Wednesday, May 20, 2015

Band Wants to Add New Members

Dear Rich: I'm in a band that has an incomplete lineup at the moment. Right now it is just 3 of us (2 guitar players, 1 drummer). We have a good handful of songs fully written and arranged. In the meantime, we are still looking for more people to join. How would it work if we go about copyrighting our music now just to get out there as a trio? I know when you file a copyright, you can always add to it later but is there a way to make the three of us principal songwriters and have the rest of the band (once it's completed) still get credit for the music later on?
Copyright is automatic so once your trio creates a song (song copyrights) or records an album (sound recording copyright) the three members are all co-authors and co-owners by default (assuming that all three contributed to each effort). If you filed copyright applications for either the songs or the sound recordings, you would list the three contributors as the "authors."
When you add a fourth member ... You should not revise an existing registration (or file a new one)  unless the new member modifies one of your existing songs or recordings -- for example, a bass player helps you modify an existing tune by composing a new chorus and bridge. You can always share revenue from existing copyrights with new members -- for example paying them song royalties for songs written before they joined the band but that doesn't require modifying the copyright information for existing copyrights. We recommend that you create a band partnership agreement to best deal with adding new members (and we explain how do that in our Music Law book).

Monday, May 18, 2015

What Do I Write to Prevent Infringement?

Dear Rich: I read your post on How Do I Word a Copyright Disclaimer for YouTube? How about if I am the copyright owner? What should I write to prevent somebody from infringing on my content? 
If you want to post a warning, something similar to the following would be standard:
"© 2015 [Name of Copyright Owner] This work is protected by copyright and you may not copy, distribute, or modify it. Failure to comply exposes you to legal action for copyright infringement."
If you want to give your warning a more dramatic vibe, you're also free to download and post the FBI's badge-like warning.
However, don't expect these warning to be much of a deterrent. As the RIAA and MPAA are already aware, copyright warnings have negligible effect on content piracy (just as alcohol and tobacco warnings have little effect on drinking and smoking).

Be Prepared. We think it's more important to be prepared for copyright infringement than to warn against it.  For example, registering your work can provide benefits if you must chase an infringer (and the certificate of registration adds some gravitas to your cease and desist letters). You should also learn how to police for infringements -- for example, for free you can create a Google alert or a Google reverse image search. And of course, include your copyright notice (© [Year] [Name]) whenever possible.

Wednesday, May 13, 2015

Who Do I Have to Sue to Get a Cup of Coffee?

Dear Rich: The Keurig company sells coffee brewers equipped with DRM technology. The next model will discontinue the DRM as Keurig cited poor sales and consumer complaints. Another coffee company has been selling a little plastic device that allows consumers to circumvent Keurig. Are these devices grounds for a lawsuit?
Digital rights management systems (DRMs) may be used to limit access to Java®, but we don't think they'll work for java. For legal and customer relations reasons, we don't think Keurig will pursue those who circumvent their technology.
Keurig's system. Keurig's coffee machines won't make coffee if a non-authorized coffee-filled pod is inserted (unless consumers jerry-rig a workaround). As a result of declining sales, Keurig is reintroducing its re-useable pods (permitting users to choose their own brew) but it's not clear whether Keurig will ditch its scanner/DRM entirely.
Is Keurig's system a DRM? DRM (or digital rights management) refers to methods for restricting post-sale usage of (or access to) a copyrighted work such as music at the iTunes store or books sold via Kindle. Cracking, reproducing, or tampering with DRM technologies violates the Digital Millennium Copyright Act (DMCA). This all works out well for movie studios seeking to protect copyrightable content but not so well for manufacturers seeking to limit access to non copyrightable works like garage door openers and printers (and we assume coffeemakers). As one commentator put it:
In cases involving manufactured products, where the products are part of an interoperable system, courts have found that DRM controls must be closely linked to the underlying copyright interest in order to have DMCA protection. 
So, we don't think Keurig will have much luck claiming a DMCA violation. In addition, the DRM-ing of coffee makers may also lead to antitrust problems.
P.S. #1 The Keurig consumer fiasco is part of a growing consumer rebellion (sometimes known as the "right to repair" movement) involving farmerscar customizers and other angry consumers blocked by software from modifying and fixing products.
P.S. We're going to assume the last sentence of your question was either an unintended pun or the product of an over-caffeinated mind.

Monday, May 11, 2015

Corporate Use of Lego Star Wars

Dear Rich: I make many presentations for internal company use on topics in the range of safety, health and quality. I wanted to start taking photos of Lego Star Wars figures in different poses and staging for some of my slides. Would this be a Lucas Films or Disney infringement on the Star Wars characters? I would not be selling the presentations and they would remain in house. I would, however, be printing slides in the form of a handbook for use within the company and would therefore have the Star Wars lego characters displayed. I will also be presenting at a national trade show in the future. Would the use of the Star Wars Lego figures change in any regard assuming it was ok for internal company use? In other words, now that the presentation would have a larger audience, would that be infringing on the star wars brand? Does any of this change if I use a more generic Lego figure like a fire fighter or construction worker?
We preface this by saying that there's a big difference between the uses you describe for corporate purposes than if the characters were used for personal creative purposes -- for example, for a few YouTube episodes. The Lego Group and Disney are more likely to tolerate personal uses than corporate uses because corporate borrowing may imply association or endorsement, and because corporations are solid targets with bigger pockets. In general, we think:

  • your internal uses on slide presentations are infringing but may go unnoticed by lawyers for the Lego Group and Disney, 
  • your national trade show presentation is more likely to be noticed, 
  • your use of the handbook, if discovered, could add to legal problems for your company, and
  • use of non-Stars Wars Lego characters, if discovered by the the Lego Group, would likely lead to the same problems.

You've been warned. If any of the uses are discovered -- for example, a disgruntled employee or a competitor reports you to the Lego Group -- you'll likely be liable for copyright and trademark infringement. As the Lego Group explains succinctly here, and in their downloadable Fair Play Brochure (the link can be found on this page):
Time and again, we see our products and trademarks used in the marketing of totally unrelated products and services, giving the impression that the Lego Group is somehow involved in or associated with such business activities or services, with which we are not actually involved. When used in these unrelated settings, be it in printed material or on the internet, the value of our trademarks may be diminished and the identities of our company, our products and our trademarks can lose their distinctiveness.
These statements don't have the force of law but you get the picture. You don't want cease and desist letters showing up in the mailroom. It's best to either obtain permission or find another method of making your point.
P.S. If this seems daunting, keep in mind that even the makers of The Lego Movie had trouble getting permission.

Wednesday, May 6, 2015

Interactive Streaming Plus Singer Imitation

Dear Rich: I need to find out how to internet-post my own recording (cover) of some songs by a well-known Canadian singer/songwriter. There is a wrinkle. I have the ability to imitate the style of the original artist fairly closely. Not an exact duplicate, of course, but done "in the style of" the artist. I would like to find out how this would affect the permission-seeking process and if there is something special about this kind of request. My plan is to: record a capella versions of the songs; post them on a Tumblr blog with a suitable still-photo. I'm not planning to charge anyone who wants to listen to the short clips or entire songs.
What you're planning sounds like "interactive digital streaming" (also known as "on-demand"). That's when a user can listen to a song upon request without having to download a copy. It's the process used at Spotify, Bandcamp, Rhapsody, and any website with a music player that allows you to start and stop the music. If you're permitting interactive streaming of a cover song, the proper legal course of action is to obtain a license from the Harry Fox Agency (HFA). According to HFA's site, the company offers licenses for interactive streams for one cent ($0.01) per stream via its Songfile service. Licenses are available for a minimum of 100 interactive streams up to 10,000 interactive streams per song licensed. These licenses are valid for one year.
Imitating the singing style. We're not sure imitation is always flattery, but we are pretty sure it's not infringement. Copyright doesn't recognize style, vibe, feel, or genre only original content (though that rule has been tested recently).  Where you might get into trouble is if you lead people to believe that the recordings are by the original artist. That shouldn't be an issue unless you begin selling the music in a manner that causes people to believe that the artist is involved with your tracks, or if you use the recordings to sell a product or service. You can probably avoid that issue with a prominent disclaimer such as "Mr. Famous Canadian musician is not associated with this recording."

Monday, May 4, 2015

Songs About Twitter

Dear Rich: I'm a composer looking to set texts from blog/Facebook/Twitter posts. Probably 20-30 words from each post, woven together in a musical work. My question is are posts made on social media sites considered public domain? If not, does fair use come into play here since I'm using so few words from each post and weaving them together into a new and unique work? 
We think you should proceed with your project. Here are some rules to guide the process:
Short phrases are not protected under copyright. That's right, copyright does not protect short phrases. The trouble is that nobody is clear as to how "short"  a short phrase can be. We've written about "protectable brevity" before and as we pointed out, it's not the number of words taken, it's the uniqueness and value of the words as well as the way in which you re-use them. The risk meter generally goes up when you take more than about 20 words.
Fair use may work but ... Even if the posts are protected, your project sounds ideal for fair use protection -- that is borrowing short amounts of verbiage for purposes of commentary or transformative purposes. Of course, we must always point out that fair use is a defense that is raised after you're in a dispute.
Just Sayin' Dept. It's unlikely someone will sue over the use of a tweet or a 20-word Facebook entry but one individual who borrowed Tweets for her own artistic purposes suffered backlash in the marketplace. For the same reason you should avoid posting any tweets or posts that identify an individual and reveal personal information. It's unlikely someone can claim privacy concerns over a Facebook or Twitter post, but if you're seeking smooth sailing, you should avoid that sort of activity.
BTW Dept. There's exciting news for copyright geeks: The Copyright Office has unveiled a searchable fair use database. Check it out.

Wednesday, April 29, 2015

Hockey History Book: What Can I Use?

Dear Rich: I am writing a hockey history book and would love to include photos of players and memorabilia, but I don't know how I can do this while keeping my costs low, and making sure I don't use someone else's photos illegally. What if, for example, I buy an original photo (like a press photo)? Can I legally use this in my book or do I need to get permission from the photographer? Also, if it is an old hockey card from the 1970s, can I scan it and put it in my book since I paid for the hockey card and it is mine? What about memorabilia? If I take a picture, for example, of an old ticket stub or a t-shirt, would this be considered my own photo, and thus, making it legal for me to include it in my book? I'm very confused right now. I should also add that I am a resident of Canada, but there is a good chance my book will be published by an American publisher since the topic of the book is the California Golden Seals. 

Unfortunately the rules are complicated (so complicated we had to write a book about it). Here are a couple of U.S. legal principles to help you avoid the penalty box:
PS Dept. If you self publish your hockey book you have the constitutional right to sell it outside hockey stadiums.

Monday, April 27, 2015

Generic Soccer Balls

Dear Rich: (1) My understanding is that the word "soccerball is in the public domain and can't be registered as a trademark, am I right? (2) What about if someone invents a sport? Does the inventor of the sport get trademark rights? 
(1) Terms that are generic for the goods or services are not registrable on either the Principal or the Supplemental Register under any circumstances. So, "Soccer Ball" can't be registered as a trademark for soccer balls. But it can be registered as a trademark for other products, for example, bubble gum.
(2) You wouldn't get trademark rights for inventing a sport. You only get rights when the mark is exploited in connection with goods or services. So, if someone invented a sport, or recreational activity, for example, Knockerball, and exclusively exploited the mark in commerce, a trademark registration may be awarded. The challenge for the owner is to avoid having the mark become the generic name for the activity, in which case trademark rights will be lost .

Wednesday, April 22, 2015

Wants to License Oral Histories

Dear Rich: I founded a nonprofit that is an archive of oral histories. A European museum wanted to feature three stories from my project in an exhibition. They asked me under what conditions I'd allow use of material belonging to the nonprofit and whether my license would also cover the rights of the three stories in particular. Since this is the first time I've had to seriously consider how to protect my work I'm unsure as to what I should request to ensure my work is safe. 
The answer depends on what rights you have to license. We reviewed your standard release and it authorizes your nonprofit to "use, reproduce, and/or publish video footage for educational and informative purposes" and to use it in "public affairs releases, or for other related endeavors." That language is suitable for using the material in association with your nonprofit, for example, at your website or perhaps at presentations made by the nonprofit. We're not clear about the meaning of "related endeavors" but, a conservative analysis would not include licensing the material to a third party. (We would feel better if the release specifically granted you the right to license the material to third parties.) If we're correct, you would should contact the subject and seek consent to license to the European museum. That makes sense, considering the personal nature of oral histories.
What should you seek from the museum? Once you have the necessary permissions from your subjects you would enter into a license agreement with the museum. You would need to define and limit reproduction and display/performance rights (how many copies, how many streams, what forms of media), length of license (how long the museum can use the material) and payment, if any. These arrangements are sometimes simple, sometimes complicated. We provide examples of these types of licenses with explanations in our book on permissions. Also, because it could be a challenge to enforce an agreement with a European museum, we'd suggest a little bit of research, if possible, to learn about the museum's past business dealings.

Monday, April 20, 2015

Who Periscoped My Game of Thrones?

Dear Rich: I have a basic understanding of copyright law, and my impression is that certain types of live-streaming could be defended as fair use -- for instance, if someone Periscoped "Game of Thrones" while offering a live critique of it. Or maybe if someone Periscoped a group of friends watching the show. My question is – at what point, if any, does live-streaming become “transformational”?
"Periscoping" refers to live streaming via the Periscope app to friends, and we doubt whether transmitting a complete episode of "Game of Thrones" would qualify as a transformative use, even with a live critique. A transformative use occurs when someone alters a copyrighted work and creates something "with new expression, meaning, or message," parody being a good example. Being transformative is only one factor in a fair use victory. However, the more transformative the use, the less important the other fair use factors (nature of work, amount taken, financial impact). In a recent example, a judge ruled that borrowing the characters and settings from "Three's Company"to create "an upside-down, dark" theatrical drama, was a transformative use. (You may also get guidance on transformative uses by checking fair use rulings.)
It's a moot question if ... If the user had agreed to a license — for example a click-to-agree EULA for HBO GO -- that agreement would likely pre-empt fair use arguments.
By the way dept. It's been a long time since a court okayed reproducing a whole TV show as a fair use; 31 years ago the Supreme Court held that "time shifting" a single copy of an over-the-air TV show for personal use was okay.

Monday, April 13, 2015

Fish Out of Water (and Copyright)

Dear Rich: I am currently in the process of making a logo for trout nets I sell. My graphic design artist did a great job but used a trout silhouette off of a stock photo site. The site says it is prohibited to use their material as part of a logo, but it is just a silhouette of a trout jumping and I feel like that is more public domain than not. I talked to my graphic design artist who is willing to sketch one up from scratch, I just feel it is kind of silly as there are only so many ways to depict a silhouette of a trout jumping out of the water. 
Your argument -- that there are a limited number of ways to portray a jumping trout silhouette -- is a reasonable defense to copyright infringement and may possibly qualify under the merger doctrine or as "scenes a faire." However, if you obtained the image from a stock photo site and entered into a license agreement, copyright would take a back seat to the contract. If the stock company notices (and cares), they can hassle you over breach of license and your copyright arguments would have little value. Have you considered public domain or Creative Commons imagery? There's a lot of other fish in the sea.*
* and yes, there are saltwater trout!

Wednesday, April 8, 2015

Do I Need a Lawyer to License Crafts?

Dear Rich: I'm a crafts artist and I create fantasy animals and sell them as sculptures and prints. A company wants to license two designs for fabric for use in children's products. They're asking me to sign a license for three years. According to the contract, I can still sell sculptures and paper prints. I just can't do clothing. bed sheets and similar fabric items. I think I understand the agreement. I'd hate to blow most of my advance on a lawyer if I don't need one. But people are telling me I should see an attorney. What do you think?
That's a tough call. We talk about licensing at our crafts law website (where we also offer a sample license agreement for purposes of comparison). If you can't make it over there, here's what we suggest: If you’re a savvy, confident businessperson capable of reading contracts -- and this is especially true if the other side provides a concise easy-to-understand agreement -- you can probably negotiate your own license.  If legal agreements just make you nervous, and a company wants to license your best-selling or signature work, you might as well secure some backup and retain a knowledgeable licensing attorney.
Watch out for "assignments." One warning flag that you might need an attorney is if you see the word “assign” or "assignment" in the proposed license agreement. An assignment means that you are selling legal rights in a work to someone else which is far different from the “rental” arrangement of a typical license. If you assign all your rights in a work, then that’s it—you can’t reproduce and sell that work any longer. There may be an occasion where an assignment makes sense—for example, sometimes you can assign all rights for the term of the license and they will be assigned back to you after it’s over, or you may receive a large sum of money for an assignment. Nevertheless, if the licensee seems to be angling for an assignment, have an attorney review the draft agreement to guarantee that you’re not permanently giving up all rights.

Monday, April 6, 2015

Does Your Chewing Gum Lose its Flavor in Canada?


Dear Rich: Is the song "Does Your Chewing Gum Lose Its Flavour (On the Bedpost Overnight)" in the public domain in Canada?
Although many music fans believe that Does Your Chewing Gum Lose its Flavour originated with Skiffle-master Lonnie Donegan in 1959, the novelty song was originally released in 1924 by the Happiness Boys. It was written by Billy Rose, Ernest Breuer, and Marty Bloom (see label, right) with one difference; their song was titled Does Your Spearmint Lose its Flavour. Donegan changed it because the BBC would not play songs that included trademarks and SPEARMINT was a registered trademark for a brand of chewing gum. (BTW, the same now-outdated policy is why the Kinks' song "Lola" references "cherry cola," instead of Coca-Cola, and why Paul Simon's track Kodachrome ended up as the B-side of a single in the UK.)
Right, you had a question. Neither the original version of this song nor the later arrangement by Lonnie Donegan are in the public domain in Canada. Copyright terms in Canada generally last for the life of the author plus 50 years. In the case of multiple authors, the term is measured from the year the last living author died. Billy Rose died in 1966, Marty Bloom in 1974, and Ernest Breuer in 1981 (according to this article ). Thus, the Canadian copyright term for Does Your Chewing Gum Lose Its Flavour runs through the end of the year 2031. Lonnie Donegan died in 2002, thus the Canadian copyright in his arrangement lasts through 2052. Answered by Stephen Fishman, author of The Public Domain.

Wednesday, April 1, 2015

White House of Cards: Selling the Presidents

Soon, I will be launching my Kickstarter Campaign for a card game I designed entitled "RePresidency." The game will feature works from the public domain that includes images of former political leaders and other political icons that helped shape the United States into what it is today. All of those portrayed in the game will be featured in a positive light and the physical cards will include an image of the person, their name, their signature (also public domain), and the symbol of their political affiliation. Most of the cards will feature deceased individuals from the early 20th Century and public domain imagery and art of the World War eras. My concern is that, even though portrayed positively and truthfully, that some individuals or their heirs may come at me if the campaign is successful. 
We don't think you're going to have any copyright concerns because your images are all public domain. So, your only concern is whether the ex-prexys will sue for right of publicity. A few states have a post-mortem right of publicity -- that is the heirs of Richard Nixon might be able to pursue you. Living ex-presidents like Jimmy Carter, Bill Clinton, and George W. Bush also have the legal basis to hassle you. (It's unlikely you'll be hassled by the current president because of public relations issues.) Unfortunately,  even though politicians like Spiro Agnew, Arnold Schwarzenegger, and Jesse Ventura have sued over right of publicity claims, these cases settled without any court precedent. So, there are no legal rulings indicating whether a politician's right of publicity trumps commercial free speech rights.
Bottom Line Dept. We think you should proceed with your card set. Other companies have followed a similar path and we assume they did so without contacting the grandchildren of Harry Truman, etc. Should you get hassled, we think you have a strong free speech defense (and the publicity probably won't hurt your sales either).

Monday, March 30, 2015

High Heeled Shoes: Low Level Legal Protection


Dear Rich: I make and sell high heel shoes. What I do is decorate with spikes, studs, feathers, embellishments etc., and sell them. But my biggest sellers which I call my signature design is the peacock feather that I place in certain areas of the shoe. So I wanted to know if I should copyright that design or do the design patent?
Design patents are sometimes granted for high heel designs -- here's one that incorporates a football motif -- but we don't believe your shoes are likely to qualify. One reason might be that you've already been offering the shoes (disclosures by the designer may be excused for one year prior to filing). Another reason might be a lack of novelty (others have made similar use of peacock feathers). And another might be that your designs, creative as they may be, are "separable embellishments." According to the USPTO:
"Design is inseparable from the article to which it is applied, and cannot exist alone merely as a scheme of ornamentation. It must be a definite preconceived thing, capable of reproduction, and not merely the chance result of a method or of a combination of functional elements."
Copyright. Copyright does not protect clothing, fashion and similar functional designs. You may be able to protect surface ornamentation for clothing if it is considered "separable" from the shoe itself.
Trade dress and trademarks. Trademark and trade dress law may assist if you can demonstrate that consumers associate the design or some aspect of it with you (an association that usually requires serious sales and advertising). That's the approach taken by the big guns like Gucci, Balenciaga, and Alexander McQueen. Otherwise, trade dress law is not likely to protect you (in light of this decision).
Bottom Line Dept. Sometimes -- and this is often true for custom made-clothing -- there is little legal protection available to stop fashion copycats (though Congress keeps trying). Although big fashion houses can wield trade dress claims, smaller designers with limited sales can't count on IP law, and must rely on the loyalty of customers seeking unique craft skills and vision.

Wednesday, March 18, 2015

Little Rascals/Affordable Care Fair Use Question

Dear Rich: My original music video concerning the Affordable Care Act would illustrate the song's narrative with very short clips cut from online video: The Little Rascals from the 1950s, a major league pitcher 'doctoring' a baseball, documentary footage of an ambulance. Would these uses likely be considered fair use? 
If the clips are very short—just a few seconds—they would probably qualify as a fair use because you're using them for purposes of commentary. Of course, claiming the fair use privilege doesn't mean you won't get sued. And if you were sued, you'd still have to prove your claims in court, a stressful and expensive proposition. So, a more important question is whether the footage is recognizable to the copyright owner and whether the owner will learn of your use. In general, we believe that owners of copyrights in Hollywood studio films are among most likely to complain about these kinds of unauthorized uses. However, note also that the use of someone's footage for political purposes, particularly, to espouse a point of view contrary to that of the filmmaker may also trigger infringement lawsuits.

Monday, March 16, 2015

Should I Register My Domain Name as a Trademark?

Dear Rich: In your book on trademarks there is a discussion of whether you should register "trademark.com" as a trademark if you've already registered "trademark." The example provided is a line of menswear that is now also going to be sold online. The conclusion is that you should consider registering the full domain name (trademark.com) if establishing services or goods unique to the Internet business. Could you please explain why? If the PTO considers the ".com" piece of the trademark as unprotectable, what benefit would be gained by registering the full domain name? If you have a business that only sells online, should you register both "trademark" and "trademark.com"? 
If you register a domain name as a trademark with the USPTO, you won't be able to claim any rights to the ".com" (known as a top level domain or gTLD) by itself. The USPTO considers elements of the domain address such as "http://" and  "www." and gTLDs as unprotectable features of the website address. Although they are unprotectable by themselves -- that is, you can't stop others from using .com --  a mark that combines these elements with a protectable term is registrable if it is unique to an Internet business.
More than an address. The main thing to keep in mind is that you should register the .com if it is more than an address, that is if it is a source-indicating trademark use. For example, Zappos.com, an online footwear and clothing company refers to itself as "Zappos.com" at its site. In this way, Zappos.com, like Amazon.com, is more than an address on the web, it's the brand itself. (The USPTO's Trademark Examining Rules for domain names are located here.) The benefit of registering .com depends on the company. Some want a deep trademark portfolio, one that enables the broadest claim to trademark rights. Amazon has registered over a hundred "Amazon" marks and about 25 "amazon.com" marks (12 of which are still live). For smaller businesses, it may not matter much whether you register with or without the .com.
One more quirk. When registering a domain name, an applicant is permitted to furnish a drawing of the term within the address. For example, if registering Amazon.com, the applicant could furnish a drawing of the term "Amazon." (See TMEP Sec. 1215.02(c)))



Thursday, March 12, 2015

Five Lessons from the "Blurred Lines" Case

We've received many inquiries as to the verdict in the "Blurred Lines" case (in which a jury determined that the song, "Blurred Lines," written by Pharrell Williams and Robin Thicke, infringed Marvin Gaye's song "Got to Give It Up"). The jury awarded Marvin Gaye's heirs $7.4 million, reflecting the profits earned by "Blurred Lines," which (hard as it may be to accept) was the longest running number one single of the entire decade (racking up sales of $14.8 million copies). The case's outcome is dumbfounding, particularly for musicians. Hindsight, affording us excellent vision, reveals five lessons.
  •   Declaratory actions don't always succeed - The Gaye family didn’t file the lawsuit; it was Thicke and Williams who filed, using a procedure known as a declaratory action (used when a party has been threatened with a lawsuit and seeks a pre-emptive ruling). It's like the reverse Pacman strategy in which the pursued becomes the pursuer. The procedure has its advantages – Thicke and Williams got to pick the location for the case -- but the procedure can also backfire, as some legal experts believe happened here. By initiating the lawsuit, Williams and Thicke may have ruined the chances of a quiet resolution before the song became a super mega hit.
  •  Don't bother with the "high as hell" defense –Sometimes, one party to a lawsuit is perceived as a villain, and its all downhill from there. Thicke admitted during the trial that he wasn’t present when the song was written and was too high on Vicodin and alcohol to compose anything, anyway. That testimony painted him unfavorably as a lying pop star who wanted credit when the song was a hit but who denied liability when accused of infringement. Character judgment shouldn't be a factor when determining substantial similarity … but any case can get derailed when one party's veracity is put into question.
  • Don’t announce you want to copy someone’s song. Thicke told GQ Magazine, “Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye's 'Got to Give it Up.'  I was like, 'Damn, we should make something like that, something with that groove.” Similar comments were made to other publications. Later when asked by the Gaye Family lawyers what he meant, Thicke's defense was that his comments couldn't be trusted because he was “high and drunk” when he did interviews.
  • Don’t prevent jurors from hearing both versions. Many music listeners don't hear much similarity – aside from the uncopyrightable "live party" elements -- when comparing the recording of "Blurred Lines" with Gaye’s performance of "Got to Give It Up". But the jury never got the chance to make a similar comparison because they never heard Gaye's version. Lawyers for Thicke and Williams argued that Gaye deposited sheet music when he registered his copyright back in 1977 (standard operating procedure for the time) and therefore, the Gaye family’s claim could only be limited to the elements in the sheet music. In hindsight, limiting Gaye's claim to the sheet music may have worked against the "Blurred Lines" crew because it allowed the family's lawyers to take a non-holistic approach to the songs. Instead of getting a total feel for each song, the lawyers disassembled the sheet music and focused on eight distinct notated similarities.
  • Juries are unpredictable. 'Nuff said.

Wednesday, March 4, 2015

My Boss Made Me Appear in Yelp Commercial

Dear Rich: My employer at a small law firm has required his whole staff (about 8 of us) to appear in a Yelp commercial video. Please note that all the employees had no choice but to do it, and although we signed a release, no consideration was provided in exchange for the release. The day of the shoot, we all signed a release form (no one had to actually read it - just told to sign). My employer wanted me to speak on this video, even though I didn't want to. I was told we will get to edit prior to posting it on Yelp. I reluctantly spoke (and did a bad job so I could get edited out). I asked to view it right after my employer filmed me, and he said he was short on time, but that I could make edits to the final version. When the final version came out, I asked that very first day to be edited out on the part where I am speaking one-on-one (something that could easily be taken out without altering the rest of the company video). My employer kept saying "think about it," and that "I'm so pretty blah blah blah ask others opinion on it before wanting to be taken completely out." I told him its a personal choice that I don't want my face, name and video on the Internet so please remove it. Then two weeks later I saw that the final version still included me in it - and I requested over and over again not to post it until he removes me. He refused saying, "the window to edit is now over, and I'm too pretty to be cut out." I got upset and said I want to be cut out immediately. His response, via text, was: "You signed a release. You work for me. Case closed.” What do I do!? I don't feel comfortable and I feel violated! I know this will ultimately cost me my job, but this just isn't fair. I shouldn't be forced to be in it when so easily I can be cut out!
We sympathize with your predicament. Nobody wants their image used for purposes of commercial endorsement without consent. The purpose of a release -- assuming its drafted properly -- is to grant consent. We think that you're in a tough spot and may be bound by the terms of the release. Most courts consider a written agreement as the "final" statement on the deal and your release may even have a clause entitled "Entire Agreement" or "Integration" that guarantees this result. The fact that you didn't read the release (or were advised not to bother) does not excuse you from the obligation.
Duress? You also imply duress -- that you were pressured to sign. In a sense you describe a form of economic duress. That is, you'd lose your livelihood if you objected. But to prevail on a "duress" argument under contract law, you would  likely need more evidence of physical or mental coercion to demonstrate that your consent was not voluntary.
Consideration. As for additional consideration to sign the agreement, that's a tough call and may depend on your state law. In some states, such as Pennsylvania,  additional consideration by at-will employees may be required for certain agreements. In other states, like Wyoming, Colorado, and Ohio, it may not be required for contracts that establish non-competes (that is, keeping your job is sufficient consideration). (We're also not sure how much of this legal minutiae matters as we're assuming you don't want to take this matter to court.)
You're so pretty. We find your boss's comments about your appearance, such as "you're so pretty," as troubling but by itself, not enough to form the basis for a lawsuit.
For more information on using employee photos in social media, you may want to check out this blog post by one of our favorite employment law experts.


Monday, March 2, 2015

Quoting Dialogue From Raising Arizona in Novel

Dear Rich: I'm self-publishing my novel and I'm trying to track down Circle Films for permission to use four lines from "Raising Arizona." (I did get permission from the Cather Foundation to quote "My Antonia.")  The problem is, I can't even find a website for Circle Films. 
You might be able to find Circle Films information by signing on for an imdb.com PRO subscription which offers contact information for producers and studios (the first month is free). Alternatively, you might try contacting producer Ben Barenholtz who apparently was the owner of Circle Films.
Why bother? After reviewing your use -- two characters talking about the film and quoting four lines of dialogue -- we don't believe permission is required. Yours is a classic example of fair use because you are using a small amount of copyrighted material for a limited and “transformative” purpose, something that authors who comment on pop culture (for example Elmore Leonard -- scroll down to "Spark") commonly do. Alternatively, you've taken so little from the movie it might qualify as a de minimis taking -- one that is so trivial that it shouldn't matter.