infringing on the celebrity trademark? I'm so glad you asked. The short answer is "probably not." As a general rule, you can use a trademark (or celebrity's name) for editorial or informational purposes without infringing. Such uses do not require permission because they inform, educate, or express opinions protected under the First Amendment. For example, "Super Size" is a trademark of a big burger conglom and is used in the title of a documentary. (Speaking of documentaries that use McTrademarks, the Dear Rich staff really loved "McLibel"). "Sinatra" is also a federally registered trademark and is used in documentary titles; ditto for James Dean and Marilyn Monroe. The laws protecting celebrity names and likenesses only go so far and you will likely  run into problems if you sell goods or services using the celebrity's name or image, or if you imply the endorsement of the celebrity for any goods or services.  

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

Dear Rich: I attended a fireworks show and the people running it said the show was copyrighted. Is that possible?  I'm so glad you asked. It's unlikely that a fireworks display will be protected by copyright. The big issue is fixation. Copyrighted works must be fixed in some medium -- that is, they must be "sufficiently permanent" so that they can be perceived for a period "of more than transitory duration." (Ice sculptures have a better shot at protection.)

In Australia, a fireworks company claimed that its choreographed display constituted a dramatic work. Nice try. The Australian court  (.pdf) acknowledged that some events within the show might constitute a visual arts work ... but the issue was moot since anyone could film or broadcast the public event under Australian fair use rules. In 2004, two Kentucky TV stations resolved their dispute over a fireworks broadcast (without a court battle), although one station manager was convinced that copyright did not protect scripted fireworks displays. 

Photos, drawings, and films of fireworks are protected by copyright, as are the computer programs that run the pyrotechnics. And of course, the label artwork can be protected under copyright and trademark law. In any case, we're more concerned with the environmental impact of fireworks than the intellectual property rights and to that end, I guess this is one of the few times that the Dear Rich staff (... wait, this is the real staff) is rooting for Disney to lead the way.  

Dear Rich: I have a question. I am a science journalist and I've recorded interviews with many famous scientists. I've used this material in books and articles and would now like to use these on a website for free, open-access listening. Someone has suggested that I obtain permissions from all my subjects or their estates. I believe that no permissions are required because the subjects implicitly granted me permission to use the interview material as I saw fit when they sat down with me and my tape recorder and pad. I'm so glad you asked. You are navigating through one of the grayer areas of copyright law so in answering, I'll have to use a lot of equivocating language, such as 'likely,' 'may,' and 'probably.' If you don't have time to read all of that stuff, the bottom line is that you are probably okay to do what you plan to do. The courts and legal scholars are not a beacon of clarity when it comes to divvying up the rights for interviews.

From the limited case law available, it's likely that a court will consider an interview to consist of two separate works: one work created by the interviewer's questions, and the other created by the subject's responses. These works may be protected under traditional copyright principles (or they may be protected under what's referred to as common law copyright). Under that 'two-separate works' approach, you'd need permission to reproduce the subject's answers. That permission may be implied by the subject's consent to the interview. In fact, one court -- dealing with an interview with Ernest Hemingway -- hinted that Hemingway's failure to limit usage at the time of the interview implied unlimited use.

Some legal scholars argue that a better approach is that the interviewer and subject jointly create one work. Under that analysis, the interviewer and the subject are joint authors. In that case, either author can use the interview for any purpose provided that the party using the interview accounts to the other for any profits. If this approach were applied to your case, your use should be fine since you are distributing the interviews for free and (assuming you are not making money off the website) no accounting would be necessary. You can read more on these two approaches at the Publaw.com site. Also, as you are probably aware, if you proceed without permission, you would have a strong fair use argument for distributing these interviews based on their historic and scientific value.

The whole thing becomes more complicated if you are making money from the sale or licensing of the recordings -- a situation that may trigger a right of publicity claim or (if you and the subject are considered joint authors) an accounting of moneys earned to the interview subject. Finally, there is some question as to whether federal copyright protection extends to a recorded interview, since simultaneous recording of the performance of a work of authorship (that is, not being broadcast) is not considered to be fixed. That means that the interview is not protectable under copyright law (hence the need to use common law copyright, as described above). There's no guarantee that this will all play out as described. A lawyer would advise you that the only 100% safe course is to obtain permissions. But I think your chances of avoiding hassles are good and I personally look forward to listening to the interviews. There is always so much to learn about our scientific heroes.

Dear Rich: I have a question. I'm starting a literary website and I'd like to put up a lot of book covers. Do I have to get permission from the book publishers? I'm so glad you asked. Chances are you won't have to ask for permission because of an exception under copyright law (17 USC Sec. 113(c)) that permits you to display pictures of product packaging "in connection with advertisements or commentaries" related to distribution or sales of those products. So, for example, if you provide links to an online retailer like Amazon where the books can be purchased, you will qualify under this exception. Ditto if you're acting as a journalist and commenting on the book. By the way, this exception applies for any "useful article," not just books. So it also applies to the cover of the "Crunch: Belly Butt and Thighs Bootcamp" DVD, the Pizza Party Elmo toy, and my super favorite new album.