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

Dear Rich: Are all works created by the federal government or agents of the federal government automatically in the public domain? Specifically, when the Inauguration Committee commissioned John Williams to arrange "Air and Simple Gifts" is this new work automatically in the public domain and is the recorded inaugural performance also in the public domain?  The short answer to your question is that no, not all federal government works are in the public domain. Those created by federal employees and federal officers in the course of their duties are in the public domain; but contractors who create federal government works sometimes reserve copyright in their work. According to public domain expert Stephen Fishman, it all depends on what the government decides at the time the independent contractor is hired. If the government wants the work to be in the public domain, it can require it; otherwise, the contractor would own the work that's created. That seems to be the case with John Williams' Air and Simple Gifts which is owned by Williams' publisher  Warner-Tamerlane/Marjer Music Corp and can be licensed for reproduction from the Harry Fox Agency. You may also be interested to know that the underlying theme of the piece is borrowed from a shaker hymm, "Simple Gifts" (The Dear Rich Staff assumes that Williams contributed the "Air") "Simple Gifts" was also used by Aaron Copland in his Appalachian Spring. Okay everybody, have a safe Fourth of July. You don't want to have to call on the PI lawyers! (And has it really been a year since we posted this?)

Dear Rich: I have a business that sells small collectible figurines. I am interested in finding out whether it is acceptable for me to create figurines of characters in movies which have entered the public domain, without obtaining permission. For example, a classic 1940s movie entered the public domain because of a failure to file a copyright or extension. The actors in this movie are well-known and have been in many other movies. I would like to produce and market a figurine of one of these characters, as portrayed by this well-known actor (who is now deceased). Is this acceptable? The short answer to your question is "yes, for the movie rights; maybe not for the rights connected with the actor's estate." The only way you could be hassled regarding the movie rights is (1) if the movie is based on a book which has not fallen into the public domain and (2) a court feels that the literary character is separately protectible. The Dear Rich staff thinks that's a long shot, since most books published before 1963 are probably in the PD. As for the actor's publicity rights, many states, including California, have a "descendible" right of publicity, meaning that the actor's estate inherits the right to exploit his persona. In California, that right lasts for 70 years after death. That's why Steve McQueen and John Wayne are still making endorsement deals. Since it is sometimes difficult to separate an actor from a character -- think Jimmy Stewart and George Bailey -- the right of publicity may be triggered by your figurine (provided the public can recognize it as being based on the actor). In that case, check your mailbox for a C&D letter.

Dear Rich: There are a set of old specialty technical manuals from the '40s, '50s, to mid-late '60s published by Theo Audel for the construction trades. I tracked down who bought out Theo Audel publishers and contacted them and they'd sold the rights to some small, never heard of before, computer tech manual publisher. I called them, and they have no interest, on any level, for any purpose, of re-publishing/printing these old books. They told me that it was outside their purview. When I asked them to release, or sell the rights, they said no. As a small-time author, I can indeed appreciate the desire to protect one's ownership rights. However, these books are highly specialized, and the information once provided by them is now lost to history. I have in fact contacted other industry-specific publishers, a trade union publisher, and none are interested in seeking to reprint these books. Their response is typical -- just too costly to be of fiscal benefit to the bottom line. What would it take to get them reprinted for use in today's marketplace? And please don't tell me "too bad, just deal with it." I'm so glad you asked (although the Dear Rich staff is upset that you think we would answer your question in a such a flippant manner.) In answer to your question, there are a  few things to consider. First, it's very possible that the manuals are in the public domain. If the manuals were published before 1964 and the publisher failed to renew the copyrights, then you don't need to ask permission. (Only about 11 percent of copyrights issued before 1964 were renewed.) The renewal must have been made during the 28th year after first publication, so a book published in 1940 would have been renewed in 1968. If the renewal occurred after 1977, you can check online Copyright Office records. For books renewed before 1978, you should check the Stanford database of book renewal records, a handy resource. There are a few other choices for your copyright search. You can search the pre-1978 records yourself, or pay the copyright office to search (check out Circular 22), or pay a professional copyright searcher to obtain the records.
 

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

Dear Rich: I am in South Africa (where the copyright act is 21 pages of legal jargon) and my husband and I are looking at recording a Christmas CD of tracks like Have Yourself a Merry Little Christmas, The Christmas Song, Let It Snow, Winter Wonderland, along with public domain carols such as Silent Night, etc. We will probably not even do more that 300 units and we would like to go about it the right way. What would the copyright issues be on non-public domain songs and where does one even begin looking? I'm so glad you asked. Although our blog focuses on U.S. law, the Dear Rich staff is happy to look into international rules (even if it does take three months to answer your query!). In South Africa, as in the U.S., any reproductions of songs on physical media (like CDs) requires that you obtain a compulsory mechanical license. The amount you pay per CD is set by the South African government. The easiest way to get the license appears to be using this form (PDF) which is processed by SAMRO (South African Music Rights Organization). You can find more South African musical resources here. 

Dear Rich: I am writing a chapter for a technical book and I want to use drawings from patents. Do I have to get copyright clearance? If so, from who? The publisher needs the clearance before they will accept my work. Aren't patent applications and issued patents in the public domain?

I'm so glad you asked. The Dear Rich staff wishes it didn't have to use mitigated speech, but the short answer is that you probably don't need clearance to reproduce drawings from published patents. According to the U.S. Patent Office, subject to some exceptions, "the text and drawings of a patent are typically not subject to copyright restrictions."

What makes the issue confusing is that (1) copyright office regulations (37 CFR 202.10(a)) do not prohibit registration of patent drawings; and (2) patent examiner regulations (MPEP 1.84 (s)) permit copyright notices and copyright claims regarding authorship in patent text or drawings. Which is why we end up returning to mitigated speech and why some attorneys answer your question by saying, "it depends".

The Dear Rich staff has been reproducing patent drawings freely and our publisher has done the same in its books about patents. We believe that even if not specifically exempted from copyright protection, the reproduction of patent drawings likely qualifies as a fair use since the drawings are used for transformative purposes. Finally, if you do seek to obtain permission, you should start with the person claiming patent rights. That person or entity may not always own rights in the drawings but they can likely direct you to the person who has the rights.

Postscript: Stephen Fishman, author of our favorite public domain treatise, brought our attention to the 2003 case, Rozenblat v. Sandia Corp. 69 USPQ2d 1474 (7th Cir 2003). In that case, the Seventh Circuit, acknowledged the copyrightability of an inventor's patent drawings (although ruling against the inventor as to the issue of infringement).

Dear Rich: I have a question. I have an online flute consignment shop. I have created a link where I would like to make a piece of sheet music from the public domain available for free download each month. I could go to the local university Fine Arts library and copy music out of old books (which will look like scans of old music), or I could download the same piece of music from a free online source that is already in existence and have it be clean and pretty because someone took the time to typeset it and make it nice to read (I cannot possibly typeset this music myself... for many reasons). But I do not know if this is either legal or ethical. In some cases, there are footnotes that say something akin to, "Not to be used for commercial works." In other cases, there is no such notation. Can I take the music from one of these sites and give it away as a download on mine? I'm so glad you asked. The short answer to your question is that you can legally use public domain music provided that the musical notation you mention is obvious, routine, dictated by musical convention, and does not involve any major changes or new arrangements. In other words, if the notation is simply what's typically required to write the music, it's not protected by copyright.  Wait... was that the short answer?

Okay, just in case you need some backup, the musical division of  the Dear Rich staff consulted with Stephen Fishman, an expert on the public domain. According to Steve, it doesn't matter if it takes great skill or musical training to create the musical notation of public domain sheet music; nor does it matter if the end result is digitized. The work may only be protected by copyright if the sheet music contains substantial additional music, is an abridgment, or involves making a new arrangement -- for example, creating a suite for several instruments with harmonizations not previously associated with the public domain work.

How then can a music publisher claim copyright in public domain sheet music? According to Fishman, many claims for copyright in public domain music are improper and based on the fact that music publishers have a strong economic incentive to convince the public that its music is copyrighted (even when it is not). Of course, this information won't prevent you from being sued; it just means you're likely to prevail if there is a lawsuit. In addition, it may sometimes be difficult to separate the public domain version from a popular derivative version -- as in the case of the folk song "Tom Dooley". (By the way, the rules described here may not be the same outside the U.S.)

As for your question about whether the copying is ethical, the Dear Rich staff is unable to comment as they are trained only to wrestle with legal issues. However, you may find some advice here.

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

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

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

Dear Rich: I have a question. I am an illustrator. Is it true that the government is setting up a database of visual arts works? And is it true that any works that you don't place on this register will become "orphan works" that anybody can use without your permission? I'm so glad you asked. The answers to your questions are "maybe," and "not exactly." An orphan work is one that is owned by a hard-to-find copyright owner. For example, in 1975, a child sends a drawing to Elvis Presley. In 2008, a biographer wants to include the drawing in a Presley biography. The problem is that the artist can't be found and the publisher doesn't want to reproduce the image without permission. Two bills have been proposed in Congress that address this issue. The proposed bills would allow the publisher -- after performing a diligent search -- to reproduce the image. If the artist later appears, the publisher would have to pay a reasonable fee for the use. An unlikely crew of special interests favor the House version of the bill, including librarians, free-speech types, copylefties, academics, writers, photographers, and big industry groups like the RIAA (and, of course, Google). Under the House bill, anyone who wants to use a work must (1) document their "good faith" search for the owner, (2) file a "Notice of Use" with the Copyright Office before using the work, (3) provide attribution if they know the name of the creator, and (4) include a special "orphan works" symbol when the work is published.

Illustrators and artists are concerned about the bill because it would establish a registry of visual arts works. They're worried that if a piece of artwork doesn't show up on a registry search, all rights to that artwork may be lost. First, keep in mind that orphan or not, copyright is always preserved in the work. Second, there's nothing in the law that says that a failure to appear in the registry automatically creates an orphan. For example, even if the drawing of Suda (above) did not appear in a registry, I would still have a hard time claiming it was an orphan ... since the artist and his work are easy to locate on the web (Steve, please don't sue).

Dear Rich: I have a question. I know that old paintings like the Mona Lisa are not protected anymore, but I've heard that museums can still prevent reproductions of these paintings somehow. Is that true? How can that be? I'm so glad you asked. Yes, as a general rule, paintings that existed before 1923 are in the public domain and can be copied freely. However, museums have argued for years that their photographs of those paintings were protected under copyright, thus enabling them to control everything from postcard sales to artbook licensing. That ended in 1999 when a court ruled that "slavish reproductions" of visual works in the public domain are not copyrightable. (The photos may have required skill; but there was no originality.) In other words, you're free to reproduce replicas of public domain artwork in the U.S. Of course, many museums still limit photographic access to paintings and on that basis, people who want high quality reproductions still have to seek permission -- one reason why few people have seen this rare painting of Mona Lisa's sister, Drea, (or so many of Mona's other relatives).

Dear Rich: I have a question. I am a romance novelist and occasionally I borrow material from other books for my historical romances. I read yesterday's question discussing cookbooks and I'm still confused about the difference between plagiarism and infringement. I'm so glad you asked. A plagiarist is a person who poses as the originator of words he did not write, ideas he did not conceive, or facts he did not discover. "Plagiarism" is not a legal term; it's an ethical term. You can plagiarize someone without infringing. For example, if a plagiarist only copies public domain materials, he can't be sued for copyright infringement. And you can infringe without plagiarizing. For example, this whole answer is pretty much lifted from chapter 14 of Stephen Fishman's book, The Public Domain. (See ... I've provided attribution; let's hope he doesn't sue-- :-)). Which is worse? A whiff of plagiarism can damage a romance novelist's reputation, while infringement means dealing with lawyers and hefty judgments.