March 30, 2010

Tick Tock: Who Owns the Clock?

iStock_000000151145XSmall.jpgDear Rich: I am making a film and recently we found out a clock we own is from an art print. We contacted the artist to obtain permission to have it as part of our set design in the film and not be sued. The artist informed us that only original works can be copyrighted and that prints are free to use in film and television. I was wondering if this is true or not? And if so, does it apply to posters? No, it's not true. There's even a case that held that reproducing a poster of a "church quilt" for 27 seconds in a television series was not a fair use. The court in that case was influenced by the prominence of the poster, its thematic importance for the set decoration of a church and the fact that it was a conventional practice to license such works for use in television programs. (Note: There are other cases that have held that the brief use of paintings, prints and original art in film sets is permitted as a fair use or as de minimis use.) If you're looking for the bottom line: prints and original works will be treated the same when used as part of a movie set.
Where does that leave you? The Dear Rich Staff believes that if you want to be prudent, you should return to the artist and seek permission. If the artist insists no permission is required, have him provide you with that statement in writing. That's not as good as a permission but it will make it much harder for the artist (or the artist's successors in interest) to later claim you never sought the rights. 
Is this bunk? We know most awards are bunk-- a heart-breaking reality that we gleaned at age 12 when we learned that our grandfather and former attorney to Joe Valachi paid his way into a Who's Who of some kind. So when we were informed about this award, we shall presume it's just another attempt to either raise money or SEO by having us bury the link at our blog. Well, anyway, our mother will like it.

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March 29, 2010

Selling Nostalgia T-shirts: When do you need permission?

Winona winter carnival.png
Dear Rich: I'm a graphic designer and lover of old nostalgic items. I would like to scan in and "clean up" art from items such as luggage stickers, water decals and pinback buttons, to reproduce on t-shirts and other things with intent to sell. Most of the items date anywhere from the 1930's up to the 1960's and have little or no ownership or copyright info on them. Am I going to run into problems doing this? I'm enclosing some examples. The short answer is nay problemo! The Dear Rich Staff is pretty sure you're not going to run into a problem. However, because there's nothing quite as satisfying as hearing our own voices (over and over and over), we shall note some of the applicable rules of copyright and trademark law 
Time is on your side. Chances are slim that you will run into a copyright issue if the work is pre-1964 since that would have had to have been renewed at the Copyright Office (and it's very unlikely that luggage stickers and buttons would have been renewed). So most, if not all of your material is public domain. As for trademark law, none of the examples furnished seem like they would trigger a trademark claim but if any of them do refer to current companies, or to products or services now being sold or offered, a conservative approach would be to avoid them. P.S. To learn more about the public domain, see Stephen Fishman's book The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More (Insert FTC disclaimer here).

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March 26, 2010

Cashing a check that says "Payment in Full"

iStock_000002206191XSmall.jpgDear Rich: I'm having a dispute with a company for which I did a website. The contract says that they owe me $350. They claim I didn't do part of the work. Then, they sent me a check for $250 that says "Payment in full for website." Is it true that if I crossed out the "payment in full" and wrote "under protest," I could deposit the check and still go after the other $100? Court rulings are not always consistent on this, but the majority of courts say - and the U.C.C., as well - that if there is a dispute as to what is owed, and the party receiving the check knows that it's intended as 'payment in full,' depositing the check ends the dispute (known as "accord and satisfaction"). The rule doesn't apply if there is no dispute (in which case the 'payment in full' is meaningless) or if the dispute is not "honest"-- for example, one party deceives the other making it difficult to figure out what's owed. Finally, if there is a dispute but the check is cashed inadvertently, the rule may not apply (courts are split on that issue). If you have deposited the check and wish that you hadn't, the Dear Rich Staff advises that most state statutes  -- check your state's U.C.C. (Section 3-311) -- give you 90 days to repay the check and get back into the dispute. 

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March 25, 2010

I love my ... blank?

Blankgeneration.jpgDear Rich: I am retired, but have a small t-shirt business with which I make a little extra money. I have a question about trademarks. I have a group of photographers that want me to make caps and t-shirts with saying like "I love my ___" or "I only use ___" (blank being the name of cameras). I am using fonts that are not connected with the trademark and extruding and shading them. There is no resemblance at all except the spelling of the names and the statements are used in common everyday conversation. Is it alright for me to make and copyright the graphic designs as long as I am not using the registered trademarks? That whole "blank" thing got us thinking about that classic RIchard Hell song. What a great song and arrangement. And what a great message --  that you could fill in the blank to define a generation.
Right, you had a question. The short answer is that your use will probably infringe the camera company trademarks. However, we also think you can probably get away with it. 
Why does it infringe? Trademark law prohibits uses that are likely to cause confusion with an existing trademark. There's a good chance that consumers who see hats saying, "I Like Leica" will think those hats originated with Leica. So, the camera companies have the right to challenge your use. (Another way to look at it is to imagine that the hat says "I LIKE THE STEELERS." You can see how the NFL would be all over your business once they learned about it.)
But you're using an everyday phrase ... It's true that you're using a phrase that might be used in everyday conversations. But in this case, you're not using it in a conversation; you're using it on a hat and making some money from it, too. The trademark is what gives your hat its value. Otherwise you would be selling hats that say, "I LIKE _____ CAMERAS." (And we're back to the Richard Hell approach.)
So why do we think you'll get away with it? We can't guarantee this (and we've been known to get it wrong), but the Dear Rich Staff thinks that your use (1) will fly below the radar of most camera companies (assuming you don't try to expand your exploitation beyond the group you describe), and (2) challenging this type of use in which consumers are pledging their support for a product might seem counterproductive to a camera company. After all, the company is getting free advertising every time someone wears the hat. 
P.S. (1) Changing the font doesn't make much difference because the companies have registered the names in standard character styles. (2) You're unlikely to get a copyright on a short phrase no matter how fancy the font. 

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March 24, 2010

Local news used my photos without permission!!!

Thumbnail image for angryphotog.jpgDear Rich: I have just found out that several photos of mine have been used by various top market network owned television stations and one cable station owned by a major cable company without my permission or credit since 2008. It appeared they got them from the flickr website. One of  the photos has been manipulated and used in various on-screen graphics as well as their websites. I would never have allowed use, without payment. I spoke with some people who are familiar with the TV stations in question who said the photo was used "countless times". I have found so far a video clip of one of the broadcasts from 2008 of use on YouTube which featured several of my photos as well as a couple more which use just one and in manipulated form. It doesn't seem like this is any sort of fair use, as the photos in question were not topical. Right now I am in very pissed off mode. I can't really afford a lawyer right now, either. What should I do? First, the Dear Rich Staff feels that when you get done reading our answer, you're still going to be pissed off. So you might want to spend the time doing something more constructive because we have no magic method for convincing the violators to get out their checkbooks.
Taking it to the brink... In a situation like this, usually the only affordable way you can pry a payment from the infringers -- assuming that's what you want --  is to take them to the brink of a lawsuit and then accept a payment from them that is less than what they imagine they would be paying their lawyers to defend against you. Unless you're a savvy pro per litigant, you're going to need an attorney to do that. That's also assuming that the other side is convinced that you have a better than average chance of succeeding in court.
Just the facts ... We reviewed one of the photos in dispute and we're thinking your case is good but not a slam dunk. A court may find that your copyright is "thin" in that the originality quota is low. We know your case is different than the one we cited -- but we're alerting you that when originality is low, the photographer's position is weakened.
What is it you want? Finally, there's the question of what you want as compensation. We're assuming you haven't registered the photos (and wouldn't be entitled to statutory damages). If you won in an infringement case, you'd most likely be entitled to a reasonable license fee. For an image like yours that could range from a few hundred to a few thousand dollars. You can check with photographer friends or photo pricing books to figure out reasonable compensation. 
What we would do ... In your situation, we think you should write to the infringers, tell them you own the copyright and that you want the material removed. Inform that if they continue to post and use the photos, you will consider it a matter of willful infringement. Don't threaten a lawsuit but suggest that you are ready to work something out. On your flckr pages you should also include a copyright notice with your name. At the same time you should register the photos with the copyright office (you can do it electronically). You may be able to find a low cost (or contingency) attorney via a local lawyers for the arts center if there's one in your area.  

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March 23, 2010

Why pay more for an intent-to-use application?

The_French_Laundry.jpgDear Rich: I'm starting a business and the domain has been registered. I'm looking into registering the trademark and thought about using an intent to use application (ITU) to reserve the name until we are up and running. I realized it costs more for ITU then regular registration. What is the benefit of ITU? We were going to say that an ITU application is like having a dinner reservation at The French Laundry but then we remembered that our analogies usually suck.
Right, you had a question. ITUs are relatively new on the trademark scene--debuting back in the late eighties. Before that you could only file if you were actually using the mark. With an ITU, you can now file if you have a bona fide intention to use the mark within six months of the date the mark is approved for registration by the USPTO. If you are unable to put the mark into use within that period, you can purchase additional six-month extensions, one at a time until three years have passed (provided you are able to convince the USPTO that the reasons for the delays are legitimate).
The advantage of filing an intent-to-use application. Besides the fact that you get to reserve a mark, your filing date will serve as the date of your first use of the mark--assuming you go on to put the mark in actual use and take the other steps necessary to get the mark placed on the federal trademark register. This first-use date can be very important in the event a conflict develops with another mark--in the USPTO or in the marketplace. 
Ready to go? Once you decide to file on this basis and you are certain that you intend to use the mark, you should file as quickly as possible, to obtain the earliest possible date of first use. As you mentioned, the intent-to-use approach is more expensive than filing an actual use application--at least $100 more expensive, plus $150 for each additional six-month extension that is needed. Therefore, it is most appropriate to use the intent-to-use application when you have come up with a truly distinctive mark or you plan to spend big bucks "tooling up" to use your mark and you don't want to prepare branding materials, etc., until you know that the mark will be yours. 
Don't do ITU if ... The Dear RIch Staff recommends against using the ITU process for a mark that is legally weak--for instance, it uses common words in a common way or is descriptive of the products or services. In those cases, you will have little choice but to wait until you have put the mark into use and can demonstrate that the public associates the mark with your product or service. Keep in mind that the USPTO will only okay an ITU application for a mark that is distinctive. (By the way, the "French Laundry" is inherently distinctive for restaurant services. The photo  is by Peter Merholz).

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March 22, 2010

Can we copy logos to save $$ on company shirts?

VandelayShirt.jpgDear Rich: I work for a corporation that requires us to wear uniform shirts with the company logo. The boss supplies the shirt at what we believe to be an elevated cost, and we were wondering about finding shirts on our own. Would it be legal for an embroiderer to use the company's trademark to produce shirts for the employees of that company to wear, or would we need to obtain permission to use the trademark? The Dear Rich Staff thinks the answer to that question may be in your company's employee handbook (assuming your company has one). In other words this would be a case of your employment rules taking precedence over trademark rules. 
What state do you live in? Even if your employee handbook proscribes rules where to buy your shirt, you should still check your state's labor laws. Many states regulate costs of company uniforms or other dictated dress codes. For example, in California your employer must pay for your uniforms or other required on-the-job dress. 
If it comes down to trademarks ... If your employee handbook doesn't address the issue and your state laws don't help, then the question is: "Does it violate your company's trademark rights to create unauthorized T-shirts with the company logo?" We're pretty sure you will run into a problem. We think your unauthorized use of the corporate logo is likely to cause confusion (and if done badly, it may dilute the company mark, assuming the mark is famous). And of course, unlike other types of infringement, the company is very likely to learn about the infringement. 
And what about using a fake company logo? Our favorite Busted Tees shirt raises a bonus question. Can you make company T-shirts when the company only exists as a figment of a sitcom character's mind. (Or wait, is it a real company ... or companies?) We hope the answer is yes, but either way, we're not giving our shirt back.

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March 19, 2010

Beer, it's not just for breakfast (or keg lamps)

keglamp.jpgDear Rich: I've started making some lamps out of empty mini kegs as gifts for family and friends and am considering selling them, either at a local craft store or online at etsy.com. Is it legal to sell someone else's keg (Bell's, Hienekin, Rogue, etc.) as a lamp base? I mean, what about those hand-made Coke-can wind chimes or Scrabble-piece magnets I see for sale? (Anyway, I think someone beat me to the punch on etsy.com). What do we like about your lamp? As Lenny Bruce's Mom would say, ' We like that you stayed home to make it.' But we hate to break it to you but like, everybody has beat you to the punch. (Hey, but that's understandable since great beer-drinking minds probably think alike.) As for your question, the Dear Rich staff believes you're free to sell empty kegs as lamps provided you don't create the impression that a beer company endorses or is otherwise associated with your project.

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March 17, 2010

Mickey Mouse Goes to Romania

romaniaflag.jpgDear Rich: I am from Romania. I am writing you because I'm interested in the Mickey Mouse costume mascot, but I don't know exacly if is legal to wear it in the public areas to make money, for example as a street performer. As a street performer, you are not allowed to ask people for money, they give you money only if they want to. As you probably know Disney takes the Romanian market seriously; it's developed a Romanian Disney channel (yes you can watch Hannah Montana in Bucharest), has strong film distribution there and is exploiting all of Europe for consumer products. The Dear Rich Staff isn't familiar with Romanian copyright and trademark law, but we know that since 1989, the country has worked towards harmonizing its  laws in order to participate in intellectual property treaties. These treaties are what make it possible for Mickey and Friends to enforce rights globally. So, we're going to conclude that if Disney cares about Romanian street performers -- and we're not sure they do -- they would be entitled to stop anyone using Mickey's image for commercial purposes whether in Timişoara or Constanţa. The fact that the performers don't solicit money probably doesn't make much difference because the goal in either case is to cash in on Mickey.  

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March 16, 2010

Nelson Mandela and Brigitte Bardot: How Do They Do It?

brigitte1.jpgDear Rich: What if I want to register my name as a trademark and I am a (relatively) famous actress/model? I believe that performing in the public eye for the last few years has given my name enough secondary meaning to qualify it by USPTO standards. How do Nelson Mandela or Brigitte Bardot go about stopping the use of their name in products? I searched in the TESS database at the USPTO and the name isn't used by someone else. What class of service or goods does that kind of registration fall under? And do I have to have an actual logo to qualify? I'm hoping that you may know the answer to this question before I spend $400 trying to register the name. First of all the Dear Rich Staff needs to know if you are really a famous actress/model or whether this is a ("what if") question because if you are a famous actress/model, we immediately move your question ahead of the street performer from Romania who wants to know if they can wear a Mickey Mouse costume. Also, assuming you are a famous actress/model we're curious how you determine the order of the two terms. Does "actress" come first because you do more acting (time spent), because it's more lucrative (money earned), because that's the way you think of yourself (self-perception theory), or  that's the way others want you to think of yourself (peer pressure perception). In other words are we lawyer/bloggers or blogger/lawyers? 
Right, you had a question (or questions). No, you don't need a logo to register at the USPTO. You can register your name (assuming you're aware of the rules for personal names). As for the appropriate class of goods, you would choose whatever goods (or services) you plan to sell using your name. For example, if you're Chuck Norris, that might be exercise equipment and nunchucks. If you're Brigitte Bardot, that might be swimwear and non-fur wearing apparel. 
Right of publicity and trademarks. You're mixing trademark protection and the legal protection offered by the right of publicity (ROP). Under the ROP, anybody can stop the unauthorized use of their name to sell products. Trademark protection is used to make sure that a person or entity has exclusive rights to use their name on the products and to take advantage of the predictable and uniform federal trademark laws. (ROP is a patchwork of state laws.) The reason we associate celebrities with the right of publicity is because non-celebrities are not usually used to sell stuff. (There's a reason they call it the George Foreman grill, which by the way is why we have to wind up this answer as we're kind of in a hurry to unpack our new GF indoor/outdoor grill.) 
PS: federal trademark registration can be accomplished for $275.

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March 15, 2010

Can I Sell Golf Paintings and Prints?

golfkid.jpgDear Rich: I'm a graphic artist with over 30 years professional experience. Now, I am creating a series of original golf images, in my personal style, to sell as limited edition prints. Some of these images depict famous players but they are not depicted in recognizable events (derived partially from my visual memory abilities and also from sketches made from the TV). I am concerned about being sued by the golfer(s) for rights to publicity ... even despite the fact I am aware that a while ago a very famous golfer's agents sued a sports artist for selling prints of the artist's painting depicting that famous golfer, and lost... essentially due to the ruling determining the athlete's right to publicity did not trump the artist's first amendment rights. Is this good news? Or for every ruling like this, are there just as many that have gone against the artist? Does it matter that, in part, I am painting a known golfer's image based on my sketches from the TV, which is a 'publicly viewable' situation? I know the famous golfer believes that people are buying the art print solely because of his image, but what if the person is buying it primarily because of the quality of the artwork? Also, a famous golf course like Pebble Beach Golf Links (Monterey Peninsula in California) have trademarks on their property/business names. If I create a painting that is merely suggestive of that course's famous holes, but is not actually a factual view... and if their trademark encompasses the phrase "PEBBLE BEACH", can I use the term "PEBBLE"? In other words, is there infringement issues for implying an actual place?  We hope we can answer all your questions before our Stash green tea high wears off. Yes, you are correct -- a painter created images of famous golfers including Eldrick "Tiger" Woods, and then sold the prints. Woods' licensing people sued and lost. 
Why did Tiger lose? The Sixth Circuit believed that the first amendment trumped the right of publicity. A similar ruling happened in a case involving a painting of a famous sports scene from Alabama football history. These are great cases for painters and we want all artists to exploit their first amendment rights (no matter how dopey that can sometimes be). But our takeaway points should also include the fact that both cases took almost four years from filing to final gavel. So, like Clint says, you have to ask yourself, 'Do you feel lucky?' We know that's not the answer you were hoping for but like the fair use defense, that's the reality. Any celebrity or trademark owner can drag you through litigation until a court agrees with you that the balance is tipped in favor of free speech. So, please proceed with caution.
Does it matter whether they're buying the work for my artwork or for the celebrity? That's not the way to frame the question exactly (and in any case it's usually a little of both). In these kinds of lawsuits, the inquiry isn't why people are buying the work, it's more about what the artist has done with the work. Or as one California court put it, "Another way of stating the inquiry is whether the celebrity likeness is one of the "raw materials" from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question." Like fair use analyses, courts seem to be looking for something transformative in the work. The same California court looked at Andy Warhol's celebrity imagery and wrote 
"Through distortion and the careful manipulation of context, Warhol was able to convey a message that went beyond the commercial exploitation of celebrity images and became a form of ironic social comment on the dehumanization of celebrity itself.... Although the distinction between protected and unprotected expression will sometimes be subtle, it is no more so than other distinctions triers of fact are called on to make in First Amendment jurisprudence."
Gee, we're getting a little winded with all this jurisprudential verbiage. Is it okay if we answer one more question and go lie down.
Can I use publicly viewable images from TV? The Dear Rich Staff thinks you're mixing a couple of concepts, here. Generally you don't need a release for a person (or property) that is viewable in the public. An image on TV may be viewable by the TV-viewing public, but it's not the same as 'being in public.'  We know it's hard to separate the two these days and we have problems with it as well. Eventually they'll all be one thing and we won't have to wrestle with it anymore.

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March 12, 2010

Making the world safe for law firm ads

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'Spect! Wow, the Dear Rich Staff is impressed. We answered this question two months ago and then the other day, we saw this advertisement on BART. 

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March 11, 2010

Copyrighting tracks with vocal samples

vocalist.jpgDear Rich: I would like to ask about pre-licensed sample packs. I purchased a CD with vocal samples, in the licensing agreement there was information that "You can use the sounds in any type of non commercial music production without permission." So I asked the producer of the samples if I can use them freely in commercial production and he agreed. When I finished the track I copyrighted it. But because the track has the vocal samples and they are quite popular if I release my track may I have a conflict with other producer as to "who came first?" You won't run into any disputes over the samples.Copyright law doesn't care who came first. All that matters is whether you copied somebody's work without permission. Keep in mind that if the only thing in common between your recording and someone else's is the fact that both of them use the same licensed samples, there is no infringement. You can both co-exist in sampled harmony.
The good and the bad. The great thing about licensed samples is that you have inexpensive access to great sounding audio clips. The downside is that anybody else can also purchase the same rights, and end up sounding like your tracks. (Just like anybody can license the same photo in their blog as the one we licensed from istockphoto.) By the way, if you register your new tracks, the Dear RIch Staff suggests that you state that you are not claiming rights to the samples (in section 4 of Form CO).   

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March 10, 2010

Supercalafragalisticexpialidocious! Can you protect coined words?

Jabberwock.jpgDear Rich: I'm creating a cartoon world which contains several coined words describing things, actions and types of creatures, a little bit like Tolkien's "Lord Of The Rings". Does copyright give me the exclusive right to use these words in money-making ways? For example, could Tolkien have restricted the sale of T-shirts that used the word "Hobbit", either by itself or as part of a phrase? 
As a general rule, copyright does not protect single words or short phrases, even if those words or short phrases are nonsense. 
Tell it to the Hand. There is an odd collection of copyright cases that indicate that nonsense words may be protectable in different contexts. In a case in which a book of meaningless code words was protected (Reiss v. National Quotation Bureau), the great jurist Learned Hand  (and odd-couple pal to J.D. Salinger) wrote, "Conceivably there may arise a poet who strings together words without rational sequence-perhaps even coined syllables-through whose beauty, cadence, meter and rhyme he may seek to make poetry." (Hand's logic in that case was later used as the basis for protecting  Apple's operating system object code. The protection of inventive words was part of the copyright-software debate  in the late 1980s since nonsense words (source code) are essentially  what facilitate our 'human-machine' communications.)
The Jabberwock. In another case, the great Justice Jerome Frank also mentioned a phrase from Lewis Carroll's Jabberwocky, "Twas brillig and the slithy toves" as an example of a nonsense phrase with sufficient originality to achieve copyright protection. There's also a case involving the word 'Supercalafragalisticexpialidocious' in which the court held that copying an inventive word could 'conceivably' create liability. And finally, a British court reviewing the word "Exxon' indicated that inventive words might be protected in some contexts. So, it's possible a sufficiently original collection of coined words will be protected.
When inventive words are character names. If you use the inventive word as a character name, you can likely achieve trademark protection without much problem. You may also get some peripeheral copyright protection for the character name as well -- for example, in one case, merchandisers were stopped from using the phrase "E.T. Phone Home" under copyright law. 
Alice's House. Yes, the new Tim Burton movie features the Jabberwock as well as the complete version of the Jabberwocky poem.

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March 9, 2010

Reselling Apple Products Redux

apple-logo.jpgDear Rich: I have a question about one of your posts, titled Reselling Apple Products from February of 2009. I am interested in opening an online store and selling Apple products. However, I am not interested in becoming an authorized reseller. Am I allowed to do that?  I emailed Apple (their reseller program) asking whether I can do that, and they emailed me back this morning: "Ben, you can only sell Apple products as an Apple Authorized Reseller." Are they right? Will I be acting illegally if I open my store and sell their products? Gee, was that really over a year ago that we wrote that post about reselling Apple stuff? Time sure flies when you have mutated DNA.  
Is Apple right? ... Since Apple's email has raised concerns, we reviewed our information. Conclusion: we're standing by our post. The Dear Rich Staff loves its Mac (and by extension that loves goes out to all Apple employees) and we can only assume that the Apple customer service rep who responded to you had a momentary lapse of judgment perhaps triggered by iPad hysteria. 
Hassling Nonauthorized Resellers? Apple cannot halt resales of legitimately acquired U.S. versions of its products. But it can enforce its copyright and trademark rights which means that they may go after unauthorized resellers who use the Apple logo or name to imply Apple's endorsement, or who lift advertising copy or images from the Apple site. On that basis, they pursued unauthorized iPod sellers in 2005 and pursued unauthorized Mac resellers back in 1998. They will also apparently pursue unauthorized resellers who induce authorized resellers to breach their reseller agreements whatever that means -- we haven't located a reseller agreement, so we're not sure.

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Posted In: first sale , trademarks

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