Thursday, April 30, 2009
Wednesday, April 29, 2009
If the contract was made before 1978 -- and here's where it gets even more complicated -- you may terminate the contract any time during a period of five years beginning at the end of 56 years from when the copyright was originally secured or beginning on January 1, 1978, whichever is later (see why you may need a lawyer). So if your mother made the transfer in 1953, you would have five years, commencing in 2009, to terminate. The method of effecting the transfer -- it involves sending a notice -- is set forth in the Copyright Act at 17 USC 203(a)(4) and 304(c)(4) (again, the lawyer, the lawyer). It's possible you may also have a right to terminate the grant if the written agreement has been breached by the publisher -- for example, the publisher has failed to account for or otherwise honor the agreement. Ennyway... congratulations to your late Mom for getting a book deal based on a poem. We don't know much about poetry but we remember being twelve years old sitting around listening to a recording of this.
Additional Note: Dan from "A" Side Music, points out that the "subsidiary rights" you describe may not necessarily be a copyright assignment. Good point! As he notes, if it was simply an amendment to the book contract or a nonexclusive license to print the poem for a limited time in a publisher-owned magazine, you may not need to go through the "considerable hoops" required to terminate a copyright transfer. Check the paperwork and if it was a simple license, see if you can contact the publisher and arrange to terminate it (if it hasn't already terminated on its own).
Posted by The Dear Rich Staff at 9:21 AM
Tuesday, April 28, 2009
Hmm. That's annoying isn't it? The answers are supposed to be short but they end up being kind of long ... sort of like my recent root canal. Ennyway. You have one year from any publication, public use, public sale, or offer to sell your invention, in which to file a patent application or provisional patent application (PPA). (If you file a PPA, you will then have one year from that filing date to file a regular patent application). So if you disclosed the novel and nonobvious aspects of your invention -- that is the patentable stuff -- and if you don't file a regular patent application or a PPA within one year of your public disclosure or offer to sell, then the invention passes into the public domain and cannot be patented.
Although you haven't lost your ability to patent, you probably forfeited any claim to any disclosed concepts or ideas as trade secrets. Since the U.S. is still a "first-to-invent" country (the only one, actually), you don't have to worry about a race to the patent office (although the Dear Rich staff reports that many U.S. patent attorneys still follow the maxim, "file early and file often.") In any event, as we've pointed out before, a patent application must be filed in the name of the inventor (that's you, right?), so the other company will commit fraud if it does not list you accordingly.
What's the best way to solicit a company with an invention idea? Ideally, obtain a nondisclosure agreement. If that's not possible, make disclosures in stages, avoiding disclosing anything patentable or any trade secrets until absolutely necessary. Hopefully, if you can build up some credibility, you can then obtain an NDA, an evaluation agreement -- or even an option agreement. For more on these concepts, check out my book, Profit From Your Idea. If you're in a hurry to file a PPA, check out Nolo's Provisional Patent Application or check out this interesting new patent-filing startup site by Rocky Kahn.
Monday, April 27, 2009
As we mentioned in a previous entry, we would also need to know the contents of your employee handbook or employment contract. In any case, the Dear Rich staff thinks you have a reasonable argument to claim copyright ownership but that it is probably a close call, primarily because the photographs were taken on company time, at the company's facility, and with contributions from the company - they hired the models and apparently supervised the shoot. We're also concerned about that bonus you discussed. If it was negotiated as separate payment for the work, then that could influence your ownership claim. As for what would other photographers charge for similar services, the best answer can be found by checking pricing rates at other photographer's websites, or using one of the popular books or pricing tools. (P.S. Although I am not, as you state, a professional photographer, some of my best friends are, and their work decorates my office.)
Friday, April 24, 2009
Dear Rich: I am a writer (no, really, professionally published and everything) and am working on a novel in which I want to include a historical personage of the 20th century as a character. This gentleman died in the 1990s and was a labor leader who was much in the papers. He is not the protagonist of the book, but is a pivotal character. Would I get into trouble using his name and biographical details, or should I fictionalize the man out of all recognition? I'm so glad you asked. The short answer is, "Yes, you can safely resurrect a dead person in your fiction." The right of privacy (the right to be left alone) does not apply after death, and the right of publicity (the right to control the commercial exploitation of your name or persona) usually does not extend beyond death (and it's very unlikely in this case, especially if it's clear it's a work of fiction). In addition, you cannot defame a dead person. Since you are a professional, your book contract will likely contain a provision that you must pay legal fees if anybody sues you over the content. Although you should feel fairly certain that you will not run into problems, keep in mind that the Dear Rich staff does not have all the facts and has not reviewed your work blah blah blah. In other words, we cannot guarantee your outcome, although we would feel confident doing it ourselves. (In fact we're thinking about writing a novel about Richard James, co-inventor of the Slinky, who, in the midst of a mid-life crisis, left the wife and kids to join enthusiastic evangelicals in Bolivia. Then, his wife turned the company around and made the Slinky a world-wide phenomenon. But I guess we digress.) Ennyway, don't worry about it. Go write a great novel.
Thursday, April 23, 2009
Wednesday, April 22, 2009
Tuesday, April 21, 2009
Posted by The Dear Rich Staff at 9:12 AM
Monday, April 20, 2009
Friday, April 17, 2009
Dear Rich: I have a question. If one uses the name of a quasi-celebrity in the title of a movie that parodies subject matter (organized crime, for example), is one protected under the fair use doctrine? I'm so glad you asked. The fair use doctrine has nothing to do with the use of a name in a movie title. (Copyright does not protect titles.) The fair use defense can only be used when accused of stealing copyrighted expression -- for example, taking text from a book, or a photo from a magazine.
The use of the name may trigger a claim under the right of publicity under which anyone (celebrity, quasi-celebrity, or non-celebrity) can sue if their name or image is used to imply endorsement of a product or service. If it's clearly a parody (or obvious that the title doesn't imply the quasi-celebrity's endorsement) you -- or should we say, "one" -- would likely prevail in a lawsuit under free speech principles. For example, John Gotti's name has been used in the title of parodies, biopics, and documentaries without any apparent repercussions. All of this information may prove academic, however, as the Dear Rich staff wonders whether a member of an organized crime family will bother pursuing intellectual property rights, when they have other tried and true methods of enforcement.
Posted by The Dear Rich Staff at 9:14 AM
Thursday, April 16, 2009
All-Purpose Interview Release
Posted by The Dear Rich Staff at 9:17 AM
At between $275 and $325 per class, the Dear Rich staff feels that your registration can get kind of expensive. On the other hand, you can enforce trademark rights without a federal registration. In other words, you don't need the registration in these classes in order to sell the goods. For example, you can stop others from infringing under common law trademark rights, and you can possibly stop others from registering the same name in these merchandise classes by arguing that it is likely that your business will expand to offer merchandise. So, if money is tight, you might want to wait on the registration (or at least register only the class for the item that you find to be most popular). On the other hand, if you're flush with cash (or babies), and business is going well, then the registration may be worth the investment.
Posted by The Dear Rich Staff at 9:15 AM
Wednesday, April 15, 2009
Posted by The Dear Rich Staff at 9:18 AM
Monday, April 13, 2009
Posted by The Dear Rich Staff at 9:19 AM
Friday, April 10, 2009
[Note to readers: Day 5 of anti-celebrity week and our experiment is proving to be a disaster. The Dear Rich staff finds itself even more obsessed with celebrity questions including: Do celebrities smell worse than the rest of us? And does anybody have time to read through five months of MC Hammer tweets?]
Dear Rich: I received a "Patent Pending" on an item in November 2008. I have since been exploring the possibilities of filing a full patent. I have sold my item on eBay, as well as presenting it to large companies. Now I've found someone on eBay who has copied my idea. Of course, it's not as good. They haven't put in all the hours of perfecting it and making it store quality, but they copied it all the same. What do I do next? I've been told to write a "cease and desist" letter before hiring an attorney. I've worked without an attorney so far because I've been putting all the money I have into my product. But I will hire one if I have to. I'm so glad you asked. We're sorry to learn that someone is ripping off your hard work, but the short answer is that there is nothing you can presently do under patent law to stop someone from copying your invention. "Patent pending status" -- which is achieved by filing either a regular patent application (RPA) or (as in your case) a provisional patent application (PPA) -- puts the world on notice that you have applied for a patent. Until a patent is granted, you cannot use patent law to stop anyone. There is one twist: If your RPA is published (which usually occurs 18 months after filing the RPA) and the infringer is made aware of the publication, you can later sue (after the patent is issued) and collect damages for the period starting with the date of notification. Even though you cannot pursue the infringer under patent law, you may, however, have a claim that they copied your trademark or your copyrighted designs, or they used unlawful means to obtain your trade secrets.
Wednesday, April 8, 2009
[Note to our readers: This is day three in our anti-celebrity week and the effects are beginning to be felt by the Dear Rich staff: one staffer has departed for a research job at TMZ, another was found watching DWTS, and a third was caught reading about Lindsay Lohan's possible restraining order on her iPhone. For those of you who've taken up our challenge, remember: one day at a time.]
Dear Rich: A competitive website stole my website design and code. Their site looks nearly exactly like mine except that they changed the colors. They even have my programmer's comments in their HTML. It took me weeks to come up with a unique and professional-looking design that I was happy with, and I coded my site entirely by hand. I'm so angry about this. They're basically using my hard work to attract customers... and even taking some business that I could be getting as we offer the same service! I wrote to them, but they're ignoring my emails. Would this constitute an infringement? Is there anything, short of a lawsuit, that I could do to make them change their website design? I'm so glad you asked. The short answers are: (1) it is probably an infringement; and (2) if they are blowing off your letters, they will most likely not stop unless you hire an attorney (and even then, there are no guarantees).
We respect your hard work coding your website by hand. But you should be aware that rights are not granted for "sweat of the brow." You will only have a defensible copyright if your code is original (and meets other copyright standards) and you can prove your competitor had access to your work and copied it (which sounds like it's not too difficult). The Dear Rich staff recommends that you preserve all evidence of the infringement by creating snapshots of their site and its underlying code. File a registration for your website code and appearance. You can review the rules in Circular 66: Copyright Registration for Online Works (PDF). That will cost under $50 and may take several months to issue. (If you can afford it and plan to sue, consider expediting the copyright registration). You have copyright regardless of whether you register, but you will need the certificate to file a lawsuit (and the presence of the certificate sometimes sways infringers).
You may also have other claims besides copyright infringement against your competitor, who may be violating state and federal unfair competition laws which prohibit businesses from acting unfairly or deceiving consumers. Your choices of action are:
Tuesday, April 7, 2009
Monday, April 6, 2009
Friday, April 3, 2009
Posted by The Dear Rich Staff at 9:27 AM
Thursday, April 2, 2009
(1) Although the gaming world sees you as a clan or guild, Shadowclan (or at least one of its members) must manifest itself in a traditional legal form in order to register and enforce trademark rights. (It's a little bit like the problem Zorro or Superman might have enforcing their trademarks.) In other words, Shadowclan must register with the USPTO as an individual (sole proprietor), partnership, LLC, or some for-profit or nonprofit variation. If the guild is a partnership (one way to handle it) then you're in a situation similar to a band of musicians who must decide who controls the rights to their name, and plan for what happens if original members leave and other members join.
(2) The Dear Rich staff has determined that there are no federal registrations for the term Shadowclan. However, that may soon change with the release of a new video game. In addition, it appears as someone is using the name on merchandise. Again, registration is the best step to take if you want to enforce rights. You must determine what type of services or goods are associated with your group and register accordingly. (This Nolo book may help.) You can only enforce rights against those who offer similar or related goods and services.
(3) A reader (thanks Kurt) has informed us that a guild, The Syndicate, has acquired a federal registration (No. 3027852) for "entertainment services, namely, an online gaming guild providing in game opportunities for proliferating game expertise and camaraderie among gamers supported by a web site featuring multimedia materials." That's good news as you have a precedent for registration.
(4) By the way, although a service mark is a solid choice, another consideration is to pursue a "collective mark." A common use of collective marks is to show membership in a union, association, or other organization. Collective marks are entitled to registration and the same federal protection as other types of marks. With a collective mark, you can prevent someone from identifying themselves as a member of your organization (if they're not.)