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August 17, 2010

Getting rights for Weimar Republic songs

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Dear Rich: I work at an educational, nonprofit and I am trying to clear rights for a few songs from the Weimar Era for an online, educational module to be used in classrooms. Now, the more I've looked into clearing audio permissions, the more confused I get.  It seems that I need to clear with the Master recording owner AND I need to clear for mechanical rights to reproduce the clips, as well as performance rights to transmit the clip.  Additionally, we'd like to include full lyrics in German and in English (translated). There are six different songs.  Four of them are from an album that was fairly recently recorded (which is making it easier to pin down permissions).  The other two are recordings that I don't have the original source for and the only information I have is the composer and lyricist. These are very old songs and some are fairly obscure (German Cabaret music from 1920-1930). We would like to do due diligence and attempt to find the correct entities and contact them for all the permissions we need, but does that mean contacting three different entities for three difference sets of permissions for each song? And then also reaching out to clear for lyrics? And who usually owns those? And what if I can't find the rights holders for a song through ASCAP, BMI, or general Googling?  At that point, can I put it to rest? Are older, non-American songs often held by organizations like ASCAP or BMI?  Does anything ever enter the public domain? Like I said, we are an educational nonprofit, and while I wouldn't think that we can get entirely covered via fair use, I'd hope that we could get something. Furthermore, I feel we need to prioritize the rights that are most important to clear.  Do you have any suggestions on how to proceed? Holy umlaut, that's one heckuva question (or like the Ramones said, "it's long way back to Germany.") We're not positive what you're doing with these songs (or what an online educational module is), but we're going to make an educated guess that it's all part of some schulkind's class work.  
The four songs on the album. As for the four songs on the album, the label that released the songs should be able to grant you performance rights (or lead you to the person who owns them) and the label should be able to lead you to the publisher (and the source for mechanical and lyric rights). So for those songs, you're probably covered.
The other two songs. As for the remaining songs, we'll assume that they were written prior to 1933 as that was the end of the Weimar Republic. We're not sure if you're talking about songs recorded back then or new recordings of old songs. If they're old recordings, it's possible they are in the public domain. In the European Union (EU), the copyright in sound recordings lasts for 50 years after the recording is published; or, if it's never published, 50 years after the recording was made. Thus, all recordings made over 50 years ago are in the public domain in these countries. However, this doesn't mean that the music that was recorded is public domain. The copyright in a musical composition, as opposed to a recording, lasts for 70 years after the composer's death in the EU. Thus, the music on many old sound recordings is still under copyright in these countries, even though the recording itself is not. 
Sources for help. Have you tried GEMA, the German performing right society? They would probably be the best place to start research (and you'll probably need someone who sprechens Deutsche). Depending on your budget you can also enlist the aid of a music licensing specialist (easy to find with your trusty search engine). 
Bottom Line Dept. The Dear Rich Staff believes that if -- after all this research -- you cannot find the proper answers you can go ahead with your use. When its difficult to find authors or owners that's often because they're not to be found. In any case your diligent attempt to find the owner will go a long way towards muting any claims that may arise later. Chances are good that if you do eventually hear from the owners, they will only be entitled to a reasonable license fee. Also, if you really want to lower your liability for unlicensed material, figure a way to record the songs yourself. That way, the only possible liability would be limited to songwriter claims.

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Posted In: copyright , duration , fair use , lyrics , music , permission

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August 6, 2010

Using Movie Quotes: Frankly, my dear, we don't give a ....

Dear Rich: I'm wondering about using quotations (just a sentence or two from celebrities both living and dead) in a book of quotes that I'm compiling. First of all, if the book was only a collection of quotes and each person is credited and I am listed as the compiler, is it okay? I would be selling this book - it would be a quotation compilation similar to Barlett's, etc., but focused on specific topics such as "Quotes on Love from Old Hollywood." Secondly, if I use a quote from a celebrity to start off each chapter in a book, then write in my own words a few pages of what I think about each quote and my interpretation of them, is that okay? I would be selling that book, too - it would be more of an advice book written by me using quotes to start off topics/ideas. I'm thinking that even though I am selling the books, each quote from each person would be such a small part of the overall compilation or writing that it would count as fair use, right? Kind of. Short answer dept. We think you're okay with all of your proposed uses. Your ability to create this book is partially based on fair use, partially based on the fact that copyright doesn't protect short phrases, and partially based on the fact that some of the quotes are so short as to qualify as being "trivial" or "de minimis" uses. 
Stopping others from copying your work. You'll be able to claim copyright in your original contributions as well as your choice/selection of quotes (referred to as a compilation copyright). By the way, these rules work if you're compiling many quotes into a book. They probably won't apply if you are taking one quote and placing it on a poster or t-shirt. In those cases, a movie company can go after you, like they went after merchandisers who used "E.T. Phone Home."

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Posted In: copyright , fair use , permission

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July 21, 2010

Press Clips: Link or Copy

news hat.jpgI 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. 
Is it a fair use to reproduce a complete article? We're not sure, though of course it all depends on context, and use. In any case, as far back as 1999, courts were denying fair use arguments for full article reproductions. 
P.S. While we're thinking about it ... it doesn't hurt to avoid using graphic logos from news organizations. You don't want to create the impression that the news organization endorses your company or is associated with it. And your company should be mindful of the FTC "endorser" rules. For example, if you're supplying reviewers with copies, that fact should be disclosed.

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Posted In: copyright , permission

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July 7, 2010

Speed Dating for Copyrights and Trademarks

speedating.jpgToday we'll see how many questions we can answer in less than 20 minutes. Ding! 
Dear Rich: Let's say I came up with the brilliant slogan "A Penny Saved Is A Penny Earned" instead of Ben Franklin and titled one of my blog entries with this and discussed various ways to be frugal. That day an executive at XYZ bank reads my blog, likes the slogan, and decides to file for a trademark. The next day I determine that I want to file for a trademark to sell T-shirts or whatever. I know the slogan isn't protected by copyright, but does the fact that I was the one who published the slogan first help me to get the trademark even though I filed later? The Dear Rich Staff really doesn't like hypothetical questions but since it's Speed Dating Day, here goes: The only thing that gets you the trademark is if you use it first in commerce (or if you first filed an intent to use application and then used it in commerce). You couldn't get the mark for using it on one blog entry ... you need to use it as the title of your blog or newspaper column or whatever. And in any case, you would only get trademark rights in connection with your blog, whereas the executive may obtain rights for the same mark for banking services. PS. We understand the need for austerity, but does anybody save pennies anymore ... we mean except for collectors?  
Dear Rich: I'm putting together a website for my sign business. I'd like to publish photos of some signs I've done. Do I have to get permission from my customers to do that? If there was some copyrightable aspect to the signs like an illustration -- something other than a unique layout or type font -- then you should seek permission. If it's basically words on a sign, no. You might want to add a disclaimer: "Display of signs does not imply endorsement." In the future, add a statement to your invoice that you reserve the right to reproduce signs at your website as an example of your work. 
Dear Rich: I wonder, in general, if an older copyright takes precedence over a more recent trademark as it relates to a design and title of the design on knitwear? We're not exactly sure what you mean. If someone has a trademark for the title of knitwear products but does not claim copyright (most likely scenario), you can copy the designs but you can't sell them using a substantially similar trademark. If someone has a copyright on a knitwear design then you can't copy it regardless of the status of the mark. It's unlikely someone has trade dress rights to a knitwear design. If they do, you can't copy that.
Dear Rich: Just as a hypothetical, suppose I write a fantastic song, post a video to YouTube, and it becomes an overnight sensation, racking up tens of millions of views in its first few weeks. Let's say that I then somehow manage to profit from the song's popularity, selling millions of digital downloads through my website. Given the situation, I'm sure majors might come calling, and I'm wondering what kind of a deal I would be able to negotiate. A joint venture where all profits are split? A one-off album deal? Ownership of masters? What points would you recommend shooting for in this instance? We're still not comfortable with hypotheticals but okay, let's say you become a YouTube phenom and a record label comes knocking. Question: why do you need the label? What exactly will they do for you that you couldn't do on your own or with the aid of a savvy manager and/or lawyer? If you're a songwriter, we could see affiliating with a music publisher because that might get you some licensing and other revenue. Really though, we couldn't tell you what kind of leverage you get from being a YouTube phenom, hopefully something nice that will make your parents and your girlfriend proud. DING! We're sad and happy to report that our time is up.

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Posted In: art , music , permission , trade dress , trademarks

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June 23, 2010

Keeping Monuments Safe From Photography

Mount_Rushmore_National_Memorial,_merged.jpgDear Rich: I have been looking for ways to protect a monument from people taking pictures of it and selling the images. The icon is owned by a non-profit and is very distinguishable. Is there a way to protect "images" of the icon? The logo and name will be protected by a trademark but we would like to protect licensing of the image and monument through an application process, similar to a sports team at a university. We're not positive what type of work you're trying to 'protect.' You refer to it as both a monument -- which is a structure created to honor a person or event -- and an icon -- which is an enduring image or symbol. (Is it like maybe a statue honoring Michael Jackson?)
Is it bigger than a bread box? In any case, we'll start by assuming that you're talking about something made by humans, not a tree, or a waterfall, and that it is publicly viewable. Assuming that's the case, here are the rules. 
Copyright. If the monument is a creative work like a statue and it's not that old -- pictures of it weren't published before 1923 -- then the person who created it (or the person who hired the creator) has copyright and can control reproductions of the work. So, if the non profit is the copyright owner, you may be in luck. Note, fair use is a possible defense when works are publicly viewable -- it all depends on context (is the work the heart of the picture) and use (is it transformative)?
Trademark. The monument can serve as your non-profit's trademark but that doesn't mean you can stop others from selling pictures of it. Your rights to the mark are limited to the classes of goods or services offered by your non-profit and most likely you would probably need to demonstrate that consumers associate the appearance of the monument with your organization. So, for example, Liberty Mutual was once able to stop others from using the Statue of Liberty to sell insurance (the mark has expired), and Paris Accessories can claim exclusive rights to use the Eiffel Tower to sell handkerchiefs. But courts have been reluctant to claim that the owner of a trademark of a distinctive building for example, can stop photographers. As one court noted, such photos don't confuse consumers as to the source of goods, they're just perceived as a photo of a well-known and accessible public landmark. So, we think your course of action is an uphill battle that will require consultation with a trademark attorney.
P.S. The lovely photo of the well-known and accessible Mt. Rushmore is by Kimon Berlin

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Posted In: architecture , permission , photography , sculpture , trade dress , trademarks

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June 21, 2010

Can we use screenshots in our book?

DearRich3.jpgDear Rich: As a rights and permissions editor, I'm finding screenshots are becoming more and more complex to clear. Recently, an author submitted a screenshot that, to me, would require more than 20 permissions. Before I shock everyone with this info, I'd like your input. Our author is writing a "how to" book on IT. One screenshot is part of a lesson on how to arrange her favorite websites for quick location through the Top Sites, website. The second screenshot is the way the author would like to display how a certain website works works. The third screenshot is a music website for a lesson on how to find your favorite music. I believe every trademark used requires permission to use, as well as photos which would have to include a release from the identifiable people within them. Is this correct? Not exactly. You don't need permission to reproduce trademarks in an editorial context like yours (although, to be really safe, you should avoid using screenshots on the cover and in your advertising). 
Copyright issues. Yes, a screenshot is categorized as an infringement because you are copying without permission. However, there is some legal consensus (at least in the U.S.) that thumbnail-styled reductions are permissible as fair use when used for informational purposes--for example, search results, historical timelines, etc. For example, your Top Sites screenshot doesn't need permission because it is a series of thumbnails of other sites and that's apparently considered an acceptable practice within the industry -- obviously Google (Chrome), Apple (Safari) and Microsoft (IE) (all of which offer 'top sites' features) don't seek permission and there is no reason for you, as well. 
As for the other two screenshots ... The Dear Rich Staff regularly uses screenshots without permission in our books because we believe that it is commonly accepted as a fair use, is justified by the recent thumbnail decisions, and perhaps most importantly, no website, unless they are being portrayed horribly, would want to hassle someone who is ultimately promoting their site. It would be a bad legal, tactical and public relations decision. (That said, the more screenshots used from one source, the more likely you might run into a problem. Fo example, one exception to this -- and it wouldn't apply in your case -- might be if a company wanted to provide the exclusive manual on how to play its video game or operate its software program. In that case there might be a stronger basis for pursuing those who copy screenshots).  

Posted by Rich Stim | | Email This Post

Posted In: copyright , permission , websites

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April 19, 2010

I didn't steal your cat

kitty.jpgDear Rich: I am starting an e-commerce store and decided that I wanted to use a cute spotted cat as a logo. I found an artist through Google searches that had a cat that I liked without the spots (she would be in the category of "starving artist" as she sells her original works through venues like Zazzle for about $20-40 each). I contacted her and asked if she would custom design a logo for my new store and that I would pay her for the work and also for a license to use the work on the site and on T-shirts etc. She acknowledged that she received the request but then she never responded to the actual request and started to ignore my attempts to communicate with her. Since I have art ability myself, I painted a spotted cat in a very similar style for my site. I realize that this could be considered derivative art and that she could declare copyright infringement and potentially issue a C&D. From everything I have read on your site and elsewhere, due to the fact that there is really no damage to her in that she would not be suffering any real material loss, that this case is really small potatoes considering both parties material worth, and that she probably wouldn't pay a lawyer to prosecute, the risk that I would have to stop using my image or suffer any other negative consequences would likely be low. Do you agree? Also, if she were to pursue this, we would be more than willing to pay a licensing fee to use the image. If the dispute were ever to go very far, do you agree that is likely how the case would be settled (i.e., pay a licensing fee)? I work for a large pharma company so for better or worse I see this sort of thing with patents all the time - the attitude of "we work on it until someone tries to stop us and if the other company is small enough they can't keep paying the lawyer's fees, will take some money and go away, and if they are big enough then they are more likely to want a piece of the action if it is a successful drug." Thanks for your closing argument ... er, I mean question. Just so I'm clear about your situation, you asked an artist to create a work in her style and she wasn't interested, so you copied her work or style or both (we're not sure) and if she chases after you, you'll consider paying her. Hmm... we think we understand why she's a starving artist.  
The realities. But hey, the Dear Rich Staff wasn't born yesterday (unless yesterday was, like 100 years ago). We understand the realities and we respect your willingness to pay a reasonable license fee, if asked. We should mention a few things that may inform your decision. We haven't seen the two works but as we have mentioned before, when it comes to portraying elements from nature, the more that the work resembles the actual thing, the less protection it will have. 
No pain, no gain. As for your claim that the artist is not suffering any material loss ....  We hope this doesn't sound too naïve, but if someone takes your stuff and sells it on t-shirts, isn't that a material loss? (y'know, just sayin'). Reverse roles and we're sure you'll feel the pain. 
If the artist comes after you. Should the artist chase you, you do have an email trail indicating that you sought rights (which is good) but when rebuffed you went ahead without permission (not so good, as it indicates willfulness -- a negative quality when assessing damages). (A fair use defense will obviously not work for you as you are not transforming the work and you're using it for a straight-forward commercial purpose.) We can't say how you would fare in a dispute like this but we're a little dismayed that the rules of big pharma patent infringement are being applied against $20 Zazzle artists. Oh well, we'd like to stay and rant but we've got to get ready for a one o'clock presentation.

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Posted In: copyright , permission , t-shirts

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April 7, 2010

Can we sing "Happy Birthday" in our movie?

Dear Dear Rich: I'm making a documentary about my aunt who's a well-known accordion player and there is a scene in which people sing 'Happy Birthday' to her and she joins in on accordion. Someone told me that I need to get permission to use that song in the film. Is that true? Can that really be true? The answer depends on who you ask. If you ask Summy-Birchard, the publisher that earns about $5,000 a day from the song ($2 million a year), the answer would be "Yes." If you asked Law Professor Robert Brauneis, the answer would be a definite "No." It seems like the world's most recognized song has benefited from a checkered copyright history. It's possible the whole song is public domain, or that just the melody (written in 1893) is PD. But considering the vested financial interests in protecting the copyright -- nobody has ever litigated the issue --  you probably can't afford to challenge the song's owner. We wish we could hear your aunt's accordion version but we're glad that the squeezebox birthday spirit lives on somewhere!

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Posted In: music , permission , public domain

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March 31, 2010

Ivy League Interview Snafu

Harvard2.gifDear Rich: I granted an interview to a student at the Harvard Crimson, who asked to record the interview on his pocket vocorder. I agreed to the recording and afterwards asked him for a copy. He sent me the digital file. Having listened to the recording, I thought the quality was good enough to post the mp3 on one of my websites, because I happened to be co-authoring a paper on a similar topic to the discussion and wanted my co-author (now back in Tokyo) to listen to it. Later I received an email from the reporter saying that the president of the newspaper did not permit me to post the recording on my website. It's a bit strange, really, because I am owner of the content, as is the reporter, but I don't know where the newspaper gets involved. I have no intention of publicizing the recording, but since it does capture some interesting thoughts of my own, I wanted to simply put it on a public website where anyone interested might happen along and find it. The question is: does a thirdy party have such a right to disallow me to make the recording public? I thought only the people on the recording had that privilege. The Dear Rich Staff hopes you keep the interview posted although nobody can say for sure how your dispute will play out. We visited this subject once before, and at that time we cited this article showing how courts can look at your situation in three ways: (1) the interviewer owns the copyright in the interview because he "fixed" the work and you "consented" by being interviewed; (2) you each own copyright in your separate contributions; and (3) you are joint authors and can each do what you want with the interview (and you compensate each other if the interview is used to earn money). 
What's best for you? We think the third view is the most realistic and enlightened. Of course, this also depends on any agreements you may have made or releases that you signed. We think the Crimson should either re-think its position or begin using releases if they wish to prevent their subject from reproducing the contents of an interview. Would you improve your position by transcribing the interview and only reproducing your responses? Perhaps, but you can certainly make a good fair use argument for including the questions.
What about the DMCA? The Crimson may also bypass all this and seek to use the DMCA to remove the recording from your site. We think that would be a mistake and not just if they fail to consider the fair use ramifications. It certainly would not fit with the spirit of transparency and freedom of information that the newspaper seems to support. (Like, what would Larry say about all this?) 

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Posted In: joint ownership , permission , release , websites

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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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Posted In: art , movies , paintings , permission

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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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Posted In: copyright , permission , t-shirts , trademarks

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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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Posted In: copyright , permission , photography

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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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Posted In: characters , international , permission , trademarks

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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.

Posted by Rich Stim | | Email This Post

Posted In: art , celebrities , celebrity , permission , release , trademarks

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March 5, 2010

Needs License for Watching the Detectives

Dear Rich: I want to use the melody (we will do the lyrics) of the 1977 Elvis Costello song Watching the Detectives in a promotional video. It is for a medical device company. Term is 9 months (this year). Do I need a sync license? Who is this sent to? (Costello is within the Universal Music Publishing Group). Wow, the Dear Rich Staff loves that song. Using it to promote medical devices is really thinking outside the box -- like way outside.  
Right, you had a question ... Yes, you need a sync license and you would need permission to modify the lyrics. You should speak with the publisher -- yes, it's Universal Music Publishing. Contact them at  2440 Sepulveda Blvd., Suite 100, Los Angeles, CA 90064 (310) 235-4700. If you run into a problem -- the typical one being that nobody takes your calls -- you may need to hire a clearance expert. You can read more about that stuff in our book. If you create your own version of the song and don't imitate the singing style of Elvis Costello -- imitating artists in ads leads to problems -- you will only need the permission of the publisher (or administrator).

Posted by Rich Stim | | Email This Post

Posted In: celebrities , copyright , licenses , lyrics , music , permission , right of privacy

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