Tuesday, April 27, 2010

Dictionary Contest Waivers

Dear Rich: Our company is going to have a contest in which we're going to ask people to submit possible entries that will be used in one of our dictionaries. Does every person who submits a term need to sign some sort of waiver that gives our company publishing rights for their submissions? You'll need some kind of permission but you can probably get by without written signed permission forms.
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 RulesThe 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.

Monday, April 26, 2010

Respecting Hockey, LCCs and Trademarks

Dear Rich: I am starting a new website called respecthockey.com. I was planning on doing an online radio show, a blog, and possibly a video blog live as well. I have seen many similar sites have a 'inc.' , or 'llc' on the bottom of it, and then the name of the site is a trademark. I am not looking to make money. I just want to promote the game and I was a journalism major. What do you recommend? I was thinking 'kd products llc,' and then 'respect hockey' or 'respect hockey talk radio' as the trademark. We had to change the wording in your question because we have a reader who is rightfully displeased to see 'trademark' used as a verb. (We wish we could include him in our blog links but alas, the people who maintain this blog operate with the speed of hibernating marmots.) 
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

Copyright on typed transcripts

Dear Rich: I saw your post on trial transcripts. If I order a transcript and pay a lot for it, can I then post it on the Web? The content is public domain, but I wonder if the reporter gets copyright protection for typing it all up. (If so, then I could freely retype the transcript, I suppose, and then post it?) Copyright is not awarded simply for typing the work (and it's also not affected by how much you pay for the transcript). Copyright is typically awarded to the party who first fixes the work. Technically, that would be the court reporter, but we previously noted, at least one case has held that court reporters are not authors of courtroom testimony because the mechanical process of transcribing does not demonstrate sufficient originality.
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.

Thursday, April 22, 2010

Using Poe, Shakespeare, Shaw and Mona Lisa in Video

Dear Rich: I am creating two to five minute video sequences of my art montages for iPod and iPhones and would like to use quotations at the beginning and end by Poe and Shakespeare and Shaw. (1) If all quotations come from some published source do I need to get permission from someone? (2) If I have used an image in my montage sequence that shows for say 10 seconds a painting in a museum, say the Mona Lisa from the Louvre and I altered a picture that I took of that image to look like a pop art Warhol do I need to get a license from the Louvre for the usage? The Dear Rich Staff will save you the trouble of reading a long answer: (1) No, you don't need permission for the quotes*; and (2) No, you don't need a license for your Warholization of the Mona Lisa (unless of course, you're copying Warhol's version.
* 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. 

Wednesday, April 21, 2010

Legal rights for Batman app

Dear Rich: I'm creating an application for the iPhone and was planning to place it in the appstore. Its a 'video ringer'. Instead of only hearing a dull sound when someone receives a call, I replaced it with a video. The thing is that, I made a 'Batwave' sort of video. Do you think I will have a problem? Yes, we think you may have a problem. If DC Comics learns that you're using the logo they may request that Apple remove the app. That's what the owners of Tetris did with an application called TRIS back in 2008. As we mentioned last week, DC Comics, the owner of rights, broadly asserts its Bat-rights. Obviously, the company has the right to make a similar app and your unauthorized use would compete and create confusion. So, initially, you may be able to get it past the AppStore gatekeepers but the Dear Rich Staff advises that if your app becomes popular (and your app store screenshots will likely attract some unwanted attention), you'll eventually find yourself in some deep Bat guano.

Tuesday, April 20, 2010

Bird plus plant does not equal copyright fraud

Dear Rich: If I use someone's photographs from the Internet or magazine and combine say a bird from one and a plant from another is that copyright fraud? No, but it might be copyright infringement. 
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.

Monday, April 19, 2010

I didn't steal your cat (as my logo)

Dear Rich: I am starting an e-commerce store and decided that I wanted to use a cute spotted cat as a logo. I found an artist through Google searches that had a cat that I liked without the spots (she would be in the category of "starving artist" as she sells her original works through venues like Zazzle for about $20-40 each). I contacted her and asked if she would custom design a logo for my new store and that I would pay her for the work and also for a license to use the work on the site and on T-shirts etc. She acknowledged that she received the request but then she never responded to the actual request and started to ignore my attempts to communicate with her. Since I have art ability myself, I painted a spotted cat in a very similar style for my site. I realize that this could be considered derivative art and that she could declare copyright infringement and potentially issue a C&D. From everything I have read on your site and elsewhere, due to the fact that there is really no damage to her in that she would not be suffering any real material loss, that this case is really small potatoes considering both parties material worth, and that she probably wouldn't pay a lawyer to prosecute, the risk that I would have to stop using my image or suffer any other negative consequences would likely be low. Do you agree? Also, if she were to pursue this, we would be more than willing to pay a licensing fee to use the image. If the dispute were ever to go very far, do you agree that is likely how the case would be settled (i.e., pay a licensing fee)? I work for a large pharma company so for better or worse I see this sort of thing with patents all the time - the attitude of "we work on it until someone tries to stop us and if the other company is small enough they can't keep paying the lawyer's fees, will take some money and go away, and if they are big enough then they are more likely to want a piece of the action if it is a successful drug." Thanks for your closing argument ... er, I mean question. Just so I'm clear about your situation, you asked an artist to create a work in her style and she wasn't interested, so you copied her work or style or both (we're not sure) and if she chases after you, you'll consider paying her. Hmm... we think we understand why she's a starving artist.  
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 na├»ve, 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

Can our band cancel outdoor performance?

Dear Rich: In creating a Performance Agreement, I noticed your book does not address how a cancellation of an outdoor show due to weather is handled. (1) Does the artist have the right to refuse to perform because of lightning and/or water damage issues? (2) What's the best way to cover this topic in a Performance Agreement? Some performers have suffered injuries (and deaths) due to unsafe conditions (and plenty more have suffered equipment damage), so, you're right to be concerned.
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

Naming food product after Einstein


Dear Rich: I have a food product I am developing and I want to call it Einstein lunch drinks. I would position the copy to read the "smart way to lunch." I would talk about how if Einstein would have created the perfect lunch he would have done it this way: with a perfect balance of energy and complete nutrition etc. Is this considered public domain and can I go in this direction? The Dear Rich Staff would suggest that you "don't go there." Einstein's estate has been exploiting the great man's persona for commercial purposes for everything from children's books to a 10-foot Legoland statue and is represented by Greenlight, the agency that also reps deceased celebrities such as Steve McQueen, Bruce Lee, and Johnny Cash. (Wow, we wish there was a movie with that cast!) The ability to exploit a deceased celebrity is based on a principle known as the right of publicity. In the case of certain celebrities, and in some states, the right can extend beyond the celebrity's life.
Einstein and food. We used to eat at place on 9th Avenue in San Francisco called Einstein's Cafe based on the "smart food" principle but we assume that was unlicensed and anyway, it's closed. (BTW, we can't say we were wild about their sandwiches.) And there is an east coast chain of bagel spots called Einstein Bros. Bagels which appears not to step on anybody's rights since it's distinguishable. Although we wish you the best in your endeavors, we're not sure about the Einstein-food connection. We recently finished a 21-hour audiobook on Einstein (check out the sample to get an idea of what it takes to be the world's greatest audio narrator) and we don't recall one mention of Einstein's dietary habits although there are reports he promoted vegetarianism.

Wednesday, April 14, 2010

More on Selling Pre-Loaded Player: Looking for the Downbeat

Dear Rich: I have the need to sell pre-loaded playlists on MP3 players to students. The songs are not important - the characteristics of the song are - such as beats per minute, hearing the down beat, etc. and can't figure out a way to do this legally. It is a for profit business. I have spoken to numerous Royalty-Free music folks and the application makes it impossible (so they say). Should I give up? Or is there a way to license music for this purpose legally and in a cost effective way (in order to stay in business!) We think you have a challenge using existing pre-recorded music. Copyright laws and music licensing rules are going to get in your way. You can't use a service such as iTunes because you'd have to do something ridiculously worky - like set up endless accounts to accommodate each sale (or risk violating the license agreement). It's possible, though also unlikely, that you could license the songs directly from a music publisher. You can find the contact information at the Harry Fox Agency. The challenge with that is that you also need permission from the person who owns the recording copyright (usually a record company) so you would need to find a publisher that also controlled the sound recording rights - again, a worky and perhaps cost-prohibitive solution. As for royalty-free licenses, they usually don't permit the resale of the song (or the transfer of ownership). 
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.

Tuesday, April 13, 2010

Pre-Loaded iPods and Dental Hygiene


Dear Rich: I have been noticing a lot of new start up companies, especially in the medical industry, are buying Apple iPod's (Touch) and then they preload the iPod's with videos, educational tools, music, medical apps etc. and then they sell it to medical professionals. For example there is a company that sells iPod's to dentists. These iPod's have educational tools preloaded so that the dentist can show the patient the procedure he is about to perform. My questions are: (1) Do these companies have to be registered Apple resellers? (2) Does Apple frown upon start up companies like these? (3) What are the legal implications? We'll answer your questions in order. (1) No, these companies do not have to register as resellers. They're fine as long as they buy authorized iPods and don't represent themselves as authorized Apple resellers. (2) We don't know if Apple frowns (and we're not sure a company can frown) but we think that shareholders would be pleased. It's better than dentists buying a competing device. (3) Legal implications? As long as there is no unauthorized copying or violation of any license agreements, all is good. 
Reseller Redux #2. Most of this information was provided in previous blog posts and frankly we're answering this question primarily because it provides us a chance to link to our own home-made dental video in the hopes that one of these companies will license it from us. Oh, and also, since we're talking about iPods, we thought this would give us a chance to explain to our readers why we just returned our iPad to Best Buy ... On second thought, maybe we should consider the legal implications before we write about that!

Monday, April 12, 2010

Make-Believe Marshmallow Roasting Society

Dear Rich: If I make a cartoon world that contains a fictional organization, can I use copyright to protect the use of that organization's name and slogan in real life without having to pay for registering a trademark? For example, I made up a fictional organization named "The Guild Of Prometheus" with the slogan, "Bringing fire to Man, since Time began". (It's a marshmallow-roasting society.) Does copyright protect my use of that name and slogan if I now create The Guild Of Prometheus in real life? We had to read your question a few times to fully grok it. Can we restate it for you: How do I stop others from using the name of my fictional organization (without registering the name as a trademark)? 
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.

Friday, April 9, 2010

Changing the way we hear and see music!!!

Dear Rich: I have a revolutionary idea that can change the way we hear and see music and I need to get it protected!!! I mentioned it to a few people for approval and I'm afraid that they might take the idea to their investors. What should i do until I can afford to put the idea out???? First of all, the Dear Rich Staff gets nervous when people repeat punctuation.  We don't think repetition intensifies statements; we think it trivializes them and that's the last thing you want if you've come up with an idea that will change the way we hear and see music (Wait. See music? Are you referring to synesthesia?)
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

When imitation is not flattery

Dear Rich: I have a painting design with cupcakes that I do with a palette knife.I am doing this in a painting class I am taking in the local college. Now, this is so petty but there is one person in the class who copies everyone's work. For some reason she is friends with the art teacher in charge and she copied my idea and design and it was picked for an art show here in the school. I of course was totally snubbed and they are making a point of letting me know all this. If she puts this on display as her own idea can I do something about this? We think there are a few things you could do.(1) You could ask her politely to stop copying your work and to come up with something of her own. (2) You could confront her at the art show,and say something like, "Whoa, you totally ripped me off!!" (3)  You could paint a portrait of her and title it "The Person Who Stole My Painting."
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 

Wednesday, April 7, 2010

Can we sing "Happy Birthday" in our movie?

  Dear Dear Rich: I'm making a documentary about my aunt who's a well-known accordion player and there is a scene in which people sing 'Happy Birthday' to her and she joins in on accordion. Someone told me that I need to get permission to use that song in the film. Is that true? Can that really be true? The answer depends on who you ask. If you ask Summy-Birchard, the publisher that earns about $5,000 a day from the song ($2 million a year), the answer would be "Yes." If you asked Law Professor Robert Brauneis, the answer would be a definite "No." It seems like the world's most recognized song has benefited from a checkered copyright history. It's possible the whole song is public domain, or that just the melody (written in 1893) is PD. But considering the vested financial interests in protecting the copyright -- nobody has ever litigated the issue --  you probably can't afford to challenge the song's owner. We wish we could hear your aunt's accordion version but we're glad that the squeezebox birthday spirit lives on somewhere!

Tuesday, April 6, 2010

Will Batman go after Bat Man?

Dear Rich: I had been doing a weekly online radio show or podcast called the Tom and Bat Man show. (We intentionally spelled Batman as two words). It was a show about technology for normal people. My nickname for years has been Batman. I would say that more people know me by my nickname than my real name. The show has nothing to do with comic books, crime fighting, nor do we play any music from the movies, or sounds. Pretty much I'm only referred to as Bat Man on the show when my co-host Tom is talking about me. We have since stopped doing the show and I believe I will be now doing the show on my own, having special weekly guests. Am I breaking trademark, or copyright in having a title like The Craig (Bat Man) Show or something like that? Right now I am not making any money on it, but possible could be accepting advertising in the future. Since we are not dealing with anything DC related, would having "Bat Man" spelled differently give me problems? The short answer is that we can't tell you whether DC Comics, the owner of the Batman mark will hassle you, and we can't tell you whether they would prevail in a dispute. (We can't even say for sure whether they'll hassle the Dear Rich Staff for using the old logo). 
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

Will Martha Come After Me?

Dear Rich: I have been teaching a class on a pattern that I designed. It is an old design for a knitting basket. Martha Stewart has done a version and so has the magazine, "Canadian Living." The big difference between theirs and mine is that theirs is quick and easy, mine is much more complicated in order to show off lots of different coordinating fabrics (quilters love using lots of different patterns). My question is, "Am I safe from the wrath of Martha?" The sizes are all pretty much standard from the vintage basket. I could change my size if it would help. 
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).

Thursday, April 1, 2010

Missed royalty target: Can I waive my right to terminate?

Dear Rich: I have a three-year contract with a publisher. According to the contract, I am allowed to terminate if they do not meet a specific royalty target each year. They have not met the target this year but I wish to continue the contract regardless. Can I still terminate at any time going forward? (The contract does not specify a time by which I have to terminate when they do not meet target.) And, does my not terminating have any bearing on their obligation in the contract to reach next year's target? Yes, you can still terminate at any time going forward. The "right" to terminate doesn't mean that you must terminate. 
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!