Saturday, November 29, 2008
Posted by The Dear Rich Staff at 10:14 AM
Dear Rich: I have a question. Why are ringtones the same price or even more than the cost of buying a digital download of a song? After all, you're only getting one-tenth of the song. Isn't the use of a small portion of a song a fair use? The short answers to your questions are, "because the marketplace allows it," and "sometimes, but not in this case."
Considering that ringtones (also known as mastertones) account for about $9.4 billion in music business revenue, you can understand why digital download dispensers like iTunes are maxing the price. (And you can also see why these companies would want to prevent simple hacks that could kill the golden goose.) Also, the Copyright Office has legitimized ringtone sales -- its decision to classify ringtone downloads as "digital phonorecords," and its fee rates for ringtones (as the New York Times reported) have caused the price to rise. Statutory fees for ringtones are almost three times as much as those for songs. For example, iTunes must pay 9.1 cents to transmit each download of "Cretin Hop," while the statutory fee for transmitting a ten-second ringtone of that Ramones classic is 24 cents.
As for fair use, it's hard to claim that bothering everyone on the bus with snippets from "Hot for Teacher" amounts to "purposes of commentary and criticism." Therefore, the Dear Rich staff has concluded that the use of ringtones does not amount to fair use.
Posted by The Dear Rich Staff at 9:19 AM
Monday, November 24, 2008
Dear Rich: I have a question. If someone wants to entertain professionally at parties wearing an officially licensed Disney costume, is that a violation of Disney's rights? If so, why does Disney retain rights to control how the costume is used after it's purchased? I'm so glad you asked. The short answers to your questions are, (a) yes, and (b) they don't retain rights over the costume; they do retain rights over how a character is commercially exploited. (By the way, Disney also goes after those who buy and sell unauthorized character costumes.)
Although it may seem like anyone who buys a costume should be able to wear it and entertain for money, that'snot the way the owners of licensed characters view the situation. Perhaps it would help if you step back and consider a few hypotheticals, as lawyers often do. Let's say that someone buys an official Mickey Mouse costume and then uses that to make a movie about Mickey Mouse. I think most people who read the Dear Rich blog would agree that purchasing a licensed costume doesn't entitle you to make a movie about the character. The same would be true for a stage play about Mickey Mouse. Ditto if a nightclub comic created a show built around the Mickey Mouse character (wearing the licensed costume). Entertaining for money at a party is a variation on this. The stage is much smaller, but the commercial intent is the same, and such exploitation -- which has become a popular home-based business -- likely violatescopyright and trademark law. There's nothing wrong with wearing the costume for Halloween or attending parties, but when you create a commercial enterprise that exploits the character, the copyright owner views that as an infringement.
Posted by The Dear Rich Staff at 9:17 AM
Saturday, November 22, 2008
Friday, November 21, 2008
Thursday, November 20, 2008
Posted by The Dear Rich Staff at 10:18 AM
Wednesday, November 19, 2008
Dear Rich: I have a question. I am starting a fan club for a local racer under his parents' request, and this kid is going to make it big. We have already been invited to NASCAR, but that will be at least 3 years away. His family and I want to protect any merchandise from being pirated and his name being used without his permission. We want exclusive rights to produce any merchandise with his name, car, logo, or anything associated with him. What do we do to make sure that he reaps all the profits and not someone just looking to strike it rich off of his fame? The short answer to your question is that there's no short answer. The local racer -- assuming he's over 18 -- controls all rights to his own publicity or merchandise under legal principles known as the "right of publicity." (If the racer is not over 18, the parents and the racer can sign over these rights, but the Dear Rich staff recommends a new agreement be made once the racer reaches the age of majority.) So, it's up to him to decide who has the right to use his image and name, and it's up to him to pursue the bad people who use those rights without permission.
Once he enters the world of NASCAR, he will probably be required to assign (give up) most of those rights to NASCAR and his sponsor. NASCAR drivers make money in three ways: they get a percentage of prize money, a percentage of merchandise sales, and earn money from personal endorsements. It's all part of the modern racing world. (BTW, here's a blog where you can learn a lot of fascinating stuff about the business of NASCAR.) There's an upside to these deals as well, since the team sponsor or NASCAR will be out there purusing the bad guys (which can be very expensive and time-consuming). Also, keep in mind that should this racer become a superstar, he will be able to set the terms of the deals and choose his sponsors.
Sunday, November 16, 2008
Posted by The Dear Rich Staff at 10:20 AM
Dear Rich: I have a question. A book was recently published featuring houseboats from my area. A photo of my houseboat is in the book. I know the photographer and told her verbally that I did not want a photo of my boat used commercially or in a book. She used it anyway. Is there any way to take legal action against her? I am very upset! I consider my boat to be a sculpture. The short answer to your question is "no." As you are probably aware from reading the Dear Rich column, it's not a violation of copyright law to photograph architecture (even aquatic architecture) that is publicly viewable. And thanks to Batman, that's true even if those buildings are protected by architectural copyright and contain separately protectable sculptural elements.
As aesthetically pleasing as your home may be, it's not likely to be held as copyrightable sculpture. Costume designers took a similar approach a few decades ago -- they characterized their designs as "soft sculptures" -- in a failed attempt to get around the government's refusal to register clothing designs. The Dear Rich staff happens to be big fans of the creative and eclectic houseboat community and wish you the best in your floating home. But unless someone: (1) takes a photo that invades your privacy -- for example, someone using a telephoto lens peers into your home and captures you and your family; (2) trespasses and damages your houseboat-- for example, someonesets it on fire for a reality TV show; or (3) uses photos of your home as part of a movie's set (or similar commercial endorsement) -- they're probably not violating the law.
Saturday, November 1, 2008
I'm so glad you asked. The short answer is "probably not." As a general rule, you can use a trademark (or celebrity's name) for editorial or informational purposes without infringing. Such uses do not require permission because they inform, educate, or express opinions protected under the First Amendment. For example, "Super Size" is a trademark of a big burger conglom and is used in the title of a documentary. (Speaking of documentaries that use McTrademarks, the Dear Rich staff really loved "McLibel"). "Sinatra" is also a federally registered trademark and is used in documentary titles; ditto for James Dean and Marilyn Monroe. The laws protecting celebrity names and likenesses only go so far and you will likely run into problems if you sell goods or services using the celebrity's name or image, or if you imply the endorsement of the celebrity for any goods or services.
Posted by The Dear Rich Staff at 10:22 AM