Monday, February 28, 2011
Yes, you're infringing. It's not really that fuzzy. Unauthorized reproductions are infringement unless excused by a defense such as fair use. You probably can't afford to fight a fair use battle, so the question you're probably more concerned about is whether movie companies will come after uses like yours. After all, a lot of websites freely use movie stills to discuss films and don't run into problems. Our suggestion: follow Aristotle's advice, "Everything in moderation." If you use two or three stills or only use thumbnails, you're unlikely to get much fanmail from movie company lawyers. But when you begin using 50 full-size images, you're more likely to show up on their radar screen.
Are you promoting the film? Many infringers argue that they're actually promoting the work they've ripped off ... and you can certainly bring that up as part of your fair use defense. But that argument rarely succeeds. First, you can promote the film without infringing copyright. Second, like many bloggers and website owners, it looks like you're really concerned with promoting your own site and earning money from affiliate sales. Finally, copyright owners might not want to be promoted in the manner you do it at your blog. Part of the benefit of owning a copyright is that you can control, to a limited extent, the manner in which the work is promoted.
Speaking of theft ... We recently re-watched this heist film (we love Akim Tamiroff) and when we Googled it, we noted (wistfully) that the movie itself had been heisted.
Friday, February 25, 2011
You've got two choices: You can proceed without permission or you can use toys that you can verify are no longer made or promoted. Proceeding without permission may be fine, particularly if the manufacturer is gone. The good news is that you probably won't have to be concerned about trademark infringement because you don't know the toy's name. We also think you have a good chance of avoiding copyright infringement assuming your use is transformative. And that perhaps you may even be able to argue that the toys lack sufficient creativity to be protectible under copyright law at all. PS. If you're looking for old toys that may safe to use, check out sites like this.
Thursday, February 24, 2011
Wednesday, February 23, 2011
Stamps and other trade secret stuff. Any stamp (or handwriting) that indicates the material is "confidential" will suffice. Of course, we should remind you that the stamp is useless unless you treat the information with confidentiality. For example, stamping it "Confidential" won't mean much if the document is shown to people who are not bound by nondisclosure requirements. Here's plenty more free stuff to read about NDAs.
Tuesday, February 22, 2011
Getting permission. If you are using protected works as the basis of your cards, you should obtain permission. In 2008, the First International Origami Copyright Meeting (Tokyo) proposed the creation of a clearinghouse for origami artists so that people like you could obtain permission from artists. You might want to contact the participants at that meeting to see if such a clearinghouse was created. If that's not possible, you may wish to check out artist Robert Lang's origami resources page. As for your question about proceeding without permission, our standard answer would apply: if the works are protected and the owner learns about your use, you may have to face the consequences of a cease and desist letter (or worse, a lawsuit). The odds of that happening are affected by the popularity of your work and the tenacity with which the owner pursues infringers.
Posted by The Dear Rich Staff at 7:00 AM
Monday, February 21, 2011
Here's where it gets complicated. As to U.S. protection, the short answer is that Freud's work is likely still protected in the U.S. if it was published after 1923 and with proper notice. Here's why. If Freud's works, first published in Europe, were published with a copyright notice, then they are protected in the U.S. for 95 years from the date of first publication. If they were not published with a copyright notice, or if they were republished before 1978 with valid copyright notice, then U.S. courts may differ as how to treat them but, according to author Steve Fishman (whose book you cited) the best approach as to such works is:
"A work first published outside the U.S. without a copyright notice before 1978, and never republished before 1978 with valid notice, would be treated as in the public domain only if (1) the author has been dead more than 70 years (the same rule as for unpublished works); and (2) the work was first published before 1923 (the same rule as for works published outside the U.S. with a valid notice).What's this got to do with restoration? Not much. Restoration is the process by which previously public domain works in the U.S. are resurrected and are awarded copyright protection. The U.S. agreed to permit restoration of certain works as a condition to joining an international treaty in 1994. We don't believe restoration is relevant to Freud's work because restoration applies to works that have already fallen into the public domain in the U.S. because they were works published:
- between January 1, 1923 and March 1, 1989 without a proper copyright notice, or
- during the years 1923-1963 but never had their copyrights renewed by filing an application with the U.S. Copyright Office during the 28th year after publication, or
- in countries with which the United States had no copyright relations.
Posted by The Dear Rich Staff at 12:38 PM
Friday, February 18, 2011
Thursday, February 17, 2011
Wednesday, February 16, 2011
- You have a copyright in your photos. You retain copyright when you make your work available under a Creative Commons license. As copyright holder you have provided a restricted license by which people can use your work without asking permission. If users (like the search aggregator) don't abide by the terms of the license then you can go after them for infringement. Here's an explanation of how it works.
- Search engines and thumbnails. Your beef seems to have something to do with the use of your photos as thumbnails by a search aggregator. One hurdle for you is a 2007 court ruling in which a court ruled that Google’s reproductions of images from an adult men’s magazine website were permitted as a fair use. That's similar to a 2003 case that ruled that a search engine’s practice of creating thumbnails was also a fair use. Translations: courts are willing to tolerate thumbnail reproductions by companies that scour and sort the web for consumers.
- Using the DMCA. If someone has copied and reposted your work without following the Creative Commons license, you can also pursue the matter with a DMCA Notice. Typically you file it with the company that hosts the website. But you can also have it removed from Google's Web Search results (even if you can't remove it from the website where it's posted). Here is Google's online application form. If the company responds with counter-notice, then the material will be "returned" to Google's search results unless you file a lawsuit within 14 days. If you wish to sue in court, you will need a copyright registration. Also, if it's demonstrated that you had no right to ask for the DMCA notice, you could get hit with attorney fees.
Tuesday, February 15, 2011
Monday, February 14, 2011
Right, you had a question. You need only submit two applications, one for the songwriting (musical composition/performing arts) and the other for the recording (sound recording). We think that the Form CO is easiest and here's a video explaining how to fill it out for your songs. You're allowed to list songs by more than one writer on a single form provided that one writer is the same for all of the songs. Here's a circular about registering musical compositions. Next, you would use a Form CO and claim sound recording copyright (here's a circular). Although we didn't think it applies in your case, you can use just one Form CO for everything if the same person owns the copyright in the songs and the sound recording. This could happen, for example, if your fiance and her father assigned you their rights in the sound recording. We hope your wedding plans work out and speaking of V-Day, have you seen this patent application?
Thursday, February 10, 2011
So, the best argument the drop shipper could make would be that you checked a box or clicked to accept a link that led to the terms and conditions. But, absent clear proof that you were made aware of the terms and conditions -- and obscure links don't sound like clear proof -- the drop shipper will have a harder time proving that the terms and conditions were part of the agreement. How hard? We can't say for sure and the unfortunate part is that it may take a court to decide. We think you should inform the drop-shipper that you don't believe the terms and conditions are enforceable because you never agreed to them and at the same time, you should look for a way to resolve the problem that is less expensive than hiring a lawyer in Texas.
Note, even if the drop shipper's mechanism for agreement is acceptable, terms and conditions and EULAs will not be enforced if they are unconscionable, a slippery standard that requires a court's intervention. Some such agreements are considered unenforceable based on the presence of forum-selection provisions, clauses that typically require that lawsuits must take place in a specific location. (See this article for information on jurisdiction.) Often these agreements are invalidated as "adhesion contracts."
Wednesday, February 9, 2011
Tuesday, February 8, 2011
Monday, February 7, 2011
Were you going to use 'Beerings' as your mark? Others have sought to register 'Beerings' for jewelry but none have been successful so far (although one company registered it for the following goods: "Bejeweled articles in the nature of charms not containing precious or semiprecious gemstones, for attachment to beverage glassware for identification purposes." We're not sure what that's about and if you're going to try and claim the name, we'd recommend more research.
Friday, February 4, 2011
What about your pitch? There's a legal side and a business side to your pitch. We can't tell you much about the business side. That's between you and the food manufacturer (referred to as the "principal" in your agency relationship). As for the legal side of your pitch, obviously you want to represent the principal truthfully and you don't want to divulge anything confidential unless you have a confidentiality agreement (NDA) in place prior to the pitch meeting. We've posted one for free here. The other major legal issue that is part of your pitch may relate to the terms of the eventual licensing agreement you hope to procure. So you may need to become familiar with that agreement and what it will consist of. For example, what do you say if a potential licensee asks about the territory, the length of the license, how the compensation will be made (per unit, per net sales?) and what types of deductions will be included. In some cases, the agent is responsible for dealing with these issues and even preparing the license agreement. In other cases, the principal handles the whole thing. We hope you can figure that out before your first meeting.
Your agency agreement. If you're close to finalizing a three-page agreement with the principal, we'd recommend that you speak with a lawyer. It's not that we don't think you can accomplish it yourself using our licensing book. It's just that you may be making lengthy binding commitments and it would be wise to at least have an attorney bless your final paperwork. Having said that, (and assuming you can't afford to hire an attorney) we think that our book covers the major issues with sample clauses. What the book doesn't do is tell you whether the principal will make a reliable business partner. So, to the extent you can research the principal and its business practices or propensity for lawsuits, that would help. A lot of that is discoverable on the Internet. We bring that up because if you're dealing with a cutthroat business, you'll spend all your royalties on lawyers chasing down your royalties. That's also why attorney fees provisions and dispute resolution provisions are often so important. The same may be true for indemnity provisions that will shield you from liability if that food product makes people sick. Finally, agents sometimes like to include provisions that prevent the principal from circumventing their work. For example, if you solicit a licensee, are you entitled to royalties if the principal enters into an agreement with that licensee a week after the agent agreement terminates? These are the kinds of issues that can make that short simple agreement a lot more complicated.
Thursday, February 3, 2011
Wednesday, February 2, 2011
If there is no assignment provision ... If the contract is silent as to assignment, you are free to assign it without permission. You should prepare an assignment agreement between the new and old entities. And you should notify the other party that the agreement has been assigned. However, your assignment won't be enforced in court if the new arrangement materially alters what’s expected under the contract -- for example, if the assignment affects the performance due under the contract, decreases the value or return anticipated, or increases the risks for the other party to the contract (the party who is not assigning contractual rights).
If there is an assignment clause ... Assignment provisions come in various forms. Typically an assignment provision prohibits any assignment of the contract. In that case you'll need permission from the other party. Many assignment clauses permit assignments under certain circumstances, most commonly if one of the parties is sold, or ownership of the company changes, or the company merges or becomes a subsidiary of another company. In that case, you may be able to assign without permission. If that's the case, you should still notify the other party that the new entity is assuming the rights and obligations under the agreement.
Don't try this at home. If the contract does not permit assignments, it is often quite easy to proceed with a transfer, anyway, particularly if both parties get along. The parties simply sign a short agreement in which they agree that one party's rights can be assigned to a third entity. You should probably seek an attorney's assistance to make sure the assignment is properly prepared.
Tuesday, February 1, 2011
What's a designer to do? Because fashion is hard to protect, the industry has focused on the creators, rather than the creations. Designer names (which can be protected under trademark law) have tremendous value and designers can earn royalties on fashion that includes that trademark. Because you can't stop others from copying your designs, we urge you look for ways to get paid based upon the success of your designs. For example, in return for creating designs exclusively for a company, can you seek bonuses if sales of your work pass certain benchmarks? Can you receive royalties for successful items? In other words, try to be creative in the ways that you get paid.