Tuesday, August 19, 2014
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
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
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
|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
Monday, August 11, 2014
|"I am not a monster."|
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
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
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
Monday, August 4, 2014
Friday, August 1, 2014
Wednesday, July 30, 2014
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.
FYI Dept. Your question reminded us of another photographer who is no longer with us.
Tuesday, July 29, 2014
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
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.)
Thursday, July 24, 2014
Wednesday, July 23, 2014
Disclaimer Dept. We're writing about U.S. Copyright law. Britain doesn't have a fair use defense but it does have "fair dealing."
FYI Dept. We're pretty sure that's the remarkable Donald Pleasance narrating the first segment of our video.
Tuesday, July 22, 2014
Monday, July 21, 2014
If you copied a copyrighted work without authorization, you're infringing. Whether that's unlawful depends on whether you can mount a successful defense. One possible defense is that you are a co-owner because you designed the template used in the newsletter. Proving that will be an uphill battle because common elements of web designs are not protected by copyright --- font choices, look and feel -- and because many of the design choices are limited by practical realities and should be free for everyone. If you can overcome these presumptions (and there are no written work made for hire agreements or assignments), you might be able to claim co-ownership. You might also be able to claim fair use considering that your use was for portfolio purposes and did not cause the owner a loss in revenue. Because co-ownership and fair use are expensive to prove (only a judge or arbitrator can decide), many graphic and web designers deal with these issues in their contracts by including a "portfolio provision" or by retaining non-exclusive rights for certain design elements.
Wednesday, July 16, 2014
Tuesday, July 15, 2014
What about fair use? Copyright owners seem to have reached a truce with meme-ists, realizing that hassling meme owners isn't worth the potential backlash. However, the owners of Game of Thrones could always make an exception if they feel that the government is using its copyrighted characters in furtherance of an unpopular policy. (Remember when George Lucas almost sued Reagan over the use of the Star Wars trademark?)
Can they sue the feds? Yes, the U.S. government can be sued for copyright infringement. It's possible that the government could defend itself using a fair use defense as it did here, but as we remind our readers, only a judge or arbitrator can make a final determination about what is fair use.