Monday, July 27, 2015

Will an LLC Shield Me From Copyright and Trademark Lawsuit?

Dear Rich: I'm attempting to get licensing from several professional and collegiate sports associations, I've received licensing for some but not all and plan to sell, or would like to sell, product before all are in place. The copyright issue falls somewhat in the gray area but nonetheless I feel it's prudent to have personal liability in place. My question is will an LLC give personal legal liability protection from a lawsuit brought by one of these copyright or trademark holders? Or do I need to structure it as a C or S corporation, and if so which is better with regard to this concern?
Forming an LLC or corporation (whether S or C) can limit your personal liability but it won't shield you from negligence or intentional wrongdoing. If a court determines that you intentionally infringed, it can reach through the corporation or LLC and make you personally liable. Alternatively, a lawyer suing your business may try to “pierce the corporate veil” because you set up the LLC or corporation for  fraudulent purposes. Perhaps you can get an attorney's opinion regarding your licensing activities before you start selling your products. In either case, it's probably not best to rely on that "invisible shield."

Wednesday, July 22, 2015

What Constitutes "Publication" Under Copyright Law?

Dear Rich: I wrote an “In Remembrance” booklet when a family member passed away. About 20 copies of the booklet were given to family, friends and neighbors. The booklet didn’t even have my name on it because everyone I gave it to knew I was the author. It was not used for a memorial service and there was no sale or public display involved. Recently, I found out that one of my friends had faxed the booklet to two people he knew, even though I asked him not to. Because of the response, I’ve decided to lengthen the booklet and turn it into a short story for sale – either to magazines or as a POD book. I’ve since added my name and a copyright notice.  (1) Has the booklet been published? (2) I know that the work is already copyrighted, but should I be worried since there is a period where someone could have stolen my work and submitted a registration for copyright? 
Your booklet would not be considered "published" under the Copyright Act if you distributed it to a limited group of people with restrictions -- for example, you asked people not to copy or distribute it (sometimes referred to as a “limited publication”). In any case, we're not sure it makes much difference. If you're concerned about your rights, you should register your current version (and in your application, indicate the current version is derived from the previous booklet). In the unlikely event someone has registered your booklet as their own, you can claim infringement and also seek to invalidate the registration. You can investigate registrations at the Copyright Office website (but keep in mind that registration takes approximately four to six months so bad actors may not show up right away).

Wednesday, July 15, 2015

Does TM Registration Provide Priority for All Items Within the Class?

Dear Rich: Does a trademark registration grant the right to use a trademark only for the specific goods  or for any/all goods within the category? For example, does a registration in Class 9 for an app give the trademark owner exclusive rights for everything in Class 9? No, registration in a  trademark class doesn't guarantee exclusive rights for all the goods and services in that class. For example, we counted over a dozen different companies who had registered the mark "EAGLE" in Class 9 for products ranging from fatigue monitoring devices to business software for inventory management. The principal issue for a trademark examiner is whether consumers are likely to be confused between the two similar marks. As the USPTO advises examiners, "[I]f the goods or services in question are not related or marketed in such a way that they would be encountered by the same persons in situations that would create the incorrect assumption that they originate from the same source, then, even if the marks are identical, confusion is not likely."

Monday, July 13, 2015

If You Write It, They Will Sue

Dear Rich: I wrote a novel that is set on the city street I used to live on. The year is 1968. It follows the interaction of a dozen kids, ranging in age. At some points the teasing between the kids gets very intense: “Your mom’s a tramp. Your dad left two years ago and you don’t even know where he is,” etc. The book is essentially a comedy and all of the characters, including the one drawn from me, are presented in a broad amusing fashion. The book will include the standard fiction disclaimer on the copyright page. I have set the novel in a different city, changed all the characters names, physical descriptions, parents jobs, etc. No one would ever read my book and guess that these people were the inspiration for the characters in the book. However, there are about forty of us from that original street who still keep in touch through Facebook and my problem is that if any of those forty people ever read the book they would immediately recognize the street, and they would know who wrote the book.  Although most of them would enjoy the book, I am afraid that over time a few people might feel that they are literally portrayed and might take offense. In short, if I self publish this book, am I setting myself up for a defamation or invasion of privacy lawsuit? 
Most courts tend to provide authors with some leeway when depicting characters derived from real life. Although this freedom is sometimes framed as a first amendment defense, it more likely results from the complaining person's failure to prove his or her case. For example, if an unhappy childhood friend sued you (known as the plaintiff in legal jargon) your friend would have two substantial hurdles. First, the plaintiff must prove that the character actually depicts the plaintiff (an analysis that needs to include the dissimilarities as well as the similarities). Second the court must be convinced that you made a damaging false statement or portrayed the plaintiff in a false light. Some courts have ruled against novelists (blame it on this 25 year old case), but if you haven't completed your novel, there are simple ways to avoid the sound of the judge's gavel.
BTW Dept. (1) The right of publicity -- another claim sometimes made in these situations -- is a hard  argument to win against a novelist. (2) You cannot defame or invade the privacy of someone who has passed on.

Wednesday, July 8, 2015

The British Library Has Lost its Charm

British Library London" by Jack1956
Dear Rich: I ordered some public domain works from the British Library (assume they are absolutely, without question public domain--written in 1800s), and the British Library people say: "Here are your copies, but you can't copy them further, because, by copying them we, British Library, acquired a new copyright on them." Is this right? Can they have a copyright on photocopies of public domain works?
We're not familiar with British copyright law but, under U.S. law, creating a "slavish reproduction" of a public domain work doesn't create a new copyright. So, under U.S. copyright law, you're free to copy the public domain work. There may be a contractual prohibition on you copying the materials if you signed a license agreement with the British Library. That's a murky area and courts have sometimes ruled that the license trumps copyright.We wrote more about these issues in a previous post. In any case, this seems like a tough one for the library to enforce.

Monday, July 6, 2015

Should I Quote Hemingway or Dickens in Stage Play?

Dear Rich: I'm working on a stage play. In my play, I wanted to have a character quote two separate passages from Hemingway's "A Farewell to Arms." The first is the first two paragraphs of the novel and the second is a short dialogue exchange (four lines). In both cases, the work is sourced. Would I be able to include these passages under fair use? If not, would older work, such as Dickens be usable?
"A Farewell to Arms," first published in 1929, is protected under copyright in the U.S. until 2034 (95 years after publication date). According to the Hemingway Society permission to use excerpts from the book would come from the publisher, Simon and Schuster.
What about fair use? The first two paragraphs of "A Farewell to Arms" contain less than 200 words. That level of borrowing (plus four lines of dialogue) combined with a transformative purpose (a fictional character's quoting of Hemingway) makes your stage play a good candidate for fair use. The trouble with our analysis is that only a court can substantiate a fair use claim and we doubt whether you want to be dragged into a legal battle. In addition, if you are hoping to have your play produced, there is a strong possibility you will have to indemnify the play against infringement ... which means you'll probably want to obtain permission, anyway.
What about Dickens? All of the works of Charles Dickens are in the public domain and free for you to use without permission.
By the way dept. You could stage your play in Canada without much problem as "A Farewell to Arms" is in the public domain up north. You could also include clips of the 1932 movie, "A Farewell to Arms," which is PD in the U.S.

Wednesday, July 1, 2015

Same Sex Marriage and Copyright Redux

Back in 2013 when the Supreme Court made its DOMA decision, we reviewed the effect it would have on copyright law. At that time we indicated that the primary effect would be that in states where same-sex marriage is legal, the surviving spouse would acquire copyright renewal rights and termination rights. Now that the Supreme Court has held that same-sex marriage, is legal in all states the rule applies across the country. In other words, a surviving spouse will acquire the right to recapture copyright for pre-1978 transfers as well as the right to send and benefit from Notices of Termination.
The effect on copyright contracts. Other than the ability to terminate a transfer after 35 years, the Supreme Court decision should have little effect on contracts signed regarding copyright transfers. In the nine states that have community property laws --Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin -- spouses automatically become joint owners of most types of property acquired during the marriage. California, for example, has held that a copyright acquired by one spouse during marriage is community property—that is, is jointly owned by both spouses. (Marriage of Worth, 195 Cal.App.3d 768, 241 Cal. Rptr. 135 (1987).) This means that if you are married and reside in California (or later move there), any work you have created or will create automatically would be owned jointly by you and your spouse unless you agree otherwise. Therefore, lawyers consider it prudent for both spouses to sign any assignments or exclusive transfers of copyright. (Note a court in Louisiana has held copyrights are not community property in that state. (Rodrigue v. Rodrigue, 50 U.S.P.Q.2d 1278 (E.D. La. 1999).)

Wednesday, June 24, 2015

Can I Stop App Maker From Using My eBook Title?

Dear Rich: I recently discovered that a new Apple app is using my exact common law trademark -- a phrase associated with my former profession. Through Apple, I contacted the app designer, who said she registered the trademark with the USPTO and it was tough luck for me. Since February 2013, I have used my trademark for the title of my copyrighted eBook, which is available globally on Apple, Amazon, Barnes and Noble, Kobo and Smashwords. Since that date, any cursory internet search for those keywords would reveal my eBook, my website and my personal contact information. How can I regain control of my common law trademark? I used the trademark first, the app trademark is identical, both are used for digital products and both are available in the Apple store (and appear in close proximity in online searches).
Sorry to deliver the bad news but if you've only used the phrase in connection with a single book title, you probably have not acquired any common law trademark rights. As the USPTO puts it, "the title of a single book cannot serve as a source identifier," and as we've indicated previously, only a book title used as part of a series is registrable as a trademark. There may be exceptions for blockbuster books but you would be in a better position to chase the app developer if you offered other goods or services with the phrase.
The app developer's trademark registration. Looking at the USPTO trademark records, it appears as if the app developer's statement that she registered the trademark may not be completely accurate. Although the examiner has approved the mark, there seem to be two steps remaining in the registration process: (1) publication of the mark on the Principal Register (which is supposed to occur on July 7, 2015); and (2) the app developer must submit evidence that the mark is being used in commerce (the developer filed an intent to use or "1B" application). That leaves two possibilities. First, you can file a notice of opposition following publication. We don't think you have sufficient basis to do that but you would be best served by seeking out a trademark attorney for guidance. Alternatively, the registration may not be granted if the app developer fails to file a Statement of Use  (or seek an extension) within six months of the Notice of Allowance (The USPTO explains these procedures.)
Copyright claims? If the app developer is taking more than the title from your eBook, you may be able to frame the dispute as copyright infringement.

Monday, June 22, 2015

Wants to Use Recycling Logo As Part of Trademark

Dear Rich: I started a small comic book publishing company called Disposable Fiction Comics, LLC. We are using the recycling logo as part of our logo. I know that the recycle logo is part of public domain, but I was considering trademarking it, but I started realizing that may not be possible as it would make it private property. 
The classic recycling logo -- three bent arrows in a triangle shape --has been used in many variations in dozens of registered trademarks from recycled fabrics to recycled metals to cement to photocopier cartridges to edible marijuana seeds. It even has its own design code at the USPTO (24.17.19 - Recycling symbol) which can be used when searching the USPTO trademark database.
How the USPTO handles the recycling symbol. The USPTO treats the recycling symbol as a "universal symbol"which is "any design, icon, or image that conveys a widely recognized or readily understood meaning. The USPTO advises examiners (Note: Word document download) that a mark using a universal symbol is registrable if it:
"... is highly stylized, if it incorporates elements that are not usually in the symbol, or if it is integrated with other matter in the mark, and, as a result, a distinctive commercial impression separate and apart from the symbol’s usual significance is created or a source-indicating unitary whole is formed."
In light of the registered marks, we believe that your use of the recycling symbol meets the standards described above. Hopefully, if there are no other impediments (for example, prior users in the same field of goods or services) or other registration issues, you should be cleared for takeoff.
None of our business dept. In light of the universally recognized meaning of the recycling symbol -- to designate recyclable materials -- isn't there a disconnect when you combine it with a word like "disposable" ("something designed to be thrown away after use")? Our re-branding suggestion is attached.

Wednesday, June 17, 2015

Making an NDA With Someone in Remote Location

Dear Rich: Can you advise me as to the best process for arranging a non disclosure agreement with a party in a remote location? Can the agreement be signed and attached in an email? Would this be sufficient or is an original necessary?
Thanks to the federal e-signature law, contracts that are signed and executed electronically are as valid and enforceable as paper contracts. All you need to do is email it to the remote party who emails it back with an electronic signature. People use different types of e-signatures, including typing the signer's name into the signature area, pasting in a scanned version of the signer's signature, clicking an "I accept" button, typing in the name between forward slashes, or using cryptographic "scrambling" technology.
Jurisdiction: Where does the remote party reside? Always keep in mind that enforcing the agreement -- that is, keeping your secrets a secret -- requires a lawsuit. If you are suing an American worker -- even one temporarily at a remote location outside U.S. borders -- you're okay because U.S. courts have jurisdiction over those who reside in the U.S. But if the NDA is with a foreign national or a foreign company with insufficient ties to the U.S., you may have difficulty enforcing your agreement, especially if you must sue in a foreign country. It may help to include an injunctive relief provision and a foreign arbitration provision.

Monday, June 15, 2015

How Do I Register Revised Version of Previously Published Book?

early print-on-demand system
Dear Rich: Some years ago, I wrote a novel. I briefly offered it through a print-on-demand service, but only a very few copies were actually printed before I thought better of it and all of those copies went to me or close friends. The work was not registered with the Copyright Office at that time. Since withdrawing the book from the P-O-D service, I've made various revisions to the text, fixing some errors, refining dialogue, and so forth. I am now interested in registering the work, but because of the short-lived print edition, I'm not sure how I need to approach it. Am I obligated to submit the version published, noting the date, and then file a separate continuation with the revision? Is there a way to simply submit the current version and note that a previous, unregistered edition was published? (The current version is still close enough to the previous one to be immediately identifiable as a different draft of the same thing.) Yes, you can register the most current version but you might be better served by registering the earlier P.O.D. version assuming there are no major changes -- new characters, new plot line -- in the revision. Here's the skinny:
Do you need to register at all? Start with the principle that both versions are protected under copyright law and registration is not required to obtain rights. Registration is encouraged because it provides some benefits most of which are important if you must sue someone. Because few people have seen the P.O.D. version and nobody has yet to see your new version, you may not need to be concerned with infringement ... that is, until you distribute your revised version. 
If you do register ... The Copyright Office views your revised work as a derivative of the P.O.D. work and therefore your registration is intended to provide protection for your modifications. When you complete the limitations section of your application, you would fill it out as shown below:
Assuming the P.O.D. version is close to the revision, we would recommend registering the P.O.D. now. Later, when you are ready to publish the revised version, register that one as well, including the information shown above, as well as previous registration number and year of registration. Keep in mind that you can use your P.O.D. registration to stop someone who rips off your revised version (even if the revised version is not registered) because only the copyright owner (you) would have the right to make derivatives.
By the way dept. You would not file a "continuation." We think you're applying the patent definition of that term.  Under copyright law a continuation sheet is used to provide additional information that doesn't fit within the original paper application.

Wednesday, June 10, 2015

Can I Write Fiction Using Patented Inventions and Copyrighted Architecture?

Dear Rich: To what extent do writers of prose editorial works (whether fiction or nonfiction) need to worry about patents and architectural copyrights? Can I write a novel in which characters use or discuss some invention or technology that is covered under a current patent? Is a fiction or nonfiction description of a work of copyrighted architecture an infringement of that copyright? For example, if I write a (fictional) novel containing scenes that take place in a building subject to architectural copyright and that include narrative descriptions of relevant design features and layout (e.g., the rooms through which characters run during a chase scene), does that infringe the architectural copyright? Does it make a difference if the building is a public? 
Write away! It's highly unlikely that you'll get hassled for writing about about patents or architectural works.
Patents. Patent infringement occurs when you make, use, or sell a patented invention without authorization ... not from writing about a patent. Keep in mind, a patent is not a secret; it's published for all to see. Even quoting from patents won't get you in trouble. As the USPTO states at its website: "Subject to limited exceptions ... the text and drawings of a patent are typically not subject to copyright restrictions." That said, you could get hassled for reproducing a patent drawing. In Rozenblat v. Sandia Corp. 69 USPQ2d 1474 (7th Cir 2003), the 7th Circuit recognized the copyrightability of an inventor's patent drawings.
Architectural works.  Infringement of an architectural copyright occurs when someone copies "the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings."Architects have many modes of expressions but we're hard pressed to imagine an architectural rendering solely in words. Writing about an architectural work would not infringe the work, anymore than writing about a Warhol silkscreen, a Robert Frank photo, or any other visual work.

Monday, June 8, 2015

Can I Score a Movie Using Existing TV Themes?

Dear Rich: While scoring a movie I've been asked to use two existing TV themes. Is this even doable? Do I need a music lawyer? Anything is doable in the world of music licensing. Assuming the owners of the TV themes are open to licensing the rights, the major factors affecting the licensing price will be the type of film -- indie, documentary, studio feature (in other words, your budget), whether the song will be included on a soundtrack recording, whether you will recreate the theme (or use an existing recording), the length of use and where it is placed within the movie (for example, over opening or closing credits), and whether the theme will be used in advertising for the movie.
Do you need a lawyer? A lawyer's advice can be helpful, particularly if you must furnish the licensing agreements. But it may not be as essential if someone in the production has experience with these types of negotiations (and the TV theme owners are furnishing the agreements). You may find it more cost effective to deal with a music licensing agent, an expert in music licensing and clearance, instead of an attorney. These agents are familiar with the necessary rights and agreements and can negotiate terms that may be most favorable for your movie. Type "music clearance expert" into your search engine.
Theme music trivia: Director Robert Altman's 14-year old son earned a million dollars in royalties for writing the lyrics to the movie music (and TV theme) for "M*A*S*H. Altman earned $70,000 for directing the movie.

Wednesday, June 3, 2015

Can I Say "Life is Good" on Zazzle Products?

Dear Rich: Could someone register a phrase as a brand name and not let anyone else use that phrase? For example: I created a design using the words "Life is good when the fish are biting." I posted it on  and a couple days later they took it down saying I may be infringing on someone's intellectual property. I asked who it was and what proof did they have. They gave me this website address: I thought the words "life is good" was in the public domain and no-one could own those words and/or prevent others from using that phrase in a sentence. Can they do that or are they trying to bluff me?
We don't think they're trying to bluff you. You can freely use "life is good" in a song lyric, or as the title of your book or for other copyright purposes, but you'll run into problems using it for trademark purposes on merchandise like t-shirts, hats or ceramic cups.
How two brothers cornered the "life is good" marketplace. Life is very good for the two brothers who own Life is Good (LIG), a Boston-based t-shirt and licensing company. The brothers were struggling t-shirt manufacturers until they stumbled on their bright-sided branding mantra. Nowadays LIG generates $100 million stamping their optimistic message on greeting cards, coffee, pet supplies, frisbees, cups, musical festivals, and a whole bunch of other products and services desired by an ever-hopeful ever-consuming world. Along with this licensing and expansion, LIG has made a serious investment at the U.S. Patent and Trademark Office where LIG registrations have been issued in dozens of classes of goods including backpacks, dog leashes, luggage, bed blankets and towels, children's and baby clothing, toys, etc.
Bottom line department. Other companies have acquired trademark registrations for "Life is Good" (and its variations) for products or services not exploited by LIG. Further, you may even be able to prevail in a dispute by demonstrating that consumers are not confused -- that is, your phrase is distinguishable. But practically, we think LIG has the legal firepower (and legal presumptions) on its side. Keep in mind, that LIG has even become embroiled in disputes with people manufacturing "Life is nutz," "Life sucks" and "Life is gay." As much as we hate to see the English language cordoned off by manufacturers, we think you should consider moving on to another line.

Monday, June 1, 2015

Do I Need Model Release for Khmer Rouge Documentary?

Dear Rich: I shot an on-the-open-road documentary revolving around the killing fields of Cambodia and interviewed many people along the way about their experiences with the Khmer Rouge. I thought I was covered under the journalistic news banner and did not need model releases but now more than a few people are telling me I screwed up and will either get sued or won't get E and O insurance and then no outlet to carry my show. What do you think? By signing a typical release, the subject consents to participate in your documentary and waives the right to sue over claims such as defamation, invasion of privacy, and right of publicity. A release doesn't always shield a documentarian from a lawsuit, but it's a strong defense, and it may be required by your insurer, distributor, or exhibitor.
Releases. A release doesn't have to be in writing. Video releases -- in which the subject is video recorded agreeing to the terms of a release -- are also enforceable. A consent to participate may also be implied. In Clearance and Copyright: Everything You Need to Know for Film and Television, attorney Michael Donaldson writes how Lily Tomlin sued documentarian Nick Broomfield to stop distribution of his documentary about her one-person show. One of her grounds was that she and the people around her, never signed a release. The trial court ruled that neither Tomlin or the other participants ever objected to Broomfield's cameras, a failure that prevented later objection to their participation in the film.
Bottom line dept. If you can afford the attorney fees we would suggest consulting with an attorney knowledgeable about film clearance.

Thursday, May 28, 2015

Notarizing Trademark Instead of Registration

Dear Rich: I may be interested in securing trademark rights for a blog some time in the future, but I'm reluctant to pay for a trademark registration which may prove to be unnecessary. If I got a notary to print and then notarize a screen shot from her computer, could that document be used to support a trademark application at a later time? If this is a valid approach, what are the pros and cons, and do you have any advice about what the format and content of the document should be?
We suggest you abandon your notary plans. First,  a U.S. notary won't notarize a screen shot; notaries identify and screen people who sign important documents. Even if you prepare a document containing the trademark image and a statement about how you created it and you sign it, you'll still be wasting your money. Trademark rights are acquired by being the first to use the mark in commerce, not by being the first to create the mark. In any case, the USPTO makes you sign an oath as to the accuracy of the information in the application.

Tuesday, May 26, 2015

Amazon Seller Counter-Notice

Dear Rich: I am an Amazon seller and received a notice that I was infringing another seller’s rights and that my seller page had been taken down. I’m pretty sure this was a bogus strategy done by one of my competitors. I have rights to sell and post what I’m selling. My attempts at contacting Amazon have been useless because they just send the same email back. 
We're not sure whether the notice you received constitutes a DMCA takedown notice but to hedge your bets, we would suggest sending a DMCA counter notice to the seller performance team (even if you don't think it will do anything) and send a copy to At least you will have it on file with them in the event that this is part of a DMCA procedure. You must be sure of what you're claiming in the takedown notice because you're making this statement under penalty of perjury. You can read more about counter-notices, here.
If the counter-notice doesn't work ...  If that doesn’t work, and Amazon isn't responding in a meaningful way, you can try moving up the food chain and sending letters and emails to Amazon’s legal department ( Legal Department, P.O. Box 81226, Seattle, WA 98108). If that doesn't get a response, you can file for arbitration under Amazon’s participation agreement.  This is a last resort, of course, and there are risks because if you lose and the arbitrator determines your claims are frivolous, you will have to pay Amazon's legal fees and costs resulting from arbitration.

Counter Notice 

Material that was removed: (describe Amazon advertising material taken down)
Location of where the material was located (URL): (list the URL for your Amazon seller page)

This letter is a formal response to a claim of rights infringement against material that I uploaded to Amazon. Please consider it as a DMCA counter notification as defined in 17 USC 512(g)(3).
I believe the claims of rights infringement are inaccurate and should be rejected for the following reasons: I either own all rights in the material posted or I have acquired permission from the rights holder. Further, I do not believe that the complainant has provided any credible claim of rights. All of my attempts to reach the complainant have been futile. In summary, any allegations of rights violation are unsupported.
I declare under penalty of perjury that I have a good faith belief that the complaint of rights infringement is either based on mistaken information or is an intentional misuse of the law (and violation of the Amazon Participation Agreement).
I ask that Amazon restore the material in dispute unless the complainant files suit against me within ten (10) days, pursuant to 17 USC(g)(2)(b). I further consent to the jurisdiction of federal district court for the judicial district in which I reside. I agree to accept service of process from the complainant.
Sincerely [Electronic of actual signature]
Full Name: (provide name)
Address: Phone Number: (provide address and phone number)

Wednesday, May 20, 2015

Band Wants to Add New Members

Dear Rich: I'm in a band that has an incomplete lineup at the moment. Right now it is just 3 of us (2 guitar players, 1 drummer). We have a good handful of songs fully written and arranged. In the meantime, we are still looking for more people to join. How would it work if we go about copyrighting our music now just to get out there as a trio? I know when you file a copyright, you can always add to it later but is there a way to make the three of us principal songwriters and have the rest of the band (once it's completed) still get credit for the music later on?
Copyright is automatic so once your trio creates a song (song copyrights) or records an album (sound recording copyright) the three members are all co-authors and co-owners by default (assuming that all three contributed to each effort). If you filed copyright applications for either the songs or the sound recordings, you would list the three contributors as the "authors."
When you add a fourth member ... You should not revise an existing registration (or file a new one)  unless the new member modifies one of your existing songs or recordings -- for example, a bass player helps you modify an existing tune by composing a new chorus and bridge. You can always share revenue from existing copyrights with new members -- for example paying them song royalties for songs written before they joined the band but that doesn't require modifying the copyright information for existing copyrights. We recommend that you create a band partnership agreement to best deal with adding new members (and we explain how do that in our Music Law book).

Monday, May 18, 2015

What Do I Write to Prevent Infringement?

Dear Rich: I read your post on How Do I Word a Copyright Disclaimer for YouTube? How about if I am the copyright owner? What should I write to prevent somebody from infringing on my content? 
If you want to post a warning, something similar to the following would be standard:
"© 2015 [Name of Copyright Owner] This work is protected by copyright and you may not copy, distribute, or modify it. Failure to comply exposes you to legal action for copyright infringement."
If you want to give your warning a more dramatic vibe, you're also free to download and post the FBI's badge-like warning.
However, don't expect these warning to be much of a deterrent. As the RIAA and MPAA are already aware, copyright warnings have negligible effect on content piracy (just as alcohol and tobacco warnings have little effect on drinking and smoking).

Be Prepared. We think it's more important to be prepared for copyright infringement than to warn against it.  For example, registering your work can provide benefits if you must chase an infringer (and the certificate of registration adds some gravitas to your cease and desist letters). You should also learn how to police for infringements -- for example, for free you can create a Google alert or a Google reverse image search. And of course, include your copyright notice (© [Year] [Name]) whenever possible.

Wednesday, May 13, 2015

Who Do I Have to Sue to Get a Cup of Coffee?

Dear Rich: The Keurig company sells coffee brewers equipped with DRM technology. The next model will discontinue the DRM as Keurig cited poor sales and consumer complaints. Another coffee company has been selling a little plastic device that allows consumers to circumvent Keurig. Are these devices grounds for a lawsuit?
Digital rights management systems (DRMs) may be used to limit access to Java®, but we don't think they'll work for java. For legal and customer relations reasons, we don't think Keurig will pursue those who circumvent their technology.
Keurig's system. Keurig's coffee machines won't make coffee if a non-authorized coffee-filled pod is inserted (unless consumers jerry-rig a workaround). As a result of declining sales, Keurig is reintroducing its re-useable pods (permitting users to choose their own brew) but it's not clear whether Keurig will ditch its scanner/DRM entirely.
Is Keurig's system a DRM? DRM (or digital rights management) refers to methods for restricting post-sale usage of (or access to) a copyrighted work such as music at the iTunes store or books sold via Kindle. Cracking, reproducing, or tampering with DRM technologies violates the Digital Millennium Copyright Act (DMCA). This all works out well for movie studios seeking to protect copyrightable content but not so well for manufacturers seeking to limit access to non copyrightable works like garage door openers and printers (and we assume coffeemakers). As one commentator put it:
In cases involving manufactured products, where the products are part of an interoperable system, courts have found that DRM controls must be closely linked to the underlying copyright interest in order to have DMCA protection. 
So, we don't think Keurig will have much luck claiming a DMCA violation. In addition, the DRM-ing of coffee makers may also lead to antitrust problems.
P.S. #1 The Keurig consumer fiasco is part of a growing consumer rebellion (sometimes known as the "right to repair" movement) involving farmerscar customizers and other angry consumers blocked by software from modifying and fixing products.
P.S. We're going to assume the last sentence of your question was either an unintended pun or the product of an over-caffeinated mind.