Wednesday, December 17, 2014

Can Manager Sign Side Deal with Lead Singer?

Dear Rich: I recently became band manager and I have some questions regarding the contract that we are in the process of negotiating. The lead singer writes all the original material himself so would it make sense, or even be possible to have a contract with the band as a whole but a separate contract with the lead singer as he is writer and therefore any publishing deals or sync royalties I set up would only be relevant to him. He also has a solo tribute act that I will oversee. So, if I had a separate contract with him for his solo act, which would only involve performance commissions, could that contract also include publishing/sync elements relative his material written for the band since the other band members would not actually receive anything from that revenue stream.
We're old fashioned and believe in discrete agreements for discrete purposes. Because of that, we see three agreements in your future
Managing the band. You'd use a management agreement with the band. Because you seem particularly interested in the career of the lead singer, you would probably want a leaving member provision that allows you to manage any band member who strikes out on their own.
Music publishing agreement. Traditionally, when a manager wants a cut of a musician's songwriting income, the manager acts as music publisher and enters into an agreement with the songwriter, either a music publishing agreement or music administration agreement. In the music publishing agreement, the music publisher acquires copyright in the songs and the songwriter gets a cut of revenue. In the administration arrangement, the songwriter retains copyright and the publisher gets a cut for handling the paperwork associated with song promotion. As a general rule, we discourage musicians from entering into publishing agreements with managers unless there are strict limitations on time (it should not extend much longer than the management deal) and songs (it should only cover songs released during the management term).
The tribute band agreement. Why are you getting paid by the tribute act? If it's because you're booking shows, you would use a booking agent agreement. (Note, that in some states, like California, booking agents are regulated and must be licensed.) If it's because you're managing the act, then you'd use a management agreement.
FYI Dept. You can find detailed explanations of all three of these agreements in our book, Music Law, or in our exciting new Music Law program presented by Lynda.com

Monday, December 15, 2014

Can I Turn Master and Margarita into Opera?

Mikhail Bulgakov
Dear Rich: I am contemplating composing an opera in English based on The Master and Margarita by the Russian author Mikhail Bulgakov. Bulgakov died in 1940. The Master and Margarita was published posthumously in two parts in the Soviet Union in 1966 and 1967. With the help of a Russian friend, I have made a translation into English from the original Russian. This first Russian edition was never published in the U.S. Until the fall of the Soviet Union, there was little doubt that The Master and Margarita in its original Russian had become public domain. That changed with the advent of the Russian Federation which signed onto the Berne Convention, among other agreements. The Russian Federation also rewrote some of its own copyright rules. As it now stands, it would appear that The Master and Margarita in its original Russian edition will become public domain in The Russian Federation in 2017, following their 50 year period of copyright for posthumous works. I have been assured by publishers in England that it will also be public domain there. According to the Berne Convention, as I understand it, copyright for posthumous works is 50 years. Will it also be public domain in the U.S. in 2017? Does the US follow the rule of the shorter term, following the rules of copyright for works published in another country in which the copyright period may be shorter? Or is it protected for 95 years from the date of posthumous publication? Dear Rich staffer Steve (The Public Domain) Fishman provided this answer:
Stephen Fishman
Unlike the United Kingdom, the United States does not follow the rule of the shorter term. The Master and Margarita entered the U.S. public domain when it was originally published in Russia and France in the late 1960s because the U.S. had no copyright relations with the Soviet Union. However, its U.S. copyright was automatically restored on Jan. 1, 1996 under the Uruguay Round Agreement Act and it is entitled to a full term of U.S. copyright protection. This term is 95 years from the year of first publication. So if it was first published in 1966, the novel will remain under copyright in the U.S. through the end of 2061. You'll need to get permission from Bulgakov's heirs to use it in an opera. Be sure to do so, they are litigious bunch. They recently filed an unsuccessful suit against a U.S. publisher that published an e-book version of an English translation of the novel. See Peter Mayer Publishers, Inc. v. Shilovskaya, 2014 U.S. Dist. LEXIS 45887 (SDNY Marc 31, 2014).

Thursday, December 4, 2014

How Long Can They Use My Photos in Catalog?

Dear Rich: Do I have a right to ask for extra payment if a company is still using my photos from a photoshoot in April 2012. After the photoshoot they made me sign a small paper stating I received a payment of 15,000 pesos. There was no other written agreement. They just told me they will call me again if I will be accepted for their next photoshoot. The photos were used in their catalog (I think in April or May 2012 and the next catalogs after that). Up to now there are some photos still in their new catalogs even in their website. Can I ask for extra payment? Are there written limitations about how long they can use my photos? We don't think you're likely to have much recourse for the continued use of your photos but the answer depends on the factors described below.
What nation's law is applicable? You mentioned that you were paid in pesos which indicates that you or the company paying you is Mexican. If the work is subject to Mexican copyright law, we're not going to be of much help. Rules about ownership differ slightly from U.S. law. The copyright law in Mexico is grounded more in European copyright principles than in British rules (like the U.S.). If your arrangement is subject to U.S. law, read on.
Who is the copyright owner? By default you are the copyright owner as the creator of the photograph. However, if you were an employee (not likely) or a contractor who signed a work made for hire agreement, the company would own your catalog photos and would have the right to reproduce them whenever they wanted. So, your first task, if you still have that piece of paper, is to see whether that agreement establishes a work made for hire arrangement or alternatively, whether you gave up rights with an assignment.
License or work made for hire? It's also possible that you may have retained your copyright ownership but you licensed the catalog uses. This could have been done with an explicit license (again, check the paperwork) or it could be an implied license. For example, if the job description stated you were taking photos for use in a catalog, or you orally agreed that they could be used for catalogs, a judge would likely believe that an implied license was granted and the company would be within its rights (provided it only used the photos for catalog purposes). On the other hand, if your oral understanding was that the use was to be limited to a period of time -- say, two years -- then, you would be within your rights to demand more money.

Tuesday, December 2, 2014

News Aggregation and Fair Use

Dear Rich: We're interested in aggregating entertainment news for a new app. Is there any formula to use to figure how much can you take from a news site. Sorry, but there's no way to quantify how much is "too much." It's more helpful to look at the handful of public disputes over news aggregators (websites or applications that gather news or news feeds from other sources). In 2005, the Associated Press (AP) was involved in a dispute with All Headline News, a company that copied and rewrote news stories and resold them. AP seems to have had the upper hand because the parties settled before trial with All Headline News agreeing to pay for past use and to halt future use of AP content. In another dispute, AP went after Google for its news clipping service. The result: Google entered into a licensing deal with the AP, as well as with another news organization, AFP.
Meltwater and the search engine defense. More recently AP sued Meltwater and prevailed on its infringement claim. Meltwater argued that it functioned like a search engine -- an argument that had worked successfully in other fair use/search engine litigation and scanning/search engine lawsuits. But Meltwater differed from search engines like Google because it was a paid subscription service. It also failed the fair use test because its service cut into AP's clipping service revenues and because it sometimes copied up to 60% of articles. (One possible takeaway: don't mess with AP!)
Fox News and TVEyes.  A related case involved a TV clipping database, TVEyes, that made it possible for users to search news broadcasts using keywords, then view a portion of the curated news clip containing those keywords. A district court determined that the storage, indexing, excerpting, and reproduction of the clips was a fair use. The court emphasized that the purpose of the database was unique and transformative, and dismissed the “very small possible impact” of  lost revenues for Fox.
Bottom Line Dept. As this informative (slightly outdated) article explains, the type of aggregation (there are a few variations) may make a difference as to whether your app qualifies for fair use. It also explains the disfavored concept of hot news. In any case, we must repeat our fair use mantra: no matter what we say, only a court can determine what constitutes fair use.




Monday, November 24, 2014

Does TM Law Limit Superman's PD Reproduction?


Dear Rich: In another entry, you mentioned that there were public domain Superman strips. If someone published a book of the public domain Superman strips, would that be infringing upon Superman as a trademarked character? Or would it infringe (if at all) only if the book title included Superman? Would a generic title get around that? Or does the fact that those particular strips are now public domain outweigh any trademark concerns? You're within your legal rights to simply reproduce the public domain Superman strips. And you're within your rights to use Superman within the title of your book, provided that it accurately describes the source -- for example, "Forgotten Superman Comic Strips from the 1940s," "Superman in the Public Domain." (Here's an entry explaining how the Superman character survived falling into the PD). You may run into problems with Superman's trademark owners if you reproduce the public domain strips on merchandise or if you use them to sell a product or service other than the republished comics.
The mutant copyright. The world of character trademarks vs. public domain source material is not black and white as we discussed in an entry about Sherlock Holmes, and as Stephen Fishman writes in his public domain treatise: "[W]ill “Mickey Mouse” cease to enjoy trademark protection when the original cartoon on which it is based enters the public domain in 2024? No court has definitively answered this question." One thing seems clear, the Supreme Court does not support using trademark law to make an end run against the public domain. If trademark law could do that, as Justice Scalia wrote, it would "create a species of mutant copyright law that limits the public's 'federal right to "copy and to use"' expired copyrights."

Thursday, November 20, 2014

Can Someone "App" My Reading Program?

Dear Rich: I have written a reading program and created written materials as well as manipulatives that go with it. I have received a lot of questions from teachers as to whether I will make much of it into apps. Can someone create an app from my program without permission? I learned during my writing of my program that you can't protect an idea only your expression of the idea. Is the creation of an app considered a different expression of the idea and therefore legal? We assume that by "reading program," you mean a process or system to assist readers. You are correct that it's hard to protect a system or process under copyright. Perhaps you can patent it but the fact that you've shown your method to teachers means you may have missed the boat on a utility patent. Even if you haven't, you're facing an uphill climb (you must prove it's novel and nonobvious), it will be costly (expect to pay north of $5,000 dollars) and it takes time to get a utility patent (two-to-three years) during which time you can't stop copycats.
What would Evelyn do? What do innovators with new methods do to protect their brainstorms if patent protection is unavailable. Perhaps we can take a tip from Evelyn Wood, the woman who popularized the term, "speed reading." Ms. Wood achieved success and dominance in her field by doing four things: (1) getting her system out first -- that is by offering seminars and getting the Reading Dynamics program out soon after publication of her groundbreaking 1959 book; (2) associating the method with her name and the Reading Dynamics trademark -- so consumers sought her out rather than competitors; (3) promoting her method on TV and with celebrities; and (4) securing copyright protection for her materials, and trademark protection for her services and products.
Is the expression of the app considered a different idea? The term "app" refers to a specialized program that accomplishes some task. There may be two copyrightable aspects to an app: its content, for example the dictionary within a dictionary app; and the programming or coding -- the internal architecture that enables a user to access and manipulate the content. You would have a claim against an app if the content within was expressed in a substantially similar manner to your content. For example, if many sections of your writing were lifted verbatim or near-verbatim. You may have a claim if they are similar but not near-verbatim but that depends on the content and whether it is protectable (see above).

Friday, November 14, 2014

Why Can't I Copyright a Character?

Dear Rich: I want to copyright a character from a graphic novel that I wrote. I've already copyrighted the graphic novel. How do I copyright just the character? When you say you've copyrighted your graphic novel, we assume you mean that you registered the work with the Copyright Office. However, according to the Copyright Office Compendium, the Copyright Office won't register characters. That doesn't mean you can't stop others from copying your character as depicted in the graphic novel. As you'll see from perusing character standards, you may have already achieved copyright protection for your character. Also, if you create a series of graphic novels with the character in the title, or use the character on merchandise or in connection with services, you can seek trademark registration for the character's name and appearance.
BTW Dept. The Copyright Office doesn't grant copyrights; that occurs automatically. Think of the Copyright Office like the County Recorder's office ... a place where you record your copyright claim.

Wednesday, November 12, 2014

Charles Ives Fair Use?

Dear Rich: Here's a question for you regarding published music. Charles Ives Variation on America is a piece of music arranged for band and protected through copyright with the Theodore Presser company. I would like to take 11 measures of the Trumpet 1 part to post in a small Facebook group (private) of trumpet players that will be discussing this excerpt to prepare for future auditions and performances. Do you believe that for this educational purpose, I can post this small excerpt and not have to worry about copyright? Reproducing short excerpts of a work for purposes of commentary, criticism, scholarship, or research is often considered a fair use. So, it's possible you will prevail in a legal dispute. But only courts can determine fair use standards and we assume you don't want to get involved in a fair use battle (just as we assume you don't want to be the recipient of a DMCA takedown notice at Facebook).
Your previous contact with the publisher. We note that you've contacted the music publisher and asked for permission -- a good first step according to the Copyright Office. On the other hand, that puts the publisher on notice of your intended use. Because the response from the publisher was so reasonable (the proposed permission fee was reduced to a token payment), we think it's worth accepting the publisher's offer ... even if its just to put some spare change into the Charles Ives tip jar.

Monday, November 10, 2014

Upcycled Band T-Shirts Pulled from Etsy

Dear Rich: Can we revisit this topic of upcycling/repurposing of band t-shirts? Specifically relating to transformativeness and or derivative works relating to intellectual property and copyright infringements. I'm curious how the laws or interpreting of laws have evolved around this topic since your previous post. I just had some items pulled from my Etsy shop at the request of a band's attorney citing intellectual property rights violation. From what I grasp the offense is taken mostly from the public displays of the bands name and logo in the picture listings as well the attorney's assumption I am financially gaining off the logo and not my labor/seamstress skills. We're sorry to hear that your Etsy items were pulled. As for your copyright question, not much has changed regarding copyright law and we still stand by our position that repurposing legitimately-acquired t-shirts should not infringe copyright.  But we need to elaborate on our trademark law comments.
Etsy and trademarks. An Etsy shop owner is at the mercy of two outside forces: Etsy and the offended trademark owner. Apparently Etsy will turn off access to shop items or even close down shops if a trademark owner provides sufficient notice for an "Intellectual Property Infringement" (as defined in Etsy IP guidelines). We're a little confused by this policy because the term "trademark" never appears in the guidelines and the guidelines mirror DMCA requirements which are strictly for copyright. In addition, this 2011 statement by an Etsy in-house atorney states that Etsy doesn't intercede between the shop owner and trademark owner; they just establish contact between the two. Nonetheless, there appear to be cases of Etsy closures and shutdowns based on trademark complaints. Considering the volume of complaints and Etsy's desire to avoid liability for the site itself, we assume it makes more business sense to shut down an item first and ask questions later.
Trademark law. Upcyclers are in a gray area of trademark law. On one hand, anyone can resell authorized trademark goods under the principle known as trademark exhaustion. For example, a band can't stop you from selling a collection of their used t-shirts. But upcycled goods -- because they deconstruct legitimate goods to create new products -- are not in the same category as recycled goods. For example, if the new products reflect poorly on the brand or if they trigger product liability issues -- for example, a chair made from Sherwin-Williams paint cans -- the owner may have a gripe that consumers will be confused or harmed. On the other hand, goods with no liability issues -- for example, refrigerator magnets, kitchen aprons, or upcycled underwear -- that are obviously not created by the trademark owner, are unlikely to be infringements. Bottom line dept. Even if you're convinced you fall safely in the latter category (we think you do) we don't recommend fighting the trademark owners. The battle will turn into a black hole and your store will suffer. We only wish more trademark owners would at least consider Option 3 before asking Etsy to close down stores.

Tuesday, November 4, 2014

Why is There a Higher Copyright Fee for Two Writers?

Dear Rich: My wife and I write songs. For the last ten years we've been registering at the Copyright Office. But now things are different because they charge us a higher fee just because there are two writers. How can they get away with that? This year, the Copyright Office introduced a triple-tiered fee system. A single electronic application (details here) is $35, a standard electronic application (any electronic filing that doesn't qualify as a single application) is $55, and a paper application (remember them?) is $85! As for your question, "How can they get away with that?" -- check out this circular! Keep in mind, copyright registration is not mandatory (unless you're filing a lawsuit). You can read about the benefits here.

Friday, October 31, 2014

Contract Survivalists: When Is the Contract Over?

Here's a tip to survive Halloween. Check out more PD Halloween postcards.
Dear Rich: We were asked to sign a work for hire agreement to modify a website. The contract was for a year, but there was language in it that seemed to contradict the one-year thing. The language said that three provisions in the agreement survived termination and could be enforced after the contract was over. This doesn't make sense. If the contract is over, how can the company still have any rights over me? Right, you would think that once the contract is done, it's done! But just because an agreement terminates doesn’t mean that all of the obligations in the agreement terminate. For example, the parties may want to continue their obligations to maintain confidential information after the agreement ends. Or, additional payments may accrue after termination. To handle situations like this, the parties often state that certain obligations will continue or survive the termination of the agreement. Typically, those provisions include confidentiality, warranties, indemnity, and payment obligations. You can spot them because they usually start with, “This obligation shall survive any termination of this agreement.”
Are they really enforceable? Courts may not always enforce survival clauses. In general courts prefer fixed (not open-ended) periods of survival as well as a clear indication that any claims regarding the provision will be brought prior to the end of the surviving clause.



Wednesday, October 29, 2014

Old Man and the ©: Book Cover in Video

Dear Rich: I'm working on a corporate video that will live on Youtube and Vimeo. In the video, we see the character reading Hemingway's "The Old Man and the Sea." Do I need permission from the publisher and/or writer's estate to be able to do this? To be clear, the character does not read the book aloud, we only see the book cover (essentially, the book is a prop). The short answer would be that if the book is used as a prop (anything an actor holds or carries), is visible for more than a fleeting shot (30 seconds or more) and if the book is used as a plot point (the character talks about it, or Hemingway relates to the story) then a clearance attorney would advise seeking permission from the owner of the book cover copyright. (We believe the cover at left is from the original 1952 publication published by Charles Scribner's Sons.) The rules might be different if the book is used as set dressing (for example, it is featured on a bookshelf and is not part of the plot) in which case clearance is probably not required. In his book  on clearance for film rights, Clearance and Copyright: Everything You Need to Know for Film and Television, attorney Michael C. Donaldson distinguishes these uses, explains the conflicting caselaw, and points out that even though the safe approach is to seek permission, "many scholars are of the the opinion that fair use might still apply."

Monday, October 27, 2014

Speedy Scaffolding: Long Wait for Registration

Dear Rich: I wrote a book for contractors and in it I describe a unique and speedy way to erect scaffolding. I was going to self-publish the book but I wanted to wait until I get the copyright registration. The Copyright Office said that it could take up to eight months to process my application. I'm hesitant to publish the book because the process has been a secret up to this point. Does every author have to wait this long? Yes, the processing time for applications is the same for everyone (8 months for online applications, 13 months for paper) unless the applicant qualifies for expedited Special Handling (usually because they're in a dispute). That costs an extra $550 and we don't think it's worthwhile for you for the following reasons.
Copyright is automatic. That's right, you acquired copyright once you completed your book. Registration is a good idea but not mandatory. Most people register because it provides additional rights in the event of a dispute and because it places the book's title (and contact information) in the registry at the Library of Congress. Registration is mandatory if you wish to file a lawsuit.
Registration is based on filing date, not issue date. The effective date of registration is the date that the Copyright Office receives all of the application materials (not the date it issues the Certificate of Registration).
Copyright won't protect your scaffolding process. You seem concerned with the disclosure of your scaffolding process. Keep in mind that copyright law will not give you the right to control the use or disclosure of your  ideas, systems, or methods of operation. (You may be confusing it with patent law which grants exclusive rights for novel, nonobvious processes.) In other words, copyright will allow you to chase someone who copies your book, but not someone who copies your idea. If you're serious about keeping it a secret or controlling the sale or use of your ideas, you should hold off on publishing your book until after you speak with a patent attorney.

Friday, October 24, 2014

Do I Need Releases for Self-Published Photo Book?

Two shots from "Summer Weather" a photo book featuring
1983 head shots of aspiring TV weather reporters
by Michael Jang 
Dear Rich: I wanted to self-publish a small collection of my photographs of people. As I will try to sell this, do I need model releases for these old pix? Or, can I apply the 15 percent rule and somehow alter the photographs for fair use? It would be helpful to have a 15% rule to set the boundaries for copying or modifications, but unfortunately no such limitation exists in copyright law. A judge recently attempted to set a 10% standard to justify educational copying but that "rule" was struck down by an appellate court.
Copyright and right of publicity. Your question involves two areas of law -- copyright (the right to reproduce the photos) and privacy and publicity rights (the right to prevent others from invading privacy or commercializing your persona). As the photographer, you're the initial copyright owner so you're free to reproduce the images. You would need a release only if you were using the image to sell something (typically, in an ad for a product; but see our advice below regarding the cover) or if the photo was an invasion of privacy -- for example, you trespassed in someone's backyard to photo them when they had an expectation that they were alone. Generally informational/editorial uses such as yours don't require model releases though publishers may still require them as insurance against claims. However, whether a use is considered informational/editorial is a gray area and if the photos are likely to offend the subjects, the chances of being hassled over the publication will increase. Also, if you're using a photo on the cover and in the advertising for the book, you may want to obtain a release for that imagery as that arguably is being used to "sell" the book. (For more on photography and law, check out photo attorney.)

Thursday, October 23, 2014

Let My Copyright Go: The 3D Moses

   Michelangelo's original                           3D copy 
Dear Rich: I’m part of the open source 3D printer community and this question was posted to a forum hosting 3D designs. Someone photographed an exact replica of Michelangelo's Moses at a local college. Someone else, using software, generated a 3D version of the statue. At the college's request these 3D works have been deleted. Given Michelangelo is long dead, I would have thought that both the original and any non-transformative reproductions would be out of copyright? What then of a potential transformative invocation into an electronic virtual object? Would that be a copyrightable work? We don't think an exact 3D replication of a 400-year old public domain work is copyrightable. That's because a district court has ruled that exact reproductions of public domain art cannot be acquire protection. Or as another court put it, "[T]he mere reproduction of a work of art in a different medium should not constitute the required originality [necessary to claim copyright]." There may be variables that affect our conclusion -- for example, whether there were agreed-upon terms of use (that prohibited photography) when viewing the college sculpture (see this entry for more on that); or whether the college sculpture differed sufficiently from the original to claim its own derivative copyright. But in general, we don't see the legal basis for requesting a takedown of the 3D imagery.

Wednesday, October 22, 2014

Can We Download News Clips to Use Within Our TV Show?

Dear Rich: We produce a nationally distributed television program for a client based on crime incidents reported in local media. After reading your article, my client claims that it is totally legal to download copyrighted television news stories from media websites and use them within the television show. Is he right? My understanding is that is television news is protected under a broadcaster’s blanket copyright and may not be used without express permission. We're not sure how your client reached his conclusion but, in general, there is no free pass for downloading copyrighted news stories. Perhaps your client saw this recent case in which a TV clipping database made it possible for users to search using keywords and then view a portion of the curated news clip containing those keywords. We think you'll agree that database usage of the clips differs substantially from your client's use. We also think the best method of formulating a fair use "guess" is to review past cases.

Tuesday, October 21, 2014

Can I Sell Clothing Made From Copyrighted Fabric?

silk fabric weaving circa 1914
Dear Rich: This question pertains to copyright images on fabric bought from the store. There have been a lot of questions regarding this because of crafter's listings being taken down from Etsy. I believe the ones being taken down are violating copyright by using imported items or their own reproductions. My question is can we purchase licensed fabric or ribbon from a store, make it into a dress or handbag and then sell those items legally? There is a "For personal use only" statement on the salvage of the fabric. My understanding is that First Sale Doctrine would cover the resale of the fabric along with a proper listing and disclaimer? You're correct. Thanks to the first sale doctrine, if you bought copyrighted fabric, you're free to make it into a product and resell that product. You're also free to photograph that product and reproduce that photo as part of an ad when selling the item. A disclaimer won't hurt but it's not required.
What about the statement on the fabric? The statement -- for personal use only -- is wishful thinking on the manufacturer's part. Unless you affirmatively agreed (signed something, clicked "I Agree" or made some other indication of assent) at the time you purchased the fabric, such a statement would not be binding on you.
What you can't do ... If the fabric is an infringement, that is, an imitation made without permission of the manufacturer, you'll run into problems. In that case, the copyright owner can stop your uses whether you knew or should have known it was infringing. You may also run into problems if you create fabric from found imagery that is still protected under copyright. In that case you're infringing the image owner's right to create derivatives.

Monday, October 20, 2014

Can I Embed YouTube Video at For-Profit Site?

Judge Posner
Seventh Circuit
Dear Rich: Is it safe to embed YouTube videos in courses that are developed for-profit? The YouTube terms and service page indicates that the embed code they offer is designed to make sharing/embedding possible regardless of use. We noticed that your email was from Canada so we must caveat our answer by stating that our answer is based on U.S. copyright law. Though similar, the two nations differ in terms of legal precedent, fair use, and educational uses, among other things. The short answer is that embedding is probably not copyright infringement but may be a violation of YouTube's terms of service.
What about copyright law? Based on a 2012 decision by Judge Richard Posner of the Seventh Circuit Court of Appeals, it is not copyright infringement to use the embed code furnished by a video web service such as YouTube. Or put in plain English, embedding a video doesn't violate federal law. The logic is that the end user is not producing or distributing the video, and the copyright owner, by providing the embed code, is encouraging viewers to stream the video via their sites. As for the copyright owner's right to control the performance of videos, Judge Posner held that the argument was promising but currently the law was too ambiguous (considering that the data stream originated from another site) to determine whether embedding was a violation of the performance right.
What about YouTube's end user license? The YouTube Terms of Service do provide limitations on what can be done (and can't be done) with its embedding service. If you've agreed to the these terms of services, then there are certain prohibited uses. For example, you can't embed and then sell access to the embedded video. You can't provide advertising, sponsorships, or promotions on top of or within the embedded video. And --  and here's where it gets pretty confusing -- You can't sell, advertise, sponsor or promote any products or services on any page of an ad-enabled blog or website containing the YouTube embed code unless "other material not obtained from YouTube appears on the same page and is of sufficient value to be the basis for such sales." We take that to mean it's okay to sell something on the same page as the embedded video although it seems like an ambiguous, confusing standard and one that allows YouTube, not the user, to determine if a violation has occurred.

Wednesday, October 15, 2014

What the Supreme Court Didn't Say About eBooks

Dear Rich: I recently received a takedown notice for posting free eBooks. Why do publishers still hassle people now that the Supreme Court has said it's okay to digitize and scan books? Perhaps it occurred in a parallel universe ... but we don't find any caselaw from the Supreme Court that states it's okay to scan and distribute eBooks. Are you referring to this case in which a Court of Appeals held that it was fair use to digitize books for purposes of creating a database? That database was used for keyword searching; users could not read the books.
Bottom Line Dept. It would be difficult to justify the unauthorized scanning and distribution of whole eBooks as a fair use (unless for certain disabled uses) and we suggest that you obey the requests made by publishers lest you risk an assessment of damages based on willful infringement.

Tuesday, October 14, 2014

Game App Trademark Specimen


Dear Rich: We're going to launch a game app soon and wanted to trademark the name. It's a download only and we're trying to do the registration by ourselves but we're confused about the sample they want. We're not advertising it so do we don't have ads to send. Should we just send them the whole game? Trademark examiners at the USPTO might enjoy playing your game but they won't accept it as a trademark specimen (the official name for the sample). We'd suggest that you provide a screen shot of the title or launch screen -- that's the graphic typically displayed at the beginning of a game (often with the word "Loading" appearing on screen). According to the USPTO, "title or launch screens may be acceptable specimens as long as the nature of the specimen is clear either from the overall look and feel of the specimen or from the applicant’s description of the specimen." You can also furnish a specimen showing the title screen as displayed on a device such as a smart phone or within a social media framework -- for example, within the context of Facebook -- if that is the delivery or hosting system. For more on service mark specimens, check out the USPTO's Examination Guide 31-14.