Tuesday, June 30, 2009
Dear Rich: My non-profit organization is developing a study guide that centers around the Cultural Revolution. We plan to use a number of propaganda posters from China in the 1960s in the guide. We're having a hard time tracking down the rightful owners of the posters to secure permission and we're wondering if it is because there are laws putting propaganda in the public domain. What do you know about propaganda and copyright? Also, what can you tell me about the Berne Convention and its affect on copyright? Aside from reading RIAA press releases, the Dear RIch Staff doesn't know much about copyright and propaganda. We assume your question is whether Chinese government-authorized posters created in the 1960s are protected by copyright in the U.S. The short answer is "probably not." One reason for this wishy-washy response is that for a period of two decades (from 1957 through 1978), China effectively had no copyright system. Commencing in 1979 and through 1990, the country adopted various copyright regulations and in 1991 China's current copyright law went into effect.
Current Chinese Law
Under the current Chinese law there is no exemption for government-produced posters although Article 5 puts certain government documents into the public domain. Article 59 of the Chinese law grants some retroactive protection to pre-1991 works but it is unclear whether this would provide protection for the posters. In any case. it's difficult to imagine the enforcement of copyright in Cultural Revolution posters -- whether produced by the government or independently by local Chinese artists -- as evidenced by the fact that none of the many books or websites reproducing these posters acknowledge copyright, or reflect any permissions for their use (check the Search Inside feature at Amazon). On that basis, you should not expect your study guide to be the subject of a dispute. ) We are also informed and believe (that's legalese for "we're pretty sure") that at the time these posters were created, it was considered "counterrevolutionary" for a contributing artist to make copyright claims.
What about Berne?
In answer to your second, question, the Berne Convention is an international treaty that standardizes copyright protection among the 100 member countries. Basically, any country that signs the treaty agrees to provide the same treatment to authors from other treaty countries as it does to authors in its own country.
Posted by The Dear Rich Staff at 8:20 AM
Sunday, June 28, 2009
The Key to Success
Usually, the most important element in achieving a takedown is locating the agent for service of the DMCA notice. Here's a list of designated agents. In addition to the designated agent (or if you can't find the agent) check the site for other forms of email (or other addresses) for the website owner. Sometimes, you can find it on a "Contact Us" link and often it is simply, "email@example.com." Many sites that post files or post documents have a special mailbox for dealng with infringements -- often that's "firstname.lastname@example.org" or "email@example.com." If there is no designated agent, and no email address for contacting the owners at the site (not a good sign), search for the owner using the database at Whois.net. If your search results in a "proxy" administrator -- a company that serves as administrator and hides the name and contact info for the owner, that's also not a good sign. Once you locate an agent, or email or mailing address for the administrator of the site, you should prepare and send a DMCA takedown notice. Here's an example. (One site has even automated the process.)
What if the Site Refuses to Take it Down.
The approach described above is usually effective -- at least it often works for the Dear Rich Staff. However, if the person who posted the thesis refuses to take it down (or they respond with the countermeasures we discussed in this entry), you will need to proceed with a copyright registration (you can expedite it) and file a lawsuit. Unless you are independently wealthy, that could be cost-prohibitive. If the website owner has deep pockets and you can demonstrate financial damages, perhaps you can find a lawyer who will handle it on a contingency.
Posted by The Dear Rich Staff at 8:21 AM
Friday, June 26, 2009
Posted by The Dear Rich Staff at 8:22 AM
Thursday, June 25, 2009
Wednesday, June 24, 2009
Dear Rich: I've recently been using images from Edward S. Curtis' Portraits from American Indian Life. The book was published in 1972 and has a copyright for that date. Curtis died in 1952 and the book itself is now rare. According to the research I've done the photos themselves were under Curtis' copyright which was forfeited by his daughter and family when he died. Does the book publisher -- who no longer exists but supposedly acquired the copyrighted material from J. P. Morgan (to whom Curtis had sold the original copyright) -- still have the copyright to the material? If so, who do I need to contact in order to obtain perission to continue to use the four images I've used. I have reproduced his images by free hand as closely as I can. [Corrected 06/28/2009 -- Following our initial response to this question, Peter Hirtle offered three corrections. First, he reported that the Library of Congress considers all of Curtis' work to be in the public domain. Second, our dates were off by one year, as corrected below. And third, he reports that "[b]ecause the photographs were individually registered, renewal had to occur according to the date of registration. If they had never been registered, then renewal date would depend upon the date of first publication." Thanks! Check out Peter's copyright duration chart, here.]
The short answer is that you probably don't need to obtain permission from anyone to reproduce the images. Curtis' American Indian photographs were originally published in a series of books from 1907 through 1930. All of the photos in the books published before 1923 are in the public domain. The photos published between 1923 and 1930 are probably in the public domain since it estimated only about 11 percent of copyrights issued before 1964 were renewed. (We explain how to search Copyright Office records in this post.)
What if the copyright was renewed?
If the copyright was timely renewed in the 1923-1930 volumes, those photos won't begin dropping into the PD until 2027 (75 years from Curtis' death). You are probably familiar with the Library of Congress' digital reproductions of Curtis' work (the photo above is currently on loan to the Dear Rich Staff). One nice thing about the LOC project is that it groups the photos by year of publication.
What about your creations?
Since the work is in the public domain, you will own copyright in your contributions, though anyone else is also able to make free hand reproductions. As always, most of what we know about the public domain comes from Steven Fishman's engaging Nolo book and treatise.
Tuesday, June 23, 2009
Our three favorite movies featuring patent attorneys
The Last Wave (1977)
The Man Who Fell to Earth (1976)
The Water Engine (1992)
Posted by The Dear Rich Staff at 8:24 AM
Monday, June 22, 2009
Friday, June 19, 2009
What If They Won't Answer Your Emails?
Be prepared for the fact that most companies are wary of signing an agreement with someone they don't know -- or they may make you sign an agreement waiving any claims. This doesn't mean you can't trust them; just that they're suspicious of strangers. The best chance for success is to find a person at the company who will speak with you, or find a person who knows someone at the company, or find an agent who represents people in your position. It's only through these people-to-people contacts that any business will get done. There are some suggestions on how to pitch, an evaluation agreement, and an agent agreement in the book, Profit From Your Idea. As for the homemade protective measures like mailing copies to yourself, don't bother unless you enjoy the thrill of getting mail. Finally, the Dear Rich staff understands your desire to speak in current biznez lingo but 'monetizing' is inappropriate slang for making a profit. (Its actual meaning is more specific.) When making a pitch, we recommend plain English.
Thursday, June 18, 2009
Wednesday, June 17, 2009
Posted by The Dear Rich Staff at 8:27 AM
Tuesday, June 16, 2009
Can You Really Prevent Theft?
These legal measures provide tools for chasing down thieves and recovering damages. They may discourage theft but none can prevent it. (Websites can be 'scraped' and databases copied.) As for getting the proper language for your click wrap, start by looking at click wraps for similar sites, or by checking Steve Fishman's book.
Get a License?
Yes, the owner of the database should enter into arrangement with the other partners. A license makes sense because you can contribute the database to the partnership and still retain copyright ownership. You may have to determine the value of the license to assess your partnership contributions and partnership taxes. An accountant's help may be necessary. (Check out this Nolo book or software program.)
Posted by The Dear Rich Staff at 8:28 AM
Monday, June 15, 2009
Posted by The Dear Rich Staff at 8:29 AM
Friday, June 12, 2009
There is, however, a logic behind the closed-door approach of the sports licensing industry. Like the toy licensing business, sports licensing execs don't want to deal with strangers or companies that can't meet manufacturing numbers, accept legal requirements, or provide quality assurance. This is especially true in a depressed business climate when risk-aversion is the name of the game. (Although that doesn't stop sports-licensing of some crazy concepts -- check out the MLB-licensed "fan" coffins, above.) As you may be aware, the road you are seeking -- attempting to patent your invention, get investors and manufacture the product yourself (can you deal with foreign manufacturers?) -- is littered with unhappiness and bankruptcies. The Dear Rich staff advises that you reconsider the idea of pitching your invention (hopefully, patented) to an existing manufacturer or agent -- that is, a middle entity who already has cachet with the teams. That's the way many "little guys" get started in the sports licensing world -- by slowly building trust with existing companies.
Posted by The Dear Rich Staff at 8:30 AM
Thursday, June 11, 2009
Okay, the short (and long) answers to your questions are: (1) copyright does not protect titles, but may protect a title when used in connection with other important elements (like character names); trademark law may also protect the movie title, (2) your drawings may or may not avoid copyright problems (it depends on whether they're considered derivatives) and may or may not avoid right of publicity claims (it depends on how the game is marketed), and (3) the psychologists who invented Mafia don't appear to claim proprietary rights, so you're free to base your game on it as long as you don't copy somebody else's derivative version. Take-away points: enjoy the game; don't sell it.
Posted by The Dear Rich Staff at 8:32 AM
Wednesday, June 10, 2009
As for copyright, you cannot copyright a system or method (although you can copyright expressions of that game -- for example, a Wii version of the sport, a book about it, or demonstration videos). Of course, the Dear Rich staff notes that your biggest challenge may not be getting the patent, it could be gathering the resources to stop others from playing it without paying you.
Tuesday, June 9, 2009
Hi Rich: I am a Canadian and in 1999 I approached a company (not a board game or toy company) to find out if they wanted to produce a board game. The prototype I sent them was based on a Biblical story and required that the player answer a series of questions to win. I have some emails from this company that I saved that clearly show that I was working with them on the game. After a year of having no contract and no clear answers, I got agitated and contacted the office manager (supposedly the employee's boss) and I was then told that since this company was not a board game producer, they would not be interested in pursuing this with me, but if I did have it produced, they would consider it. Long story short, this company along with their book publisher did in fact produce a board game for kids remarkably similar to mine, although there are some differences. The board itself looks very similar, and the strategy and method of winning are the same. Their board is in a different case and they use a "pop up" device but there are still many similarities. Is this a copyright infringement? Am I protected in Canada just having the idea or did I legally need to do something else to protect my idea? The short answer to your question -- to paraphrase Bob Dylan -- is that something is happening here but we don't know what it is. Your dilemma falls into a growing area of litigation known as idea-submission disputes. Whether your situation violates Canadian law (we're assuming you submitted to a Canadian company) probably depends on the following: (1) The circumstances under which you submitted your idea. (Was it clear you were making the submission for financial consideration? Probably.) (2) Whether your idea was sufficiently unique. (Have others come up with the same concept or are they likely to? That's a tough call since it's based on the Bible.) (3) Whether there is documentation indicating that the company intended to enter into an agreement or venture with you (or otherwise share revenue). (4) Whether what you provided was sufficiently copyrightable. (Did the company infringe that copyright with their game? Hard to tell without further investigation.) (5) The amount of time that has passed since the company first produced the game. (Did you wait too long to pursue this claim?) (6) Whether Canadian idea submission law differs substantially from U.S. law (according to this article, they appear to be based on similar Anglo-American legal principles). As usual, there are other factors, such as whether you can afford to hire a lawyer, whether you can afford to duke it out, and whether the game is popular enough to make the lawsuit worthwhile. (And of course, the Dear Rich staff suggest that you could always turn your experience into another board game.)
Monday, June 8, 2009
P.S. Even though you didn't ask what 20 CDs we wanted on our custom iPod, the Dear Rich staff has proceeded to assemble its list, just in case:
Posted by The Dear Rich Staff at 8:35 AM
Friday, June 5, 2009
Thursday, June 4, 2009
What really matters? You may have a superior legal position if you can demonstrate that you are the first user of the mark in connection with the sale of these goods (or with retail web services). You will probably have a harder time winning that battle if your mark describes some aspect or quality of the goods. In general, the most important date is the date when trade (the sale of beach products) was first conducted using the blog name or mark. (As they say in the IP biz, "no trade; no mark.") If you feel you have acquired trademark rights (or if you have a bona fide intent to use the mark) you can file with the USPTO and proceed against the other site on the basis of your federal rights. But please review your situation before filing, as the USPTO fees are not refundable. For more help, you can find Nolo's downloadable Guide to Trademark Applications on this web page.
Wednesday, June 3, 2009
Posted by The Dear Rich Staff at 8:37 AM