Thursday, March 29, 2012


Bye Bye Form CO!
Dear Rich: You wrote on Twitter that that Form CO is "over." Does that mean I shouldn't use it any more for copyright filing? No, you can keep using it for a while but its days appear numbered. Alas, as much as we loved FORM CO, 87% of today's copyright applicants file electronically and don't bother sending in paper forms like FORM CO. So according to the Federal Register (scroll down to "Registration, Recordation, and Related Service Fees") Form CO and its exciting barcode technology will soon go the way of the Polaroid Camera and Betamax machine.

Wednesday, March 28, 2012

Using Colors on Labels

"Dear Scotts Miracle Gro:
Thank you for not killing me."
Dear Rich: We're designing a label for a new environmentally-friendly solvent/stain remover that we plan to launch.  We're fine with the name of the product but we're concerned about the use of colors on the labels. Some of our team are afraid to use colors that are used by other companies because we've heard about lawsuits. Do we need to worry? Worry? We'd prefer that you saved your worrying for things like whether your bird feed contains poison (and the company that sold it knew about it). But yes, you should be diligent about avoiding the colors or trade dress of well known competing brands. What's the difference between colors and trade dress? This previous blog entry explains most of the important details. It's true that some companies use their color scheme as a means to pressure the small fry (hey, there's that company again). At the same time, a savvy media response may help speed resolution of such disputes. But, in terms of liability, you'll really only have to be concerned about color if you're stepping on the same hues (not just the same colors) or if you're matching the overall appearance of the competing product. On the other hand, some colors serve a function and are more difficult to monopolize -- for example, green as used on environmentally friendly products. (Or green as when used on medical marijuana -- hey these guys are everywhere.)

Tuesday, March 27, 2012

New Craigslist Terms of Use: What's Up?

Dear Rich: I read your post about using Craigslist ads. Do you have any comments on the Craigslist Terms of Use as it has been updated Feb 14th 2012, after the date of your post? I believe the distinction between individual posts and cumulative content has been removed. I am particularly interested in exploring if I can manually aggregate interesting cars for sale on cragslist and repost them in my blog with a direct and visible reference back to the Craigslist posting. I am also hoping that I can reuse some of the pictures in those posts provided I clearly credit everything back to the original post. Is that ok to do? I am of two minds whether I run my blog commercially (would prefer) or non-commercially. Specifically because the new terms provide an exemption for non-commercial public archives I believe I could repost non-commercially. But what if I had adjunct commercial activity (like links to an Amazon store) but not inline with the purchase or sale of the product from Craigslist. Thanks for letting us know about the change in Terms of Use for Craigslist. The main rules, however, remain the same:
Any copying, aggregation, display, distribution, performance or derivative use of craigslist or any content posted on craigslist whether done directly or through intermediaries (including but not limited to by means of spiders, robots, crawlers, scrapers, framing, iframes or RSS feeds) is prohibited.
It's true that a limited exception is provided for "noncommercial public archives" but we don't think that a blog about cars for sale qualifies as a public archive. (We think Craigslist is referring to archives such as the Way Back Machine.)

We also note that under these new terms of use, users authorize Craigslist (CL) as follows:
You also expressly grant and assign to CL all rights and causes of action to prohibit and enforce against any unauthorized copying, performance, display, distribution, use or exploitation of, or creation of derivative works from, any content that you post (including but not limited to any unauthorized downloading, extraction, harvesting, collection or aggregation of content that you post).
In other words, when individual posts are ripped off, the poster gives CL the right to go after the culprit. That raises the ante knowing that CL's lawyers can also chase you if they're inclined. Finally, reposting of the automobile photos may or may not amount to a separate claim of copyright infringement by whoever owns the copyright in those photos. That depends on a few factors, including how much originality went into the photo or whether it's simply a stock reproduction of the auto.

Monday, March 26, 2012

Needs Music Producer Agreement

Dear Rich: I have your Music Law book but it doesn't contain an agreement that can be used with a music producer. I am an artist and need a producer agreement. There are a few music producer agreements floating around the interweb but before you start downloading, keep in mind that these agreements come in three major flavors:

  • record company/producer agreement. In this arrangement, a record company hires a producer to produce a song or an album. Even though the record company hires the producer, the payment typically comes from the artist. That is, the record company pays the producer and then later deducts that cost from the artist royalties. The royalties that are paid to the producer, often in addition to the producing fee, are also usually deducted from the artist royalty. So, for example, if the artist is getting a 15% royalty, the artist may have to pay 3 or 4% of that to the producer. This type of production agreement usually includes a few major components including: the producer assigns copyright to the label, the producer takes on some specific administrative tasks -- for example, hiring the studio or paying musicians, and the producer performs certain production tasks in terms of delivering acceptable master recordings. 
  • artist/producer agreement. In this case, the artist, not a record company, hires the producer. This is a common course of action for an indie artist who wants to release music directly or wants a suitable master to shop to a record company. In this case, there may be a flat fee (say $500 per song) and no royalty payments. This type of agreement would include an assignment of all copyright to the artist, as well as a detailed listing of the producer's obligations. Typically, in this situation, the artist pays for the studio and any extra costs. 
  • spec agreement - production company/artist. In this situation, a production company or producer agrees to produce a song or an album, often on spec (that is, without an upfront payment), and in return, the production company usually helps to shop the final product and obtains various future rights. These may include future royalties, part-ownership in songwriting, a percentage of any record company advances or even more, such as dibs on merchandise. 
Putting together an agreement? We're going to assume you don't need the first or the third agreements, mentioned above. Both of those are fairly complex and are usually prepared by lawyers.  You might be able to prepare an informal, enforceable version of the second type of agreement -- an agreement between an artist and a producer -- by yourself, particularly if you already know and get along with the producer. A bare-bones version would contain the following provisions: (a) an assignment of all copyright for work created, performed or produced by the producer,  (b) a schedule for payment and delivery, (c) a division of labor --  who does what and pays for what and a system for resolving disputes. Payment should be fixed (per track) and you may want to set it up to make the payment in stages based upon delivery of the tracks. You might also want to include an approval process although such provisions are tough to create and difficult to enforce. 

Wednesday, March 21, 2012

California App Developer Privacy Policy

Dear Rich: I'm working on an app that sorts through a user's Contacts and helps to build a family tree. We're ready to launch but I read there is a new federal law that app makers have to disclose privacy policies. What's the law and how do I create a policy for my app? It's not a federal law, it's a California law. However, unless you plan on avoiding all California app buyers, you'll need to abide by it if your app collects "personally identifiable information about Californians." Perhaps your app doesn't collect this type of information, and if so, you don't have to do anything. But if you do collect info (or you're not sure and want to avoid any potential liability), you should probably make a downloadable version of your privacy policy available to consumers. Here's where you can read about California's rule. Apparently, the potential fines for a failure are $5,000. It's easy to create a privacy policy; just look at somebody else's and copy what applies to your situation. Apparently, there are also free privacy policy creators online though we can't vouch for the results.

Tuesday, March 20, 2012

SEO Company Ruined My Web Site!

Dear Rich: I am a self-employed career coach who owns and maintains her own business web site. All of the copy on the site was written by me and has been painstakingly crafted by me over the past four years. From it I have garnered numerous new clients and many comment that it was the content of my site that drew them in. Last November I hired a company to perform SEO services on the site in order to improve its visibility on search engines. I signed a contract with them, committing to an $8,000 expenditure in order to receive guaranteed search results on the major search engines. Most of the contracted services pertain to meta tags, keyword optimization, indexing and back links. The contract explicitly states that the SEO company will be making recommendations to me for improvement of my rankings, and I am obligated to make those changes. No problem so far. They had not recommended any necessary changes so I believed all was well, and expected that when/if changes needed to be made they would let me know. Yesterday I noticed that the copy on my web site had been dramatically, horribly altered. Everything I wrote for the site is gone, replaced by poorly written text, bad grammar, typos and flat-out inaccuracies. For example, I charge a fee for an Introductory Session; yesterday I noticed the word FREE had replaced my fee on numerous pages. And this was the tip of the iceberg as it became clear that all of the copy on my site had been replaced by embarrassingly bad writing. This was a heartbreak. I was never informed that my copy would be changed, I never authorized the editing of my copy, nor did anyone at the SEO company communicate that it had made the changes. I only learned of this by accident when visiting my site yesterday. It appears that this abomination of my copy -- and my professional image -- has appeared on my site for a couple of weeks. (Thankfully, only a couple of weeks). I spent several hours yesterday repairing the damage they had done. Based on the terms of the contract, I can't sue the SEO company for non-performance of their SEO duties. Can I file suit for copyright infringement? Before we bring in the lawyers, let's consider some practical issues:
  • Did you pay the whole sum up front? If not, obviously, you should hold off on making any additional payments until this matter is sorted properly. Did you pay with a credit card; if so check with the provider to determine whether you can dispute the payment. Ditto for PayPal.
  • Are you sure that your contract states that you are obligated to make the recommended changes? That seems a little odd ... agreeing ahead of time to make unknown changes. Are you sure there isn't some sort of approval process? If not, your situation becomes a bit murky, especially because you apparently gave them access to your site in order to modify it.
  • Perhaps you can claim non-performance of duties. Just because the company mucked about in your website doesn't mean they performed their services. From your description of what happened, it sounds as if the company breached the contract by going beyond standard SEO techniques and interfering directly with your marketing. The fee-to-free fiasco seems particularly irksome. 
  • Where is the company located and what does the agreement say about disputes? If, by some miracle, the company is located in your home state, that will make it easier to sue in small claims court and recover. Does the agreement have a jurisdiction provision explaining where you have to sue, or an attorney fee provision guaranteeing the winning party their attorney fees?
  • If you gave the SEO company the keys to your site ... In case you haven't done so already, it's time to change the access password in order to prevent any further setbacks.
  • Have you informed the company of your displeasure? After you've reviewed all your options above, you should send a notice (see if the contract has notice requirements) informing the company of your displeasure and letting them know that you consider them in breach and -- for what it's worth -- that you want a full refund. This is sometimes a prerequisite for small claims court or credit card claims.
  • Can you sue for copyright infringement? Copyright infringement is the unauthorized use or modification of a work. If you gave the company access to your site and permission to modify, your problem will more likely be considered a contractual dispute, rather than a copyright claim.

Monday, March 19, 2012

Life Rights Agreement, Releases, and Permission to Tell a Life Story

Dear Rich: For the past couple of years I’ve been working on a non-fiction book about the Holocaust, specifically about two guys who escaped from a concentration camp during World War II and lived to tell the tale. I have done many interviews with them and they support this project and have given me verbal permission to use their story in this book. Nonetheless, I would think that both they and I would be better protected (from literary interlopers?) if we all signed whatever the document is called that gives me the exclusive right to tell this story. I'm not sure what the agreement is called -- a “life rights agreement" or “unlimited – or limited – personal release"? The agreement, as I see it, would also include ancillary rights, such as possible movie or television or other deals in the future; and in those cases, I would think that you do need some sort of legal release from the subjects of such a work. Is there a boilerplate form for this? Is there a form in one of your books? Or should I consult with an attorney? The document you'll need depends on how far you plan on taking this story. Below, we've outlined the range of agreements and what they accomplish. These documents may have different names, and many are referred to as "life rights" agreements but don't place all your trust in the title of an agreement; check that it contains the provisions that you require.

You are writing a nonfiction book about the subjects or making a documentary film and that's all you plan to do.
You would need a release from the subjects in which they agree not to sue you for defamation, invasion of privacy, right of publicity, or copyright infringement (in the event that the subject gives you permission to reproduce a copyrighted work). Here’s more about releases and here’s an article about when they are required. An unlimited release would probably do the trick.
You are writing a nonfiction book (or making a documentary film) but you also want to make sure that you have the exclusive right to do so and that the subjects won’t contribute to a competing book or documentary.
You would need the release mentioned above along with an exclusive grant that’s specifically geared to the project you’re working on – that is, exclusive rights to use the person’s persona, materials, and copyrightable works for a nonfiction book or documentary movie. An exclusive grant that limits cooperation with others usually requires a more substantial payment than an unlimited release (which may be granted for nominal payment).
You are writing a nonfiction book or making a documentary film and you would like exclusive rights/access to the subjects as well control over subsequent projects that may flow from your initial project. For example, you seek to control the rights that would be needed if a producer reads your book and wants to make a TV special based on it or a fictional film derived from it. 
This is when you need a life rights agreement signed by the subjects (sometimes called a “depiction agreement”), and you may also want to acquire “adaptation rights.” (This article explains some of the issues.). The life rights agreement is usually based on options – for example, you have the right to exercise an option for certain rights within 18 months or two years and if you don’t, those rights revert to the subject. Life rights can involve a wide range of issues including remakes, sequels, television series, merchandising, live stage and novelization rights. Here’s an example of a Life Rights agreement and here’s an example of a life rights option agreement for specific rights. (And here’s one for sale.) As usual, caveat emptor as we can’t vouch for accuracy or enforceability! An attorney’s help would best preserve your rights. Because you’re in the Bay Area, we would recommend contacting California Lawyers for the Arts.

Friday, March 16, 2012

Do I Register for One Mark or Two?

Dear Rich: I would like to register a word service mark and a logo (which are the initials of the word mark) at the same time if possible. The word mark and logo are not used right next to each other on the website, however, or in any other promotional materials. From the research that I have done I think that he will have to register them separately, but I wanted to get a second opinion if possible. Second opinions are always a good idea unless the first opinion comes from our favorite MD (left). In any case, our hard working staff concurs with your first opinion. As the USPTO points out, "Only one mark is permissible per application, although a mark may consist of several elements that are joined to form a composite whole (e.g., words plus a design)." We took a look at your web page and we think that you have two separate marks -- not one composite design mark. So, two applications are in order. By the way, we discussed initials as trademarks in a recent entry.

Wednesday, March 14, 2012

Copyright for Poets

Dear Rich: I have a relative who wrote poetry and we would like to collect his work and publish a volume of his poems. None of the poems have ever been published. How do we copyright this in his name? We love poetry (and here's a photo of one of our favorite poets). He turned us on to this poem and it made quite an impression on the Dear Rich Staff (For poetry students, here's one take on the poem; and here's another).
Right, you had a question. Poetry, perhaps the oldest form of literary work, is protected under copyright law. Your relative's work is protected automatically, but you can obtain certain advantages -- as well as placing your relative on record at the Library of Congress -- by filing a copyright application. You can register a poetry collection (this should help) by completing Form CO. And congrats on publishing a poet. "A poet's autobiography is his poetry. Anything else is just a footnote."--Yevgeny Yevtushenko.

Tuesday, March 13, 2012

Wants Copyright for eZine

Dear Rich: I am starting an online magazine (a quarterly) that will have both submission based content as well as contributors. Since this online magazine (e-zine) will not be in print to start, is it necessary to copyright it? As a writer myself I want to have a copyright in order to protect the submitted content as well as my columnists. When I contacted the Copyright Office for help they were a little confused about my question. Wow, we loved this crazy little zine back in the day! (We're so old we remember when social networking required a Xerox machine!)
Right, you had a question. We think the Copyright Office punted because you're actually posing several questions (not one):

  1. Do you need copyright protection for your eZine?  
  2. How do you get copyright protection for your eZine?  
  3. Who owns the copyright on contributions and submissions to your eZine? 
  4. If you don't own copyright on contributions and submissions, how do you get the right to reproduce them?

The answers.

  1.  Copyright protection works the same for print or digital publications. If you want to stop others from unauthorized copying you need to acquire rights under copyright law. Copyright is automatic and you don't need to register with the Copyright Office ... but it provides some advantages. This article explains the basics.
  2. You get copyright ownership for stuff in your zine by (a) creating it yourself, (b) hiring employees to create it, (c) hiring contractors under work made for hire agreements, or (d) getting the contributors to assign copyright to you. Also, you can get a collective works copyright on all of the articles in each ish. (Here's a recent entry on registering online periodicals.)
  3. The contributor owns the copyright in the submission unless the contributor is an employee, or  a contractor under a work made for hire agreement.
  4. You get the right to reproduce submissions and contributions by entering into agreements to transfer rights -- that is, either getting the author to assign all copyright to you or to grant you the limited permission to reproduce the submission in your digital zine.  You can find basic permission forms in our Getting Permission book.

Monday, March 12, 2012

Worried About Infringing Game Patent

Dear Rich: I am looking into possibly producing and selling a board game of my own design. I have done research into patent law and understand that patent applications are not available to the public for 18 months. So there is a "gap" where a patent may be in the works, but not available to patent searches. My understanding is that if I were to produce a product, my customers could be sued for patent infringement if my game ended up being in violation of some unknown patent. (Either unknown because of the "gap" I mentioned, or just an undetected.) Is this correct? Also, the theoretical unknown patent would likely have to be a method patent, as the types of game bits are not uncommon. As such, wouldn't that make the end user would the one actually infringing? If I pursue this business, is there a way to protect myself and my customers? It's true that an end user can be sued for patent infringement but that's rarely the case with board games. So, regardless of the patent issue, we doubt whether your customers would be in jeopardy.
Published patent applications. You're concerned that an unknown patent application will jettison your game. Keep in mind, you can't be sued for patent infringement until after a patent has issued --- that is, until after it's been officially granted by the USPTO. If you're concerned about recently published patent applications, you can review them at the USPTO's online patent gazette. When you review them, remember a few things:

  • just because a patent application is published 18 month after filing does not mean it will be issued, 
  • even if the application is issued as a patent, you won't be liable for infringements prior to issuance unless you have been placed on notice, and 
  • even if you were placed on notice, you would only be liable for infringements that occur after the notification. In other words, you should have sufficient time to consult an attorney and decide whether to halt manufacture and sale before a lawsuit could be filed. 

In summary, if you do withdraw the game in a timely manner prior to issuance, you will likely avoid liability.
Searching for board games. If you're searching for existing board game patents (not patent applications), this article should help. And if, after reading it, you feel your board game is sufficiently novel and nonobvious, you may wish to consider filing your own utility patent application, design patent application, or provisional patent application.

Thursday, March 8, 2012

Can They Do That to My Artwork?

click for our close-up
Dear Rich: For almost a decade I have been doing creative and artistic work for a non-profit organization. (I have been doing this for free because I support the charity’s work and ideals.) My work is later sold to the public and has been, for many years, the largest single fundraising project of the organization. Recently, however, when my current project was almost (but not quite) ready to go out to the printer, someone else in the organization volunteered to error-check and offer creative suggestions about my unfinished work. Then, entirely without my knowledge or permission, she took my project to our organization’s Board of Directors who decided, again without my knowledge or permission, to extensively edit my work and then send it out for printing. From my point of view they “butchered” my work, but the legal question is whether they had the legal right to make unauthorized changes to my work and then to publish it without my permission. Now, yes, they still put my name on it as the author and artist, but I was embarrassed to have my name associated with the finished product after all the changes they made. Let me also point out that in all the years I have done this, no one has ever asked for any changes of any kind to my finished work, so our relationship was such that my work was published exactly as I submitted it. I understood that the basic paradigm of intellectual property rights is that original and creative works belong to their creator. Since I never transferred possession or ownership to the organization, I feel that my work has been stolen. Do I have a case? Wow, your question took us so long to read that we started daydreaming about raccoons. We're not sure why ... maybe it's got something to do with those nocturnal muddy paw prints we've been seeing around during the day. (Click on the little culprit on the right.)
Right, you had a question. Actually, you have two questions: (1) Can they modify your work without your permission, and (2) Who is the copyright owner of the work? The first question is tied to the second because if you owned the copyright, any unauthorized modifications would be considered an infringement (unless excused as a fair use).  As to the second question -- you own copyright unless the work is considered a work made for hire (and we think the Supreme Court addressed your main question).
CCNV v. Reid. In this 1989 case, the Community for Creative Non-Violence ("CCNV"), a nonprofit dedicated to eliminating homelessness, decided to create a float for the Washington D.C. Christmas Pageant. One director conceived of the idea of a statue as an analogy to the nativity scene with a homeless family huddled over a steam grate. The CCNV hired a sculptor named Reid. After compromising on the material to be used, Reid prepared a sketch. The CCNV requested some changes. Reid agreed to create the statue and received a $3,000 advance. The CCNV constructed the steam grate portion of the exhibit. Reid delivered the statue and was paid a final payment of $15,000. After the pageant and a month on display, the CCNV wanted to take the statue to other cities. Reid, who now had possession of the sculpture, objected claiming that the statue was too fragile. Reid wanted to take the statue on a less demanding exhibit tour. Both parties claimed copyright in the work. The Supreme Court held that the sculpture was not a work made for hire because Reid was not an employee, as defined under law.
Proving you're an IC. To determine employee or independent contractor status the Supreme Court stated that the following factors are weighed:
  •  the skill required in the particular occupation; 
  •  whether the employer or the worker supplies the instrumentalities and tools of the trade; 
  •  the location of the work; 
  •  the length of time for which the person is employed; 
  •  whether the hiring party has the right to assign additional work projects to the hired party; 
  •  the extent of the hired party's discretion over when and how long to work; 
  •  the method of payment; 
  •  the hired party's role in hiring and paying assistants; 
  •  whether the work is part of the regular business of the hiring party; 
  •  whether the hiring party is in business; 
  •  the provision of employee benefits; and 
  •  the tax treatment of the hired party. 
Where does this leave you? We have a feeling that you fulfill IC status because you were not commissioned to create the work, apparently you were not paid for the work, and unlike the CCNV case, you conceived of the subject matter of the artwork. That would put the copyright under your ownership. Any unauthorized modifications made subsequently by the nonprofit would be an infringement. The nonprofit may dispute this and argue that you consented to the modifications and permitted the publication of the modified work under your name. These are all matters of factual proof -- for example, the courts would look at the emails exchanged or the documents that were executed.
Joint authorship? In the CCNV case, the CCNV did some supervision of Reid and contributed a portion of the work (the steam grate.)  A lower court later determined that the sculpture was a work of joint authorship -- that is, the parties had the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. We don't think you will have the same outcome, especially if you conceived of the artwork and prepared the initial work by yourself. However, because you're considering doing battle with the nonprofit, you should consult a copyright attorney in your area to get an opinion from someone who's privy to the work and the facts.

Wednesday, March 7, 2012

Will TM for Sports Journal Cause Problems?

Dear Rich: What is the likelihood of confusion and my being sued for copyright infringement if my publication about becoming a professional athlete has the same trade mark as a photographer who provides: "Educational services, namely, providing a blog, webinars, podcasts, seminars and educational conferences featuring educational information for individuals who desire to become professional photographers and distributing course books and DVDs therewith." Or are these dissimilar enough? I realize that I can apply for a trademark ($325.00) and or hire a lawyer, which I am ok with doing one or both, but want to test the waters before leaping. Whoops! Don't mind us while we disinfect your question by striking the reference to copyright infringement; here's an explanation of the difference between TMs and copyrights.
Similar marks and similar services? We can't predict how a trademark examiner will rule in your case but we can tell you about the standards that will be applied. The examiner will try to determine  whether consumers are likely to be confused by the two marks. Here's how likelihood of confusion is determined. The less "related" the goods, the less chance for confusion -- for example, SHELL as a trademark for flatware is not likely to be confused with SHELL as a trademark for liquified petroleum gas.
The zone of expansion. The examiner will also reject an application if the second user's goods are within the first user's zone of natural expansion. For example, a famous seller of wine such as Gallo might be likely to expand into the sales of cheese. Of course, the examiner's decision is dependent on the similarity of the marks and the fame and popularity of the first user. To get a good idea of how the USPTO rules in these matters, we recommend you search The TTABlog where these battles are regularly reported. Type "related goods" into the search box at the blog.

Tuesday, March 6, 2012

Columnist Wonders: Who Owns My Column?

Dear Rich: I recently left my position as editor of a weekly newspaper. During my 24-year stint at the paper I wrote a popular column and won many national and state awards. I am considering writing a book that would consist of a compilation of some of my columns along with personal recollections. I am in the dark as to what rights I have to my columns and whether I can re-publish them. The newspaper owners have been running a small copyright insignia for many years but for about the first 10 years of my employment, they did not. If you could shed some light, I'd appreciate it. Because you were editor, we're going to assume that you were an employee of the newspaper, not an independent contractor. In that case, the newspaper owns all rights to your columns. (We're assuming the columns were created in the course of your employment, not on your own time). If they were created on your own time (and away from work), you may have a claim to them (unless your employment agreement is to the contrary).
The copyright notice. If you've been writing columns since 1988, it probably doesn't matter whether the copyright notice was included. It certainly doesn't matter for any columns published after March 1, 1989. (No notice was required after that date.) If the notice was omitted from columns published before that date, the works could still be covered by the newspaper's blanket notice, typically included on an editorial page or some similar page.
What should you do? We can't predict the results but we would hope that the newspaper wouldn't have any objection to your reproduction of the columns in your book. (Perhaps you can argue that you're promoting the goodwill of the paper.) They don't have to give up the copyright (although you could ask for that) in order for you to use the columns in your book. If they give permission, get it in writing. It can be short and simple -- something to the effect of "We license to you the right to reproduce XX columns in your book tentatively titled "My 24 Years as Editor." If you're looking for a more detailed agreement, check out our book, Getting Permission.

Monday, March 5, 2012

Realtor Wants to Assign Photo Rights

Dear Rich: I’m a Realtor and I take hundreds of photos of my listings every year and write the copy for publication. I compile the information that is then used by our local multiple listing service. I am being approached by multiple vendors I do business with wanting me to give them my copyrights to my photos and text. Is there a copyright that will cover my work as whole, both existing and future listings, without my having to file a separate copyright for each listing’s photos and text?  Just so we're clear ... You take the photos of the properties and as photographer, you own the copyright in each photo. Certain vendors want permission to use the photos, is that right? Or do they want to own all rights to the photos?
If the vendors just want copyright permission ... In that case, you can write a statement to the effect that "I own copyrights in all photos that I furnish to you and I grant you permission to reproduce the photos for your [name of site or publication] and I retain all other rights." (You can find more nuanced language in our Getting Permission book.) A license allows you to retain copyright and permits the other party to use the photos. We'd recommend that you seek a license rather than assign your rights (this article explains the difference).
If they want to own all rights ... In that case, you need to assign your rights in each photo. When you do that, you won't retain anything. You would do that with a statement with each photo or batch of photos that you furnish. It would be something to the effect of "I assign all copyright in the following photos: [list the photos by the property addresses] to you." Of course you might want something a little more formal. This statement can be by email as long as you follow the rules shown here. If you assign, you can't reproduce the images yourself unless you get permission from the new owner.
Do you need to file a copyright application? No. Copyright is automatic in the U.S. and you get it once you click the shutter on your camera. Registration, though recommended, is a formality that provides certain legal benefits. You don't have to register copyright to license or assign your rights.

Friday, March 2, 2012

"Revising" Photographs: When Is it Fair Use?

Dear Rich: I am writing in concern of my use of already existing photographs as a source for my artwork. As a print maker, at times, I base my work on the photographs of others. Sometimes I am able to gain permission from the creator of the photograph and other times I have no luck with the correspondence at all. For the work itself I build a theme around a source photograph. From that photograph I cut a stencil that re-creates the image in a graphic way. The finished product may be recognizable to it's original source but is not a direct replication. I make a very limited run of my final work ranging from 1-23 pieces. Some of the work is produced for gallery shows, murals, or to be sold as prints. Sometimes the work finds it's way into a book documenting art. So my question is where is the line drawn between fair use/transformative use and copyright infringement for images? Asking the Dear Rich Staff to define the line between fair use and infringement is a little like us asking us to define the line between art and nature. We can define fair use (and we've done so at this site) and you can review caselaw and look for comparative fact patterns. But in the end, to paraphrase Marshall McLuhan, fair use is anything you can get away with (P.S. we love MM. Can you believe he wrote this 45 years ago?). Fighting over a fair use claim comes down to a lot of time spent with lawyers and -- as in the recent Richard Prince case --  the outcomes are not always favorable to artists.

Thursday, March 1, 2012

Who is the 'Author' of Band's CD?

Dear Rich: I have a question about the sound recording copyright. My band recorded a CD. I own the master. Who should be listed under author? Do I include cover tunes since it’s the sound recording, not the words and music being registered? Just so you're clear (and we think you are), your sound recording copyright won't protect the songwriting; it will only protect the particular series of sounds that are “fixed” or embodied in the recording. You should read Circular 56 if you have any doubts about what the copyright protects.
Who is the author of a sound recording? The author of the sound recording is the person(s) who  performed, produced and fixed (or recorded) those musical sounds. Typically that would be the musicians, the engineer and the producer. If you paid all these people to contribute their efforts as works made for hire, then you could be listed as "author" on the application. If not, you would (1) list the authors, and (2) have them all assign their rights to sound recording copyright to you, and (3) list yourself as "copyright claimant." Having the written assignments is a requirement of copyright law but in reality, many copyright claimants for sound recordings don't actually have all of these assignments. Their approach is that such documentation is only needed if someone challenges their rights, which is usually unlikely.
Should we include cover tunes? You should include all of the songs on the albums in your sound recording application. That's because the copyright only protects the versions you've recorded, not the underlying songs. That's different than if you've sampled someone's recording and included it. In that case, you need authorization to use the sound recording. We've written about that before.
P.S. All this talk about masters and new recordings has got the Dear Rich Staff excited about their own soon-to-drop new sound recording copyright, a clip of which is included above.