Wednesday, February 29, 2012
Tuesday, February 28, 2012
Documentaries raise funds. The fundraising aspect of the project doesn't negate the informational quality of the work. After all, just about every documentary directly or indirectly is tied to a financial cause, even if that cause is the filmmaker's pockets (yes, sad to say, Jackass 3D is considered a documentary). A documentary maker usually only needs a photo release if a person's image or personna is used to sell a product or service, or if you are invading the privacy or saying something that might be considered defamatory (we discuss these standards in more detail in this article).
Monday, February 27, 2012
Friday, February 24, 2012
The Fair Use Argument. If you can't obtain permission, you may -- depending on the length and context of the clips -- be able to justify your borrowing as a fair use. The marketing aspect of your effort works against that argument but take a look at some of the audiovisual cases (scroll down to the Artwork and Audiovisual cases) to get an idea. As always, remember that fair use is a defense, meaning that a complaining copyright owner can drag you into court to defend yourself.
Thursday, February 23, 2012
Dear Rich: I’m planning to create an arrangement of Elvis Presley tunes for string quartet. Do I need permission to just use these arrangements for my own string quartet? What if I want to sell the arrangements to others? We love your idea (and others like it, too). You're probably okay arranging and performing a few Elvis songs for private performances. That's because the owners of the music are unlikely to notice (or to care if they do find out). If you plan to perform the music, publicly, the venue would need to pay for public performance royalties (sidebar on right under U.S. copyright law). If you were to record and release the music, you'd need to pay mechanical royalties.
What if you want to do more? You will need permission if you plan on promoting sales or distribution of sheet music arrangements to other quartets (or seek to stop others who copied your arrangement). That's because the making of sheet music requires authorization whether it is a straight reproduction of the sheet music or an “arrangement” or “orchestration” that qualifies as a derivative work. In other words, you can't reproduce the underlying work -- for example, Heartbreak Hotel -- in a printed arrangement, without the publisher's permission. You can usually find the music publisher’s contact information at the following sites: Harry Fox, BMI, ASCAP, or Limelight. Also, the National Association for Music Education website has an example of a request form for permission to create musical arrangements.
Wednesday, February 22, 2012
Many choices. There are many, many variations on both types of deal -- for example, the arrangement might be for a complete catalog, just a few songs, or perhaps even for songs that will be written in the future -- and the deals may include varying percentages and advances. Most importantly, some publishers actively "work" songs in various media, while other publishers just sit back and wait for deals or performance royalties to roll in. As a bottom line for admin or regular publishing deals, the music publisher should guard against infringements, collect royalties, and see that the songwriter gets paid. Although this wikipedia article states that "Only the most popular song writers can even consider asking for an admin deal," we don't agree at all. Many obscure songwriters -- the Dear Rich Staff included -- have acquired admin deals with established music publishers. For more tips for songwriters, check out our article on the subject.
PS Dept. Speaking of music publishing revenue ... Elton John's song, Candle in the Wind, is believed to be the most "played" song of all time.
Tuesday, February 21, 2012
Copyrighting a patent? It's not uncommon for a patent applicant to use text or drawings from a prior art patent when submitting an application and there have been disputes as to whether a patent’s text or drawings are protected by copyright. The USPTO takes the position that, “Subject to limited exceptions reflected in 37 CFR 1.71(d) and (e) and 1.84(s), the text and drawings of a patent are typically not subject to copyright restrictions.”
What makes the issue somewhat confusing is ... One of the exceptions to the general rule, above, is that patent examiner regulations permit patent applicants to include copyright notices and copyright claims regarding authorship in patent text or drawings. The PTO’s website also states “There are also instances where a portion of the text or drawings of a patent may be under copyright. You should consult an attorney regarding these potential trademark and copyright issues.” And then there's also a 2003 case, Rozenblat v. Sandia Corp. 69 USPQ2d 1474 (7th Cir 2003) in which the Seventh Circuit, acknowledged the copyrightability of an inventor's patent drawings (although ruling against the inventor as to the issue of infringement). Finally, Copyright Office regulations do not prohibit registration of patent drawings.
What's an inventor to do? As a general rule, the “borrowing” of technical language or drawings is likely to qualify as fair use under copyright law. However, exercise caution if the patent from which you are copying clearly indicates it is protected by copyright—for example the patent includes a statement of copyright ownership or a copyright symbol.
BTW Dept. Last month, the USPTO's General Counsel issued a paper on fair use and non patent literature (NPLs) that must often be furnished as part of the regular patent application. The USPTO concluded, “we believe that it is fair use for an applicant to make copies of NPL and submit those copies to the USPTO during examination in an IDS.”
Friday, February 17, 2012
Right, you had a question. A few months ago we answered a question about using lyrics in a book, and for the most part, the same rules apply when using lyrics in connection with artwork. Limited use of lyrics -- perhaps four or five lines -- may be excused as a fair use. But more extensive quoting of the lyrics requires permission. Of course, if you're just doing a one-of-a-kind artwork, it's unlikely to be an issue (unless you write to the lyricist to share your excitement). But if you're mass producing posters with lyrics and distributing them via the web, you're more likely to trigger a cease and desist letter.
Thursday, February 16, 2012
Dear Rich: I'm curious how I can copyright a song where I used an existing song and while I changed most of the words I did not change the music. The meaning is entirely different but I'm sure I can't legally record the song without consequences. Based on your web article "How to Obtain Sample Clearance" it sounds like there is no chance for me to legally sell my version of the song if the copyright owner or artist/songwriter doesn't grant permission. The chances of me making a lot of money are slim but I'm happy to pay some type of royalty or percentage of revenue in the event it is successful. Sometimes there's gold in those changed lyrics. When Ken Darby changed the lyrics to Aura Lee (a public domain song), the result -- Love Me Tender -- became a monster hit for Elvis Presley. If you're wondering why that song is credited to Presley and Vera Matson, Darby's wife, that's because Presley demanded co-writing credit for many songs he recorded regardless of whether he actually wrote them. When asked why Darby credited his wife instead of himself, he supposedly replied, "Because she didn't write it either."
Right, you had a question. You asked how you can copyright a pre-existing song whose lyrics you have modified. We suppose you could file a Form CO, claim authorship of the lyrics and then, in section 4 (Limitation of Copyright), state that you are not claiming any copyright to the pre-existing material (name the song and provide its copyright registration number). Doing that won't really gain much for you because you still can't perform or record the song without the permission of the underlying song owners. So, we'd recommend scratching that strategy.
How can you record the modified song without being sued? We think that's the real question you're asking. Under copyright law, you need to seek permission from the song owner to record it if you materially alter the song. We doubt whether a publisher is going to grant permission to modify lyrics to a song, although it's always possible. (By the way, none of this has anything to do with sample clearance.) Of course, if you hadn't materially altered the lyrics, you wouldn't need to ask for permission, you could simply pay a fee to a service such as Songfile (Harry Fox) or Limelight, and obtain a compulsory license. Knowing this, some musicians use a halfway measure -- they pay for the compulsory license and use their modified version of the song. Even though that doesn't meet the standards of copyright law, the thinking is that by paying for the license, the musician demonstrates good faith and hopefully, the song owner won't care to hassle those who pay for licenses.
Wednesday, February 15, 2012
- Color photos. The USPTO only accepts color design photos on "rare occasions" if they are the only practical way to show the design. You must file a petition explaining why the color photographs are necessary.
- Black and white photos. You can use black and white photos if they are "the only practicable medium for illustrating the claimed [design]." We can't tell you if your gloves qualify under this standard but you can read more about the USPTO's standards for patent drawings.
Also, you can furnish informal drawings with your application although the USPTO will not examine your application until formal drawings are furnished. By the way, we've created a design patent site where you can read more about design patent drawing rules.
Tuesday, February 14, 2012
Right you had a question. We're not sure how you will be using the term 'Cupid,' but our preliminary search of the USPTO trademark records only turned up two Cupid registrations for food products (and those were for human foods, not pets). (Reg. Nos. 3508736 and 109397.) We didn't see any Cupid registrations for pet foods or pet products. So it appears as if the coast is clear. Of course, we're not an official trademark searching service and can't guarantee our results, blah, blah, blah. Also, if you don't want to wait several months for our staff to provide your next search results, check out our trademark searching video to learn some of the tricks of the trade.
Monday, February 13, 2012
- Under copyright law, you're okay to reprint the line. It's too short by itself to be protected. (We've written an article on the subject, as well.)
- Under trademark law, you should be okay (except for using it on entertainment services and related merchandise). No one has registered the phrase, although there have been registrations for the more well-known but never-uttered-on-Dragnet line, "Just the Facts" (made popular by a Dragnet parody.) Oddly enough, the "officially licensed" merchandise uses "Just the Facts" (Go figure!) In any case, avoid using it for entertainment services or you may hear from Jack Webb's estate. BTW, if you plan on using the phrase to sell products or services, it's always wise to search USPTO records, first.
- For right of publicity reasons, we would advise against any attempts at commercially exploiting the phrase in connection with Jack Webb's image or personna. If the estate learns of the use, they'll likely come after you.
Thursday, February 9, 2012
|(c) sasha stim-fogel|
Dear Rich: My question is, out of the 43 states that have adopted the Uniform Trade Secrets Act, which of those states exempt trade secrets from becoming public information in an insurance filing (insurance filing)? I need to know this for my job and I need to find out what language each state uses to exempt the insurance filing. For example, Alaska has adopted the UTSA (Alaska, Stat. Secs. 45.50.910 et seq.). So now I need to find out if Alaska exempts trade secrets from becoming public information. Our apologies, but 47 (not 43) states and the District of Columbia have adopted some version of the Uniform Trade Secrets Act (UTSA). We recently updated our site to include more current adoptees. (The remaining UTSA holdouts are New York, Massachusetts, and Texas).Where in the world is ... We couldn't tell you which states have exempted insurance filings as trade secrets because that information -- as far as we can tell -- is not provided in each state's UTSA. For example, Alaska's trade secret law makes no mention of Alaska's trade secret exemption for insurance filings (scroll down to Sec. 21.39.035). This article can start you on the right course but you may want to suggest that your employer subscribe to a service from a company like this. And of course, as you may know all this may be changing as the trend may be heading away from secrecy in insurance filings.
Wednesday, February 8, 2012
Tuesday, February 7, 2012
You're unlikely to run into problems because ... Keep in mind that many of these legal battles deal with more than stats -- for example, some of these cases also dealt with a company's right to use a sports star's name or likeness. And, also, these sports franchises tend to flex their muscles in cases where they have big targets such as Motorola or Yahoo! Aside from the exceptions cited below, we think you can freely use sports statistics in your books.
When could it be an issue? You could run into problems if you seek to lift a complete database of information -- for example, you copy a 10,000 entry database entitled "A statistical analysis of home runs scored when a right handed pitcher faces a left-handed batter." That's because a collection of facts can sometimes be protected under copyright as a compilation (if selected and organized with some creativity). In addition, databases are also sometimes protected under license agreements. So, for example, if you're at a league website and you click on a "I Agree" button under which you promise not to copy data, you may be bound by that agreement despite the fact that copyright doesn't protect the underlying data.
Monday, February 6, 2012
Saturday, February 4, 2012
- Generic licensing provisions and explanations: We've posted examples and explanations for common generic content license agreement provisions. These should provide a basic understanding of the structure and organization of a typical license.
- Licensing songs and recordings for film and TV. There's an example of a Music Synchronization and Videogram License (with explanations) in our book, Getting Permission. That book also contains examples for a Master Use and Videogram License (for licensing sound recordings) and an agreement for licensing lyrics. You can also view examples of similar agreements online, for example here, here, and here.
- Licensing music for videogames. This ArtistsHouse page has a relevant article and video about music licensing for videogames. As EA's Steve Schur explains, the sync and master licenses mirror the agreements used in film licensing. As Schur also explains, when creating EA's theme music, EA seeks assignments, not licenses. ASCAP has posted a nice article on the elements of a videogame license.
- Copyright. There's a fairly thorough explanation of music copyright, and how to distinguish co-ownership issues in our Music Law book. We've also provided free copyright information at the Stanford Library site, and at Nolo's site.
- Getting legal help. California Lawyers for the Arts (or one of the other lawyers for the arts organizations throughout the country) should be your first stop. If there are no organizations near you, consider directories from Nolo (disclaimer: our employer) or Cornell University. Nolo also has articles on dealing with lawyers, including working with lawyers, fees, and attorney-client relationships.
Friday, February 3, 2012
Posted by The Dear Rich Staff at 1:13 PM
Approaching manufacturers. We think you'll have a hard time convincing manufacturers to buy rights to your word. All the made-up words that we've seen used as trademarks -- for example, Nerf, Kodak, Viagra, and Kleenex -- are usually associated with new products. (Actually, Nerf is an acronym for Non-Expanding Recreational Foam.) So unless you also have some proprietary product ideas to go with your new word, we think you're headed in the same uphill direction as Sisyphus.
Can you claim rights under an intent to use application? A manufacturer is going to want an assurance that you have rights to the mark. We know you'd like to use the word as a mark but do you actually have a bona fide intent to use the word as a mark? As this case and others have shown, without actual evidence of your intent (more than a desire to profit), your claims over the word may be subject to challenge. Here's more on the subject.
Can you sell what you have? Sure, you can sell the domain names anytime, no problem. But we don't think anyone would want to pay for the "trademark rights" because you won't have any rights until the word becomes a trademark. That occurs after the mark has been used in commerce. We think this is one of those cart-before-the-horse situations and suggest you could save money on trademark fees by reading up on some of Nolo's excellent trademark articles.
Thursday, February 2, 2012
Wednesday, February 1, 2012
What happens if you don't include a CPA statement? Congress (in 17 U.S.C. Sec. 115) empowered the Register of Copyrights to create CPA regulations (found at 37 CFR 201.19,) for compulsory licensing accounting. (And yes, Annual Accountings under compulsory licenses must be accompanied by the CPA's statement, shown way at the bottom of this blog entry). Sec. 115 (6) provides that:
"If the copyright owner does not receive the monthly payment and the monthly and annual statements of account when due, the owner may give written notice to the licensee that, unless the default is remedied within thirty days from the date of the notice, the compulsory license will be automatically terminated. Such termination renders either the making or the distribution, or both, of all phonorecords for which the royalty has not been paid, actionable as acts of infringement ... "So, if we assume that failing to include a CPA notice places you in default, you would only be liable for any future sales (after receiving a notice of default). So perhaps an easy solution would be to pay off the remaining 79 CDs ($7.19). Once the publisher cashes that check (and assuming you don't press any more CDs), it appears that the CPA issue would be moot. Alternatively, if you don't want to pay it off and you want to continue pressing and selling the cover song, you could send a letter to the publisher explaining the situation and furnishing all of the documentation asking them to please release you from the onerous CPA requirement.
What's up with your CPA? We're lawyers so we can relate to the CYA mentality exhibited by the CPA. Standard accounting practices for small labels are fairly simple and easy to review and confirm. If you used a duplication service that can confirm 150 pressed CDs, and 79 CDs remain in inventory, it should be relatively easy for the CPA to confirm your accounting and to fulfill the requirements established in the statement, below. (As for your question, sorry, we don't know any CPAs.)
CPA statement that must be included. If you do manage to obtain a CPA's cooperation, the CPA must furnish the following statement:
"We have examined the attached “Annual Statement of Account Under Compulsory License For Making and Distributing Phonorecords” for the fiscal year ended (date) of (name of the compulsory licensee) applicable to phonorecords embodying (title or titles of nondramatic musical works embodied in phonorecords made under the compulsory license) made under the provisions of section 115 of title 17 of the United States Code, as amended by Pub. L. 94-553, and applicable regulations of the United States Copyright Office. Our examination was made in accordance with generally accepted auditing standards and accordingly, included tests of the accounting records and such other auditing procedures as we considered necessary in the circumstances."