Tuesday, July 22, 2014
Monday, July 21, 2014
If you copied a copyrighted work without authorization, you're infringing. Whether that's unlawful depends on whether you can mount a successful defense. One possible defense is that you are a co-owner because you designed the template used in the newsletter. Proving that will be an uphill battle because common elements of web designs are not protected by copyright --- font choices, look and feel -- and because many of the design choices are limited by practical realities and should be free for everyone. If you can overcome these presumptions (and there are no written work made for hire agreements or assignments), you might be able to claim co-ownership. You might also be able to claim fair use considering that your use was for portfolio purposes and did not cause the owner a loss in revenue. Because co-ownership and fair use are expensive to prove (only a judge or arbitrator can decide), many graphic and web designers deal with these issues in their contracts by including a "portfolio provision" or by retaining non-exclusive rights for certain design elements.
Wednesday, July 16, 2014
Tuesday, July 15, 2014
What about fair use? Copyright owners seem to have reached a truce with meme-ists, realizing that hassling meme owners isn't worth the potential backlash. However, the owners of Game of Thrones could always make an exception if they feel that the government is using its copyrighted characters in furtherance of an unpopular policy. (Remember when George Lucas almost sued Reagan over the use of the Star Wars trademark?)
Can they sue the feds? Yes, the U.S. government can be sued for copyright infringement. It's possible that the government could defend itself using a fair use defense as it did here, but as we remind our readers, only a judge or arbitrator can make a final determination about what is fair use.
Sunday, July 13, 2014
What about changing the agreement? It's more common to sign a management contract based on years (or financial goals), not on number of albums. (It sounds like you are crossing a record contract with a management agreement.) After all, what happens if the artist doesn't have (or keep) a label deal? Does that mean the management agreement ends? In any case, you're free to make any changes you wish to the agreement but we would suggest that when modifying the standard agreement, always review the instructions that accompany the agreement. Also, beware that in some cases, managers may need to be licensed in California.
Thursday, July 10, 2014
Wednesday, July 9, 2014
Tuesday, July 8, 2014
Wednesday, July 2, 2014
|bird food pendant|
Monday, June 30, 2014
|mick and keef:|
two of our favorite co-owners
Whatever you and the producer have agreed upon as songwriting percentages credit is fine. However, just so you're clear, the creator of the words and music (melody and chord structure) is usually considered the songwriter for copyright purposes. As you're aware, the term "arrangement" can have many meanings from the ordering of parts, to the styling and coloring of a music composition. But under copyright law, arrangements are only considered a songwriting contribution if they are material to the composition -- that is, if the arrangement is dictated by more than musical convention or tradition.
The co-ownership agreement. In any case, you and the producer should write up a simple co-ownership agreement that states each party's songwriting contribution and share. We've enclosed a bare bones co-ownership songwriting agreement with an optional arbitration clause. That should deal with the basic revenue-sharing issues that arise from co-ownership of songs. If you are also dealing with master recordings (a separate copyright), you would execute a similar agreements for the recordings. Also, this does not establish any sort of music publishing arrangement, it merely confirms that each of you are co-owners. And of course, you should also register the songwriting copyright application at some point. (There are instructions at the Copyright Office and in our Music Law book.)
The remake. If you’re writing new lyrics to an existing track, that’s different than the situation described above. You can probably use the agreement below to establish a simple revenue sharing arrangement (and hopefully you will give the song a title that distinguishes it from the previous composition). But the copyright application requires some attention as it's doubtful whether you're co-authors under copyright law (as explained in this previous entry). An attorney's assistance might be required when preparing the application.
Songwriting Co-Ownership Agreement
This Agreement is made between _____[insert name and address of owner #1]_____ and _____[insert name and address of owner #2]_____ (the "Parties") as of _____[insert date agreement is to be effective]_____. The Parties wish to set forth their respective rights to and obligations for the musical compositions (“the Compositions”) listed below:
Ownership Percentage Interests
The Parties to this Agreement are the co-owners of all legal rights in the Compositions described above. The percentage ownership interests of the Parties are as set forth below. Unless otherwise set forth in this Agreement, all money accruing from the exploitation of the Compositions shall be divided as set forth below, and all contracts we enter into for exploitation of the Compositions shall provide for royalty payments reflecting the percentage interests set forth below:
Name Percentage Interest
The Compositions shall be credited as follows: _____________________________
We represent and warrant to each other:
- Each of us is free to enter into this agreement.
- Our contributions to the Compositions are original or all necessary permissions and releases have been obtained and paid for.
- None of our contributions infringe upon any copyright or other proprietary right of any other person or entity.
- We each agree to indemnify the other(s) for any loss, liability, or expense resulting from the actual breach of these warranties.
The Parties agree that every dispute or difference between them arising under this Agreement, shall be submitted to binding arbitration at a location mutually agreeable to the Parties. Any decision or award as a result of any such arbitration proceeding shall include the assessment of costs, expenses, and reasonable attorneys' fees and shall include a written record of the proceedings and a written determination of the arbitrators. An award of arbitration shall be final and binding on the Parties and may be confirmed in a court of competent jurisdiction.
Neither party may assign his or her rights or delegate his or her duties under this agreement without the other party’s written consent. However, any party may assign the right to receive royalties or other income from the Compositions by giving written notice to the other party.
Each Party shall act in good faith and not take any action which hinders the rights of the other parties. The provisions of this Agreement shall be binding upon the heirs, executors, administrators, successors, and assigns of the Parties. If any provision of this Agreement is held to be invalid for any reason, such invalidity shall not affect the validity of the remainder of this Agreement. This Agreement constitutes the entire understanding between the Parties and can only be modified by written agreement. This Agreement shall be governed by the laws of the state of _____[insert state law that shall govern the agreement]_____. In the event of any dispute arising under this agreement, the prevailing Party shall be entitled to its reasonable attorney's fees.
MY SIGNATURE BELOW INDICATES THAT I HAVE READ AND UNDERSTOOD THIS AGREEMENT.
Signature __________________________ Dated: __________
Signature __________________________ Dated: __________
Friday, June 27, 2014
|one of our favorite recipes:|
arepa sandwich from Victory Burger
Thursday, June 26, 2014
(one of our favorite lyricists)
What about James? James may own a sound recording copyright (for the master recording) but that doesn't give him any dibs over the song copyright. This circular distinguishes the two.
Wednesday, June 25, 2014
BTW Dept ... If you're looking for more match-ups between public domain characters check out this site or this one.
Monday, June 23, 2014
Thursday, June 19, 2014
Defining the term. Assuming, as you say, you have a written permission, it should spell out the term (the length of the agreement). If you meant that you have an oral agreement with supporting written documentation (emails, notes), that may also indicate the term. If you never agreed on a term, then a judge or arbitrator would have to infer the length of agreement from the behavior of the parties. For example, if you obtained permission to use a photo in a book, was it understood that permission was granted for all editions of the book or just a particular edition? If the permission was for use at a website, was it understood that permission was granted regardless of which page it was used on or was it limited to a specific URL? Was permission for a photo display limited to a specific show or gallery? In the absence of any evidence, a judge will consider the intent of the parties and trade custom.
What should you do? If there is a difference of opinion as to what was understood, you're in a typical dispute resolution situation in which you can (1) try and work it out yourselves (or hope it just disappears), or (2) you can mediate or arbitrate the matter depending on your budget. We're in favor of the first option.
Wednesday, June 18, 2014
Your disclaimer. As we've said before, disclaimers are usually ineffective (and yours has a few problems). Even if you're not claiming rights in the underlying song, you are probably claiming rights in the copyrighted sound recording and video. That is, if somebody began making money reproducing your video without your permission, we assume you would pursue them. Also, claiming that the video is "informational" is confusing. Typically, such a claim is to distinguish it from being commercial and we don't think that's the case. Self-promotion is typically a commercial endeavor. We think you can ditch the disclaimer.
P.S. All bands are inconsequential in the larger scheme of things
Tuesday, June 17, 2014
Government immunity? State governments are immune from copyright infringement lawsuits (sovereign immunity). So if the copying was done by a state official, the state could not be sued. Congress tried to change that but a district court ruled otherwise (although an individual state employee may be liable.) Local governments and the federal government (and their employees) can be sued for infringement for either scanning or passing out copies. (Passing out copies might make for a better fair use defense because it limits copying to a need-to-know group).
BTW Dept. If copyrighted material is placed in the Congressional Record, there are restrictions on reproducing it.
Monday, June 16, 2014
What about fair use? Your use sounds transformative -- you're commenting on the clip -- so that would be helpful for a fair use defense. On the other hand, the clips are much longer than what's usually excused (under a minute). Look at the four factors and see what you think, or better yet, check with a lawyer if that's possible. Remember, claiming this defense is not enough to stop a lawsuit. If the other side disagrees with you, only a judge or arbitrator can determine whether it's a fair use.
Thursday, June 12, 2014
Dear Rich: I would like to use a single story from an anthology of stories in my 6th grade Humanities class. Our school has recently begun a 1:1 iPad program, so each student will have an iPad to use. Therefore, I would like to scan the story and share it with my students through our password-protected school website. To my mind, this would be the digital equivalent of providing students with a photocopy of the story. Is scanning and sharing with students online off-limits, or would this fall under educational fair use? Unfortunately the educational fair use guidelines were written prior to the existence of iPad learning and they reference photocopying, not digital scans. The guidelines provide that a copy of a short story can be distributed to each student provided it meets the guideline standards of brevity and spontaneity. In terms of brevity, the guidelines limit copying to a complete article, story, or essay if less than 2,500 words or an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less. (We summarize the rules here.) Although you can analogize to these rules, the proposed digital educational rules (no official consensus was ever reached) do not include a similar textual reproduction rule. In summary, there is no rule that clearly exempts your use. In any case, we don't imagine you'll run into a problem, particularly if access is password-protected and you can remove the copies from iPads (or terminate access).
Wednesday, June 11, 2014
Fair use? If you're asking whether we think you will prevail in a lawsuit based on a fair use defense, the meter probably leans more toward your side than towards the copyright owners. That's because -- analyzing the four four fair use factors -- your segments are relatively short (the shorter the better), your use of the material is clearly for the purposes of commentary, and your project doesn't seem likely to have an effect on the potential market for the copyrighted works. As always, this is only speculation and the costs of fair use litigation may overwhelm principles of free speech.
P.S. Dept. If you're planning on posting your documentary online, keep in mind that copyright owners can use DMCA notices to wreak havoc.