Tuesday, June 30, 2009

Using Posters from Cultural Revolution

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. 

Sunday, June 28, 2009

Unauthorized Posting of Masters Thesis

Dear Rich: My masters thesis was posted online (as a PDF document) without my permission. The thesis includes the copyright icon but was not registered with the U.S. Copyright Office. Is the online posting of my thesis an infringement of copyright? If so, how can I have it removed? The short answer to your question is that yes, the unauthorized reproduction of your thesis is an infringement and yes, you are entitled to have it removed (regardless of whether you have registered the work). However, whether it will be removed depends on a few factors --  most notably the site where it is posted. 
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, "info@nameofsite.com." Many sites that post files or post documents have a special mailbox for dealng with infringements -- often that's "abuse@nameofsite.com" or "copyright@nameofsite.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.

Friday, June 26, 2009

Creating Logo Based on Building

Dear Rich: I saw an article on your blog relating to permission to publish pictures of buildings. I'm currently designing a logo which is based on an iconic building in London. You probably need to know 'how much' it's based on the building, but what sort of ground am I on with regard to copyright? The short answer is that you may run into trademark problems (we're assuming your use for the logo is in the U.K,). Copyright is not likely to be an issue for you. The architecture for newer buildings is protected under U.K. copyright law (the life of the author/architect plus seventy years) but there is an exception  (see section 62) that permits graphic or photographic representations for publicly displayed architecture. The Dear Rich staff is more more concerned about your rights under trade mark law (it's two words in the U.K.) A logo is intended to establish an association with a product or service. If the building you are using is already associated with a commercial enterprise -- for example, the TransAmerica pyramid in foggy downtown San Francisco  -- then consumers may be confused by your use, or alternatively, a U.K. trade mark examiner, may reject your registration. A trade mark examiner may also reject the application if the use of the building implies royal patronage or if it is prohibited for statutory reasons. Since so much time and money is invested in a new logo (and particularly if you are creating the work for a client), it may be time to bring in the lawyers.

Thursday, June 25, 2009

Can a Chapter Heading Infringe a Book Title?

Dear Rich: I wrote a nonfiction book and it turns out that one of the chapters is the same title as a book on a similar subject. The person who wrote that book also has seminars and a DVD using the same title. I seem to remember that there's no copyright on titles -- but don't know how to make sure. Am I infringing? The short answer is 'No.' Copyright law definitely won't protect the book title. Trademark law (with rare exceptions) only protects book titles when used on a series of books. (The author could federally register the title for her seminars but she hasn't done so, yet.) Even if the author could prove she had trademark rights, she would have to show a likelihood that purchasers would be deceived, confused, or misled (yes, we know we could have said it with one word, but we're lawyers). Proving likelihood of confusion seems difficult since most consumers won't see your chapter heading until after they have purchased your book.  All that said, the author or publisher may still fire off a C&D letter should they learn of your chapter title (and may even dredge up claims of unfair competition). If you're concerned about getting hassled, the Dear Rich staff suggests that in the short term, avoid using the chapter heading in promotional materials for your book; and in the long term -- assuming you do a second printing of your book -- change the heading.

Wednesday, June 24, 2009

Copyright in American Indian Photos

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

Can a NonProfit Be an Invention Licensor?

Dear Rich, I have a question. I have invented a very useful tool and have a patent pending. Also I have an arrangement with a nonprofit and some principals. The nonprofit will operate the business of selling the tool to generate revenue. The principals provide funding and agree to use their retail outlets for the sales. Can we license a manufacturer to manufacture only and license the nonprofit to sell the product? The short answer to your question is that we're not sure. Yes, I know that the Dear Rich Staff is packed with lawyers, but more information is needed. For example, we're concerned about maintaining your nonprofit tax benefits, and the value of your patent pending status, and we're not sure what you mean when you say you want to "license a manufacturer to manufacture only"? Do you mean versus manufacturing and selling? We're also not sure who controls the rights to the invention, you or the principals? In a situation like this -- when you're mixing investors, inventions, and 501(c) tax issues -- you're best off bringing an attorney to the table
Our three favorite movies featuring patent attorneys

Monday, June 22, 2009

Can I Use the Name From a Previous Business?

Dear Rich: I started a business with a partner, we didn't get along, and it folded after six months (we just dissolved the S corp). We didn't register any trademarks. Do you see any problem with using the same name for my new sole proprietorship business? The short answer to your question is that your ex-partner may object and may have the legal basis to prohibit your use. Your ex may also have another concern -- that your use of the same name may create the impression that the two of you are still in business. The legal rules are as follows: the business name -- regardless of whether it's registered -- is an asset of the business unless there's an agreement to the contrary. Normally, when a business closes, the assets are divided and distributed to the principals (or creditors). The Dear Rich Staff recommends that you look through the termination paperwork to see how it deals with intangible assets. If you're not sure what happened to the name and you're now on good terms with your ex-business partner, perhaps you can enter an agreement signing off on any rights to the name. Otherwise, (1) see an attorney to verify your use, or (2) go ahead with your use of the name and wait to see what happens -- your ex may not be able to afford (or may not care enough) to bring a lawsuit. As always we can't predict the likelihood of such a dispute happening (even when we ask our crystal ball).

Friday, June 19, 2009

Idea to 'Monetize' Large Asset

Dear Rich: There is a company that owns a large asset they have been trying to monetize for some time now. I recently came up with, what I believe is, a process that they can use to to do just that. After speaking with a few trusted friends who are consultants and non-IP lawyers they told me I should figure out how to protect the idea then try to strike a deal with the company. Is there some standard way to proceed in these situations? I have heard everything from contact an IP lawyer, send him two written outlines certified mail etc... to don't talk to the company about the idea over the phone. Thanks for any advice. As David Mamet explained in The Spanish Prisoner, there's no protecting a business idea if somebody is intent on conning you out of it. Start with the most important questions: What do you know about the company and what do you know about the people associated with the company? If they have a dubious reputation -- usually documented by lawsuits (and occasionally by movie scripts) -- save your time and money by moving on to your next big idea. If you do decide to pitch your idea, you can: (1) treat the idea as a trade secret and submit it only after a nondisclosure agreement is signed, (2) seek patent protection or 'patent pending' status (or at least have the idea reviewed by a patent attorney) or (3) submit the idea under the terms of an evaluation agreement in which case if the company later decides to pursue it, they'll grant a license in return for royalties. None of these will stop theft; they all provide remedies if your idea is stolen. 
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

Wedding Videography and Sync License

Dear Rich: I'm thinking of starting a wedding videography business and I'm trying to find out if and/or when I need to obtain music license(s) for making wedding DVDs. Researching on the web has proven nothing but confusing. Some places say using any song under any circumstance is illegal. Other's say something along the lines of... the couple has the right to private listening/playing/performing these songs since the wedding is a private event. I'm not wanting to add the music (I have a production music library for that). I'm just wanting to know if any songs played or sung during the ceremony need licenses like what about if someone sings or plays Shania Twain's "From This Moment" during the unity candle. I even asked a lawyer about this and he said that because only a couple copies are made it's covered under fair use. I've researched fair use and don't think this qualifies. I'm not a lawyer, but if a lawyer doesn't make sense, you understand my apprehension? In order to distribute a DVD in which music accompanies a video, you need a sync license from the owner of the song. Good luck getting one. The Harry Fox Agency tried to organize a system for people like you and you can read about their attempts, here. In addition, if a DJ at the wedding party plays pre-recorded music (not a wedding band covering the song), you'd need permission (a Master Use license) from the owner of the recording (a record company). We assume you won't have the ability to research this stuff and enter into separate licenses for every song (even if you could get the music publisher or record company to take your calls). 
Are you an infringer if you don't get a sync license? 
Probably. Will you get caught? Probably not. Unless you're videoing a wedding in which someone from the RIAA marries someone from ASCAP, chances are good that nobody will know or care about your work. The legal advice you received may also apply -- if you are hassled, you may be able to argue that it's fair use but that depends on the four fair use factors, particularly the first and last ones. If you're looking for a jerry-rigged solution to your situation, you could obtain a mechanical license for the song from Harry Fox and if hassled, argue that you made these payments in lieu of any other system for compensation. The mechanical license is not intended to cover video but your payment would demonstrate your good faith (and the Dear Rich staff bets that a music publisher is more likely to back off if you took this route). What's the video clip got to do with your question? This movie has our favorite wedding music

Wednesday, June 17, 2009

Does Home Sale Imply Photo Permission?

Dear Rich: So, is an agent who is helping a buyer, who is not trespassing, who is invited into a home for sale (via a Realtor's ad), allowed to snap photos and publish them online for all to see, without specific expressed permission? Or is the permission implied with allowing 100+ buyers into the vacant home? Or is it a conditional invitation with limitations on rights to photograph? Just because you were invited on to someone's property, vacant or not, does not imply the right to take photos. The best argument you could make would be that the seller or the seller's agent was aware of you taking photos and didn't complain. (For example, the Dear Rich Staff was recently at the Google offices in San Francisco, taking a video of the free lunch -- it was pretty impressive stuff, gourmet pizza, fresh broccoli, incredible salads, and free wheat grass juice in these little shot glasses - until a Google rep explained that no photos were permitted. Okay we got the point even though we still like looking at the video when we're hungry.)  The next question is whether permission is required. After all, permission is only needed if you are violating someone else's rights. Someone may claim your posted photos violate copyright law -- a long shot -- assuming there's something copyrightable in the photos (artwork on the walls?); or someone may possibly claim invasion of privacy (although if the house is vacant and hundreds of people are walking through it, that's a tough argument to make). It may be a violation of contract if ads for the home state "No Photos." It may violate someone's right of publicity (wow, check out this cool right of publicity site) if you photo them in the house and you use that photo to sell the home, blah, blah, blah. The real issue is why are you asking this? Are you being hassled because you're an agent who showed up at a home for sale, took pictures, posted them without permission? If that's the case -- and since agents need to work together cooperatively in most communities (especially in a tough real estate market)  -- don't you want to work this out with the people you are dealing with on a day-to-day basis? It's always more satisfying to "get to yes" without bringing in the legal blowhards. (What's the movie poster got to do with your question? There are a lot of vacant homes for sale in New Granola.)

Tuesday, June 16, 2009

Database Protection and Licenses

Dear Rich: I have a two-part question. Part 1: I'm developing a website whose main feature is an online database that contains (in part) original material written by me. What kinds of notices, user terms and agreements should we have to protect the database and its contents? Part 2: The site publisher is a partnership, but one of the two partners retains copyright to the database and its contents. Should there be a license agreement between the database author-partner and the partnership itself?   This article is a good summary of the legal maneuvers used to protect databases. The most common strategies are to:

  • register the database with the Copyright Office (assuming it is protectible -- see Circular 65)

  • require that users enter into a click wrap arrangement which grants them limited rights and guarantees your rights to go after those who copy data without authorization, and

  • treat the database as a trade secret and require that employees and contractors working on your site enter into nondisclosure agreements.

  • 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.) 

    Monday, June 15, 2009

    Can You Patent Something Invented by a Machine?

    Dear Rich: Can you patent an invention that was designed by invention software? How much human involvement is required to be considered to be invented by humans? Can an invention created by invention software be considered nonobvious under patent law? We wish we had the answers to these questions but, fortunately, we know someone who does. Attorney Robert Plotkin has written a book, The Genie in the Machine: How Computer-Automated Inventing Is Revolutionizing Law and Business and the Dear Rich staff interviewed him as part of the Nolo podcast series. You can listen to Robert Plotkin's answers here.

    Friday, June 12, 2009

    Sports Licensing: Is the System Rigged?

    Dear Rich: I have a great idea for a sports team related product and have started looking into a patent.  I looked into licensing and can't even believe that it's legal to put the restrictions on that these teams do. I don't want to cheat these universities and professional teams out of their money on these things but they make it impossible to make a new product, not similar to anything they are offering without going through one of their existing suppliers or having an exemplary record of mass producing products similar. WHAT HAPPENED TO THE LITTLE GUY? WHY CAN I ONLY SELL MY IDEA? WHY CAN'T I OBTAIN LICENSING THEN GET INVESTORS ONBOARD? THE SYSTEM IN LICENSED PRODUCTS STINKS AND SHOULD BE ILLEGAL. Ouch ... our ears are ringing.  We understand you're angry, but in the future, you may want to consider the intonation of your query before hitting the "send" button.  Okay, assuming your question is 'Why is it so hard to license products to a university or professional sports franchise?," the short answer is that as a general rule, the bigger the enterprise, the less that the enterprise wants to hear from outsiders, a principle sometimes referred to as "NIH." (As you probably know, sports licensing is a big enterprise .... so big that even reading about it can be expensive.)
    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. 

    Thursday, June 11, 2009

    Board Game Based on Movie (NOT!)

    Dear Rich: I'm thinking of developing a board game based on a friend's idea. The game title and game roles are borrowed directly from a movie. Can I use the movie title and characters' names in my game? Secondly, I want to use characters' portraits from the movie in my design. What if I just draw the portraits by myself, say, in cartoon style? Third, the game rule is based on a party game called Mafia. Is that legal? Before we begin, can we send a shout-out to anyone asking Dear Rich questions about using a movie or TV show as the basis of their book, movie, t-shirt, or coffee mug? Regardless of the legal analysis provided by the Dear Rich staff, if the owner finds out about what you're doing, you're likely to get hassled. (Yes, we're talking about "sue first, ask questions later.") We're not advising you give up your legal rights, but if you have limited resources, we do advise against investing them in a project with a built-in hassle factor.

    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.

    Wednesday, June 10, 2009

    Patenting Sporting Event

    Dear Rich: I developed a new sporting event and would like to find out how I can go about getting it patented or copyrighted? I have read about other types of inventions but not about the development of a new sport. The short answer to your question is that you may be able to patent your new sport but you will have a hard time claiming a copyright. Patents have been issued for new games, (ping-pong poker, anyone?) for variations on existing games (arena football anyone?), and even for competitive techniques within sports (ready to improve your putting?). (You can read more about these sorts of patents in this article.) Under a recent patent ruling a process or method (such as a sport with rules), may qualify for a patent if it affects some hardware -- that is, it is tied to a particular machine, object, or apparatus, or it transforms an object into a different state or thing. In short, as long as your 'invention' includes a physical element such as a football, hockey stick or some other object or hardware, you probably satisfy this requirement.
     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

    Board Games, the Bible, and Canada

    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

    Pre-Loaded iPods: Part Two

    Dear Rich: If I buy 20 CDs and load those CDs on to an iPod, is it legal for me to sell that preloaded iPod as long as I send the CDs with the iPod to the customer? The short answer to your question is that nobody is certain whether this activity violates the law but if we were a betting blog, we'd bet that you could get away with it. (See this related Dear Rich question.) The RIAA's failure (so far) to attack businesses such as RipDigital or MusicShifter may mean you don't need to worry. (That strategy differs from the movie industry approach.) In any case, the law is not clear. Even if it is considered fair use for you to copy a legitimately purchased CD to an iPod, the law doesn't allow you to exercise somebody else's fair use rights. Speaking of fair use, Jim of Povmedia.com, brought to our attention another helpful resource. (Also note that if you must disable any digital rights management software to rip the CD, you would be violating the DMCA.)

    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:

    Friday, June 5, 2009

    Rights to Deceased Movie Actor Figurine

    Dear Rich: I have a business that sells small collectible figurines. I am interested in finding out whether it is acceptable for me to create figurines of characters in movies which have entered the public domain, without obtaining permission. For example, a classic 1940s movie entered the public domain because of a failure to file a copyright or extension. The actors in this movie are well-known and have been in many other movies. I would like to produce and market a figurine of one of these characters, as portrayed by this well-known actor (who is now deceased). Is this acceptable? The short answer to your question is "yes, for the movie rights; maybe not for the rights connected with the actor's estate." The only way you could be hassled regarding the movie rights is (1) if the movie is based on a book which has not fallen into the public domain and (2) a court feels that the literary character is separately protectible. The Dear Rich staff thinks that's a long shot, since most books published before 1963 are probably in the PD. As for the actor's publicity rights, many states, including California, have a "descendible" right of publicity, meaning that the actor's estate inherits the right to exploit his persona. In California, that right lasts for 70 years after death. That's why Steve McQueen and John Wayne are still making endorsement deals. Since it is sometimes difficult to separate an actor from a character -- think Jimmy Stewart and George Bailey -- the right of publicity may be triggered by your figurine (provided the public can recognize it as being based on the actor). In that case, check your mailbox for a C&D letter.

    Thursday, June 4, 2009

    Blog Name 'Stolen' By Website

    Dear Rich: I registered a blog on Blogger in January, 2009, and at the bottom of the blog was a trademark notice as well as a copyright notice repeating the blog's name and stating "all rights reserved". The blog links to our website, which sells coastal- and beach-themed decor and similar items. It was our intent to make the blog a website of its own. Our first posting was on February 14, 2009. I recently learned a company registered the exact title of my blog with a dot.com extension on February 9, 2009 and it states "beach-inspired decor, lounging, and accessories" The site did not exist at the time I registered the blog or did a trademark search on TESS. Their site has no mention of a trademark or any copyrights. Since I claimed trademark for the name as well as copyright notice on my blog, I am wondering if I can send a cease and desist letter. I'm so glad you asked. The short answer is "maybe you should send a letter... or maybe not." We're sorry to hear about the misadventures of the competing website. However, the Dear Rich staff must point out that adding a trademark notice -- for example, the letters 'TM' -- doesn't mean much except that you think you have trademark rights (unlike a federally registered mark, which entitles you to use the 'R' in a circle). Starting a blog at a blogging website like Blogger also does not guarantee you rights; it merely reflects that you started a blog. (Note also that the date of the postings can be changed in blog software, so that fact by itself is not conclusive as to rights.)  
    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

    Dividing Music Income

    Dear Rich: I have read your book, Music Law: How to Run Your Band's Businessbut there is an issue that still confuses me. My bandmates and I are at a loss as to how to divvy up the various possible income streams (MP3 sales, CD sales, TV sync license fees, and royalties, etc.). I am the sole songwriter in the band. We record music and are trying to market it through various means (online and brick and mortar). If there is no record company to take a share of sales income, how, generally, is that income split up? What about songwriter royalties and publisher's royalties? What about SoundExchange royalties? Who gets a cut when we sell something?  Any help you can give would be greatly appreciated. I'm so glad you asked. One simple way to look at things is to divide up the revenue sources into two groups: music publisher/songwriter income and band (or non-songwriter) income. Your band has a few choices for dealing with songwriter income (as discussed in the book). The main decision is whether the songwriter keeps it all, or divides it among band members -- for example, you can create a music publishing entity and split that income based on an agreed-upon percentage, perhaps rewarding the songwriters with a higher share of the pot. As for band (non-songwriter) income, that's usually split equally after deducting expenses and payments to the usual suspects (manager, tour manager, agent, etc.) In the new edition of Music Law, I'm going to break  down the sources of music income into more detail.  Since that won't be out until August 2009, the Dear Rich staff has prepared this table that summarizes the common income sources based on whether it is songwriter or non-songwriter income.

    Type of Income
    Live Performance
    Payment to band from club owner or booking agent. 
    CD Sales
    Payment to band, either: direct payment (if sold from website  or at shows); store payment (if consignment); distributor payment (if you have a distribution deal); or record company payment (if you are signed).
    Payment by record company to music publisher/songwriters for mechanical license fee (per unit).
    Digital Downloads
    Payment to band either: direct payment (if sold from your website); or distributor payment (if you have a distribution deal).
    Payment by record company to music publisher/songwriters for a mechanical license fee per download.
    AM/FM Over-the-Air Radio Play
    Payment to music publisher/songwriters from performing Rights Societies (ASCAP, BMI, SESAC).
    Webcast or Satellite Station Play
    Payment to music publisher/songwriters from performing Rights Societies (ASCAP, BMI, SESAC).
    Payment to band (or sound recording owner if you have a record company) from SoundExchange. 
    Movie/TV Soundtrack
    Payment to band from movie/TV production   company for master use license; additional payment(s) if sound track recording is released.
    Payment to music publisher/songwriters from movie/TV production company for sync license; payment from performing rights societies (ASCAP, BMI, SESAC) to music publisher/songwriters when television show is broadcast or movie is shown; payment to music/publisher/songwriters if soundtrack sold as DVD or CD soundtrack for mechanical license fee (per unit).
    Endorsements/Corporate Sponsorships
    Payment (or other compensation) to band from corporate sponsor.
    Advertisement Featuring Song
    Similar to movie/TV payments with additional twists if song is used in nontraditional ways (free downloads, etc.).
    Subscription Sales
    Direct payment to band; or, if managed by third-party  distributor, treated like digital downloads.
    Video Game Featuring Song
    Treated like movie/TV soundtrack payments.
    Payment to band/record company by ringtone distributor for master use license fee.
    Payments to the music publisher/songwriter by ringtone distributor for mechanical royalties (per unit); additional payment made by ASCAP or BMI to the music/publisher songwriters.
    AdSense or Affiliate Payment
    Payment to band from online company (Google, Amazon, etc.) for ads or links that appear at band-related sites.