Monday, April 30, 2012
Nicknames. The legal right to exploit a player's nickname may belong to that player, particularly as with Linsanity, where the nickname incorporates the player's surname. In that case, the player may be able to assert right of publicity claims or trademark claims. As the search results for Linsanity show (above), there are presently nine people vying for the Linsanity registration for products ranging from computer software to perfume (Bouquet de Gym Socks?). We think, except for this applicant, most applicants will likely have wasted their $345 application fees.
Friday, April 27, 2012
Right, you had a question. You can't submit your songs directly to iTunes. You'll need to go through a distributor, probably either CDBaby or Tunecore, as they have emerged as the main routes to digital distribution. You affiliate with one of them, upload the MP3s and these companies take care of the rest. Both services distribute to a host of download services including streaming services like Spotify, and download services like Rhapsody and Amazon MP3. They both usually manage to post on iTunes within two days of the hand-off. What's the difference between the two? The main difference is that CDBaby takes a 9% cut of your net revenue from downloads. Tunecore doesn't take a cut, but requires that you pay an annual renewal fee per album. Here's a summary:
- CDBaby. CDBaby will sell your physical CDs as well as distribute and sell your digital downloads. (If you just want to go digital and forego physical sales, you can do that as well.) There's a one-time fee of approximately $50 per album or $10 per single. You upload the music and artwork and they get your stuff out to everybody. The company keeps 9% of digital net sales. So after iTunes takes its 30% cut of each download, CDBaby takes 9% of the remainder and pays you the rest by PayPal. You get a CDBaby product page at their website and a fairly sophisticated dashboard so you can learn exactly who in Kazakhstan is buying your music. CDBaby can also handle synchronization licensing services. (Disclaimer: We've used them for years and have never had a problem.)
- TuneCore. TuneCore only handles digital distribution. (You cannot sell physical CDs.) Your band simply uploads your music and artwork and the company takes care of the rest, distributing the downloads to all of the major (and minor) players. The one-time fees for registering an album or single are similar to CDBaby: approximately $50 per album and $10 per single. However, Tunecore doesn’t take a cut from your digital sales. Instead they require that you renew each album and single annually (currently that's $50 per album, $10 per single). The company, through their relationship with IndieMerchandising (www.indiemerchandising.com) also offers merchandise production services.
- The others. A few other companies also attract customers in this competitive space. Among these are BFM Digital, ONErpm, and indieheaven.com. We have not researched these services so we can’t provide information except to note their existence. The Orchard, and IODA also offer digital distribution but they're more selective about who they handle and you must apply and get approved before they will deal with your music.
Tuesday, April 24, 2012
Right, you had a (broad, almost unanswerable) question. Considering that about six zillion pages have been written about patenting an idea/product, we'll try to steer you to a few sources of information that we find reliable (mostly, because we wrote them). To learn the basics of patenting, check out two sites we've worked on: Nolo's Patents and Business site has a fairly thorough explanation of the requirements and limitations of patent law; and Nolo's Patent Law and Inventions topic page provides some serious overlap. Of course, there's also a lot of great free information at the U.S. Patent and Trademark Office site, too. As for the regions that are "covered," the general rule is that your patent extends to the territorial boundaries of the country in which you have registered. Patent registration beyond the U.S. and Canada is complex, expensive and comes with time constraints -- for example, if you file in the U.S., foreign patent applications must be filed within certain times periods. Here's free information about international patents. (By the way, if you're planning on filing a patent without an attorney's help, the bible for DIY inventors is Patent It Yourself.)
Monday, April 23, 2012
Right, you had a question. The copyright in the poems (and therefore the right to control reproduction) is owned by the estate of the family friend and it lasts for seventy years from the poet's death. Therefore, if you publish without permission, the estate (we'll assume it's the daughter) can halt your publication, or seek financial damages (or both). Is there any chance you can obtain permission for a limited publication for your purposes? Is the daughter aware of the existence of these poems? If not, she may be confused as to how to move forward. Let us know and we'll make that the subject of a separate blog entry.
Friday, April 20, 2012
Right, you had a question. You're really talking about three things: (1) how you get paid, (2) how you get credited, and (3) how you register the copyright. Let's take a quick look at each.
How you get paid. If you have decided that songwriting royalties will be divided equally, you should write that into an agreement signed by A, B, C and D. These songwriting-splits arrangements are usually found in band partnership agreements (and we've included some examples in our Music Law book). The songwriters will also get paid for public performances by performing rights organizations (PROs) such as BMI and ASCAP. In other words, all of the songs and songwriters (and their shares) need to be registered with an appropriate PRO. However, you can probably wait on that until after you're getting sufficient radio, or webcasting (Pandora or Live 365) play.
How you get credited. Credit and payment are distinct. So, however you credit the songwriters, it shouldn't affect how you get paid (assuming there's an agreement about payment in place among the songwriters, as discussed above). For consistency's sake, you should probably agree on something --for example, "all songs written by A & B, arrangements by C & D" -- and include that 'credit language' in the band partnership agreement as well.
How you register songwriting copyright. If you file an application for the song copyright (which is a good idea but not a prerequisite for copyright protection), you must list each person who has contributed to the songwriting and their contribution. If you're filing online (see below), for example, you would simply check a box (or boxes) indicating whether the author's contribution was music, lyrics, or musical arrangement. You should keep it simple and avoid the "Other" box, if possible. The Copyright Office doesn't care who is getting paid or what their percentages are. It merely wants to keep track of the songwriters. (Again, all this is discussed in our Music Law book.)
Tuesday, April 17, 2012
What about British copyright law? Whenever we venture outside U.S. copyright law, we must disclaim that our knowledge is cursory. That said, there's no equivalent to Section 203 in British law. Britain does have a reversionary right that permits the termination of transfers (made by the author), 25 years after the death of the author. So, for example, the heirs of Ian Curtis, the songwriter for Joy Division, who died in 1980, could terminate his assignments and reclaim all his rights in 2005. Section 14 of Canada's copyright act provides a similar rule (though most of the other former British colonies have not adopted the principle).
Monday, April 16, 2012
Is it worth it to register? According to our research, BandName.com is an online directory of band names that you can search at least six times without having to pay a fee. After six searches, there is a $15 fee that enables unlimited searching and registration of your band’s name. If you're doing a lot of searching for band names, it's probably worth the $15. Bandname.com appears to be a fairly thorough band directory that includes bands that have registered and more importantly, many who have not. We tested two obscure bands that had not registered with the service and they both showed up. At the same time -- and as the site points out -- just because a band name is in the directory doesn't mean that the name is currently in use.
What does registration of the band name get you? We’re not sure what the registration of a band name at BandNames.com gets you … apparently your band’s name is included in the online and print directories, thus serving as notice to others searching the directory that you are claiming rights in the name. It’s true – as the website claims – that establishing prior usage is the key to preventing legal challenges. But registering at BandNames.com does not establish prior usage, it merely records your claim. You establish prior usage by selling recordings, playing shows and by selling music and merchandise on the Internet under the band name. In other words, much as we like it as a search engine of band names, we don't think that registering with the service will gain any new rights for you.
Thursday, April 12, 2012
Fair Use? Using a copyrighted work for a transformative purpose may provide a fair use defense. But we're not clear why you believe your use is transformative. It seems like you're using the definition for the intended purpose -- to explain the meaning of each word. Similarly, just because your project is mocking the idea of literary comprehensibility, doesn't make it a parody. A parody is a work that ridicules another, usually well-known work, by imitating it in a comic way. Typically, the work that is borrowed -- in your case, the dictionary definitions -- is the work that's being parodied. That doesn't seem to be the case here. If you were only using one or two definitions, you might be able to argue fair use (or the merger doctrine). But considering the large number of borrowed definitions, we're not seeing a safe defense. Of course, as we always note in our windups, MW's lawyers may not see or care about your project, so you could always consider forgetting about us and our square opinions!
Wednesday, April 11, 2012
Right, you had a question. Yes, we believe that coloring in, tearing out, and then selling pages from Dover Publications is permissible for a few reasons. Without first considering copyright law, we can't imagine that Dover -- a company with a lot of goodwill amongst crafts artists -- would pursue legal claims against an 60+ artist selling single images from their mandala books at a crafts fair. (They'd be headed for a variation of the Streisand Effect!) In any case, you could probably make a decent claim under copyright law that your use is justified by the first sale doctrine. (Note that the first sale doctrine can be a complicated pointy-headed kind of issue, as we discussed in a previous post.)
Dover's Policy. In any case, we looked at Dover's policy as expressed in one of their Mandala books. Reproductions by a graphics service (you're not doing that) are prohibited. The policy also states:
"You may use the designs and illustrations for graphics and crafts applications, free and without special permission provided that you include no more than four in the same publication or project."We're not sure that applies to what you're doing -- you're not assembling a publication or project -- but we think it indicates a level of tolerance for crafts people with similar projects. We think as long as you avoid selling reproductions of your images, and as long as you avoid using coloring books that specifically prohibit what you're doing, you should have a green light for your plan.
Friday, April 6, 2012
Thursday, April 5, 2012
Right, you had a question. If you don't already regret asking your question, you'll surely regret it once we start spouting this answer. If you want your book to be published by somebody legit -- that is, more than a publish-on-demand limited edition -- you'll have to get permission. That's because if you're seeking a publishing deal, that deal will likely require that you get permission and indemnify for all rights. And the photo permissions may be a little complex because you're not seeking to reproduce the images -- you're seeking to modify them so that they can be used in a coloring book (known as creating a derivative). In other words, the standard stock photo license won't work. If you hired an artist to recreate these photos, the rules would likely be the same (Although if the artist uses sufficient creative license -- resulting in less similarity -- there's less need to seek permission, as described below). Of course, all of this is based on the likelihood that a copyright holder will find your work.
What should you do? If you're really gung ho about this project, we'd suggest hiring an artist with a distinctive style that will be applied consistently throughout the book. Give the artist photos to show the appearance of the musicians but instruct the artist to change the clothing, settings, placement, and other elements so that the resulting work isn't similar to the supporting photos -- it just looks like the musician and is part of a consistent overall look and feel to your book. And yes, btw, you will need to get permission from the artist (you can find an appropriate form in our Getting Permission book) Rock on!
Wednesday, April 4, 2012
Questions to ask: But if you're concerned, you should ask why your attorney favors incorporation. If he or she can't explain why in a way that you can understand, then get a second opinion. There are really only three reasons to incorporate: (1) it may provide tax or other financial benefits, or (2) it limits your liability, or (3) the corporate governing structure makes it easier to obtain investment. If it's for reason one (taxes), ask about the benefits and make sure you understand the principal of pass-through taxation. If it's for reason two (liability), ask why an LLC (or insurance) won't provide similar benefits. If it's for reason three, ask why the incorporation needs to happen, now. Why not wait until the investment is imminent? To help you learn more, here's an article for inventors who incorporate.
Tuesday, April 3, 2012
Monday, April 2, 2012
Right, you had a question. Back in the day, the "usage method" (consistent use of the new name) was a great way to change your moniker but in these indentity-fraud, post-9/11 days, the recommended approach is to change your name using a court procedure. Every state's law differs but usually the court procedure means filing a petition, or alternatively, getting a court order as part of some other proceeding such as divorce or citizenship actions. By the way, once you change your name in one state, that name will be effective throughout the U.S. (If you're interested in changing your name in California, we recommend How to Change Your Name in California.)
Should You Register Your Name as A Trademark? Registering your name as a trademark and changing your name are two different worlds. You would change your name primarily for legal purposes -- that is, so that your name would be used in all documentation and official paperwork. You would register your name as a trademark to exclude others from using a similar name for similar goods or services. We don't think trademark registration is essential for a performer, unless that performer is offering non entertainment services or products -- for example, as when a rapper lends his name to headphones. Someday it may be worth your while to register the name for entertainment services but until then you can invoke tort claims such as unfair competition or common law trademark claims against an interloper who tries to steal your good name.