Wednesday, September 30, 2009
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.
Posted by The Dear Rich Staff at 9:54 AM
Tuesday, September 29, 2009
Posted by The Dear Rich Staff at 9:55 AM
Monday, September 28, 2009
Posted by The Dear Rich Staff at 9:56 AM
Friday, September 25, 2009
Wednesday, September 23, 2009
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.
Posted by The Dear Rich Staff at 9:58 AM
Tuesday, September 22, 2009
Posted by The Dear Rich Staff at 9:59 AM
Monday, September 21, 2009
Posted by The Dear Rich Staff at 10:00 AM
Friday, September 18, 2009
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.
Posted by The Dear Rich Staff at 10:01 AM
Thursday, September 17, 2009
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.
Posted by The Dear Rich Staff at 10:02 AM
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
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.
Posted by The Dear Rich Staff at 10:03 AM
Tuesday, September 15, 2009
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.
Posted by The Dear Rich Staff at 10:04 AM
Monday, September 14, 2009
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 istockphoto.com was offering it as a free download and we like the way the little guy looked.
Posted by The Dear Rich Staff at 10:05 AM
Friday, September 11, 2009
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 Bogosian, David Sedaris, Joshilyn Jackson, Ron McLarty and Malcolm Gladwell.
Posted by The Dear Rich Staff at 10:06 AM
Thursday, September 10, 2009
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
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
Tuesday, September 8, 2009
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!
Posted by The Dear Rich Staff at 7:29 AM
Wednesday, September 2, 2009
Posted by The Dear Rich Staff at 7:31 AM
Tuesday, September 1, 2009
Posted by The Dear Rich Staff at 7:32 AM