Monday, January 26, 2015

Nonprofit Wants to Translate Screenplay

Dear Rich: I'm the director of a small amateur nonprofit theatre company that puts on plays in Italian. We're planning our next production, and we want to adapt a movie screenplay into a stage play. This would involve translating the screenplay into Italian and adapting for the stage. Do we need to obtain permission to do this or would this adaptation by a nonprofit be a fair use? 
The copyright laws apply to nonprofits the same way they do to for-profit enterprises. When a person creates a work like a screenplay, he or she automatically obtains a bundle of exclusive copyright rights in the work. These include the exclusive right to adapt the work into a new medium or translate it into a new language. Thus, you can’t adapt a screenplay into a stage play or translate it into Italian without obtaining permission from the copyright owner. The fair use rule does not apply to the adaptation of an entire work into a new medium. Answered by Stephen Fishman, author of The Copyright Handbook.

Friday, January 23, 2015

Wants to Control Use of Video and Photos of Workshops

Dear Rich: I work for an environmental non-profit and I have a question about how to handle photos and videos at our workshops. While presenting to schools, or out in the community we sometimes have people video tape our presentation or shoot photos of our step to step instructions. If people are using the images or video for their personal use then we are ok with that, or if they have a blog and they want to post what they learned then that’s great, we could use the exposure!!! What we don’t want if people filming our workshops and then using that video to educate others, same with the photos. How can we protect ourselves from that happening? Is there some language we can include in our registration forms or we announce at the beginning of a workshop? Yes, you can put language in the registration form that permits recording for certain uses. That form should be executed at the time the user signs up for the workshop. (Alternatively, it can be executed after the user signs up, provided the user can get a full refund if he or she doesn't want to sign.) Use plain English to explain what is permitted and what is not -- for example, "Workshop grants a limited license to users to videotape the presentation solely for personal use and users may not share, duplicate or present the videotape to others." Like any contract, this limited license agreement is only as effective as in your ability to enforce it --  that is, to find violators and pursue them for breach of the license.

Wednesday, January 21, 2015

Can I Make a 90's Blog Using TV Images?

Dear Rich: I've recently created a 90's blog, where I would basically like to make posts with reviews and commentary about various things from the 90's (TV shows, music, video games, etc). I'm wondering...would it be considered "fair use" if I use a picture based on what I'm posting about? For example, if I'm reviewing a TV show, I would have a picture from the show in the post, if I'm giving my thoughts on an album, I would have a picture of that particular album in the post. Based on things that I've read on your website, I don't think that I would be in violation of any copyright laws, being that I'm only using a picture as part of what I'm reviewing. But, also based on what I've read, this seems like a very gray area that gets very confusing. I just wanted to get your opinion. Side note - I'm signed up on Google Adsense and Amazon Associates, so in theory, if my blog ever becomes huge, I could probably make money off of it (I'm not sure if that factors into anything). Although, with Amazon Associates, I would most likely just be promoting what I was reviewing anyway. 
The fair use privilege allows the public to make limited use of copyrighted works without obtaining permission from the copyright owners. One of the reasons for fair use is to encourage criticism and comment on copyrighted works. Quoting or excerpting a work in a review is a classic example of a fair use. Including a picture of a work you’re reviewing is also a good example of a fair use—this is done all the time in reviews. So long as you don’t use any more of the works involved than is necessary for your reviews, your intended use of works from the 1990s in your blog should qualify as a fair use. That said, not every copyright owner understands or agrees with the fair use rule, and some may complain even though your use is allowed by the copyright law.
Answered by Stephen Fishman, author of The Copyright Handbook.

Monday, January 19, 2015

Does Netflix TOS Trump Copyright Law?

Dear Rich: You’ve written that classroom use of Netflix might get a copyright pass but I have a question about that section of the copyright law ( Section 110). The Netflix TOS reads: "The Netflix service, and any content viewed through our service, are for your personal and non-commercial use only. During your Netflix membership, we grant you a limited, non-exclusive, non-transferable, license to access the Netflix service and view movies and TV shows through the service on a streaming-only basis for that purpose. Except for the foregoing limited license, no right, title or interest shall be transferred to you. You agree not to use the service for public performances."Wouldn’t the Netflix terms of service trump the exemption based on the idea that the acquisition for a non-private/personal purpose is illegal thereby nullifying the exemption?
It's true that Terms of Service (TOS) and End User License Agreements (EULAs), if properly executed, are considered legally enforceable and can force copyright law to the curb. But we can't say for sure how it would play out as no court appears to have addressed whether a license can defeat the educational exemption in Section 110. More importantly, the reader noted that when he contacted Netflix, they readily agreed with his educational use. That makes good legal and public relations sense. No company wants a Macarena on their hands!

Friday, January 16, 2015

Can I Video My Dedication to Public Domain?

Dear Rich: I was curious whether or not an author can declare their work as being in the public domain verbally, like say on video, as opposed to something documented and signed on paper? Does a persons verbal statements (on video or simply witnessed) hold the same legal standing as those on paper, if even at all with regard to declaring a piece of work... photo, story, video, painting, etc. as being remanded to the public domain?
Courts have held that a copyright owner may dedicate a work to the public domain simply by manifesting the intent to do so through an overt act. A signed document is not absolutely required. Thus, including a statement in a video that the work is dedicated to the public domain would likely be sufficient. However, to avoid possible disputes and misunderstandings, it is always best for the copyright owner to sign a document dedicating the work involved to the public domain. Such a document need not be long or fancy. The Copyright Office says that it need only:
  • identify the work involved--preferably including the author(s), title(s), and registration number(s) for the work (if any) 
  • provide the copyright owner’s full name and state that such person is the current owner of the copyright in the work 
  • state “I the copyright owner of this work, hereby release it into the public domain,” and 
  • be signed by the copyright owner or co-owners or by an authorized representative.
Answered by Steve Fishman, author of The Public Domain.

Wednesday, January 14, 2015

Can Musician Terminate Management Contract?

Dear Rich: I have a contract with an artist who is now seeing some success. He decided out of nowhere that he wanted to redo our contract after he got success. I refused. So he had a lawyer tell me that it’s terminated. We have 2 albums worth of songs. I’m also the indie label he signed to within the confines of the management deal he signed with me. Can I release an album if I co-wrote songs and co-authored audio production? I also co-own the masters. His lead vocals are on the album. Lastly, am I able to use his name and image? The contract says I can, but again, he says the contract is terminated. Can someone terminate a contract without a court ruling? 
The artist can't arbitrarily terminate the contract simply because he's had some success and wants out. He'll need to come up with a a valid legal basis.
What's a valid legal basis to terminate? If you failed to honor a  material term of the agreement, for example you deliberately failed to account to the musician for royalties and wouldn't correct the error, the musician could say, “That’s it, we’re done,” and terminate based on the material breach. In that case, the musician may have a reason to stop honoring the agreement. (This approach is sometimes employed when under-age musicians disaffirm management deals.) But if the reason is bunk -- a lawyer is just trying to bully you with legal hocus-pocus -- you may need an attorney's help to stop the insanity. If you prevail in a dispute, you would be entitled to payment of damages (usually what you would have received if the contract were performed). Claims of breach in management contracts are often preludes to settlement. In other words, how much will it  cost the musician to buy his way out of the contract? (BTW, a more peaceful way to terminate  would be if your management contract contains provisions that trigger termination or provide a right to terminate at will or under certain conditions, for example if the term -- the period of a time during which the contract is in force -- has ended.) Finally, as to using the musician's name and image, that may depend on whether the management agreement stands or falls.
What about the co-writing and co-ownership? It's tough to tell what your rights are as a co-writer or co-owner. The traditional rule is that any co-owner of a copyright can exploit the copyright (sell it or license it) as long as the other co-owners are compensated. But those rules may be trumped by your agreement --  for example, you may have agreed otherwise, or you both may have assigned the song copyrights to a publisher or the sound recording copyright to the indie label and established rules as to how that material can be used. In short, you need to consult with a lawyer. If you're low on funds, perhaps there is a lawyers-for-the-arts group in your area.

Monday, January 12, 2015

Who Owns My Radio Show?

Dear Rich: I invented, developed and have been broadcasting a unique radio show on an internet station for several months. I am/was a volunteer, I never signed a contract, never received any compensation for development costs or broadcasting/presenting the show. I paid for travel/music/concerts/hotels/food/internet/equipment myself. I was caught in the crossfire of two stations either partnering up or merging and was given the choice to simulcast on the other station or not. I chose not to and was asked to resign my post (I was actually doing two shows a week). Less than 10 minutes later, the station owner told me I could not take my wildly popular unique show to a different station because "she had copyrighted the name of the show and would develop it further without me." Can she even DO that in 10 minutes, and who owns the show?
We don't know what kind of show you had -- music, interviews, monologues -- but you probably own the copyright to the content that you created -- that is, the material that you would read if the show was transcribed. (In addition, you may own a sound recording copyright to the audio production.) That's assuming (1) you didn't sign any agreements with the station, and (2) you were not an employee of the station. Even if you own copyright, the station (for which you volunteered) likely acquired an implied license to broadcast or archive the show.  If, however, you co-created the content or sound recording with employees of the station you would be a co-owner of copyright which means that your co-owner (the station) can make use and reproduce the content provided it accounts to you.
Who can make new shows? Going forward, we're less interested in copyright law and more interested in trademark law. The primary trademark -- in this case, the name of the show -- has a great deal of value (or goodwill) because that's what listeners associate with the program. But who has legal rights to the trademark? Typically, the first business to use the name in commerce usually owns the mark. In the case of a radio show, it would usually be the company that produces the show. That may be you or it may be the station; we don't have enough details to say with certainty but if we were a betting blog, we might bet on the radio station. However, if the station is merely a web service for distributing the show -- for example, something like -- you would retain trademark rights. The same trademark rules would apply of the show's format, which could possibly be considered to be trade dress, a form of trademark.
Hey, speaking of radio, don't forget to check out the Dear Rich Staff on a recent episode of On the Media.

Monday, December 22, 2014

My Brother Claims I Infringed

Dear Rich: My father spent several years writing his memoirs. He wound up with 200 pages of typewritten work. He and my mother put all their estate in a trust in 1994. He passed away in 2002. My mother passed away in 2009. After her death, the estate was divided, per their will, into four equal parts. Each of the four children took what they wanted as far as material goods from the family home. My brother and I each kept a copy of my father's manuscript. Fast forward to 2014. I spent several months retyping the manuscript into the computer, adding footnotes, an epilogue and a chapter written by my father's sister  (used with her written permission). I self-published the book on Amazon. My brother found the book on Amazon and rather than contact me, he contacted Amazon, claiming copyright infringement. I've done some research, and I believe that he and I are co-owners of the copyright, and that I do not necessarily need his permission to use my father's manuscript in the manner in which I did. Am I right or wrong?
You are right. When you and your siblings inherited your mother's estate you became equal co-owners of the copyright in your father's memoirs. Co-ownership of a copyright is very similar to being a tenant in common of a piece of real property with one or more other owners. Since there are four of you, you each own an undivided 25% interest in the copyright in the work. Each co-owner of a copyright has the legal right to enter into nonexclusive licenses with others to publish or otherwise exploit the work without obtaining permission from the other co-owners. However, the co-owner must provide the other co-owners an accounting of any profits earned upon request, and share the profits according to the ownership interests. Some courts have held that co-owners may not enter into exclusive licenses without obtaining permission from the other co-owners--- for example, you couldn't grant a movie studio an exclusive license to create a movie based on the memoirs without the consent of the other owners. But, this is not what you've done with Amazon--the Createspace publishing agreement used by Amazon specifically provides that the agreement is nonexclusive. Since the publishing agreement with Amazon is a nonexclusive license, you had every right to enter into it without permission from your siblings. Their rights are limited to receiving an accounting from you and their 25% share of any royalties you earn. Likewise, any of your siblings may enter into nonexclusive licenses on their own to publish the memoirs; but they may not use the footnotes or epilogue you wrote without your permission--you are sole copyright owner of these elements you added to the original memoirs.
By Dear Rich staffer Steve Fishman, author of the The Copyright Handbook.

Friday, December 19, 2014

Consignment or Rep: Doll Deal Gone South

Dear Rich: Did I make a consignment agreement? I was at a doll show selling manufactured porcelain dolls. The woman at the next table was selling her dolls which are handmade. I was impressed with her work and offered to exhibit her dolls for sale at any of the other shows in New Jersey that I would be attending and I would like to show her dolls to some store owners and I would try to interest a few popular mail order catalogs. She agreed and gave me some of her pieces. As security measure (as we were strangers) I left with her one of my dolls that I was selling which was of comparable value to the merchandise she had given me. We did not agree on any other terms. Unfortunately, I didn't have much luck. I tried several store owners, two doll shoes and two catalogs without any interest. I had reported back to the artists at least three times during the seven months I tried to sell her work.I contacted the artist to arrange the return and exchange of our merchandise. She then told me that since I held her merchandise so long I had to pay for (buy) two pieces which she felt she could have sold at her shows and that she felt would not be her current styles in the future shows. She told me I would have to send a check for those 2 pieces ($90.00)as well as a check for $25.00 for shipping charges for her to return my piece to me. I would also have to ship her merchandise back to her at my expense. We went back and forth and I even offered to drive from New Jersey to Pennsylvania to bring back her dolls. She said in her last correspondence that she would allow for a return of her merchandise with a change being that I would still have to send a check for $25.00 to cover cost of returning my piece to me and that if she felt she could "set the other 2 pieces out for sale" there would be no cost to me. She would not agree to any other conditions. You inquired as to whether you had made a consignment deal and we don't think so. In a consignment arrangement, a gallery or store agrees to sell merchandise and pay the artist only if the merchandise sells. Otherwise the merchandise is returned. Your arrangement seems to be a rep agreement -- an arrangement in which the rep seeks to promote an artist's work to various sources, and in return receives a commission from the sale.
Insert terms here. You reached an agreement on something at that first meeting -- after all the artist accepted your doll and you took her merchandise with a promise to promote it. We're going to presume a contract was formed (although that might be incorrect if you never agreed upon financial compensation). In any case, contract or not, we think the result would be the same if the case went before Judge Judy. She'd probably seek to put the parties back where they were before the arrangement was made -- a remedy known as restitution. In other words, you'd return the dolls to each other and each pay the respective shipping costs.
What about the demanding artist? You have no legal obligation to abide by the artist's demands unless you're seeking a speedy resolution and the return of your doll. If you do decide to exchange dolls, we'd suggest you exchange paperwork confirming the terms of the resolution. And of course, if you want to rep an artist in the future, we'd suggest using a rep agreement like the one we've included in our  Craft Artist's Legal Guide.

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

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.