Friday, September 12, 2014

Copyright in wedding ring design?

My wife and I decided to have custom wedding ring made at a national level chain store jeweler three years ago. This past weekend we stopped at the jeweler and saw a custom ring book where my wife saw her ring in that book and she was not happy. What can I do to have the jeweler stop promoting the ring in their custom book? I read about copyright would this be a good idea? Maybe ... but first you need to consider some possible copyright concerns.
Did you sign anything? Did you or your wife sign any paperwork at the store? We imagine you probably haven't kept your invoice ... but it's possible that you may have unknowingly agreed to permit the use of your customized design in the custom ring book. The small print on your invoice would provide the details.
Is the design sufficiently original? Chances are that your design meets the minimum standards of originality ... but just so you know, you can't claim copyright if the design is not original to you or if the design consists primarily of standard elements -- geometric shapes or forms.
Did the store co-design the ring? If the store employees assisted in the design --  that is, they provided a major contribution -- then the ring may be a work of joint authorship and the co-authors of the ring would have certain rights and obligations.
Assuming you have copyright ... If you're serious about stopping the store from featuring your design, you're probably going to need a certificate of registration and you may also need an attorney's assistance. A certificate of registration is not essential for claiming copyright but it is necessary for filing a lawsuit and most corporations won't take the request seriously unless a certificate of registration is waved in front of them. This Copyright Office tutorial explains more about registration. You can expedite the registration for a hefty fee; otherwise, it will take six to 12 weeks for a registration filed electronically. As for the lawyer's help, we wish it weren't necessary but unless the store is benevolent, they probably won't seriously consider a claim of copyright infringement unless you're represented by an attorney. By the way, some disgruntled copyright owners choose the public relations route rather than the infringement method. That is, they seek to marshall online publicity for their claims thereby shaming the business into doing the right thing.

Thursday, September 11, 2014


Dear, Rich: I’m trying to properly attribute public domain images in a course pack I’m writing and I’m confused about public domain tags. If a work has entered the public domain without being directly dedicated to the public domain by the owner, there are nearly 100 tags listed under US copyright to indicate exactly why it is in the public domain (i.e. the copyright expired). Some images I’ve come across ask you to use these tags, while others don’t; meanwhile in Canada, there are only four different tags. My question is, do I need to use these tags to explain why it’s in the public domain when I attribute these images? Also, if I’m writing a course pack in Canada, but planning to offer it to American students, do I follow the tag of where the image was created, where it is being re-published, or where it is being “consumed” by students? There is no legal requirement that you include public domain tags. So why do they exist? Read on!
Label this! Copyright law lacks a labeling system -- some system that clearly and accurately identifies the copyright status (or lack of copyright status) for any work.  For example, the absence of a © symbol does not establish a work as public domain any more than the presence of the © symbol proves that a work is protected.
The problem with public domain works. Unless a court has ruled that work is in the PD, the potential user must make a private determination or rely on the kindness of academics and legal professionals. For example, if a work was published before 1923 in the U.S., it's in the PD. But questions may linger. For example, if it was a painting, was it "published" for copyright purposes. Other categories of public domain works create additional questions. For example, copyright does not protect typefaces, so it is assumed -- trademark law aside -- that logos consisting solely of a typeface are public domain. But that general rule may not apply to all typeface logos, and as a result a dispute may arise as to PD status. These PD disputes are more likely when there's a lot of money at stake. For these reasons, a system of tagging was developed by so that users of works would understand their public domain provenance and make decisions accordingly. (Stephen Fishman's book and treatise can be very helpful when sorting out these issues.)
What about you? You definitely don't need to reproduce these tags. If a work is PD, attribution of any sort is not required. However, for your own purposes, you may want to keep track of the tags in case a dispute should ever arise as to one of the works.
PS. We can't speak to Canadian copyright law but we have a feeling, the same rules apply.

Wednesday, September 10, 2014

British Site Stole My Fan Site Trademark

Dear Rich: I am the owner of a domain name which I registered in 2001. My wife and I used the name and website to create a large online community and forum consisting of fans of a well known classic rock band. The community at its height had over 8000 members, and was well known among online fans of this band. In early-mid 2011, after my wife and I endured separate serious illnesses, we closed the website location but retained the domain name and moved the community forum to Facebook under a group name identical to the website name. I still currently maintain ownership of the domain name, as well as being the senior admin of the Facebook group. Today I learned a large media group that operates out of the UK, and runs a very well known website, had chosen to "re-brand" their website and trademark name for the month of June 2014 using a name identical to the name of my website and community forum. This appears to have been done as a means of increasing capital by associating themselves with that classic rock band. I believe this website broadcasts, advertises, and sells merchandise via and to U.S. residents. To my knowledge this name was not in use prior to my registering the domain name with Network Solutions in 2001 and creating the website. Even if you have a strong case (and we're not sure you do), we think you will have a difficult time squeezing any payments out of the British media site.  You face practical and logistical problems.
Jurisdiction. The first hurdle is jurisdiction, the right of an American court to make a ruling that binds the British company. You would have to show that the media company either maintains an American headquarters or has a "continuous and systematic" presence in the state in which the case will be heard. This preliminary skirmish could be enough to exhaust your bankroll. Obviously, the British media company, because of its size, would have an advantage in this and other legal battles.
Trademark claims. Assuming you can bring the British company into an American court, you would have to prove that consumers of your site are likely to be confused by the British re-branding. That is, your fans believed the British site was associated with your site. If fans were misled and confused by the two sites than part of your damages would be the profits from the U.S. sales of merchandise.
The defense rests. Keep in mind that the British media site will vigorously defend itself. They may argue that you have no federal trademark registration for the domain name and can't claim nationwide priority. Although unregistered marks provide rights, they can be harder to enforce than a federally registered mark. The British media company may also argue that you're not entitled to trademark rights because your domain and forum names incorporate the band's name, and therefore your domain name is misleading and possibly unenforceable. In other words, they may claim that fans affiliate with your site because they believe it is endorsed by or associated with the band. The British company may also argue that their damages should be mitigated by the fact that they only used the name for a month.
That said dept. If you're looking to bolster your ability to go after others, the best strategy would be to seek federal registration. Beware, that also has risks -- the band may object to your application.

Tuesday, September 9, 2014

Wants to Quote Vintage Clothing Ads in Song

Dear Rich: I have a song, part of a musical project, within which I'm quoting vintage clothing ads from the '60's. HIS, LEVIS, Dexter Shoes, Danskin, etc. Am I correct in assuming I can't do this or do you think claiming ' Fair Use' might allow it? It's possible that a company may complain but we don't imagine that quoting 50-year old clothing ads will cause much problem. First, there's the issue of whether copyright still protects many of these ads. Ads published before 1964 would have to have been renewed (and only a small percentage were). Even if renewal were not required, there might be some issue as to who owns copyright (and can prove it). Finally, there's the issue of whether the owner will hear your song and choose to do anything about it -- that is, is it worth it financially and from a public relations POV to pursue you. So, we think the coast is relatively clear. Who knows ... your potential pursuers may even coopt your use?

Monday, September 8, 2014

Can I Quote Carlos Castaneda?

Dear Rich: After many years of compiling Carlos Casteneda's work and systematically organizing it, I have the basic notes to begin writing a study guide that will use a good deal of quotation. Casteneda is said to be the father of the new age movement and I believe the attorneys for the Casteneda estate are most likely quite protective of the work. I want to avoid encroaching in any way on the copyrights. Here are some considerations. Most of the information I am publishing has been published before between 30 - 40 years ago. I believe my research to be "transformative" as I have compiled the works in an academic and systematic way never done before. My compilation and thus retelling is entirely new and my own. I wish to make no money on this endeavor and would be happy to donate any proceeds (if there are any). Casteneda himself has stated that he did not make up any of the information in his books. Therefore, his works can be argued to be more factual than creative. His first book was his undergraduate thesis at UCLA, and his third book was his graduate thesis. This is truly an academic endeavor to be used by anthropologists and anthropology students in an academic setting.  In the unabridged version of your letter, you mentioned several fair use cases: Love v. KwitnyTwin Peaks v. Publications Int’l, Ltd., Warner Bros. Entertainment, Inc. v. RDR Books, (and check out Castle Rock Entertainment, Inc. v. Carol Publ. Group), all of which are summarized at our Stanford fair use post. (You also cite Cambridge University Press v. Georgia State University, which is currently on appeal at the 11th Circuit.) One common thread through many of these lawsuits is whether the infringing work used too much of the copyrighted work. When too much is taken the use is no longer "fair" because judges believe that the consumer is buying the infringing work for what it takes, not what it adds.
How much is too much? We don't know how much you've taken, but that will likely be the key issue (not whether you are a nonprofit, or whether Don Juan is fact or fiction). When measuring "how much is too much?" judges sometimes look to the total number of words taken, or sometimes they look to the percentage taken (the court in Cambridge University Press proposed an educational fair use standard of 10% from a 10 chapter book). In other cases, quality of the quotes, not quantity is what matters (that is, did you take the "key" quotes that comprise the heart of Castaneda's works?). At the same time, other factors, especially your educational purpose weighs in your favor. Having a transformative purpose helps but keep in mind the defendant in Warner Bros. Entertainment, Inc. v. RDR Books had a transformative purpose but still lost his battle over using Harry Potter.
Is it fair use? We can't tell you. A copyright attorney, after viewing your work, may provide you with a fair use opinion but unfortunately the only person who can tell you for sure is a judge ruling in a lawsuit ... always an expensive proposition. Of course, this will only be an issue if somebody is enforcing Castaneda's rights, that party sees your work and can afford to pursue you.

Friday, September 5, 2014

My Site Turned Japanese!

Dear Rich: For at least 7 years I had a web site that incorporated my name. I am a poet, playwright, essayist and teacher of creative writing. The site functioned as PR for me--I could refer potential employers to it, or clients who might want to hire me to be their editrix or writing coach. It was created for me by a good friend who is not a professional in this field, and hosted by GoDaddy. As time went on my site became obsolete. It was difficult to update because my friend had used a clunky non-professional platform, and it was not phone-friendly. I decided to upgrade. I had someone else create a new site for me with the intention of a smooth transition, continuing to use the domain name. However my friend, when he heard that I wanted to change, abruptly cancelled the old site before the transition could be completed. I was then told I could not get my domain name back for something like sixty days. In the interim, unscrupulous phishers swooped down and got my domain, I'm assuming with the intention of holding it for ransom. I put up my new site under my name but using .net instead of .com. When I Googled myself though, I saw that the site is up and running and when I clicked on it I saw it was a garbage site: it features a shapely half-naked lady and a bunch of Asian text (I think it's Japanese; can't tell). It may be for massage or something. I feel fairly certain that there aren't any Japanese massage therapists/hookers who have my name. This is literally the first thing that comes up when one Googles my name. After that there's pages and pages of my published work and all the things I worked so hard to create and publicize. I can live with using the name .net instead of .com (although I would prefer .com), but it bugs me to have this garbage site up. I feel like it's a distraction and somehow affects my credibility. Do I have any recourse? I don't even know the identities of the people who did it. You haven't been the victim of a phishing scam -- that's an attempt to get sensitive information by pretending to be a legitimate website. You may be the victim of cybersquatters and your rights and recourse were detailed in this post (and also in this post, too). By the way, your former domain is not being used for shady sexual practices. According to the Google translation from Japanese (see above), it is for an acne treatment.

Thursday, September 4, 2014

Upset Over Selling Counterfeits: What to Do?

Dear Rich: I have been so depressed for so many days. The issue is basically, I have sold some counterfeit goods saying they were real. I sold counterfeit goods 8 times via Paypal. Furthermore I also sold a lot of my products face to face. Ever since I found out that my goods were fake, and that my supplier who said they were real had lied to me, I stopped. The last time I sold something was 2 months ago. I have never received a complaint or have been contacted by any agencies. I am so scared. Will Trading Standards come after me? I have completely stopped what i am doing. If Trading Standards comes after me, what will they do to me and how should I retaliate? We're guessing that you're located in the U.K. where the Trading Standards Institute oversees enforcement of anti-piracy laws. Because we're only familiar with U.S. law, we'll answer from that perspective, hoping that the universality of your dilemma crosses national borders.
Have you committed a crime? Generally, in criminal law, the perpetrator must have an intent to commit wrongdoing. In cases of fraud, for example, that usually means that the perpetrator intends to cause actual harm or injury. In counterfeiting cases in the U.S., this intent can be inferred from "willful blindess" -- when the perpetrator suspects wrongdoing but deliberately fails to investigate. If you honestly had no idea you were dealing in counterfeit goods and had made some reasonable attempt to authenticate the goods, then you would lack intent under U.S. law and you would not be guilty of trading in counterfeit goods.
Are you personally liable to the victims? Yes, even if fraud or counterfeiting can't be proven, your customers would be entitled to full refunds because they did not receive what they contracted for ... authentic goods.
What do you do? Assuming you're not going to report your sources to the authorities, you basically have two choices. You can: (1) notify your customers and offer compensation; or (2) do nothing and wait to see if anyone notices that the goods are counterfeit (and then deal with the issue). Complicating your ethical dilemma is your relationship with your customers -- you may feel especially pained to have defrauded friends or relatives. We're also mindful of your mental state. Depression is a powerful oppressor. Make the ethical decision that works for you and then close the door on the matter.
P.S. Dept. You might be suprised to learn that some people knowingly buy counterfeit products; in fact they seek them out.

Wednesday, September 3, 2014

Can I Reproduce Someone's Letter on YouTube?

Dear Rich: Is it even possible for someone to copyright a written letter (written in 1998) of an UNKNOWN author? If not, and that written letter is incorporated into a Powerpoint that IS copyrighted, can that slide containing the non-copyrighted letter be used in a YouTube video where the letter is analyzed and discussed? This is a somewhat serious matter. Sorry for the complexity of the question. It's not as complex as you might think. As we stated before, only an author (or in some cases, an author's employer) can initially claim copyright to a letter. If the unknown letter writer someday steps forward, he or she can stop reproduction in the PowerPoint and YouTube video. The PowerPoint author can't stop the YouTube user from reproducing the text of the letter -- only the letter writer can do that.

Tuesday, September 2, 2014

Posting a Chapter From a Book: Fair Use?

Dear Rich: We are planning a discussion of a book chapter written by a professor who will also be attending our meetup. I own a copy of the book, and would like to scan and send the chapter so everyone can read it in advance and be prepared. However, I'm not sure if that is fair use. Would posting the chapter, with a link to Amazon to buy the whole book, on the meetup webpage be a problem? (We have about 400 names on our list.) Would sending the material to only those who sign up on the meetup page (usually only 10-20 people) avoid the issue? Can the author scan and send the material himself (or give permission) without copyright violation?  It's unlikely that posting a complete chapter of a book online would constitute fair use. Check out the fair use cases permitting use of text and you will see that using more than a few hundred words is usually difficult to justify as a fair use.
But the professor is on your side. Because the professor/author favors your use, you probably won't have problems. As we discussed in a recent post, the author may have the right to permit copying. But even if the author doesn't possess that right, the publisher might not want to get into a dustup, particularly if you limit the reproduction to the 10-20 people who will actually attend the meeting ... er, meetup.

Friday, August 29, 2014

Can I Record Books For My Students?

Dear Rich: I am a fifth grade teacher with five reading classes per day. Each of these classes contains a wide variety of reading abilities. When I assign a class novel, I distribute a book to each child (our media center has enough), but I also want to record myself reading the novel so that students can listen and follow along. For most of our novels I can find the audio version online, purchase it, and there aren't any issues (due to the fact that the book was already purchased and the child listening as he reads doesn't take away from potential profit from the publisher). Also, we can legally use recorded material for students with disabilities anyway. However, the current class novel has no published audiobook. Research shows that students who read the text silently as it's read aloud to them improve their ability to understand new words and build fluency. However, I don't have the energy or vocal strength to read two or three chapters five times per day. I want to simply record myself reading at home, place my own personally recorded music below it for effect (I hold the copyright on the instrumental music), and then allow my students to listen to the recording while reading along. Another advantage is that students can hear the book read to them while reading along, but by using headphones they won't disturb others who are working in groups or working with me (which frees up my time to help students with various skills). Since there isn't any potential loss of profit for the publisher, am I within my legal rights to record the book to CD (for classroom use only)? You make a persuasive argument and if it were up to the Dear Rich Staff, we'd stamp APPROVED on your project. But copyright law is a little less forgiving and a little more complicated than you might think.
Audio books for disabled students. You state that you can "legally use recorded material for students with disabilities." In 1996, a copyright exemption was created that permitted recording of copyrighted books without permission of the copyright owner for use by visually and physically handicapped people. However these recordings could only be made by "authorized entities" and must be stored in a particular format -- currently a digital format accessible to users with special computer programs or equipment. For the most part, the primary authorized entity is the National Library Service for the Blind and Physically Handicapped (NLS) which creates and distributes thousands of audio and braille books (including books like Catcher in the Rye -- original cover shown above -- for which the authors have refused to permit audio recordings). Based on the language of the exemption, we don't think your intended recordings would qualify under this exemption.
Listening while reading. We're not clear what you're doing when you purchase an audiobook and allow the student to listen while reading the print copies. If you're playing a compact disc recording or a single digital recording, that's fine. But if you're making copies and distributing them to students, that would be a violation of copyright law.
Your recordings. We're also unsure about your position that "there isn't any potential loss of profit for the publisher." We think that publishers would feel differently. For example, many publishers sell print and audiobook combinations through Amazon's Whisper Sync program, and although they may discount one version, they rarely give the audiobooks (or print versions) for free. In other words, just because the publisher makes money off print, doesn't mean it gives up making money off the audiobook to the same customer.
That said, Dept. Although we think you are violating copyright law with your homemade audiobooks, we wonder about the likelihood of getting hassled. That is, will a publisher find out about your use and care enough to hassle you? We imagine that if you maintain a low profile and don't distribute your work beyond the classroom, the audio books will end up being your little secret.

Wednesday, August 27, 2014

Who Owns Volunteer's Website Content?

Dear Rich: I wrote for a website for many years. It was on a volunteer basis - I wasn't paid. I am now starting up my own website. I would like to repost many of my stories on my own site. Can I do that? Do I own the copyright for the material I wrote for the other site? Do I have the right to request that the other site take down my material? Assuming (1) you never executed any agreements with the website, (2) you weren't an employee of the other site, and (3) you didn't co-write any of the articles with someone else, then you would own the copyright in the material you created. That gives you the right to reproduce your stories wherever you wanted.
The other site. We don't know what your arrangement was with the other site but you may have created an implied license based on your behavior. That is, the fact that you posted at the other site, implies you granted them a right to display the material. If there is no implied license (and no evidence granting rights to the other side), you can ask to have your copyrighted materials removed.

Tuesday, August 26, 2014

Who Pays for Performance of Cover Songs?

Dear Rich: I’d like to start a top-40 band that will play mostly cover songs to make money while we work on our own material. I know that when music is performed, the owners and publishers of the songs played are entitled to be compensated for each performance of their song. When our band starts performing at colleges, weddings, and social clubs, who is responsible for obtaining performance rights and paying the royalties on the cover songs we plan to play? The venue, not the band, is responsible for paying for the public performance rights. Most venues have what are known as "blanket licenses" that permit performances of a wide range of licensed music for a fixed annual fee.

Monday, August 25, 2014

Proposed Fair Use Guidelines

Dear Rich: We recently created a series of free-to-view educational webinars with an educational institute, which we would like to post online in a secured environment. The educator has included numerous images of artwork that is under copyright. Under the proposed fair use guidelines, educators, scholars, and students may use or display digital images in connection with lectures or presentations in their fields, including uses at noncommercial professional development seminars, workshops, and conferences. Are we able to use this material without getting copyright permissions for each individual artwork? As we explained at our Stanford postings, the proposed guidelines, because they were never approved,  provide a ballpark idea of what may be permissible. They can help educators and judges chart a fair use course, and their existence might deter a copyright owner from filing a lawsuit, but most importantly, they represent the collective understanding of a group of scholars as to what constitutes fair use under certain circumstances. So, even though it's gray world when it comes to these two-decade-old proposed guidelines, there is reasonable support for your position. If we were a betting blog, we'd bet you won't get hassled for your use. By the way, there are many types of fair use guidelines and you can access them at Columbia's website.

Thursday, August 21, 2014

Can't Put on Show Without Finding EIN!

Dear Rich: Our local community college wants to put on a musical. The rights are controlled by a New York based company that refuses to furnish a Tax I.D. Our institution is prohibited from paying without that Tax ID. This question takes us a little out of our bailiwick, but if it means we can help put on a musical, well, what choice do we have? You might want to start by getting the proper corporate name of the business by searcing the New York Secretary of State's website. We don't think the company you mentioned is publicly traded, but if it is, you can search the SEC's EDGAR database for filings. (The Employer Identification Number (EIN) is usually on the first page of major SEC filings.) If it's not publicly traded, you may have to use a fee-based EIN-searching database like or, both of which often provide a few free searches before making you sign up. (Westlaw and LEXIS also provide EIN searching). We're also informed, though we haven't verified, that you can learn a company's EIN by calling the IRS's Business and Specialty Tax Line (800-829-4933).

Wednesday, August 20, 2014

Can I Sell Dolls Made From Pattern

Dear Rich: I recently bought a crochet book about making dolls. I was just wondering, if I make the dolls from the book and sell it, is that illegal? I see it as having paid for the rights to use the book but I don't know if it really works that way. You're not infringing copyright if you make and sell dolls based on the patterns from the book. Or put another way, a pattern maker may obtain copyright over the pattern but not the article manufactured from the pattern. If that weren't the case, we might not have the Paint By Number Museum.
P.S. Paying for the book doesn't give you any rights except the right to re-sell (or destroy) the book.

Tuesday, August 19, 2014

Life After Reversion: Who Gives Permission?

Dear Rich: I want to reuse a table or image from the second edition of a book. Copyright for the fourth edition of that same book has been transferred back to the author by the publisher. Would I go to the publisher or the author for the permission? Are there cases where a publisher retains rights on some editions and not others? We think the author is probably the one to give permission (assuming the author still retains copyright). However, there are a couple of caveats.
Authors and copyright. Sometimes authors retain (or obtain) copyright ownership of a work but exclusively grant all rights to their publisher. In that case, the book may state "© Author" but permission would be granted by the publisher. (That's the way publising contracts often established rights pre-2000.) So, it's possible that either the publisher transferred copyright back to the author but retained exclusive rights over the text, or the author granted exclusive rights to a new publisher and retained copyright. Check to see who the publisher is for the fourth edition. If the work is not self-published, you may need to ask the publisher.
Authors and reversion. More likely, copyright returned to the author under a principle known as reversion. The author's contract  may state that if the book is out of print, or sales are below a certain amount, rights revert to the author. In that case, the ex-publisher gives up all rights to previous editions (except perhaps the right to sell out remaining copies). Assuming the author created the table and image (and claims them under copyright ), then the author would have authority to grant permission. If you're using a permission agreement (and especially if you're paying for permission) ask the author to warranty ownership of rights. A warranty is a contract promise you can include in your permission agreement --- something to the effect of "the Author has the authority to grant the rights granted in this agreement."

Monday, August 18, 2014

Celebrity Height Index

Dear Rich: I've created a list in ascending height of interesting athletes, celebrities, and historical figures. Here are some examples of figures on the list: George Washington, Peyton Manning, Marilyn Monroe, Albert Einstein, etc. I've also included some well known literary characters such as Dobby from Harry Potter and Oompa Loompa from Willy Wonka and the Chocolate Factory. All told, my list consists of 42 different figures ranging in height from 3' to 6 1/2' I'm printing the list on a wall decal and plan to sell it in toy stores for children to measure their height against. Do I need permission from each height entrant before I can include them on the list? Can I copyright the list so others can't recreate it? You don't need permission from celebrities to list their names and heights. Permission is not needed for "informational" uses -- for example, posting sports figures and their stats at a website. You would need permission for photos that are not in the public domain.
Can you stop others from copying your list? If it's just a list of names and heights, you probably can't stop others from copying. Facts such as height measurements are not protected under copyright ad compilations of facts may be protected if the choice and collection demonstrates substantial creativity. We can't say for sure whether your chart qualifies, but the Supreme Court has ruled that alphabetic listings don't merit protection so we doubt whether numeric charts qualify. Still, compilation protection is complicated and we could be wrong so you may as well include a copyright notice and pursue registration. Of course, you can always protect original graphic imagery included with your chart.

Thursday, August 14, 2014

Politicians and Right of Publicity

Dear Rich: I have an idea for a product both practical and humorous (to some, at least). It does however use the likenesses of political figures. Do politicians have any claim to likeness rights? If so, what are they? The right of publicity -- the right to prevent others from using your name, image or personna for commercial purposes -- extends to all people (and yes, politicians are people). However, we don't think you will get hassled for two reasons. First, politicians have historically been hesitant to hassle merchandisers because of the possible political fallout. Second, politicians usually don't want to get entangled in the first-amendment arguments that arise when a merchandiser fights back. (For example, the maker of a Governor Arnold Schwarzenegger bobblehead argued that his product was a three-dimensional political cartoon.)
P.S. Even presidents sometimes wade into the merchandising free-for-all (yes, presidents have a right of publicity as well).

Wednesday, August 13, 2014

Wants to Use Movie Images on Tarot Cards

The Lovers as inspired by
The One I Love

Dear Rich: I am creating a Tarot card deck that is made from original paintings of famous people, or movie scenes all based on photos. I'm not sure how much is infringement or fair use, or do I need permission for each card, or can it fall as "Parody"? I intend to self publish this deck but would like to know the "risk " involved. We've taken a look at some of your samples and we think the risk meter is low for your Tarot deck. As you're probably aware, the underlying concepts of the various cards (or visualizations) are not proprietary and the most famous set of visualizations is in the public domain
Your imagery. Thanks for letting us see your deck. Most of the underlying (original) photos are copyright-protected and you would need permission unless you could claim fair use. You have a reasonable fair use defense based on your distinct style and transformative use (although the cards would probably not qualify as parody). More important than a fair use defense, we doubt whether the copyright owners (should they see your cards) would go after you because of the probability of a Pyrrhic victory in court. Our conclusion might be different if all of the cards were from one movie or TV show, or if the cards were licensed by a large manufacturer with a substantial ad budget. But you should be secure with a self-published set.
P.S. Dept. You inspired us to create a Tarot card dedicated to a movie we saw recently.

Tuesday, August 12, 2014

Should We Use "All Rights Reserved"?

Dear, Rich: I work for a company that is writing course content that will be sold to schools. We are in the process of seeking permission for all copyrighted items, and are providing attribution under the images from the public domain. In addition to providing the author’s name and license information (where applicable), is it safe to write “All rights reserved” for all images even if they are from the public domain? We don’t want students to think they can use the images for other purposes just because we have permission to use them in a specific way, but we don’t want to restrict rights on images that don’t require restriction. Is it ever problematic to write “All rights reserved”? Publishers and content providers have adopted the phrase "All rights reserved" as a conventional but toothless type of copyright notice. In other words, it can't hurt but it has no legal effect. (The use of “All rights reserved” was once required as a condition of copyright protection in certain South American countries but that's no longer the case.) We can understand your desire to limit duplication for licensed works (the ones for which you sought permission) but unless the person licensing the work requires a credit, warning, or other statement, you don't really need to provide the notices. As for placing the warning on public domain images, that seems like overkill and implies that you have rights in the public domain works when you really don't.