Friday, August 29, 2014

Can I Record Books For My Students?

Dear Rich: I am a fifth grade teacher with five reading classes per day. Each of these classes contains a wide variety of reading abilities. When I assign a class novel, I distribute a book to each child (our media center has enough), but I also want to record myself reading the novel so that students can listen and follow along. For most of our novels I can find the audio version online, purchase it, and there aren't any issues (due to the fact that the book was already purchased and the child listening as he reads doesn't take away from potential profit from the publisher). Also, we can legally use recorded material for students with disabilities anyway. However, the current class novel has no published audiobook. Research shows that students who read the text silently as it's read aloud to them improve their ability to understand new words and build fluency. However, I don't have the energy or vocal strength to read two or three chapters five times per day. I want to simply record myself reading at home, place my own personally recorded music below it for effect (I hold the copyright on the instrumental music), and then allow my students to listen to the recording while reading along. Another advantage is that students can hear the book read to them while reading along, but by using headphones they won't disturb others who are working in groups or working with me (which frees up my time to help students with various skills). Since there isn't any potential loss of profit for the publisher, am I within my legal rights to record the book to CD (for classroom use only)? You make a persuasive argument and if it were up to the Dear Rich Staff, we'd stamp APPROVED on your project. But copyright law is a little less forgiving and a little more complicated than you might think.
Audio books for disabled students. You state that you can "legally use recorded material for students with disabilities." In 1996, a copyright exemption was created that permitted recording of copyrighted books without permission of the copyright owner for use by visually and physically handicapped people. However these recordings could only be made by "authorized entities" and must be stored in a particular format -- currently a digital format accessible to users with special computer programs or equipment. For the most part, the primary authorized entity is the National Library Service for the Blind and Physically Handicapped (NLS) which creates and distributes thousands of audio and braille books (including books like Catcher in the Rye -- original cover shown above -- for which the authors have refused to permit audio recordings). Based on the language of the exemption, we don't think your intended recordings would qualify under this exemption.
Listening while reading. We're not clear what you're doing when you purchase an audiobook and allow the student to listen while reading the print copies. If you're playing a compact disc recording or a single digital recording, that's fine. But if you're making copies and distributing them to students, that would be a violation of copyright law.
Your recordings. We're also unsure about your position that "there isn't any potential loss of profit for the publisher." We think that publishers would feel differently. For example, many publishers sell print and audiobook combinations through Amazon's Whisper Sync program, and although they may discount one version, they rarely give the audiobooks (or print versions) for free. In other words, just because the publisher makes money off print, doesn't mean it gives up making money off the audiobook to the same customer.
That said, Dept. Although we think you are violating copyright law with your homemade audiobooks, we wonder about the likelihood of getting hassled. That is, will a publisher find out about your use and care enough to hassle you? We imagine that if you maintain a low profile and don't distribute your work beyond the classroom, the audio books will end up being your little secret.

Wednesday, August 27, 2014

Who Owns Volunteer's Website Content?

Dear Rich: I wrote for a website for many years. It was on a volunteer basis - I wasn't paid. I am now starting up my own website. I would like to repost many of my stories on my own site. Can I do that? Do I own the copyright for the material I wrote for the other site? Do I have the right to request that the other site take down my material? Assuming (1) you never executed any agreements with the website, (2) you weren't an employee of the other site, and (3) you didn't co-write any of the articles with someone else, then you would own the copyright in the material you created. That gives you the right to reproduce your stories wherever you wanted.
The other site. We don't know what your arrangement was with the other site but you may have created an implied license based on your behavior. That is, the fact that you posted at the other site, implies you granted them a right to display the material. If there is no implied license (and no evidence granting rights to the other side), you can ask to have your copyrighted materials removed.

Tuesday, August 26, 2014

Who Pays for Performance of Cover Songs?

Dear Rich: I’d like to start a top-40 band that will play mostly cover songs to make money while we work on our own material. I know that when music is performed, the owners and publishers of the songs played are entitled to be compensated for each performance of their song. When our band starts performing at colleges, weddings, and social clubs, who is responsible for obtaining performance rights and paying the royalties on the cover songs we plan to play? The venue, not the band, is responsible for paying for the public performance rights. Most venues have what are known as "blanket licenses" that permit performances of a wide range of licensed music for a fixed annual fee.

Monday, August 25, 2014

Proposed Fair Use Guidelines

Dear Rich: We recently created a series of free-to-view educational webinars with an educational institute, which we would like to post online in a secured environment. The educator has included numerous images of artwork that is under copyright. Under the proposed fair use guidelines, educators, scholars, and students may use or display digital images in connection with lectures or presentations in their fields, including uses at noncommercial professional development seminars, workshops, and conferences. Are we able to use this material without getting copyright permissions for each individual artwork? As we explained at our Stanford postings, the proposed guidelines, because they were never approved,  provide a ballpark idea of what may be permissible. They can help educators and judges chart a fair use course, and their existence might deter a copyright owner from filing a lawsuit, but most importantly, they represent the collective understanding of a group of scholars as to what constitutes fair use under certain circumstances. So, even though it's gray world when it comes to these two-decade-old proposed guidelines, there is reasonable support for your position. If we were a betting blog, we'd bet you won't get hassled for your use. By the way, there are many types of fair use guidelines and you can access them at Columbia's website.

Thursday, August 21, 2014

Can't Put on Show Without Finding EIN!

Dear Rich: Our local community college wants to put on a musical. The rights are controlled by a New York based company that refuses to furnish a Tax I.D. Our institution is prohibited from paying without that Tax ID. This question takes us a little out of our bailiwick, but if it means we can help put on a musical, well, what choice do we have? You might want to start by getting the proper corporate name of the business by searcing the New York Secretary of State's website. We don't think the company you mentioned is publicly traded, but if it is, you can search the SEC's EDGAR database for filings. (The Employer Identification Number (EIN) is usually on the first page of major SEC filings.) If it's not publicly traded, you may have to use a fee-based EIN-searching database like or, both of which often provide a few free searches before making you sign up. (Westlaw and LEXIS also provide EIN searching). We're also informed, though we haven't verified, that you can learn a company's EIN by calling the IRS's Business and Specialty Tax Line (800-829-4933).

Wednesday, August 20, 2014

Can I Sell Dolls Made From Pattern

Dear Rich: I recently bought a crochet book about making dolls. I was just wondering, if I make the dolls from the book and sell it, is that illegal? I see it as having paid for the rights to use the book but I don't know if it really works that way. You're not infringing copyright if you make and sell dolls based on the patterns from the book. Or put another way, a pattern maker may obtain copyright over the pattern but not the article manufactured from the pattern. If that weren't the case, we might not have the Paint By Number Museum.
P.S. Paying for the book doesn't give you any rights except the right to re-sell (or destroy) the book.

Tuesday, August 19, 2014

Life After Reversion: Who Gives Permission?

Dear Rich: I want to reuse a table or image from the second edition of a book. Copyright for the fourth edition of that same book has been transferred back to the author by the publisher. Would I go to the publisher or the author for the permission? Are there cases where a publisher retains rights on some editions and not others? We think the author is probably the one to give permission (assuming the author still retains copyright). However, there are a couple of caveats.
Authors and copyright. Sometimes authors retain (or obtain) copyright ownership of a work but exclusively grant all rights to their publisher. In that case, the book may state "© Author" but permission would be granted by the publisher. (That's the way publising contracts often established rights pre-2000.) So, it's possible that either the publisher transferred copyright back to the author but retained exclusive rights over the text, or the author granted exclusive rights to a new publisher and retained copyright. Check to see who the publisher is for the fourth edition. If the work is not self-published, you may need to ask the publisher.
Authors and reversion. More likely, copyright returned to the author under a principle known as reversion. The author's contract  may state that if the book is out of print, or sales are below a certain amount, rights revert to the author. In that case, the ex-publisher gives up all rights to previous editions (except perhaps the right to sell out remaining copies). Assuming the author created the table and image (and claims them under copyright ), then the author would have authority to grant permission. If you're using a permission agreement (and especially if you're paying for permission) ask the author to warranty ownership of rights. A warranty is a contract promise you can include in your permission agreement --- something to the effect of "the Author has the authority to grant the rights granted in this agreement."

Monday, August 18, 2014

Celebrity Height Index

Dear Rich: I've created a list in ascending height of interesting athletes, celebrities, and historical figures. Here are some examples of figures on the list: George Washington, Peyton Manning, Marilyn Monroe, Albert Einstein, etc. I've also included some well known literary characters such as Dobby from Harry Potter and Oompa Loompa from Willy Wonka and the Chocolate Factory. All told, my list consists of 42 different figures ranging in height from 3' to 6 1/2' I'm printing the list on a wall decal and plan to sell it in toy stores for children to measure their height against. Do I need permission from each height entrant before I can include them on the list? Can I copyright the list so others can't recreate it? You don't need permission from celebrities to list their names and heights. Permission is not needed for "informational" uses -- for example, posting sports figures and their stats at a website. You would need permission for photos that are not in the public domain.
Can you stop others from copying your list? If it's just a list of names and heights, you probably can't stop others from copying. Facts such as height measurements are not protected under copyright ad compilations of facts may be protected if the choice and collection demonstrates substantial creativity. We can't say for sure whether your chart qualifies, but the Supreme Court has ruled that alphabetic listings don't merit protection so we doubt whether numeric charts qualify. Still, compilation protection is complicated and we could be wrong so you may as well include a copyright notice and pursue registration. Of course, you can always protect original graphic imagery included with your chart.

Thursday, August 14, 2014

Politicians and Right of Publicity

Dear Rich: I have an idea for a product both practical and humorous (to some, at least). It does however use the likenesses of political figures. Do politicians have any claim to likeness rights? If so, what are they? The right of publicity -- the right to prevent others from using your name, image or personna for commercial purposes -- extends to all people (and yes, politicians are people). However, we don't think you will get hassled for two reasons. First, politicians have historically been hesitant to hassle merchandisers because of the possible political fallout. Second, politicians usually don't want to get entangled in the first-amendment arguments that arise when a merchandiser fights back. (For example, the maker of a Governor Arnold Schwarzenegger bobblehead argued that his product was a three-dimensional political cartoon.)
P.S. Even presidents sometimes wade into the merchandising free-for-all (yes, presidents have a right of publicity as well).

Wednesday, August 13, 2014

Wants to Use Movie Images on Tarot Cards

The Lovers as inspired by
The One I Love

Dear Rich: I am creating a Tarot card deck that is made from original paintings of famous people, or movie scenes all based on photos. I'm not sure how much is infringement or fair use, or do I need permission for each card, or can it fall as "Parody"? I intend to self publish this deck but would like to know the "risk " involved. We've taken a look at some of your samples and we think the risk meter is low for your Tarot deck. As you're probably aware, the underlying concepts of the various cards (or visualizations) are not proprietary and the most famous set of visualizations is in the public domain
Your imagery. Thanks for letting us see your deck. Most of the underlying (original) photos are copyright-protected and you would need permission unless you could claim fair use. You have a reasonable fair use defense based on your distinct style and transformative use (although the cards would probably not qualify as parody). More important than a fair use defense, we doubt whether the copyright owners (should they see your cards) would go after you because of the probability of a Pyrrhic victory in court. Our conclusion might be different if all of the cards were from one movie or TV show, or if the cards were licensed by a large manufacturer with a substantial ad budget. But you should be secure with a self-published set.
P.S. Dept. You inspired us to create a Tarot card dedicated to a movie we saw recently.

Tuesday, August 12, 2014

Should We Use "All Rights Reserved"?

Dear, Rich: I work for a company that is writing course content that will be sold to schools. We are in the process of seeking permission for all copyrighted items, and are providing attribution under the images from the public domain. In addition to providing the author’s name and license information (where applicable), is it safe to write “All rights reserved” for all images even if they are from the public domain? We don’t want students to think they can use the images for other purposes just because we have permission to use them in a specific way, but we don’t want to restrict rights on images that don’t require restriction. Is it ever problematic to write “All rights reserved”? Publishers and content providers have adopted the phrase "All rights reserved" as a conventional but toothless type of copyright notice. In other words, it can't hurt but it has no legal effect. (The use of “All rights reserved” was once required as a condition of copyright protection in certain South American countries but that's no longer the case.) We can understand your desire to limit duplication for licensed works (the ones for which you sought permission) but unless the person licensing the work requires a credit, warning, or other statement, you don't really need to provide the notices. As for placing the warning on public domain images, that seems like overkill and implies that you have rights in the public domain works when you really don't.

Monday, August 11, 2014

Wants to Use Wally the Green Monster™ on Onesie®

"I am not a monster."
Dear Rich: My friend at work commissioned me to make a onesie with "Wally the Green Monster" the Red Sox mascot. Is this a copyright infringement? Surprisingly, you're more likely to get hassled over your use of "onesie" than Wally. That's because the term ONESIE ("an infant's one-piece close-fitting lightweight garment, usually having sleeves but leaving the legs uncovered and fastening with snaps"), is a registered trademark of the Gerber company (which has gone after some Etsy-ites as well as the owners of "OneZ"). Considering the widespread non-Gerber use of the term, it's possible that Gerber's ONESIE is headed towards genericide (much like Raisin Bran and Escalator) but we won't know the likelihood of that until someone with deep pockets is willing to take on Gerber's legal department. Till then, crafters and Etsy-ites should be aware that Gerber's lawyers are on the prowl. If you want to stay low on Gerber's radar, you might want to do what retailers such as The Gap do ... they use the term "bodysuit" with their products but apparently buy keywords for "onesie" in order to direct consumers to their websites.
Right, you had a question about Wally. Team mascots are trademarks (or trade dress) of sports teams. They may be federally registered (as is Wally the Green Monster) but registration is not required to claim trademark rights. In any case, we don't imagine you'll be hearing from Red Sox lawyers over your onesie, as professional teams tend to aim their guns at offensive uses or high-profile merchandisers.

Friday, August 8, 2014

State Employee Wants to Publish Self-Authored Guide

Dear Rich: I work for a state agency, and as part of my job duties several years ago, I wrote a guide. The guide was not copyrighted, is in the public domain, is available only as a pdf, and has never been printed. I am the sole author, and am noted as such on the title page. My question: I am retiring soon, and may want to update and expand the guide. Is it legal for me to have the guide printed as is and to sell the print copies? If I revise and expand the guide, would it be legal for me to copyright and sell it? We're not sure why you have concluded the work is in the public domain but if it is, you're free to do what you wish.
Who owns what? It sounds as if your employer owns copyright under work made for hire principles -- that is, it's a work created in the course of employment. Unlike works by federal employees, works by state employees are not in the public domain although some states such as California and Florida do place state-produced works in the PD.
Is it public domain? When you say the guide is "not copyrighted," do you mean it was not registered with the Copyright Office. Filing a registration is recommended but it's not essential for protection.

Wednesday, August 6, 2014

Fraudulent Kickstarter Company? Do They Own My Video?

Dear Rich: I was contacted by a start-up company to make them a video for a Kickstarter campaign they were putting together. The contract mentioned nothing about ownership of licensing of the video; only that I was being given 1% equity of the company in exchange for unspecified trade. A friend of mine agreed to act in the video, under the condition that she would have the right to approve of disapprove the final edit. So we shot the video, and under increasing pressure from the company, I gave them a copy before any release form was signed by the model. They published it to Kickstarter. Then, I learned via someone in the company that the CEO was using an alias and upon searching his real name, it soon came to light that the CEO has a lengthy criminal record. So my question is if a contract is signed with an alias by the acting representative of the company, with the obvious intention of hiding a criminal background, does that constitute fraud and would I have sufficient cause to sue the company for monetary damages amounting to the value of the work I produced. Would a video produced "for hire" based on a fraudulent contract still be considered the property of the party that perpetrated the fraud? As there was never any signed image release/model release, what rights does the model have in requesting an injunction or suing for monetary damages? Having a criminal record doesn't preclude an individual from contracting (or becoming a successful businessman). But concealing a criminal past for the purpose of inducing someone to contract might be fraud. That depends on whether you can prove that you relied on the CEO's deception and suffered harm as a result -- an analysis that will focus on the context of the deceit and the nature of the criminal record.
The remedies. If it was fraud and the CEO duped you into signing a contract (sometimes referred to as “fraud in the inducement”) you can either rescind (void) the contract (which would put you back where you were before the agreement), or you can ask a court to enforce the contract (or “affirm” it) and seek contract damages. In some cases, a claim of fraud can be brought as a tort (not a contract claim), and it is possible for the injured party to seek special damages to punish the bad behavior (known as exemplary or punitive damages”), as well as damages for pain, suffering, and other emotional distress caused by the fraud. In your case, it seems as if rescinding the contract would be the easiest course to take. You give back your 1% interest and the company gives up any claim to the video or you.
The model's rights. We're not sure where things stand with the model. If her image is being used to sell goods and services without her consent, she may have a claim against the company for right of publicity violation. She also may have a contract claim against you since it appears as she entered into the agreement with you, not the Kickstarter company.
Practical realities. Knowing your legal rights is different from enforcing them. If the company disagrees with this analysis, you're facing a wallet-depleting experience chasing an individual or an entity that may be practiced in the art of deception. We'd advise showing all of the evidence to an attorney and getting a legal opinion before starting your pursuit.

Tuesday, August 5, 2014

Selling Refurnished Products

Dear Rich: Do I need authorization from the manufactures (such as Apple, Samsung, Sony etc.) to buy and sell their used/refurbished products on-line and in-store in the USA? You can re-sell other manufacturer's products as long as you don't mislead consumers into believing that you are an authorized dealer or agent of the manufacturer. You also shouldn't mess with the manufacturer's logo, lift advertising copy or images from the manufacturer's site,  or replace the manufacturer's authorized parts with third-party parts. (As happened with Rolex watches.) Your right to resell is based on the first-sale doctrine (or trademark exhaustion).

Monday, August 4, 2014

Can I Publish Photos of Kissing Couples?

Dear Rich: I'm a writer and photographer with a question about using candid street photos in a for-profit book. Let's say I'm writing a book about romance. During my travels, I take some candid shots of singles and couples. These people are flirting or holding hands in public. Or commuting on the subway or at cafes and pubs. (Always in public.) Can these photos be used inside an electronic or print book without compensation or a model release/waiver? I presume the law would be different if a photo was used on the cover of the book as that would require a model release. Is the law different if I'm publishing a "travelogue" instead of a book of stories? I'm interested in both U.S., European, and Japanese law as this project may take me overseas. If a flirting person is in public, the general rule in most countries is that you are free to take and publish an image. (Here are  the international consent requirements.) However, you would likely need permission if using the photo for commercial purposes -- that is, to sell something. (So, yes, you are correct that using an image on the cover might require permission -- although some kissing covers end up rewarding the subjects in other ways.) To avoid legal problems, the text that accompanies the photos should not defame your subjects (for example, implying one of the parties is a prostitute) or invade their privacy. (These laws may differ from country to country and state to state.) Other than these concerns, you should be fine using the images within a book whether fiction or travelogue ... unless of course, you trigger some kind of nonlegal reaction -- for example, revealing adultery like Google View or red light cameras.

Friday, August 1, 2014

How Do We Make Risk Analysis for Trademark?

Dear Rich: We are a new juice company in California and we've been considering various names. One name we've considered is a three-letter word. We searched the USPTO records and found a few similar uses in related classes but we were most concerned by the fact that Starbucks had a registration for the exact same name preceded by the word Starbucks. We didn't believe anyone would confuse our products with that of the Starbucks drinks and their use of the word "Starbucks" would also prevent confusion but we were concerned because they were a big company. How do you analyze the risk when choosing a trademark like this? You were correct in your concerns. Starbucks, like many branded services, is aggressive in protecting its marks (although it is also reasonable in its pursuits). The size and aggressiveness of the trademark owner is one of many factors in a risk analysis. Other important factors are the similarity of the marks and the similarity of the goods and services. As for the latter, Starbucks has three registrations for the mark in question and one of them is in your class (032) for "non-alcoholic drinks; soft drinks; energy drinks; fruit drinks and fruit juices; fruit drinks and soft drinks containing fruit juices ..." Although the house mark "Starbucks" precedes the term, the primary element of the mark is identical. We don't know whether you would prevail at the USPTO or in a court battle, but we assume that's not the risk you are concerned about ... it's about being dragged into a dispute with a major corporation at a time when you're launching your brand. Considering that, we think you made the right decision.

Wednesday, July 30, 2014

Registering Copyright For Deceased Photographer

Dear Rich: My father, who died in 2008, was a talented amateur photographer in the 1950s and 1960s, and I’ve started to post some of his medium-format images online (none were ever published). I’d like to batch-register his images with the copyright office. I’ve registered many of my own images, but I’m not sure how to register images for someone who has died (I do have a copy of his death certificate, if that helps). Can you suggest the procedure? It sounds like you're already familiar with batch registrations of photos but if you need more information, read this circular. You'll have to do two registrations: one for published works, the other for unpublished works. When registering works for a deceased photographer, you would need to provide the photographer's year of birth and death. If you are the owner of copyright, you would list yourself as copyright claimant. Otherwise, list whoever it is who now owns copyright. You must also list how the claimant acquired copyright. On the electronic application there is a  drop down menu and one of the choices is "By inheritance." If that's accurate, choose that. Otherwise indicate how copyright was transferred. (Below are some screenshots of the online application).
FYI Dept. Your question reminded us of another photographer who is no longer with us. 

Tuesday, July 29, 2014

Relationship Between Fair Use and Infringement

Dear Rich: I was troubled by the blanket assertion in a recent post in which you stated that if you copied a copyrighted work without authorization, you're infringing. I believe that if your use is a fair use, you are not infringing. Or are you trying to suggest that a fair use is a form of authorization? We wrote, "If you copied a copyrighted work without authorization, you're infringing. Whether that's unlawful depends on whether you can mount a successful defense." In other words, we think fair use means "permissible infringement," and we think your position is that it means "no infringement." From the defendant's POV, we're both right because in either case, the defendant is off the hook. (The distinction might matter in a dispute over indemnity or insurance coverage.)
Where we're coming from ... Fair use is an affirmative defense and affirmative defenses allow a defendant to avoid liability even if the defendant committed the alleged acts. That's why a court usually won't consider fair use until after making a finding of infringement. As the folks at Chilling Effects put it, "Once the plaintiff has proven that his or her copyright was infringed upon, the burden lies with the defendant who invokes the fair use defense to prove that her or his use of the copyrighted work of another should be legally permitted ..."
That said dept. We stand corrected -- see comment below. Thanks Peter!

Friday, July 25, 2014

University Won't Patent My Invention

It looks like I may have made a scientific breakthrough with definite commercial applications. The thing is the university patent office (who would own the work) is reluctant to start paperwork on it as they say a few patents have already been filed using similar "terms" and applications. The thing is, those ideas have been proven NOT to actually work, whereas I now have good solid data proving my concept (not based on anyone else's work) is the one that will produce results. If someone files a patent for a process, but that process is flawed and does not work, does their patent still hold? It's like someone claiming they can build a faster-than-light spaceship, but never actually getting one to work. Then someone else succeeds, and the first party claims their original patent covers all faster-than-light work. We can imagine your frustration at having created something useful and then learning your superiors don't want to patent it. However, the decision seems to be out of your hands. We assume that as a university employee you signed some sort of pre-invention agreement under which you agree to assign all your university-related discoveries to the university. In that case, the university is free to do whatever it wants with your discovery (unless there's a provision in your agreement providing for reversion or buy-back rights).
Your faster than light scenario. In order to obtain a patent, the applicant must have a reason to believe that an invention will "work for its intended purpose." If that's not the case -- the spaceship can't travel faster than the speed of light -- then that can be the basis for attacking the patent's validity. (By the way, the USPTO does not test each patent's functionality.)