Wednesday, June 19, 2013
Another Band is Selling Our Jams
Anti-bootlegging law. It's true that copyright only protects "fixed" performances -- works that are considered "sufficiently permanent" to be perceived and communicated. And the "fixer" -- the party who records it with authorization -- is often presumed to be the author or co-author of the sound recording copyright (although not the author of the underlying song composition). In addition, in 1994, a new law was adopted -- anti-bootlegging legislation that prohibits someone from making unauthorized recordings of live performances and transmitting, duplicating, or "trafficking" in the sounds on that recording (see 17 USC 1101).
Did Band 2 violate the anti-bootlegging law? We know of no cases similar to yours -- where someone makes an unauthorized bootleg recording and then constructs a new recording (without using any sounds from the bootleg) that is similar to the unauthorized bootleg recording. We doubt whether this constitutes a violation of the anti-bootlegging law because Band 2 is not distributing the unauthorized recording to the public -- they're distributing their own recording. We think any claim regarding infringement of sound recording copyrights is going to be difficult to make. We think you'd be better off focusing on infringement of song composition copyright. (You can read about the differences between the two copyrights here).
The song composition copyright. If Band 2 registered the song composition at the U.S. Copyright Office (and you can check the records here), and Band 2 listed themselves as authors of the composition, that may amount to fraud on the Copyright Office. (Band 2 can't be the authors if they've pilfered the song from Band 1). We're also not clear about how much of this is an unprotectable "jam" and how much is a protectable "composition." That is, if you are registering a song, you can stop others from using some combination of elements such as bass parts, chord structure, lyrics and melody lines. You may not be able to stop the use of other combinations or elements, such as harmonies, drum parts, or common chord structure such as a standard 12 bar blues progression. Assuming Band 2 took enough to claim an infringement of a song by Band 1, we'd recommend using the original live bootleg recording (which you state you have a copy of) to register the work at the Copyright Office and then pursue a claim of infringement of the song copyright. Because the facts on this are so unusual, we'd welcome any reader comments.
Tuesday, June 18, 2013
Song Titles as Chapter Headings
Monday, June 17, 2013
Is it Illegal to Own a Knockoff Purse?
Knockoffs ≠ counterfeits. Although many people use the terms interchangeably, knockoffs and counterfeits are not the same. A knockoff purse resembles another company's purse but doesn't use the names or trademarks. For example, a knockoff purse would lack the Chanel Double-C logo (left). Counterfeiting is the act of making or selling lookalike goods or services bearing fake trademarks, for example, a business deliberately duplicating the Chanel trademark on purses.
Likelihood of confusion, the basis for a trademark infringement claim, is self-evident in counterfeiting, because the counterfeiter’s primary purpose is to confuse or dupe consumers. But unlike typical trademark infringement, even when a buyer knows that the product is a fake, the business is still liable for counterfeiting, because the product can still be used to deceive others.
Trafficking is the crime. It's a federal crime to traffic in counterfeit goods. According to federal law, the term “traffic” means to transport, transfer, or otherwise dispose of, to another, for purposes of commercial advantage or private financial gain, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or otherwise dispose of. Because customs officials are only interested in trafficking, they crack down on large shipments but allow a U.S. citizen to bring in one counterfeit product per class (scroll to Section (d) Exemptions).
Book Alert! And if you're looking for a noir-ish mystery in which counterfeit goods are the root of all evil, check out The Accident: A Thriller
.
Friday, June 14, 2013
How Do You Protect a Pilot Pitch?
Putting together the pitch. There's a lot that goes into a TV pilot pitch: an outline, production costs, loglines -- short summaries of several episodes -- and sometimes a sample script. All of these elements can be protected by copyright and you can chase anyone who reproduces these elements using copyright law but ...
Protecting ideas. The trouble with relying on copyright protection is that it won't protect your underlying ideas -- the kernel on which the pitch is based. For example, the idea of an African prince coming to the U.S., losing everything, and being forced to fend for himself in an urban environment, is not an idea that can be protected by copyright. The people who submitted this idea to Paramount studios were not paid when the movie, "Coming to America" was produced. They were able to achieve a small victory when they sued under a theory -- not copyright -- that a contract was breached (the option agreement that Paramount and the writers had signed).
The implied contract. Unfortunately, not everyone pitching an idea signs an option agreement. So lawyers became more creative and subsequent idea-theft cases expanded the theory to "implied contracts." That is, the idea for a dance competition show was submitted with the understanding of being compensated, even though there was no written contract. Ditto for a pitch that turned into a show called Royal Pains. These implied contract claims often fail or are settled as nuisance lawsuits (it's cheaper to settle than deal with the court case). And those that succeed usually take years before a recovery or settlement. For that reason, the best protection is some form of documentation like an option agreement. Studios or producers are wary, particularly if the idea is unsolicited or the person making the pitch is unknown. For that reason, lawyers believe the best strategy is to avoid pitching an idea until the other side conveys some interest in hearing it and it is clear that the arrangement is for compensation. And of course, document all of this. (Here's a previous entry, and another on idea submission protection -- and here's an article on the history of this type of protection.)
Thursday, June 13, 2013
Happy Birthday Lawsuit
Can We Use Famous Person's Name in Documentary Title?
Trademark rights. We think you mean "How do we register the name of our documentary as a trademark?" The answer is that you cannot federally register a single title for a book, documentary or fiction film as we discussed in a previous entry.
Wednesday, June 12, 2013
Can We Use Author Photos and Quotes?
Creating a logo inexpensively. Have you tried typing "create company logo" into your search engine of choice? You should find many businesses that advertise this service for under $50. Our caveat is to avoid using a logo that resembles a competitor's trademark. Learn more about trademarks here.
Can you post a picture of an author and/or quotation? The quote will be fine (read more here) but you may run into problems if the photo of the author is protected by copyright (see below).
Can photos be used that show up in Google Image searches? Copyright law -- we're going to assume you're not familiar with the principles -- enables the copyright owner (often the photographer) to stop others from using the image without permission. So, if you use an image that shows up in Google Image Search and it is protected by copyright, the owner can hassle you and possibly seek compensation for the unauthorized use. (You'll note that when you click on an image in Google Image Search, you may see the message "Images may be subject to copyright.") You don't need to ask permission for images that are in the public domain, a status achieved by old age (or related factors -- for example, if the copyright owner has dedicated the work to the public domain). Alternatively, the owner may retain ownership but permit commercial uses under a Creative Commons license (attribution is typically required). In either case, the rules are complex and often confusing. Some sites offer a wealth of public domain materials and others claim to offer "copyright-free" materials although the pedigree is sometimes difficult to verify. Usually the safest route is to pay for photos at a site such as istockphoto.com. For more specific information, we suggest you hop on your favorite search engine (or pick up our book on permissions).
Tuesday, June 11, 2013
Will We Get in Trouble for Sports Celebrity Prints?
What about the gray areas? Things get tricky at the intersection of communicative and commercial uses -- such as limited edition art prints. In that situation, a ten-year old Ohio ruling favors your friend. An artist painted Tiger Woods at the Masters Tournament and later sold more than 5000 prints of the image superimposed with other great golfers. (Here are some details on the artwork). A federal court of appeals ruled that the sale did not violate Tiger's right of publicity. A related ruling regarding paintings of the University of Alabama's football team -- though it dealt more with trademarks than the right of publicity -- also was in favor of the artist. Both of these cases took years and a great deal of attorney time and fees to decide. So, although the law may be on the side of your friend, that doesn't mean he can't be dragged into court to defend his rights.
No copyright infringement. Also, we're assuming that the prints being sold are made from your artist friend's original paintings. If the paintings are by another artist, or if they are based on a photographer's original photos, then your friend could be hassled for claims of copyright infringement by the original artist or photographer respectively.
Monday, June 10, 2013
LLC Doing Business Out of State
What's typical? Most LLCs (and corporations) are organized in one state and may or may not have to register ("qualify to do business") in other states. The state in which the LLC is organized is usually the state in which it has its principal place of business or where some or all of the owners live. If the LLC plans to do business in other states, the LLC must qualify in those states. Keep in mind, your LLC must only qualify in other states if it is engaged in intrastate commerce, not if it's engaged in interstate commerce. (This article explains the distinction.) If the only connection that your LLC has with Colorado is that an owner lives there, that would not be a basis for qualifying to do business in Colorado. If, on the other hand, you operated stores in Colorado, you would likely have to qualify.
What does it mean to qualify to do business? "Qualification" refers to a registration process that
involves filing paperwork and paying fees—similar to the procedures and fees required for incorporating or forming an LLC. You must also designate a registered agent—a resident person or company in the state who agrees to accept legal papers on your behalf in the state. The qualification fees range from $100 to $300 or more (depending on the state). Your Secretary of State can fill you in on the requirements.
Other filings ... Because we're not clear where and how you operate your business, we're not sure what other filings you will need to make. LLCs, unlike corporations, do not pay income taxes. The owners must declare the LLC income on their personal returns. However, it's not always this simple -- for example, many states require qualifying LLCs to withhold state income tax from their profits. Consult a tax professional for the best course of action.
BTW Dept. We're the co-authors of an eGuide on the subject of out of state business. That guide provides more depth if you need it.
Friday, June 7, 2013
Copying Dragnet: Risk v. Public Domain
Proving publication ... Steve Fishman, author of The Public Domain (of which we are the editors) does recommend a conservative course of action when using TV series from the 1950s and 1960s. That view is based on the confusion as to whether syndicating television shows is a "publication," triggering the renewal requirement. Two courts have ruled that syndication agreements where there is no copying does not amount to publication. (Broadcasting the original shows is not considered publication.) Fishman writes that "[T]he riskier course of action is to rely on the assumption that programs syndicated in 1964 and earlier have been published for copyright purposes. Therefore, if they were syndicated before 1964, they had to be renewed 28 years later or they entered the public domain."
That Said Dept. We respond to a lot of queries regarding the public domain and often we respond based on a risk analysis -- how likely it is that we think the reader will run into a problem. We believe these Dragnet episodes fall in a middle-world between public domain and copyright-protected -- a place where orphaned works live or where rights are not clear, and as a result, where owners don't appear to enforce copyright claims. We must add that the fact that many people distribute these episodes without apparent consequence is not a guarantee of future behavior (nor can we comment on the moral consequences of these uses) but the risk of copying the Internet Archive episodes or those duplicated by public domain vendors seems substantially lower than copying those episodes legitimately licensed by the copyright owner.
Thursday, June 6, 2013
Wants to Excerpt News Articles
Wednesday, June 5, 2013
When Co-Author Credit is Removed
Dear Rich: Authors A, B, C, and D are researchers who together write Article X that is published in Journal Y. Authors A, B, C, v D also write a report for Foundation Z, which funded their research. The report goes unpublished except for on the Internet. Later, Authors A and B decide to coauthor a book. Authors C and D will not author anything in the book. Authors A and B have permission from Journal Y (the copyright holder of Article X) to reprint that article in the book. Authors A and B would also like to reprint or adapt parts of the report written for Foundation Z. Do Authors A and B need to obtain permission from Authors C and D to reprint or adapt sections of the report written for Foundation Z? Is it considered plagiarism that Authors C and D are coauthors of Article X but not of the reprinted version in Authors A and B's book? If so, is there a cause of action that Authors C and D can pursue against Authors A and B? Wow, that's a lot of ABC's! We’re assuming that the researchers were independent contractors, not employees of the foundation and that you all assigned your interests in the article to the journal and the foundation.Okay so far ... If this is accurate, and the journal and foundation own their respective copyrights, you don’t need permission from Authors C and D to reprint or adapt portions. Authors C and D no longer have copyright in those works. If, however, the co-authors own the copyright in the foundation report, then the co-authors are co-owners. In that case, you can still reproduce the report without the consent of C and D, assuming you're not contractually bound otherwise, and provided that you share your book revenues with C and D based on the value of their contribution. (Yes, we know ... good luck figuring that out!)
Credits. Although copyright law does not require attribution, Authors C and D may still have a legal claim if their name is removed from the article, particularly if C and D can prove that removing their names caused injury to C and D's professional reputation or that you had an agreement to share credit. This is important if you work in a field where credit for publications is crucial for job advancement. You can avoid the potential hassle by crediting the article and the report in the same way as they were originally published (By the way, most copyright experts agree that making a work publicly available on the Internet is a form of publication.)
Tuesday, June 4, 2013
Can We Use Amazon Reviews in Our Product Ad?
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| what a bank employee once told us ... |
How does Amazon get away with it? Amazon requires that users assent to its Conditions of Use in order to post a review. Those conditions state: "You grant Amazon and sublicensees the right to use the name that you submit in connection with such content, if they choose."
What can you do? The safest route would be to use short excerpts from the reviews -- say 20 words or less -- and to avoid identifying the reviewer. Definitely don't use last names or screen handles, avatars, etc. First names and initials are probably fine unless they're so unique as to identify the person.
But what about what Amazon does on Facebook? There's a whole different set of rules when Amazon pays Facebook to use your name and endorsement on products.
Monday, June 3, 2013
Can We Share Songwriting Money With Non-Writers?
book.It’s the law. Listing the correct co-authors on the application – that is, the persons who made material contributions to the songwriting -- isn’t just a matter of fairness, it’s the law. Making false statements – if they are discovered -- may be labeled as fraud on the Copyright Office and could invalidate the registration. Of course that hasn’t prevented abuses – for example, some performers have demanded and gotten songwriting credit as a condition of performing a song.
Friday, May 31, 2013
Dragnet: PD or not PD?
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[See our update on this entry] Dear Rich: Who owns the rights to the Dragnet TV series from the 1950's? I understand it was owned by the Jack Webb estate after he passed away in 1982. I am trying to find out if the original prints or negatives of these shows are available to be put on DVD or Blu-ray. I know that the copyright for some shows has run out but the copies available are old 16mm TV prints, I am interested in the 35mm originals. Some (or all) of the 1950's series episodes of Dragnet appear to be in the public domain, probably because of a failure to renew the copyright. According to our friends at Wikipedia, "Most, if not all, episodes of this [1951] series have become public domain, and fifty-two episodes have been released by many DVD labels." The public domain status is reinforced by the fact that 64 episodes of the 1951 series are available at the Internet Archive. Because there were 276 episodes in the 1951 series, its not clear why the remaining episodes aren't available. Either: (1) they're not in the public domain, (2) Mark VII Limited (the production company that owns the shows) has never released them for distribution, or (3) copies of the episodes don't exist anymore. (BTW, the 1967 series is under copyright.) (Previously, we wrote about the public domain status of the Dragnet theme song and radio show. )
Thursday, May 30, 2013
Wants to Protect Sneaker Design?
When copyright isn't enough ... Copyright canot protect useful objects, so if by "design," you're talking about the design of the sneaker, itself -- toe patterns, side stripes, stitching, tips, number and placement of ringlets, appearance of the tongue, color of the laces, etc. -- then you want to consider the protection afforded by design patents. That's the approach taken by shoe makers such as Nike, Reebok, AVIA, Asics, LA Gear, Rockport, Sketchers, Wolverine, Keds, Louis Vuitton, Timberland, Berluti, and Kangaroos.
Tuesday, May 28, 2013
What's the Right Patent Royalty?
The trademark licenses. When a company wants to license trademarks and patents, it's not unreasonable to set separate royalty rates for the trademarks. That way, if the trademark goodwill outlives the life of the patent -- for example, as with a product such as Scotchgard -- the trademark owner will still receive revenues, despite the lack of patent protection.
Two tiers. In previous entries and in our licensing book, we have suggested a two-tiered royalty for patent-pending products: one rate if the invention acquires patent protection; the other rate if the USPTO won't issue a patent. This often works when a product's success is tied to a first-to-market strategy.
Will your NDA protect you? If the company wants a single royalty -- they're saying that they will only license the product if the patent is granted -- then you need to re-group. If the product doesn't get a patent and it still has commercial potential, can the company go ahead with production and cut you out of the picture? Will your NDA protect you if, during the patent process, your patent is published as typically happens after 18 month -- and it's no longer a trade secret? Does your NDA prohibit the company from selling your product if it doesn't enter into a licensing deal? These are issues where an attorney's analysis may prove helpful.
Wednesday, May 22, 2013
Bird Feeder: Patent or Copyright?
Design patents. Inventors use design patents to protect the appearance or design of a functional object. Some examples of bird feeder design patents are this one and this one. Read more about design patents.
Utility patents. Inventors use utility patents to protect bird feeders with unique functional features -- for example, this squirrel-repelling feeder or this squirrel-repelling feeder or this squirrel-repelling feeder (whoa that's a lot of repelled squirrels). Read more about utility patents. (Also you can preserve your place in line at that Patent Office without filing a full patent application by filing a provisional patent application.
Trade secret. Some inventors seek to protect their rights when submitting ideas by using nondisclosure agreements (NDAs), thereby preserving trade secrets. The problem for inventors is that often the evaluating company won't sign the NDA because of concerns that they'll be precluded from developing similar ideas. Read more about NDAs and trade secrets.
Tuesday, May 21, 2013
Is Inventor's Lab Subject to Zoning Laws?
Get in the zone. The purpose of zoning rules is to help maintain the peace and quiet of residential neighborhoods. To find out where your community falls on the issue, read your local zoning ordinance. You can obtain a copy from your city or county clerk’s office or your public library. Zoning ordinances are worded in many different ways to limit businesses in residential areas. Some are extremely vague, allowing “customary home-based occupations.” Others allow homeowners to use their houses for a broad but, unfortunately, not very specific list of business purposes -- for example, “professions and domestic occupations, crafts and services.” Still others contain a detailed list of approved occupations, such as “law, dentistry, medicine, music lessons, photography, cabinetmaking.” Whether inventing falls within one of these categories is usually unclear -- meaning it may be difficult or impossible to know for sure whether your local zoning ordinance bars home inventing businesses. Most ordinances prohibit activities that cause excessive noise, pollution, waste, odors and similar conditions not appropriate in a residential neighborhood. The important factor in zoning disputes is usually not the rules themselves, but maintaining peace with your neighbors so that the rules don't become an issue.
Public nuisance and other law. Keep in mind that even if your community doesn’t have restrictive zoning laws concerning home businesses, it could take legal action against you if you make a nuisance of yourself -- that is, do something that may harm public health or safety; for example, creating excessive noise or offensive odors, or storing hazardous chemicals or waste ... or starting fires. In addition, your invention business may be limited if (1) there are restrictions in a lease (if you're renting), or (2) there are restrictions in your community's CC&R's (if you live in a gated community).
Monday, May 20, 2013
Bringing in a Musician After the Song is Written
Three things:
- There's a difference between sharing co-writing copyright credit and sharing revenues. Only someone who has materially contributed to the writing of the composition is entitled to copyright co-ownership. On the other hand, you're free to share your songwriting revenues with anyone.
- A lot depends on how you structure the music publishing. We can't go into the gruesome details here but you can learn more about music publishing (and see examples of royalty splits for a band) in our Music Law book (or check out Randy Wixen's
- There are no fixed rules for dividing songwriting revenue.
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