Wednesday, September 30, 2009

Emotional Distress in Trademark Lawsuit

Dear Rich: I am preparing to file a pro se lawsuit. A company contacted me directly and asked me to bid on a domain of mine that they were cybersquatting. I had used it in commerce for over a decade. Two questions about this action: (1) How long do you think my lawsuit will take? (2)  How might I best demonstrate the emotional distress they intentionally caused me? The short answers to your questions are (1) it is not possible to predict how long your litigation will last, and (2) mixing emotional distress claims and intellectual property claims sometimes occurs, but it rarely succeeds and it opens up discovery about your mental and physical history. 
If you have a clear case of cybersquatting ... we would recommend that you pursue an ICAAN arbitration. Though the rulings can be hit-and-miss, in general, it's faster, easier and more efficient than a lawsuit. The Dear Rich Staff has participated in these proceedings and they tend to run their course in three to six months. If the issues are a little murkier, the arbitration may not be a good idea and you may need a judge's assistance in sorting things out.
Getting Emotional. As this article indicates, courts can be unfriendly to claims of emotional distress. The difficulty in making them is that you must prove that the other party acted in a truly outrageous manner. You may believe that what occurred in regards to your domain name was outrageous but courts will be looking for something more -- for example, a pattern of behavior, or a fiduciary relationship, or a powerful party abusing a vulnerable one. As noted, making a claim of emotional distress opens up your entire medical and mental history. You may find the experience of answering psycho-babble questions posed by a $500-an-hour attorney leads to a serious bout of liticaphobia.

Tuesday, September 29, 2009

Publicity Rights and SAT Preparation Materials

Dear Rich: I think my question relates to the right of publicity. I write and edit test prep materials for students studying for the SAT. These materials include sample test questions and examples that illustrate various grammar errors. Some of the sample test questions and examples include the names of celebrities, as well as the names of characters from novels and films (e.g., Harold and Kumar, Santino and Fredo). To illustrate an error in parallel structure, for example, I might include a sentence such as: "Steve Martin is both a brilliant physical comedian and has been successful at writing novels." Then I would include the corrected version: "Steve Martin is both a brilliant physical comedian and a successful novelist." Another example, used to illustrate an error in subject-verb agreement, is: "Megan Fox is one of those actresses who has international appeal." The corrected version would be "Megan Fox is one of those actresses who have international appeal." Would the publication and sale of materials that include these types of examples violate the right of publicity? The short and long answer to your question is that you can use fictional character names and celebrity names in your examples without violating the right of publicity. The Dear Rich Staff appreciates the opportunity to include a Megan Fox photo though we think a better example for your book might be: "Megan Fox is one of those 'actresses,' who have minimum screen time but maximum downloads." 

Monday, September 28, 2009

Dog is My Co-Trademark

Dear Rich: I am a jewelry artisan and one of the things I do is stamp wording and such onto metal. I've had several requests for items with the phrase "Dog is my co-pilot" which is a registered trademark of The Bark magazine. Because of that I've always declined. However, after seeing many other products with this phrase I did a trademark search and found the federal registration by The Bark, Inc.. The registration is for printed matter, decals, and stickers. So does that mean that the phrase can be used on jewelry, t-shirts, or anything that is not published, other than decals and stickers? Sorry to ask what is probably obvious to you, but until I looked it up I had no idea that the trademark might be only for specific uses. So I'm just checkin'. Whenever I saw the little "R" I just assumed I had to leave it alone. (I've already had a C&D from Fox for "" I had no idea.) Your research is correct. The Bark owns one federal registration for "Dog is My Co-Pilot" for printed publications, decals, and stickers, and another for t-shirts. The Bark  also promotes its mark as the title of a book, and at its website. The Dear Rich Staff notes that one of the factors used to determine infringement is whether The Bark is likely to "bridge the gap" between decals and t-shirts, and jewelry. We can't predict whether your work would get you in trouble -- we found a few examples of the phrase on jewelry -- but if your work is high-profile enough to attract attention from the lawyers at Fox, then you may face a similar challenge for this dog-gone use as well. Disclosure: The Bark's offices are around the corner from Nolo.

Friday, September 25, 2009

Registering Public Figures as Trademarks

Dear Rich: How would the U.S. Patent and Trademark Office respond if I altered a public domain photo of a long-deceased public figure and submitted it as a trademark? The short answer is that you'll probably have a hard time. Unlike Zazzle (see our previous post), the USPTO does not have an automatic rejection policy for images of public figures as trademarks. And unlike the Copyright Office, the USPTO isn't particularly interested in your legal rights to reproduce the image. However, there are some USPTO rules that make it difficult to achieve your objective. Most importantly, you cannot use the image of a living or deceased person if it disparages or falsely suggests a connection with that person. So, for example, the Dear Rich Staff reports that the only individual who has registered the name John Dillinger as a trademark (Reg. 2809305) is his great-nephew who claims the right of publicity under Indiana law. In other words, don't expect to be able to use the image of Babe Ruth to sell baseballs, or Elvis Presley's picture to sell pomade, unless you have a legal basis for exploiting the famous person. Also, you cannot use the image of a deceased president while the president's spouse is alive (unless you obtain the spouse's consent).

Wednesday, September 23, 2009

She's Afraid of Assignment Reversion

Dear Rich: I was artist/writer of a series on which the contract clearly reserved all rights to me. I signed this contract when I was a teen. My editor (who was also my publisher) decided my writing could use some revision, and took it upon himself to rewrite. When the book was published, the script was credited entirely to him, which was false.  Within a couple of issues, the indicia of my book indicated fewer and fewer rights for me and more for the company, with the copyright switching to half company ownership and half trademark ownership. My contract didn't even mention trademark, and it clearly stated that the work was to be copyrighted in my name. After a bitter argument, my editor stopped rewriting my scripts, but still took credit for a couple more issues. The matter ended up in an ugly legal dispute with an out of court settlement. I retained all rights to my work, and the company/editor signed a release agreeing that I was the sole owner and sole creator of the work. Eventually, I rewrote and redrew my entire series from scratch and threw out everything the editor had touched. I filed trademark and copyright papers under my own name. The series is still in print. However, this was many years ago. I understand that a copyright assignment can revert and I am concerned that I will be fighting against a copyright reversion claim in a few years. Would he have a claim to my current series if he attempts to file for copyright reversion in a few years? Yes, it all happened that long ago! There's no short answer to your question; there's too many loose ends. We're confused about what we're dealing with -- a book, a magazine series, a script? -- and we're also unclear about the timing of things. But hey, we're often confused and that doesn't stop us! So here goes:
Assignment rules. There's a difference in the rules for assignments made before 1978 and after (it gets particularly complicated if it's pre-1978). These laws were intended to provide a means for copyright owners to terminate bad deals made years earlier. We're not clear how a judge would rule regarding the potential assignment reversion but based upon your facts, it seems contrary to the spirit of the law.  
The settlement. If a dispute does arise over an attempted rights reversion, the answers to your questions will likely come from a review of your settlement agreement -- that is, a judge or arbitrator may look to the settlement for guidance. If you can afford the fees, you could take a pre-emptive step and have the settlement agreement reviewed by an attorney. 
The new serial. It's difficult to see what rights the publisher could claim to your new series. Perhaps the editor could argue it's a derivative work and therefore the editor has rights on that basis. We think that's a difficult claim to pursue (given the facts presented here). 
Wildcard dept. There are also a couple of  wildcards. Apparently you're talking about a serialized work and it's not clear what elements of the serial are covered by your agreement and which ones are not -- that is, we assumed you continued to create new serial contributions after the settlement. It's also not clear who acquired trademark rights in the settlement. In summary, your situation may be too complicated to rely on the generalized analysis of the Dear Rich Staff; if this situation is creating anxiety, pick up the phone and call an attorney versed in copyright law.

Tuesday, September 22, 2009

Using Sports Teams in Kids Book

Dear Rich: I have written a children's book that I want to publish. Central to the story is the main character's use of professional sports team names. Will it first be necessary for me to seek permission from the leagues (MLB, NBA, NFL, NHL)? The short and long answer is, 'No,' permission is not required for mentioning sports franchises in a work of fiction. Permission may be required if the name (or logo) of a sports franchise is used in the title or on the cover of the book. (The Dear Rich Staff is unsure of whether you'd prevail in a dispute over book illustrations that use team names and logo imagery so it's probably best to avoid that, as well.) As noted in previous posts, the two difficult-to-predict factors that matter are whether the league learns of your use and whether they consider it worth litigating over .

Monday, September 21, 2009

Music Ensemble Wants to Use Turner Paintings

Dear Rich: I run a small nonprofit chamber music ensemble and am researching images to use on the brochure we are putting together for our season. I'd love to use a Turner painting of Venetian canals, since it echoes imagery in a song in one of our programs. My graphics person insists that all paintings are protected, and that I need to find images from an online source like shutterstock, which, needless to say, doesn't have any Turner paintings. Can you clarify? According to the Dear Rich Staff's research, the British "painter of light" died in 1851. In Europe, copyrights expire 70 years after the death of the author. Unless we're missing something (or we've got the wrong British painter named William Turner), all of the paintings are in the public domain. Perhaps your graphics person believes that the photographs of fine art paintings have their own copyright. That's not the case as the courts will not enforce copyrights in slavish reproductions of public domain works. 

Friday, September 18, 2009

Battle of the Domain Names: May the Best City Win!

Dear Rich: I have a question about a domain name I recently purchased -- let's say it's "(cityname)" I intend to use it to provide information about the dining, shopping, service providers and events (before the fact) in the given city. There is another website, "(cityname)," which is a local photography journal, documenting events and happenings within the city. This site provides photo-documentation of events, landmarks and happenings around town (after the fact, per say). Would my domain name infringe the other domain name in any way? The short answer is that you're probably okay ... but more information is needed. The questions that need to be answered are: (1) Are consumers likely to be confused by the two (we don't think so), and (2) What is the relative strength or distinctiveness of each? We wish we could be more decisive but the trouble with trademark law is that sometimes, the Dear Rich Staff has no friggin' clue how the courts (or UPSTO) will rule. 
Concerns Beyond Your Competitor
Besides the other website, you should check the USPTO records to determine if anyone has registered or sought registration for "(cityname) living." For example, Twin Cities Living is a registered mark (Reg. No. 3343705) for magazines featuring community information. Similarly, you would want to be on the lookout for reverse word use -- for example, Citylivingdetroit, if you were in Detroit.

Thursday, September 17, 2009

Punjabi iPhone Dictionary App

Dear Rich: I recently found myself working on a project that involved an iPhone application that would function as a Punjabi language dictionary. I retrieved this dictionary by re-typing it into a database without the permission of the university that holds the copyright. The dictionary is also available online, however the copyright footer only mentions the software company that made the dictionary front-end, not the actual university. What is the law regarding international copyright of dictionaries? Can you really copyright a list of facts? Can I submit my iPhone Application to the App Store without any troubles? Would it make a difference if my app went out to the Dictionary's website and searched for a word rather than keeping a local database in my app? Will I have to retrieve a license from the university and pay them a certain share? Wow, that's a lot of questions. Let's just summarize by saying that if the university has a copyright in the content of the  Punjabi dictionary, your work is infringing. With the exception of GNU licensable dictionaries such as Wiktionary, dictionaries are typically protected by two types of copyright: a copyright for the original text expression in the definitions, and a compilation copyright for the collection of definitions. 
Facts. Facts. It's true that copyright doesn't protect facts but dictionary publishers would argue that writing dictionary definitions requires skill and unique phrasing. Even in those cases, when a definition is too short, or doesn't involve sufficient creativity, or is in the public domain, such definitions can still be protected as a group under the compilation copyright (and we assume that "compiling" a dictionary is different than having it "complied" -- see our cover above). As for linking to the online dictionary, that's a tough call. Like inlining or framing, it may be considered a copyright infringement. The university may also have a claim against you for unfair competition or similar statutes which make it illegal to pass off your work as that of someone else's. The real problem is more of a practical one -- whether you want a self contained app (that can also run on an iPod Touch without wifi) or one that is link-dependent.  As for international copyright rules, if the copyright is valid in a country that is a party to an international treaty, it can be enforced against you in the U.S. 
iPhones and Database Retrieval. According to the Dear Rich Staff If you don't have the rights to your content and you post it as an iPhone app, then Apple -- assuming it learns of the infringement --  would likely remove it and it would be buried in the iPhone App Graveyard

Halloween Characters (and Thoughts About Smokey)

Dear Rich: We are producing a Halloween attraction next month and one of the attractions for younger children is our Concourse of Characters which is photo ops with certain costumed characters. I was wanting to know if we were allowed to have such characters as a Batman and princesses, dare I say Disney princesses, a Mickey and Minnie or even a Sponge Bob costumed character there for photo ops. Have a spooky day! We've said it many times before but like Smokey the Bear, the Dear Rich Staff never tires of repeating our mantra: big companies that own licensed characters don't like it when people make money off unauthorized reproductions. If they find out about your use, they'll hassle you. Here are several posts with more detailed analysis on this issue.
The Smokey Thing ... And speaking of licensed characters, we should revise our statement that Smokey the Bear sends out the same repetitive mantra. Actually, the emphasis in the old motto has shifted over time and was eventually shortened to a more succinct and guilt-driven message. Now that Smokey is entitled to Social Security, he's debuted a more timely and perhaps more difficult to discern catchphrase, "Get Your Smokey On." It seems an unfortunate choice: the youthful target audience probably considers the phraseology out of date and the older demographic is likely bewildered (Is Smokey really something you "get on"? -- Maybe yes!) In any case we're not the ones to question a bear that apparently has Wifi in the woods,  -- what do you think?  

Wednesday, September 16, 2009

Rights to Use Taliban Video Screenshot

Dear Rich: I make photo t-shirts and other photo gifts and take orders online at my website.  I have designed a t-shirt with a photo of a soldier being held captive by the Taliban with the text "Free Bowe Bergdahl" over the photo. I pulled three different photos from the net, one from the Taliban video, a photo of Bowe Bergdahl before entering the military, and the third of him in uniform. I plan to donate most of the proceeds to the American Red Cross from the sale of these shirts, but am I at risk of being sued if I use the photos? It's difficult for us to assess your claims because the grim reality of the underlying situation seems to make questions of copyright law seem trivial. As well-meaning as you may be with your t-shirt, it's difficult to understand how it would not be perceived as exploiting the situation, rather than helping it. In any case, if you're concerned about the copyright analysis, here it is.
Yes, you could be sued if the copyright owners of the two pre-capture photos find out about your use and challenge you in court (probably an unlikely scenario). You're free to do what you want with the Taliban-created image (since for obvious reasons, nobody will claim copyright to that imagery). The fact that you're donating some of the money to the American Red Cross doesn't affect the legal claims (only the amount of damages). And if you are sued, we think you would have a hard time arguing fair use since you are not using the photos in a transformative manner -- you're simply reproducing them in order to sell t-shirts. 

Tuesday, September 15, 2009

Release for Photo of Rock Club Interior

Dear Rich: Someone has offered to license one of my images of the interior of a famous rock club for an album cover. But I don't have a property release for the image. Is an album cover a commercial use that would require a release or am I safe? What if I included licensing terms that says that all liability for lack of releases must be born by the buyer -- will I be safe? Your album-cover use probably won't require a property release unless: (1) the name or other trademarks of the club are visible (for example, the words "The Fillmore," appear above the door) (2) the photo invades the privacy of people portrayed in the picture (e.g, one patron is canoodling another, or it's obvious you need someone's okay), (3) there are copyrighted images within your club interior that are clearly visible or (4) the club has a posted policy (or it's printed on your ticket) regarding the use of cameras within the building. (As for the latter, it's not clear to us whether a venue could halt the use of images taken in violation of a "no cameras" environment. More information on the policy would be needed.)
Liability Shifting. The Dear Rich Staff -- which has seen its share of rock club interiors -- is always in favor of liability shifting devices and it would be great if you can include a provision that the record label or publisher bears the burden for defending any lawsuits that arise from your photo. The trouble is that a savvy buyer will quickly strike such a provision (wouldn't you?) and insist that the photographer guarantee the rights to use the image.

Monday, September 14, 2009

NDA or Preinvention Assignment?

Dear Rich: I currently am working at a company that makes a product that I have no intrest in trying to make better. But they package this product with something that I have found a better way to do. I want to invent this product prototype but was informed that because I signed an NDA, if I take this idea out of the idea stage it would then belong to them!!! Is this true? My company is going out of business next year but the corporation is staying open under a different name out of the country. Does this make a difference? And they are keeping our company name as a brand. Is a nondisclosure agreement iron-clad or does an aspiring inventor have a chance to shine? I didn't realize that by signing an NDA, they could own innovations concepts and inventions. The thought of someone else owning my creative process is very scary to me. We're guessing that what you actually signed was a combo-agreement that had nondisclosure provisions and also gave your employer the rights to any inventions or copyrights created in the course of your employment (known as a preinvention assignment). Eight states have limitations on these agreements and in those states the employee will usually own non-work related innovations created without employer resources and on the employee's time. In general, if you signed a typical preinvention assignment your employer will own your work-related innovations. 
All that other stuff ...We're not sure what's going on with your company but assuming the assets are transferred to another entity, that new entity will step into the shoes of your employer and own everything you created. Practically, the new owners may not police the old agreements, or may not be aware of what you're doing, but under contract law, they could claim rights to it. The Dear RIch Staff reports that your predicament is standard, (and often a business necessity) for many innovative companies. And in these days of disappearing job opportunities, it's not likely to go away.
Even without the paperwork ... Regardless of whether you signed any paperwork, if you were employed for your innovation skills (or hired to create inventions), the employer would likely own what you create under the "employed to invent" doctrine. Alternatively, even if you weren't hired to invent, if you use the employer's resource (materials, supplies or time), the employer may obtain a royalty-free right to own your innovations under "shop-right" rules. In addition, whether or not you signed a nondisclosure agreement, you're bound under state laws to maintain an employer's trade secrets. (Sometimes, the rules expressed above are different for government and university employees.
Plunk Your Magic Twanger! What about this picture of a rare poisonous tree frog? Okay, it's not actually poisonous or a tree frog. In fact the only reason we're posting it is that was offering it as a free download and we like the way the little guy looked.

Friday, September 11, 2009

When Authors Are Readers

Dear Rich: My book publishing contract has a provision that allows my publisher to make audiobooks. Except the book's been out for a year and they haven't done it. Do they have a contractual obligation to do it? What if I want to do it myself? (I think I am the best person to read my book.)  We'd have to see your contract but usually the publisher doesn't have an obligation to produce the audiobook, even though they own the rights. Most likely the standard that applies to the publisher is that it has to act in good faith and do what's commercially reasonable. And if the publisher determines that it's not commercially reasonable, it's "ixnay" for audiobook production. 
What's commercially reasonable? 
The party line on audiobooks is that a publisher usually sells one audiobook for every 10 print copies (sometimes the ratio is lower). So if your book sells 5,000 copies in its first year, it might not be commercially reasonable to produce an audiobook (at a cost between $2,000 to $10,000) if it will only sell 500 copies. It's possible -- though not likely -- that your contract will have a " use it or lose it" provision that says something to effect that if, after a certain amount of time, the company has not exercised certain rights, those rights revert to you -- for example audiobook rights. So look for any reversion clauses.
What About DIY?
Even if the rights don't revert, the publisher may be open to having you do it yourself. But the Dear Rich staff warns that unless you have had experience creating, producing and mastering, you'll need to hire and pay for some audio services in order to get a competitive sound quality. Having produced some extensive projects, we can say with conviction that it takes quite a bit of work to create a professional audiobook.
Are You the Best Person to Read It?
A professional reader will give you the most bang for your buck. But if you don't have any bucks, then "read by the author" may be the way to go. Unfortunately, not every author is as gifted at writing as performing; here are some exceptions: Eric BogosianDavid SedarisJoshilyn JacksonRon McLarty and Malcolm Gladwell

Thursday, September 10, 2009

Voice-Over Release

Dear Rich: You said you needed questions for Audiobook Week. Okay, I'm a voice-over artist and I get all kinds of releases and each one seems to be different. Can you post a sample release for narrators and voice-over folks? That would be helpful. Also, I agree with your assessment of Edward Hermann. He's amazing. Listen to his reading of Annie Proulx's Accordion Crimes. Hey, thanks for the tip on Accordion Crimes.  As for your narrator release, we posted a sample release for use by audiobook narrators at . 
Our Narrator Release
We tried to keep the release short. We added a provision that permits the voice-over artist to use snippets for their portfolio (and you may want to enhance that section). We also included a requirement for a narrator credit. Since this only applies to audiobook work, it would not be applicable for voice-overs for commercials which involve different issues (here's a look at one union's contract for commercials). As for the ADR provision, you can strike that if you're not inclined to arbitrate. This is a stripped down agreement and many reader agreements contain more contract boilerplate, more detailed grant of rights, and even nondisclosure provisions. (And on a completely different topic, the Dear Rich staff wonders if this is trademark infringement.)

Wednesday, September 9, 2009

Podcast Release

Dear Rich: I have a podcast series where I interview comic book artists, cartoonists, and graphic novelists. Do I need to get a written release from people I interview? Can they consent over the phone? Do I have to make a token payment? Yesterday, we announced that this was Audiobook Week. Then we looked into our grab bag of questions and realized we had to stretch the meaning of "audiobooks,"  -- hence this question about podcasts. Ennnyway, the short answer to your question is that if all you're doing is a typical podcast series -- for example, posting at the iTunes Store -- then recording a low-key permission request over the phone is fine (and be sure to save the resulting consent). Simply ask your interview subject, "Are you okay with me taping this interview and posting the result on the Internet as a podcast?" (Also, you don't need to pay for the release -- consideration will be presumed, as they say in the legal world.) 
When More is Needed ...
If you want more than the ability to post the podcast -- for example, the ability to transcribe and post the written version, you should ask for that, as well. If you're looking for extensive rights -- for example, you want to publish a book that compiles all your transcribed interviews, or you want to sell your interviews to a news website, then you should consider a written podcast release like the one we posted at Scribd (speaking of which we wish they'd stop posting our books illegally). The Dear Rich Staff believes this release will work for most purposes and it heads off any problems should an interview subject complain about your editing, as well.
And Speaking of Audiobooks
Okay, now it's time to talk audiobooks. Here are five narrators who never let us down: Edward HerrmannCampbell ScottRobert ForsterWill Patton, and Grover Gardner.

Tuesday, September 8, 2009

Singing Along to Audiobooks

Dear Rich: I am an audiobook producer and I've had several instances lately (and it's a longstanding tradition with audiobooks) where a brief excerpt of song lyrics is quoted in a book, and the reader is asked to scrupulously avoid singing the lyrics, or at least to ad-lib some unreal melody. Usually the ad-lib melody is hideous, especially since the song is so familiar to everybody who hears the book. In one case, a mega-famous writer had to remove lyric snippets he quoted from some old blues songs because he couldn't get explicit written permission to use them. Now, as I understand it, that's a much higher standard than the actual law. According to other producers I've worked with whose audiobooks do use the original melody breifly, fair use makes it okay. One producer told me that there was no justification for avoiding using the melody. So, I'd like to know - who's right? Claiming fair use may succeed, but as you probably know, audiobook publishers need an assurance that they will stay out of court, not simply an assurance that they will succeed if sued. That's a tricky proposition when it comes to music publishers (not known for being litigation-shy). What's needed is a legal precedent that specifically deals with this issue. For example, it would have been great if that mega-famous writer went ahead with the use regardless of the permission requirements. 
Why Fair Use May Work
This recent case demonstrates why fair use claims may succeed ... and goes further than the activities in your question. In this case, an actual snippet of the song (an alleged infringement of the song copyright and the sound recording copyright) was used without permission of the Lennon estate. Of course, past performance is no indication of future results and the fair use argument will be weaker, the more of the song that is used. One or two lines is probably okay but use of a complete verse and chorus, or repetitious use of a song's lyrical hook, or a narrative built around the song lyrics (for example, a mystery based on Yellow Submarine) are less likely to succeed. The outcome will also be affected by the context in which the lyric is placed and most importantly, the transformative nature of the use. 
Singing a Different Tune
As for singing a different melody, it's not clear how that limits the producer's liability. It might even make matters worse and tick off the copyright owner, unhappy to see the work mangled and unwilling to permit creation of a derivative work. Also, we have not addressed issues that might arise when there's a written agreement permitting the lyrics in the print book but not addressing the use on audio.
Hey ... We've Produced a Few Audiobooks, too
The Dear Rich staff takes special interest in audiobooks. (Warning! Tireless self-promotion coming up!) Besides Nolo's podcast series we've produced some exciting audiobooks on legal and non-legal subjects, and we host an informative Elmore Leonard audiobook podcast series. BTW, is anybody interested in acquiring the world's most extensive Elmore Leonard audiobook collection (described in this article)? We love talking about audiobooks. Hey why don't we make this Audiobook Week at the Dear Rich Blog? DONE!

Wednesday, September 2, 2009

Going Postal: Image Rejection for Customized Stamps

Dear Rich: I have a cartoon of a character I created -- Dr. Julia Chicken -- facing off with Sigmund Freud. I wanted to make  U.S. postage stamps using that image but my artwork was rejected by on the grounds of some celebrity malarkey. I had a feeling that Freud would give me trouble, but I'm not sure why. First of all, it's a parody, but even greater reason for confusion is the fact that the Freud photo is public domain. The short answer is that Zazzle is not legally obligated to manufacture your stamp. In order to use Zazzle, you must agree to their User Agreement and as you know, that means you can't use pictures of celebrities. Strange as it seems, the man who founded the psychoanalytic school of psychology and popularized the couch ("And how do you feel about that?") is still considered a celebrity 70 years after his death. He even has Beverly Hills representation. In addition to the 'celebrity malarkey,' the Zazzle User Agreement also won't let you "create a 'new' image using elements from images other people have created." So you've got two strikes against you. (Other companies sell custom postage stamps and their policies appear similar.) As for your parody and public domain defense, they're not relevant since the User Agreement trumps copyright (and nobody is accusing you of copyright infringment, anyway.) The Dear Rich staff believes you're best off dumping Sigmund from the imagery and just proceeding with Dr. Julia on stamps, instead.

Tuesday, September 1, 2009

Deja Vu All Over Again: Using Movie Stills in Thesis

Dear Rich: I am a graduate student working in computer vision research. As part of my thesis I would like to explain certain points by making reference to a few movies including: Deja Vu, Batman, Wall-E, and The Italian Job. I'd like to use one or two stills from each movie. My thesis will be published and stored only at the university graduate students library and only one copy will be produced. Do I need permission to publish these movie stills? It sounds like a classic example of fair use -- you're making limited use for purposes of academic commentary. Nobody can guarantee you will win on a fair use defense, but if you look at the four factors, you'll see that they weigh heavily in your favor, especially since there's only one copy of your work. (If you seek to republish on a bigger scale, your publisher will likely require  permission.) PS. The Dear Rich staff supports your work on computer vision research.