Monday, August 31, 2009
"Try Shopping at the Local Supermarket ... "
As our research video (see below) demonstrates, there's no question that the plebian-friendly Safeway, serves up its produce with a heady dose of trademarks (some of which they market to third parties.) There are store brands, grower brands, and the ubiquitous PLU stickers. These stickers are intended to assist in tracking the produce, and often include a source trademark. (For those tired of peeling off stickers, get ready for tattooed pears.)
"The Ragged Sign Simply Says 'Farm Stand' ... "
We like your description of the farm stand sign. We can almost see it on the sun-dappled two-lane, right there with the Burma shave signs, and junior's handmade lemonade sign. But is it real or nostalgia? And anyway, if agra-business and local ordinances have not decimated the U.S. farm stand, there's probably a "stealth" trademark traveling with that ear of yellow stuff anyway (considering that 70% of the corn grown in the U.S. is GMO -- please Monsanto, don't sue; we promise to eat our vegetables!).
Posted by The Dear Rich Staff at 7:33 AM
Friday, August 28, 2009
While You Were Sleeping
Sometime -- perhaps while you were sleeping -- you unknowingly joined the class. The original Authors Guild lawsuit against Google was brought on behalf of all persons who owned copyright in a book that was in the University of Michigan library. That class certification may not have affected you -- you would have to check the UM card catalogue. But when Google negotiated the proposed settlement in October 2008, the parties managed to "grow" the class to include anybody with "a U.S. copyright interest in one or more books." That's one of the reasons the Google settlement has become so controversial -- it is, as one writer put it, "a compulsory license to all books in copyright throughout the world forever."
If You Opt Out ...
Members of a class are given the choice to "opt out" of the proceedings and pursue claims on their own. In other words, you are free to notify the court that you would like to take on Google all by yourself in a separate lawsuit. You may be thinking, what if I don't want to be in the class, and I don't want to take on Google? In other words, 'Why can't everybody just leave me alone?' Unfortunately that option is not available. However, many others are challenging the settlement, and the validity of the class.
Why We Liked the 'Class Action' Movie
We love that this movie was actually filmed in San Francisco and shows City Hall before the renovation (and we love the document delivery scene on Bush Street -- or we think it was Bush). But most of all we love that the crew renovated the Beach Chalet (before it was officially renovated) and shot the bar scenes-- including one with a musical performance by Dan Hicks -- in the beautiful muraled lobby across from the Pacfic.
PS. For those of you who were stirred up by our recent response to the question, 'Does Every Product Have a Trademark?' we'll try to provide further clarification next week.
Posted by The Dear Rich Staff at 7:34 AM
Thursday, August 27, 2009
After receiving your question, the Dear Rich Staff immediately went to the refrigerator and looked at the two ears of corn recently purchased from the Other Avenues food coop and yes, actually they did contain trademarks -- two to be exact. The small sticker contained the name of the farm from which the corn originated and a certification mark that authenticated the corn's organic-ness. Ditto for the tomatoes, the kiwis, and the apples. The green beans and mushrooms did not have trademarks on them, although I am informed and believe that the bin from which they were selected at the coop did have the name of the farm from which they originated.
We do not have any cord wood to examine because being from northern California, we avoid using our fireplace for obvious reasons. However, we used to have a wood stove when we lived in Indiana. We never bought cord wood at at the local Ralph's-T-Mart or Wright's IGA because it was cheaper to buy it from a local who drove it over in a pick up truck emblazoned with "Frank's Firewood," a trademark that permitted us to distinguish Frank from other suppliers. (You are correct, however, that each piece of wood was not marked with a logo -- unlike the engineered wood we buy from Home Depot.)
Should We Qualify Our Statement?
We suppose we could qualify our statement to say, "Almost all products contain trademarks in some form." But why bother? To qualify the statement implies that we are in denial as to the tsunami of marketing that has pulled us deeper and deeper into the sea of consumption -- all of it inherently dependent on the illusionary power of trademarks. Trademarks allow us to justify our purchases, and that allows us to justify the work we had to do to make that purchase. As our trademark mentor once wrote, "No busy working person in a developed society has hours to spend agonizing anew over every single purchase at the supermarket or elsewhere. Everyone is too busy trying to earn the money to be able to make purchases in the first place."
Posted by The Dear Rich Staff at 7:35 AM
Wednesday, August 26, 2009
Publication of Packaging
Product packaging, like any other copyrighted material, is considered to be published when copies are distributed to the public or offered for sale. You are correct that material published before March 1, 1989 must contain a notice and the failure to do so places the material in the public domain. (The so-called "savings clause" of the 1909 Copyright Act -- which would apply for works without notice published in 1955 -- would not save the packaging from falling into the public domain.) Even if notice were included, it's unlikely the copyright in this work was renewed and even if it was, you have a strong fair use argument.
Lack of Visible Trademarks
We are confused about your statement that the products contain no visible trademarks. Except for the spate of "generic" products in the late 1970s, all products contain trademarks in some form -- that's what distinguishes them. In some cases, the product's appearance, itself (referred to as trade dress) may be its trademark. Nevertheless, informational (non-competing uses) such as your museum website would not infringe.
Are We Going to Get in Trouble for Publishing Your Question?
Speaking of 'publication,' are you aware that your email contained a notice at the bottom, that says:
This communication (including any attachments) is intended for the use of the intended recipient(s) only and may contain information that is confidential, privileged or legally protected.Just so you know, the Dear Rich staff has disregarded this warning and ignored the tautological errors contained therein. (We already have plenty to worry about here at Dear Rich headquarters.)
Posted by The Dear Rich Staff at 7:36 AM
Tuesday, August 25, 2009
We could just leave the answer like that -- and you're free to get up and move around the blog if you like -- but your question touches on two sensitive issues for the Dear Rich Staff: (1) How come nobody bought the wonderful book we wrote about crafts law? (2) Why don't we like baseball?
Why Nobody Bought Our Crafts Law Book
The Dear Rich staff has written a lot of books and one of our favorites is the now out-of-print Crafts Law. It was friendly, comprehensive and so helpful. But it didn't sell very well. We tried all kinds of things: promotions at crafts fairs, talking to crafts artists mano-a-mano, and writing columns for a crafts magazine. If you had bought this book and looked for the answer you would have found this helpful excerpt:
"Using trademarks in crafts products. Proceed with caution if you're using trademarks as part of your crafts art -- for example, producing a fabric with a repeating image of the American Express card or producing earrings that feature the Apple computer logo. You may be able to argue that your use is informational and is protected by the First Amendment. However, this argument may be a loser if it looks like you're trading off the success of a trademark rather than commenting upon it. For example, a company that sold trading cards of collectible cars was prohibited from reproducing Chrysler trademarks because Chrysler had already licensed similar collectible products. (Chrysler Corp. v. Newfield Publications Inc., 880 F. Supp. 504 (E.D. MI 1995).) Be aware that making a First Amendment argument means that you've already triggered a company's ire, and you will have to deal with the consequences. This isn't to discourage you from speaking out against corporate branding, just to alert you to the potential morass that awaits if you do."
Anyway... we're not giving up on the crafts world. We're going to improve our crafts book and come out with an all-new version next spring ... so stay tuned!
Why We Don't Like Baseball
We've tried. We enjoyed playing it back in the day. We still try to fit in, often repeating newspaper headlines at lunch meetings -- "I hear Beltram's aiming to rejoin the Mets" or "The Giants better look inward for an opener against the Dodgers." But we lack the honest enthusiasm required. Why? Perhaps it's our upbringing. Perhaps it's our fear of stadiums. Perhaps we're concerned about the environmental impact of all those wooden bats. In any case, we'll look into to it and get back to you.
Posted by The Dear Rich Staff at 7:37 AM
Sunday, August 23, 2009
The Kinko's Kondondrum
The Dear Rich Staff refers to your situation as the Kinko's Konondrum -- so named because we once faced this exact situation at a Kinko's (before they were FedExKinko's ... er, FedExOffice) and we tried to explain to the clerk behind the counter that we were the author of a book on copyright and that yes, our use was permissible even though we did not have permission. The clerk wasn't interested in our claims and we couldn't blame him. (This was a few years after Kinko's had lost a fair use case over coursepack copying). In the end, we lied to get the job done. We do not advise you to lie and wish you the best in dealing with your moral dilemma. BTW, we hope you like our artistic take on Mary's hat throw -- we call it 'Love is All Around.'
Posted by The Dear Rich Staff at 7:39 AM
Friday, August 21, 2009
Why Not Hire an Artist?
If you are seeking a license the Dear Rich Staff suggests that you consider hiring an artist instead of a prototype maker. Professional CAD drawings will provide a professional appearance for your product without the expense of preparing a prototype. As for finding a prototype maker (sometimes referred to as "model maker") use search terms such as "prototype maker" and "model maker" at Google. You can learn more about prototype preparation here.
The Legal Notes
If you intend to seek proprietary rights to your product be aware (1) you have one year from the first public display to file a patent application or provisional patent application; and (2) you should enter into an agreement with your prototype maker assuring your ownership of the final prototype. You can find examples of these agreements in our book, Profit From Your Idea.
Posted by The Dear Rich Staff at 7:40 AM
Thursday, August 20, 2009
The main principle at work here is called likelihood of confusion. If consumers confuse Supernike with Nike, then you are infringing. In addition, you cannot dilute famous trademarks. Of your three examples, "smoothmonster" seems the least likely to confuse since "monster" has a common meaning not necessarily associated with commerce. But based on the litigation history of Monster Cable (not Monster Energy Drink or Monster.com), you can expect a hassle over that choice. (If you plan to use these names solely as your corporate name but not as a trademark for your company or your company products or services -- for example, simply as the name of your LLC -- your uses may go unnoticed.) Otherwise, your plan to "prefix" your way to brand identity is not going to fly and will only lead to a mailbox full of cease and desist letters.
Posted by The Dear Rich Staff at 7:41 AM
Wednesday, August 19, 2009
Why We Get Depressed
Nothing personal, but the idea of someone hijacking public domain material and limiting its use depresses the Dear Rich staff -- whether it is a book publisher claiming copyright over Moby Dick or a museum trying to claim copyright over its photos of the Mona Lisa (a practice known as 'copyfraud'). And of course, whoever created that painting would really be depressed to learn -- should they return from the dead -- that someone is claiming all rights to the work. You don't want to be haunted by that possibility.
Posted by The Dear Rich Staff at 7:42 AM
Tuesday, August 18, 2009
Dear Rich: My organization is interested in reprinting excerpts from speeches of the court justices and witnesses from the Nuremberg Trials held in Germany, 1945-46. Are these trial transcripts in the public domain? The good news is that you can use the transcripts. The bad news is that we're not 100% sure why.
Is there a copyright?
The transcriptions and translations of the testimony were likely accomplished by U.S. government personnel and are preserved by the National Archives (NARA). Even though U.S. government works are in the public domain, we cannot assume that rule applies in this case. Copyright does not protect spoken testimony, only fixed versions of that testimony. The 'author,' for copyright purposes is typically 'the fixer,' -- in this case the U.S. government employees who transcribed the testimony. However, at least one case has held that court reporters are not authors of courtroom testimony; there's insufficient originality. Another argument might be made that translators of the testimony also acquired copyright (in which case the U.S. government translations would be public domain). Our conclusion: most likely the transcriptions of spoken testimony at the trials are not subject to copyright protection.
Can anyone object to reproduction of the testimony?
The people who prosecuted or testified at the trials are unlikely to have any proprietary claims as to their statements. Although laws currently exist providing common law rights to spoken statements, it's unlikely that anything said in such a public forum over 50 years ago is proprietary. It's possible that subsequent versions of the original transcriptions may be protected under copyright. The Nuremberg trials lasted from 1945 through 1949 and the transcripts and some of the proceedings have been separately re-transcribed -- for example, the transcription for the 1946-47 trials of doctors and administrators (the "doctor's trial" transcript) has been posted at the Harvard Law School Nuremberg Trials Project. To the extent that such re-transcriptions contain additional material such as commentary, notes, etc., you would not be able to copy that material.
What about the evidence at trial?
It's not clear whether evidence from the trials is in the public domain. Simply introducing the material into the trial does not make it so, at least under U.S. case law. Photos and films of the war-crimes proceedings taken by U.S. personnel are definitely in the public domain material. In summary, we believe that your organization is free to use the transcripts based on its public domain status and -- if we're wrong about the public domain -- a powerful fair use argument that can be made for these historic documents.
Posted by The Dear Rich Staff at 7:43 AM
Monday, August 17, 2009
What's the AP's POV?
The AP's claim is based on: (1) copyright law -- you cannot rewrite the article in a manner that creates an infringing derivative work, (2) state misappropriation law -- there's 90-year old case involving the AP that says you can't compete unfairly by stealing "hot news," and (3) wishful thinking -- copyright permits free use of facts.
There is a legal theory that goes beyond copyright which prohibits the theft of "hot news." It's based on the 1918 case of International News Service v. Associated Press in which a rival news agency 'stole' and 'rewrote' AP news articles. Some states still uphold this approach; others consider it invalid. (The AP settled its most recent hot news case) It's unlikely that the "hot news" principle will apply in your case because the publication of your book would not trigger the "time-sensitive" aspect of the hot news doctrine.
Just the Facts
Aside from the "hot news" doctrine, the AP cannot stop you from taking the facts of an article and writing a new article using those facts. Consider this recent AP article about the death of Les Paul. You can certainly "rewrite" the first few paragraphs in your book as follows without infringing."Les Paul, 94, credited by many as the inventor of the solid-body electric guitar, died Thursday at White Plains Hospital from complications from pneumonia. Paul is also credited as one of the pioneers of multitrack recording, a process that permits musicians to record different parts at different times and then mix the tracks together." (Copyright aside, we urge every musician with a home studio to observe a few a moments of silence for the man who created modern recording!) Finally, the Dear Rich Staff wants to report that if there are a limited number of ways to say something, you are permitted to express yourself in the same way as others without infringing (known as the "merger doctrine").
The Trouble With Freedom
The trouble with all these "freedoms" -- the merger doctrine, the right to use facts, and even fair use -- is that there are no clear lines. Since the AP is not afraid to file lawsuits you may want to proceed with caution especially if your work may be perceived as competing. If you're particularly paranoid about lawsuits, just take the facts. By the way, speaking of copyright justice, William Patry (the hardest working man in copyright) has a new book and new blog.
Friday, August 14, 2009
Streaming ... But No Download
In addition, you are infringing by copying and displaying the clips, regardless of whether people can download the material. (By the way, modern software products make it possible to capture any streaming video.) You may be able to successfully claim fair use -- courts have considered clips of 15 seconds and 41 seconds to be fair use (scroll down this page to the audiovisual cases) and in addition, your use seems transformative. By the way, there is also a code of "best practices" for creating online videos and you may want to take a look at that, as well as the Yes, You Can! manifesto.
Thursday, August 13, 2009
Posted by The Dear Rich Staff at 7:45 AM
Wednesday, August 12, 2009
Who is a Co-Author?
Lets say that the other members registered the songs and did not list your husband as songwriter. If your husband challenges the registrations, a court will be concerned primarily with whether the percussion parts and arrangements actually amounted to a contribution that merits co-author status. According to the Dear Rich staff, courts have not always looked favorably on percussion parts and arrangements as compositional contributions particularly when they are "dictated solely by musical convention or tradition." (Cf. In this case, an arrangement by Billy Strayhorn merited copyright protection). If your husband is convinced that he is a co-author, he can file a copyright application listing the appropriate information. (Here's a video we made that explains the process) But keep in mind that filing a copyright application with false information -- no matter who does it -- may lead to a claim of fraud on the Copyright Office.
What's the Deal?
If the band members agreed that your husband deserves a 20% portion of the revenue from those songs, he is entitled to it, regardless of the claim of authorship. But your husband will need to prove that an enforceable agreement was reached among the parties. The verbal agreement may suffice though it is will be difficult to prove and may prove difficult to enforce for other reasons. Written documentation of the agreement (including emails) would be best but its hard to tell what proof is proper unless an attorney reviews the documentation. (PS we recognize that this is not a laughing matter, but a segment of our staff insists on linking to drummer jokes!)
Posted by The Dear Rich Staff at 7:46 AM
Tuesday, August 11, 2009
Posted by The Dear Rich Staff at 7:47 AM
Monday, August 10, 2009
We Appreciate Your Understanding
A member of the Walt Disney staff wrote to the Dear Rich staff (if only our staffs could meet!) and explained that
"All requests to use materials which are copyrighted by The Walt Disney Company (e.g. photos, logos, characters, etc.) must be directed, in writing, to the following address: Walt Disney World Legal Department Attn: Requests Post Office Box 10000 Lake Buena Vista, FL 32830-1000 Due to the volume of third-party requests that we receive and in view of the consideration process that these requests are subject to, please know that it may take up to eight weeks for a response to be provided. As such, any requests that are received indicating the need for an immediate response are automatically declined and returned to the sender. We appreciate your understanding."
In short, if you are asking for assistance, whatever you do, don't tick off the WDW staff by asking that they expedite your request. (That only works here at Dear Rich headquarters) You can learn more about Disney photo rules at the Disney photography site and its forum, the Disney photo forum (and maybe at the DIS site, too). We've never been to WDW or Disneyland so we're not sure if the purchase of a ticket incorporates photo rules as well, but a visit to Disney property is a visit to private property so you may have signed away your rights on this one, just by purchasing a ticket. You can discuss the parks (in textual form) without worrying about trademark issues. And arguably, under first amendment principles (and possibly trademark fair use principles), you can reproduce those trademarks for editorial purposes. (We recommend you consult other travel books and see how they've handled it since Disney is not considered the friendliest IP owner. (PS Here's an interesting new fair use case to throw into the mix.)
Posted by The Dear Rich Staff at 7:48 AM
Friday, August 7, 2009
Posted by The Dear Rich Staff at 7:49 AM
Thursday, August 6, 2009
Public Domain Superheroes
By the way, the Dear Rich Staff reports that there are many superheros in the public domain (as this website demonstrates) and there are even whole comics devoted to them; but you probably won't want to use any of these unknowns for your movie. In any case, our legal explanation is unnecessary because it's unlikely anyone will finance your script unless you can get clearance from the licensed character owners. (If you're looking for legal counsel to sort it out, why not ring up Matt Murdock?) (Speaking of subliminal messages, the photo above shows the Dear Rich staff with an unnamed licensed character whose head appears to be upside down.)
Posted by The Dear Rich Staff at 7:50 AM
Wednesday, August 5, 2009
Posted by The Dear Rich Staff at 7:51 AM
Tuesday, August 4, 2009
The Thing About Disclaimers
Your plan to disclaim any connection with the actual character seems unworkable. First, disclaimers -- where someone attempts to disavow legal responsibility -- rarely provide a shield unless they are sufficiently prominent, carefully worded, and are in close proximity to the thing you're trying to disclaim. In some cases they create more confusion and in other cases they serve as an acknowledgement that you knew you were confusing consumers. Second, there is the practical application: for example, do you show up at the birthday party and tell all the kids that you're not really affiliated with the Harry Potter franchise? The Dear Rich Staff is not sure how that would go over -- probably something like this. In any case, offering the lookalike services for free would still be an infringement.
How Do Others Get Away With It?
Some people manage to get away with infringing activity usually by staying so low on the radar that the copyright owner isn't aware of them, or if the copyright owner is aware of them, the owner (a) doesn't consider them big enough fish to fry, or (b) doesn't have the resources to pursue everyone. (Photo shows the Dear Rich staff with one of our favorite licensed characters, the lovely Strawberry Shortcake).
Posted by The Dear Rich Staff at 7:52 AM
Monday, August 3, 2009
Posted by The Dear Rich Staff at 7:53 AM