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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).

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

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March 3, 2010

Stopped Taking Photos Because of Photo Releases

agnes-release_me.jpgI work for a non-profit and my board members are obsessed with getting photo releases - but as they don't have a good one and they often want to photograph events with LOTS of people - they refrain from taking photos at all. I was under the impression that unless a photo was going to be sold, no release was needed. Is there a guideline that will enlighten both myself and my board about when photos and video that will be used for things like social media and newsletters require releases from their subjects?  I am afraid this question is going to lead to a "it varies from state to state" answer. Actually, the answer doesn't vary from state to state (and in any case the Dear Rich Staff would never do you like that!) By the way, you might get more out of reading this discussion or by having your nonprofit spring for this book.
You need a release if ...  A properly drafted release basically shields you from lawsuits over two things: (1) you're using someone's image to sell or endorse something; or (2) using the image in a way that harms the person --  it invades the person's privacy or defames the person or otherwise gets them so upset that they call a lawyer and go after the publisher of the photo and sometimes the photographer. 
You do not need a release if ... You do not need a release to use a person's name or image for informational purposes. An informational (or "editorial") purpose is anything that informs, educates, or expresses opinions protected as freedom of speech. So if you have a section of your website such as "About Our Members" or you include the images in your non-profit newsletter -- for example, "Members Protest Disney World Mouse Exploitation," then you wouldn't need a release. 
Finally ... although it doesn't have the full legal punch of a release, you can always prominently post your photo policy at group gatherings -- a statement such as "We'll be taking photos at our event and posting them at our website. If you don't wish to be included, please inform the photographer." 
 

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Posted In: advertising , permission , photography , release , right of publicity

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March 1, 2010

Optioning Theatrical Rights From Heirs

theater.jpgDear Rich: I'm optioning theatrical rights from an author's heirs. I'm using a boilerplate option contract to option the rights. Before I enter into the contract, should the heirs have to provide right of title from the Copyright Office and proof of ownership? We don't know what language is included in your option agreement -- the Dear Rich Staff finds 'boilerplate' to be a deceptive term (with even more deceptive origins). However, you're on the right track by wanting some form of assurance or verification.
Good title; bad title. How do you verify that someone owns copyright? You can start by searching Copyright Office records, or you can hire a search company to research the copyright history. Search results, alas, are not always conclusive. The heirs may not yet have registered ownership in their name, may not have filed documentation evidencing the transfer, or they may have filed documents that have not yet been recorded. There is also the possibility that the records reflect that the heirs own copyright ... but don't reflect the fact that they have since transferred rights.  Finally, the heirs may have provided incorrect information to the Copyright Office. A registration doesn't verify that the person owns the copyright; it creates a presumption that the person owns it. 
Assurances. So, a wise approach may be to research on your own and to also seek assurances in your option agreement. You can include warranties -- guarantees as to representations of fact -- and indemnities -- promises to pay for all damages and costs if a third-party sues over the ownership issue. At the absolute minimum your option agreement must include a warranty from the heirs that they have the power and authority to enter into the option agreement. You can also ask that the heirs provide you with documentation from the Copyright Office evidencing ownership  (that may require them to file documents) and you may also seek other proof of the transfer -- a copy of the will, an opinion letter from the attorney, or documentation from the probate court. 
Wild card department. Though it's probably not an issue, it may matter whether the work falls under the 1909 Act or the 1976 Act (effective January 1, 1978). This could affect the rights of the heirs to terminate previously existing transfers of ownership. It's confusing stuff and a lawyer's assistance may be required.

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Posted In: assignment , copyright , joint ownership , licenses , permission , theater

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February 26, 2010

We Can Use Clip Art, Right?

Thumbnail image for Cat.pngDear Rich: Our company offers a website directory service for advertisers. The advertisers can supply a photo but some of them now want to supply artwork. As long as the image came from clip-art, or some other publicly "royalty-free" stock photo site, it can be used without permission, correct? We wish that were true. 
Our own sad story. A few months ago, the Dear Rich Staff modified (perhaps 'transformed' would be a better verb) a clip art image and used it at our blog. A few weeks later, we got a letter from a lawyer representing the clip art owner demanding a bunch of money (at least enough to buy a couple of kayaks) or face a lawsuit. Fortunately, we made enough noise about fair use to keep the lawyers away (although of course, the statute of limitations hasn't run on that one). But the message is clear -- don't assume that clip art is free to use or modify. 
Understanding the Terminology. The terms clip art, public domain art, royalty-free art, and copyright-free art are often used interchangeably (and confusingly). So here's a primer:
Clip art is a general term used to refer to any artwork that is available in a collection, either in a book or on a computer disk. Clip art may be in the public domain or royalty-free. 
Public domain art is not protected by copyright. Many publishers, such as Dover Books, specialize in offering collections of public domain art. You are free to copy and use the individual artwork in a public domain collection without permission. However, you are not free to copy and sell the collection. 
Royalty-free art is protected under copyright law and cannot be used for free. However, once you buy the CD-ROM or pay for access to a website that contains royalty-free artwork, your license to use the images is largely unlimited, so you can usually use the works numerous times for a broad range of uses. Use for merchandising -- putting the image on a t-shirt -- or some commercial endorsements -- using the image in a magazine ad -- may not be allowed -- a major exception to the rule that you can use royalty-free images any way you like. 
Copyright-free art is the most confusing terminology. Some people use it to refer to public domain artwork; others use it to refer to royalty-free artwork. Often, it's used to describe artwork that websites offer for free to the public -- whether the works are public domain works or royalty-free works. We think it's a meaningless term.
Creative Commons artwork.To be on the safe side, clip art users might want to consider filtering their image search by using the Creative Commons image search filter (that's how we found "Sad Cat" by Peter M., above). And check the license to see if it fits your purposes.
Long story short. The other day we were at Cafe Trieste on their very long line and the guy in front of us was telling an acquaintance a very long story and at least three times, he said, 'Long story short,' and had we had less frontal lobe control, we might have said, "Dude, how can it be 'long story short,' you've already gone on for, like, ten minutes?" Ennyway, if an advertiser is providing you with artwork, you might want to get a warranty or indemnity in your agreement and if necessary, have them furnish you with evidence (terms of use, license, etc.) that they have permission to use the art. 

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Posted In: art , blog , fair use , licenses , permission , t-shirts , websites

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February 23, 2010

Videotaping the Parish Priest

iStock_000003187611XSmall.jpgDear Rich: I am a freelance filmmaker in Chicago and I do volunteer freelance film making for churches. Once a year we have a parish mission at our church and our guest speaker is usually a priest from a different church. I'm the person in charge of audio/video taping the mission. The church has nothing to do with it at all except they are the beneficiaries of my work. The visiting priest that comes to our parish has already verbally agreed to allow me to tape and make CD/DVDs of the mission for our parish library. How do I obtain rights on the film footage to do what I want without scaring away other priests that may be involved? As chief videographer you probably acquire the copyright in the video. We say "probably" because we don't know if there is some hiring agreement, or whether there are video taping rules within the church (for example, if you are granted special permission to tape, there may be strings attached with that permission.) 
Assuming you do have copyright ... You should obtain consents from the subjects of your video. Unless you're dealing with producers, investors or distributors, you can probably get by with a videotaped consent. Tell your subject that you need their consent for the following uses (list all your anticipated uses such as distributing DVDs, posting on the web), and explain that you may not use the interview in its entirety-- that is, you may use edited segments. Make sure that there is a real consent  -- even something as simple as "Yes, that's okay with me," will work. Then save that video. As we mentioned, if you're dealing with money people or distributors, a written consent -- with its additional provisions and releases, for example, permission to use the priest's name and image in advertising -- may be preferred. 
Books that can help. You can find the forms you need in Getting Permission: How to License & Clear Copyrighted Materials Online & Off (insert FTC disclaimer) and in Clearance and Copyright: Everything You Need to Know for Film and Television (a great primer on permissions for film makers).
Can't afford a lawyer? You may not need much money to get legal advice. Chicago is one of several cities with "lawyers for the arts" services. This may include pro bono advice or other low cost services. The Dear Rich Staff used to provide free legal advice at the CLA office in San Francisco but then we created this blog, instead! (Speaking of religion, the staff is currently digging this book)


Posted by Rich Stim | | Email This Post

Posted In: licenses , permission , personal liability

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February 17, 2010

Searching for Misplaced Movie Rights

Refrigerator.jpgDear Rich: I want to adapt an out of print children's novel from 1971 into a screenplay. However, when I tracked down the last known rights holder, a notable book publisher, I was informed that they simply lost/misplaced the film rights. They assured me that they would let me know if they found them, and that was three years ago. I plan on restarting the process again, but what is my next logical step if I reach the same dead end? Is it game over? The publisher who "misplaced" the movie rights ...did they look behind the refrigerator? Sometimes stuff falls behind the file cabinets, too. And once the Dear Rich Staff found an unopened container of Desenex way in the back of a desk drawer.
Losing the movie rights. Of course movie rights are not exactly the same as anti-fungal powder so we're a little confused by the publisher's response. We assume they meant that they lost some document since the rights are intangible. But what document could they have lost? The original publishing agreement may have spelled out who owns the movie rights. But if the book is out of print, chances are very good that the publisher no longer has any rights and that all rights reverted to the author. Publishing contracts form the 1970s often had "use it or lose it" provisions in which rights reverted if they were unexploited. Similarly, if the publisher assigned the movie rights to another entity -- usually as an option agreement -- there's a good chance that's expired and reverted as well. 
Who's got the rights? Our guess -- and it's just a guess-- is that after forty years, all of the rights (including movie rights) reverted to the author. If the author is deceased, it went to the author's estate. You should contact relatives of the author to find out if they have a copy of the original publishing agreement. (That would spell out who initially controlled the movie rights.) If the author had an agent, perhaps that person can locate the contract. There are also pricey services that will provide a copyright search of titles. And of course, there are personal search services that can locate people. (The Dear Rich Staff used to use them to find absentee landlords whose tenants had frontal lobe problems.)

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Posted In: assignment , books , derivative , movies , permission

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February 4, 2010

Fiction Writer Asks ... May I?

iStock_000002478708XSmall.jpgDear Rich: In a work of fiction may I write about an adventure in a well known museum and describe specific exhibits that get vandalized? May I write critically about a well known writer who has been dead for over 100 years? May I write about stuffing a family into a Chevy truck? May I write about a fictitious company that clearly resembles a large fortune 500 company? Yes, yes, yes, and yes, although the Dear Rich Staff is a little concerned about the idea of "stuffing a family into a Chevy truck." 

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Posted In: books , characters , permission

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January 15, 2010

Producers Say No! Can We Use Old Footage?

iStock_000008603363XSmall.jpgDear Rich: We were told by the producers of a local television station that a now defunct television program that hasn't aired for over ten years is no longer available for licensing to filmmakers because there isn't enough money in it and they do not have the staff to locate, edit and make available the footage. We actually have the footage taken from a SVHS master and want to include the show along with their on-screen talent (host and interviewer). We have permission from the host to use his likeness but have been unable to secure a license from the producers. What can we do? That depends. If someone refuses to give you permission to use copyrighted material, you can't -- with a few exceptions -- compel them to license the material. You can of course run the risk of using the material without permission under the theory that copying and performing a short snippet is a fair use because you are using the footage for purposes of commentary or criticism. The Dear Rich Staff found one example where the makers of a movie biography of Muhammad Ali used 41 seconds from a boxing match film in their biography. A court considered it a fair use. This site talks about the case and other video cases, as well.

Want to know more about getting permission? Check out my book Getting Permission: How to License & Clear Copyrighted Materials Online & Off.

Posted by Rich Stim | | Email This Post

Posted In: copyright , movies , permission

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January 13, 2010

Using Audience Reaction Shots

iStock_000005896614XSmall.jpgDear Rich: What are the rules of use for the inclusion of "reaction shots" from an audience listening to a concert? Keeping in mind the camera is in plain sight and often the audience is notified by the performers during the show that they are being recorded for possible use in a documentary or other subject about the performers and or venue. The short answer is that you can probably use it since the audience members were aware of the camera's presence and purpose. In other words, their consent would be implied. You can shore up your situation at the next concert by posting information about the recording (and its subsequent use) prominently at the entrance. That provides audience members with a way to avoid the issue before the concert starts. 
You may wonder -- why would anyone want to avoid being photographed at a concert? According to the Dear Rich Staff's research, some reasons why an audience member may want to avoid being photographed at a concert include:  (1) the audience member told his boss he couldn't work the night shift because he was sick and then was seen screaming in support of Black Sabbath, (2) the audience member told her boyfriend she was busy that night and then was observed making out with another guy at the Taylor Swift show, or (3) a teenage audience member told his Mom he was attending a church special but instead attended a Pantera-Megadeth double bill.

For more information about permissions of all types, check out my book Getting Permission: How to License & Clear Copyrighted Materials Online & Off. 

Posted by Rich Stim | | Email This Post

Posted In: permission

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January 11, 2010

No Soup For You

iStock_000010423295XSmall.jpgDear Rich: I work for a law firm that advertises on BART. We're preparing some new ads and we want to use the phrase NO SOUP FOR YOU (which you may recognize from a series of Seinfeld episodes). Our research shows that there are no live registrations at the USPTO for the phrase. We found a domain name using the phrase, "Nosoupforyou.com," which appears to be a Gainesville, Florida local restaurant web-guide. And according to the Dear Rich blog, copyright laws disfavor protection for short phrases. Are we correct to conclude that we're safe to use this phrase in our ads as long as we don't use it in connection with Seinfeld images. Absent any other Seinfeld connection in the ad, you should be good to go. Nobody appears to be exploiting "No Soup for You," as a trademark for legal services (and it's hard to imagine that anyone would). As you indicated, applications were made for restaurant services but both applicants never filed a statement of use indicating that they were actually using the mark. You are correct as to short phrase protection as well. It's possible that the Seinfeld creators could object under principles of unfair competition, arguing that your use confuses consumers as to Seinfeld's association with the law firm--a long shot that seems extremely unlikely. 
Bonus Question: Can 'Soup Nazi' be registered? Some readers may wonder if the fictional source of the phrase -- the infamous 'Soup Nazi,' can be registered as trademark. The answer is no. The USPTO won't register marks with the word 'Nazi' unless it is a historical reference that requires the term such as "VICTIMS OF NAZI PERSECUTION RESTITUTION TRUST." Otherwise, "NAZI" marks are rejected under Section 2(a) as being immoral or scandalous. 
Disclaimer: The Dear Rich Staff is flattered that a law firm is asking us for advice, however we must provide our special law firm disclaimer: (1) we don't carry malpractice insurance (and we hope you do), (2) answering your question doesn't create an attorney-attorney relationship, and (3) nothing we tell you is confidential (even if we say it is). 

For more information about getting permission, check out my book Getting Permission: How to License & Clear Copyrighted Materials Online & Off.

Posted by Rich Stim | | Email This Post

Posted In: advertising , permission , trademarks

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January 7, 2010

Using One Liners from Email List

iStock_000004357115XSmall.jpgDear Rich: I edit an annual photography book, sold to raise money for charity, which accepts photos from members of an email list. We have a "click-wrap" agreement for the photo upload system. But the book also includes a few pages featuring a compilation of the wittiest quips that have appeared on the mailing list over the past year. I get the quotations either directly from the emails that go out on the list server or through third-party web sites that archive all the content that appears on the mailing list. Are there any copyright issues I should be aware of in taking one-line quotations like this? The short answer is that you're probably fine. Most short statements are hard to protect under copyright for various reasons we've mentioned before in our blog. So you're generally good to go when you take a one-liner from an online source. Issues are more likely to arise if you take several one-liners from a single source, or if your one-liners are actually three or four-liners. 
What about attribution? The Dear Rich Staff could go either way on this one so you can make the call. For many people attribution is a validating experience; others may prefer anonymity. Also, we probably don't need to say it -- but we can't help ourselves since we're in the legal business -- you probably want to avoid defamatory or privacy-invading one-liners. In the future, you can consider adding a "permission statement" to your mailing list terms and conditions, indicating that some statements may be included in the annual photo book. 

To learn more about the permissions process, check out my book Getting Permission: How to License & Clear Copyrighted Materials Online & Off.

Posted by Rich Stim | | Email This Post

Posted In: fair use , permission , public domain

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December 7, 2009

This Is a Test: The Right to Publish Old Photos

iStock_000008730721XSmall.jpg12/09/09 - Note this answer has been corrected following initial publication.
 
Dear Rich: I recently took a public relations accreditation test that included the question below. The answer was D. If the photos were in company files why can't it be argued they were paid for? If the photos were 20 to 100 years old does the copyright still hold? 

To celebrate its 100th anniversary, your company wants to publish a coffee-table book of photos depicting the company's history. You dig through the files and old annual reports and find many photos, some of which have never been published. Some of the unpublished photos are dated and stamped on the back with the name of a photography studio that has been out of business for 20 years. When you consult with your publisher about the most effective way to reproduce these particular prints, the publisher says they cannot reprint them without the original photographer's permission. You are unable to find the original contract between the company and the photographer. Can you reprint the photos without the original photographer's permission? 
A. Yes, if you pay the publisher a fee to reproduce the photos. 
B. Yes, the company paid for the photography and therefore owns the prints. 
C. Yes, you can reproduce the photos if you give proper credit to the photographer. 
D. No, the photographer or heirs own the copyright and must grant permission to reproduce the unpublished photographs. 

The answer to your question within a question is that D is the best (or "most correct") answer. We understand your desire to argue the point - that's one of the reasons that the Dear Rich Staff quit teaching - but unless there is documentation showing that the photographer transferred rights to the company, the photographer retains copyright. The act of paying for a service such as photography does by itself not grant copyright.
A better and much more long-winded answer would have been:
E. Probably Not. If the photos were subject to a work for hire arrangement executed before January 1, 1978, it's possible that the republication would be permitted since such agreements are interpreted more "loosely" than under the current Copyright Act. However, as a general rule, photos are protected for the life of the author plus seventy years (although if the U.S. ever passes Orphan Works legislation, this whole question will be moot). 
Ennyway we're happy to learn that people in public relations are accredited and hope you passed your test and are earning 20% more than your colleagues. (Also we hope you will indemnify us in case the accreditation tester sues us for copyright infringement.)

Posted by Rich Stim | | Email This Post

Posted In: copyright , permission , photography , transfers

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December 3, 2009

Good Source for Hard Copy Public Domain Clip Art

MomBook.jpgDear Rich: My sister and I are planning on writing a small book about our mom. I plan on illustrating the book. What is a good source of clip art that I can use without worrying about copyright infringement ? I actually want a hard copy of images that I can physically cut out the old fashioned way. Wow, we love real clip art -- not that digital stuff -- and we love you for reminding us of back in the day when we used to write the Monroe County obituaries and the HOT LINE column at the Bloomington Herald-Telephone (now the Herald-Times) and where the "art" department consisted of a room with unbelievable clip art catalogs. (The Dear Rich Staff could live inside that clip-art world.) ... Right, you had a question! The short answer is that one of the best sources of hard-copy clip art is Dover Publications (and no, we're not a paid affiliate).

For more information on copyright-free content, check out Stephen Fishman's book The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More.

Posted by Rich Stim | | Email This Post

Posted In: art , permission , public domain

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December 1, 2009

Exploiting a Sports Award Trademark

iStock_000001718643XSmall.jpgDear Rich: I am the owner of a trademark of a once prestigious sports award. Can I have sports related products manufactured of the past recipients. Most have passed away and some are still living. I live in New York. Should I be concerned about "right to publicity"? Yes, you should be concerned about the right of publicity unless you have written permission or a license. (BTW, we think the "right to publicity" is for people like Kim Kardashian.) 
Owning an award doesn't grant an automatic license.  As for your trademark ownership, we would need more information before responding, but assuming it's a registered trademark like this one, it seems like your rights are limited to promoting the award, not the individuals who receive it. If that were not the case, then anyone could provide awards to sports stars and then make money off their names and personnas. Perhaps a listing of the names of all winners may be excused, or perhaps a t-shirt listing all of the winners in a category or for a time period would not violate a sports star's right of publicity but in general, we believe sports stars will object and will likely prevail in these types of claims. Keep in mind that one of the landmark cases establishing the right of publicity took place in New York and involved a baseball player. 
 
Want to learn more about the extent of trademarks? Check out my book Patent, Copyright & Trademark: An Intellectual Property Desk Reference.

Posted by Rich Stim | | Email This Post

Posted In: permission , sports , trademarks

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November 25, 2009

Non Profit Mix CD

Thumbnail image for iStock_000001409183XSmall.jpgDear Rich: I have put together a playlist of others' songs that speak to an issue I am partial to. I would like to sell CDs of this playlist to raise funds for one or both of two organizations that work on this issue (child welfare / foster care). One of the organizations is an official non-profit, the other is the local government department that handles child welfare issues. I've read your posts regarding a variety of uses of others' music, but none to raise funds for non-profits. The licensing rules are the same for profit and non-profit causes. If you're reproducing someone else's songs on your CD, you will need a mechanical license from the Harry Fox Agency (pretty easy to get) and you will need a license from the owner of the sound recording (harder to obtain because you have to get it directly from the record company or via a music clearance agent). The Dear Rich Staff notes that you may be able to get away with selling your CD without permission but if any of the copyright owners find out about it, they can go after you and they may even go after the nonprofit if it's named as the charitable cause. In other words if you're infringing and want to take the risk for yourself, that's fine. But if you're naming a charitable cause on the CD (a more appealing copyright defendant) beware that you could be causing that agency to lose, not gain money. 

Posted by Rich Stim | | Email This Post

Posted In: music , permission

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