Thursday, July 29, 2010
Right, you had a question. Although the Dear Rich staff once co-wrote a book about patenting art and entertainment and although we love our co-author's attempts at carving new worlds of patent protection, we can safely say that there is no way you can patent illustrations used in a book. You can, however, acquire copyright in the illustrations. And unless you are an employee, or you signed away rights, or you are co-authoring the book with your friend, you will likely retain the complete copyright to the illustrations without having to do anything. As for your "ideas," for illustrations, we're not sure what you mean but in general ideas can't be protected by copyright.
Posted by The Dear Rich Staff at 12:44 PM
Wednesday, July 28, 2010
Dear Rich: I have recently come across a patent filed by my Great Grandfather, and believe that the device may still be in use. How can I find out if I am owed royalties on the sale of this tool. Let's see, we start with the rule that patents granted before June 8, 1995 terminate 17 years from the date of issue; those filed on or after June 8, 1995 terminate 20 years after the filing date.
How old is great grand-dad? Okay, here's where the Dear Rich Staff needs to get out its calculator. If you're old enough to write us a letter, we're going to guess, you're at least 20, which means you were born by 1990. We'll guess your parents were at least 20 when they had you (so they were born at the earliest, around 1970). That puts your grandparents birth at 1950 and your great-grandparents at the earliest at 1930. (Of course, if much of this kind of supposing is silly since these estimations are also tied to child bearing ages and of course, that differs dramatically for men and women). Okay, so if your great grandfather was born as late as 1930, it's possible that if he invented something in his sixties (say after 1992), it might still have patent protection. More likely, everybody in your family is older than our lowball estimate and Great Grandpa's patent terminated long ago.
Does patent termination mean you don't get royalties? A license agreement for a patent should not extend beyond the life of the patent. However, it is sometimes possible to continue to receive royalties for non-patent license purposes--for example, to license a trademark or perhaps certain trade secrets associated with the invention. (Note, even these agreements are sometimes not enforced.) We're guessing this is all very hypothetical in your case and it's unlikely you are owed anything, but you will need to see the original agreements to confirm or deny that possibility.
Speaking of terminations. We keep waiting for someone to ask us a question about copyright termination so that we can link to this copyright termination calculator created by one of our readers. Check it out if you're attempting to evaluate the status of copyright termination rights.
Posted by The Dear Rich Staff at 9:38 AM
Tuesday, July 27, 2010
Dear Rich: I have a question about a logo for my business. I just started a dog treat business and loved a public domain clip art picture of a dog. I flipped the picture, changed the color, added some shading on his ear, added hearts above his head and grass under his feet. I added my logo, too. I found the original image on the WP Clipart web site. I emailed the site author with a copy of my changes and asked if since it was public domain, could I use it commercially. He said yes. I am now wanting to trademark or copyright my logo. If so which one do I do: a trademark or copyright? The Dear Rich Staff -- who is wondering why we're getting so many dog-related questions these days -- reports that if you want to preserve the exclusive right to use this image with your dog treats, you'll need to (1) start using it in connection with the sale of your treats (that is, on the packaging or in the advertising) and then, if you have the budget, you should file a federal trademark registration. Assuming the image is truly public domain (and it looks that way from the source website), then the coast is clear. Keep in mind that anyone else can use the same dog as their trademark, as long as it is does not compete with you in the field of pet food and dog treats. As for copyright, you have a copyright in the version of the dog you created although anyone else is free to use the original without infringing your dog. By the way (insert FTC disclaimer), our employer is one of the few websites to offer help for dog owners and trademark owners.
Monday, July 26, 2010
Dear Rich: I am writing a children's book based on the imaginary and not so imaginary friends my children had growing up...my daughter's imaginary friend and my son's stuffed dog. The stuffed dog had a name embroidered on it but my son never referred to the dog by that name. He gave it a different name. So in my book I refer to the dog using the name my son used. I had drawn a picture of the dog years ago and had it framed in my son's room when he was young (he's 38 now). I want to give the illustrator that picture so he can use it as a guide for drawing this dog in the book. Would that be any kind of copyright infringement? I wondered if I could have the name tag show the name my son used for his dog rather than the real one. Actually this stuffed dog looked pretty much like Snoopy but in different colors. I assume there was no copyright or patent problem since both of these stuffed animals are sold in stores. The one I'm using was not sold for many years but has recently been re-introduced online. I would not be using a photo of this stuffed dog. The illustration in the book will be modeled after my drawing of this dog. You can probably go ahead with your plans. You might run into a problem if you copied Snoopy and Snoopy's owner saw your book and thought your dog drawings were rip-offs. But that presumes a lot of things, including the fact that the stuffed dog is Snoopy or whether it is instead one of hundreds of other stuffed dogs that may or may not be copyrightable. In any case, whatever you can do to distinguish your drawings from the stuffed dog will help -- remember not every cartoon beagle is Snoopy and not every cartoon mouse is Mickey. As for swapping the names, that's more of a trademark than a copyright issue, but it depends on a similar question -- are consumers likely to be confused between the two dogs?
In conclusion. All in all, the meter is leaning in your favor on all of the above. Re: your statement, "I assume there was no copyright or patent problem since both of these stuffed animals sold in stores." We're not sure what you meant exactly, but buying something doesn't give you a right to copy it. You probably knew that but just sayin'.
Posted by The Dear Rich Staff at 7:41 PM
Thursday, July 22, 2010
Keep it Kool. Make sure that when you incorporate, that the corporation assumes all your sole proprietor debts and obligations, that the corporation is sufficiently capitalized, and that you abide by corporate rules. If you don't take corporate responsibilities seriously -- for example, you mix corporate and personal funds and don't keep records of meetings and shareholders -- a judge may strip away the asset protection feature of the corporation. It's called "piercing the veil."
And don't forget ... There are two other simple ways to avoid personal risk for trademarks. One is to buy insurance -- perhaps a wiser investment than incorporating. A typical Comprehensive General Liability Insurance (CGL) policy may provide the coverage you need. Many courts have held that the advertising injury provision included in many CGL policies covers trademark infringement claims. However, not all CGL policies provide such coverage. You should ask your insurance broker whether your policy provides this coverage. If your CGL policy doesn't cover infringement claims, you may be able to obtain such coverage by purchasing a rider to your policy. A second method of lowering your risk is to ... lower your risk. Don't begin using your trademark until you've engaged in a thorough search. Federal registration will also help lower risk by creating the presumption of trademark rights.
LLC or corporation. By the way, before incorporating, consider an LLC. Your tax advisor can distinguish the benefits. Nolo -- insert FTC disclaimer -- our employer, offers assistance in forming both types of entities.
Posted by The Dear Rich Staff at 7:43 PM
Wednesday, July 21, 2010
Is it a fair use to reproduce a complete article? We're not sure, though of course it all depends on context, and use. In any case, as far back as 1999, courts were denying fair use arguments for full article reproductions.
P.S. While we're thinking about it ... it doesn't hurt to avoid using graphic logos from news organizations. You don't want to create the impression that the news organization endorses your company or is associated with it. And your company should be mindful of the FTC "endorser" rules. For example, if you're supplying reviewers with copies, that fact should be disclosed.
Posted by The Dear Rich Staff at 8:38 AM
Tuesday, July 20, 2010
Posted by The Dear Rich Staff at 8:41 AM
Monday, July 19, 2010
Posted by The Dear Rich Staff at 8:42 AM
Thursday, July 15, 2010
Repurposing. Yes, we think that converting a book into an app is "repurposing." Repurposing, as the word suggests, refers to re-using the work for another purpose--for example, posting it at a website. Converting a book into an app would qualify, as well. There are many outstanding issues though. One is the relationship between your letter and your agreement. Some agreements are considered to be fully "integrated." That means the parties to a contract intend that their agreement to be the complete and final expression of their deal. In that case, with a few exceptions, no contradictory or supplementary pre-contract discussions or documents can be introduced. Post contract discussions, documents, or issues will be considered unless the agreement has a provision specifying how amendments are to be made and the post-contract modification doesn't meet the requirements -- provisions that are not always enforced. (Whew... that's confusing, huh? See why we think you might benefit from having someone look at the paperwork?) We assume you were supposed to receive a one-time payment for your work, not a continuing royalty for books sold. If it's the latter, then you may have additional issues as to how you're supposed to be paid for the app.
Copyright in the designs. We're also concerned about your claim to copyright ownership. We hope that the agreement you signed spells out your ownership claim. We hope it does not say things like you assign all rights, or that your contribution is a work made for hire. A lawyer might be concerned about other things as well -- for example, did the publisher disclaim your work, when registering the copyright? (You can research the copyright registration here.) On the way other hand, it's possible that some of your contributions (for example, the wording explaining how to do a stitch) may not be protected under copyright principles as copyright does not protect facts, especially when there is a limited number of ways of expressing them.
Posted by The Dear Rich Staff at 8:43 AM
Wednesday, July 14, 2010
Some other stuff ... Of course, even though a patent has ended, it's possible (though extremely unlikely) that the same dollhouse -- at least if created in the 1940s -- may still be protected under copyright law. We also suppose that a doll house manufacturer could argue that its work is protected by trade dress. In any case, neither copyrights or trade dress protect functional elements which raises the (primarily) academic issue -- is Barbie's pad functional or decorative?
Posted by The Dear Rich Staff at 8:44 AM
Tuesday, July 13, 2010
Posted by The Dear Rich Staff at 8:45 AM
Monday, July 12, 2010
Friday, July 9, 2010
Wednesday, July 7, 2010
Dear Rich: Let's say I came up with the brilliant slogan "A Penny Saved Is A Penny Earned" instead of Ben Franklin and titled one of my blog entries with this and discussed various ways to be frugal. That day an executive at XYZ bank reads my blog, likes the slogan, and decides to file for a trademark. The next day I determine that I want to file for a trademark to sell T-shirts or whatever. I know the slogan isn't protected by copyright, but does the fact that I was the one who published the slogan first help me to get the trademark even though I filed later? The Dear Rich Staff really doesn't like hypothetical questions but since it's Speed Dating Day, here goes: The only thing that gets you the trademark is if you use it first in commerce (or if you first filed an intent to use application and then used it in commerce). You couldn't get the mark for using it on one blog entry ... you need to use it as the title of your blog or newspaper column or whatever. And in any case, you would only get trademark rights in connection with your blog, whereas the executive may obtain rights for the same mark for banking services. PS. We understand the need for austerity, but does anybody save pennies anymore ... we mean except for collectors?
Dear Rich: I'm putting together a website for my sign business. I'd like to publish photos of some signs I've done. Do I have to get permission from my customers to do that? If there was some copyrightable aspect to the signs like an illustration -- something other than a unique layout or type font -- then you should seek permission. If it's basically words on a sign, no. You might want to add a disclaimer: "Display of signs does not imply endorsement." In the future, add a statement to your invoice that you reserve the right to reproduce signs at your website as an example of your work.
Dear Rich: I wonder, in general, if an older copyright takes precedence over a more recent trademark as it relates to a design and title of the design on knitwear? We're not exactly sure what you mean. If someone has a trademark for the title of knitwear products but does not claim copyright (most likely scenario), you can copy the designs but you can't sell them using a substantially similar trademark. If someone has a copyright on a knitwear design then you can't copy it regardless of the status of the mark. It's unlikely someone has trade dress rights to a knitwear design. If they do, you can't copy that.
Dear Rich: Just as a hypothetical, suppose I write a fantastic song, post a video to YouTube, and it becomes an overnight sensation, racking up tens of millions of views in its first few weeks. Let's say that I then somehow manage to profit from the song's popularity, selling millions of digital downloads through my website. Given the situation, I'm sure majors might come calling, and I'm wondering what kind of a deal I would be able to negotiate. A joint venture where all profits are split? A one-off album deal? Ownership of masters? What points would you recommend shooting for in this instance? We're still not comfortable with hypotheticals but okay, let's say you become a YouTube phenom and a record label comes knocking. Question: why do you need the label? What exactly will they do for you that you couldn't do on your own or with the aid of a savvy manager and/or lawyer? If you're a songwriter, we could see affiliating with a music publisher because that might get you some licensing and other revenue. Really though, we couldn't tell you what kind of leverage you get from being a YouTube phenom, hopefully something nice that will make your parents and your girlfriend proud. DING! We're sad and happy to report that our time is up.
Tuesday, July 6, 2010
We're okay. You're Okay. But we're inclined to think that your situation is different and you'll be okay. That's because you're not reproducing the characters appearance and you're using a non-human voice (although we're not sure what you mean by "in the same manner and same delivery"). And there are no copyright issues because as you know from reading the Dear Rich column, individual phrases, (including individual Seinfeld phrases) cannot be protected unless trademark or related rights have been asserted. Anyway the general rule we usually harp on here at Dear Rich Headquarters is that the more it seems like you're conjuring up a protected character or celebrity, the higher the hassle factor. (Of course, keep in mind there are many ways to get in trouble using that Seinfeld line ...it already got one guy canned.)
Posted by The Dear Rich Staff at 8:49 AM
Thursday, July 1, 2010
Our opinion plus $.25. Although we feel like your use is a fair one, keep in mind that our opinion isn't worth much in a court of law (or many other places). And that's the other thing, if Gumby's people wanted to pursue you, you'd have to be able to afford to prove the fair use -- always a wild card in a fair use analysis.
Posted by The Dear Rich Staff at 8:51 AM
How these sites operate. Trademarks-for-sale sites usually operate by allowing you to buy advertising, by obtaining a broker fee (usually a percentage of the sale), or by a combination of ads and fees (the eBay model). Sites that deal only in advertising (and don't take a cut) seem preferable unless the site is performing some legal overview (unlikely). Typically, these sites don't deal in the paperwork for the assignment and sale and even if they do, it might be wise to have an attorney review the docs to make sure that both the trademarks and the associated goodwill are being transferred.
What also might work. Trademark speculators may be attracted to these sites but we wonder whether anyone else is seeking them out. It's not unusual for business owners seeking a trademark to research trademark ownership at the USPTO and then solicit the owner directly. As for sellers, we wonder if they might be better off with industry-specific advertising. For example, if you have a coffee-related trademark, perhaps you would have better luck advertising in the Tea & Coffee Trade Journal or Fresh Cup. Speaking of coffee, we think we should go get another coffee to get over our post-Wolfman nightmares.
PS. By the way, we don't have the same skepticism for domain name sales websites. Most of these sites -- although you should still check them out -- seemed to have nailed down the procedures (including online escrows) that can legitimately facilitate the sale and purchase of domain names.