Monday, October 9, 2017
The Transparency in Music Licensing and Ownership Act (TMLOA) is a proposed law that, should it be enacted, would create a song database run by the Copyright Office. Supposedly, the database would make it easier to locate the song owner or PRO. Note: A song owner does not have to register copyright to provide information to the TMLOA database.
Failing to register. A song owner who fails to register will not lose copyright. The "punishment" for not registering is that if the song owner sues a store, restaurant, web radio, or other industries mentioned in the TMLOA, the song owner can only collect the actual damages, not the statutory damages or attorney fees. The underlying effect of the proposed law would be to discourage lawsuits against various industries. The TMLOA is not considered particularly favorable to song owners, and has been characterized as "an all-stick, no-carrot deal."
Bottom line dept. A few things to keep in mind: (1) ASCAP and BMI are cooperating on their own publicly accessible database in order to discourage passage of this legislation. (2) Regardless whether the legislation passes, any song owner who doesn't file for copyright before infringement occurs, cannot collect statutory damages. (3) Considering the track record for proposed copyright legislation, the cost and technology required, as well as the rumors spreading about the TMLOA, the odds disfavor passage of this partisan business legislation.
Thursday, September 7, 2017
When MIDI code triggers a synthesizer, it's similar to a piano roll triggering a player piano. In both cases, music written by a human is programmed to be played by a machine. Whenever a human creates an original fixed work (the code is fixed on the game cartridge), it's protected by copyright. In order to record, remix, or repurpose the NES/MIDI melodies or themes, copyright law requires that you get permission from the composition's owner -- either Nintendo, the game company, or in rare situations, the composer. Unless the music has been released on CD or authorized downloads such as MP3s, you would not use the compulsory mechanical license used for cover songs because that only applies to compositions that have been released on sound recordings (not video games or movies). Sample licensing usually includes two licenses, one for the composition, the other for the recorded performance. You wouldn't need the license for the recorded performance (aka the master recording).
What if you don't get permission? Failing to acquire permission won't matter if the copyright owner never learns of your use (a good possibility unless your track goes viral). And even if the owner does learn of your work, the owner may not want to hassle you for financial or publicity reasons. The owner may be most likely to care if you use your music in a video game or movie.
Permission may not be needed. Authorization is not needed if your sampling is excused as a fair use, determined by the four fair use factors. Your use differs from the original purpose of the music -- to enhance the gameplay experience. So, that's transformative (and in your favor). Another fair use factor is how much material you have used. The less you sample, the less you loop, and the less that the song is built around the loop, the stronger the fair use argument. Still, as we always warn: Fair use can only be used as a defense to copyright infringement. That is, you must already be in court. Also, permission might not be necessary if the MIDI composition is not original (for example based on folk music) or is so simple the pattern is considered an essential building block of music composition (for example, the arpeggio associated with boogie-woogie piano). Again, like fair use, these are defenses raised at trial.
Sunday, August 27, 2017
We can't say for sure who owns the rights to The Virginian's publicity photos, but if they're like many other publicity photos from that time (The Virginian ran from 1962-1971), there's a good possibility that they're in the public domain.
The Wind and the Wizard. Works published before March 1, 1989, were required to include copyright notice so if the Virginian's publicity stills were distributed without a notice (the word "copyright" or "©" and the name of the owner), you're free to use them. It wasn't uncommon for stills to lack notice.
"An issue of recurring application is publicity photos for motion pictures from the 1920's through 1970's. The films themselves from that era were routinely protected as validly noticed and registered works; but much less care was typically exercised during production and in the publicity office. (1-4 Nimmer on Copyright § 4.13[A].)In some situations, the lack of notice might have been deliberate. A notice might have discouraged reproductions and the whole point of these 8 x 10 glossies was to get publicity. In one case that arose over the use of posters and promo photos from the films The Wizard of Oz and Gone with the Wind, the Eighth Circuit Court of Appeals ruled the materials entered the public domain when they were distributed without a copyright notice.
Before 1964? If any of the stills were distributed before 1964 it's likely they entered the public domain. Works published before 1964 had to be renewed and only a small percentage (estimated to be less than11%) met that requirement.
If it is still under copyright ... there are a few things to consider:
- Who owns the copyright? It's probably either NBC or the production company that created the show (or an assignee of either of the two). It's possible but unlikely that the rights for promo photos were transferred to a third party stock photo house such as Getty. That's easy enough to check using Google's Reverse Image Search
- Will the copyright owner learn of your use, and if so, will they care? If a reverse image search confirms several unauthorized uses, that may indicate that either (1) the copyright owner is not trolling the web for old promo photos, or (2) the copyright owner doesn't care about those reproductions. If the owner of the photos also owns rights to the TV series, it wouldn't be good publicity to go after a former star of the show while the show is still in syndication.
- Does your posting of the picture constitute fair use? Based on the four fair use factors, we think you have a strong fair use argument. However, as we always warn, fair use is a defense made when the case is being litigated -- already an expensive proposition.
Thursday, August 17, 2017
We've reviewed your book and we're not sure why the company is objecting.
No copyright, no cry. We believe that the failure to include copyright notice placed the flyer into the public domain, making it available for anyone to use. For works published before March 1989, authorized publication without notice typically doomed works, unless excused. (By the way, the U.S. was the only country following this rule.) Even if the flyer were not in the public domain, you have one of the stronger cases for fair use that has crossed the Dear Rich Staff's desk. Only one of the four fair use factors -- the amount and substantiality of the portion taken -- weighs against you. Otherwise, your reproduction of this 35-year old advertisement is highly transformative and should not deprive the $13-billion-a-year chain of any potential market share.
Trademark rights. A company can object if its trademark is used in a manner that confuses consumers as to source -- for example, consumers believe your book is sponsored or authorized by Trader Joe's. This is unlikely considering your prominent disclaimer and your failure to include the company's distinctive lettering or logos. Further, as we've written before, the use of a company's trademark is permitted for editorial purposes, which is clearly the case here. We also don't think there's any trademark dilution.
Bottom Line Dept. It's difficult to understand why the grocery chain is objecting to your book, especially considering how TJ-positive it is. We can only chalk it up to too much Cookie Butter.
Thursday, August 10, 2017
Unfortunately, like many inventors, you've lost control of your invention. To get the rights back, you need to (1) convince your employer to assign the rights back to you (through negotiation or litigation), or (2) convince a judge to invalidate the patent assignment. This may be difficult (and expensive). Note: your employer has only prospective rights. That is, there are no patent rights until a patent is granted.
The Assignment. You and your co-inventors signed a written assignment transferring the patent application for "good and valuable consideration, receipt of which is hereby acknowledged." That document was recorded at the USPTO and your employer subsequently transferred the patent from a corporation to an LLC. Assignments are presumed to be valid
Was the assignment fraudulent or unconscionable? Fraud, also known as misrepresentation, occurs when a false statement is made upon which another party justifiably relies, resulting in damage. In other words, if you can prove that your employer lied to you (or concealed the truth) and you had reason to believe the lie and were damaged, a court may invalidate the assignment. (Damage may be difficult to prove because a patent hasn't yet been granted.) A contract also won’t be enforced if it is unconscionable or grossly unfair. This almost always occurs in situations where the bargaining power is severely imbalanced and the party with more power takes advantage by forcing unfair conditions, clauses, or waivers on the other party. Fraud is often successful as a contract defense; unconscionability is not as successful.
The employment relationship. Further complicating your situation is your relationship with the employer. Ownership rules -- "employed to invent" and "shop rights" -- are more difficult to sort out if (1) the employer funds development, (2) the employee works on the invention on the job, or (3) the employee uses company facilities. Another issue is whether the invention is something that is related to the employer’s business or actual or anticipated research or development.
What to do? We suggest you retain a patent attorney to analyze the situation, and if necessary, apply pressure on your former employer to work out a solution. We doubt whether you want to bear the cost of patent litigation, so be prepared to compromise. You may be able to save on costs by using the services of an attorney connected with California Lawyers for the Arts.
Wednesday, August 2, 2017
VIDA is a socially responsible e-commerce company, launched in 2014, that connects designers with manufacturers around the world and sells the resulting products at its site. Artists and designers submit original fabric designs which, if accepted, are converted to fabric and used for apparel and housewares merchandise. The designer receives a 10% royalty for each sale.
Nonexclusive and Exclusive Licenses. According to Vida's Designer's Submission and Licensing Agreement, by submitting your designs, you give Vida a nonexclusive license to reproduce your design primarily for marketing and promotional purposes. Once an order is made, you give Vida exclusive rights to sell your design in the designated categories (classes of goods that you selected when you submitted your design). (Here's an overview of the merchandise licensing process.)
How does Vida's license stack up?
- Royalty - Artists receive 10% of net revenue (gross revenue minus discounts, shipping and similar expenses). Fabric design royalties typically range between 2 and 10%.
- Length of licenses - You can terminate the nonexclusive license thirty days after providing notice. You can terminate the exclusive license within one year after providing notice. Most fabric licenses are for 1-3 years with one year renewable terms.
- Limitations - The exclusive license is limited to the designated categories that you selected when you submitted your design. If you don't want Vida to have exclusive rights for certain goods, don't select them as designated categories.
- Reliability of the licensee - The company appears to be well-funded and has been around for almost three years (a good sign for a start up).
Monday, June 5, 2017
The document you'll need is an assignment of copyright, which is a permanent transfer of rights. It must be in writing (not an oral agreement).
Basic assignment. Below, we provide a very basic copyright assignment that should work for you. (For more sophisticated assignments, see our Getting Permission book.) Your co-author is the "Assignor" and you are the "Assignee." Only the Assignor needs to sign the assignment agreement. If you are paying for these rights, you should acknowledge your payments to your co-author somewhere in the agreement.
What if you signed a co-writer agreement? If you have a written co-authorship agreement (sometimes known as a co-writer or co-ownership agreement), you may have to follow the requirements of that agreement as to resolving disputes or other co-ownership issues.
Assignment of Copyright By Co-Owner
I, _________________________ (“Assignor”), am co-owner of the work entitled ______________ (the “Work”) and described as follows: _______ _____________________________________. For consideration which I acknowledge, I assign to ______________________ (“Assignee”) and Assignee’s heirs and assigns all of my right, title, and interest in the copyright to the Work and all renewals and extensions of the copyright that may be secured under the laws of the United States of America and any other countries, as such may now or later be in effect. I agree to cooperate with Assignee and to execute and deliver all papers as may be necessary to vest all rights to the Work.
Signature of Assignor
Saturday, May 27, 2017
|GEORGE HALLEY - 1968 COTY "WINNIE" AWARD|
Lace Baby Doll Dress with Flower and Bow
If the photos were published before 1964, they are probably in the public domain and free for anyone to use. That's because works published before 1964 had to be renewed and we're guessing that your father's photos were not renewed, (less than 15% of copyrighted works were). BTW, a photo is "published" when it is made available to the public on an unrestricted basis -- for example, if the photos were reproduced in a magazine or newspaper.
If the photos were not published ... In that case, the photos are protected under copyright until 2042 (70 years after your father's death). Assuming (1) you inherited the copyrights upon your father's death, and (2) your father didn't transfer copyright in the photos under a work for hire agreement, you would control copyright in the photos. As copyright owner you could make them available under a Creative Commons license and reproduce them at Wikipedia. BTW, a CC license doesn't place the work in the public domain (as we explain here). However, Creative Commons can help you make your work public domain if that is your intention.
Saturday, May 13, 2017
|19th Century imagery used by abolitionist organizations in|
their efforts to turn northern Americans against slavery.
There are sometimes moral and ethical issues when you start digging up the roots of the family tree. (Do you really want the world to know that your mother's grandfather was charged with indecent exposure?) As for legal concerns, here are four questions to consider:
- Are you violating the right to privacy? Invasion of privacy can occur when private or embarrassing facts are disclosed about a living individual without relation to a legitimate public concern. This is referred to as "Disclosure of Private Facts." Dead people do not have a right to privacy.
- Have you fact checked any statements that could cause damage to a person's reputation? False statements can give rise to libel/defamation claims. For example, you falsely claim that a relative was born out of wedlock. As with privacy, the dead cannot be defamed.
- Are you violating copyright law? Copyright doesn't protect facts or ideas so you'll have no problems publishing facts found in public records, culled from historical and church records, or provided by an interview subject. Copyright doesn't protect unpublished works whose authors died before 1947 or published works that were published before 1923. You can obtain more details on copyright expiration at the Cornell website. If you interview someone and want to use more than facts -- for example several paragraphs of text -- it's usually best to use an interview release. If you know who holds copyright on a copyrighted photo it's prudent to obtain a permission agreement. You do not need a photo release from the people pictured in the photos. Finally, if challenged, you have fair use as a possible defense.
- Do you have permission to reproduce DNA results? If the DNA test taker consents to publication, you are safe publishing DNA test results. Sites like ancestry.com have privacy policies that allow you to reproduce your test results.
Sunday, April 9, 2017
|Felice and Boudreaux Bryant, |
cowriters of Bye Bye Love, Wake Up
Little Susie, All I Have to Do Is Dream,
Rocky Top, and other great hits
It sounds as if you and the composer -- like Felice and Boudreaux (left) -- intended to combine words and music into "inseparable or interdependent parts." That makes you and the composer joint copyright owners of the song.
Rights of joint owners. With one exception (see below), joint copyright owners can separately grant permission (a license) for someone to use the song, provided that each writer shares the income with the others. If the writers have not agreed on the percentages, courts often start with the presumption that all songwriters contributed equally. Because you cannot locate the composer, you should put aside the composer's share of any income as a demonstration of your good faith.
First authorization of song. There's one question that's unresolved: Do all cowriters have to consent to the first release of the song? We think so because the first release makes the song available for anyone who pays a fee to record the song. Keep in mind that others may disagree because there is no explicit requirement in copyright law that all writers agree to first release. If you've used best efforts to locate the composer and you've documented your efforts, you may be better served disregarding our advice in this situation.
Friday, March 31, 2017
A film that is published before 1978 is subject to the Copyright Act of 1909. That copyright law had certain restrictions and formalities that are not included in the current act, three of which are relevant to your questions.
- Films published pre-1978 without copyright notice are probably in the public domain.
- Films published between 1923 and 1964, that were not renewed 28 years after publication are in the public domain.
- Just because a pre-1978 film falls into the public doesn't mean that all of the elements of the film -- for example, soundtracks or underlying story -- are also in the public domain.
Who can register a work? Only the author or the author's transferees, or someone with their authorization, can apply for registration. Film restoration, though it requires great skill and craft, does not demonstrate sufficient originality, by itself, to claim a derivative copyright in a public domain film. However, film restoration plus additions or revisions -- for example, a re-recorded soundtrack and commentary -- may be the subject of copyright. Claiming ownership in a purely public domain work is verboten.
Copyright Notice. Until March 1, 1989, copyright notice (with certain exceptions) was required on all copies of a pre-1978 work published with the authorization of the owner. These three requirements -- notice, publication and authorization -- were the subject of many lawsuits.
Publication. For example, a film was not considered "published" when it was displayed or "performed" in a movie theater. Publication of a film, according to attorney Stephen Fishman, occurred when "prints of the film were transferred to an independent film distributor that made several hundred copies and sent them to its branch offices (also called “exchanges”) around the world. The exchanges entered into film rental agreements with exhibitors who then showed the films to the public." The Ninth Circuit has held that films were published for copyright purposes when copies were placed in these exchanges for distribution to theater operators, a position supported by the Copyright Office and the film studios.
Notice format. There were various rules regarding placement in the film and the notice format. But keep in mind that judges, faced with the invalidation of copyright because of a notice error are often forgiving. Courts will look to determine whether any notice is present that advises the public that there is a proprietor, and that the notice doesn't affirmatively mislead. On that basis, it's not prudent to assume that the failure to name the owner in the notice invalidates the copyright.
Friday, March 17, 2017
The term "copyright protection" is misleading as it implies that a defensive shield has been installed around your work. The reality is that a copyright -- which you get automatically -- gives you offensive rights (what author David Pressman calls a "hunting license"). Even without a registration you can pursue infringers, send a cease and desist letter, or enter into a settlement. You can also sell your copyright, license it, or bequeath it without a registration. But if you want to file a lawsuit in federal court, you must register, a process that costs under $60 if you're not in a hurry (or over $800 if you are). As a preventative formality, however, and because it provides benefits, many copyright owners register their work when it is first published.
Copyright v. patent. One appealing feature of copyrights is that with a copyright you can sue people for infringements that occur before registration. Because patent rights are not automatic (you get rights when your application is approved), you can only sue for patent infringements that occur after registration. (Note, there is a procedure for chasing patent infringements that occur 18 months after a patent application is filed.)
Wednesday, March 8, 2017
Many professional photo researchers (like Laura Wyss) belong to the American Society of Picture Professionals and you should be able to obtain a referral from that organization. Alternatively, you may have better luck obtaining international rights by using a photo researcher affiliated with the British-based Picture Research Association.
Wednesday, March 1, 2017
Unless your agreement provides an expiration date ("This agreement terminates on March 2, 2017"), the permission is still valid for the purposes stated. Contract provisions may also provide a right to terminate at will or under certain circumstances (often, a set amount of notice is required)
Other reasons your agreement may have terminated. Our contracts book explains other reasons that agreements terminate:
- Both parties have fully performed. Many contracts, particularly oral agreements, end when everybody’s done what they’re supposed to do. For example, you paid for the vintage pink mohair sweater at Etsy and the seller has delivered it.
- One party has committed a material breach. If one party breaches, the other party can say, “That’s it, we’re done,” and terminate.
- Court-ordered termination. Courts have the right to terminate an agreement if there was a breach, the contract was void, or the contract violates the law or public policy.
- Mutual termination. The parties to a contract are always free to mutually terminate a contract.
If none of these apply to you, your agreement is still enforceable. For more on drafting permissions, check out Getting Permission.
Thursday, February 23, 2017
We believe that the owner of copyright of Robert Capa's D-Day photographs is either (1) the estate of Cornell Capa, (see copyright notice under photo) or more likely, (2) the International Center for Photography (see copyright notices under photos). The ICP was founded by Cornell Capa, Robert's younger brother. In any case, licensing rights are controlled by Magnum Photos. (The Library of Congress appears to validate this conclusion.) Magnum's relationship with Capa runs deeper than publication of a photo compilation. Robert Capa founded Magnum Photos in 1947 with Henri Cartier-Bresson, David Seymour, George Rodger and William Vandivert. In any case, it's amazing that Capa's eleven D-Day photos exist at all considering that a flustered Life Magazine photo lab employee destroyed 95 of the 106 photos Capa shot during the invasion.
Wednesday, February 15, 2017
Tim Conway is Kellyanne Conway's father
(Click picture for proof)
Seeing as how our mailbag is a little thin this week, the Dear Rich staff is going to wade into this potentially partisan, largely theoretical question.
What are facts and why aren't they protected? According to Merriam Webster, a fact is "something that truly exists or happens: something that has actual existence." According to the U.S. Supreme Court, facts are neither original nor created -- they are discovered or unearthed ("[T]he first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence ... [O]ne who discovers a fact is not its "maker" or "originator." Therefore, copyright law -- which only protects original creations -- will not protect facts. (The Supreme Court viewed facts in their traditional legal context, as statements of objective truth, a view that some legal scholars considered simplistic and flawed.)
What are alternative facts? The term, "alternative facts" was popularized by Kellyanne Conway, counselor to the president, in her defense of false statements regarding the size of inauguration crowds. Alternative facts have come to be known as demonstrable falsehoods (or lies) and they are considered a threat to unbiased knowledge. Some of Conway's defenders have categorized alternative facts as “truthful hyperbole” and others claim the term has a legal meaning, likening it to alternative pleadings. (Partisan proponents quickly constructed a competing Wikipedia entry, prefaced with so many disclaimers and warnings that the definition, itself, seems to have become an alternative fact.)
Copyright protects falsehoods. Harry Potter and Seinfeld have something in common -- they both exist in a universe built upon "created facts." For example, the "fact" that in a Seinfeld episode, Kramer is hypnotized by baggage carousels "is in reality [a] fictitious expression created by Seinfeld's authors." Similarly, "each [Harry Potter] book chronicles and expands on the fictional facts that unfold in the series," and when a number of these fictional facts are borrowed, a court will deem it infringement. Like Vandelay Industries and the Bond of Blood charm, alternative facts (i.e. massive voter fraud in New Hampshire) are created facts, not discovered, and therefore demonstrate the minimum of originality.
The Dillinger case. A 1990 case held that the intent of the creator determines whether a fact is protected. An author named Nash had written a book documenting his theory that John Dillinger survived his 1934 shootout and lived until 1979. A TV show had used the theory as part of its plot. The court ruled that because Nash treated his book as factual, not fiction, his facts were unprotected. ("Nash does not portray [his book] as fiction, however, which makes all the difference.") Following this ruling, alternative facts would not be copyrightable.
Not so fast, Kellyanne ... Regardless of the arguments, above, there remain a few obstacle to copyright protection. First, there is the matter of attribution -- who is the author for copyright purposes? If the author is a federal employee, the work falls in the public domain. At the same time, the brevity of "alternative facts" creates a roadblock for copyright protection. Finally, there is the unlikelihood of enforcement -- that is, it is doubtful that reproduction of falsehoods will lead to copyright lawsuits unless, perhaps, a compilation of alternative facts was published.
Monday, February 6, 2017
Ideally every copyright license should include: a "grant of rights" that explains what you can do with the copyrighted work; a "term" which provides the period of time you can exercise the rights; and a "territory" which describes where you can exercise those rights. Often these three provisions are merged into one or two clauses, as seems to be the case with some of your agreements. (When we say"copyright license" we're talking about any temporary grant of copyright -- for example a permission agreement.)
Publication includes distribution. Publication is assumed to include distribution unless the agreement provides otherwise. This jibes with trade practice and the copyright law definition of publication -- "the distribution of copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending."
Territory clauses. Territory is assumed to be a geographic area -- for example, "the United States" or "North America." In publishing contracts, territory is often tied with language restrictions-- for example you may be granted publication rights of an article and the territory is defined as "English and French language rights for North America." In that case, you could distribute in Mexico, but not a Spanish language version. It's also possible that your books may end up outside the territory -- for example, Amazon.com fulfills an order, or a third-party buys a carton of books and takes them out of the territory for resale. That won't violate the agreement but what you can't do is engage a distributor who carries your book outside the territory, or sublicense to a publisher outside the territory.
Interpreting contract language. What happens if there is a dispute about interpreting "distribution," "territory," and "publication"? Absent definitions within the agreement, a court when examining contract language, will usually seek out the "plain meaning" of the words--that is, how a reasonable person in the publishing industry would interpret them.
Wednesday, February 1, 2017
The question you're wrestling with -- whether the purchase of a copyrighted item permits you to use the item as part of another product -- has come up several times in court cases. For example, a company purchased notecards and affixed them to tiles and a court ruled that was permissible under the first sale doctrine (a legal principle that guarantees you the right "to sell or otherwise dispose" of copyrighted items). Another court took the same position when a fabric manufacturer complained about the use of its copyrighted fabric in children's bedding.
On the other hand ... A federal court in California ruled that ripping out images from a book by Patrick Nagel and reselling them on tiles was not permitted. Another California court ruled that pulling art images from a book and framing them was not permitted. And a New York court prohibited a company from re-selling posters after making them appear like oil paintings on canvas. These cases are based on the idea that the resulting products (framed artwork and decorative tiles) are derivative works (new works that transform, adapt, or recast existing works).
Five things to consider:
- Did you enter into a license agreement when you downloaded the sheet music? Check to see whether you clicked-to-agree to limited uses of the sheet music. A licensing agreement may trump copyright law.
- Don't make copies of sheet music. Only affix purchased copies. If the first sale doctrine shields you, it will offer protection only for authorized copies.
- The likelihood you'll get hassled is proportional to your company's profile. The bigger your company and the more expansive its marketing, the more likely a music publisher may object. The larger your sales, the more incentive there is for a lawsuit. Companies usually go after those with deep pockets especially when the caselaw is as confusing as it is for the first sale doctrine.
- If hassled by a cease and desist letter, consult an attorney. You may want to stand your ground, at least at the letter-writing stage. (Keep in mind that scholars and others have disagreed with the reasoning of the California courts.)
- Don't ask the sheet music company for permission to affix the music to keepsakes. Digital sheet music sellers are distributors with a narrow range of rights. They don't have the power to grant you anything other sheet music. Only the song copyright owner (a music publisher) can grant you the rights.
Sunday, January 22, 2017
Unless the licensing agreement requires that you arbitrate the dispute, you are free to sue the nonprofit. However, be prepared for the fact that no matter how many copies are sold, your recovery may be limited to $250 (and possibly interest). That's because we think you're dealing with a breach of contract situation in which the remedy is usually compensatory damages. That means the court attempts to put you in the financial position you would have been in if the contract had been performed. Another possibility is to claim that the failure to pay is a material breach of the agreement that entitles you to cancel the agreement. You would write to the nonprofit and tell them the agreement is canceled and any further use of the photo after the termination will be considered copyright infringement. Because the compensatory damages are relatively small, you should try to avoid court and seek payment via correspondence. If that fails, you can handle the matter yourself in small claims court, (assuming the nonprofit is doing business in the state in which you are suing).
Avoiding this problem in the future. To best protect your rights in the future, try to include the following language in any photo licenses: “Company shall have no right to make any use of the work until Licensor (photographer) has been paid the fee established in this Agreement. Any unauthorized use constitutes a willful infringement.” If that clause is in effect in your agreement and the other party fails to pay, you can sue for copyright infringement.
Monday, January 16, 2017
You can definitely use the Cisco Kid in your work. O Henry's story (in which Cisco first appeared as a ruthless American outlaw), was published in the U.S. prior to 1923 placing it within the public domain. There are also no character trademark registrations for the Cisco Kid, though the name has been the subject of registrations for candy, fishing lures, and tequila. If you plan to include the Kid's sidekick, Pancho, in your script, beware that his copyright status is not as clear. Pancho did not appear in the O Henry story and was reportedly inspired by Don Quixote's sidekick, Pancho Sanza. His first appearance was in the 1945 film, The Cisco Kid Returns (not to be confused with the 1939 film, Return of the Cisco Kid) and assuming that film was timely renewed, the assignees of Monogram Pictures (Allied Artists International) may own copyright on that character. We say "may" because a number of Monogram films from 1936 to 1946 fell into the public domain. (In other words further copyright research is required.) Our analysis of Pancho is based on the case involving Sherlock Holmes in which it was determined that Sherlock was in the public domain but that the assignees of Arthur Conan Doyle's estate could claim copyright on the characters (for example, Watson's second wife) in stories published after 1922.