Tuesday, August 31, 2010

Using Photo For Wedding Gown Preservation Company

Dear Rich: A newly formed wedding gown preservation company has used one of my bridal portraits in their advertising. I did buy the rights to the picture from the photographer that took them. They have used it as the main photo on their web page, on brochures and handouts, and are wanting to make an 8 foot by 10 foot poster of it as a display at the Bridal Extravaganza. They are willing to compensate me for my picture, but I need general idea of how much to request. And do I request more each time they use the picture for something different? Wow, we had no idea that there was an entire industry devoted to preserving wedding dresses (hey, and you new brides better watch out forscams and the unromantic-sounding "anti-sugar treatment.")
Right, you had a question. Okay, it sounds as if you have two distinct claims: one for reproduction of the copyrighted image which you acquired from the photographer, and the other because somebody is using your image to sell a service (that's known as your right of publicity). What the company needs is for you to sign a photo release that covers the company's uses for the these activities and more. You can find a sample release in our Getting Permission book or you can prepare a basic release yourself. The big issue is whether you want to sign off on all uses -- in which case the company would never have to return for any permissions -- or whether you want to spell out specific uses (web use, poster, brochures). You would be compensated for those uses and the company would then seek additional payment for subsequent uses. Most companies prefer to acquire all uses for obvious reasons.
The world of stock photography? Start with the idea that the world of photo rights has gone all crazy in the past five years. That's due to the microstock explosion in which amateurs post photos for cheap prices and offer all rights. So the old days of determining "standard" rates  is fading fast. The preservation company has already been using the photo without your permission so you are in a better bargaining position. If the company had not yet begun using the photo and were asking for permission in advance, the company could weigh your request against the cost of buying a microstock photo (anywhere from $50 or less) or paying for a high end stock photo (several hundred dollars or more). 
Negotiating guidelines. There are no guidelines for your situation and like any contract negotiation, you have to weigh a number of factors like (1) what can the company afford? Are they part of a big conglomerate or are they a small mom and pop entity? (2) what compensation would satisfy you? Would you be happy, for example, to pay off the cost of the dress or your wedding photographer? (3) what would it cost to chase the company for payment for unauthorized use (an unappealing prospect, for sure, and one that could end up possibly losing money for you), and (4) how do all these numbers reflect on you personally and do you care? -- for example, are the people in the company friends of yours and do you want to cooperate with them and not appear greedy? 
Just guessing dept. You're always better off starting out by asking what the company is willing to pay so you're not bidding against yourself. The betting pool amongst the Dear Rich Staff thinks that an "all rights" release could be worth perhaps $500 to $1000. A limited rights use is probably worth under $500.     

Thursday, August 26, 2010

Writing on Disney Stationery: Infringement?

Dear Rich: I sell non-Disney tiaras on Craigslist and when I gifted one to my niece I decided to use some of my Disney princess stationary to also write her a letter from a "princess" so she would think the tiara was sent from one of the princesses. I sell the tiaras for $10 if I added a letter to every purchase (if requested) with no extra charge is this a Disney violation? Hey everybody, it's Disney time (Boogety, boogety, boogety shoo!) We get so many Disney letters, the Dear Rich Staff sometimes thinks about a subblog just dealing with the Magic Kingdom. but then we get depressed thinking how sad that we spent all that money on law school and Kaplan courses (not to mention those dopey  payments to the American Bar Association so that we can keep our dopey ABE life insurance) and for what? To tell people whether they can dress like Daffy at the company Christmas party?
Right, you had a question. We like the idea of using the letter and tiara combination. (It's that same kind of personalized gift approach that set Xavier Roberts apart when he created those lovable Little People nee Cabbage Patch Dolls with their adoption papers.) You say that the purpose of your letter is to make the recipient "think the tiara was sent from one of the princesses." Question: Do you need Disney stationery to make the recipient think that thought? If you do, then it seems as if you're really trying to make the letter-getter think it's from Disney Princess Headquarters. Once you imply that Disney is somehow associated with or endorsing the tiara, then you move into a troublesome legal area in which Disney could claim what you're doing trades off their name or falsely advertises their products. That's not to say you can't use Disney stationary to send out gift tiaras. It is stationery, after all. But -- and this is assuming Disney ever finds out about your use and/or cares -- if the use of the stationery is part of your long-term business model you might someday get hassled. 

Tuesday, August 24, 2010

Using Lecture Notes in Novel

Dear Rich: I have a question regarding the ability to use a sampling of core content from a college course's series of lectures from one semester.  I would be using the content within a fiction book (novel) to be sold commercially.  The lecturer himself claims to have no written or recorded ("fixed") version of the lecture content.  But he believes the university may have some employment clause that anything created for the course/lecture belongs to the university. Since the lecturer has never written down or recorded  ("fixed") the lecture content, I was wondering if there was still any chance that a copyright is owned by the university.  But I wonder if my use of the material within a work of fiction novel that will benefit society might be construed as a new way of using the information in a transformative way (even if it would still educate people like the lecture itself)?  I am adding my own entertaining/educational material around the course content. But could the university claim that this (fiction novel) is a potential new market for its copyrighted work?We had to cut your question by half because we have a pay-by-the word blog service. Psych! (Wow, what if that were really the case --- it would totally redefine "free" speech!) Anyway, we're back at the part where you claim your novel will benefit society. Are you saying that (1) because you know that society will benefit from your book specifically, or (2) because all novels benefit society. If it's the former, then wow, we're impressed, and if it's the latter, then we have to ask if that rule also applies to chicklit and all those Patricia Cornwall forensic crime books where serial killers go berserk on some tiny resort island. BTW, we're undergoing a heat wave here at Dear Rich headquarters so bear with us while we say inappropriate things and then come back later and remove them!
Right, you had a question.  As to who owns lecture notes ... that's the kind of question that can get two copyright geeks into a headlock.  From a purely legal analysis (whoa, you know you're in trouble when the sentence starts like that), the university is the most likely copyright owner of a professor's lectures. The analysis goes as follows: the professor is an employee of the university; the lectures are prepared within the course of employment;  the lecture was fixed (either because the professor wrote it all down somewhere, or because the university/professor authorized students to make notes of the speech); and therefore under work for hire principles, the university is owner. Some universities even use written contracts guaranteeing their authorship.
On the other hand dept. Despite this analysis, many universities and one aberrant California case (Williams v. Weisser, 78 Cal. Rptr. 542 (Cal. App. 1969)), once followed a tradition known as the "teacher exception" to copyright ownership under which instructors owned all copyright in their lectures. Many copyright experts believe that the exception disappeared when the 1976 Copyright Act was adopted. (There are a lot of academic articles on the topic -- for example Legal and Policy Responses to the Disappearing 'Teacher Exception,' Or Copyright Ownership in the 21st Century University by Elizabeth Townsend.) Also, to be considered is that if a lecture is primarily extemporaneous and not fixed with the speaker's authorization, it may not be protected under federal copyright but may be protected under what's known as a common law copyright principles. In any case, the issue has surfaced anew with various lawsuits over websites in which students post lecture notes.
Bottom line dept. The underlying facts in the lecture are not protected by copyright. So that should give you plenty of opportunity to avoid infringing. It also sounds as if the professor doesn't object. That's a good sign. We think you have a tricky fair use argument. Your use may be analogous to using a painting in a movie or using song lyrics in a play ... not truly transformative. In any case, if we were you (wow ... what a clash of pronouns), we'd give it a shot. 

Monday, August 23, 2010

Registering Copyright for Beats and Instrumentals

Dear Rich: I saw your video on registering song copyrights and I have a few questions to ask. I'm a music producer and I'm trying to get my beats/instrumentals copyrighted. 1. What form should I fill out SR or PA? 2.The form has a section where it asks for a serial Issue (ISSN) is this needed or optional? 3. I'm trying to copyright a set of beats, I heard that you can fill it out as a collection so that you are paying for the price of one instead of separate, so where on the form do I verify that it is a collection and not one beat? 4. Besides the CO form, money, and a CD of my beats, is there anything else I'm supposed to send or is that it? Hope you can answer my questions and I might have more questions to ask you in the future.  We know you're busy constructing those inverted snares and sub-auditory bass notes, so okay, maybe you didn't have time to check out the video in its entirety (where most of the answers can be found). In any case, we'll walk you through it here. 
Beats as compositions. The video explains how to register a musical composition. Do your beats qualify as musical compositions? Although there have been some cases in which the basic copyrightability of bass patterns or drum patterns has been questioned, we're going to operate under the principle that your "beats/instrumentals" are protected as musical compositions (and you should, too). So you would choose "performing arts work" in Section 1, Work Being Registered. 
SR or PA? Form SR is a paper form for sound recordings. Form PA is a paper form for musical compositions. As the video explains, you can learn about the difference here. As the video also explains, we recommend use of the FORM CO instead of either SR or PA forms, as Form CO costs less to file and is easier to use than the old paper forms. You can also save money by filing electronically using the eCo system
ISSN? As the video also explains, the ISSN is not relevant to musical compositions. Leave it (Section 1c) blank. 
Collections of beats/instrumentals. Under certain conditions, you can register a collection of your compositions. They must be unpublished (you haven't distributed them to the public) and they must meet the following conditions: the tracks are assembled in an orderly fashion on your CD, the CD has a single title identifying the collection as a whole (for example, "My Miraculous Beats"), and one person (you) is claiming copyright in all the compositions (or, if they are by different authors, at least one of the authors (again, you) has co-written all of the stuff. If all of these elements are met, and they probably are if you created all of the compositions yourself and you haven't sold them yet, simply include additional title(s) by clicking the "additional title" button as you enter each composition into the form.
What else? Yes, you only need submit your CD, the copyright form and the fee. If you file electronically using the eCo system, the fee and form are all submitted electronically. In some cases, you can upload your deposit materials; in other cases, you must mail it in. Each form explains the rules and procedures. Thanks for watching the video ... or at least for mentioning it in your letter.

Friday, August 20, 2010

Using Famous Speeches at Website

Dear Rich: My company wants to post the Top 40 American speeches at our website. I've attached a list. I've researched them and all of them are reprinted in one form or another at other websites. Are we okay to post them as well?Wow, the Dear Rich Staff just gave a speech. We gave it to some crafts artists at the California Lawyers for the Arts  (where we plugged our crafts book) and it went really well. We love the CLA and you should too! It would have been a perfect evening except for the disappointing dinner at Greens.  Can't they get the linguini with zephyr squash right? And why was the rainbow chard and kale fumigated with garlic? And what's with the stiff white foam in the cappucino? (Blue Bottle, all is forgiven!) Oh well. Remember the good times!
Right, you had a question. We looked over your list of speeches and 35 of them should be fine to reprint either because they were prepared by an employee of the U.S. government within the course of employment, or because they are old enough to qualify for the public domain. But five of them (below) are either protected under copyright or copyright status is unclear. 

  • William Faulkner's Nobel Prize Speech (1950)
  • Martin Luther King's "I Have a Dream" (1963)
  • Malcolm X's "The Ballot or the Bullet" (1964)
  • Stokely Carmichael's "Black Power"(1966)
  • Mary Fisher's "A Whisper of Aids"(1992)
Here's the breakdown.
William Faulkner (above). William Faulkner's Nobel award "Banquet Speech" appears to be copyrighted by the Nobel Prize organization. (Our guess is that recipients assign copyright ownership.) Seek permission at info@nobel.se.
Martin Luther King. The MLK "I Have a Dream" speech is protected under copyright (there was a court challenge, later settled). Seek authorization from the Estate of Dr. Martin Luther King, Jr Intellectual Properties Management One Freedom Plaza 449 Auburn Avenue NE Atlanta, GA 30312 Fax: 404-526-8969.
Malcolm X. We're not clear on the copyright status of the "Ballot or the Bullet" speech. The official Malcolm X site has links to the estate's licensing agent. More information needed.
Stokely Carmichael. The copyright status of Carmichael's famous "Black Power" speech is unclear. Over at the American Rhetoric website, the speech has this copyright notice: "Text = Uncertain. A good faith effort was made to locate the copyright holder(s). Please contact AmericanRhetoric.com if have information about the copyright holder(s). "
Mary Fisher. All signs indicate that Mary Fisher's groundbreaking speech to the Republican convention is still protected under copyright. You can contact her at her website.

Wednesday, August 18, 2010

Lots of copyright insurance questions ...

Dear Rich: If I decided I wanted copyright infringement protection insurance what approximately is the market cost for such insurance if it covers attorney fees within the policy in addition to the maximum policy value insured, damage fees, a lawyer's opinion letter, a policy that covers claims outside the U.S .as well as inside the U.S., in other words worldwide effective. It also should be an 'occurrence' policy. Does every claim within an insurance policy require a separate deductible? What is the issue behind the insurance appointing an attorney as differentiated from the insured appointing an attorney? Who has the final say on a settlement, the policy holder or the insurance company? We're not sure when this trend started but lately we've been receiving a lot of multi-question questions. It's like getting a Russian nesting doll in our email -- within each query is another query and then another. We're starting to feel  like Mickey Mouse in the Sorcerer's Apprentice where the brooms almost drown Mickey under buckets of water. (We'd continue coming up with bad metaphors but we've got a lunch appointment  ...)
Right, you had a question(s). For starters, you should be addressing these questions to an insurance broker, not us. We can't tell you the cost of insurance because it varies depending on many factors including the amount of the deductible, the size of your enterprise, the purpose of your enterprise, whether seeking to protect individual or multiple publications, the extent of the coverage (claims wise and territory wise), the extent of damages, whether any claims have been threatened, the exclusions, etc. We can tell you that it will be many thousands per year and very likely more than $10,000 a year if you are seeking to ensure a mid-sized business (20-100 employees) from worldwide copyright claims. 
Attorney fees and more.  Ideally, you would want a policy that provides coverage for attorneys fees and payments of any damages or awards against your company. Sometimes, the policy limits the total spent on lawyers to the liability limits of the policy -- that is, once you hit your limits, there's no more money paid to the attorneys. Sometimes, it's a matter of getting insurance company approval for fees. If the policy requires that the insurance company defend a copyright lawsuit against your company, the insurance company will provide and pay for the lawyers. Whether the insured can choose counsel or whether the insured must accept the insurance company's decision is a matter of policy language (and to some extent state laws). In cases where you can't choose counsel, the insurance company may provide a list of attorneys and it may be possible to review this list prior to signing off on a policy.
Opinion letters. We're not positive what you mean by opinion letters. Often an insurance company requires an opinion letter from a lawyer about your products or services before issuing a policy. Typically, you, not the insurance company would pay for that. 
Deductibles.  We believe the final answer on deductibles is a matter of negotiation and policy language. Some deductibles apply per event, some are "flat dollar" (or fixed fees) and some are established as percentages of the total policy limit. 
Who has the final say? Like so much else with insurance, the final say on settlement is usually a matter of policy language and you should expect that most insurers will want to control this. In some cases, the insurer may claim the right to prevent your settlement of a claim without its consent. In other cases, the policy may require your consent to a settlement. Often multiple claims are made in a dispute and the insurer may argue that it is only liable for the portion that is covered by the policy -- for example, the insurer will cover copyright claims but not defamation. As you may be aware, insurance companies routinely deny coverage for various reasons and the policy holder often needs to chase the insurer to acquire the needed protection. The courts will have the final say based on the interpretation of the policy language and state law.  If you'd like to learn more about these issues, we recommend this book. It lists all of the issues to be considered when obtaining IP insurance and also provides a list of the major players.

Tuesday, August 17, 2010

Getting rights for Weimar Republic songs

Dear Rich: I work at an educational, nonprofit and I am trying to clear rights for a few songs from the Weimar Era for an online, educational module to be used in classrooms. Now, the more I've looked into clearing audio permissions, the more confused I get.  It seems that I need to clear with the Master recording owner AND I need to clear for mechanical rights to reproduce the clips, as well as performance rights to transmit the clip.  Additionally, we'd like to include full lyrics in German and in English (translated). There are six different songs.  Four of them are from an album that was fairly recently recorded (which is making it easier to pin down permissions).  The other two are recordings that I don't have the original source for and the only information I have is the composer and lyricist. These are very old songs and some are fairly obscure (German Cabaret music from 1920-1930). We would like to do due diligence and attempt to find the correct entities and contact them for all the permissions we need, but does that mean contacting three different entities for three difference sets of permissions for each song? And then also reaching out to clear for lyrics? And who usually owns those? And what if I can't find the rights holders for a song through ASCAP, BMI, or general Googling?  At that point, can I put it to rest? Are older, non-American songs often held by organizations like ASCAP or BMI?  Does anything ever enter the public domain? Like I said, we are an educational nonprofit, and while I wouldn't think that we can get entirely covered via fair use, I'd hope that we could get something. Furthermore, I feel we need to prioritize the rights that are most important to clear.  Do you have any suggestions on how to proceed? Holy umlaut, that's one heckuva question (or like the Ramones said, "it's long way back to Germany.") We're not positive what you're doing with these songs (or what an online educational module is), but we're going to make an educated guess that it's all part of some schulkind's class work.  
The four songs on the album. As for the four songs on the album, the label that released the songs should be able to grant you performance rights (or lead you to the person who owns them) and the label should be able to lead you to the publisher (and the source for mechanical and lyric rights). So for those songs, you're probably covered.
The other two songs. As for the remaining songs, we'll assume that they were written prior to 1933 as that was the end of the Weimar Republic. We're not sure if you're talking about songs recorded back then or new recordings of old songs. If they're old recordings, it's possible they are in the public domain. In the European Union (EU), the copyright in sound recordings lasts for 50 years after the recording is published; or, if it's never published, 50 years after the recording
was made. Thus, all recordings made over 50 years ago are in the public domain
in these countries. However, this doesn't mean that the music that was recorded is
public domain. The copyright in a musical composition, as opposed to a recording,
lasts for 70 years after the composer's death in the EU. Thus, the
music on many old sound recordings is still under copyright in these countries, even though the recording itself is not. 
Sources for help. Have you tried GEMA, the German performing right society? They would probably be the best place to start research (and you'll probably need someone who sprechens Deutsche). Depending on your budget you can also enlist the aid of a music licensing specialist (easy to find with your trusty search engine). 
Bottom Line Dept. The Dear Rich Staff believes that if -- after all this research -- you cannot find the proper answers you can go ahead with your use. When its difficult to find authors or owners that's often because they're not to be found. In any case your diligent attempt to find the owner will go a long way towards muting any claims that may arise later. Chances are good that if you do eventually hear from the owners, they will only be entitled to a reasonable license fee. Also, if you really want to lower your liability for unlicensed material, figure a way to record the songs yourself. That way, the only possible liability would be limited to songwriter claims.

Monday, August 16, 2010

Praise Wii the Lord

Dear Rich: I am a children's minister and try to keep my programming up to date with what the kids are excited about. This fall I wanted to call our program WiiConnect. Would this be a copyright infringement? I might put out a few promotional items but because it is for a church there is no charge for any of it. It's not copyright infringement, but your use of the Wii terminology might violate trademark laws if it creates the impression that Nintendo endorses or is associated with the program you are offering. Even if your use does not violate traditional trademark infringement rules -- after all you and Nintendo are not competing -- it may violate trademark dilution rules.
Would Nintendo care? You might think that a tech company would want to avoid the publicity associated with sending C&D letters to a man of the cloth but as the God Squad/Geek Squad brouhaha shows, you can't predict the corporate benevolence factor. 
Bottom line. We know that gambling is not on your church's to-do list, but if we were a betting blog, we think your kids program will probably be able to get by using the terminology -- provided it's only for a few months, and it's a low profile event (not part of a national campaign). (Part of the God Squad issue was that the use has continued for years.) It wouldn't hurt to include a subtitle to your program that will serve as a sort of a disclaimer. For example, "WiiConnect: The crossroads between gaming and spirituality," or some statement that highlights that you are using the Wii in an informational, non commercial manner.

Wednesday, August 11, 2010

Does Flash Drive + USB = Novelty Patent?

Dear Rich: I have an Idea about a Novelty Item that I believe would be very popular on the market. Especially around Christmas time. The Toy would have information stored on a Flash Drive or a SIM card (as well as the need to be plugged into a USB port to retrieve or change the information). How can I patent an idea for something that has to have these components to work? I would bet that someone owns the patent on the Flash Drive and the Sim card as well. Yesterday, the editor for our new book (it's actually a mini-book for app developers), informed us that Tweeting (as in, "I Tweeted her yesterday.") is not capitalized. We bring this up because we wondered about your choice of capitals for Idea, Novelty Item, Toy and Flash Drive. Personally, we think this capitalization is part of an invisible-hyperlink thought process in which the writer envisions certain terms as a having a hypertext link but -- because he can't actually create one because of the contextual limitations -- he capitalizes instead to create a "signifier." Or maybe you're German. In any case, although we don't mind these capitalizations (and we created the links we imagined you imagined), we think our editor would correct them.
Right, you had a question. We agree that you will have a hard time obtaining a patent if the invention you are claiming (patent lingo for the thing you're trying to get exclusive rights to) is the flash drive and the manner in which it interacts with the USB port. However, you can use these elements and still come up with something patentable. After all, many groundbreaking inventions incorporate existing technologies -- after all, cars and radios existed when William Lear invented the car radio (and how come Motorola has erased Lear from their corporate memory?) Note however, that the ability to claim patent rights over certain combinations of existing technology has been made harder by a 2007 Supreme Court decision. 
Are you sure you want to take the patent route? Even assuming you qualify, most patents take about two years to issue and you can't stop anyone from using your patented technology until the patent is issued. Considering that most novelty items have a short shelf-life, are you sure that seeking a patent is worth the effort. Perhaps copyright and trademark protection (both far less expensive) will suffice -- as they do for many novelties and toys.
Thanks to SRV for the WIlliam Lear illustration!

Tuesday, August 10, 2010

Looking for Love

Dear Rich: Good day my dear friend. I am a beautiful young and charming girl looking for real friendship and protection, I am very happy to contact you for us to know ourselves the more. You know that distance, age and indeed color cannot stop true love or friendship. So I will appreciate it if you send reply to my mail box to enable me send my pictures and more information about myself to you so that you can know whom you are communicating with and to enable me tell you the more reason why I contacted you. I wait for your positive reply, take care and have a nice day. The Dear Rich Staff prides itself on issue-spotting, but we're having a hard time spotting the patent, copyright or trademark issues in your letter. You say that you are looking for friendship and protection. If you are looking for intellectual property protection perhaps we can assist but you will need to fashion your request more specifically. IP rights -- like true love and friendship -- are also not influenced by distance, age and color, so yes, please forward any photographs (and we hope that they contain the minimal creativity that will enable you to enjoy full copyright protection). Per your request, we will try to have a nice day although its hard to do that knowing that people like yourselves are trapped somewhere randomly sending out letters to IP bloggers. Also, just so you know, responding to your email does not create a relationship ... that is, an attorney-client relationship.

Monday, August 9, 2010

"Our" (or "My") Frugal Adventure: Who owns blog title?

Dear Rich: I have a quick question for you. In June of 2010, I began a blog called "Fun Frugal Family of Five". After a few weeks, I realized that was an obnoxious name and changed it to "Our Frugal Adventures," hired a blog designer and went about my quest to gain readership as all bloggers do! Yesterday, it was brought to my attention by a Twitter follower that my blog's name is very similar to another blog "My Frugal Adventures."I was shocked and immediately sent the owner of "My Frugal Adventures an email letting her know and asking her thoughts. While our sites do have similar content, I do write more family oriented posts as well. My question to you is, does she have a case against me and do I need to change my name? You mentioned this was a "quick question." The Dear Rich Staff would warn against the use of that term as it is grammatically tenuous, the popular meaning is not flattering to the user, and in any case, we find it kind of sad that readers believe our carefully crafted, thoughtful responses can be conjured up with alacrity.
Right, you had a (quick) question. The short answer is that if the other blog owner has been using "frugal adventures" as her blog title for longer than you (and that looks to be the case) then she's in a better position to stop your use. It's not likely to matter whether "frugal adventures" is prefaced by "my" or "our" (nor will it matter much that your blog is more family oriented). What's important is that both blogs have similar titles and deal with personal finance and saving money.
Will the other blog owner prevail? This isn't to say that the other blog owner will prevail against you in a legal battle. (Here are some of the trademark rules.) The other blog would have to prove that "frugal adventure" is protectable as a trademark -- that is, it's not descriptive of the services. If it is descriptive she will have to demonstrate consumers associate her name with those services. That may not be hard for her to do -- based on Google rankings, her blog appears to be more popular -- but even if she does prove it, she will also need to prove that there is a likelihood consumers will be confused between the two of you. Apparently neither of you has registered the mark with the USPTO. 
Should you change? Like we said, assuming she was first, things look better for her than for you. If she has a lot invested in her blog's success, she may hire an attorney to keep her domain control. In that case, you'd have to decide whether you want the expense and hassle of dealing with it even if you did prevail. If your readers are regulars, it won't matter much if you change the title (or re-direct the domain name). Should you decide to change, we recommend searching out any future names to prevent such conflicts.

Friday, August 6, 2010

Using Movie Quotes: Frankly, my dear, we don't give a ....

Dear Rich: I'm wondering about using quotations (just a sentence or two from celebrities both living and dead) in a book of quotes that I'm compiling. First of all, if the book was only a collection of quotes and each person is credited and I am listed as the compiler, is it okay? I would be selling this book - it would be a quotation compilation similar to Barlett's, etc., but focused on specific topics such as "Quotes on Love from Old Hollywood." Secondly, if I use a quote from a celebrity to start off each chapter in a book, then write in my own words a few pages of what I think about each quote and my interpretation of them, is that okay? I would be selling that book, too - it would be more of an advice book written by me using quotes to start off topics/ideas. I'm thinking that even though I am selling the books, each quote from each person would be such a small part of the overall compilation or writing that it would count as fair use, right? Kind of. Short answer dept. We think you're okay with all of your proposed uses. Your ability to create this book is partially based on fair use, partially based on the fact that copyright doesn't protect short phrases, and partially based on the fact that some of the quotes are so short as to qualify as being "trivial" or "de minimis" uses. 
Stopping others from copying your work. You'll be able to claim copyright in your original contributions as well as your choice/selection of quotes (referred to as a compilation copyright). By the way, these rules work if you're compiling many quotes into a book. They probably won't apply if you are taking one quote and placing it on a poster or t-shirt. In those cases, a movie company can go after you, like they went after merchandisers who used "E.T. Phone Home."

Thursday, August 5, 2010

Making Fun of Betty Crocker

Dear Rich: We are doing a show and I am going to make fun of Betty Crocker (not even a real person but a trademark). Is this legal? What is the liability...if any? How did Dan Aykroyd get away with making fun of Julia Child? I know he didn't ask Julia - because I met her when she was visiting The Culinary Institute of America and she told me that.
Wow you met Julia Child? How cool is that? The Dear Rich Staff never met any famous chefs although we met a few chefs who should be famous like the folks who do the cooking at our favorite seafood hangout (no FTC disclaimer needed because we're not getting any free calamari).
The rules of parody. When it comes to famous people and famous trademarks, you've got a first amendment right to parody them (even the ever-changing Betty). However, that doesn't mean the Betty C trademark owners can't or won't sue. It just means you're more likely to win if you can demonstrate it's clearly a parody. Bear in mind that offensive parodies are the ones most likely to trigger lawsuits. For instance, lawsuits were filed over lewd photos of the Pillsbury Doughboy and over nude Barbie doll imagery (entitled "Malted Barbie" and "The Barbie Enchiladas.") Although the artist in the case involving Barbie dolls eventually won his claim, it required substantial legal effort and expense. So weigh the legal consequences carefully before creating a parody.
A trademark parody is less likely to run into problems if it doesn't compete with the trademarked goods and services and doesn't confuse consumers--that is, they get the joke and don't think the parody product comes from the same source as the trademarked goods. Also, keep in mind that not all humorous uses are parodies. To avoid trouble, you should specifically poke fun at the trademark, not use the trademark to poke fun at something else.   

Monday, August 2, 2010

Wippees or Wipees? Something Smells Funkee

Dear Rich: After reading your online advice and answering questions from crafters, I thought I was in the clear with something I've made...but now I'm wondering if I'm in violation of some law, rule or provision. Okay. I've taken something (let's just say for this particular example) that it's kid's anti-bacterial wippees...it isn't but crafters read your blog and they ever see this, I can't give my idea away (see how paranoid us crafters can be!?! ha) Anyway, I've placed a "little toy" at the bottom of the box and have written a story that is is attached to the box. It's professionally packaged and the story ties in brilliantly with the "wippees" and encourages the little ones to use the anti-bacterial wipes in order to empty the bottle and get a the toy. (There are rules in the "Note to Parents" saying they can't waste the wippees and they can't have the toy until the wippees are all gone.) I have copyrighted the story so I know I'm protected there. However, on my craft, I have left the brand name on the front where it was originally placed and below it is I have placed a label of my own that ties in with the product and the story. So, it would look something like this: Soft & Fresh (fictitious brand name) "Little Wippee's Surprise". Since I'm using the brand name box, leaving their label affixed, can I get into any trouble for making such a craft. I mean, we're allowed to place a wrap around a Hershey bar without any legal consequences, completely covering up the Hershey name, and on my crafts, I'm sharing their name and making it a part of my craft. I suppose I could make them from scratch (in a sense) by buying OFF BRAND wippees, removing them from their container, putting them in another type of container that costs me a dollar down at the local Dollar Tree, add my label and I'd have no one to answer to, and just sell them that way. But I feel like their name brand label above mine, makes my craft more attractive, tried and true. I'll bet this sounds like I want my cake and eat it too, huh? I guess I look at it as they win with my cute story enhancement and I win with their popular brand name. We're going to assume you mean "wipees." Spoiler Alert!! -- they're for wiping a baby. (On an FYI level, the Dear Rich Staff has a problem with colloquialisms that use the "ee" sound like hottie or veggie (or veggie hotties!!).)
Right, you had a question. We think your question is, "Can I re-sell a brand name product if I open it and repackage it with additional material?"  Reselling Hershey Bars wrapped in ribbons is fine because you're not opening the Hersheys Bar. Every trademark owner has an obligation to ensure the quality and the consistency of the product and they can't do that if you're tampering with the goods. You're not likely to run into a problem selling a basket composed of your storybook and some unopened wipees as long as you avoid making people think that the famous brand endorses or is partnering with you.