Tuesday, February 19, 2019

Can I Post Performer's Image Without Consent?

Photo by Mark Marek Photography 
Dear Rich: I am building a webpage where visitors can register how much they would pay to see an artist's concert. Would the use of an artist's image without their consent be considered fair use?
You probably don't need the performer's permission (more on that later), but you would need permission from the owner of the copyright in the performer's photo. That could be the performer, but more likely it's the photographer, a stock photo business or a record label (or management).
Is it fair use? Your use of the pictures doesn't seem transformative, and whether your site sells tickets, or just operates as a virtual tote board of performer popularity, it's a commercial venture. These factors weigh against a finding of fair use.
But no matter ... You can get by without seeking permission by using public domain or Creative Commons images or promotional photos supplied by record labels or a band's management. Another pre-cleared source of imagery is Wikipedia where the provenance of each photo is provided by double-clicking on the Wiki picture (that's where we got the photo of Motörhead, above). If you're especially concerned about disputes, pay attention to any license limitations connected with the license -- for example crediting requirements.
Right of publicity. Aside from copyright, another legal concern is the right of publicity -- the legal right to prevent the unauthorized use of a person's image for purposes of endorsement. This shouldn't be an issue unless you are using a performer's name or image to promote your website, for example in banner ads.
Hassle factor. You may wonder -- after sorting through this legal maze -- how some sites get away without asking for permission when they use copyrighted photos. Three factors make that possible: (1) the owner isn't aware of the use; or (2) the owner doesn't consider the matter worth pursuing; or (3) the owner sees a benefit to the use and doesn't want to remove it.

Friday, February 8, 2019

Musician Looking For YouTube Royalties

Dear Rich: I signed a publishing deal with a major publisher several years ago. I had established a relationship with a popular Youtube celebrity who began using my music heavily in her posts. I made the publisher aware of this use and asked them to handle monetization. My music was streamed in the background of these posts tens of millions of times, and so far according to my publisher, my total Youtube royalties are less than a dollar. The publisher stated that it would have been the responsibility of the publisher's rep, a person who no longer works for them, to make sure that Youtube had what they needed to pay me for my music. The publisher also stated that it would have been my distributor’s responsibility, although I don’t have a distribution agreement. What can I do?
Your options are limited. There are three types of income generated when someone uses your music as the soundtrack for a YouTube video (referred to as user-generated content, or UGC) and each type of revenue has its own rules.

  • The performance royalty is paid by the songwriter's performing rights society (either BMI, ASCAP, SESAC or SOCAN). These payments are small (one songwriter reported receiving $80 for nine million video views). To get paid you have to belong to a performing rights society and have registered your song titles. The society's payment is based on data from YouTube's Content ID system (more on that, later).
  • The mechanical-sync payment is made to the owner of the song (usually the songwriter or a music publisher). It's a payment for the right to use the song on the video's soundtrack. Your publisher may have made a confidential blanket arrangement with YouTube and your payment, if any, would be determined by your publishing agreement. Songwriters who have not signed with a publisher can affiliate with a company that collects these payments such as Songtrust, Audiam, or CDBaby Pro Publishing.
  • The sound recording royalty is paid to the owner of the master recording of the song (usually a label, producer, or the artist). When your music is included on user-generated content -- for example, your song is used as the soundtrack for a dancing puppies video -- you are entitled to a cut of the revenue from advertising on the dancing puppies' page. However, you are entitled to the revenue only if YouTube has notice that your recording is used on that video. The notice is usually supplied by YouTube's Content ID system.

The Content ID system makes an audio fingerprint of your music and scans YouTube. If it finds a match, the music owner can shut the video down, or monetize it for ad revenue. Music labels have partnered with YouTube to bring their music into Content ID. Unsigned musicians, if they qualify for Content ID, can apply directly to YouTube to be part of the program. Distributors like CDBaby will manage the Content ID collections for you.
What to do? Assuming you own the master recording, you'll have a hard time obtaining sound recording royalties. YouTube pays ad revenue after it receives notice and apparently somebody failed to register your music with Content ID. You should have received performance royalties if you registered your compositions with BMI, ASCAP, etc. Your publishing agreement, if you can decipher it, should spell out your publisher's obligation. Speaking to a lawyer would be your best bet, but unfortunately, considering what musicians earn on YouTube, hiring a lawyer might not be worth it.

Thursday, January 31, 2019

Needs Historic Football Photos

Dear Rich: I am a retired NFL Veteran and also a retired Special Educator. I have written a book called "THE FIRST GAME" which is about the evolution of American Football. I need a recommendation for someone who specializes in historic American football photos. 
If you're writing about the first college game (1869) or the first NFL game (1920), keep in mind that all photographs published before 1924 are in the public domain, meaning you are free to use them without anyone's permission. To give you an idea of the breadth of imagery check out the 1,023 historic football photos, prints, and drawings available at the Library of Congress. Other sources of public domain content, for example, the Public Domain Review also contain historic football imagery.
Football photos published after 1923. If the photo you want was published from 1924 through 1963, chances are also good it is free to use if the owner failed to renew it (which 85% of owners failed to do). You can check whether a work was renewed by following the instructions in Circular 22.
If you're seeking photos protected by copyright, you'll need to either (1) deal with a photo researcher/clearance expert, or (2) deal with a photo licensing service. You can find the former by  searching online for "freelance photo researcher" or "photo clearance." As for finding photo licensing services, you're best off checking out AP Images, Icon Sportswire, and Getty (for Sports Illustrated's photo collection).

Wednesday, January 16, 2019

Obtaining 1960 Song From Copyright Office

Dear Rich: My husband published and obtained a copyright on a song and music in 1960. He subsequently misplaced his copy of the material. How would he go about receiving a copy of his song and music from the Copyright Office? 
Because it's been almost 60 years since the song was deposited at the Copyright Office, we think it will be difficult, if not impossible to access your husband's "deposit materials" (as they are known in copyright parlance). Here's why.
The material may not be under copyright. At the time (1960) that your husband's song was registered, works had to be renewed after 28 years. So, unless your husband renewed the registration in 1988, the song is no longer under copyright.
The deposit materials may have been destroyed. In order to reconcile "the storage limitations of the Copyright Office with the continued value of deposits," the Register of Copyright is empowered to destroy deposit materials when necessary. In other words, decades-old deposits without historical value are typically destroyed.
Your husband may not qualify to request deposit materials. The Copyright Office will only furnish a copy of deposit materials if the materials are the subject of litigation, a court has ordered a copy, or "written authorization is received from the copyright claimant of record or the owner of any of the exclusive rights in the copyright..." Because a lack of renewal may have terminated copyright, your husband is no longer the copyright owner.
How to obtain deposit materials. If you still want to try for your deposit materials, follow the instructions at the Copyright Office site and pay the search fees required.

Wednesday, December 26, 2018

Band Wants to Use President's Name

Dear Rich: I read your Music Law book, but it didn't have the answer to my question. I'm the leader of a covers band. As a side project, some members created a group called Trumpelstiltskin and the TrumPets. The bass player's wife is a paralegal, and she said we could get in legal trouble for using the president's name. I can't believe that's true. 
If your band is making a statement with its music -- that is, providing an opinion, commentary, parody, or another form of protected speech -- you are most likely free to use the name based on the free speech protections provided in the First Amendment. Equally important, despite their rights under trademark and right of publicity laws, most presidents don't chase after typical uses  (or abuses) of their name or persona.
That being said ... Your paralegal friend may be referring to the fact that you won't be allowed to register your band name at the USPTO. For example, in 2017 an individual sought to register DONALD AND THE TRUMPETTES for purposes of a website and a blog. The Trademark Examiner rejected the application unless Trump's consent was provided. (The application was abandoned.) However, registration is not mandatory, and an inability to register does not preclude your use in commerce.
Two final thoughts: (1) If your band does generate sufficient publicity (for example, make it on to Fox News) you may hear from one of Trump's lawyers (presumably, one that's not in jail). After all, Trump is the first president with a trademark portfolio. (2) As to "TrumPets," beware that the sound-alike term, Trump Pets,  may eventually become another of the president's marks.

Thursday, December 20, 2018

Should I Trademark T-Shirt Phrases?

Dear Rich: I have a t-shirt company, and I want to know if I need to trademark each phrase or saying I want to print or do I have to list with the Supplemental Register? $325 for each saying doesn't seem to add up.
Save your money for marketing purposes. You're unlikely to get any protection at the U.S. Patent and Trademark Office (USPTO) if you try to register clever t-shirt phrases.
But if Nike can "Just Do It" why can't I? Companies can register slogans and phrases if they signify a source for goods or services. So, if M&Ms brings back their slogan, "Melts in your mouth, not in your hands" on a t-shirt, that's branding for their business. But funny short phrases that are meant to provoke thought or laughter don't serve as branding for your t-shirt business. These phrases are considered "ornamental" by the USPTO because they are a form of decoration, not a source-identifier. You will have a hard time overcoming the trademark examiner's objection ... and the $325 trademark fee is not refundable.
What about the Supplemental Register? The Supplemental Register is like a bullpen for descriptive trademarks that don't presently qualify for Principal Register now but will, after several years of use. A trademark application that's rejected for ornamentality would not qualify for the Supplemental Register. We've written more about the t-shirt business here and here.

Thursday, December 13, 2018

All the News That's Fit to Recite With Music

Dear Rich: I'm a musician who composed a piece of instrumental music inspired by a 1995 New York Times article. When performing the music, there is a section during which I recite 110 words of the 2,443-word article. I am familiar with the Gerald Ford case, and I don't believe the text in question would stand out as the "heart" of the story. When I perform the piece, I tell audiences the source of the text. I'm now planning to record it, and credit for the text will be noted in the attendant printed material.  Does this sound like fair use? If not, what do I do? Pay for a reprint?
We think your work qualifies as "fair use" (as explained below). If the New York Times finds out about your use, we hope their lawyers agree with our analysis and leave you alone. But if they don't, they can file a lawsuit and make you prove your right to fair use. That could quickly turn into a battle of financial attrition in which your legal rights take a backseat to your bank account.
What about asking for permission? We believe that you're performing, editing, and adapting the article to a new medium, so pursuing reprint rights won't help. The Times doesn't seem eager to encourage adaptations like yours.
Editing and adaptation of New York Times content is generally not permitted, and must be approved by The New York Times. Use of article excerpts is possible with permission from The New York Times, without alteration to the intended meaning of the original text. 
You can try asking the Times for clearance. If they entertain your request, expect to pay a fee of more than $200. If the Times turns down your request, you'll find yourself in an awkward position because the newspaper is now aware of the details of your work. That doesn't prohibit you from using the article and claiming fair use (as this Supreme Court case indicates).
Is it fair use? Juxtaposing text from a New York Times article with original music gives the text a different character, a new expression, and "new aesthetics with creative and communicative results distinct from [the original work]."(Cariou v. Prince). There are other factors to consider when a judge determines fair use but as the Supreme Court stated two decades ago, "[t]he more transformative the new work, the less will be the significance of other factors." Nonetheless, two of the other three factors lean in your favor -- the amount and substantiality of the portion taken (4.5%, and it's not the heart of the work), and the effect of the use upon the potential market (what potential market is there for a 23-year old news article?). BTW, the Gerald Ford case was primarily about the right of first publication which doesn't apply to your situation.
What should you do? We want you to achieve your musical vision and we want you to stay out of court. As for the latter, here are some things to consider.

  • Is the Times likely to find out about your use? Obviously, you're better off if the answer is "No."
  • Will the Times pursue the matter if they find out? We like to think that the Times would be reasonable, recognize your borrowing as fair use and, as champions of free speech, would not want the publicity of going after a music composer.
  • Are you a worthwhile target? If you're not wealthy and not selling a lot of records, you're usually less appealing as a defendant.

Tuesday, December 4, 2018

Satire, Parody and Fair Use -- Gulliver's Travels

Dear Rich: I'm working on a modern update of Gulliver's Travels. Like the original it's a satire, and in one of the chapters Gulliver travels to an island populated by film characters like Forrest Gump and Dirty Harry. I am concerned that my use of the characters will infringe copyright. I have read that parody can be protected as fair use but satire cannot. 
Yes, parodies are more likely to receive protection but don't give up on fair use just because the work is a satire.
What’s the difference between parody and satire?
Parody is the imitation or copying of a work or a genre to make fun or comment on that work. For example, the film Blazing Saddles copies and imitates many classic western films to make fun of those works. The same is true of Austin Powers, Scary Movie, Spaceballs, This is Spinal Tap, and Shaun of the Dead. In a satire, the work ridicules or derides some aspect of society or human behavior. Some well-known movie satires include Dr. Strangelove, Catch 22, Office Space, Animal Farm, and Idiocracy. 
Dr. Seuss v. Dr. Juice. Satire and parody are not mutually exclusive and may be confused with each other. That was the case when the estate of Dr. Seuss sued the creators of The Cat NOT in the Hat!, a book that retold the O.J. Simpson murder trial in the poetic meter used in Dr. Seuss books (known as anapestic tetrameter). Billed as "A Parody," the Dr. Juice book featured a front and back cover illustration similar to The CAT in the HAT. The district court found that the Dr. Juice book infringed Seuss copyrights. On appeal, the creators of Dr. Juice claimed fair use based on parody. The Ninth circuit disagreed ruling that the Dr. Juice book was merely a retelling of the OJ murder trial:
"Although The Cat NOT in the Hat! does broadly mimic Dr. Seuss' characteristic style, it does not hold his style up to ridicule. ... [The creators of Dr. Juice] merely use the Cat's stove-pipe hat, the narrator ("Dr. Juice), and the title (The Cat NOT in the Hat!) "to get attention" or maybe even "to avoid the drudgery in working up something fresh.
The underlined sections are taken from the Supreme Court's holding in the Two Live Crew case in which the court also stated:
"Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing."
What can you do? Just because your work uses humor doesn't mean you have to get caught up in the parody/satire conundrum. The "parody defense" places most of its emphasis on the first of four factors but these factors are configured in many ways to build a fair use defense. The best approach is to review the case law summaries at the Stanford Fair Use site or at the Copyright Office Fair Use Index.

Wednesday, November 21, 2018

News Aggregator Chased by Photographer

Dear Rich: I run a news aggregator that uses RSS feeds to pull in a headline, a small photo and a few lines of text. We pull content from maybe 2,000 sources. Visitors who want to read the full story click on a “read more” button and get taken back to the original source. I recently have been sued by a photographer whose photo appeared on our site. We gave the original source credit for the story and the photo, and of course we provided a link back to the original site. This photographer says I didn’t have the right to include her photo on our site. Now it looks like we might be heading to court. If I truly have done nothing wrong and if what I’m doing is considered fair use – whatever that is – why should I be punished or even subjected to all this? My site is relatively new and I have put significant money into the enterprise. I need time to build this up, and now I’m being threatened. I have tried to reach the publication that published the photo to see if it can shed more light on this, but nobody answers my emails or voice messages. It’s a big publication; it’s hard for me to believe they didn’t have the rights to publish on the Internet.
We don't believe it matters whether the big publication had permission to publish the photo. If they did have permission, it wouldn't extend to you. If they didn't have permission, you're still in the same pickle.
So, how do aggregators do it? Not all news aggregators operate from an identical model but it's generally considered "safe" -- meaning you won't hear from any lawyers -- to publish only the headline, a link back to the news source, and perhaps some original text describing the content (without reproducing it). How do news aggregators like Apple, Google and Yahoo! reproduce photos and text? These aggregators pay for permission to reproduce publications like the New York Times and the Associated Press. They don't pay smaller news sources and these publications don't object to being aggregated because they reap the benefits of link backs that result in more traffic. As you can see, a free lance photographer who reaps no financial or linking benefit from aggregation may find it more lucrative to chase infringers, especially small companies that can't afford to fight.
Making a case for fair use. We assume you used the complete photo. And we assume you didn't use it for a transformative purpose. Both of these factors make it hard to argue for fair use. If you had displayed a thumbnail of the photo, you may be in a better position. In a 2007 case, a court ruled that Google’s thumbnail reproductions of images from an adult men’s magazine website were permitted as a fair use primarily because the purpose was transformative -- the thumbnail was used for indexing and searching. (See also this 2003 case.)
What should you do? First get proof that the photographer does own the copyright. Obtain a copy of the registration and look for contradictions -- for example, she assigned the photo copyright to someone else, or the photo was a work made for hire. Second, run an image search for the photo. You should contact the websites who have also reproduced the photo to learn if they have been hassled and if so, what was their resolution?  Third, consult with a copyright attorney and ask for an estimate of your odds and your costs. (Be wary of Pyrrhic victories). Also, check your business insurance just in case the policy covers copyright infringement.

Tuesday, November 13, 2018

How to Donate Book Royalties

Dear Rich: How do I go about donating a portion of royalty proceeds from a book to a charity? 
If your publisher is amenable, the easiest method to donate royalties is to request that your publisher pay a portion of your royalties directly to the charity. You can formalize the payment (or payment system if you wish to cap payments or limit them to a specific time period) by including the details in your publishing agreement or in an amendment.
If the publisher isn't willing to make separate payments to the charity, you can either pay the charity directly from your royalty payments, or you can contact the charity for assistance. Many nonprofits have a mechanism for receiving royalties while the author is alive (or as "legacy gifts" following the author's death).
Taxes. The practice of donating book royalties to nonprofits was popularized in the 1980s when authors and publishers began to reap the marketing benefits of being aligned with a social cause (for example, a portion of royalties for a Rock Hudson biography was donated to an AIDS foundation). Some editors and authors believed the practice would also provide tax benefits. In reality -- unless you assigned the book's copyright (which means you give up ownership of your work) to the charity -- there may not be any tax benefits from donating a portion of the royalties. For example, if your publisher pays 75% of royalties to you and pays 25% to your charity, you would still be taxed for the full 100%. You can receive an income tax deduction for your donation, but this deduction can't be more than 50% of your adjusted gross income for the year -- a formula that may not provide much tax relief.

Monday, November 5, 2018

Is 1963-1964 Horror Film in the Public Domain?

Chrysler Avanti 1963-1964
Dear Rich: I restore public domain films so I'm familiar with the rules but I'm having difficulty determining the copyright status of an horror exploitation film from the early 1960s. The copyright registration was made in the 1980s and states that the film was first distributed in 1964. However, a few online sites such as IMDB state the film first debuted in1963. According to my research the different years (1963 or 1964) could make a big difference in copyright status. What should I do if the first release was really in 1963?
If the film debuted in 1963, then it is probably in the public domain. If its debut was 1964, the film is very likely still under copyright. The reason: works first published before 1964 had to be renewed otherwise they became public domain. Only 15% of works were renewed so the odds that a B-picture from fifty years earlier was renewed is slim. However, works debuting in 1964 (and through 1977) did not have to be renewed and are protected for 95 years from publication date. (In the case of a 1964 film, that would be until 2059.)
What do you do? Under copyright law, the copyright registration for the film creates a presumption of ownership and you have the burden of rebutting that presumption. You will need evidence. An IMDB listing is helpful but not determinative. You would be better served with newspaper or trade advertisements or reviews. Also helpful would be the date of the copyright notice on the film or posters, as well as research performed by sites like Horrortheque. Finally, you should have a Copyright Office search performed to see if the film was renewed (only renewals for books are available online). All of this evidence gathering may put you off the project but it will all be necessary if the current copyright claimant comes after you and you need to defend your position.

Wednesday, October 31, 2018

Can I Set Amelia Earhart's Words to Music?

Amelia Earhart, 1937

Dear Rich: I'm inquiring about setting Amelia Earhart's words to music. She published three books between 1928 and 1937, and a poem (Courage, From an Airplane, To M_). She was declared dead in absentia January 5, 1939 (aged 41). How could we determine whether or not her work is public domain? The website, ameliaearhart.com, states that CMG Worldwide acts as the exclusive agent for Amelia Earhart.
CMG Worldwide represents Amelia Earhart for branding opportunities -- that is, they license Earhart's image, name, or personna to sell a product or service (much like her husband,  G.P. Putnam, licensed her name and image for Lucky Strikes).  Although CMG states that it "specializes in clearing copyrights, trademarks, and rights of publicity," we couldn't find any evidence that the agency claims or clears copyright on Earhart's literary properties.
Copyright research. In any case, a bit of research may moot any need for permission. Literary works published between 1928 and 1937 are protected for 95 years provided that they were renewed 28 years from first publication. (Less than seven percent of books were renewed). Literary renewals can be searched at Stanford's Copyright Renewal Database. A search for Amelia Earhart turned up one renewal for "The Last Flight," first published in 1937 and renewed in 1964 (see below). So, that work is protected until 2032.

We also searched under Earhart's husband's name (Putnam co-authored many books) but found no other renewals for her. In other words, the poem and two of her books, "20 Hours, 40 Min: Our Flight in the Friendship," and "The Fun of It," are not showing up as renewed. Assuming the database is accurate, these two books (and the poem) would be in the public domain and free to use. However, even if this correct, we're not clear whether CMG Worldwide would pursue you should you choose to create a musical based on Earhart's life (or even a t-shirt with Earhart's image).

Thursday, October 25, 2018

Can I Trademark My Cat?

Dear Rich: Can I trademark my cat? I am writing a book about my cat's fictional adventures and using his name. The book contains drawings and photographs of him, too. 
It's possible to use trademark law to obtain exclusive rights for your cat (as one feline has proven). However, there are some things to keep in mind.
The USPTO will only register a book title if it is part of a book series (for example, Pete the Cat for children's books).  So you won't be able to federally register your cat's name for books until you've got a second book. You can, however, register in a different class.
What are classes? When you apply for a trademark, you seek exclusive trademark rights for a class (or classes) of goods or services. For example, if your cat were featured in a series of books, you would register in Class 16 (Paper Goods). If your cat was a superstar on Instagram and earning money from live performances, you would register in Class 41 (Educational and Entertainment Services). Your registrations are restricted to those classes of goods or services that you are currently selling or that you plan to offer (if you are registering on an intent-to-use basis). For each class of goods or services that you register, you must pay a separate registration fee and you must meet the basic trademark requirements.
What about copyright? Copyright provides the exclusive right to reproduce or modify a creative work such as music, art, photographs, books, and movies. You'd use copyright law to protect the text, illustrations and photos. Keep in mind that even though it's your cat in the photo, you don't own the copyright unless you took the picture or paid for the rights. (The photographer usually owns the copyright.) A combination of copyright and trademark will augment your cat's intellectual property rights so you can concentrate on earning the big bucks.
P.S. What about your cat's right of publicity? Humans can stop others from using their likeness to endorse products under the right of publicity, but animals don't have a right of publicity as we explained in a related question.

Monday, October 15, 2018

Can I Use Baseball Player's Image in Book on Batting?

Dear Rich: I'm writing an educational book teaching techniques on how to hit a baseball,  using images of professional baseball players showing their swings. Are releases or consents required from each of the players to use their likeness? 
No, you probably don't need permission from the players to use their image but you will need permission from the copyright owners of the images you are using.
The right of publicity. The right of publicity gives individuals the ability to stop the unauthorized commercial use of their likeness or personna. The right of publicity typically does not prevent editorial or informational uses, only commercial uses. For example Michael Jordan could prevent the unauthorized use of his likeness in a supermarket advertisement, but James Brown could not halt the sale of James Brown images by Corbis, a stock photo company that provided images for editorial uses. As long as you avoid creating the impression that the baseball players endorse your book -- that is, you don't use the player's likeness in the ads or on the cover of the book -- you should not have any right of publicity issues.
Copyright permissions. What's the source for your photographs? If you've been grabbing screenshots from the Internet, you may run into a problem if the copyright owner sees your book. That's because most baseball imagery from the past fifty years is still protected by copyright. If you've been operating with pictures from fee-based stock photos services such as Getty, AP Images, or MLB, you should be fine.
P.S. Don't forget trademarks. If prudence is your thing, avoid MLB references in ads or on the cover of your book.

Tuesday, October 9, 2018

Whistleblower Wants to Blow Off NDA

Dear Rich: Does an NDA (nondisclosure agreement) prevent me from reporting illegal activity at work?
A whistleblower -- an employee who has a reasonable belief that an employer is violating the law and who reports the violation -- is often protected from retaliation by a patchwork of whistleblower laws. In some cases, these laws are aimed at specific employees -- for example, federal employees, military personnel, and employees of companies regulated by federal agencies. In other cases, when whistleblowing involves disclosure of trade secrets, and the employee has signed an NDA (nondisclosure agreement), federal and most state laws grant immunity to the whistleblower for violation of the NDA. In one case, a court ordered a company to revise its NDA to include a clause recognizing whistleblower rights. In addition, some companies have internal whistleblower reporting procedures that may have to be followed. For all these reasons, and because of the risks involved in whistleblowing, an attorney's advice is essential.

Monday, October 1, 2018

How Does Landlord Legally Remove Mural?

pre-historic Lescaux cave drawings 
Dear Rich: I own a building and the previous owner had commissioned an artist to paint a mural with maritime themes. The new tenant doesn't want to keep the mural. I was told by another landlord that there is a law to follow before getting rid of a mural. What's the correct legal procedure? 
Assuming the mural was created after December 1, 1990 and is recognized as having “artistic merit” or “some level of local notoriety," or is of “recognized stature” as an artistic work, the mural cannot be destroyed without properly notifying the artist. This is based on the federal Visual Artists Rights Act (VARA) and is true regardless of whether the artist owns copyright or whether the artwork is finished. Under VARA, the property owner must give the artist 90 days notice. This article details what happens in the real world and explains that the landlord's primary responsibility is to "give notice at the artist’s last-known address and wait 90 days for the artist to remove [the artwork] at his own expense." A few states have art preservation laws as well. The California Art Preservation Act (CAPA) is often used in combination with VARA lawsuits. For example, when a building owner painted over a famous L.A. mural without first providing notice as required under California law, the artist sued under the California and federal laws and recovered 1.1 million.

Monday, September 24, 2018

Sony Complains About Bach Soundtrack Music

Dear Rich: I am an animation student working on a short film that uses Bach's Unaccompanied Cello Suite 1 Prelude as a background audio track. The Bach music track is nine minutes long, edited down to 90 seconds. Since Bach was a composer from the 1700s, I figured I wouldn't be facing copyright claims, but upon posting it to YouTube, I received a copyright claim from Sony Music Entertainment on behalf of Sony Classical. I planned on sending my short to a student film festival.
Two copyrights are associated with musical recordings: the "musical composition" copyright for creating the music (what would have been Bach's copyright); and the "sound recording" copyright for the audio recording and arrangement (Sony's copyright). Although all of Bach's musical compositions including Cello Suite 1 Prelude are in the public domain, some of the recordings are protected. Apparently YouTube's Content ID police tracked down your use. 
Getting "master use" rights from Sony for a student film may be difficult, expensive, or impossible. You can start by contacting Sony Music Licensing. If that doesn't work, here are three other choices.
Stock music version. The easiest solution is to license a stock music version of the piece. Companies such as Pond5.com feature multiple versions for $20 to $30. Run a Google search to find other Creative Commons or public domain versions of the cello suite.
Fair use. You could respond to the YouTube copyright claim by claiming fair use. However, if Sony disputes your fair use argument, you may have to make your case in federal court. Also, there could be a problem entering festivals because you may have to warranty that your movie contains no infringing material. Festival directors may not appreciate the fair use analysis.
The semitone/transpose hack. There are anecdotal reports that transposing the audio by a semitone or speeding it up slightly can prevent Content I.D. from catching infringing uses. (There are contrary indications as well.) In any case, it's still infringement.
For your FYI Dept. There was no copyright law in Germany during Bach's life, and according to some scholars, the composer allegedly took advantage of that fact.

Wednesday, September 19, 2018

Mom Wants Tax Loss From Daughter's Recording

Many moms have encouraged their pop star daughters' success
Dear Rich: I'm a CPA and I can’t find much information on how a parent of a minor should structure a business with their child. My daughter is a 16-year-old singer/songwriter and she is recording her first EP. Obviously, I am paying for everything. I can’t decide whether an LLC is best and if I did that how would I do the ownership. I’d love to get the tax loss on my tax return.
Your daughter's lucky to have a savvy mom who recognizes the importance of managing her music finances. If the money you spend on your daughter's business exceeds your daughter's income for the year, your business incurs a loss. There are a few ways to address your losses:
Sole proprietor (You own the business). [Pros: Easy to create and manage. Cons: No limitation on liability, only suitable for a single owner.] Claiming the loss as a sole proprietor as a "Schedule C" business requires the least paperwork. You create a business to promote your daughter's music and as sole owner, you file a Schedule C with your Form 1040. That allows you to deduct your music business losses against regular income. There are some caveats, as you probably know, the main one being the 3-out-of-5 year rule. You may want to sign an agreement with your daughter compensating you when she begins making money from music performances or recording.
General partnership (You and your daughter own the business). [Pros: Easy to create and manage. Cons: No limitation on liability, each partner is liable for other partner's actions.] If you want to own the business with your daughter, you can form a general partnership. You don't have to register your partnership with the state and you don't need a written partnership agreement although it is helpful for documenting the percentage of ownership. A partnership does not pay taxes, but it must complete and file a tax return (Form 1065, called an “informational return”) and each partner also receives a Schedule K-1, which contains the relevant profit or loss information. Based on the information in the K-1 form, the partners declare the loss (or profit) on their individual 1040 tax returns using a Schedule E. Like a sole proprietorship, you can deduct the partnership loss against regular income.
LLC (You -- or you and your daughter -- own the business). [Pros: Limits personal liability. Cons: Must register with the state; fees required for formation (and in most states, owners must pay annual maintenance fees).] An LLC reduces personal liability, a factor which may not be of great importance at this point in your daughter's career. Tax forms for an LLC are prepared in the same way as they are for a sole proprietorship (as in the case of a 1-person LLC) or partnership (in the case of an LLC with two or more members). Because of the expenses of forming an LLC, we'd suggest waiting until your daughter has achieved some measure of success with downloads or bookings.

Monday, September 17, 2018

Coach and Player Interview Release

Dear Rich: I am interviewing members of a high school team and their coaches for a book. I have a release agreement for players but not for the high school coach. How should I adapt the release?
A signed release (as we explain here) should serve two purposes: the subject consents to use of interview statements, and the subject releases you (and your publisher) from being sued for libel, invasion of privacy, or copyright infringement (since the speaker’s words may be copyrightable).
Player v. coach. There shouldn't be a substantive difference between a player's release and a coach's release except for the "parental consent" provision that you can use for players under the age of majority (18 in most states). We've posted a sample interview release at the Stanford Fair Use site that includes an optional "parental consent" provision. (We've written about parental consents here and here).