Wednesday, December 31, 2008

Movie costumes and copyrights

Dear Rich: I have a question. I'm a seamstress and like to make movie replica costumes. Is it illegal for me to provide an offer such as "Sweeney Todd replica costume" or "Satine from Moulin Rouge replica costume". If your costume replica looks exactly like the movie version, could the costume designer of that film win a claim of infringement? I'm so glad you asked. The short answers to your questions are "No," and "No." As you may remember from a previous post, it is illegal to sell unauthorized character costumes such as Mickey Mouse or Barney. But there's a subtle difference between that and duplicating a costume worn by a character in a movie. Although characters have an identity, persona, and other expressive elements, clothing, by itself, is considered a useful article, unprotectable under copyright (a principle that's proven a major irritant for clothing designers). In a 1989 case, a court of appeals refused to protect costume designs even though the company had registered its costumes as "soft sculptures" with the Copyright Office. Other decisions reinforced the rule that costumes are not protectable. There may be instances where a movie company that owns a series such as Indiana Jones could complain that your costume sale -- for example, hat, jacket and whip -- could violate trademark laws if you used the name of the character in your advertising. That would probably not be an issue in the examples you provided since Sweeney Todd and Moulin Rouge are both public domain stories. To be safe under trademark principles, avoid any advertising statements that imply endorsement or an official connection with characters or films. Disclaimers, though not always effective -- for example "Not affiliated with Paramount Pictures" -- may help as well. Good luck in your costume business and best wishes for a happy new year from the Dear Rich Staff!

Movie costumes and copyrights

Dear Rich: I have a question. I'm a seamstress and like to make movie replica costumes. Is it illegal for me to provide an offer such as "Sweeney Todd replica costume" or "Satine from Moulin Rouge replica costume". If your costume replica looks exactly like the movie version, could the costume designer of that film win a claim of infringement? I'm so glad you asked. The short answers to your questions are "No," and "No." As you may remember from a previous post, it is illegal to sell unauthorized character costumes such as Mickey Mouse or Barney. But there's a subtle difference between that and duplicating a costume worn by a character in a movie. Although characters have an identity, persona, and other expressive elements, clothing, by itself, is considered a useful article, unprotectable under copyright (a principle that's proven a major irritant for clothing designers). In a 1989 case, a court of appeals refused to protect costume designs even though the company had registered its costumes as "soft sculptures" with the Copyright Office. Other decisions reinforced the rule that costumes are not protectable. There may be instances where a movie company that owns a series such as Indiana Jones could complain that your costume sale -- for example, hat, jacket and whip -- could violate trademark laws if you used the name of the character in your advertising. That would probably not be an issue in the examples you provided since Sweeney Todd and Moulin Rouge are both public domain stories. To be safe under trademark principles, avoid any advertising statements that imply endorsement or an official connection with characters or films. Disclaimers, though not always effective -- for example "Not affiliated with Paramount Pictures" -- may help as well. Good luck in your costume business and best wishes for a happy new year from the Dear Rich Staff!

Movie costumes and copyrights

Dear Rich: I have a question. I'm a seamstress and like to make movie replica costumes. Is it illegal for me to provide an offer such as "Sweeney Todd replica costume" or "Satine from Moulin Rouge replica costume". If your costume replica looks exactly like the movie version, could the costume designer of that film win a claim of infringement?I'm so glad you asked. The short answers to your questions are "No," and "No." As you may remember from a previous post, it is illegal to sell unauthorized character costumes such as Mickey Mouse or Barney. But there's a subtle difference between that and duplicating a costume worn by a character in a movie. Although characters have an identity, persona, and other expressive elements, clothing, by itself, is considered a useful article, unprotectable under copyright (a principle that's proven a major irritant for clothing designers). In a 1989 case, a court of appeals refused to protect costume designs even though the company had registered its costumes as "soft sculptures" with the Copyright Office. Other decisions reinforced the rule that costumes are not protectable. There may be instances where a movie company that owns a series such as Indiana Jones could complain that your costume sale -- for example, hat, jacket and whip -- could violate trademark laws if you used the name of the character in your advertising. That would probably not be an issue in the examples you provided since Sweeney Todd and Moulin Rouge are both public domain stories. To be safe under trademark principles, avoid any advertising statements that imply endorsement or an official connection with characters or films. Disclaimers, though not always effective -- for example "Not affiliated with Paramount Pictures" -- may help as well. Good luck in your costume business and best wishes for a happy new year from the Dear Rich Staff!

Tuesday, December 23, 2008

IP enforcement insurance

Dear Rich: Do you know of or have you heard of IP enforcement insurance? We have been contacted by a broker who is selling enforcement insurance along with  protection insurance against third party claims. Are these companies legitimate? Should I be suspicious? They want a hefty nonrefundable "assessment fee" to asses the risk of insuring our company. This fee is not credited against premium payments. I'm so glad you asked. The short answers to your questions are, "yes, I have heard of them," and "yes, they are usually legitimate," and "yes, you should be suspicious of any insurance offer."
The policies that are available for patents, copyrights, and trademarks come in two forms: defensive insurance that pays for attorney fees, settlements, and judgments (up  to your policy limit) if you are sued over your IP property (that covers the 3rd party clams); and offensive enforcement (or abatement) insurance that pays part (or all) of your expenses if you sue an infringer. Enforcement policies are more popular among smaller entities with patents who cannot afford the hefty fees associated with patent litigation since the average cost of a patent lawsuit is reported to be $2 million (and often much more).
IP insurance companies screen potential customers to make sure the coast is clear regarding the patent or copyright they will potentially enforce. Among the issues you need to consider are whether the company lets you choose your own counsel, how much the company is entitled for reimbursement out of any final judgment or settlement, the company's rating, and of course, the premiums and upfront fees. (Sometimes these companies may help you successfully stop infringers, but you won't see much money from the effort.) One alternative when you can't afford to enforce your IP is to find an attorney that will take your case on contingency (and make sure to review the fees carefully). The Dear Rich staff cannot recommend or endorse any of these companies, but you can learn more about the subject at the IP Frontline site or at 2XR
P.S.: Before considering any insurance, check your business liability policy to avoid overlaps.

Intellectual property enforcement insurance


Dear Rich: Do you know of or have you heard of IP enforcement insurance? We have been contacted by a broker who is selling enforcement insurance along with  protection insurance against third party claims. Are these companies legitimate? Should I be suspicious? They want a hefty nonrefundable "assessment fee" to asses the risk of insuring our company. This fee is not credited against premium payments. I'm so glad you asked. The short answers to your questions are, "yes, I have heard of them," and "yes, they are usually legitimate," and "yes, you should be suspicious of any insurance offer."
The policies that are available for patents, copyrights, and trademarks come in two forms: defensive insurance that pays for attorney fees, settlements, and judgments (up  to your policy limit) if you are sued over your IP property (that covers the 3rd party clams); and offensive enforcement (or abatement) insurance that pays part (or all) of your expenses if you sue an infringer. Enforcement policies are more popular among smaller entities with patents who cannot afford the hefty fees associated with patent litigation since the average cost of a patent lawsuit is reported to be $2 million (and often much more).
IP insurance companies screen potential customers to make sure the coast is clear regarding the patent or copyright they will potentially enforce. Among the issues you need to consider are whether the company lets you choose your own counsel, how much the company is entitled for reimbursement out of any final judgment or settlement, the company's rating, and of course, the premiums and upfront fees. (Sometimes these companies may help you successfully stop infringers, but you won't see much money from the effort.) One alternative when you can't afford to enforce your IP is to find an attorney that will take your case on contingency (and make sure toreview the fees carefully). The Dear Rich staff cannot recommend or endorse any of these companies, but you can learn more about the subject at the IP Frontline site or at 2XR
P.S.: Before considering any insurance, check your business liability policy to avoid overlaps.

Thursday, December 18, 2008

Can my software show patented inventions?


Dear Rich: I have a question. Is it possible to write a piece of software that shows a patented device? For example, let's say I want to write a software application that shows a match on the screen, and when I click on the match, it lights the match and burns out. Would this infringe on the patent? The short answer is no. You can only infringe a patent if you make, use, sell, offer to sell, or import the patented device without authorization.
Displaying images of an invention or  explaining how an invention works doesn't infringe the patent, although there are two related concerns. It's unclear whether patent drawings -- the drawings included with the application (see above -- Patent No. 6,293,874) -- are protected by copyright. (Although there is no clear ruling, caselaw and federal regulations seem to indicate they are protected.) So, you're best served by having someone re-create the drawings unless you want to make a case forfair use.
Second, you can use the trademarked name of a patented invention without permission if it's for informational or editorial purposes --  that is, you're not using the trademark to sell something, or to confuse consumers. The same is true for trademark logos and designs (although, you should avoid any alterations to those visual images).
In any case, the patent division of the Dear Rich staff is excited about your software and its benefits --- after all, in the case of dangerous inventions like matches, the user can see how the invention operates without the potential hazards. (Let's not even think about all those inventors killed by their own inventions?)

Tuesday, December 16, 2008

Can my software show patented inventions?

Dear Rich: I have a question. Is it possible to write a piece of software that shows a patented device? For example, let's say I want to write a software application that shows a match on the screen, and when I click on the match, it lights the match and burns out. Would this infringe on the patent?
I'm so glad you asked. The short answer is no. You can only infringe a patent if you make, use, sell, offer to sell, or import the patented device without authorization.
Displaying images of an invention or  explaining how an invention works doesn't infringe the patent, although there are two related concerns. It's unclear whether patent drawings -- the drawings included with the application (see above -- Patent No. 6,293,874) -- are protected by copyright. (Although there is no clear ruling, caselaw and federal regulations seem to indicate they are protected.) So, you're best served by having someone re-create the drawings unless you want to make a case for fair use.

Second, you can use the trademarked name of a patented invention without permission if it's for informational or editorial purposes --  that is, you're not using the trademark to sell something, or to confuse consumers. The same is true for trademark logos and designs (although, you should avoid any alterations to those visual images).
In any case, the patent division of the Dear Rich staff is excited about your software and its benefits --- after all, in the case of dangerous inventions like matches, the user can see how the invention operates without the potential hazards. (Let's not even think about all those inventors killed by their own inventions?)

Public domain sheet music: when is it copyrighted?


Dear Rich: I have a question. I have an online flute consignment shop. I have created a link where I would like to make a piece of sheet music from the public domain available for free download each month. I could go to the local university Fine Arts library and copy music out of old books (which will look like scans of old music), or I could download the same piece of music from a free online source that is already in existence and have it be clean and pretty because someone took the time to typeset it and make it nice to read (I cannot possibly typeset this music myself... for many reasons). But I do not know if this is either legal or ethical. In some cases, there are footnotes that say something akin to, "Not to be used for commercial works." In other cases, there is no such notation. Can I take the music from one of these sites and give it away as a download on mine? The short answer to your question is that you can legally use public domain music provided that the musical notation you mention is obvious, routine, dictated by musical convention, and does not involve any major changes or new arrangements. In other words, if the notation is simply what's typically required to write the music, it's not protected by copyright.  Wait... was that the short answer?
Okay, just in case you need some backup, the musical division of  the Dear Rich staff consulted with Stephen Fishman, an expert on the public domain. According to Steve, it doesn't matter if it takes great skill or musical training to create the musical notation of public domain sheet music; nor does it matter if the end result is digitized. The work may only be protected by copyright if the sheet music contains substantial additional music, is an abridgment, or involves making a new arrangement -- for example, creating a suite for several instruments with harmonizations not previously associated with the public domain work.
How then can a music publisher claim copyright in public domain sheet music? According to Fishman, many claims for copyright in public domain music are improper and based on the fact that music publishers have a strong economic incentive to convince the public that its music is copyrighted (even when it is not). Of course, this information won't prevent you from being sued; it just means you're likely to prevail if there is a lawsuit. In addition, it may sometimes be difficult to separate the public domain version from a popular derivative version -- as in the case of the folk song "Tom Dooley". (By the way, the rules described here may not be the same outside the U.S.)
As for your question about whether the copying is ethical, the Dear Rich staff is unable to comment as they are trained only to wrestle with legal issues. However, you may find some advice here.

Friday, December 12, 2008

Who owns copyright in apartment photos?

Dear Rich: I have a question. My company does photography for letting agency websites. We want to sell the pictures to different online clients. Do we own the rights to do what ever we want with the photos? I have read your blog on whether you need permission to publish pictures of buildings but I need to know if we can sell interior and exterior pictures. I'm so glad you asked. The Anglophile Dear Rich staff informed me that "letting agency" is Brit-speak for a company that handles apartment leases. We must therefore caveat our advice here: the Dear Rich blog is limited to discussions of U.S. law.

That said, there are strong similarities between British and U.S. copyright laws based on our common origins. Under U.S. copyright law, absent a written agreement to the contrary, the copyright in a photograph is owned either by the photographer or, if employed to take the photos, the photographer's employer. If there is a written agreement regarding the photographs, that will control what you can do. As you may recall from our previous blog, you are free to take and use photographs of publicly viewable buildings. Those rules do not apply to interior architecture. 

Which leads to the other wild card issue -- the content of the pictures. There may be architectural or artistic elements in the photos that are protected under copyright and would require permission -- say, for example, a uniquely designed kitchen or a Henry Moore statue. Finally, persons dwelling in those apartments may have privacy rights and you could run into problems selling intrusive photos -- for example, images that reveal personal photographs, bondage handcuffs, or empty bottles of Wild Turkey.

Public domain sheet music: when is it copyrighted?

Dear Rich: I have a question. I have an online flute consignment shop. I have created a link where I would like to make a piece of sheet music from the public domain available for free download each month. I could go to the local university Fine Arts library and copy music out of old books (which will look like scans of old music), or I could download the same piece of music from a free online source that is already in existence and have it be clean and pretty because someone took the time to typeset it and make it nice to read (I cannot possibly typeset this music myself... for many reasons). But I do not know if this is either legal or ethical. In some cases, there are footnotes that say something akin to, "Not to be used for commercial works." In other cases, there is no such notation. Can I take the music from one of these sites and give it away as a download on mine? I'm so glad you asked. The short answer to your question is that you can legally use public domain music provided that the musical notation you mention is obvious, routine, dictated by musical convention, and does not involve any major changes or new arrangements. In other words, if the notation is simply what's typically required to write the music, it's not protected by copyright.  Wait... was that the short answer?
Okay, just in case you need some backup, the musical division of  the Dear Rich staff consulted with Stephen Fishman, an expert on the public domain. According to Steve, it doesn't matter if it takes great skill or musical training to create the musical notation of public domain sheet music; nor does it matter if the end result is digitized. The work may only be protected by copyright if the sheet music contains substantial additional music, is an abridgment, or involves making a new arrangement -- for example, creating a suite for several instruments with harmonizations not previously associated with the public domain work.
How then can a music publisher claim copyright in public domain sheet music? According to Fishman, many claims for copyright in public domain music are improper and based on the fact that music publishers have a strong economic incentive to convince the public that its music is copyrighted (even when it is not). Of course, this information won't prevent you from being sued; it just means you're likely to prevail if there is a lawsuit. In addition, it may sometimes be difficult to separate the public domain version from a popular derivative version -- as in the case of the folk song "Tom Dooley". (By the way, the rules described here may not be the same outside the U.S.)
As for your question about whether the copying is ethical, the Dear Rich staff is unable to comment as they are trained only to wrestle with legal issues. However, you may find some advice here.
Got a question for Dear Rich? Send it to dearrichquestion@gmail dot com, and make sure it has the header: "Question."

Wednesday, December 10, 2008

Who owns copyright in apartment photos?

Dear Rich: I have a question. My company does photography for letting agency websites. We want to sell the pictures to different online clients. Do we own the rights to do what ever we want with the photos? I have read your blog on whether you need permission to publish pictures of buildings but I need to know if we can sell interior and exterior pictures. The Anglophile Dear Rich staff informed me that "letting agency" is Brit-speak for a company that handles apartment leases. We must therefore caveat our advice here: the Dear Rich blog is limited to discussions of U.S. law.
That said, there are strong similarities between British and U.S. copyright laws based on our common origins. Under U.S. copyright law, absent a written agreement to the contrary, the copyright in a photograph is owned either by the photographer or, if employed to take the photos, the photographer's employer. If there is a written agreement regarding the photographs, that will control what you can do. As you may recall from our previous blog, you are free to take and use photographs of publicly viewable buildings. Those rules do not apply to interior architecture. 
Which leads to the other wild card issue -- the content of the pictures. There may be architectural or artistic elements in the photos that are protected under copyright and would require permission -- say, for example, a uniquely designed kitchen or a Henry Moore statue. Finally, persons dwelling in those apartments may have privacy rights and you could run into problems selling intrusive photos -- for example, images that reveal personal photographs, bondage handcuffs, or empty bottles of Wild Turkey.

Saturday, December 6, 2008

Old newspapers: how much can you use?

Dear Rich: I have some questions: Are old newspaper and magazine columns copyrighted? Is commentary that is printed in newspapers or magazines copyrighted? How about historical photographs? If so, how much can you use (under fair use) in a documentary without getting sued? I'm so glad you asked. The short answers to your questions are: 1) Yes, unless (a) published before 1923 or (b) published between 1923 and 1963 and not renewed. 2) See previous answer. 3) See previous answer. 4) There is no fixed formula for fair use.

Fair use depends on several factors, including whether your use is transformative (you are copying the work in order to make a point -- for example, criticism or parody), the amount and substantiality of the portion borrowed, the nature of the work -- for example, fiction or nonfiction -- and the effect of the use on the market. Practically, you are better advised to read how the law is applied in cases such as the recent suit permitting the use of John Lennon's "Imagine" in a Ben Stein documentary. You can review case summaries at the Stanford Library Fair Use website.


There are also some wild card factors: Is the newspaper still in business? How likely is it that the owner will learn of your use? Will the owner care enough to pursue action?  Will your copying affect your ability to obtain insurance? Finally, always keep in mind that fair use is an affirmative defense (not an affirmative right). 

Old newspapers: how much can you use?

Dear Rich: I have some questions: Are old newspaper and magazine columns copyrighted? Is commentary that is printed in newspapers or magazines copyrighted? How about historical photographs? If so, how much can you use (under fair use) in a documentary without getting sued? The short answers to your questions are: 1) Yes, unless (a) published before 1923 or (b) published between 1923 and 1963 and not renewed. 2) See previous answer. 3) See previous answer. 4) There is no fixed formula for fair use.
Fair use depends on several factors, including whether your use is transformative (you are copying the work in order to make a point -- for example, criticism or parody), the amount and substantiality of the portion borrowed, the nature of the work -- for example, fiction or nonfiction -- and the effect of the use on the market. Practically, you are better advised to read how the law is applied in cases such as the recent suit permitting the use of John Lennon's "Imagine" in a Ben Stein documentary. You can review case summaries at the Stanford Library Fair Use website.

There are also some wild card factors: Is the newspaper still in business? How likely is it that the owner will learn of your use? Will the owner care enough to pursue action?  Will your copying affectyour ability to obtain insurance? Finally, always keep in mind that fair use is an affirmative defense (not an affirmative right).