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

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).

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

Rules About Sealed Documents.  Unfortunately, the rules are murky when it comes to Internet posting of sealed civil court documents. Since the Dear Rich Staff is not clear whether continued publication of those sealed civil records violates your state's law or your right to privacy, you may want to consult an attorney (if you can afford it) to determine whether you have any claims that could force the errant website to take down the case summary.

And Speaking of  Names: We're happy to report that 'Dear Rich' (Serial Number 77733116) has been published for opposition -- the final stage of acquiring registration at the USPTO.

And Speaking of Trademarks.  We just learned about Trademarkia.com, an interesting new trademark site that accesses USPTO records and more. (And when is Google going to do for trademarks, what it's done for patents?)

For other questions about trademarks, take a look at my book with Stephen Elias, Trademark: Legal Care for Your Business & Product Name. 

Want to file for your own trademark? Check out Nolo's Online Trademark Application. 

To learn more about licensing, check out my book Patent, Copyright & Trademark: An Intellectual Property Desk Reference.

Dear Rich: I sell vintage movie memorabilia, old movie posters, and move photographs that were produced by studios as publicity and advertising. They are quite collectible and even in this rotten economy manage to hold some value. I do not sell copies, only originals. I recently offered at eBay two photos of an actress -- a 50's pin-up, Playboy centerfold, and "B" movie queen -- and the actress complained that they violated her right of publicity and she had them removed from eBay. A strike has been placed on my account and I am told if it happens again I will be suspended from selling, i.e., I will be out of business on eBay. I've been running a business for years selling these types of goods. I always thought the right of publicity was intended so I could not sell copies or produce products with the images of celebrities. I did not know they also owned the rights to these vintage materials that were either sold or given away by the studios to theatre owners and newspapers. Am I really violating the law? Did the actress really have the right to have these removed? I'm so glad you asked. The short answers to your question are "No," and "No." One of the precepts behind the right of publicity is that each person should have the right to control how others exploit (or "commercialize") their persona, image, and name. For example, Woody Allen has been vigorous in his use of the right because he does not want to be perceived as endorsing other people's products (or having others imitate him to sell products). But re-selling legitimate, previously licensed photos (that is, the pinup consented to the original movie stills) is not a violation of the right of publicity. This is an area where the right of publicity intersects with the first sale doctrine and -- as this case demonstrates -- the first sale doctrine trumps.

 

As for eBay, they're casting an unnecessarily wide net, probably because it's easier than addressing each situation on a case-by-case basis. Their celebrity policy seems confusing and does not address your situation (sales of original posters or stills) and eBay's intellectual property rules don't cover your situation as well. Since your actions are not prohibited by law or by eBay, you should consider making an objection. Under eBay's rules, you can't just re-list the item; instead, you're supposed to contact eBay using the link in their email (and please feel free to link to this blog). Until this matter is resolved, the Dear Rich staff has stopped listing its Strawberry Shortcake collectibles at eBay (and we'll encourage others to do the same).