Tuesday, July 7, 2020

Can Auto Company Use Same Name as Band?

Dear Rich: A musician friend of mine has had a  musical project for 20+ years. He uses a name that he made up (not a real word) and he has included the name on several albums (on several different labels). He has achieved some international acclaim. Well, along comes a Korean automobile company, announcing that they have a new camper/car with the same name. I would hope he has some claim to the name, as he has widely published it for decades now. Did he have to file an official application for a trademark for that name? I know of a band that was paid several thousand dollars to give up its name to another band. Can my friend go to the auto company and get them to basically pay him for the use of the name? Alternatively, and perhaps more reasonably, should he simply be staking a claim to the name to prevent the auto manufacturer from coming after him and claiming some kind of bogus trademark infringement?
Your friend isn't the first musician to share a name with an automobile. Consider REO Speedwagon, The Valiants, The Road Runners, The Avantis, The Mustangs, The Rivieras, The Ferraris, The Lincolns, and our musical favorites, Galaxie 500. The difference is that in your friend's case, he was using the name before the car existed. 
Is there a claim against the car company? Even though your friend may have invented the name and used it first, we don't believe he has a trademark claim against the car company. That's because trademark disputes are resolved using a likelihood of confusion standard. Are purchasers of the Korean car likely to be confused as to whether it originated with your friend's musical project? Are consumers of your friend's records likely to be confused into thinking that the source for the music is the Korean car company? Because the categories of goods are so different (and don't compete with each other), and because purchasers of cars and music are discerning enough to distinguish between the two, we think that consumer confusion is unlikely. 
Money from the car company? Because confusion is unlikely, the car company need not pay your friend for the right to use the name. The example you mentioned -- one band paying off another band for the right to use the name -- differs from your friend's situation because consumer confusion is much more likely when two bands have the same name. That doesn't mean car companies can name their vehicles, The Beyonce, or the Beatles. Using a famous band's name implies endorsement and violates unfair business and right of publicity laws.
Should the name be registered? Federal trademark registration offers benefits but is not mandatory. If your friend's right to the name is challenged, the most important factor will be evidence of where and when he used it in commerce -- for example, advertisements, reviews, discography, etc.

Tuesday, June 30, 2020

Record Label Trademark: What's the Proper Class?

Dear Rich: I am trying to trademark my record label name, but am stuck on which class of goods best describes what I want to sell as a label. I plan on selling vinyl records and digital downloads. Which goods class would be most appropriate?

International Class 009 (IC 009 - Electrical and Scientific Apparatus) is your best choice if you are applying to federally register your record label trademark. Your goods and services (G&S) would be, "musical sound recordings." A trademark examiner -- the government lawyer who examines your application -- may require a more descriptive listing of goods and may even suggest certain goods, for example, "pre-recorded phonograph records, and downloadable music sound recordings."
Teach a man to fish dept. There a few ways to determine the proper class. One method is to search the ID Manual at the USPTO website. Type in your goods or services -- for example "recordings"-- and the search will uncover the relevant classes. Alternatively, when you apply online for a federal trademark using the TEAS system, you will be offered the chance to search for your class (and copy and paste the information into your application). Finally, you can either find (or confirm) the right class by searching the trademark database for other companies that sell similar products.  For example, we chose Basic Word Mark Searchand searched first for "Polygram" and then, "CBS Records." The registrations appeared and confirm Class IC 009. Note, record labels that also offer recording studio services may want to add a second class (IC 041 - Education and Entertainment Services).

Tuesday, June 16, 2020

Will They Sue Our Church for Infringement?

Dear Rich: I work at a church and am conducting our services online. I do a PowerPoint and export it to video. If we are not making money off the videos (they are not monetized on YouTube and won't be), and we are a non-profit, is it a fair use of images to include pictures as long as I reference the source? Can we argue that a church service is educational on a spiritual level? 
Before we provide our standard fair use explanation, let's make a short risk analysis. What are the odds of being discovered, and what are the chances that the copyright owners will pursue an action against your church?
Seek, and ye shall find. As copyright owners employ more sophisticated copyright bots (content recognition software), the chances increase that infringement will be discovered. On the other hand, Content-ID (Google's YouTube bot) searches for audio and video but does not seek out individual images within a video. So, the chances of your video being dinged by a bot are slim. (However, beware that if you post an unauthorized image on a web page, it is easy to discover using Google's Reverse Image Search.) Two other factors can influence whether an infringement is identified: disgruntled employees, competitors, or others may report the offense, and the more popular your work becomes, the more likely you become a target for a takedown. 
Vengeance is mine. What are the chances that a copyright owner -- once the infringement is discovered -- will pursue a claim against your church? Apparently, copyright owners are not shy about suing churches, causing many religious institutions to reach into the collection box to pay off damage awards.
Thou shalt not steal. Does fair use shield you from a lawsuit? Even if your potential infringement qualified as fair use (and we lack the details to guess), that does not automatically shield you from a lawsuit. That's because fair use can only be determined by a court. In other words, a fair use defense is usually useless if you can't afford to "lawyer up."
The wise are cautious and avoid danger. Although the chances of a copyright owner discovering infringing images within your video are slim, and although your use may ultimately qualify for fair use, we think the more prudent course is to be copyright compliant. Fortunately, there are numerous Internet resources to help you do that, including church copyright guidelines, tips for finding free Christian imagery, church copyright fact sheets, religious copyright compliance suggestions, public domain Christian clipart, and lots more.
PS. And in other religious copyright news, this just in ...

Sunday, May 10, 2020

While He Was Sleeping ...

Dear Rich staff busy at work on your question
Dear Rich: 35 years ago, when I was five, a newspaper photographer took a picture of me while I was sleeping. The picture was for publication though I clearly did not give permission. I recently found this picture online (tagged to me) and I bought the original picture. Now, I want all digital pictures online removed. The photographer died 30 years ago. Assuming the photographer owned the copyright, can I claim it now since I am the subject of the picture?
Copyright law has no provision that permits you to acquire rights to a photo simply because you're the subject of the photo. The exception is a selfie in which the photographer and the subject are the same (provided you're not a monkey). The copyright can still be acquired by a transfer (assignment) but you'll need to track down the copyright owner -- possibly the newspaper under work for hire rules, or the photographer's estate. There are, however, three other legal bases for prohibiting publication of the photo.
Defamation. Defamation occurs if publishing the photo creates a false impression and injures your reputation. Unless the photo materially ridicules, humiliates, or subjects you to contempt, you'll have a hard time claiming defamation.
Invasion of privacy. Your privacy can be invaded if the photo falsely portrays you in a highly offensive manner; if the photo discloses private or embarrassing facts about you without relation to a legitimate public concern; or if the photographer intruded on you to take the photo in a situation where you had a reasonable expectation of privacy. However, it is not an invasion of privacy to photograph someone in a public place or at any event where the public is invited. Such photos can be used freely for informational purposes, provided that the use does not defame or hold you up to a false light. Because the photo was published 35 years ago and you have not objected until now, we think you may have a hard time claiming your privacy is invaded.
Right of publicity. The right of publicity prohibits using your image to imply that you endorse a product. The use of the photo for news, information, or public interest purposes is not a violation of the right of publicity. If the photo is used to sell products (for example, a mattress ad) you could have a claim for violation of your right of publicity.

Thursday, April 16, 2020

Is "The Naked Kiss" Missing Copyright Notice?

Criterion's pristine version
of "The Naked Kiss"
Dear Rich: I'm having a debate over the legitimacy of a chain of title of the motion picture, "The Naked Kiss" (1964). There are very clear records in the post-1978 Copyright Office database indicating copyright ownership but this person is insisting it is an invalid copyright because there is no “©” insignia anywhere on head or tail. I’ve found a lot of confusion about this, but my understanding is that even without an insignia, its creator could have copyrighted it. Does the absence of the insignia mean that the film is public domain?
Nowadays, the publication of a film without copyright notice won't effect ownership, but in 1964, the penalty was draconian. If the copyright owner failed to include a copyright notice on "The Naked Kiss," then it would likely be in the public domain. This was the rule until March 1, 1989, when the notice requirement was terminated.
Is the copyright notice missing? Distributors of public domain films have considered "The Naked Kiss" as PD for at least twenty years. Ditto for online sources such as the Internet Archives. The IMDB entry states, "No copyright year is shown at the beginning/end credits." [Link may require a subscription.] A proper copyright notice includes (1) the copyright symbol © or the word, "copyright", (2) the year of first publication, and (3) the copyright owner's name. Under the copyright law effective when "The Naked Kiss" debuted, a notice was defective if the date was missing.
What about the copyright records? Documents filed at the Copyright Office as recently as 2011 indicate that various parties controlled copyright to "The Naked Kiss". Yet, if they control copyright why do they permit so many vendors to distribute the film freely? It may be because a lawsuit over the film (we couldn't find any) would officially designate it as PD thereby denying future licensing revenue.

Sunday, April 5, 2020

Can I Copy from an Unpublished Library Manuscript?

Dear Rich: I am in the final stages of publishing an academic monograph. I am seeking to cite a few lines of text from an unpublished manuscript that is held by the Beinecke Library. Is depositing the book at the library a form of "publishing?" I asked the estate for permission to publish small citations but they claimed I would give away the plot and thus their ability to make money on it if they were to publish. A few other scholars have published on the work so they have given away the plot. Would my publishing on this work be fair use? If I don't cite specific passages from the text but paraphrase would that allow me to publish on that work?
If you are simply copying a paragraph or two (say 150 - 200 words) for an academic monograph, a court is likely to consider it fair use because your use is transformative (for commentary) and your borrowing is minimal. The fact that the work is unpublished weighs against fair use but is not by itself dispositive. (BTW, depositing an unpublished manuscript in a library doesn't amount to publication for copyright purposes.) As for paraphrasing and revealing the plot, we'll get to that, below. But before we digress, we must remind you that a judge may disagree with our opinion -- only a court can determine fair use -- and proving fair use can be an expensive proposition.
Paraphrasing. We don't recommend paraphrasing as a means of absolving you from liability. As one court stated, “We recognize that even in the absence of closely similar language, courts have found copyright infringement on the basis of “recognizable paraphrases.”
Can you reveal the plot? If you agreed not to disclose the plot -- for example, you were required to sign an agreement to access the unpublished work -- then that agreement would determine your rights (especially if it forbade copying). Alternatively, if what you disclosed of the plot was considered the heart of the unpublished manuscript, it may weigh against fair use. Otherwise, we don't see how your discussion of the plot for an academic monograph would amount to infringement, especially if others have disclosed it and the manuscript is available to the public. (The results might differ if you were a fiction writer borrowing the plot.) And, of course, some plots -- boy meets girl, boy loses girl, boy gets girl -- are so stock, that they are considered merely unprotectable "ideas," not original expressions, a theory best expressed in this case

Saturday, March 28, 2020

Can I Use James Joyce Case to Justify Copying?

Dear Rich: I am an Australian author now based on Italy. I have written a biography of a major Italian journalist with the permission/collaboration of his publisher and newspaper, obtained by my former Australian publisher, which approved the manuscript for publication. Unfortunately, very similar to the Shloss case, his heir who inherited the copyright to his work has refused use of the archive material which is central to the biography and I cannot publish the book. Can I use the Shloss case to look for an American publisher?
We don't think you'll have much success using the Shloss case as justification for your borrowing -- that is unless, like Carol Shloss, you're willing to take on your adversary in an expensive lawsuit.
The Shloss case. Shloss v. Sweeney (aka Shloss v. Estate of Joyce) was filed by Carol Shloss, a scholar of James Joyce, who had written a book about Lucia Joyce, James's' daughter. Shloss and her publisher were pressured by Joyce's estate to remove published and unpublished material relating to James and Lucia Joyce. Later, Shloss wanted to publish the excised material as an electronic supplement to the book and she asked a federal court to determine whether she had the right to do so. Shloss's lead attorney, Lawrence Lessig was seeking "a clear statement from the court that such academic use of copyrighted materials is protected under fair use.”
No precedent. Shloss succeded in getting more than she wanted. After failing to knock the lawsuit away with a Motion to Strike, the Joyce estate agreed to settle, removing their objections to the publication of the deleted material, granting Shloss more rights than she originally requested, and ultimately (after a court order) paying $240,000 to compensate Shloss for her legal fees. But as Lessig indicates, even though the case was a victory for fair use, it did not set a legal precedent. That's because the parties settled the matter, not the courts. Unless you can marshall legal forces like the Stanford Fair Use Project, citing the Shloss case will have little value.

Friday, March 20, 2020

Does Coronavirus Trigger Copyright Exemption?

Dear Rich: I am writing on behalf of a large group of film professors whose colleges and universities are contemplating moving instruction online due to Coronavirus concerns. Can we temporarily move our face-to-face screenings online without violating copyright law? Does the 2018 "Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies" allow us to rip DVDs for this purpose?
The coronavirus creates unchartered territory for copyright lawyers. Fortunately, an assortment of college, university, and public librarians have issued a Public Statement of Library Copyright Specialists: Fair Use & Emergency Remote Teaching & Research. Although the statement did not address face-to-face screenings directly, it did provide some guidance for fair use and circumvention.
Fair use.  As for fair use, the librarians wrote:
"While there are no fair use cases squarely addressing copying to help minimize a public health crisis, the other wide variety of public benefits cited by courts leads us to believe that this purpose would weigh extremely heavily in favor of fair use."
We agree and suggest that your adherence to the statement's principles, including documentation of your efforts will go a long way to heading off potential litigation. We would also suggest that you follow the standards presented in 17 U.S. Code Sec. 110 (2) regarding the prevention of unauthorized copying or dissemination.
Circumvention. As for ripping CDs, the statement concludes:
"[T]he current exemptions [to DMCA circumvention rules] extend only to copying “short portions” of motion pictures for use in certain types of teaching, not to copying entire works, even when doing so is clearly fair use. Courts disagree on whether circumvention violates the DMCA when the underlying use is non-infringing (for example, because of fair use) and on what constitutes circumvention."

Friday, March 13, 2020

Is "War with the Newts" in the Public Domain?

Dear Rich: Is the 1936 novel, War with the Newts, by Karel Čapek copyrighted? Can I write (or legally sell) a screenplay based on the book?
War with the Newts fell into the public domain in most countries on January 1, 2009, 70 years after Karel Čapek's death in 1938. The book had been in the U.S. public domain, but copyright was restored in the United States until January 1, 2032. In other words, you'll need permission currently to sell your screenplay in the U.S.
Why isn't it in the public domain in the U.S.? When the United States passed the Uruguay Round Agreements Act (URAA), it restored copyright in foreign works like War with the Newts that, as of 1996, had fallen into the public domain in the U.S because of a failure to comply with U.S. formalities (apparently the U.S. publisher failed to renew War with the Newts). Copyright was restored in works like this, and they were given a copyright term of 95 years from first publication. To qualify for this extended term: (1) the author had to be a non-U.S. citizen, (2) the book could not have been published in the U.S. within 30 days after its publication abroad, and (3) the book needed to still be in copyright in Czechoslavakia as of January 1, 1996. We believe that War with the Newts meets these qualifications and that copyright protection lasts for 95 years from first publication. 
What about the translation? The 1937 translation of War with the Newts qualifies for separate copyright protection and would also qualify for a 95-year copyright term. For more information on determining public domain status, check out Steve Fishman's The Public Domain, The: How to Find & Use Copyright-Free Writings, Music, Art & More.

Thursday, February 27, 2020

How Can I Stop Colorizers From "Stealing" My Antique Photo Collection?

Dear Rich: I have an extensive collection of original antique photo prints. Some are art photos, some are amateur/snapshot photos, some are news photos from Acme and other agencies. I foolishly posted a few on Pinterest a long time ago without watermarks. There are colorizers who swipe images without permission, colorize them, then present the result as their copyrighted art. Instagram has stopped removing colorizations of my photos when I report them saying I can't prove I hold the copyright to the original. I realize the news photos are copyrighted by Getty most likely (they charge $100 per hour to find out), but what about the art photos and private amateur photos? How do I establish copyright to protect my collection?
Owning a photographic print may have value as a vintage collectible but in order for you to stop colorizers from copying and modifying your collection, you need to acquire copyright in the photos. That's unlikely for two reasons: (1) most of the photos are likely in the public domain in which case, no one can claim copyright, and (2) if copyright still existed for some of the photos, you would need to track down the owner (the photographer or the person or company who acquired it from the photographer) and buy the rights. That's a considerable expenditure of time and money.
If the photos are public domain, how can Getty claim copyright? As the Library of Congress explains (in regard to Acme photos), news photos published before 1963 are likely public domain because they weren't renewed. Getty cannot assert copyright in public domain pictures but they may be betting that users would rather pay the licensing fee versus proving that copyright has expired. In short, users are paying to access high-quality scans of vintage photos.
If the photos are public domain, how can colorizers claim copyright?
As we explained a few years ago, it is possible to register a colorized black and white photo with the Copyright Office provided that the results "reveal a certain minimum amount of individual creative human authorship." Analogizing as to how the Copyright Office processes colorized motion pictures, the colorizer would have to demonstrate (1) numerous color selections made from an extensive color inventory; (2) a range of additional colors that is more than a trivial variation, and (3) that the overall appearance of the picture must be modified. A colorized image is considered a derivative work and the copyright extends only to the color choices. If the underlying work is not in the public domain, the colorizer will need permission from the copyright owner to reproduce or sell the derivative (or risk a charge of infringement).

Wednesday, February 19, 2020

Can I Use Old Trademarks on T-Shirts?

Dear Rich: I'm a designer and antique collector. I have an idea to recreate old logos, screenprint them on t-shirts and sell them on an e-commerce website. I understand if these logos were trademarked before 1924 they are in the public domain and free to use for commercial purposes. But if this company is still around and uses a new, redesigned logo, am I allowed to use that company name in the product description of my e-commerce website and advertisements? For example, I might name it something like "Vintage COMPANY NAME T-shirt with Distressed Logo." 
Apples and Oranges? You may be confusing trademarks and copyrights and we think you should put your t-shirt plans on hold until you sort things out.
What's the diff? Copyright, which protects literature, music, art, and similar expressions, has a limited shelf life (generally 95 years from first publication). That's why any copyrighted work first published in the United States before 1925 is now in the public domain and free for you to print on a t-shirt.
Trademark law, however, protects any distinctive word, phrase, logo, graphic symbol, or other device that is used to identify a product or service. Trademark rights don't expire as long as the trademark owner continues to use the mark in commerce. So, vintage trademarks, once used by existing companies may still be protectable, particularly if they contain a word mark that is still in use or a logo that has been freshened up over the years.
Abandonment. If, however, the vintage mark is for a product that is no longer in existence, you may be free to use it, provided the mark has been abandoned. Abandonment occurs when the mark is no longer used in commerce and there is sufficient evidence that the owner does not intend to use it. Under the Lanham Act, a trademark is presumed to be abandoned after three years of nonuse. This presumption does not mean that the mark is automatically classified as abandoned after three years of nonuse. It means that the burden of proof shifts to the owner of the mark to prove it is not abandoned. The owner must prove an intention to resume commercial use.
P.S. Dept. Beware, some previously abandoned marks may have been revived as zombie trademarks.

Tuesday, February 11, 2020

Is D.H. Lawrence Poem in the Public Domain?

Dear Rich: We are publishing a book in conjunction with a museum exhibit. The artwork in the exhibit was inspired by D.H. Lawrence's poem, "Whales Weep Not!" On the website, Poets.org, they indicated the poem may still be under copyright by the poet's estate (Copyright © 1964, 1971 by Angela Ravagli and C. M. Weekly, Executors of the Estate of Frieda Lawrence Ravagli. Used by permission of Viking Penguin, a division of Penguin Books USA Inc.) Is the poem in the public domain or do we need permission? 
If the copyright for "Whales Weep Not!" was renewed, it is still under copyright and will not fall into the public domain for several years. The poem was published posthumously in 1932 in the collection, "Last Poems" (Lawrence died in 1930). Copyright law protects such works for 95 years from first publication, provided that it was timely renewed. However, we couldn't find evidence of renewal of "Last Poems" at the Stanford Renewal database. That's not conclusive ("Absence of evidence isn't evidence of absence") and may be due to an error in data conversion or imprecise searching. (The estate had been diligent in renewing Lawrence's other works, including his poetry.) The only definitive proof would be to pay for a certified Copyright Office search.

Thursday, February 6, 2020

Can I Publish Library Sketch?

Dear Rich: I am an architectural historian studying libraries. If I have permission to enter a famous house in order to measure and sketch the library, can I publish my sketch without further permission? Would it make a difference if the sketch is a floor plan of the library instead of an elevation? 
It's likely you won't need further permissions ... but you should consider the following before publishing:
Copyright hassles? Not! You won't have to worry about copyright claims if you are (1) the sole author of the sketch, and (2) you haven't reproduced a copyright-protected work within the library, for example, a watercolor, poster, or sculpture, and (3) the famous house was designed before December 1, 1990. (Copyright only protects buildings created after December 1, 1990, and if the house was designed after that date, you should review our article on architectural copyright.)
Contract and privacy hassles? Maybe. Did you sign anything, or make any agreements that conditioned your entry into the home? For example, were there any discussions or requirements regarding privacy or confidentiality? Would the publication of the sketch reveal any private or potentially embarrassing information -- for example, the location of valuable, rare books, or the presence of a pornography collection? Are you publishing the sketch as an advertisement for a product or service? Is it likely that the homeowner would learn of your publication and be unhappy?
Bottom Line Dept. Most likely, your publication of sketches of the library won't give rise to legal claims. But if you answered, "Yes" to any of the questions above, particularly the last one, then publication may trigger a breach of contract claim, invasion of privacy, or violation of the right of publicity. In such cases, your liability would be reduced if you published the floor plans rather than a detailed sketch.

Monday, January 27, 2020

FRANDs as a Royalty Guide

Dear Rich: I've invented something for the cell phone market and a company I used to work for has expressed an interest in licensing it (and paying for the patent). I'm trying to figure out what is a fair royalty rate. Can I use a FRAND to determine the right rate? If so, where can I find a FRAND for the cell phone industry? 
ACRONYM WARNING!!  Readers who are upset by the overuse of acronyms should bypass this blog entry.
What's a FRAND? Competing companies often must cooperate to create industry standards. For example, computer manufacturers like Apple and Microsoft must agree on the size, shape, and functionality of USB ports and cables. To establish these industry standards, competing companies cooperate to create standard-setting organizations (SSOs). To implement these standards, companies may need to share patents. Patents that are essential to meeting the standard are referred to as "standard-essential patents" (SEPs). To guarantee that SEPs are available to all competitors, industries have adopted FRANDs (Fair, Reasonable, and Non-Discriminatory terms) for SSO members. In some industries, SSOs are bound by FRANDs; in others, FRANDs are advisory.
Your patent. Unless your invention results in a patent that is essential for establishing a cell phone standard, FRANDs wouldn't provide any assistance. In the rare instance that your patent is standard-setting, there is no consensus or template for resolving FRAND interpretation or application. We recommend that you consult an attorney familiar with patent licensing in order to determine appropriate royalty rates (and to look out for your rights during the drafting of your patent application).
More on FRANDS ... You can learn more about FRANDs in two federal decisions:  FTC v. Qualcomm (in which a court imposed a reasonable royalty standard for the licensing of Qualcomm modem chips), and  HTC v. Ericsson (in which a court determined that Ericsson's licensing of 4G cell phone technology was FRAND-friendly).

Tuesday, January 21, 2020

Sold Business, Can I Compete?

Calvert Vaux - Landscape Architect
Dear Rich: If someone sells their business which owns their copyrighted landscape design work, can they still send pictures of the work to potential clients as something they created? Can they post these photos on a website? If the business they sold has their name in it (e.g. Ann Jones Landscape Group), could she start another business (there is no non-compete) with the name? (i.e. Ann Jones, PLA, LLC)?
If the sale of your business included the transfer of your landscape design copyrights, then you would need permission to reproduce those designs. The transfer (or "assignment") of copyrights must be in writing so check the paperwork connected with the sale of the business. (Look for an "Intellectual Property" provision in the sales agreement.) Portfolio rights. Keep in mind that the purchaser of the copyright may be willing to grant you "portfolio rights" (permission to reproduce as part of your resume or to seek clients). If the sales agreement doesn't address the designs, it's very possible you retain ownership of the copyrights and you can do as you wish with them.
Using your name for a new business. Most sales of businesses include the transfer of the business name. After all, customers associate the name and goodwill with the business. If the buyer acquired the name, then your use would violate the sales agreement. Even if the sales agreement wasn't clear about name ownership, the purchaser could still pursue you under state laws based on unfair competition.

Wednesday, January 15, 2020

How Do I Fix an Error on Copyright Application

Dear Rich: How do I correct a mistake on a song copyright that I recently filled out? I need to add a third songwriter. 
We assume you're referring to an error made on a copyright application you filed online. If your application is still pending (that is, the Copyright Office hasn't issued a registration certificate), you can submit a request to address the error or omission on the Copyright Office’s website. Alternatively, once the application is being reviewed, you can inform the registration specialist (the Copyright Office examiner of your application) of the required changes.
Registration issued. If the certificate was issued, you should file a supplementary registration to correct errors or omissions. This is done online using the ECO portal. To learn more about supplementary registrations (and the exceptions to online filing), read Circular 8.

Monday, January 6, 2020

Who is the Copyright Claimant? Publisher or Composer?

Dear Rich: Should an artist who owns a publishing company register it as claimant of copyrights instead of him/her self? In this case, is there a better option? 
When filling out the online copyright application, the "claimant" is the copyright owner. So, if you (the composer/author) have assigned the songs to your own publishing company then the claimant would be the publishing company. Assigning a song is fairly simple but it must be in writing. (We've posted a basic copyright assignment online.) For practical purposes, if there is only one composer, and that composer owns the publishing company as a sole proprietor (single owner), then it won't matter whether the publisher or composer is listed as claimant as they are one and the same.

Friday, September 20, 2019

Has Academic Journal Stolen My Copyright?

Dear Rich: I am a university professor. Two French colleagues organized a conference in 2017 and invited me to speak at it. After the conference, they said they wanted to publish our talks (expanded into articles) in a book, and they told us we should start to revise our talks. Several months later, they wrote to say that a Swiss-based academic journal had agreed to publish the essays as a special issue. I responded to say "sounds good," and I submitted my essay to the two French colleagues, who copyedited it, and I did not hear another word for months until a PDF of the final version of my article arrived in my inbox. I was surprised to see that the article was Copyright 2019 by the Swiss publisher and that I was authorized to distribute no more than 25 copies of this PDF, and that it was not permissible to put the PDF on the Internet. I wrote to the Swiss publisher and asked on what basis they claimed the copyright, given that I never signed an agreement with them. The head of the press cheerfully admitted that there is no signed agreement of any kind and that they claim the copyright by fiat, simply as a consequence of publishing the text ("We pay the printer"). It seems to me that they have illegally usurped (or tried to usurp) my copyright. Am I correct about this?
Yes, you're correct. The concept of claiming copyright because "we pay the printer" went out with quill pens and hoop skirts. To claim the copyright to your article (which many journals do), the Swiss would need to have acquired documentation: a written assignment agreement or a work-made-for-hire agreement.
Implied license. Under U.S. copyright law, you retain copyright ownership, and the Swiss publisher probably has an implied license to publish your article in the journal. Licenses can be implied from the parties' conduct and reasonable expectations. For example, if a written license expired, but the parties continued as if it hadn't, the license for the extended use would be implied. Your consent to publication was implied by your "sounds good" and by furnishing, revising, and copyediting your article. However, the implied license doesn't permit the Swiss journal to dictate the terms of your use and doesn't allow them to distribute the article in any way other than in the journal.
P.S. Dept. The Swiss publisher would be permitted to claim a compilation copyright in the journal. The compilation copyright does not protect the individual articles, but instead, it protects the particular selection and arrangement of those articles together in one journal.

Tuesday, September 3, 2019

Do You Have to Be a U.S.citizen to register copyright?

Dear Rich: Can a non-U.S. citizen or alien register a copyright at copyright.gov? What if one co-writer is a U.S. citizen, but the other co-writers are not?
Non-U.S. citizens can register works at the U.S. Copyright Office, and it shouldn't matter what percentage of co-authors are U.S. citizens. According to the Copyright Office, anyone, regardless of citizenship status can register their work provided it is: (1) unpublished, or (2) first published in the U.S., or (3) first published in a country with which we have a copyright treaty, or (4) the work was created by a citizen or domiciliary of a country with which we have a copyright treaty. See Circular 38a, International Copyright Relations of the United States, for the treaty status of specific countries.

Thursday, June 27, 2019

Can I Sell Cecil Aldin Coloring Book?

British illustrator Cecil Aldin (1870 - 1935)
 with one of his furry subjects
Dear Rich: Can I sell black and white images by Cecil Aldin? I would like to sell them to potential customers who could color them in?
Yes, you're free to sell the animal illustrations of Cecil Aldin. Except for his imagery for "His Apologies" (Rudyard Kipling's 17-page poem about a Scottish Terrier puppy), all of the artwork by Aldin (sometimes mistakenly spelled "Alden") is public domain. The works were either published before 1924 or were not timely renewed (according to the Stanford Renewals database). "His Apologies" was renewed in 1959, and the drawings are under copyright until 2027.