Tuesday, April 27, 2010
The old click to agree, If people submit entries online, for example, at your website or at a third-party site, you can have a button tied to a statement that says something to the effect of: "By submitting your entry you agree to give ________ the right to republish this material in all formats and editions of ____ Dictionary." You can be more detailed and explain additional uses you wish to make for the material. Generally, any assent you can get as a condition of the submission will be fine. If it seems a little tricky to set that up at your website, it's pretty easy to set it up at a site like SurveyMonkey.com. Just direct your entrants to a survey you create there and include the statement by the final "Submit" button. (It probably shouldn't be an issue for a dictionary, but some companies also ask the entrants to agree to the fact that submission is original to them.)
Contest Rules. The Dear Rich Staff also suggests that you can shore up your position by listing your "contest rules" at your website -- for example, by including a similar permission statement in your rules webpage. You will also need permission if you are posting the name, photo or any other personal information about the contest winners. And finally, if there is some kind of remuneration for winners - whether gifts or money - you should take a look at national contest laws (for example, any contest worth more than $500 is probably invalid in Rhode Island). Wow, this is starting to get as boring as a bunch of contest rules. We'll stop now.
Posted by The Dear Rich Staff at 9:00 AM
Monday, April 26, 2010
Right, you had a question. Just in case you're not aware, the LLC and "Inc" suffixes are not alphabetic accessories that you can simply add on to the name of your company. You must file papers and pay fees in order to qualify as a corporation (Inc.) or Limited Liability Company (LLC). Both types of entities can shield the owners from liability but they have different tax implications and legal requirements. The thing of it is, there's no sense forming either one if you're not looking to make money (unless you intend to operate as a nonprofit which is a whole other set of rules and procedures). By the way, these entities can be expensive to maintain. For example, the minimum annual LLC fees in California are $800 a year.
As for your choice of trademark ... We're not sure you have a clear concept of how trademarks work. Currently nobody has registered "RESPECT HOCKEY" with the USPTO for any purposes. But in case you're unaware, a trademark is intended for use in commerce which means you're operating as a business ... so again we're back to the part of you not wanting to make any money.
Hobby or Business. If this is strictly a hobby, we would also note that decision also affects your taxes as the IRS treats hobbies in a less advantageous manner than a business. The Dear Rich Staff thinks you need a mini-primer in maintaining a small business and if we weren't so concerned about the implications of FTC disclaimer rules, we'd recommend some of our own books on the subject.
Friday, April 23, 2010
What kinds of problems can you get into by posting the transcript on the web? The Dear Rich Staff doubts whether you'll get hassled over copyright infringement if you post the transcript. You may run into other issues, however. Did your purchase agreement for the transcript include any sort of license requirements? Read it before posting to be sure you're not violating that. You may also want to review the contents of the transcript to be sure you're not violating anyone's privacy -- for example, the publication of a crime victim's address or phone number. Similarly, we imagine it's possible the transcript may include libelous material -- for example, if a witness perjures himself and makes an untrue statement about one of the parties. The republication of that outside of court by a third-party may trigger a claim of defamation.
Posted by The Dear Rich Staff at 9:02 AM
Thursday, April 22, 2010
* You would need permission from Shaw's estate for substantial quotes from works (more than two or three lines) if the work was published after 1922.
Posted by The Dear Rich Staff at 9:03 AM
Wednesday, April 21, 2010
Tuesday, April 20, 2010
Copyright fraud. Fraud refers to intentional misstatements or concealment of facts. It's usually not used to describe the unauthorized use of someone's work (copyright infringement). There are several references to fraudulent activities regarding copyright notices in Section 506 of the Copyright Act. There's also "fraud on the Copyright Office" which occurs when the applicant for a copyright registration intentionally misstates or conceals information that would cause the application to be rejected. When discovered, it usually results in cancellation of the application. And the term "copyfraud" is used to refer to people who take public domain material and try to get proprietary with it. There's also a subset of activities that are sometimes categorized as misuse of copyright that might be fraudulent -- such as using copyright to suppress free speech. None of this seems to apply to your case and apparently we're just running off at the mouth in an attempt to fill up our blog.
Right, you had a question. We don't know if you have infringed but it sounds like a derivative work. If the elements -- the bird and the plant -- can stand alone as separately copyrightable works, it is more likely that it is infringement.
P.S. Feel free to use the bird and the plant in the photo above, taken by the always obliging Dear Rich Staff.
Posted by The Dear Rich Staff at 9:06 AM
Monday, April 19, 2010
The realities. But hey, the Dear Rich Staff wasn't born yesterday (unless yesterday was, like 100 years ago). We understand the realities and we respect your willingness to pay a reasonable license fee, if asked. We should mention a few things that may inform your decision. We haven't seen the two works but as we have mentioned before, when it comes to portraying elements from nature, the more that the work resembles the actual thing, the less protection it will have.
No pain, no gain. As for your claim that the artist is not suffering any material loss .... We hope this doesn't sound too naïve, but if someone takes your stuff and sells it on t-shirts, isn't that a material loss? (y'know, just sayin'). Reverse roles and we're sure you'll feel the pain.
If the artist comes after you. Should the artist chase you, you do have an email trail indicating that you sought rights (which is good) but when rebuffed you went ahead without permission (not so good, as it indicates willfulness -- a negative quality when assessing damages). (A fair use defense will obviously not work for you as you are not transforming the work and you're using it for a straight-forward commercial purpose.) We can't say how you would fare in a dispute like this but we're a little dismayed that the rules of big pharma patent infringement are being applied against $20 Zazzle artists. Oh well, we'd like to stay and rant but we've got to get ready for a one o'clock presentation.
Friday, April 16, 2010
The promoter has a duty to keep you safe. Start with the presumption that you are never required to perform under conditions that place you in physical danger (unless you agreed to those conditions and waived the right to later sue about it). Contract or not, the promoter must act in good faith, in a reasonable manner, and at the standards of the industry. It would not be reasonable for a promoter to require a performer to do something dangerous or illegal (yes, we know there are plenty of bad promoters ... )
Get it in writing. That said, it's still best to get the standards on paper so that way the purchaser/promoter knows where you're coming from. Typically this is done with a statement in the performance agreement rider. We looked at a range of them (from DJs to chamber musicians) and put together a sample provision with a lot of optional choices.
Outdoor Performance: In the event of outdoor performances (or "rain or shine" events):
[ ] Artist's compensation shall in no way be affected by inclement weather.
[ ] Purchaser shall provide overhead shelter for setup and performance area.
[ ] Artist and Artist's equipment cannot be subjected to any form of precipitation and must be protected from direct sunlight when the temperature exceeds __ degrees F.).
[ ] Artist reserves the right, in good faith, to stop or cancel the performance should the weather pose a potential danger to Artist, Artist's equipment, or audience. Every effort will be made to continue the performance. However, safety is paramount in all decisions. Artist's compensation will not be affected by such cancellation.
[ ] In the event of circumstances that present a threat of injury or harm to Artist or Artist's equipment, Artist reserves the right to stop the performance. If the Purchaser is able to resolve the situation in a reasonable amount of time (maximum of __ minutes), Artist shall resume performance in accordance with the original terms of this agreement. Purchaser shall be responsible for payment in full, regardless of whether the situation is resolved or whether Artist resumes performance.
This will help ... and in addition, ideally, you'd want a person with your group to be knowledgeable about stage construction and/or electrical setups to verify and document your position. We sure wish we had this provision in our contract when we performed on the side stage at Lollapalooza back in the day. The stage was hotter than a George Foreman grill
Thursday, April 15, 2010
Wednesday, April 14, 2010
Possible solution dept. If we were in your position and the content of the songs didn't matter, we believe the least expensive route to success would be to commission the work you need. Any music geek with a laptop and Acid, Pro-Tools, or any other looping software could pull it off in an hour or two and without the need for bringing in other musicians. (We would volunteer but we're under strict supervision and cannot stray from our task of serving your readers' legal needs). In any case, the DIY route would guarantee you could own what's created -- just ask the musician/geek to sign something that says they assign all rights to you -- and you could even have a say in musical content. How do you find said music geek? Try posting an ad in Craigslist or check out sites where said geeks congregate such Acidplanet.com.
Thinking back to yesterday. All this talk about MP3 players brings back memories of yesterday when we returned our iPad and ate the stiff restocking fee. Since iPads were not listed in the return policy at Best Buy there was some discussion between the Dear Rich Staff and the Best Buy Staff as to whether the 10% iPhone restocking fee applied or the (controversial) 15% computer restocking fee applied. They chose the 15% fee and therein lies the iPad conundrum. It's not really enough of a computer to justify the full price. We accepted Best Buy's decision because under a "plain language" interpretation of the return policy, they were correct - the iPad is not an iPhone, especially our Wifi only version. So by default it falls into the computer category. However, let's face, if the return policy, assuming we contracted for it, was a contract of adhesion, and therefore ambiguities should be interpreted against the drafter. We could have pointed that out but we were distracted by a discussion with the sales person as to whether or not you could use the iPad to watch Netflix movies. We maintained that only super-widescreen movies worked all the way through--for example, Air Force One with Harrison Ford (Hey, whatever happened to Gary Oldman. We love him). But typical movies with a lower aspect ratio (less letterbox) always stopped after about thirty minutes. In any case, the Best Buy Staff trumped the Dear Rich Staff because after all, they are Best Buy and we are just Dear Rich. When we put the iPad back in the box for its final destination, the iPod blinked back on inside the box, like a deceased relative who suddenly comes to life in the coffin. We closed the lid anyway and said goodbye.
Posted by The Dear Rich Staff at 9:10 AM
Tuesday, April 13, 2010
Monday, April 12, 2010
The Bat Cave conundrum. Of course, The Dear Rich Staff must start by noting that you don't need a trademark registration to acquire trademark rights. We alluded to this recently when we discussed the Batcave case in which DC Comics was able to stop a comic book store from using the term "Batcave" as its trademark. DC Comics had not registered Batcave as a trademark (they claimed a "common law" trademark), yet the company was able to stop a retailer. We think DC Comics prevailed in that suit because of what the judge referred to as "the almost unmistakable association" between Batman and the Batcave. In other words, Bruce Wayne got serious props and 'spect in the Second Circuit. (BTW, did you know Bruce made wine down in the Batcave?)
Takeaway point: Your ability to achieve similar rights will almost always be in direct proportion to the popularity of your work. Since few comics achieve the popularity of Batman, we think that's a tall order for The Guild of Prometheus, no matter how many marshmallows they roast.
Posted by The Dear Rich Staff at 9:12 AM
Friday, April 9, 2010
Right, you had a question. Assuming your idea was once a trade secret, that protection is over now that you've provided it to others without requiring their confidence. It doesn't seem like your idea would be protected by copyright since you're apparently referring to a method of doing something (and copyright doesn't protect methods). Maybe your idea could be protected by a patent because many great musical ideas have been protected that way (at least that's what we said in one of our books). In that case you have one year from any written disclosure of your idea to file for the patent (or to file a provisional patent application and file a regular patent application within one year of that).
Thursday, April 8, 2010
Did you want a legal answer? We know what it's like to be ripped off so it's not like we don't feel your pain. But we're hesitant to recommend any legal course of action here. We don't know the extent of the copying or the similarity of the works. Most importantly, what's the damage? Have you lost money or been deprived of sales? That would be the most important question that a court would ask if you were to pursue a copyright claim. Although we believe in enforcing the laws for the causes of good -- this may be one of those cases where the best response will come from you, not the Dear Rich Staff
Posted by The Dear Rich Staff at 9:14 AM
Wednesday, April 7, 2010
Tuesday, April 6, 2010
What we can tell you ... (1) For trademark purposes, there is no discernible difference between "Bat Man" and "Batman" especially for radio listeners. Having a soundalike mark doesn't mean you can't use your name, but soundalikes are often considered as substantially similar or identical. (2) DC seeks a broad range of protection for its marks and logos (and there is a wide variety of Batman logos). DC has registered numerous trademarks including, obviously the word, BATMAN, for entertainment services. (3) DC Comics spends a lot of time and money going after anyone who encroaches their turf -- they even stopped a comic book store using 'Batcave' (at least that's what we said in one of our books).
Bottom line dept. Since you are offering entertainment/educational services and have an identical mark, DC would have a strong case against you. So, if you're looking for a moniker you can count on for a long term success, we wouldn't bet on Bat Man.
Monday, April 5, 2010
We don't think you need to change anything (and thanks for the photo). It seems unlikely that Martha could claim proprietary rights to the idea of a knitting basket with yardstick frame but we searched the USPTO website just in case. Martha owns plenty of patents (for example) but unless we missed something we didn't see a design patent for the basket (especially unlikely considering the pre-existing world of baskets). The Dear Rich Staff loves Martha (f'real) and we think she would be fine with your basket (and so would her lawyers -- no, not those lawyers).
Posted by The Dear Rich Staff at 9:17 AM
Thursday, April 1, 2010
Waiver. Although not required, your agreement may include a provision near the end (sometimes called "waiver") that states that your failure to exercise a right in one provision doesn't mean you are waiving other rights. The Dear Rich Staff also suggests that if you're concerned about this, you can preserve your position by sending a letter or email to the publisher saying something to the effect of "I know we didn't hit the royalty target in the contract but I would still like to continue our arrangement. By not canceling now, I am not waiving my right to cancel if we miss subsequent targets."
Termination. Are you sure the agreement doesn't explain how or when to terminate? Usually the publishing agreement has a section entitled 'termination' that explains the hows and whens. If there are no such requirements then termination is probably okay in any manner that provides reasonable and prompt notice of your desire to end the agreement.
This Archery Target ... is reminding us of when we were at summer camp and we got an archery award ... but then things went all swirly when we found a link to our old camp and got super-depressed. Was it sold to Six Flags or something? Water slides, dirt bikes, bungee jumping, four-wheeler ATVs, spy camp (spy camp?), and skateboarding -- and who are those kids with assault weapons and face masks? Oh well, thanks for the memories!
Posted by The Dear Rich Staff at 9:18 AM