Monday, August 24, 2015

Wants to Copy Website's Terms of Service

Dear Rich: I run a a health and fitness blog. It has come to my attention that a medical disclaimer should be included on my website. These disclaimer appear lengthy and go into a great degree of legal jargon. I would not like to craft my own. Anyhow, if I use the medical disclaimer of another health and fitness blog, verbatim, would this be infringement? In other words, does plagiarizing a medical disclaimer (or any privacy policy, FTC disclaimer, website TOS etc.) constitute infringement? 
Yes, copying terms of service (TOS) without permission is infringement. However, you don't hear of many lawsuits over TOS theft possibly because the copyrights are so "thin" and the origins of so many are murky. That is, it may be difficult for a copyright owner to claim the TOS as an original work of authorship. (There's something strange -- we almost said "ironic" -- about the fact that TOS's prohibit copying yet they are so often, pilfered or cobbled together from various sites, often by lawyers). Another obstacle for someone coming after you is the "merger doctrine," a copyright principle that excuses copying if there are a limited number of ways to express an idea.
Bigger concerns. Even if the threat of infringement does not loom over your website, there's a bigger issue --  your ability to enforce your TOS against an errant user. If you sue someone over a TOS violation, the opposing attorney will want to know the origins of your TOS ... and that's when you have to reveal you nicked it from a competitor's website. It may still be enforceable but a legal shadow hangs over your TOS especially if you copied irrelevant sections or failed to remove names not applicable to your business.  If you want to avoid these potential hassles, there are online TOS generators and some sites such as WordPress and Automattic have made their TOS available for others to use under Creative Commons (CC) licenses. Also, the CC folks have tried to simplify the business of creating a TOS. And of course there are always attorneys prepared to create or customize TOS for your company (or copy them from treatises).
P.S. Dept. Keep in mind that a court is more likely to enforce your TOS if the user has to click to agree.

Monday, August 17, 2015

What is the Time Limit for Filing Sampling Infringement Lawsuit?

Dear Rich: I manage a band that made several songs, one in particular that has been sampled 153 times by various artists from 1988 to 2013. Except for half a dozen artists who made deals and paid (and this was negotiated and hidden from the rest of the band by one member who has since been thrown out) they have not been compensated. One of the richest men in hip hop used the song three times and never paid a dime. Of course they did not know the law and by the time they discovered it most had been sampled years earlier. Now several lawyers tell us there is a 2-3 year statute of limitation! Is that true? So there is no way to get justice for their performance being ripped off. I am not talking a couple of seconds. The drummer plays throughout the entire track on some of these recordings. 
For copyright infringements, the statute of limitations -- the legal time limit by which you must file a civil lawsuit -- is three years from when you discovered the infringement (or when it reasonably should have been discovered). In 2013, however, the Supreme Court permitted an author/screenwriter's heirs to wait 18 years before filing a copyright infringement lawsuit against the owners of the film, Raging Bull. Copyright law provides that when there are ongoing successive infringements—for example, as in this case, where copies of Raging Bull continue to be sold—the copyright owner may bring the lawsuit within three years of any infringement (and can collect damages for only the preceding three years).
Laches. Prior to the Supreme Court ruling, lower court decisions had prevented the heir's’ lawsuit under an equitable principle known as laches (it is unfair to proceed with a lawsuit when one party has waited an unreasonable amount of time to bring the claim). In light of the federal statute of limitations, however, the Supreme Court ruled that it was inappropriate to apply laches. Check with your attorney to see if this case may benefit your situation.

Wednesday, August 12, 2015

Wants to Oppose Mark for Genericness

Lockheed-Martin Paveway II Dual Mode Laser Guided Bomb 
Dear Rich: I have a question about opposing a trademark registration. The trademark was recently published for opposition at the USPTO and I have a few reasons to oppose the registration. One of them is genericness. What does it take to oppose a registration? In order to succeed with a genericness opposition, you'll need to show that the public associates the term with an entire genus of goods or service. For example Outdoor Products could not serve as a trademark for backpacks. The Trademark Trial and Appeal Board (TTAB) adjudicates opposition hearings. Here's a sampling of TTAB rulings from recent years:
A term that's generic for some goods is not generic for all -- a term like MOTELS might be generic for hospitality services but not for entertainment services.
What did the examiner do?  A mark that's been published for opposition has been examined and approved by an examining attorney at the USPTO. All legal objections have been resolved. For that reason, it may help to review the history of the application before filing an opposition. You can do this by searching for the mark in the USPTO database and then (once you've located it), clicking the "TSDR" button. That way you can see if the examiner raised genericness as an objection. (The USPTO uses "merely descriptive" to refer to generic terms). We checked the trademark you're opposing and the issue was not raised (not a good sign.)
The opposition procedure. An opposition can be filed by “any person who believes that he or she would be damaged by the registration of a mark.” Unless an extension is granted, the opposition should be filed within 30 days of publication. Unfortunately, it's not as simple as sending in a statement of opposition. Because you are initiating a proceeding at the TTAB, the opposer is required to submit a document that corresponds to a complaint filed in a lawsuit. You can oppose a mark for any reason that registration would be refused. Three helpful resources are the  rules and procedures for TTAB filing, the TTAB's case searching page at the USPTO website and the TTABlog where you can search for TTAB cases. If all of this seems like too much work, you can try a more informal Letter of Protest.

Thursday, August 6, 2015

What's the Down Side To Using a Stage Name for Business?

Dear Rich: I am in the process of making marketing videos on youtube, webinars, public speaking seminars and authoring informational books. For privacy reasons and because of my unusual and hard to spell name, I would like to use a first and last name that is different than mine in these situations. I do not plan on changing my name legally, like on my drivers license, but to feature it in these works that I publish myself. Is there any issues from a legal standpoint, that is, not holding myself properly to my clients/ customers. The main jurisdiction that I plan on doing business is Canada and the USA if that helps.
We can't comment on Canadian law but in the U.S., probably the only issues you will face are getting paid, entering into contracts, and registering copyrights. Because you are doing business under another name (DBA), you should indicate that fact when entering into agreements -- for example, "Robert Smith DBA Harry the Heretic." Ditto for filling out W-9s and W-4s for hiring parties -- use your real name for tax purposes. If you're publishing copyrightable materials under a pseudonym, you have the option to indicate that when preparing your copyright application. As for getting paid, try to set up direct deposits. Otherwise, you'll want your real name on any checks to avoid bank teller hassles (i.e., "Excuse me while I get my manager!").
P.S. Have you checked to make sure your pseudonym is not already in use for similar goods and services?

Monday, August 3, 2015

Now, Can I Use "Happy Birthday" in My Movie?

Dear Rich: I made a mini-doc and there's a segment where people sing "Happy Birthday" at a retirement home. Based on what I read the song is in the public domain. Can you verify?
No court has yet ruled that "Happy Birthday" is in the public domain but that may change. The song is the subject of a  legal challenge brought by a filmmaker who last week reported discovering the smoking gun in the case -- publication of the lyrics in the 1920s without a copyright notice. 
Backstory. Prior to March, 1989, a failure to include notice on published copies could result in loss of copyright. (The U.S. was the only country following this rule and it was one of the things preventing us from joining the Berne Convention.) The law was criticized because it punished inexperienced artists like cartoonist Robert Crumb and the troll company, and rewarded defendants who dug up published copies of the work without notice (even if those works had not misled them). 
Can Happy Birthday survive attack? To prevail, the owners of "Happy Birthday"will have to show that the 1920s distribution was a limited publication (to a limited group of people with restrictions); that the publication was not authorized; or that a reasonable attempt was made by the copyright owner to correct the error. In any case, there's some irony in the fact that this strange near-forgotten rule is being exploited by an indy filmmaker against a mega-corporation.

Wednesday, July 29, 2015

Do I Lose All Rights When I Blog?

Dear Rich, I was recently accepted as a writer for a major national syndicate of blogs covering sports teams. This company does not have a physically-signed document per article as is traditional with journals, to clearly state a work/submission is considered "work-for-hire", (where full copyright is given to the publisher from author). Instead, there is a blanket document called, "Content Standards for Contributors" that all writers must click-sign prior to writing for one of the blogs. In this is the following line: "You hereby irrevocably grant to us the right, but not the obligation, to reproduce, modify, adapt, publish, broadcast, license, perform, post, sell, translate, incorporate, create derivative works from, distribute and otherwise use the submission in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, without according you any compensation[...] All submissions made by you shall be the sole property of ***** and will not be acknowledged or returned. " My question: Almost all writers, including myself, for these blogs are not paid, are not contracted, nor are they employees, but according to their "content standards" the act of publishing on their site results in the transfer of the copyright of the article. Is this "agreement" legally binding, and considered ethical?  
A click-to-agree contract is legally binding in the U.S. and the fact that you don't receive any payment does not prevent it from being enforceable (as long as the arrangement provides some benefit to you-- for example, increased exposure versus obscurity).
Who owns what? We think a blogger entering into this agreement retains copyright. We don't think the statement, "All submissions made by you shall be the sole property of [company] and will not be acknowledged or returned," transfers copyright ownership (It seems more like a vestige from publishing agreements relieving the company from having to keep track of email or paper submissions.) We believe a court would require more explicit language affecting a transfer -- for example, using words such as "assign," or "transfer," and "copyright" and "ownership."
What type of copyright? What you retain, after entering into this agreement, is a partially-gutted copyright. That's because you give up a lot of rights on a nonexclusive basis, effectively preventing you from selling those rights to someone else on an exclusive basis -- for example,  entering into publishing agreement for a collection of blog entries as a book. But, of course, that may be "old school" thinking, ignoring the benefits of your personal brand exposure and the temporal quality of sports blogging.

Monday, July 27, 2015

Will an LLC Shield Me From Copyright and Trademark Lawsuit?

Dear Rich: I'm attempting to get licensing from several professional and collegiate sports associations, I've received licensing for some but not all and plan to sell, or would like to sell, product before all are in place. The copyright issue falls somewhat in the gray area but nonetheless I feel it's prudent to have personal liability in place. My question is will an LLC give personal legal liability protection from a lawsuit brought by one of these copyright or trademark holders? Or do I need to structure it as a C or S corporation, and if so which is better with regard to this concern?
Forming an LLC or corporation (whether S or C) can limit your personal liability but it won't shield you from negligence or intentional wrongdoing. If a court determines that you intentionally infringed, it can reach through the corporation or LLC and make you personally liable. Alternatively, a lawyer suing your business may try to “pierce the corporate veil” because you set up the LLC or corporation for  fraudulent purposes. Perhaps you can get an attorney's opinion regarding your licensing activities before you start selling your products. In either case, it's probably not best to rely on that "invisible shield."

Wednesday, July 22, 2015

What Constitutes "Publication" Under Copyright Law?

Dear Rich: I wrote an “In Remembrance” booklet when a family member passed away. About 20 copies of the booklet were given to family, friends and neighbors. The booklet didn’t even have my name on it because everyone I gave it to knew I was the author. It was not used for a memorial service and there was no sale or public display involved. Recently, I found out that one of my friends had faxed the booklet to two people he knew, even though I asked him not to. Because of the response, I’ve decided to lengthen the booklet and turn it into a short story for sale – either to magazines or as a POD book. I’ve since added my name and a copyright notice.  (1) Has the booklet been published? (2) I know that the work is already copyrighted, but should I be worried since there is a period where someone could have stolen my work and submitted a registration for copyright? 
Your booklet would not be considered "published" under the Copyright Act if you distributed it to a limited group of people with restrictions -- for example, you asked people not to copy or distribute it (sometimes referred to as a “limited publication”). In any case, we're not sure it makes much difference. If you're concerned about your rights, you should register your current version (and in your application, indicate the current version is derived from the previous booklet). In the unlikely event someone has registered your booklet as their own, you can claim infringement and also seek to invalidate the registration. You can investigate registrations at the Copyright Office website (but keep in mind that registration takes approximately four to six months so bad actors may not show up right away).

Wednesday, July 15, 2015

Does TM Registration Provide Priority for All Items Within the Class?

Dear Rich: Does a trademark registration grant the right to use a trademark only for the specific goods  or for any/all goods within the category? For example, does a registration in Class 9 for an app give the trademark owner exclusive rights for everything in Class 9? No, registration in a  trademark class doesn't guarantee exclusive rights for all the goods and services in that class. For example, we counted over a dozen different companies who had registered the mark "EAGLE" in Class 9 for products ranging from fatigue monitoring devices to business software for inventory management. The principal issue for a trademark examiner is whether consumers are likely to be confused between the two similar marks. As the USPTO advises examiners, "[I]f the goods or services in question are not related or marketed in such a way that they would be encountered by the same persons in situations that would create the incorrect assumption that they originate from the same source, then, even if the marks are identical, confusion is not likely."

Monday, July 13, 2015

If You Write It, They Will Sue

Dear Rich: I wrote a novel that is set on the city street I used to live on. The year is 1968. It follows the interaction of a dozen kids, ranging in age. At some points the teasing between the kids gets very intense: “Your mom’s a tramp. Your dad left two years ago and you don’t even know where he is,” etc. The book is essentially a comedy and all of the characters, including the one drawn from me, are presented in a broad amusing fashion. The book will include the standard fiction disclaimer on the copyright page. I have set the novel in a different city, changed all the characters names, physical descriptions, parents jobs, etc. No one would ever read my book and guess that these people were the inspiration for the characters in the book. However, there are about forty of us from that original street who still keep in touch through Facebook and my problem is that if any of those forty people ever read the book they would immediately recognize the street, and they would know who wrote the book.  Although most of them would enjoy the book, I am afraid that over time a few people might feel that they are literally portrayed and might take offense. In short, if I self publish this book, am I setting myself up for a defamation or invasion of privacy lawsuit? 
Most courts tend to provide authors with some leeway when depicting characters derived from real life. Although this freedom is sometimes framed as a first amendment defense, it more likely results from the complaining person's failure to prove his or her case. For example, if an unhappy childhood friend sued you (known as the plaintiff in legal jargon) your friend would have two substantial hurdles. First, the plaintiff must prove that the character actually depicts the plaintiff (an analysis that needs to include the dissimilarities as well as the similarities). Second the court must be convinced that you made a damaging false statement or portrayed the plaintiff in a false light. Some courts have ruled against novelists (blame it on this 25 year old case), but if you haven't completed your novel, there are simple ways to avoid the sound of the judge's gavel.
BTW Dept. (1) The right of publicity -- another claim sometimes made in these situations -- is a hard  argument to win against a novelist. (2) You cannot defame or invade the privacy of someone who has passed on.

Wednesday, July 8, 2015

The British Library Has Lost its Charm

British Library London" by Jack1956
Dear Rich: I ordered some public domain works from the British Library (assume they are absolutely, without question public domain--written in 1800s), and the British Library people say: "Here are your copies, but you can't copy them further, because, by copying them we, British Library, acquired a new copyright on them." Is this right? Can they have a copyright on photocopies of public domain works?
We're not familiar with British copyright law but, under U.S. law, creating a "slavish reproduction" of a public domain work doesn't create a new copyright. So, under U.S. copyright law, you're free to copy the public domain work. There may be a contractual prohibition on you copying the materials if you signed a license agreement with the British Library. That's a murky area and courts have sometimes ruled that the license trumps copyright.We wrote more about these issues in a previous post. In any case, this seems like a tough one for the library to enforce.

Monday, July 6, 2015

Should I Quote Hemingway or Dickens in Stage Play?

Dear Rich: I'm working on a stage play. In my play, I wanted to have a character quote two separate passages from Hemingway's "A Farewell to Arms." The first is the first two paragraphs of the novel and the second is a short dialogue exchange (four lines). In both cases, the work is sourced. Would I be able to include these passages under fair use? If not, would older work, such as Dickens be usable?
"A Farewell to Arms," first published in 1929, is protected under copyright in the U.S. until 2034 (95 years after publication date). According to the Hemingway Society permission to use excerpts from the book would come from the publisher, Simon and Schuster.
What about fair use? The first two paragraphs of "A Farewell to Arms" contain less than 200 words. That level of borrowing (plus four lines of dialogue) combined with a transformative purpose (a fictional character's quoting of Hemingway) makes your stage play a good candidate for fair use. The trouble with our analysis is that only a court can substantiate a fair use claim and we doubt whether you want to be dragged into a legal battle. In addition, if you are hoping to have your play produced, there is a strong possibility you will have to indemnify the play against infringement ... which means you'll probably want to obtain permission, anyway.
What about Dickens? All of the works of Charles Dickens are in the public domain and free for you to use without permission.
By the way dept. You could stage your play in Canada without much problem as "A Farewell to Arms" is in the public domain up north. You could also include clips of the 1932 movie, "A Farewell to Arms," which is PD in the U.S.

Wednesday, July 1, 2015

Same Sex Marriage and Copyright Redux

Back in 2013 when the Supreme Court made its DOMA decision, we reviewed the effect it would have on copyright law. At that time we indicated that the primary effect would be that in states where same-sex marriage is legal, the surviving spouse would acquire copyright renewal rights and termination rights. Now that the Supreme Court has held that same-sex marriage, is legal in all states the rule applies across the country. In other words, a surviving spouse will acquire the right to recapture copyright for pre-1978 transfers as well as the right to send and benefit from Notices of Termination.
The effect on copyright contracts. Other than the ability to terminate a transfer after 35 years, the Supreme Court decision should have little effect on contracts signed regarding copyright transfers. In the nine states that have community property laws --Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin -- spouses automatically become joint owners of most types of property acquired during the marriage. California, for example, has held that a copyright acquired by one spouse during marriage is community property—that is, is jointly owned by both spouses. (Marriage of Worth, 195 Cal.App.3d 768, 241 Cal. Rptr. 135 (1987).) This means that if you are married and reside in California (or later move there), any work you have created or will create automatically would be owned jointly by you and your spouse unless you agree otherwise. Therefore, lawyers consider it prudent for both spouses to sign any assignments or exclusive transfers of copyright. (Note a court in Louisiana has held copyrights are not community property in that state. (Rodrigue v. Rodrigue, 50 U.S.P.Q.2d 1278 (E.D. La. 1999).)

Wednesday, June 24, 2015

Can I Stop App Maker From Using My eBook Title?

Dear Rich: I recently discovered that a new Apple app is using my exact common law trademark -- a phrase associated with my former profession. Through Apple, I contacted the app designer, who said she registered the trademark with the USPTO and it was tough luck for me. Since February 2013, I have used my trademark for the title of my copyrighted eBook, which is available globally on Apple, Amazon, Barnes and Noble, Kobo and Smashwords. Since that date, any cursory internet search for those keywords would reveal my eBook, my website and my personal contact information. How can I regain control of my common law trademark? I used the trademark first, the app trademark is identical, both are used for digital products and both are available in the Apple store (and appear in close proximity in online searches).
Sorry to deliver the bad news but if you've only used the phrase in connection with a single book title, you probably have not acquired any common law trademark rights. As the USPTO puts it, "the title of a single book cannot serve as a source identifier," and as we've indicated previously, only a book title used as part of a series is registrable as a trademark. There may be exceptions for blockbuster books but you would be in a better position to chase the app developer if you offered other goods or services with the phrase.
The app developer's trademark registration. Looking at the USPTO trademark records, it appears as if the app developer's statement that she registered the trademark may not be completely accurate. Although the examiner has approved the mark, there seem to be two steps remaining in the registration process: (1) publication of the mark on the Principal Register (which is supposed to occur on July 7, 2015); and (2) the app developer must submit evidence that the mark is being used in commerce (the developer filed an intent to use or "1B" application). That leaves two possibilities. First, you can file a notice of opposition following publication. We don't think you have sufficient basis to do that but you would be best served by seeking out a trademark attorney for guidance. Alternatively, the registration may not be granted if the app developer fails to file a Statement of Use  (or seek an extension) within six months of the Notice of Allowance (The USPTO explains these procedures.)
Copyright claims? If the app developer is taking more than the title from your eBook, you may be able to frame the dispute as copyright infringement.

Monday, June 22, 2015

Wants to Use Recycling Logo As Part of Trademark

Dear Rich: I started a small comic book publishing company called Disposable Fiction Comics, LLC. We are using the recycling logo as part of our logo. I know that the recycle logo is part of public domain, but I was considering trademarking it, but I started realizing that may not be possible as it would make it private property. 
The classic recycling logo -- three bent arrows in a triangle shape --has been used in many variations in dozens of registered trademarks from recycled fabrics to recycled metals to cement to photocopier cartridges to edible marijuana seeds. It even has its own design code at the USPTO (24.17.19 - Recycling symbol) which can be used when searching the USPTO trademark database.
How the USPTO handles the recycling symbol. The USPTO treats the recycling symbol as a "universal symbol"which is "any design, icon, or image that conveys a widely recognized or readily understood meaning. The USPTO advises examiners (Note: Word document download) that a mark using a universal symbol is registrable if it:
"... is highly stylized, if it incorporates elements that are not usually in the symbol, or if it is integrated with other matter in the mark, and, as a result, a distinctive commercial impression separate and apart from the symbol’s usual significance is created or a source-indicating unitary whole is formed."
In light of the registered marks, we believe that your use of the recycling symbol meets the standards described above. Hopefully, if there are no other impediments (for example, prior users in the same field of goods or services) or other registration issues, you should be cleared for takeoff.
None of our business dept. In light of the universally recognized meaning of the recycling symbol -- to designate recyclable materials -- isn't there a disconnect when you combine it with a word like "disposable" ("something designed to be thrown away after use")? Our re-branding suggestion is attached.

Wednesday, June 17, 2015

Making an NDA With Someone in Remote Location

Dear Rich: Can you advise me as to the best process for arranging a non disclosure agreement with a party in a remote location? Can the agreement be signed and attached in an email? Would this be sufficient or is an original necessary?
Thanks to the federal e-signature law, contracts that are signed and executed electronically are as valid and enforceable as paper contracts. All you need to do is email it to the remote party who emails it back with an electronic signature. People use different types of e-signatures, including typing the signer's name into the signature area, pasting in a scanned version of the signer's signature, clicking an "I accept" button, typing in the name between forward slashes, or using cryptographic "scrambling" technology.
Jurisdiction: Where does the remote party reside? Always keep in mind that enforcing the agreement -- that is, keeping your secrets a secret -- requires a lawsuit. If you are suing an American worker -- even one temporarily at a remote location outside U.S. borders -- you're okay because U.S. courts have jurisdiction over those who reside in the U.S. But if the NDA is with a foreign national or a foreign company with insufficient ties to the U.S., you may have difficulty enforcing your agreement, especially if you must sue in a foreign country. It may help to include an injunctive relief provision and a foreign arbitration provision.

Monday, June 15, 2015

How Do I Register Revised Version of Previously Published Book?

early print-on-demand system
Dear Rich: Some years ago, I wrote a novel. I briefly offered it through a print-on-demand service, but only a very few copies were actually printed before I thought better of it and all of those copies went to me or close friends. The work was not registered with the Copyright Office at that time. Since withdrawing the book from the P-O-D service, I've made various revisions to the text, fixing some errors, refining dialogue, and so forth. I am now interested in registering the work, but because of the short-lived print edition, I'm not sure how I need to approach it. Am I obligated to submit the version published, noting the date, and then file a separate continuation with the revision? Is there a way to simply submit the current version and note that a previous, unregistered edition was published? (The current version is still close enough to the previous one to be immediately identifiable as a different draft of the same thing.) Yes, you can register the most current version but you might be better served by registering the earlier P.O.D. version assuming there are no major changes -- new characters, new plot line -- in the revision. Here's the skinny:
Do you need to register at all? Start with the principle that both versions are protected under copyright law and registration is not required to obtain rights. Registration is encouraged because it provides some benefits most of which are important if you must sue someone. Because few people have seen the P.O.D. version and nobody has yet to see your new version, you may not need to be concerned with infringement ... that is, until you distribute your revised version. 
If you do register ... The Copyright Office views your revised work as a derivative of the P.O.D. work and therefore your registration is intended to provide protection for your modifications. When you complete the limitations section of your application, you would fill it out as shown below:
Assuming the P.O.D. version is close to the revision, we would recommend registering the P.O.D. now. Later, when you are ready to publish the revised version, register that one as well, including the information shown above, as well as previous registration number and year of registration. Keep in mind that you can use your P.O.D. registration to stop someone who rips off your revised version (even if the revised version is not registered) because only the copyright owner (you) would have the right to make derivatives.
By the way dept. You would not file a "continuation." We think you're applying the patent definition of that term.  Under copyright law a continuation sheet is used to provide additional information that doesn't fit within the original paper application.

Wednesday, June 10, 2015

Can I Write Fiction Using Patented Inventions and Copyrighted Architecture?

Dear Rich: To what extent do writers of prose editorial works (whether fiction or nonfiction) need to worry about patents and architectural copyrights? Can I write a novel in which characters use or discuss some invention or technology that is covered under a current patent? Is a fiction or nonfiction description of a work of copyrighted architecture an infringement of that copyright? For example, if I write a (fictional) novel containing scenes that take place in a building subject to architectural copyright and that include narrative descriptions of relevant design features and layout (e.g., the rooms through which characters run during a chase scene), does that infringe the architectural copyright? Does it make a difference if the building is a public? 
Write away! It's highly unlikely that you'll get hassled for writing about about patents or architectural works.
Patents. Patent infringement occurs when you make, use, or sell a patented invention without authorization ... not from writing about a patent. Keep in mind, a patent is not a secret; it's published for all to see. Even quoting from patents won't get you in trouble. As the USPTO states at its website: "Subject to limited exceptions ... the text and drawings of a patent are typically not subject to copyright restrictions." That said, you could get hassled for reproducing a patent drawing. In Rozenblat v. Sandia Corp. 69 USPQ2d 1474 (7th Cir 2003), the 7th Circuit recognized the copyrightability of an inventor's patent drawings.
Architectural works.  Infringement of an architectural copyright occurs when someone copies "the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings."Architects have many modes of expressions but we're hard pressed to imagine an architectural rendering solely in words. Writing about an architectural work would not infringe the work, anymore than writing about a Warhol silkscreen, a Robert Frank photo, or any other visual work.

Monday, June 8, 2015

Can I Score a Movie Using Existing TV Themes?

Dear Rich: While scoring a movie I've been asked to use two existing TV themes. Is this even doable? Do I need a music lawyer? Anything is doable in the world of music licensing. Assuming the owners of the TV themes are open to licensing the rights, the major factors affecting the licensing price will be the type of film -- indie, documentary, studio feature (in other words, your budget), whether the song will be included on a soundtrack recording, whether you will recreate the theme (or use an existing recording), the length of use and where it is placed within the movie (for example, over opening or closing credits), and whether the theme will be used in advertising for the movie.
Do you need a lawyer? A lawyer's advice can be helpful, particularly if you must furnish the licensing agreements. But it may not be as essential if someone in the production has experience with these types of negotiations (and the TV theme owners are furnishing the agreements). You may find it more cost effective to deal with a music licensing agent, an expert in music licensing and clearance, instead of an attorney. These agents are familiar with the necessary rights and agreements and can negotiate terms that may be most favorable for your movie. Type "music clearance expert" into your search engine.
Theme music trivia: Director Robert Altman's 14-year old son earned a million dollars in royalties for writing the lyrics to the movie music (and TV theme) for "M*A*S*H. Altman earned $70,000 for directing the movie.

Wednesday, June 3, 2015

Can I Say "Life is Good" on Zazzle Products?

Dear Rich: Could someone register a phrase as a brand name and not let anyone else use that phrase? For example: I created a design using the words "Life is good when the fish are biting." I posted it on  and a couple days later they took it down saying I may be infringing on someone's intellectual property. I asked who it was and what proof did they have. They gave me this website address: I thought the words "life is good" was in the public domain and no-one could own those words and/or prevent others from using that phrase in a sentence. Can they do that or are they trying to bluff me?
We don't think they're trying to bluff you. You can freely use "life is good" in a song lyric, or as the title of your book or for other copyright purposes, but you'll run into problems using it for trademark purposes on merchandise like t-shirts, hats or ceramic cups.
How two brothers cornered the "life is good" marketplace. Life is very good for the two brothers who own Life is Good (LIG), a Boston-based t-shirt and licensing company. The brothers were struggling t-shirt manufacturers until they stumbled on their bright-sided branding mantra. Nowadays LIG generates $100 million stamping their optimistic message on greeting cards, coffee, pet supplies, frisbees, cups, musical festivals, and a whole bunch of other products and services desired by an ever-hopeful ever-consuming world. Along with this licensing and expansion, LIG has made a serious investment at the U.S. Patent and Trademark Office where LIG registrations have been issued in dozens of classes of goods including backpacks, dog leashes, luggage, bed blankets and towels, children's and baby clothing, toys, etc.
Bottom line department. Other companies have acquired trademark registrations for "Life is Good" (and its variations) for products or services not exploited by LIG. Further, you may even be able to prevail in a dispute by demonstrating that consumers are not confused -- that is, your phrase is distinguishable. But practically, we think LIG has the legal firepower (and legal presumptions) on its side. Keep in mind, that LIG has even become embroiled in disputes with people manufacturing "Life is nutz," "Life sucks" and "Life is gay." As much as we hate to see the English language cordoned off by manufacturers, we think you should consider moving on to another line.