Recently in public domain Category

May 26, 2010

Looking for unclaimed royalties for expired stabilizer bar patent

Stabilizer.jpgDear Rich: I found the paperwork on my deceased grandfather's invention for stabilizer bars which I believe are standard on many heavy duty construction vehicles, such as backhoes, etc. There is a patent number and lots of drawings and photos of the apparatus in use. The patent was issued in 1977. Do you know if there is a way that I can find out whether there are any unclaimed fees or royalties? Sorry, but you're unlikely to locate any unclaimed royalties for a patent that likely expired in 1994. 
First you need to find the licensees/assignees. You would need to find the companies that licensed the patent from your grandfather. Check your grandfather's estate documents for evidence of those agreements or consult with your grandfather's attorney if that's possible. Alternatively, search patent records at the USPTO or Google patents for evidence of any assignment of the patent. 
Now the hard part ... Even assuming you could track down companies that had licensed or were assigned the patent, you would still face the biggest hurdle: making a legal claim for compensation. What's in your way is the statute of limitations. Under most state laws, you have between 3-10 years (here's a fifty state chart) to file a claim based on a breach of contract. That date starts ticking the day when you should have become aware that the contract was breached. We don't know the details of your grandfather's death or his condition preceding death so it may be possible to make the creative legal argument that it was not possible for you to discover the breach of the agreement until now but the Dear Rich Staff sort of doubts that will fly. In any case, don't listen to us if you have any doubts; promptly take your paperwork to a patent attorney. All in all, we hate to see inventors go uncompensated (if that's the case with your grandfather) but we're not sure there's much you can do.
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From our mailbag. Kim from Beverly Hills sent us news today that a case of patent litigation between two magicians has come to an end and the patent holder was victorious. Thanks Kim, we're glad the world is safe for the makers of levitating pens. (And yes, readers, the magic secrets are published for the world to see in the patent applications). Mostly, we're grateful to Kim for getting us to research the subject because it turned us on to this wonderful blog.

Posted by Rich Stim | | Email This Post

Posted In: patents , public domain

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May 6, 2010

How Robert Crumb Almost Lost Keep on Truckin'

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Hi Blog Readers!
Sorry to take time away from your important questions but sometimes the Dear Rich Staff has to participate in some tireless self-promotion. Our new book, The Judge Who Hated Red Nail Polish, just dropped--as the young people say -- and we wanted you to savor some of the flavor. So here's an excerpt about Robert Crumb's battle to save his famous Keep on Truckin' illustration.


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Hard as it may be for some people to believe (everyone under 30, raise your hands), there was a time in American commerce when we did not buy licensed merchandise. In the 1950s, Walt Disney created the first market for kid's merchandise, initially with Mickey Mouse, but even more so with the surprisingly successful Davy Crockett craze. But aside from kids buying lunchboxes and coonskin caps, Americans did not adorn their apartments and homes with image-laden posters, bathmats, towels, and sheets and did not wear trademark-adorned t-shirts, hats, and sweatshirts. Then along came the 1960s counter-culture, and the kids who grew up with Mickey and Davy wanted merchandise to reflect their current lifestyle.
The panel. The image that initially drove this new merchandise market was a cartoon panel entitled "Keep on Truckin'" created by cartoonist Robert Crumb. In 1968, "Keep on Truckin'" debuted in Zap No. 1, an underground comic and Crumb was surprised by the wild popularity that followed. (He believed "Keep on Truckin'" to be "the dumbest page in the whole comic.") Within months the imagery and phrase was being hawked on T-shirts, posters, patches, stickers and bathmats, none of which were authorized by Crumb. A fellow artist persuaded Crumb to get a lawyer. "I just never thought that I could ever get myself in a position where I could actually have a lawyer to protect me," he later said, "So it sounded good to me, you know. You have to have somebody in the legal business on your side." 
A.A. Sales pulls a reverse Pac-Man. One of the companies he pursued was A.A. Sales. Initially the parties reached a settlement and $750 was paid to Crumb but there was confusion as to the payment and A.A. Sales continued to sell unauthorized posters, puzzles and patches. In 1973, Crumb's lawyers filed suit in federal court. The judge, Albert Charles Wollenberg, a 73-year old Eisenhower appointee, was no stranger to underground comics--he had previously ruled in the infamous Air Pirates case in which he halted Mickey Mouse's use in a risqué comic. A.A. Sales decided to dig in its heels and refused to settle. At first it argued that the cartoon did not contain sufficient originality, and alternatively that Crumb abused copyright. When those defenses didn't fly--Crumb had borrowed the phrase, but his drawing of the zoot-suited big-footed walking characters was his own--A.A. Sales trudged out a defense that was only available in the U.S. Known as "notice omission," the defense was essentially that Crumb lost his copyright ownership because he had published his work without the little "C" in the circle with the date and Crumb's name. 
The problem .. ... the solution. The only problem with A.A.'s defense was that it didn't know of any omission, and had no proof that there ever was an omission. So it did what many copyright defendants did at the time--it went on a fishing expedition. Fortunately, Crumb had included the copyright notice when he published Zap No.1. He did so more out of attention to detail than for any legal reason since he thought it was "traditional." The notice had also been published in Head Comix (when the cartoon was included in a book published by Viking Press). Lacking proof, A.A. Sales continued to pursue discovery and Crumb lamented the whole process and expense:
 "Morally, I feel that--I mean in 1967 when I was drawing this stuff, to me it was all a mater of morality because I just didn't develop an awareness of where this is the hard, cold facts of business life in America, the way it works, you know, like the whole principle that you can be starving in the gutter and somebody could be getting rich off your work, and not paying you a cent because you didn't put a little C with a circle next to your work is a reality of life in American which I was not that keenly aware of when I did the work. But now I am, obviously, because here we are arguing about it." 
A.A. Sales discovered many copies of "Keep on Truckin'" without notice--but none were admissible because they were all unauthorized infringements. It looked like the defense would fail ... until the deposition of Robert Rita, owner of the Print Mint, a company that printed underground comics. Rita had used the "Keep on Truckin'" image on a 3 x 6 inch business card with Crumb's permission. 15,000 to 20,000 cards had been printed (although that number was later recalculated as less than 6,000 copies). Rita stated that Crumb had never required notice on the card. 
I can't recall. Crumb, on the other hand stated that he didn't recall anything about the cards and didn't remember seeing them. Under the 1909 Copyright Act, which was in effect at the time of the case, any authorized publication of a work without notice resulted in a loss of copyright--a fate that had previously befallen a wide variety of works ranging from primitive computer games to the Danish Troll dolls. (The principle of notice omission favors big business over artists since artists are more likely to forget about notice and big businesses are more likely to discover those failures.) 
The public domain trapdoor. Although every other nation had abandoned the defense, the U.S. refused to change its approach, a fact that kept it from becoming a member of important international treaties such as the Berne Convention. In 1975, using the Print Mint business cards as evidence, Judge Wollenberg granted A.A. Sales' motion for summary judgment. "Keep on Truckin'" then fell into the public domain. In other words, Crumb's image that had spawned the first adult merchandising boon was now free for anyone to commercialize. Fortunately, in 1977 the Ninth Circuit determined there was an issue of fact as to whether Crumb had authorized publication of the cards. The summary judgment was reversed and "Keep on Truckin'" was pulled back from the public domain. 
All's well that ends ... The case with A.A. Sales was settled prior to trial and Crumb now retains copyright ownership of the work. The case was a bitter experience for Crumb who later documented his feelings about Judge Wollenberg in one of his comics. And in his comic book, Home Grown Funnies, Crumb also reflected his bitterness (as well as creating the precursor to today's Creative Commons copyright license) when he inserted the following notice: "All material herein may be reprinted for free by any underground publication or other small enterprise. All fat capitalists who reprint without permission will be sued for breech [sic] of copyright! Nyahh."
The end of an era. The Copyright Act of 1976 (enacted in 1978) attempted to correct the problems experienced by Crumb with a more forgiving notice-omission law, but Congress finally threw in the towel with a law effective March 1, 1989 that ended penalties for notice omission. Works published after that date no longer require notice and the failure to include notice will never result in loss of copyright ownership.

Posted by Rich Stim | | Email This Post

Posted In: characters , copyright , public domain

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April 22, 2010

Using Poe, Shakespeare, Shaw and Mona L.

MLWarhol.jpgDear Rich: I am creating two to five minute video sequences of my art montages for iPod and iPhones and would like to use quotations at the beginning and end by Poe and Shakespeare and Shaw. (1) If all quotations come from some published source do I need to get permission from someone? (2) If I have used an image in my montage sequence that shows for say 10 seconds a painting in a museum, say the Mona Lisa from the Louvre and I altered a picture that I took of that image to look like a pop art Warhol do I need to get a license from the Louvre for the usage? The Dear Rich Staff will save you the trouble of reading a long answer: (1) No, you don't need permission for the quotes*; and (2) No, you don't need a license for your Warholization of the Mona Lisa (unless of course, you're copying Warhol's version.
* You would need permission from Shaw's estate for substantial quotes from works (more than two or three lines) if the work was published after 1922. 

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Posted In: copyright , public domain

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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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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.

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Posted In: fair use , permission , public domain

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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.

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Posted In: art , permission , public domain

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November 5, 2009

How Much Public Domain Can You Eat?

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Dear Rich: I am creating a computer program that requires a lot of line art. I found a series of books ('Scan This Book', 'Scan This Book Two', and, of course, 'Scan This Book Three') that display excellent public domain line art. The legalese at the beginning of the book states that all of the art is copyright free, but that the selection and layout is copyrighted. My program has nothing to do with distributing clip art, and I do not need to use the layouts used in the books. If I were to use most of the art from these books, would I be infringing on the author's/publisher's copyright? Would it matter if I slightly altered the images by coloring them? Would it matter if I combined their selection of images with other public domain images? The short answer is that you're fine copying the material in the book. Like all-you-can-eat restaurants, owners of public domain collections don't mind how much you digest, they just don't want you taking all their stuff and selling it somewhere else. Assuming your software product is not created to sell public domain art, there's no reason to bother with any of your other questions.
Copyright Rules. As you know, you can do whatever you want with public domain artwork. However, under copyright law, the owners of the book may have a compilation copyright. We say "may" because compiling public domain works doesn't automatically amount to a compilation copyright. There must be sufficient creativity in the judgment, selection and arrangement of the public domain material -- for example, "The Best American Stories from the 19th Century" or "Sketches of Victorian Kitchens" are probably protectable because they require decision-making and selections. Even if the book constitutes a copyrightable collection, that copyright is still regarded as being "thin" -- meaning that you would need to lift nearly all of the thing "as is" to infringe it. Public domain compilers such as Dover are primarily concerned with someone taking their material and competing with them. In summary, if you are using the public domain material for aesthetic or decorative purposes and not redistributing the artwork for re-use or re-sale, you're free to do whatever you want.
BTW. The Dear Rich Staff believes that the Scan This Book series is out of print (we couldn't find new copies available online and we couldn't locate the publisher Art Direction Book Company). That doesn't mean nobody will assert copyright; but it does indicate that it's not at the forefront of a publisher's radar.

To learn more about public domain, see 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 , compilation , permission , public domain

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October 8, 2009

She Wants to Use Bloch Paintings on TV

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Dear Rich: I am a television producer who would love to use the work of the Danish painter Carl Bloch within a project of mine. Bloch was born on May 23, 1834 in Copenhagen, Denmark. I'm sure his work is in public domain and out of copyright but would I have to pay any kind of royalties or fees to anyone to broadcast his paintings on television.You are correct. Bloch's work is in the public domain. Danish copyright lasts for the life of the author plus 70 years and Bloch died in 1890. You should not have to pay a fee for the right to broadcast the paintings on a television program, however you may have to pay a fee to acquire access to the paintings -- for example, some museums require photographic access fees or fees for the right to use photographic reproductions prepared especially for  the museum. Note, as we have indicated in previous posts, there is no copyright in a slavish photo reproduction of a public domain painting.
If the work is in the public domain, why is there a copyright notice on Bloch's painting (above)? Establishments such as the Hope Gallery earn revenue by selling reproductions of public domain works and probably include the copyright notice with the intention of discouraging competitors and tracking copying on the Internet (such as performed here by the Dear Rich Staff). We suppose we could remove the notice (since copyright law prohibits the placement of false copyright notices (See 506(c)) but we're too busy packing up personal belongings to mess with Photoshop right now. (By the way copyright law prohibits the fraudulent removal of notices as well (see 506(d).) 

To learn more about the public domain of works, check out Stephen Fishman's The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More.

Posted by Rich Stim | | Email This Post

Posted In: art , paintings , public domain

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September 21, 2009

Music Ensemble Wants to Use Turner Paintings

turner-storm.jpgDear Rich: I run a small nonprofit chamber music ensemble and am researching images to use on the brochure we are putting together for our season. I'd love to use a Turner painting of Venetian canals, since it echoes imagery in a song in one of our programs. My graphics person insists that all paintings are protected, and that I need to find images from an online source like shutterstock, which, needless to say, doesn't have any Turner paintings. Can you clarify? According to the Dear Rich Staff's research, the British "painter of light" died in 1851. In Europe, copyrights expire 70 years after the death of the author. Unless we're missing something (or we've got the wrong British painter named William Turner), all of the paintings are in the public domain. Perhaps your graphics person believes that the photographs of fine art paintings have their own copyright. That's not the case as the courts will not enforce copyrights in slavish reproductions of public domain works. 

Want to know how to determine what's in the public domain? Take a look at Stephen Fishman's The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More. 

Posted by Rich Stim | | Email This Post

Posted In: art , public domain

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September 2, 2009

Going Postal: Image Rejection for Customized Stamps

Freud Stamp.jpgDear Rich: I have a cartoon of a character I created -- Dr. Julia Chicken -- facing off with Sigmund Freud. I wanted to make  U.S. postage stamps using that image but my artwork was rejected by Zazzle.com on the grounds of some celebrity malarkey. I had a feeling that Freud would give me trouble, but I'm not sure why. First of all, it's a parody, but even greater reason for confusion is the fact that the Freud photo is public domain. The short answer is that Zazzle is not legally obligated to manufacture your stamp. In order to use Zazzle, you must agree to their User Agreement and as you know, that means you can't use pictures of celebrities. Strange as it seems, the man who founded the psychoanalytic school of psychology and popularized the couch ("And how do you feel about that?") is still considered a celebrity 70 years after his death. He even has Beverly Hills representation. In addition to the 'celebrity malarkey,' the Zazzle User Agreement also won't let you "create a 'new' image using elements from images other people have created." So you've got two strikes against you. (Other companies sell custom postage stamps and their policies appear similar.) As for your parody and public domain defense, they're not relevant since the User Agreement trumps copyright (and nobody is accusing you of copyright infringment, anyway.) The Dear Rich staff believes you're best off dumping Sigmund from the imagery and just proceeding with Dr. Julia on stamps, instead.

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Posted In: art , celebrities , copyright , public domain , right of publicity

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August 19, 2009

Holy Ghosts: Claiming Copyright on 200 Year-old Painting

iStock_000009274075XSmall.jpgDear Rich: I found an abandoned painting in an old house I used to live in. It was painted in the 1800's.  I would like to make posters of it.  Is there a way I can become the copyright owner? The short answer is "no" (and we're a little bit saddened by your question.) You are free to make posters and you are also free to modify the work with your own additional artwork and make derivative versions and -- provided you've added some original authorship -- you can control the copyright on the derivatives. But you cannot claim copyright ownership over the original. 
Why We Get Depressed
Nothing personal, but the idea of someone hijacking public domain material and limiting its use depresses the Dear Rich staff -- whether it is a book publisher claiming copyright over Moby Dick or a museum trying to claim copyright over its photos of the Mona Lisa (a practice known as 'copyfraud'). And of course, whoever created that painting would really be depressed to learn -- should they return from the dead -- that someone  is claiming all rights to the work. You don't want to be haunted by that possibility.

To find out more about the public domain, see Stephen Fishman's The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More.

Posted by Rich Stim | | Email This Post

Posted In: art , copyright , paintings , public domain

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August 18, 2009

Are the Nuremberg Trial Transcripts in the Public Domain?

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Dear Rich: My organization is interested in reprinting excerpts from speeches of the court justices and witnesses from the Nuremberg Trials held in Germany, 1945-46. Are these trial transcripts in the public domain? The good news is that you can use the transcripts. The bad news is that we're not 100% sure why. 
Is there a copyright?
The transcriptions and translations of the testimony were likely accomplished by U.S. government personnel and are preserved by the National Archives (NARA). Even though U.S. government works are in the public domain, we cannot assume that rule applies in this case. Copyright does not protect spoken testimony, only fixed versions of that testimony. The 'author,' for copyright purposes is typically 'the fixer,' -- in this case the U.S. government employees who transcribed the testimony. However, at least one case has held that court reporters are not authors of courtroom testimony; there's insufficient originality. Another argument might be made that translators of the testimony also acquired copyright (in which case the U.S. government translations would be public domain). Our conclusion: most likely the transcriptions of spoken testimony at the trials are not subject to copyright protection. 
Can anyone object to reproduction of the testimony?
The people who prosecuted or testified at the trials are unlikely to have any proprietary claims as to their statements. Although laws currently exist providing common law rights to spoken statements, it's unlikely that anything said in such a public forum over 50 years ago is proprietary. It's possible that subsequent versions of the original transcriptions may be protected under copyright. The Nuremberg trials lasted from 1945 through 1949 and the transcripts and some of the proceedings have been separately re-transcribed -- for example, the transcription for the 1946-47 trials of doctors and administrators (the "doctor's trial" transcript) has been posted at the Harvard Law School Nuremberg Trials Project. To the extent that such re-transcriptions contain additional material such as commentary, notes, etc., you would not be able to copy that material.
What about the evidence at trial?
It's not clear whether evidence from the trials is in the public domain. Simply introducing the material into the trial does not make it so, at least under U.S. case law. Photos and films of the war-crimes proceedings taken by U.S. personnel are definitely in the public domain material. In summary, we believe that your organization is free to use the transcripts based on its public domain status and -- if we're wrong about the public domain --  a powerful fair use argument that can be made for these historic documents.   

Posted by Rich Stim | | Email This Post

Posted In: copyright , permission , public domain

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August 17, 2009

AP to Public: Don't rewrite!

ap.jpgDear Rich: I am working on a book presentation and was researching an article on MSNBC. At the bottom of the article, it read: "This material may not be published, broadcast, rewritten or redistributed." What do they mean when they say it can't be rewritten? Actually, that's not the position of MSNBC that you're quoting, the tagline is specifically for Associated Press articles posted at MSNBC (MSNBC's policy is here.) 
What's the AP's POV?
The AP's claim is based on: (1) copyright law -- you cannot rewrite the article in a manner that creates an infringing derivative work, (2) state misappropriation law -- there's 90-year old case involving the AP that says you can't compete unfairly by stealing "hot news," and (3) wishful thinking -- copyright permits free use of facts. 
Beyond Copyright
There is a legal theory that goes beyond copyright which prohibits the theft of "hot news." It's based on the 1918 case of International News Service v. Associated Press in which a rival news agency 'stole' and 'rewrote' AP news articles. Some states still uphold this approach; others consider it invalid. (The AP settled its most recent hot news case) It's unlikely that the "hot news" principle will apply in your case because the publication of your book would not trigger the "time-sensitive" aspect of the hot news doctrine.
Just the Facts
Aside from the "hot news" doctrine, the AP cannot stop you from taking the facts of an article and writing a new article using those facts. Consider this recent AP article about the death of Les Paul. You can certainly "rewrite" the first few paragraphs in your book as follows without infringing."Les Paul, 94, credited by many as the inventor of the solid-body electric guitar, died Thursday at White Plains Hospital from complications from pneumonia. Paul is also credited as one of the pioneers of multitrack recording, a process that permits musicians to record different parts at different times and then mix the tracks together." (Copyright aside, we urge every musician with a home studio to observe a few a moments of silence for the man who created modern recording!) Finally, the Dear Rich Staff wants to report that if there are a limited number of ways to say something, you are permitted to express yourself in the same way as others without infringing (known as the "merger doctrine").
The Trouble With Freedom
The trouble with all these "freedoms" --  the merger doctrine, the right to use facts, and even fair use -- is that there are no clear lines. Since the AP is not afraid to file lawsuits you may want to proceed with caution especially if your work may be perceived as competing. If you're particularly paranoid about lawsuits, just take the facts. By the way, speaking of copyright justice, William Patry (the hardest working man in copyright) has a new book and new blog. 

Posted by Rich Stim | | Email This Post

Posted In: copyright , fair use , infringement , public domain

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July 28, 2009

'Breaker Copies' and the First Sale Doctrine

FirstsaleBooks.jpgDear Rich: On many of the largest online book sites one can select a category called "breaker copy," a book that has been damaged such that it has little value to a collector, but it contains plates and or vintage prints which may then be removed and sold hence the name "breaker copy." There is a huge market for these prints on eBay and other auction sites. My question is, does this fall under the first sale rule or is it a copyright violation? The short answer is that the practice of breaking apart books and selling the components requires a long answer. The Dear Rich staff is sorry to have to drag you through the following sleep-inducing explanation but this area of the law is not fully settled.
What's the First Sale Doctrine?
The first sale doctrine guarantees you the right "to sell or otherwise dispose" of your books, movies and music, etc. But in two California cases, (Mirage and Greenwich Workshop) federal courts ruled that ripping out images from a book and reselling them in frames is not permitted under the first sale doctrine because the seller has created derivative works. A New York court seemed to agree with the California rulings, although that case involved a company that bought posters and then resold them after making them appear like oil paintings on canvas.
The Trouble with the California Cases
The trouble with the California cases is their theory about derivative works. Copyright scholar Melville Nimmer disagreed with it and some courts do not seem to follow it. One court  said that sticking something in a frame is a "mundane" act (don't tell that to these people) and doesn't demonstrate the minimum level of creativity required to create a derivative work.  An Illinois case (Deck the Walls) held that the practice of cracking open a box of notecards and mounting them on tiles was permissible under the first sale doctrine (a ruling supported by a Texas case, C.M. Paula Co. v. Logan, cited by the Supreme Court).
What Should You Do?
In summary, you are likely to be headed for a problem if sued in California (or the 9th Circuit).  In other parts of the country, it's murkier. Copyright owners may threaten a lawsuit but not file, concerned they could set a bad precedent. One thing seems certain, you will always be more of a target if you are selling a lot of works by a particular artist -- for example, the collected works of Patrick Nagel vs. a collection of cubist art. And of course many works are in the public domain and you are free to reproduce those without any concerns about the pesky first sale doctrine.

Posted by Rich Stim | | Email This Post

Posted In: art , compilation , copyright , first sale , public domain

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July 3, 2009

All Federal Works in the Public Domain (NOT!)

obama-taking-oath-of-presidency.jpgDear 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?)

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Posted In: copyright , music , public domain

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