Thursday, October 28, 2010

Copyright on Knitting Patterns

Dear Rich:  I wrote 7 separate patterns detailing how to knit things that I designed.  I adapted my patterns from old patterns published in the U.S. in 1962 by an author then living. I now seek digital publication for my "how-to" articles for my patterns.  I knit mittens based on these patterns and gave them as gifts and took a picture of the children I gifted these mittens to, expressly requesting them and their mother not to use the picture or the articles for their publicity or gain without asking me. I believe they used these photos for gainful purposes and had gain from them. What are my rights to others' profits or gain for their gainful use of the photos or articles gifted? Sent from my iPad. Dear Sent From My iPad: Good luck with your knitting and your patterns. We support crafts makers because they try so hard and they've been around for so long and because we have a bookwe're trying to sell them (yet, they don't seem to want to buy it ... okay okay, we can handle that!). 
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.

Using Band Member Photos in a Documentary

Dear Rich: I am currently making a documentary (in post-production) and there are references to some singers in bands. I would like to show images and/or video (5-10 seconds) of these people, is this allowed? The people in question include Denny Yost of the group Classics IV, Tommy James of the group Tommy James and the Shondells, as well as Dick Clark and the show American Bandstand. Also the person the documentary is about had a band in the 60's and they made some records and played with the likes of the above mentioned, so the other three guys in the band are not in the documentary but I'm showing band pictures from back then and those guys are seen as well as mentioned and talked about (not in a bad way). Is this allowed too?
Wow, we love/loved Tommy James. So many great songs to choose from and what a weird career -- his first hit, Hanky Panky, was a success a year after his band broke up (and was one of rock's oddest bootleg hits.) Now, we're wasting too much time watching their greatest hits -- I Think We're Alone Now (and remember the TIffany cover?),  Crimson and Clover (remember the Joan Jett cover), and Crystal Blue Persuasion.  
RIght you had a question. The short answers to your questions are: (1) Yes, assuming you have copyright permission to reproduce the photos or film clips, you're not violating Denny's, Tommy's, or Dick's right of publicity; and (2) showing pictures and talking about band members in a documentary won't violate anyone's rights either ... unless of course, someone says something defamatory (untrue and damaging) orinvades someone's privacy (unlikely for rock and rollers). We'd give you the long answers to these questions but we're too busy listening to samples from the Tommy James autobiography

Wednesday, October 27, 2010

Need Permission to Video Educational Presentations

Dear Rich: I belong to an association and we have some questions about videotaping educational events and using them to promote the organization. Are we required to have signatures of all "talent" (speakers) before we record and post the video on our website? Are there any limitations to the length of video clips they can post w/o legal penalty? What about getting permission from the venue for taping in their location? Wow, thanks for knocking on theDear Rich door and waking us up. We think we slept through a couple of days of blogging. We're thinking of starting a new blog called Dear Rich Van WInkle and it would take 20 years to get an answer to a question (which isn't that far off, really). Wait, will the world even have bloggers in 20 years? (There weren't any 20 years ago.) Uh-oh, we're starting to get sleepy again. 
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. 

Monday, October 25, 2010

Using Erotic Poster in Movie

Dear Rich: I've just produced a feature film which will be released in 2011 on DVD and in some countries in theaters. The movie is 93 min long, but there is one shot of 1.5 seconds where is clearly visible a poster of a famous erotic magazine from the 70s. I won't mention the editor as the picture does not have a logo on it, but it's still operating internationally. Shall I contact the editor and pay a fee for the permission or is it considered fair use? Please consider that the poster has been used as part of interior design and the shot where it appears is a part of a series of details of that room. We're sure your heart was in the right place when you attached that image to your email but we can't use topless posters at our blog, (except for this 1936 movie poster) and even if we wanted to, the I.T. Dept. has already invaded our office and scrubbed our hard drive. 
Right, you had a question.  As we've mentioned before, courts sometimes look at these cases - where artwork appears briefly in a film or TV show -- under a "de minimis" analysis. De minimis is not the same as fair use. Apologies to our regular readers for dredging up the same cases, but the two leading ones involve the motion picture Seven and the TV show, Roc.  In Seven, several copyrighted photographs appeared in the film, prompting the copyright owner of the photographs to sue. 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.) In the Roc case, a court determined that the use of a copyrighted quilt poster for a total of 27 seconds in the background of the TV show, "Roc" was not de minimis.  The court in the Roc case  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). 
Fair use cases. We've included a few fair use cases to consider as well. In one case, use of an 85 second portion (of a five-minute performance) by an opera singer from a two-hour movie, "Carnegie Hall" was not a fair use. Copying one minute and 15 seconds from a 72-minute Charlie Chaplin film and using it in a news report about Chaplin's death was also not a fair use. And it wasn't a fair use when a TV station used 30 seconds from a four minute copyrighted videotape of the 1992 Los Angeles beating of Reginald Denny. On the other hand, it was a fair use, when the  makers of a movie biography of Muhammad Ali used 41 seconds from a boxing match film in their biography. 
Bottom Line Dept. We think one and a half seconds of a poster in a movie will likely be considered de minimis, or in the event you can demonstrate that it's being used for a transformative use, perhaps as a fair use. Unfortunately, there's no guarantee that we're correct and in any case, you would only find out for sure by litigating. Obtaining permission would avoid any uncertainty but it would also alert the copyright owner of your use. It's a tough call and we'd spend more  time researching it for you but we're off to an online HR class about "acceptable workplace download policies."

Friday, October 22, 2010

Just the Facts: Part Two

Dear Rich: In one of your blog entries, about using AP newsfeeds, you say: 'If you're particularly paranoid about lawsuits, just take the facts.' But straight facts seldom bring raving blogvisitors. For my weblog and those of others I gather facts from daily Internet news items, but mold them to suit my satirical tone. Which means that I include personal opinions. Non-flattering ones, of course. However, I always take care to search for comparable news sources in respect to objectivity and accuracy, I'm no Perez Hilton! Although I always add a link to the source (in the text or at the bottom and also under people's quotes), I'm not always sure where the info originates from. Newsblogs do not always mention their sources, and if they do, they are grabbed from another second-hand source. The problem is also that there's a lot of 'small town news' that doesn't get to the big national and international sites and papers. Am I in any way illegal and/or fraudulous? We don't think you're fraudulous (though we love that word), and we don't think what you're doing is illegal. BTW, thanks for writing to us from Rotterdam (do you work in this building?). We love the Dutch (and we also loveDutch -- Happy 85th Elmore!)
Right, you had a question. Of course, our answer may not be applicable to you because we're not experts on copyright law in the Netherlands. Based on our limited research, Dutch copyright lawdiffers in a few ways from U.S. law (wow - we're told that the copyright symbol has no meaning in Holland). However, the Netherlands conforms to basic rules of the Berne Convention and the same basic principles apply in the U.S.and the Netherlands regarding the protection of creative expression versus protection of underlying facts. In other words, if you take the basic facts and rewrite the stories in your satirical tone, you should be shielded from any claims of infringement. In addition, because you are not in the U.S., you would not have to consider the "hot news" cases referenced in our answer as those would only apply in U.S. courts --  unless of course there is a similar line of caselaw in Holland (which we gave up trying to locate after 20 pages of Google results). So bottom line, take the facts, spin them in your style and you should be fine. 
And speaking of just the facts ... regarding last week's entry about Dragnet, we heard from the attorney for the publisher of the Dragnet theme who informed us that yes, the work is till protected. Inquiries about licensed uses are welcome and -- as we predicted -- unauthorized uses will be pursued.

Using (Encoded) Pseudonym in Copyright Application

Dear Rich: I saw your answer to a similar question from September 22nd, acknowledging that proving to a court that digital signatures are reliable may be difficult. What is their current status in regards to fully pseudonymous registration with the U.S. Copyright Office? My intent is to identify the author by a pseudonym, and the claimant by that same pseudonym. The Copyright Office warns that this may "raise questions about its ownership". I want to have my answer to such questions ready, by placing a PGP public key (or at least its fingerprint) into one of the registration form's fields. There is no field labelled or documented for this purpose, and, when I called the Copyright Office to inquire, the person who spoke with me had no idea what PGP or a digital signature was, nor was my quick explanation at all familiar (I was informed that they are rather behind the times when it comes to technology). I could just place it into the most likely-looking field, but I don't want my application to be rejected because of ASCII characters that don't belong (putting apparent gibberish into a name-only field). I can also embed the entire public key into the (digital) identifying material, I just don't expect that to be recognized (as a legitimate identifier) as readily as the Claimant fields on the application form itself would. I also don't expect it to become a topic for litigation, but if it does, I am confident that no one else could demonstrate ownership of the corresponding private key. I also retain sole possession of the original, physical work of art. Just like the Copyright Office, the Dear Rich staff is also behind the times with technology. (We're still using iLife10, our PC struggles to run W7 64 bit, we use the pre-camera iPod Touch, and our phone is definitely not smart.) However, we wonder why you're going to these extremes to hide your identity from the Copyright Office. 
What's the benefit? If you're intent on protecting your identity, why register at all? As you probably know from reading our blog, you get copyright protection automatically. You need the registrationtypically for three reasons: (1) if you want to sue someone; (2) it allows you to seek statutory damages and attorney fees if your registration is in place before the infringement occurs (or you register within 90 days of publication); and (3) registration provides a means for people to reach you in the event they want to license or exploit the work (or find you to sue you for infringement). In reality, we're willing to bet that 99% of registrants don't exercise these rights --- that is, they don't sue and the filing isn't necessary to locate them. 
Ultimately, there's no secrecy anyway. No matter what lengths you go to preserve your identity, you'll have to (1) provide a mailing address for the certificate; and (2) more importantly, you'll have to identify yourself in court if you later want to preserve your rights and go after someone who rips you off. If you don't want to go after infringers and the sole reason for doing this is to make sure nobody knows who you are, then we're back to the question, why register at all?
Placing PGP data in one of the fields. Like we said, we're no tech geniuses, so, maybe we're not seeing the advantage of embedding the PGP key in one of the document fields. We're not clear what that gets you except to prove that the secret claimant and pseudonym are the same. Or is this like the DaVinci Code, and somebody is supposed to figure it all out later after you're gone (as religious or government operatives pursue each other)? 
Bottom line dept. We support your desire to use a pseudonym. There's a great tradition for that in the U.S. But we don't think the Copyright Office will look fondly on placing improper information (embedded PGP keys) in an application field. After all, inserting an unrelated PGP key is not an answer to a question. Embedding it in the deposit materials seems a bit unhelpful and presumes that the Copyright Office will forever retain your materials (which it does not -- See Section 17 USC Sec. 704 (d)). We would recommend either not registering or perhaps pursuing rights under aCreative Commons license.

Thursday, October 21, 2010

Protecting Rights in Baby Product Idea

Dear Rich: I submitted an idea to the product development dept. at Toys "R" Us for a baby product. They have a strong interest in my idea and want to know if I have any IP regarding the concept, or if I am currently pursuing any patents? My contact person with the company suggested I have a patent or some type of legal backing in order to look more attractive to their buyers. The obvious problem is that patents are very costly and even though I know my idea will sell, I am unable to afford a patent right now. What other options do I have in order to proceed with my idea without having it stolen or taken from under my ownership? First of all, congratulations on getting past the gatekeepers and generating some excitement. That's not so easy to do. We used to try and license toy ideas. The toy business people were so polite when they said no. So much different than the music business.
How baby product protection works. Because we haven't seen your product, we can't prescribe a specific type of protection. However, we've listed the common ways products are protected under intellectual property law below (with links for more information). Keep in mind that some baby product inventors manage to obtain deals without any registered intellectual property protection. That's because toy and kids products companies often enter into option/confidentiality deals with agents or well-known inventors in which they agree to evaluate invention ideas and to either license the item or return it to the inventor. Often the  company will contract to pursue patent or trademark protection on behalf of the inventor and then deduct the costs of obtaining these rights from future royalties. Some of these companies often don't bother with patents (or any IP rights beyond copyrights and trademarks) because the shelf life on some kids products is so short it's not worth waiting the 18-24 months for a patent. In these situations, it all about "first to market" not IP protection.
Typical forms of IP protection include:
  • Provisional patent application (PPA). This isn't really a form of intellectual property protection. A PPA allows you to hold your place in line at the Patent Office for a year from the date you file. But it has no value unless you file a regular utility patent application (see below) within one year of filing your PPA. One reason why some innovators like it is that it's inexpensive to file (currently $110) and it allows the filer to claim "patent pending" on the device, a statement that prevents some would-be infringers from copying it. PPAs generate mixed feelings from patent practitioners. On one hand, they can be very helpful in preserving rights and lengthening the period before which a patent application needs to be filed. On the other hand, if the PPA doesn't accurately describe how to make and use the invention, it may prove useless in preserving rights. You can read more about it here and here's a guidewe prepared for Nolo's PPA filing system. (Full disclosure: You know we work for Nolo, right? We have a really cool office there that people refer to as the John Malkovich office because it's between two floors like in that John Malkovich movie. And we share the office with these two dogs.)
  • Utility patent. You already know the details on pursuing a utility patent (granted for new, nonobvious inventions). Utility patents are expensive (thousands in filing fees and thousands more in attorney fees). It's possible to file by yourself (and many people have done so successfully) but it's usually beyond the scope of most inventors who prefer to rely on a patent attorney's expertise.  In addition, the process can take years before you know whether a patent will issue.
  • Design patent. If you have a useful object and you want to protect its appearance (not its functionality), you can seek a design patent. Design patents are granted for "new and original, nonobvious ornamental designs for useful articles of manufacture." Preparing and filing a design patent is fairly simple--especially when compared to preparing and filing a utility patent. If you're a self-starter with a do-it-yourself mindset, you can, with a bit of work, prepare your own design patent application and save on the attorney fees. The design patent application consists of a short written document (the Specification), professionally prepared drawing(s) showing the appearance of your design, a Design Patent Application Transmittal--a cover sheet that accompanies your application, a declaration, and the fee ($110 to file and more as the application proceeds). The downside is that you can only stop similar designs that are substantially similar. So if a competitor designs a different appearance for the same functionality, you can't sue under design patent law.   
  • Copyright. Copyright, like design patents, protects appearance, not functionality. It's less expensive and even easier to file than a design patent. The primary differences are that you usually get a copyright automatically as soon as you finish the work (registration enhances your rights) and to sue an infringer, you must demonstrate they had access to your work (which is not a requirement for design patent infringement).
  • Trademarks and trade dress. We've thrown trademarks in here although they are not likely to help you too much. Trademarks protect those elements of your invention that identify and distinguish your product or business to consumers -- for example, the name, a logo, a distinct color scheme, or in some cases, the distinctive design of your goods or packaging. The reason it's unlikely to be available for most designers is that protection is dependent on use of the trademark in commerce. And most designers like you who are seeking to license, haven't used the mark in commerce. It's true you can reserve the mark for future use but only if you have a bona fide intent to use the mark on the goods in commerce within six months of filing your federal trademark application.
We could go on and on and talk about trade secrets and idea protection agreements and other contractual stuff that might give you an advantage but we think we've already put most readers asleep and we're afraid to induce any additional slumber. PS, we're working on a new edition of our licensing book and that may help you if you get an offer.

Wednesday, October 20, 2010

Wants to Use Radio Show Name for Other Purposes

Dear Rich: I am the creator, producer and host of a radio show whose name identifies the radio show. In fact it is how listeners recognize the show and it is distinguished from other radio shows because of its name and content. I want to trademark the name of the show and it's content. This show is broadcast on the Internet. However, I plan to take the show to other stations as a syndicated broadcast as well as a show that is listened to in malls, as content for airports, stores and to listen to while flying on an airplane. How should the name be trademarked and can the content be trademarked as well. The name of the radio show can also be sold on T-shirts, hats, cups as well as music compilations. We're back at "malls." Do people  listen to the radio at malls? We thought it was all canned playlists. We could be wrong because (full disclosure), the last mall we were in was the Stonestown Galleria in 2008 where someone doing a survey felt bad for us because we didn't own a microwave. Anyway -- syndication, t-shirts, 747s, and the mall, too -- you've got your work cut out for you and we better get busy with an answer.
Right, you had a question. If you're concerned that someone else will use your trademark (the name of your show) for similar purposes, file an application for federal trademark registration. You can learn more about the process here or here. You would file in International Class 041, and your official description of services would be, "Entertainment, namely, a continuing {indicate type, e.g. variety, news, comedy} show broadcast over {indicate form(s) of broadcast medium, e.g. television, radio, internet}." T-shirts and cups would require that you would register the name in additional classes. Application fees range from $275 to $325 per class (depending on the system you use to file), so it might get pricey to file for several classes at one time. And if you're not currently using the name in connection with particular goods or services, it costs even more because you would be filing an intent-to-use application. The Dear Rich staff thinks you should take a conservative approach to filing and start with the most important class (041) and expand as your radio show gains traction.
Speaking of trademarks ... Has a trademark owner bullied you or your small business? The USPTO is soliciting comments. The TTAB Blog has the scoop (BTW, the blog's author would not approve of your use of the term "trademarked.")

Friday, October 15, 2010

Company trademark vs product trademark

Dear Rich: I have invented a very unique and patent pending kitchen product. I think I have settled on a name for the particular product. I have also settled on a name for my company so that I can create other similar products. I'm concerned about the name I have chosen for my company because it turns up on links on some similar  product pages at The parent company for these products in the U.K has a similar company name. What are my trademark rights? We know this beautiful Factory-Reconditioned KitchenAid Artisan Series 5-Quart Mixer has nothing to do with your question, but we like looking at it and we hope our use of the product photo is excused by Section 113(c) of the Copyright Act
Right, you had a question. We think you should forget about your choice of company name. We took the two words you want to use, reversed them, and quickly found a substantially similar match for a registered mark by a Delaware company also making kitchen products. That eliminates our having to go into a long (and likely boring) discussion of the territorial rights of British trademark owners.
Name of product vs. name of company. However, that doesn't prevent us from going into a long and boring discussion of trade names, company names and product names. (Okay, okay we'll spare you some of the gruesome details.) If the Dear Rich staff were in your position, we would concentrate primarily on clearing the name that you intend to use for your debut product. (Since you don't seem to have any problems with that choice, you're really doing pretty good!) Next, we would ask ourselves whether the company name will be featured on the product as an identifier that consumers will see. For example, will you use it like KitchenAid or Braun? If so, then you should make sure that it is cleared as well as your product name. If your company name won't be featured on the products and will only be listed as an informational listing -- for example, in the same size font and placement as your company address -- then you would have less concern about trademark rights because you're using it primarily as your company's moniker, not as an identifier to consumers. 
Bottom Line Dept. If you look at the most successful lines of kitchen products, the company trademarks are fairly mundane. Hamilton Beach, Sears, GE, LG, Black & Decker, Sunbeam, Proctor-Silex. In other words, with the exception of George Foreman (and even that one is iffy) company names usually don't add much value to kitchen products. Its usually, the other way around, good products create valuable marks. So, don't be afraid to get mundane yourself, and concentrate on perfecting and marketing your patent-pending product.

Tuesday, October 12, 2010

Does My Friend Have Rights to Restaurant Name?

Dear Rich: I have a friend who was hired as an independent contractor to essentially revamp a restaurant's image. The restaurant is part of and owned by a hotel. During the course of work, my friend created a new name and logo for the restaurant. Their one page agreement mentions nothing about granting intellectual property rights and in fact, they never spoke about changing the name of the restaurant but when he came up with new name and logo, they liked it and continue to use it a year after his employment with them ceased. My friend still sees advertising and press releases for the restaurant making the name/logo a prominent part of the ads. Does my friend have any trademark protection? Let me add that neither he nor the restaurant owners registered for trademark or copyright protection. If my friend registered now, would that give him more legs to have them stop using the name/logo?We've got some loose ends here. Assuming your friend had some rights to the name and logo (and we're not sure he does), why does he want to stop the hotel/restaurant's use of the name and logo? Does he feel he's entitled to more compensation for his work? Is he planning to start a rival restaurant? Why has he waited a year to complain?
Rights to the name. We're primarily concerned with trademark law here. And based on trademark law, your friend has no rights to the name. Trademark law doesn't care much about who created a name ... it only cares about who's using it, and in particular, who used it first (in this case for restaurant services). Your friend would be unable to register the trademark because he's not using it in commerce and it doesn't seem like he has any intention to use it for restaurant services. Therefore, (and because copyright law doesn't protect names or short phrases), your friend doesn't have any claim to the name. It doesn't sound like there's a contract issue either because he was apparently paid to revamp a restaurant's image and arguably, changing the name and logo is part of the image. (By the way, as you can imagine, restaurants can get very litigious when it comes to naming rights.)
Rights to the logo. As for the logo, the same rules as used for the name (above) would probably apply if the logo was simply a stylized version of the name -- that is, basically  some fancy font work. If the logo is more than that, perhaps a drawing or sketch, something "artistic" like this, then your friend may have a claim under copyright law. He would need to demonstrate that the work was sufficiently original and he should consider filing a copyright application. However -- don't you hate it when there's a "however" -- even without an assignment of copyright, the restaurant probably has a reasonable argument that your friend granted what's called an implied license to use the logo. Under this theory, the restaurant might have limited rights to use the logo but would not own the copyright in it. The implied license theory is also strengthened by the fact that your friend has been aware of the use for a year or so and never complained. We're not guaranteeing either that the logo is copyrightable or that the implied license theory will fly (we are lawyers, remember?) but those are the ways these disputes sometimes play out. 
How your friend can handle it in the future. If your friend wants to avoid this outcome in the future, he needs to establish that in his contract -- for example, that he shall be paid a fixed amount if the name is used, etc. Or, alternatively, that if his logo is chosen, he shall receive a bonus. Practically, that's probably not an option unless your friend is in the upper echelon of restaurant consultants.
Great restaurant names. What makes a great restaurant name? Here are a few examples (we love Tequila Mockingbird) and here are some not-so-great-choices (Hmm .. not sure about "A Taste of Greece").

Making Single T-Shirt From Poster

Dear Rich: I want to transfer a copyrighted poster I purchased to a single T shirt to wear myself (in public). I would not make any other copies of any sort or sell the single T shirt. The whole poster would be reproduced on the T shirt. Is this fair use or not? (The poster contains no trademarks.) If this answer seems a little unfocused, it's because the Dear Rich Staff is too busy watching the World Series (and wondering where the coaching symbols stop and the OCD behavior begins). Your reproduction of a copyrighted image (assuming the poster isn't in the public domain) would be unauthorized and classified as infringement. We don't know if your use would qualify as a fair use because that's an issue that would only be resolved by a court. We suppose one could make an analogy that it is similar to making a copy of a CD for personal use. However, we can't point to any cases about such behavior probably because it is highly unlikely that the copyright owner of a poster is going to sue an individual who makes one T-shirt. Not only is the copyright owner unlikely to ever learn about it, but there would be little incentive to bring a lawsuit since damages would likely be minimal. PS.  If you kids are looking for a scary (and authorized) t-shirt for Halloween, check out this vision of Tarman from Dread Central. PPS. We're talking only about t-shirts here, not t-party shirts (which appear to have their own set of rules).

Monday, October 11, 2010

How to Register a Group of Published Photos


We haven't been fully satisifed with some of the answers we've been giving regarding registration of photographs (we recently revised this one). So, we put together this video. We hope to follow up with a video on using the eCO filing system for similar purposes although eCO, as we've noted in the past, only works if the group of photos is unpublished or was published as a "single unit" of publication. Also, no releases were obtained for the "Picasa sequence" in the movie so please don't sue (you know who you are!).

TGIF: Is Dragnet Protected by Copyright?

[Answer revised 10/18/10] - Dear Rich: How can I find out whether the Jack Webb audio of "you have the right to remain silent" is available in the public domain? I have been able to secure the Dragnet theme music in the public domain but haven't been able to discern whether his audio is still copyrighted. The piece I'm looking at using appears to have come from the original radio program. Some members of the Dear Rich staff almost broke into tears when they heard the Dragnet theme song. We're not sure why that is. Possibly it's a result of the atonal post-modern musical arrangement, or maybe because our tear ducts dried up on the bicycle ride through downtown Berkeley, or maybe it was a nostalgic gut punch reminding us of the good old days when beat cops didn't have to Mirandize every con they busted. Which brings up one issue: Are you sure the Jack Webb quote you have about "remaining silent" is from the 1950's radio show? Miranda warnings weren't required until 1966 although it's always possible that diligent police officers like Joe Friday were also concerned about Constitutional rights.
Public domain? According to a few sources on the Internet (like this one), the 1950s Dragnet radio programs are in the public domain. The radio programs would have two copyrights. The text copyright (covering the scripts) is likely to be in the public domain if the shows were never registered or renewed. (In any case, short phrases such as the Miranda warnings cannot be protected under copyright law.) The audio recording copyright is different because federal law did not protect audio performances until 1972. Pre-1972 audio is protected by a patchwork set of state or common law copyright rules. However, the prevalence of these shows on the Internet and for sale at Amazon seems to confirm that nobody is claiming or enforcing rights to Dragnet radio. 
Are you sure about the theme song? Even if the radio shows are in the public domain, the theme is not, according to the attorney for the publisher, Dragnet Music Company. Apparently the copyright for the theme music -- also known by the title, "Danger Ahead," -- was renewed approximately 30 years ago. The composition was the subject of a lawsuit (the theme wasallegedly pilfered from the 1946 film The Killers) and it is currently listed as being owned by Dragnet Music Company.  The attorney who contacted us explained that inquiries regarding commercial use requests are welcome and that unauthorized uses will be pursued.

Wednesday, October 6, 2010

Sports logos on band t-shirts

Dear Rich: I had a question about the use of professional sports logos. I've seen a few bands use them on their shirts. My band came up with an idea similar to that, but I disagreed because I thought I learned in my business law class, that it would be infringement of their copyright. They went on to show me tons of shirts like it. I still think its illegal, but how do they get away with it? We're not sure we're understanding this one. Do you mean the band includes the sports logo along with the band's name on a band t-shirt... like you buy a U2 t-shirt and it also has the logo for the Knicks? If that's the case, it sounds kind of confusing to us. Is it because the band wants to express its likes and dislikes -- y'know the whole thumbs up/thumbs down thing. Miami Heat: Like; Colonscopy: Dislike. If that's the case, the Dear Rich Staff is definitely out of it(we thought kids formed bands because they were crummy at sports).
Names and logos = trademarks In any case, the issue of using a sports logo isn't a copyright issue (Don't worry about the confusion -- apparently even the editors of the Daily Beast can get it wrong -- see above.) The unauthorized use of a team's name or logo on a t-shirt violates the team's trademark rights (as does the use of peripheral marks such as "March Madness").
How do they get away with it? People "get away" with trademark infringement for two reasons: (1) the trademark owner isn't aware of the infringement, or (2) the owner is aware of the infringement but doesn't consider it worth pursuing financially (or from a PR point of view). If you wish to obey the law, then you shouldn't use the logo or name. If you want to use a sports logo anyway, then, (as you can probably guess), you're more likely to run into problems, the more well-known and well-publicized your band becomes. 

Monday, October 4, 2010

Can I clone that robot?

Dear Rich: A team of friends and I are building a replica of a very well known robot from a movie. We'd like to be able to host a site that offers CAD files and schematics for this replica so that people can make their own robots. We plan to offer these plans and instructions completely for free. We understand that the fictional character is copyrighted and that using the name of this robot or the name of the movie from which it came would be a violation, which is why we don't plan to do that. But is the design a protected attribute? Section 102b of the Copyright law states that copyright protection does not extend to any idea or concept. Does that mean that it also extends to the design and layout of a robot? Especially if the one in the film is a prop and ours is a real robot. I also did some extra research and found somewhere that regarding actual products, that reverse engineering and reproduction were an accepted practice in the tangible product world. So I'm a little confused. Optimally we'd like to proceed with the studio's blessing, so we're going to be attempting to seek a license, but we're not even sure what kind of license to seek. We like it that you're building a robot. We could really use a couple of bots around the Dear Rich office. Specifically, we would like a robot that could reach under the couch each morning and locate our glasses. Also, it would be great if it could update our Netflix queue with the week's new DVD releases (preferably filtering it so that it included all new Patricia Clarkson movies), and if it could memorize the expiration dates for the hummus and red pepper tapenade. 
Right you had a question. Section 102b makes it clear that copyright doesn't protect ideas. It's another way of saying that copyright only protects the way you express an idea, not the underlying concept. The principle has been applied to characters in fiction so for example, the idea of using a character who is an anti-social computer hacker is not protectible. But the character would be protected if it's a pierced female hacker who weighs 100 pounds, has a dragon tattoo on her back, likes death metal, shops at Ikea and (spoiler alert) has a creepy Russian gangster father with a burned off face. In other words, it all depends on the degree of expression. The same is true for the design (or appearance) of robots that are characters in films. You are correct that the idea of a robot is not protectible  ... but the appearance of a robot like R2-D2, Robbie, C-3PO or Klaatu (or any other famous movie robot), is probably protectible under copyright. In some ways, one could even argue that a uniquely designed robot is not that much different than a well-crafted sculpture or other three-dimensional artwork.
So, are robots protected or not? Determining whether a robot has enough expression to be protected is a matter sorted out by courts, a factor which would place you at a disadvantage (since you probably can't afford litigation - who can?). Also, to make things even more confusing, the appearance can be protected under trademark and related laws. (What you're doing is not much different than making an audioanimatronic version of a fictional character.) 
What about reverse engineering? Reverse engineering wouldn't have much to do with your situation. First, you're not reverse engineering the robot (because the movie robot apparently doesn't function for real) and second, reverse engineering is primarily a defense used in trade secret disputes.
Bottom Line Dept. Best of luck acquiring rights. No need to wonder about what rights to ask for ... if the studio wants to go ahead with it, they'll tell you what rights you can have. By the way, it appears as if the film Metropolis is in the public domain, so there's one robot that's freely available for exploitation.

Friday, October 1, 2010

Foreign Book Rights: What Do I Do?

Dear Rich: I am the co-author of a successful book that has been revised and republished. I recently received an email from a European publisher who would like to reproduce 1000-1500 copies in a foreign language. I don't know how to respond. Does one typically sell the rights in such a situation and provide files that the buyer then runs locally, or at a print press of their choice? Or does it make sense to say that we could include a run for them if/when we have another print run next year (we print in China) as that might be cost effective. Do they provide the translation? How do we make arrangements for that? And how does one fix prices in these situations? Wow, the Dear Rich staff started out its musical career with a foreign deal.The paper they used for their contracts was a weird size and never fit in our file folders and then there were all these letters we used to get from the foreign tax authorities. Then again, it was exciting when a relative spotted our album in a Greek music store so there's always the Jerry Lewis aspect
Right you had a question. Congratulations for attracting the interest of a foreign publisher. Before you respond, confirm that you're the person who controls these rights. If you signed a book publishing deal, check your agreement to make sure that you, not the publisher, retain certain rights like the right to sell in the foreign territory and the right to make translations. Those are separate rights.
What about your co-author(s)? If co-authors retain the rights then any co-author can make a deal provided that the person making the deal accounts to the co-authors for their fair share. How much is that? In the absence of a co-authorship agreement that spells out percentages, the split is presumed to be pro rata (for example, three ways for three authors). It's always better to get everyone on board before signing and it's even better to have all of the co-authors sign the foreign deal if possible. 
What should the deal say? Typically, you grant the foreign publisher the right to make a translation and to publish and sell within a geographic territory. The second part -- the geographical restriction -- is often not that important because most foreign translations have a limited audience (for example it may prove difficult to sell German copies outside of Germany). With this type of deal you can receive royalties for sales or a lump sum and allow the publisher to do a limited print run. (We recommend the limited run with lump sum because it guarantees you a payment.) If additional print runs are expected you can negotiate the value of these and add them in to the contract. Foreign deals are always tough to monitor and therefore, it's relatively impossible to guarantee the publisher is doing the right thing. Again, that's another reason to get a reasonable upfront lump sum payment.