Wednesday, September 29, 2010
How the TV station might respond. If we were the lawyers for the TV station and we received your letter, we'd start by talking to the producer of the segment. We'd find out why someone else was listed as the songwriter and not you. It's possible the producer may have information that contradicts your claims. If that's the case and an investigation supports the producer then your letter would not provide satisfaction for you. If the producer can't provide a reasonable response, the lawyer may contact you to get more information (and perhaps settle the dispute). Alternatively, the lawyer may blow you off and not do anything and wait to see whether you will file a lawsuit. (Sad to say, the response might be different if the letter were from a lawyer.) BTW, you should also file a copyright application for the song if you have not done so already. If you plan on soon filing a lawsuit, you may have to take advantage of the expensive expedited application process.
How you can improve your letter. The most effective cease and desist letters are the ones that anticipate all arguments from the other side. So if you have facts that demonstrate that the other alleged composer is not the true composer, you should succinctly introduce your facts and anticipate the station's arguments. You don't need to show all your cards. You can say, "I have facts that contradict any claims that someone else has written this song." Also we know that lawyers spout stuff like "pursuant to Title 17 of the U.S. Code" but we think that's kind of bunk. Why not just say "Under U.S. copyright law ..." Finally, avoid threatening a lawsuit. That may give rise to what's known as a declaratory judgment action and you may not want to be drawn into a court battle. It's best to wind up with something such as, "If we cannot reach a prompt resolution of this matter, I will have no choice but to pursue other legal options."
Tuesday, September 28, 2010
Right you had a question. The short answers to your questions are: (1) copyright law protects the portions of your patterns that are original to you (though pattern protection can be iffy); (2) you may not have much claim to copyright if your designs are derived from the patterns published in 1962; (3) the author of the 1962 patterns could claim rights to your derivative patterns but only if those 1962 patterns were registered and renewed (unlikely); (4) you own the copyright in photos you take so you can chase people who copy without your permission (although you'll need to register with the Copyright Office if you file a lawsuit); (5) the parents of the kids you gifted can come after you if you use the photos to sell the patterns (under a theory known as "right of publicity") unless you got authorization from them.
A little confused dept. We're not exactly sure what happened between you and the people you "gifted" but it sounds like everybody involved in the gift giving process now regrets it. That's so sad. We believe, like this writer, that gift-giving is actually a form of "taking" but in your case, we feel like there is a little bit of overtaking. Maybe one reason our crafts book doesn't sell so well is that many crafts people recognize that what matters for commercial success is not a proprietary attitude but quality and craftsmanship; these skills will always transcend the underlying patterns.
Posted by The Dear Rich Staff at 10:16 AM
Friday, September 24, 2010
Right, you had a question. Yes, you should obtain permission to post videos of speakers. The permission doesn't have to be formal (though we have lots of helpful formal permission forms you can use); you can even videotape the permission instead of having it signed. The key is making sure you get permission for all the rights you need.
The speaker's rights. The speaker possesses three types of rights: (1) rights associated with copyright (the text of the speech and accompanying visual presentation); (2) rights associated with the commercial use of the speaker's name or persona; and (3) the speakers right to sue if the video defames or invades the speaker's privacy. What you're probably most concerned about are the first two. (The third "right" is acquired by obtaining a release from the talent.) If you want specific rights, then the release would say something to the effect "I grant permission to [name of association] to use my videotaped presentation [name of presentation] to be posted and publicly displayed at the [name of association's] website." That's called a limited permission/release because it is only for specific purposes. If you wanted all rights -- that is you can do anything with the video -- you would use an unlimited or blanket permission/release.
Be careful what you wish for. As part of your permission request, you might want to seek a "representation" to the effect of "The text and images used in this presentation are original to me and if they are not, I have obtained permission." That way you may have a better shot at going after the speaker in the event the presentation is riddled with infringements and your subsequent rebroadcast triggers a lawsuit.
Bottom line dept. Yes, you should get permission. No, length of video doesn't matter. And you'll only need permission from the venue if your contractual relationship with the venue forbids videotaping or requires permission.
Posted by The Dear Rich Staff at 10:18 AM
Wednesday, September 22, 2010
Imagine this. Actually, we left your question intact because we want you to imagine that you're an inventor in court and you're explaining all this to a jury. You detail all the specs and explain how your system is unbreakable, impenetrable, etc. The jury listens intently, at least for a while, and then begins to nod off. Opposing counsel steps up and introduces a tech expert who explains the ways that your system could potentially be hacked (including ways which may have been developed in the years since the system was created). Doubts are raised and all of a sudden you have a problem proving that your ELN is reliable. (Not to mention that electronic records are often more difficult to get admitted into court versus paper documentation.) So, despite the fact thatdigital wtiness signatures are valid in the U.S. (and despite the care with which the program was created), the proof, as they say, is in the pudding.
What do patent attorneys think? Our view was reinforced by patent attorney and author David Pressman. He wrote to us, "I recommend against them as they have not been tested in court (insofar as I know) and all the complicated technical stuff will be too much for a judge [or jury] to comprehend and too difficult for the inventor to do when compared with filling out a sheet, signing it, and having it witnessed. I believe that an overwhelming percent of patent litigators feel this way too." Pressman also noted that the courts like "live" witnesses. To that extent, an ELN may be valuable if it is witnessed. That's because the witnesses can be called into court and cross-examined. In that manner -- having live witnesses who can back up the notebook entry -- ELNs and paper notebooks are probably equal.
Others may differ. Companies that promote ELNs obviously have a different perspective. And because as Pressman notes, there is no caselaw on the subject, it may prove that all ELNs (witnessed or not) are as reliable as paper. Certainly, aside from issues regarding proving patent invention authenticity, ELNs are proving to be an invaluable aide for inventors and innovators.You should also be aware that legal disputes over the authenticity of lab notebooks are not that common. Here's one from 2002.In summary. Do you remember the computer/software you had ten years ago? That was so ... uh 2000-ish. The big difference between digital authenticity and physical authenticity of invention is that in ten years (when a patent dispute could eventually develop), your virtual system of proof is likely to seem outdated (assuming the company that created it is still in business) while that piece of paper will be timeless.
Monday, September 20, 2010
Dear Rich: I have a science fiction/fantasy idea with a title, setting, characters, etc. What is the best method to protect my idea and all it's aspects: copyright, trademark or a combination of both? Any advice would be very helpful. There aren't many movies about the theft of a SciFi/Fantasy story so we're happy to recommend Gentlemen Broncos as part of our IP Film Festival (we don't know why it got such harshy harsh reviews; we liked it!). We won't give away the ending but the movie does provide one method of dealing with rip-offs (not to mention offering an excellent lesson on naming SciFi characters). One difference is that this movie deals with the hijacking of a completed novel while you're trying to protect an idea (and the related characters and settings).
Want copyright? Time to start writing. Stephen King was working as a high school janitor when he heard a remark at work that gave him the idea for the opening sequence in Carrie. King's concept -- a girl who, upon reaching puberty, acquires the power of telekinesis -- was unprotectible when he thought it up. But once he developed it into the macabre novel, it became a powerfully protectible book and then, movie. In other words, there are no shortcuts for protecting story ideas. You need to write a detailed narrative with fleshed-out characters. Then, file a copyright registration for your unpublished (or published) work. If you come up short on narrative or characters, you'll be like the woman who sued the makers of E.T. The court found her musical play - Lokey from Maldemar - didn't infringe because it was constructed of caricatures (not fully developed characters) and a stock plot (an alien is stranded on earth and befriended by a child).
What about trademarks? If you want to achieve trademark protection, you need to sell something with the character name or title. Selling T-shirts or other merchandise will enable you to claim rights for that name on that merchandise. If you want to claim the trademark for the title of a book, you'll need to write and publish at least two books because trademark rights are not granted for single book titles.
What if you're pitching the idea? If you're pitching the idea to a company, for example, a videogame or a movie company, you should, if possible, use an idea submission agreement.
Summing up. Time to get behind the keyboard and make that idea come alive. Your characters will be grateful that you did.
Saturday, September 18, 2010
Dear Rich: I've been registering my photos with the Electronic Copyright Office (eCO) for a couple years now but I'm confused about the process, and the advice I find online is conflicting. I post a new photo on my website three times a week, and my site lists the two galleries that represent me for print sales. Thus I understand these photos are published for copyright registration purposes. And I understand that I will be protected if I register within 90 days of publication, so my plan is to gather all photos I've posted from the previous 90 days and register them as a group. Will that work? Will I be completely protected? One web site says I have to use Form VA and Form CON, but will I be covered if I'm using the Electronic Copyright Office? If I registered images incorrectly in the past as unpublished, can I simply register them again as published? The first question is whether the posting of photos on the web constitutes a "publication" for copyright purposes. (This case seems to say "yes" because the end user has the ability to download the code or the imagery associated with a website). The Copyright Office does not necessarily agree. They state here that "The definition of publication in the U.S. copyright law does not specifically address online transmission. The Copyright Office therefore asks applicants, who know the facts surrounding distribution of their works, to determine whether works are published." Thank you very much! In other words, it's up to you to decide whether to register your works as published or unpublished.
Form VA. You mention Form VA as a paper alternative to the virtual filing of an eCO application. Actually, you should use Form GR/PPh/CON (which includes Form VA) If you are using paper for group registrations of photographs (or use Form GR/CP for photos published in periodicals.)
Groups of photos. Photographers are fortunate in that groups of their photos can be registered at one time. You can use eCO for a group of photos if it is (1) a group of unpublished photos (here's that issue, again) or (2) if the photos were published and "contained in the same unit of publication and owned by the same applicant." The Copyright Office describes "units of publication" in traditional media formats such as books and CDs. There are no cases (or rules) that we could find that classify a website or photo database as a unit of publication although we suppose a reasonable argument could be made that a website or database, is a unit of publication (provided the whole thing could be duplicated and copied somewhere else). Still, there are no specific rules regarding websites. A conservative approach would be to use paper forms, instead.
What should you do now? First, we recommend reading attorney Carolyn Wright's solid explanation about registering photographs. Second, you should move forward filing your group collections with either eCO (remember our caveats, above) or Form GR/PPh/CON.
The 90 days thing. We wanted to talk about the 90 day filing requirement. As all Dear Rich readersare aware, you acquire copyright without the registration. But registration prior to an infringement or within 90 days of publication gives you the ability to seek statutory damages and attorney fees. Just so we're all clear, if you wait two years to register and someone infringes the day after you file your application, you can still seek these damages. The 90 days thing was invented primarily to enable TV stations - particularly those that broadcast awards shows and sporting events - to go after people who simultaneously infringe. In other words, if the infringement is on the date of the broadcast but the station registers within 90 days of publication, the station can still seek the damages. In the case of quality photos like yours, we can see why you would pursue the 90-day plan. In the case of photographs like ours (above) we can probably wait and do it annually.
Posted by The Dear Rich Staff at 12:10 PM
Wednesday, September 15, 2010
Live/Dead. When you search the USPTO trademark records, you'll see Live/Dead categories like the ones shown above.
- The "Live" category has two subcategories: (1) If there is a serial number and no registration number, the application is active but not issued; or (2) if there is a registration number, the mark is active, valid, and federal trademark rights can be asserted.
- The "Dead" category also has two meanings: (1) If there is no registration number, then the applicant never made it through the application process; or (2) If there is a registration number then the applicant once had a federal registration but the registration is no longer valid either because the applicant stopped using it or because the USPTO cancelled it. In either case, federal rights can't be asserted (though the applicant may still be using the trademark and may also still claim common law or state trademark rights).
The meanings of abandonment. If you're wondering why an application or trademark has been abandoned, you can do the detective work and find some evidence by checking the TARR status of the mark, or if necessary by reading through the documents you can access for free via theUSPTO's TDR (Trademark Document Retrieval). All this is accomplished by clicking around and reading the PDFs associated with the file. Usually, what you want to avoid is filing for a mark that was abandoned during the application process especially if the reason was because of strong examiner objections. For example, if an examiner had a good argument that the mark couldn't be registered, that would let you know you're in for a fight if you file for the same mark in the same class. Ditto if the application was abandoned because another company opposed the application. If a registered mark was killed, the most common reason is that the owner abandoned it and didn't file a statement of continued use, resulting in cancellation. Often it's okay to step in and begin a similar use but you should always check the marketplace to confirm that the previous owner is not still claiming rights without the registration.
Monday, September 13, 2010
Dear Rich: I am a photographer and I have been taking pictures of toys. If I take a picture of a toy action figure am I in violation of copyright or do I own that picture to use as I want? (See my example.) I have been asked to have a show of these photos in a college gallery but someone told me I could get sued and that they are copyright violations. I have worked hard on images like this and hate to see all my work go to waste. First of all, (and second and third of all, too), theDear Rich staff loves Smurfs. And we love your beautiful portrait! We feel if there is any justice that your work should be shared with the world. (BTW, we used to be real close with troll dolls, too, but then we had a sad falling out.)
Right, you had a question. The owner of the Smurfs and other live action figures control the right to reproduce their copyrighted imagery. That's what allows them to make Smurf movies (andtroll movies, too), etc. By the way, if you're selling or commenting on the sale of these items, copyright law, (Sec. 113(c)) permits you to reproduce these products (referred to as "useful articles") if your use is "in connection with advertisements or commentaries ..." This "commerce" rule allows merchants to reproduce images of the products and others to comment on these products. However, we don't believe your photos would qualify for this exemption because your use or commentary is not in relation to commerce; it's all about making an art statement.(So why bring it up? Because we are copyright nerds and don't know when to stop chattering.)
But there's always fair use. We're usually hesitant to trot out "fair use" as the basis for using somebody's copyrighted work because there is no certainty that the defense will succeed (or that you can even afford to bring it). Still, it's worked for some artists in your position. Artist Thomas Forsythe created 78 images of Barbie dolls "in various absurd and often sexualized positions" and was able to beat back claims by Mattel. Fair use would might also succeed in this use of troll dolls in a fine art spat, as well.
Bottom line dept. We believe that your limited display in a college gallery is not the kind of thing that triggers a C&D letter. You're more likely to run into a problem if you anger the copyright owner (by disparaging the work) or by competing in some way (for example, by selling prints online). Good luck with your show!
Friday, September 10, 2010
What does the case say? As you know in order to use a sample, you must obtain permissionfrom the owner of the sound recording copyright and the owner of the musical composition copyright. The Beastie Boys got permission from the sound recording owner (ECM Records) but not from the composition's owner (Newton). The Beasties used the three note intro from Newton's work repeatedly throughout the song, "Pass the Mic." The Ninth Circuit ruled that permission is not needed from the owner of a composition if what is taken is de minimis (so little).
What is a de minis defense? De minimis is not the same as fair use. For example, in the motion picture Seven, several copyrighted photographs appeared in the film, prompting the copyright owner of the photographs to sue the producer of the movie. The court held that the photos "appear fleetingly and are obscured, severely out of focus, and virtually unidentifiable." The court excused the use of the photographs as "de minimis." (Sandoval v. New Line Cinema Corp.) However, in another case, a court determined that the use of a copyrighted poster for a total of 27 seconds in the background of the TV show, "Roc" was not de minimis. What distinguished the use of the poster from the use of the photographs in the Seven case? The court stated that the poster was clearly visible and recognizable with sufficient observable detail for the "average lay observer " to view the artist's imagery and colorful style. (Ringgold v. Black Entertainment Television), So one of the biggest challenges in making the de minimis argument is that each situation is decided on a case-by-case basis. There's no predicting whether it will work.
Does this mean that musicians should feel free to take three note patterns from recordings provided they pay the owner of the sound recording? The Dear Rich staff would advise against that practice (unless of course you're the Beastie Boys and you can afford to fight the battle). Otehrwise, you'll probably spend more on legal fees than you would for sampling rights. De minimis defenses, like fair use defenses, are never a guaranteed determination and only a federal judge can tell you for certain who is right. So, to that extent, we believe cppyright law still favors music publishers.
(BTW, Malcolm Gladwell wrote a good article about this case and NPR ran an informative show, as well.)
Wednesday, September 8, 2010
Your cake mark. Alas, your current choice of mark creates a couple of challenges: (1) 'cake' is thegeneric term that describes what you make so you'll likely have to disclaim that (which means you can't claim any rights in "cake" by itself); and (2) the use of an owner's personal name is generally considered by the USPTO to be descriptive. That means if you want to register it on the Principal Register (the federal trademark register that has the most value), you'll need to demonstrate secondary meaning -- that is, that cake consumers associate your trademark with your cakes. For example -- if we can digress to ice cream -- Ben & Jerry's Ice Cream has become so well known that it has acquired secondary meaning and is entitled to trademark protection. If you haven't started using the trademark, secondary meaning is difficult to prove.
More about personal names. Sometimes an applicant with a personal name mark will not have to prove secondary meaning if additional wording is used with the name, but that's not the case when the additional wording is a generic term like cake (check out this decision). We know that the rules describe surnames (family names) but the first and middle names you are using can also be confused with common first names and family names and we think it will still trigger a letter of objection from a trademark examiner.
What can you do? You can file your application for registration on the Supplemental Register. That lets you use the 'R' in the circle and claim other rights. After five years of use (or perhaps sooner if you can show secondary meaning), you can move the mark to the Principal Register. Alternatively, you can file on the Principal Register and see if the examiner objects and if so, amend your application for the Supplemental Register at no additional cost. As for the statement from the person authorizing use of the name -- that's a little tricky because you are not using the person's first and last name so it's not clear whether you are identifying a real person (especially with "cake" tossed on at the end). In any case, you can provide that statement at the time you are filing or later, as part of an amendment to your application.
Thursday, September 2, 2010
What about 'War of the Worlds' syndrome? Perhaps you're concerned about liability for frightening the easily-persuaded populace with your fiction. It's highly unlikely you'll run into problems. (The situation might be different if you were claiming something as true when it was not.) Anyway, as history proved in the case of Orson Welles' "War of the Worlds," few people took any action based on the so-called deception. Much of the "panic" was drummed up by newspapers, fearful of radio's encroachment on their turf.
Wednesday, September 1, 2010
Short answer dept: (1) It's unlikely a school is going to consent to your t-shirt licensing proposals - most already have exclusive arrangements with manufacturers. (2) It's super-unlikely that a school will consent to sharing a co-brand arrangement with a rival. (3) It is super-super unlikely a school will authorize use of their trademark for an unflattering portrait or will permit alterations of their logos and/or mascots. You can always ask -- and maybe we're wrong -- but we don't think your use will be authorized. So that leaves you with the unauthorized route. As for parody, fair use and all that, you can give it a shot though these schools don't mess around when it comes to licensing revenue. If they find out about your use, you'