Friday, October 30, 2009
Posted by The Dear Rich Staff at 9:54 AM
Thursday, October 29, 2009
Posted by The Dear Rich Staff at 9:55 AM
Wednesday, October 28, 2009
The Standard of Review. As for your question, the standard of review is best described by Judge Learned Hand in Nichols v. Universal Pictures in which the author of the popular play, Abie's Irish Rose, sued the producers of a movie, The Cohens and the Kellys. Both plots involved children of Irish and Jewish families who marry secretly because their parents are prejudiced. At the end of each work there is a reconciliation of the families, based upon the presence of a grandchild. Beyond that, the works had little in common except for ethnic clichés.
The Abstractions Test. Judge Hand established a standard to separate the idea from the expression. He used the term "abstraction," which is a process of removing or separating something. He stated: "Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out." In other words, every narrative work is built around an underlying idea, in this case the basic plot summary. The idea may be similar to other plots (BTW, many people believe there are only between seven and 30 basic plots), but the author's embellishments -- the series of details and incidents that separate the idea from similar plots -- trigger copyright protection. Copyright only extends to each author's unique expression, not the underlying idea.
Still in Use. Judge Hand's abstractions test is still applied for plots (and was even modified for application in software infringements). In Litchfield v. Spielberg a writer sued the makers of the movie E.T. -- The Extra Terrestrial. The writer claimed that the film infringed her musical play, Lokey From Maldemar, a social satire designed to "illustrate the disunity of man, divided by egotism." The district court applied the abstractions test and determined that the only similarity in both works was the basic plot line -- aliens with powers of levitation are stranded on earth, pursued by authoritarian characters and finally bid their earthly friends farewell. Again, these similarities (sometimes known as nonliteral similarities) are ideas and are generally not protectable.
Our Takeaway Points ... Nobody but a judge or arbitrator can safely tell you whether you've taken the "expression" of a plot or the "idea" of a plot, but you will likely run into problem if you have a high profile work and you're slavishly copying the plot (and/or characters) of a well known work. For example, that's what happened in the copyright battle between Star Wars and Battlestar Galactica (Chaim Green R.I.P.).
Posted by The Dear Rich Staff at 9:57 AM
Tuesday, October 27, 2009
Search on Your Own. You can certainly search the patent database to see if someone has registered a similar idea - we prefer Google's patent searching system over the USPTO database. And you can review the trademark database - lately we like Trademarkia.com more than the USPTO (although they each have searching idiosyncrasies).
Great Ideas R Us. The Dear Rich Staff respects you for coming up with one great idea and hope you come up with more. But keep in mind, there's a reason for Thomas Edison's inspiration/perspiration equation. As Edison himself acknowledged, his success was primarily attributable to being a "hustler" rather than to any of the great ideas he instigated, cajoled or "borrowed." In other words, coming up with great ideas is not the hard part; the challenge is in selling your brainstorm.
Posted by The Dear Rich Staff at 9:58 AM
Monday, October 26, 2009
Looking for Merchandise Agreements. Without reflecting on the pros and cons of these pre-landfill toy products -- the agreements that facilitate such deals are merchandising agreements built around a license to use the movie's copyrights and trademarks. You can see examples of a trademark license and a merchandise license (with explanations) in our book, Getting Permission.
The Real Deal. If you'd like to see more detailed toy merchandise licenses, you might want to consider springing for License Agreements: Forms and Checklists, by Battersby & Grimes, the acknowledged leaders in toy licensing law. If that's too pricey, consider Contracts for the Film & Television Industry by Mark Litwak which provides sample agreements (and we'd also like to plug Clearance & Copyright by Michael C. Donaldson because it provides a good overview on the use of copyrights and trademarks in film). Check the TOCs for all these books online to make sure they include the right stuff. Also both of these books discuss product placements - sometimes part of the arrangement - in which the toy appears in the film.
Posted by The Dear Rich Staff at 10:01 AM
Friday, October 23, 2009
Dear Rich: I am an artist studying the use of corporate mascots such as the Trix rabbit. One of the main points in my thesis is the lack of freedom in discussing the mascots used to sell products to children (and the danger that poses). As part of my exploration of the topic I am creating artworks made out of these mascots, cutting up toys and making sculpture from the pieces. I am doing this for my Masters degree and may continue onto a Ph.D. I have some questions. Am I infringing copyright if I: (1) show the work at my degree show? (2) show the work in a commercial gallery? (3) publish images of the work in a commercial book (4) make drawings or paintings of the works and publish these commercially? or (5) were to claim they were produced in art therapy sessions would they count as informational? I understand that I would be allowed to reproduce these animal mascots for informational purposes, for example in a textbook or news article. (6) Does the exception only apply to reproductions of the mascots as they are? I noticed, for example, that someone had been prosecuted for putting Barbie and Ken dolls in lewd positions and photographing them. (7) Is there any way around this problem such as publishing in a country with no laws on copyright or publishing anonymously? I feel very passionately about this topic and would be willing to consider creating the artworks as anonymous graffiti if necessary.
NIMBY Please. The Dear Rich Staff feels your passion but prefaces this response with one request - if you are going to take the graffiti route, could you please avoid tagging our street. (We live in the outer Richmond District in San Francisco, a few blocks from the Walgreens). We've got this law in the city that requires the residents to remove graffiti within 30 days and frankly we're tired of using toxic cleaning products and paint.
You Have Questions. Your letter included seven questions and to avoid exceeding the short attention span of our loyal readership, we're going to try and keep our answers brief. As for questions 1 and 2, yes you are infringing, but you have a powerful fair use argument and are not likely to be discovered by anyone who might care. Re: question 3 and 4, yes, you are infringing and commercial uses make the fair use arguments a tougher sell. Still, the trend is to permit this type of use and we think you will likely qualify under a fair use defense (which by the way means you may have to defend yourself in court).
You're in Art Therapy. As for question 5, you got us with this one. We understand art therapy and its implications and we're fascinated by the argument that copying someone's work is a transformative use (as required for a fair use defense). Alas, we believe that while you are being transformed by the therapy, the underlying work is not. On that basis (and with no caselaw to support our position), we don't think the art-therapy-as-fair-use argument will fly.
Informational Uses and Trademarks. In question 6, you ask about informational uses. Here you're confusing copyrights and trademarks, a common error since mascots function as both. The "informational" issue relates to use as a trademark. All of your potential uses appear to be informational since you are using these images to make editorial statements. As for making Barbi and Ken do lewd things, that's a whole other issue we'll address in another blog. In any case, we understand that everyone can go through an I-hate-my-Barbie phase.
The Land of No Copyright. As for question 7, we think you're imagining an off-shore world where you can infringe to your heart's content. The reality is that if your work is sold or distributed in the U.S., you can be sued for infringement here, as can any retailer offering your work. If you're a U.S. citizen that makes it even easier to go after you. So unless you're planning to move somewhere where the residents have set up servers with infringing or illegal content (often a country that ends with the suffix, "stan"), then you will be a target for lawsuits.
Some Random Thoughts. In a surprising cross-species mascot switcheroo, we were surprised to learn that Trix was once promoted by stick figures and Mickey Mouse.
Posted by The Dear Rich Staff at 10:02 AM
Thursday, October 22, 2009
Edited DVDs? We're not sure what you mean by "edited DVDs" but we think they are the kind that used to be sold by places like CleanFlicks until the courts shut them down in 2007-2008. For example, if your version of The Proposal is missing the scene where Sandra Bullock collides nude with Ryan Reynolds, then you've got a CleanFlicks DVD. (Wait...that movie came out this year!). CleanFlicks thought they had a way around copyright law by selling a legit copy of the DVD with their sanitized version. Alas, that didn't fly since the copyright owner controls the right to make modified versions. Based on that court ruling it would be illegal for you to sell dupes as well as any unauthorized edited versions.
Of course, that's just the opinion of the Dear Rich Staff and who are we but a bunch of geezers who sit around eating vegan donuts and drinking green tea. It's possible that somewhere in an alternate blog universe, there's another crew who thinks you should proceed with this potentially infringing activity. We'd like to meet them but until then we want you to stay healthy and out of trouble.
Posted by The Dear Rich Staff at 10:04 AM
Wednesday, October 21, 2009
Patents expire. Patents issued after June 8, 1995 expire 20 years from the date of filing; patents issued before that date expire 17 years from date of issue. So, for example, if your father's patent issued in 1991, it would now be in the public domain. That's not to say you couldn't bring a claim against someone for actions that took place while the patent was active but that's a very tricky type of claim to bring (and the clock is ticking).
Patents are assigned. We're not sure of the situation but it sounds like some funny business occurred regarding your father's patent, his company, and his employees. If your father transferred his rights in the patent to his company, that information can usually be located by searching at Google Patents or the USPTO. Use the Advanced Search features, put in your father's name as inventor and find the patent. Check the dates to see if it has expired and look to see if an "assignee" is listed. If so, the assignee owns the patent rights. That doesn't mean that your Dad gave up all revenue. The assignment may have been an agreement promising him payments. So you would need to find the assignment document to see what the terms were. You can also search assignment documents at the USPTO here (in case the assignment was filed at a later date than the patent). Whatever you do, you should act quickly, as the passage of the ten year period since your father's death may have caused you to lose rights.
Posted by The Dear Rich Staff at 9:38 AM
Tuesday, October 20, 2009
What's a bit confusing for us ... and for you as well is that the ActiveState Software company, as you point out, also owns registrations -- we counted at least four -- for other Perl-related trademarks. Possibly the foundation and ActiveState -- which makes and sells commercial proprietary Perl software -- have reached an agreement as to their mutual use, possibly based on ActiveStates' prior registrations. That's just a guess and hopefully a reader will provide more details for a follow-up response. By the way, ActiveState also applied for VISUAL PERL as a trademark but that application was rejected for the Principal Register (as being descriptive) and was relegated to the less-than-cool Supplemental Register. In any case, there are two entities claiming federal trademark rights for PERL and that does not bode well for your intended use.
Let's not forget about the camel ... There's also a third Perl trademark in action and that's the camel associated with O'Reilly Perl books. (O'Reilly also owns the "perl.com" domain.). Perhaps that has something to do with the fact that Larry Walls, the creator of Perl, works for O'Reilly, and is the author of their guide to Perl, nicknamed the Camel Book.
Hurdles and More Hurdles. The Dear Rich Staff believes that you have a series of challenges ahead of you -- for example, a trademark examiner may object to your use based upon the existing registrations; or ActiveState and the Perl Foundation may oppose the registrations as being likely to confuse. For these reasons, we'd probably back off the choice of AlchemicPerl. In addition, you might be concerned about the use of the prefix, "ALCHEMIC" and "ALCHEMY." We just got a solicitation in the mail from an Alchemy Software company in Texas, and we see a company in Florida is seeking a federal registration for ALCHEMY (which might be a problem considering there already is an existing registration for ALCHEMY for computer software for data and document capture.) And there's also a web production company called Alchemic Productions.
Posted by The Dear Rich Staff at 9:40 AM
Monday, October 19, 2009
Posted by The Dear Rich Staff at 9:41 AM
Thursday, October 15, 2009
Posted by The Dear Rich Staff at 9:42 AM
Tuesday, October 13, 2009
How can you tell who owns what? Usually, you need to ask the publisher. As a very general rule, authors of articles in scholarly journals and other periodical publications traditionally retain subsequent print publication rights. Also, as a general rule, most authors of books do not control the right to copy portions of their published books since print reproduction rights is one of the exclusive rights universally granted to book publishers. (Note, in the event that the publisher stops selling the book, these rights commonly revert to the author -- or at least they used to in the old days of publishing ...). So even though the author may be enthusiastic about including the work (and may be listed as copyright owner), the publisher may be the one who has to okay the use.
We support your work and wish publishers would support it too (instead of making you beg like Oliver Twist). If the Dear Rich Staff made more money we would shovel it towards our favorite conservation nonprofit located in the nearby (and beautifully named) town of Petaluma.
Monday, October 12, 2009
We're hung up about who owns the copyright in the wedding photos. You say the photographer "relinquished" the copyright. Did he assign the rights to you? If so, why is he posting the photos and selling prints? We have a feeling he didn't assign copyright and that's why he can still post and sell the pictures. If we're right and the photographer still owns the copyright, then you have the perfect (and most pathetic) excuse for not duplicating the DVD -- you could be sued for copyright infringement.
For the sake of the happy couple. We're not sure how you arrived at the 20% figure but we wish this matter had been discussed before hostage negotiations were commenced over the wedding DVD. Regardless of who owns the copyright, we hope you follow Dr. Phil's advice (See #4) and we also suggest that you consult with the bride and groom before making any decisions (as they are the ones who will suffer the most from any resulting squabbles).
Posted by The Dear Rich Staff at 9:46 AM
Rules About Sealed Documents. Unfortunately, the rules are murky when it comes to Internet posting of sealed civil court documents. Since the Dear Rich Staff is not clear whether continued publication of those sealed civil records violates your state's law or your right to privacy, you may want to consult an attorney (if you can afford it) to determine whether you have any claims that could force the errant website to take down the case summary.
And Speaking of Names: We're happy to report that 'Dear Rich' (Serial Number 77733116) has been published for opposition -- the final stage of acquiring registration at the USPTO.
And Speaking of Trademarks. We just learned about Trademarkia.com, an interesting new trademark site that accesses USPTO records and more. (And when is Google going to do for trademarks, what it's done for patents?)
Posted by The Dear Rich Staff at 9:45 AM
Saturday, October 10, 2009
Posted by The Dear Rich Staff at 9:47 AM
Wednesday, October 7, 2009
Posted by The Dear Rich Staff at 9:49 AM
Dear Rich: I am a television producer who would love to use the work of the Danish painter Carl Bloch within a project of mine. Bloch was born on May 23, 1834 in Copenhagen, Denmark. I'm sure his work is in public domain and out of copyright but would I have to pay any kind of royalties or fees to anyone to broadcast his paintings on television.You are correct. Bloch's work is in the public domain. Danish copyright lasts for the life of the author plus 70 years and Bloch died in 1890. You should not have to pay a fee for the right to broadcast the paintings on a television program, however you may have to pay a fee to acquire access to the paintings -- for example, some museums require photographic access fees or fees for the right to use photographic reproductions prepared especially for the museum. Note, as we have indicated in previous posts, there is no copyright in a slavish photo reproduction of a public domain painting.
If the work is in the public domain, why is there a copyright notice on Bloch's painting (above)? Establishments such as the Hope Gallery earn revenue by selling reproductions of public domain works and probably include the copyright notice with the intention of discouraging competitors and tracking copying on the Internet (such as performed here by the Dear Rich Staff). We suppose we could remove the notice (since copyright law prohibits the placement of false copyright notices (See 506(c)) but we're too busy packing up personal belongings to mess with Photoshop right now. (By the way copyright law prohibits the fraudulent removal of notices as well (see 506(d).)
Posted by The Dear Rich Staff at 9:48 AM
Monday, October 5, 2009
Still Lifes. As for your "still life" concept, the safest course is to get permission for the book cover art. At the same time, if someone says no, or you can't locate the owner, you can probably get by without permission. You have a strong argument that your work is transformative and constitutes fair use. BTW, the Dear Rich Staff isn't sure what you mean when you write of using "artwork by artists who illustrated the book(s)." If you have their permission for the additional art, great. Otherwise, you might be pushing the fair use boundaries by reproducing non-cover illustrations.
Trademark and titles. Single book titles are rarely protected -- that's why your brown bag approach is okay. However, Harry Potter, because it's a series, is federally registered and Warner Brothers owns the rights for calendars (Reg. No.3419797). For that reason, you might not want to use Harry Potter and the Order of the Phoenix on your cover, packaging or advertising. That also puts you in a better position to argue that your internal use of Harry Potter is editorial and non-infringing ... should the issue arise.
Posted by The Dear Rich Staff at 9:51 AM
As for the use in an advertisement. Since you were assembling this ad for a client, you were wise to take a prudent course -- particularly if the client included the term "terminator" -- in the ad copy.
So Many Terminators, So Little Time. The movie company that owns the rights to the TERMINATOR trademark (StudioCanal SA) has rights for the term in relation to motion pictures, computer games, amusement parks, paper products and games, toys and model kits. But they're not the only ones with dibs. Over thirty entities have registered TERMINATOR as a trademark for goods that include wheelchairs, metal grates, firearms, pre-moistened wipes, garbage disposals, silicon-based foam suppressants, fireworks, rock crushing equipment and those spikey-things you used to see in parking lots that deflate your tires if you go the wrong way. So you can see why, with all those uses out there it's best to keep Terminator references off of products or advertisements unless you're sure the use won't step on any toes.
Why so many "terminator arm" photos for sale? You asked why so many stock photos are available of the terminator arm? The Dear Rich Staff believes that photos of the "terminator arm" (such as the one above) have limited copyright protection. For example, you could create a similar model artificial arm, photo it and tag it "terminator arm." In other words, the bigger issue is not the image of the artificial arm (or similar artificial arm technology), but the use of the trademark 'TERMINATOR' in regard to a product or service, or the implication that the movie company (or one of the other trademark owners) is endorsing your product or service.
Posted by The Dear Rich Staff at 9:50 AM
Friday, October 2, 2009
Hi! Here's a letter from a music publisher reader!
Dear Rich: Regarding yesterday's entry I think it's a mistake to say that "if the beatmaker's contribution is mostly percussive, you can probably register the song" and that "traditionally the people who create the lyrics, melody, and chord changes, are the ones who claim the song copyright" not only because these lines are so gray in the hip hop world, but because-- depending on the "best copy" of the work registered with the copyright office -- many more nuances can in fact be copyrighted. There is a convention among my hip hop clients that affords the beatmaker 50% of a song (and whether that is a copyright equity interest or simply a revenue-sharing interest is a matter of potential debate). But the bottom line is that, as a music publisher, I skip ahead right to: "Everything is negotiable, so get it in writing asap," because otherwise I find I simply reinforce confusion. The short answer is that you're right and thanks for the comments. The Dear Rich Staff welcomes practical real-world commentary since -- due to our fear of germs, loud noises, and contrary opinions -- we rarely get out much anymore.
The New Paradigm. In a sense the relationship of an MC and Beatmaker harks back to the early days of pop songwriting -- for example, the days of Rodgers and Hart -- when one person contributed lyrics and the other supplied the rest (we can even see a female rapper putting Larry Hart's lyrics to beats). Recognizing that collaboration and the acceptance of the hip hop tracks as songs, our advice does seem old-school. Instead, we agree that both the MC and Beatmaker be considered as equal collaborators (and treat that as a starting point in the negotiations). Most importantly, we concur about getting it in writing or as they say in the music biz, 'get paper.'
Copyright vs. Revenue Share. One other clarification -- as you note there is a difference between a revenue share and registering a copyright. As for copyright registration, the Copyright Office requires that the song be registered listing the actual authors -- those who contributed to the writing. So it would be an error to list someone who did not make a songwriting contribution as an author. (For example, Elvis Presley's "contribution" to Heartbreak Hotel was apparently that he was able to pressure the songwriters into giving him a cut.) A revenue share, unlike the copyright registration, can be any arrangement that the copyright owners agree upon for compensation. So instead of listing Elvis as a co-author of Heartbreak Hotel, he should have been listed as an assignee of one-third of the revenue (or some other arrangement that guaranteed him the money). In summary, even if the beatmaking does not amount to an old-school songwriting contribution, it can amount to a new-school revenue share.
Thursday, October 1, 2009
Beats and Backing Tracks.Traditionally, the people who create the lyrics, melody, and chord changes, are the ones who claim the song copyright. In the hip-hop world, where the song is occasionally stripped to percussion and voice (with little melody), songwriting credits can be more difficult to identify. Generally, if "the beats" refer primarily to arranged drum parts (with maybe a bass riff or vocal sample), and you did the rest, then you are the songwriter. (We talk about the unfairness of this approach for drummers in this blog entry.)
If the beats consist of more -- perhaps a bed of chord changes, with, drums, bass samples, guitar parts or other melodic instruments -- then it gets more complicated and the person you hired may be able to argue they are a co-owner.
Paying the $200. According to the Dear Rich Staff the $200 payment for the beats is not going to make them a work made for hire for a few reasons we don't need to bore you with. The easiest way to assure ownership would be to get something signed and in writing that says that the beatmaker "assigns all copyright" in his work to you.
What copyright? Just so we're clear, there are two copyrights involved in a recording: the copyright for the song (generally considered the most valuable) and the copyright in the sound recording (which protects the recorded sounds on the recording). So far, our discussion has been about the song copyright. The beatmaker would have a claim of co-ownership to the sound recording copyright since he contributed his tracks. Typically, the record company or artist gets an assignment from the beatmaker and any session musicians or producers involved in the product so that the whole copyright in the sound recording is owned by one person.
Posted by The Dear Rich Staff at 9:53 AM