Monday, April 27, 2015

Generic Soccer Balls

Dear Rich: (1) My understanding is that the word "soccerball is in the public domain and can't be registered as a trademark, am I right? (2) What about if someone invents a sport? Does the inventor of the sport get trademark rights? 
(1) Terms that are generic for the goods or services are not registrable on either the Principal or the Supplemental Register under any circumstances. So, "Soccer Ball" can't be registered as a trademark for soccer balls. But it can be registered as a trademark for other products, for example, bubble gum.
(2) You wouldn't get trademark rights for inventing a sport. You only get rights when the mark is exploited in connection with goods or services. So, if someone invented a sport, or recreational activity, for example, Knockerball, and exclusively exploited the mark in commerce, a trademark registration may be awarded. The challenge for the owner is to avoid having the mark become the generic name for the activity, in which case trademark rights will be lost .

Wednesday, April 22, 2015

Wants to License Oral Histories

Dear Rich: I founded a nonprofit that is an archive of oral histories. A European museum wanted to feature three stories from my project in an exhibition. They asked me under what conditions I'd allow use of material belonging to the nonprofit and whether my license would also cover the rights of the three stories in particular. Since this is the first time I've had to seriously consider how to protect my work I'm unsure as to what I should request to ensure my work is safe. 
The answer depends on what rights you have to license. We reviewed your standard release and it authorizes your nonprofit to "use, reproduce, and/or publish video footage for educational and informative purposes" and to use it in "public affairs releases, or for other related endeavors." That language is suitable for using the material in association with your nonprofit, for example, at your website or perhaps at presentations made by the nonprofit. We're not clear about the meaning of "related endeavors" but, a conservative analysis would not include licensing the material to a third party. (We would feel better if the release specifically granted you the right to license the material to third parties.) If we're correct, you would should contact the subject and seek consent to license to the European museum. That makes sense, considering the personal nature of oral histories.
What should you seek from the museum? Once you have the necessary permissions from your subjects you would enter into a license agreement with the museum. You would need to define and limit reproduction and display/performance rights (how many copies, how many streams, what forms of media), length of license (how long the museum can use the material) and payment, if any. These arrangements are sometimes simple, sometimes complicated. We provide examples of these types of licenses with explanations in our book on permissions. Also, because it could be a challenge to enforce an agreement with a European museum, we'd suggest a little bit of research, if possible, to learn about the museum's past business dealings.

Monday, April 20, 2015

Who Periscoped My Game of Thrones?

Dear Rich: I have a basic understanding of copyright law, and my impression is that certain types of live-streaming could be defended as fair use -- for instance, if someone Periscoped "Game of Thrones" while offering a live critique of it. Or maybe if someone Periscoped a group of friends watching the show. My question is – at what point, if any, does live-streaming become “transformational”?
"Periscoping" refers to live streaming via the Periscope app to friends, and we doubt whether transmitting a complete episode of "Game of Thrones" would qualify as a transformative use, even with a live critique. A transformative use occurs when someone alters a copyrighted work and creates something "with new expression, meaning, or message," parody being a good example. Being transformative is only one factor in a fair use victory. However, the more transformative the use, the less important the other fair use factors (nature of work, amount taken, financial impact). In a recent example, a judge ruled that borrowing the characters and settings from "Three's Company"to create "an upside-down, dark" theatrical drama, was a transformative use. (You may also get guidance on transformative uses by checking fair use rulings.)
It's a moot question if ... If the user had agreed to a license — for example a click-to-agree EULA for HBO GO -- that agreement would likely pre-empt fair use arguments.
By the way dept. It's been a long time since a court okayed reproducing a whole TV show as a fair use; 31 years ago the Supreme Court held that "time shifting" a single copy of an over-the-air TV show for personal use was okay.

Monday, April 13, 2015

Fish Out of Water (and Copyright)

Dear Rich: I am currently in the process of making a logo for trout nets I sell. My graphic design artist did a great job but used a trout silhouette off of a stock photo site. The site says it is prohibited to use their material as part of a logo, but it is just a silhouette of a trout jumping and I feel like that is more public domain than not. I talked to my graphic design artist who is willing to sketch one up from scratch, I just feel it is kind of silly as there are only so many ways to depict a silhouette of a trout jumping out of the water. 
Your argument -- that there are a limited number of ways to portray a jumping trout silhouette -- is a reasonable defense to copyright infringement and may possibly qualify under the merger doctrine or as "scenes a faire." However, if you obtained the image from a stock photo site and entered into a license agreement, copyright would take a back seat to the contract. If the stock company notices (and cares), they can hassle you over breach of license and your copyright arguments would have little value. Have you considered public domain or Creative Commons imagery? There's a lot of other fish in the sea.*
* and yes, there are saltwater trout!

Wednesday, April 8, 2015

Do I Need a Lawyer to License Crafts?

Dear Rich: I'm a crafts artist and I create fantasy animals and sell them as sculptures and prints. A company wants to license two designs for fabric for use in children's products. They're asking me to sign a license for three years. According to the contract, I can still sell sculptures and paper prints. I just can't do clothing. bed sheets and similar fabric items. I think I understand the agreement. I'd hate to blow most of my advance on a lawyer if I don't need one. But people are telling me I should see an attorney. What do you think?
That's a tough call. We talk about licensing at our crafts law website (where we also offer a sample license agreement for purposes of comparison). If you can't make it over there, here's what we suggest: If you’re a savvy, confident businessperson capable of reading contracts -- and this is especially true if the other side provides a concise easy-to-understand agreement -- you can probably negotiate your own license.  If legal agreements just make you nervous, and a company wants to license your best-selling or signature work, you might as well secure some backup and retain a knowledgeable licensing attorney.
Watch out for "assignments." One warning flag that you might need an attorney is if you see the word “assign” or "assignment" in the proposed license agreement. An assignment means that you are selling legal rights in a work to someone else which is far different from the “rental” arrangement of a typical license. If you assign all your rights in a work, then that’s it—you can’t reproduce and sell that work any longer. There may be an occasion where an assignment makes sense—for example, sometimes you can assign all rights for the term of the license and they will be assigned back to you after it’s over, or you may receive a large sum of money for an assignment. Nevertheless, if the licensee seems to be angling for an assignment, have an attorney review the draft agreement to guarantee that you’re not permanently giving up all rights.

Monday, April 6, 2015

Does Your Chewing Gum Lose its Flavor in Canada?

Dear Rich: Is the song "Does Your Chewing Gum Lose Its Flavour (On the Bedpost Overnight)" in the public domain in Canada?
Although many music fans believe that Does Your Chewing Gum Lose its Flavour originated with Skiffle-master Lonnie Donegan in 1959, the novelty song was originally released in 1924 by the Happiness Boys. It was written by Billy Rose, Ernest Breuer, and Marty Bloom (see label, right) with one difference; their song was titled Does Your Spearmint Lose its Flavour. Donegan changed it because the BBC would not play songs that included trademarks and SPEARMINT was a registered trademark for a brand of chewing gum. (BTW, the same now-outdated policy is why the Kinks' song "Lola" references "cherry cola," instead of Coca-Cola, and why Paul Simon's track Kodachrome ended up as the B-side of a single in the UK.)
Right, you had a question. Neither the original version of this song nor the later arrangement by Lonnie Donegan are in the public domain in Canada. Copyright terms in Canada generally last for the life of the author plus 50 years. In the case of multiple authors, the term is measured from the year the last living author died. Billy Rose died in 1966, Marty Bloom in 1974, and Ernest Breuer in 1981 (according to this article ). Thus, the Canadian copyright term for Does Your Chewing Gum Lose Its Flavour runs through the end of the year 2031. Lonnie Donegan died in 2002, thus the Canadian copyright in his arrangement lasts through 2052. Answered by Stephen Fishman, author of The Public Domain.

Wednesday, April 1, 2015

White House of Cards: Selling the Presidents

Soon, I will be launching my Kickstarter Campaign for a card game I designed entitled "RePresidency." The game will feature works from the public domain that includes images of former political leaders and other political icons that helped shape the United States into what it is today. All of those portrayed in the game will be featured in a positive light and the physical cards will include an image of the person, their name, their signature (also public domain), and the symbol of their political affiliation. Most of the cards will feature deceased individuals from the early 20th Century and public domain imagery and art of the World War eras. My concern is that, even though portrayed positively and truthfully, that some individuals or their heirs may come at me if the campaign is successful. 
We don't think you're going to have any copyright concerns because your images are all public domain. So, your only concern is whether the ex-prexys will sue for right of publicity. A few states have a post-mortem right of publicity -- that is the heirs of Richard Nixon might be able to pursue you. Living ex-presidents like Jimmy Carter, Bill Clinton, and George W. Bush also have the legal basis to hassle you. (It's unlikely you'll be hassled by the current president because of public relations issues.) Unfortunately,  even though politicians like Spiro Agnew, Arnold Schwarzenegger, and Jesse Ventura have sued over right of publicity claims, these cases settled without any court precedent. So, there are no legal rulings indicating whether a politician's right of publicity trumps commercial free speech rights.
Bottom Line Dept. We think you should proceed with your card set. Other companies have followed a similar path and we assume they did so without contacting the grandchildren of Harry Truman, etc. Should you get hassled, we think you have a strong free speech defense (and the publicity probably won't hurt your sales either).

Monday, March 30, 2015

High Heeled Shoes: Low Level Legal Protection

Dear Rich: I make and sell high heel shoes. What I do is decorate with spikes, studs, feathers, embellishments etc., and sell them. But my biggest sellers which I call my signature design is the peacock feather that I place in certain areas of the shoe. So I wanted to know if I should copyright that design or do the design patent?
Design patents are sometimes granted for high heel designs -- here's one that incorporates a football motif -- but we don't believe your shoes are likely to qualify. One reason might be that you've already been offering the shoes (disclosures by the designer may be excused for one year prior to filing). Another reason might be a lack of novelty (others have made similar use of peacock feathers). And another might be that your designs, creative as they may be, are "separable embellishments." According to the USPTO:
"Design is inseparable from the article to which it is applied, and cannot exist alone merely as a scheme of ornamentation. It must be a definite preconceived thing, capable of reproduction, and not merely the chance result of a method or of a combination of functional elements."
Copyright. Copyright does not protect clothing, fashion and similar functional designs. You may be able to protect surface ornamentation for clothing if it is considered "separable" from the shoe itself.
Trade dress and trademarks. Trademark and trade dress law may assist if you can demonstrate that consumers associate the design or some aspect of it with you (an association that usually requires serious sales and advertising). That's the approach taken by the big guns like Gucci, Balenciaga, and Alexander McQueen. Otherwise, trade dress law is not likely to protect you (in light of this decision).
Bottom Line Dept. Sometimes -- and this is often true for custom made-clothing -- there is little legal protection available to stop fashion copycats (though Congress keeps trying). Although big fashion houses can wield trade dress claims, smaller designers with limited sales can't count on IP law, and must rely on the loyalty of customers seeking unique craft skills and vision.

Wednesday, March 18, 2015

Little Rascals/Affordable Care Fair Use Question

Dear Rich: My original music video concerning the Affordable Care Act would illustrate the song's narrative with very short clips cut from online video: The Little Rascals from the 1950s, a major league pitcher 'doctoring' a baseball, documentary footage of an ambulance. Would these uses likely be considered fair use? 
If the clips are very short—just a few seconds—they would probably qualify as a fair use because you're using them for purposes of commentary. Of course, claiming the fair use privilege doesn't mean you won't get sued. And if you were sued, you'd still have to prove your claims in court, a stressful and expensive proposition. So, a more important question is whether the footage is recognizable to the copyright owner and whether the owner will learn of your use. In general, we believe that owners of copyrights in Hollywood studio films are among most likely to complain about these kinds of unauthorized uses. However, note also that the use of someone's footage for political purposes, particularly, to espouse a point of view contrary to that of the filmmaker may also trigger infringement lawsuits.

Monday, March 16, 2015

Should I Register My Domain Name as a Trademark?

Dear Rich: In your book on trademarks there is a discussion of whether you should register "" as a trademark if you've already registered "trademark." The example provided is a line of menswear that is now also going to be sold online. The conclusion is that you should consider registering the full domain name ( if establishing services or goods unique to the Internet business. Could you please explain why? If the PTO considers the ".com" piece of the trademark as unprotectable, what benefit would be gained by registering the full domain name? If you have a business that only sells online, should you register both "trademark" and ""? 
If you register a domain name as a trademark with the USPTO, you won't be able to claim any rights to the ".com" (known as a top level domain or gTLD) by itself. The USPTO considers elements of the domain address such as "http://" and  "www." and gTLDs as unprotectable features of the website address. Although they are unprotectable by themselves -- that is, you can't stop others from using .com --  a mark that combines these elements with a protectable term is registrable if it is unique to an Internet business.
More than an address. The main thing to keep in mind is that you should register the .com if it is more than an address, that is if it is a source-indicating trademark use. For example,, an online footwear and clothing company refers to itself as "" at its site. In this way,, like, is more than an address on the web, it's the brand itself. (The USPTO's Trademark Examining Rules for domain names are located here.) The benefit of registering .com depends on the company. Some want a deep trademark portfolio, one that enables the broadest claim to trademark rights. Amazon has registered over a hundred "Amazon" marks and about 25 "" marks (12 of which are still live). For smaller businesses, it may not matter much whether you register with or without the .com.
One more quirk. When registering a domain name, an applicant is permitted to furnish a drawing of the term within the address. For example, if registering, the applicant could furnish a drawing of the term "Amazon." (See TMEP Sec. 1215.02(c)))

Thursday, March 12, 2015

Five Lessons from the "Blurred Lines" Case

We've received many inquiries as to the verdict in the "Blurred Lines" case (in which a jury determined that the song, "Blurred Lines," written by Pharrell Williams and Robin Thicke, infringed Marvin Gaye's song "Got to Give It Up"). The jury awarded Marvin Gaye's heirs $7.4 million, reflecting the profits earned by "Blurred Lines," which (hard as it may be to accept) was the longest running number one single of the entire decade (racking up sales of $14.8 million copies). The case's outcome is dumbfounding, particularly for musicians. Hindsight, affording us excellent vision, reveals five lessons.
  •   Declaratory actions don't always succeed - The Gaye family didn’t file the lawsuit; it was Thicke and Williams who filed, using a procedure known as a declaratory action (used when a party has been threatened with a lawsuit and seeks a pre-emptive ruling). It's like the reverse Pacman strategy in which the pursued becomes the pursuer. The procedure has its advantages – Thicke and Williams got to pick the location for the case -- but the procedure can also backfire, as some legal experts believe happened here. By initiating the lawsuit, Williams and Thicke may have ruined the chances of a quiet resolution before the song became a super mega hit.
  •  Don't bother with the "high as hell" defense –Sometimes, one party to a lawsuit is perceived as a villain, and its all downhill from there. Thicke admitted during the trial that he wasn’t present when the song was written and was too high on Vicodin and alcohol to compose anything, anyway. That testimony painted him unfavorably as a lying pop star who wanted credit when the song was a hit but who denied liability when accused of infringement. Character judgment shouldn't be a factor when determining substantial similarity … but any case can get derailed when one party's veracity is put into question.
  • Don’t announce you want to copy someone’s song. Thicke told GQ Magazine, “Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye's 'Got to Give it Up.'  I was like, 'Damn, we should make something like that, something with that groove.” Similar comments were made to other publications. Later when asked by the Gaye Family lawyers what he meant, Thicke's defense was that his comments couldn't be trusted because he was “high and drunk” when he did interviews.
  • Don’t prevent jurors from hearing both versions. Many music listeners don't hear much similarity – aside from the uncopyrightable "live party" elements -- when comparing the recording of "Blurred Lines" with Gaye’s performance of "Got to Give It Up". But the jury never got the chance to make a similar comparison because they never heard Gaye's version. Lawyers for Thicke and Williams argued that Gaye deposited sheet music when he registered his copyright back in 1977 (standard operating procedure for the time) and therefore, the Gaye family’s claim could only be limited to the elements in the sheet music. In hindsight, limiting Gaye's claim to the sheet music may have worked against the "Blurred Lines" crew because it allowed the family's lawyers to take a non-holistic approach to the songs. Instead of getting a total feel for each song, the lawyers disassembled the sheet music and focused on eight distinct notated similarities.
  • Juries are unpredictable. 'Nuff said.

Wednesday, March 4, 2015

My Boss Made Me Appear in Yelp Commercial

Dear Rich: My employer at a small law firm has required his whole staff (about 8 of us) to appear in a Yelp commercial video. Please note that all the employees had no choice but to do it, and although we signed a release, no consideration was provided in exchange for the release. The day of the shoot, we all signed a release form (no one had to actually read it - just told to sign). My employer wanted me to speak on this video, even though I didn't want to. I was told we will get to edit prior to posting it on Yelp. I reluctantly spoke (and did a bad job so I could get edited out). I asked to view it right after my employer filmed me, and he said he was short on time, but that I could make edits to the final version. When the final version came out, I asked that very first day to be edited out on the part where I am speaking one-on-one (something that could easily be taken out without altering the rest of the company video). My employer kept saying "think about it," and that "I'm so pretty blah blah blah ask others opinion on it before wanting to be taken completely out." I told him its a personal choice that I don't want my face, name and video on the Internet so please remove it. Then two weeks later I saw that the final version still included me in it - and I requested over and over again not to post it until he removes me. He refused saying, "the window to edit is now over, and I'm too pretty to be cut out." I got upset and said I want to be cut out immediately. His response, via text, was: "You signed a release. You work for me. Case closed.” What do I do!? I don't feel comfortable and I feel violated! I know this will ultimately cost me my job, but this just isn't fair. I shouldn't be forced to be in it when so easily I can be cut out!
We sympathize with your predicament. Nobody wants their image used for purposes of commercial endorsement without consent. The purpose of a release -- assuming its drafted properly -- is to grant consent. We think that you're in a tough spot and may be bound by the terms of the release. Most courts consider a written agreement as the "final" statement on the deal and your release may even have a clause entitled "Entire Agreement" or "Integration" that guarantees this result. The fact that you didn't read the release (or were advised not to bother) does not excuse you from the obligation.
Duress? You also imply duress -- that you were pressured to sign. In a sense you describe a form of economic duress. That is, you'd lose your livelihood if you objected. But to prevail on a "duress" argument under contract law, you would  likely need more evidence of physical or mental coercion to demonstrate that your consent was not voluntary.
Consideration. As for additional consideration to sign the agreement, that's a tough call and may depend on your state law. In some states, such as Pennsylvania,  additional consideration by at-will employees may be required for certain agreements. In other states, like Wyoming, Colorado, and Ohio, it may not be required for contracts that establish non-competes (that is, keeping your job is sufficient consideration). (We're also not sure how much of this legal minutiae matters as we're assuming you don't want to take this matter to court.)
You're so pretty. We find your boss's comments about your appearance, such as "you're so pretty," as troubling but by itself, not enough to form the basis for a lawsuit.
For more information on using employee photos in social media, you may want to check out this blog post by one of our favorite employment law experts.

Monday, March 2, 2015

Quoting Dialogue From Raising Arizona in Novel

Dear Rich: I'm self-publishing my novel and I'm trying to track down Circle Films for permission to use four lines from "Raising Arizona." (I did get permission from the Cather Foundation to quote "My Antonia.")  The problem is, I can't even find a website for Circle Films. 
You might be able to find Circle Films information by signing on for an PRO subscription which offers contact information for producers and studios (the first month is free). Alternatively, you might try contacting producer Ben Barenholtz who apparently was the owner of Circle Films.
Why bother? After reviewing your use -- two characters talking about the film and quoting four lines of dialogue -- we don't believe permission is required. Yours is a classic example of fair use because you are using a small amount of copyrighted material for a limited and “transformative” purpose, something that authors who comment on pop culture (for example Elmore Leonard -- scroll down to "Spark") commonly do. Alternatively, you've taken so little from the movie it might qualify as a de minimis taking -- one that is so trivial that it shouldn't matter.

Wednesday, February 25, 2015

Do We Need Formal Contract for Private School Permission?

Dear Rich: I work for a fully online private school and am seeking permission to use images, videos, and links within the course. Do I need to have a formal contract with a signature confirming that permission is granted to use the item, or is it enough to have an email response saying that they grant permission for our suggested use? 
The copyright law says that you need a writing signed by the copyright owner or his or her agent to transfer or license any of a copyright owner's rights. The signature can be handwritten or it can be a digital or electronic signature. If the email contains permission and is "signed" by the person who has authority to grant rights, your collection of emails is probably fine for permission purposes.

Monday, February 23, 2015

Can I Make "Night of the Living Dead" Action Figures?

Dear Rich: Night of the Living Dead (the original film by George A Romero) is in the public domain. However someone trademarked Night of the Living Dead for action figures. If I wanted to manufacture action figures from the movie, would I be violating trademark law or would I be allowed to because the source material is public domain? Could I bypass it by calling the line "George A Romero's Night of the Living Dead"? Or "They're Coming to get you Barbara" with the tag line as Night of the Living Dead? Or am I just opening a can of worms not worth opening?  Normally you would need two permissions to sell movie action figures: permission from the copyright owner of the movie; and permission from the actor (referred to as publicity rights). Because Night of the Living Dead is public domain, there is no copyright owner from whom you'll need permission. However, you would need permission from the actors and it appears as if Sphereworx, (the company that has registered the trademark) has already acquired permission from the four actors used in their initial action figure release. So, besides the trademark issues (discussed below), you already face some major obstacles getting consent from the actors.
Using trademarks to protect public domain works. 100 years ago, the Supreme Court held that the title of a public domain book -- Webster's Dictionary -- also fell into the public domain and could not be protected by trademark law. The Ninth Circuit reaffirmed this rule in a case involving the John Wayne movie, McLintock. However, these cases involve someone claiming trademark rights in a book title for a competing book and a movie title for a competing movie. The rules are different if a public domain movie title is used for non-movie goods or services -- for example, It's a Wonderful Life is a registered trademark for lottery services. We can't predict the outcome of a case in which a public domain movie title is used to prohibit others from selling character merchandise ... but we doubt you want to pay to find out.
P.S. Speaking of salvaging from the PD, even Night of the Living Dead spawned a copyrightable slogan, "When there is no room in hell … the dead will walk the earth” (Dawn Associates v. Links, 203 U.S.P.Q. 831 (N.D. Ill. 1978)

Monday, February 16, 2015

Pre-roll Ads and Publicity Rights

Dear Rich: Our company posts news interviews online. Does the fact that we're using pre-roll ads require us to get waivers from our interview subjects? 
Whether you need to obtain a waiver/release depends on why you want to use a person’s name or image. If your use is for commercial purposes—for example, using the interview as part of an informercial—you need to obtain a release. If your use is for editorial purposes such as a news interview, you probably don't need a release. We don't think a pre-roll -- those 10 second ads before YouTube videos -- converts a news interview into a commercial purpose (any more than running an ad before a 60 Minutes segment). No court has ruled on the issue and if you’re concerned about liability, you can always talk to the person ahead of time — and video the subject's consent. We've written more about interviews and releases here.

Friday, February 13, 2015

Can We Copy Textbook Chapters?

Dear Rich: The Vice President of Academic Affairs of the two-year state technical college I work at told all Program Chairs it was ok to copy and attach "a chapter or two" of their course's textbook and attach it to their learning management system (ANGEL) "if students are having difficulty obtaining a textbook." Is this justification, or action, permitted under the educational fair use of copyrighted materials? As a result, some faculty are copying many chapters of a given textbook and posting to the LMS. Do you have any specific examples, or documented cases, where this type of justification (students do not have access to a textbook due to bookstore shortages or late distribution of financial aid awards) that is permissible? Permission must be obtained from the copyright owners of the textbooks for the type of wholesale copying you’re describing. It sounds like your college is, in essence, creating digital coursepacks. This is not a fair use. Educational fair use guidelines established by publishers and the academic community do allow some limited copying by teachers for classroom use. But these guidelines do not permit the copying of multiple book chapters you’re describing. You can read more about them in Copyright Office Circular 21. Answered by Stephen Fishman, author of The Copyright Handbook: What Every Writer Needs to Know

Wednesday, February 11, 2015

Who Owns Gameplay in Video Game?

Dear Rich: If I screen capture while playing a video game like Call of Duty, who owns that? I know I don't own any rights to the video game itself but can I stop someone else from copying or showing my screen cap of how I played the game? 
In order for you to stop someone, you have to be able to demonstrate you have some proprietary rights in what was captured on screen. We doubt whether your gameplay -- absent any additional content -- amounts to copyrightable authorship. The issue first came up in 1983 when the Seventh Circuit Court of Appeals held (in a dispute over an unauthorized chip board) that just because the Pac Man game had an interactive multiple choice storyline did not move the copyright from the manufacturer to the player. In other words, the user "plays" the game; the user doesn't create content (although there may be an exception in the case of custom-created avatars or similar modifications). By analogy, courts have held that participants in sporting events -- no matter how accomplished, graceful, or skilled -- cannot claim copyright in their play or in specific moves they make. (See National Basketball Association v. Motorola). If this isn't what you wanted to hear, keep in mind that there some who believe games should not be protected by copyright at all!

Monday, February 9, 2015

Wants to Claim Copyright and Sell Public Domain Photos

2014 Winner of Best Public Domain Gif
Animal Category
Dear Rich: I have a souvenir photo book (images of public buildings, gardens, outdoor scenes) which I purchased over 30 years ago. It was published prior to 1923 (now part of the public domain, as I understand it). The book has no printed credits or copyrights, no info on who photographed the images or published the book. An Internet search has turned up one other copy of this book – it is in a USA university collection. The pages have been scanned and included in the university library’s digital collection; they have assigned a copyright to their scanned images; the digital images are available for purchase through the university. I would like to scan my copy of this book and use the images in artistic works and derivatives to sell, as well as offer the scanned digital images for sale. Would I be within my legal rights to copyright my scanned images from this book and use/sell them?
You can scan, copy and sell the images in the book but you could not claim a copyright. Because this book was published before 1923, it is in the public domain in the United States (however, it could still be under copyright in other countries). An exact digital scan of a public domain book is not copyrightable, just as a Xerox copy of a book is not copyrightable—both lack sufficient creativity to qualify for copyright protection. You are free to make a scan of your copy of the book and sell or otherwise make use of it. The university’s copyright claim in the scan they made is spurious. Unfortunately, false copyright claims like this are made all the time. Answered by Stephen Fishman, author of The Public Domain.

Wednesday, February 4, 2015

Do Progressive Downloads Infringe Copyright?

Dear Rich: There are plenty of websites that provide pirated streaming tv shows and movies. These videos are not live streams, but they are known as "progressive" downloads. My question is: Are the viewers of these streams violating copyright law? And if they are, have content owners gone after the viewers who watch the pirated streams of movies and shows? Has the U.S. government criminally prosecuted viewers for just watching?
As the name "progressive download,"suggests, a media file is downloaded progressively so you can begin watching it once a substantial portion has been stored on your device. Though there are differences between streaming and progressive downloading -- you can't fast forward through a video segment until that segment has been progressively downloaded -- most consumers consider progressive downloading as a form of streaming.
Will they hunt me down? Legal arguments have been offered that unauthorized progressive downloads may not constitute infringement (or that they qualify as a fair use because of their temporal nature). We haven't located any federal caselaw that specifically states streaming or progressive downloads constitute an infringement but we believe that the verdict in federal courts will be infringement. As for getting hassled, the trend is away from pursuing end users. Federal government prosecution is fairly rare and a 2011 bill to make illegal streaming a felony failed to pass (though the content owners keep trying).