Thursday, May 24, 2012
How Much is Paid for Life Story Rights?
How much is paid? According to Dina Appleton's book, Hollywood Dealmaking: Negotiating Talent Agreements, $25,000 to $100,000 is typically paid for TV life story rights, and between $100,000 and $250,000 is paid for motion picture life story rights. Sometimes a fraction of this payment (for example, 10%) is paid as an option and the remainder is only paid if the TV show or film goes into production.
P.S. Check out our previous life-rights post.
Labels:
life rights,
right of publicity
Wednesday, May 23, 2012
Wants to Copyright Public Domain Photos
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| Mrs. Tibitts (circa 1860) |
Longer answer (1) Once something's fallen in the public domain as a result of old age (as has all photography published in the U.S. before 1923), it cannot be reclaimed. If you modify a public domain work -- add additional imagery, unique coloration, or anything else arty -- you can claim your combination of old and new. But you will never be able to stop someone from reproducing the underlying public domain image with one possible exception. If you use a public domain image as your product's trademark, you may be able to stop competitors from using the same image on similar goods under trademark law.
Longer answer (2) It doesn't matter if someone "discovers" a public domain work and publishes it at their blog. If it's public domain, anyone can reproduce it. For more on the public domain, check out Steve Fishman's excellent book.
Labels:
photography,
public domain
Tuesday, May 22, 2012
Wants to Reclaim Videogame Rights
You can "grab" some rights if ... If you had created the games independently and transferred rights to the company, you could reclaim copyright 35 years after the transfer. (Here's more on the 35 year reversion rule.) But that's probably not the case if you're an ex-employee. The original company would own those rights with no right of reversion. Alternatively, anyone (not just you and the other ex-employees) can claim any trademarks (for example, the videogame names) if the current company has stopped exploiting the games and has no apparent intention to resume. (Here's more on trademark abandonment.)
Course of action. If you think there's a chance the games can make some money perhaps the company would be more responsive if you offered them a deal -- for example, you'll grant them a royalty of future revenues. (PS Try to avoid providing an advance to keep your risk factor down.)
Labels:
videogames
Monday, May 21, 2012
Freud and The Public Domain: Second TIme Around
Labels:
freud,
public domain
Thursday, May 17, 2012
Can We Do Themed Bento Box Book Using Star Wars, Lego and Snow White?
Right, you had a question. Because you're creating a how-to type food book-- not selling themed-Bento boxes -- we don't think you will need trademark permission. Activities like creating and photographing Yoda apple slices or a Snow White shaped sandwich, don't seem to be a trademark problem, especially if you're using a licensed cookie-cutter. (Note that as we speak, Disney lawyers are seeking to register the fairy tale moniker for processed fruit snacks). As for the Lego Bento box, we think an authorized Bento box would be a better choice for your book (versus creating a fake lego box). In general, your use of Disney, Star Wars and Lego, feels like an editorial/informational use (explained in a previous entry). In other words, you're less likely to trigger infringement if you write about or comment on trademarks. What you can't do is imply an association with, or dilute or tarnish these marks, for example, produce a whole Star Wars Bento box book (more Stars Wars recipes, here).
Copyright. You're probably fine reproducing these Bento versions of copyrighted characters without permission. It's possible, though doubtful, that some over-caffeinated general counsel may send a cease and desist claim but nowadays most media-savvy companies shy away from overzealous pursuit of iffy copyright claims (especially claims like these that may be excused by fair use).
Indemnity. Indemnity provisions are really a drag. Under your provision, you must get all necessary permissions and if a third party sues you for infringement, you're on the hook. So, despite our belief that permission may not be necessary, if your publisher disagrees, you'll have to either deal with it (good luck getting permission from this gang), pay for your publisher's permissions, or remove the material upon request by your publisher. Another possibility is that the publisher will be oblivious to the whole issue and nobody will ever complain. We hope that's the case.
Wednesday, May 16, 2012
She Has Non-Compete in Book Contract
NON-COMPETITION. The Author shall not prepare or be concerned in the preparation other than for the Publisher of any work which shall be an expansion or abridgment of the current Work, in whole or in part, or of a nature likely to affect prejudicially sales of the current Work. The Author will consult with Publisher before publishing or producing another work likely to affect prejudicially the sales of the Work herein contracted for.How long? Our initial concern about this provision -- besides the fact that it doesn't accurately define a competing work, and is written in a funky old-school contract writing style -- is how long the provision can be enforced. Since no time period is mentioned, we assume it's enforceable for the term (time period) of the agreement. We don't know what the term is, but it should be written somewhere in your agreement. In book contracts, it's typically for as long as the book remains in print (see our previous entry) or for the length of copyright. In either case, that's a long time. So, if you have the bargaining power, you might want to put a timer on this one -- for example, to preface the provision by saying, "For a period of one year, following publication of the Work, the Author shall not ....
What's competing? Our second concern is that it doesn't clearly define a competing work. It's no accident that this provision is vague. In the minds of some attorneys, ambiguity increases the breadth of coverage because it makes it possible to threaten and intimidate an author over any type (as long as it will "affect prejudicially sales") or size ("an expansion or abridgment") of work. An author with some bargaining power would want to limit this to a specific thing -- for example book-length works on the same specific topic. Also, if the contract contains a clause providing a right of first refusal for your next work (the publisher has first dibs on your next book), you should add language saying that if the publisher doesn't want to publish it, that your second book will not be considered a competing work.
Does your other stuff compete? Because the provision is so vague, we can't say whether the publisher will care about your other works and if so, what will the publisher do. If we were a betting blog, we would bet that the publisher probably won't care or do anything. First, they're probably aware that you're the expert on this particular subject and they're aware of your site and your freelance column, so they won't want to put a halt to this type of self-promotion -- it helps the book. Your one-off articles may or may not trigger friction. That depends on who is publishing them and where they are being published. One way to secure your position is to include a mention of the book in any of these efforts as that way you can make a reasonable argument that they are promotional not prejudicial.
Just sayin'. If you speak with one of the editors or publisher reps, you may want to discuss these concerns. The publisher may not change the contract (which will ultimately control what happens) but they may assure you that the provision is rarely enforced.
PS Feel free to send our contracts book to the company's legal counsel.
Labels:
books,
contract,
noncompete
Tuesday, May 15, 2012
Wants NDA+ for Taiwanese Manufacturer
An exception .... One exception to the rules expressed above is if the foreign manufacturer has a presence in the U.S. -- for example, there's a U.S. subsidiary or headquarters. In that case, the company is likely to be subject to U.S. jurisdiction and you may be able to enter into a typical template agreement. If you're seeking a basic NDA for various purposes, we've uploaded a collection of agreements with explanations.
Labels:
foreign,
noncompete,
nondisclosure,
nonuse
Thursday, May 10, 2012
Wrong Author Listed on Book
Labels:
attribution.,
books
Wednesday, May 9, 2012
Needs Anatomy Pix for Dissertation
Right, you had a question. The Skandalakis anatomy book (we assume you're referring to Surgical Anatomy and Technique, by Lee John Skandalakis, John E. Skandalakis, and Panajiotis N. Skandalakis), is published by Springer International, in Germany. Springer explains its permission process at its website. (Note the fairly enlightened explanation of U.S. fair use which may be helpful in your case.) The company supposedly provides a downloadable permission request form on the permissions page but when we clicked it, we were re-directed to the homepage (ist der programmer abpoofen?) Probably your request should go to this Springer employee. But if that doesn't work, this page may provide more guidance. Of course, we explain the process for getting these types of rights in more detail in our permissions book.
Labels:
anatomy,
permission
Tuesday, May 8, 2012
Should I Register My Blog Name (or Domain Name)?
Monday, May 7, 2012
Artist's Rights in Public Mural
VARA. VARA protects an artist's rights in a work of fine art (of less than 200 copies) if it is a painting, drawing, print, or sculpture. The artist acquires the right to prevent the intentional distortion, mutilation, or modification of the work. The rights granted under VARA —known as attribution and integrity—are not transferable. Only the artist can exert these rights. Although copyright protection normally lasts for the life of the author plus 70 years, the rights granted under VARA last only for the life of the artist. That is, once the artist has died, the work can be destroyed under VARA without the destroyer seeking consent from the artist’s estate. If the artwork is created under the terms of a work made for hire agreement, the artist acquires no rights under VARA.
CARA. The California Art Preservation Act provides for civil penalties and injunctive relief for the intentional or grossly negligent destruction or mutilation of a work of fine art, defined in the statute as any original painting, sculpture, or drawing that is of "of recognized quality."Under the California statute (California Civil Code Sections 986-989), for example, an artist is entitled to 5% of the resale of a work of fine art. These rights survive for 20 years after the death of the artist.
CARA + VARA. Both of these laws enable an artist in California to prevent the mutilation or destruction of a commissioned art that becomes a fixture or part of the building. For example, when a building owner painted over a famous L.A. mural without first providing notice as required under California law, the artist sued under the California and federal laws and recovered 1.1 million.
But is it art? At least one court has ruled that in order for VARA to apply, the work at issue must have more than “artistic merit” or “some level of local notoriety”; it must be of “recognized stature” as an artistic work. In that case, the court permitted unauthorized dismantling of a 6,000-pound swan sculpture.
Friday, May 4, 2012
Can I Marry a Corporation?
Labels:
corporations,
merger
Thursday, May 3, 2012
Who Owns What I Write for Nonprofit?
Who owns what? Assuming you're not an employee of the nonprofit, and assuming you didn't sign any paperwork assigning your rights in the articles, you own the copyright and can reuse the material however you like. Most likely, what happened is that you gave the nonprofit an implied nonexclusive license to use the article and that's about all. If you did execute an agreement with the nonprofits, (1) review the rules on works made for hire to determine whether your agreement qualifies as work made for hire; and (2) review the rules regarding assignments to determine if you have assigned your rights. Our guess is that you haven't done either.
Note to nonprofits. If you run a nonprofit and want to acquire rights from freelancers, we suggest that you use a work made for hire agreement, license, or assignment. You can put together a simple agreement with the aid of an attorney or by using our permissions book. And speaking of books and nonprofits, may we also recommend one of our favorites on nonprofit fundraising.
Labels:
copyright,
nonprofit,
work made for hire
Tuesday, May 1, 2012
No Sales: Can Book Contract Be Terminated?
Print on Demand. We looked at the contract clause you forwarded and unfortunately it appears that termination for insufficient demand is made at the publisher's discretion. The termination/reversion clause also specifically states that print on demand is enough to justify the publisher's rights under the agreement. This is an onerous (but likely enforceable) reversion clause. A more equitable termination provision would have stated that you are justified to terminate if sales are under a certain number of units -- say less than 25 books per quarter -- for three or four consecutive quarters. (The issue of reversion clauses was recently discussed at this blog.)
Throw in the towel? That doesn't mean you still can't terminate the contract. But you must come up with evidence that the publisher committed some material breach of the publishing agreement. Typically, that means a failure to pay royalties. Just because there's nothing in the contact that details an obligation to make timely payment and accounting, these obligations are implied and may be your route to reclaiming rights. You should have a publishing attorney review the contract to determine if that is a basis or if there is another basis for reversion. The attorney would also review your contract's "assignment" provision to make sure that the successor publishers have the rights they claim to have. There may also be creative theories available. Though it's a longshot, a California court may be open to the argument that an exclusive licensee (the publisher) has an implied obligation to exploit the licensed work.
Can they keep the copyright forever? No, but they may be able to keep it until 2033. A copyright owner who transfers rights is entitled to reclaim them after 35 years. See our recent blog entry.
Monday, April 30, 2012
Wants to Use Sports Nicknames
Nicknames. The legal right to exploit a player's nickname may belong to that player, particularly as with Linsanity, where the nickname incorporates the player's surname. In that case, the player may be able to assert right of publicity claims or trademark claims. As the search results for Linsanity show (above), there are presently nine people vying for the Linsanity registration for products ranging from computer software to perfume (Bouquet de Gym Socks?). We think, except for this applicant, most applicants will likely have wasted their $345 application fees.
Labels:
merchandise,
nicknames,
sports,
trademarks
Friday, April 27, 2012
What's Best Way for Band to Go Digital?
Right, you had a question. You can't submit your songs directly to iTunes. You'll need to go through a distributor, probably either CDBaby or Tunecore, as they have emerged as the main routes to digital distribution. You affiliate with one of them, upload the MP3s and these companies take care of the rest. Both services distribute to a host of download services including streaming services like Spotify, and download services like Rhapsody and Amazon MP3. They both usually manage to post on iTunes within two days of the hand-off. What's the difference between the two? The main difference is that CDBaby takes a 9% cut of your net revenue from downloads. Tunecore doesn't take a cut, but requires that you pay an annual renewal fee per album. Here's a summary:
- CDBaby. CDBaby will sell your physical CDs as well as distribute and sell your digital downloads. (If you just want to go digital and forego physical sales, you can do that as well.) There's a one-time fee of approximately $50 per album or $10 per single. You upload the music and artwork and they get your stuff out to everybody. The company keeps 9% of digital net sales. So after iTunes takes its 30% cut of each download, CDBaby takes 9% of the remainder and pays you the rest by PayPal. You get a CDBaby product page at their website and a fairly sophisticated dashboard so you can learn exactly who in Kazakhstan is buying your music. CDBaby can also handle synchronization licensing services. (Disclaimer: We've used them for years and have never had a problem.)
- TuneCore. TuneCore only handles digital distribution. (You cannot sell physical CDs.) Your band simply uploads your music and artwork and the company takes care of the rest, distributing the downloads to all of the major (and minor) players. The one-time fees for registering an album or single are similar to CDBaby: approximately $50 per album and $10 per single. However, Tunecore doesn’t take a cut from your digital sales. Instead they require that you renew each album and single annually (currently that's $50 per album, $10 per single). The company, through their relationship with IndieMerchandising (www.indiemerchandising.com) also offers merchandise production services.
- The others. A few other companies also attract customers in this competitive space. Among these are BFM Digital, ONErpm, and indieheaven.com. We have not researched these services so we can’t provide information except to note their existence. The Orchard, and IODA also offer digital distribution but they're more selective about who they handle and you must apply and get approved before they will deal with your music.
Labels:
digital download,
music
Tuesday, April 24, 2012
Wants to Patent an Idea
Right, you had a (broad, almost unanswerable) question. Considering that about six zillion pages have been written about patenting an idea/product, we'll try to steer you to a few sources of information that we find reliable (mostly, because we wrote them). To learn the basics of patenting, check out two sites we've worked on: Nolo's Patents and Business site has a fairly thorough explanation of the requirements and limitations of patent law; and Nolo's Patent Law and Inventions topic page provides some serious overlap. Of course, there's also a lot of great free information at the U.S. Patent and Trademark Office site, too. As for the regions that are "covered," the general rule is that your patent extends to the territorial boundaries of the country in which you have registered. Patent registration beyond the U.S. and Canada is complex, expensive and comes with time constraints -- for example, if you file in the U.S., foreign patent applications must be filed within certain times periods. Here's free information about international patents. (By the way, if you're planning on filing a patent without an attorney's help, the bible for DIY inventors is Patent It Yourself.)
Labels:
patent
Monday, April 23, 2012
Can We Publish Poems Given as Gift?
Right, you had a question. The copyright in the poems (and therefore the right to control reproduction) is owned by the estate of the family friend and it lasts for seventy years from the poet's death. Therefore, if you publish without permission, the estate (we'll assume it's the daughter) can halt your publication, or seek financial damages (or both). Is there any chance you can obtain permission for a limited publication for your purposes? Is the daughter aware of the existence of these poems? If not, she may be confused as to how to move forward. Let us know and we'll make that the subject of a separate blog entry.
Labels:
copyright,
poetry,
publication
Friday, April 20, 2012
Figuring Out Songwriter Credits
Right, you had a question. You're really talking about three things: (1) how you get paid, (2) how you get credited, and (3) how you register the copyright. Let's take a quick look at each.
How you get paid. If you have decided that songwriting royalties will be divided equally, you should write that into an agreement signed by A, B, C and D. These songwriting-splits arrangements are usually found in band partnership agreements (and we've included some examples in our Music Law book). The songwriters will also get paid for public performances by performing rights organizations (PROs) such as BMI and ASCAP. In other words, all of the songs and songwriters (and their shares) need to be registered with an appropriate PRO. However, you can probably wait on that until after you're getting sufficient radio, or webcasting (Pandora or Live 365) play.
How you get credited. Credit and payment are distinct. So, however you credit the songwriters, it shouldn't affect how you get paid (assuming there's an agreement about payment in place among the songwriters, as discussed above). For consistency's sake, you should probably agree on something --for example, "all songs written by A & B, arrangements by C & D" -- and include that 'credit language' in the band partnership agreement as well.
How you register songwriting copyright. If you file an application for the song copyright (which is a good idea but not a prerequisite for copyright protection), you must list each person who has contributed to the songwriting and their contribution. If you're filing online (see below), for example, you would simply check a box (or boxes) indicating whether the author's contribution was music, lyrics, or musical arrangement. You should keep it simple and avoid the "Other" box, if possible. The Copyright Office doesn't care who is getting paid or what their percentages are. It merely wants to keep track of the songwriters. (Again, all this is discussed in our Music Law book.)
Labels:
copyright,
music publisher,
song,
songwriting
Tuesday, April 17, 2012
Musicians and 35-Year Reversions: British Rule?
What about British copyright law? Whenever we venture outside U.S. copyright law, we must disclaim that our knowledge is cursory. That said, there's no equivalent to Section 203 in British law. Britain does have a reversionary right that permits the termination of transfers (made by the author), 25 years after the death of the author. So, for example, the heirs of Ian Curtis, the songwriter for Joy Division, who died in 1980, could terminate his assignments and reclaim all his rights in 2005. Section 14 of Canada's copyright act provides a similar rule (though most of the other former British colonies have not adopted the principle).
Labels:
British law,
copyright,
reversion
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