Thursday, June 28, 2012

Is German Autobiography in Public Domain?

Hermann Stehr
Dear Rich: I'm trying to ascertain the US copyright status of Hermann Stehr's autobiography Mein Leben. It was published in Germany in 1934 with a copyright notice, but as far as I can tell never published or renewed in the US. The author died in 1940 and so is now out of copyright in Germany, but was not out of copyright in Germany in 1996. Based on this information, would it still be under copyright in the US? Mein Leben is not in the public domain in the U.S. We initially posted incorrect information (and we were fortunate to have Peter Hirtle review it and explain our error). According to Peter:
"The work would have entered the public domain 28 years after publication because of failure to renew that copyright in the U.S. Its copyright would have been restored under 104A on 1 Jan. 1996. On that date, it received "the remainder of the term of copyright that the work would have otherwise been granted in the United States if the work never entered the public domain in the United States." That was 75 years (since extended to 95 years). See my chart on the public domain in the U.S. Assuming that copyright in the work was never administered by the Alien Property Custodian and its restored copyright would not be owned by a government, this work is still protected by copyright in the U.S."

Monday, June 25, 2012

Can I File for PPA in Foreign Language?

We already answered this question once but we loved our infographic (and the information is still current) so we brought it back for an encore.

Friday, June 22, 2012

Wants to Use a 'Maker' Mark

Dear Rich: We are planning on starting a web-based company for 3D design printing and we will be using the term "Maker"and another word in the name. As it happens, there already exists a hardware company who makes personal 3D printers that uses the term "Maker"(with another word) in their name. That company did not create the idea of the 'Maker,' for 3D printing but they obviously capitalize on its connotations. What precautions should we take to avoid any potential infringements or legal issues? If you're considering a name that is similar to an existing name for similar goods and services, then you should either (a) consult with a trademark attorney for a legal opinion as to whether it's infringing, (b) go ahead and use it and see if the company cares (or if they do, whether they'll actually sue), or (c) do as much research as you can and make an educated guess as to whether it's safe to proceed. (Considering that "Maker" and "Make," are now synonymous with gadget hacking and DIY projects, then what better DIY project to pursue than the last option, right?)
Research, research, research. Dozens of companies use "Maker" as their mark (and let's not forget "Maker's Mark"). What matters is whether your name is likely to confuse consumers of the 3D printing company ( or any other similar-named company within your industry). So, you will need to familiarize yourself with standards of "likelihood of confusion." Then, you need to do a trademark search. Fortunately, we're here to help with a handy video explanation of how to do that. (By the way, besides searching the U.S. Patent and Trademark Office (USPTO), you can also search at Trademarkia.) When searching, search within in connection with your goods or services using the single term "maker," and then again using the compound of "maker" plus whatever second term you are planning on using preceding or following "maker."
Feel good? Register. If you feel confident about moving ahead, you may want to federally register the trademark as that creates a presumptive right to your use. You can learn registrations basics and also how to deal with any objections after you submit your application to the  USPTO.

Wednesday, June 20, 2012

Company Wonders About Indemnity Clause

Dear Rich: We're planning a company event and hiring an event planner and he sent over a contract with this clause? Is this standard? If so, we won't worry about it. We just thought these things were usually more of a two-way street.
Indemnification. The Client agrees to indemnify, save and hold Planner harmless from any and all liabilities, claims, injuries, accidents, or actions of any kind whatsoever resulting from or arising out of performance of this agreement, whether by rendering services and/or rentals of props and other products, services and equipment. The Client further agrees to indemnify, save and hold Planner harmless against any arrearage or deficiency resulting from misrepresentation, breach of warranty, or from non-fulfillment of any agreement on the part of the Client under this contract, including but not limited to all actions, reasonable attorney’s fees, proceedings, demands, assessments, judgments, reasonable costs and expenses incident to the foregoing.
We don't know if it's "standard" for event planners but it's a typical scorched-earth overkill indemnity provision that's intended to relieve the planner of any liability.  
What is indemnity? Indemnity is a powerful shield that is typically invoked to get one party to defend the other against third-party claims. For example, if someone (a third party) is injured at the event and that person sued the event planner, you would have to defend the lawsuit. That's not an extraordinary request by the event planner, but this provision goes further. By not limiting indemnity to third-party claims it illogically implies that you would have to pay for a lawsuit brought by the planner, even if it is brought against you and based on his negligence. Plus, the first sentence follows a kitchen sink approach and seems to require that you pull out your checkbook for any possible contingency ("actions of any kind whatsoever"). Ideally, you should only have to indemnify for actual legal claims filed against the planner.
Rule of the last antecedent. The last sentence has a common contract drafting problem. It includes a list of conditions ("misrepresentation, breach of warranty, or from non-fulfillment of any agreement"), separated by commas, the last of which includes a qualifier ("on the part of the Client"). We assume the qualifier is meant to apply to all conditions --  Client's misrepresentation, Client's breach of warranty, and Client's non-fulfillment of any agreement --  but if we applied the rule of the last antecedent, the qualifier would only apply to the final condition ... leading to a bizarre outcome in which your company might arguably be required to pay damage resulting from the planner's false statements. We assume this wouldn't happen and a court would take a more common sense approach.
In an ideal world ... If the provision were revised to consider these issues, it might look like this
Indemnification. The Client agrees to indemnify, save and hold Planner harmless from any and all third-party claims resulting from any Client misrepresentations, or breaches of Client warranty, or from non-fulfillment of this agreement on the part of the Client, including but not limited to reasonable attorney’s fees and reasonable costs.
Should it be mutual? Indemnity isn't always a two-way street and these clauses are often one-sided—that is, one party provides the indemnity and the other stands to receive it. But they can be mutual and an attorney looking out for your interests might seek an indemnity provision protecting your company against third-party claims arising out of the planner's negligence, misrepresentations or failure to properly perform his job.

Monday, June 18, 2012

IP Resources - Sunnyvale Talk

utility patents  - Patents & BusinessNolo's Patent Law

trade secrets - NDAs for Free

design patents - My Design Patent

copyright -  Stanford Copyright and Fair UseNolo's Copyright Law

trademark - Nolo's Trademark Law,  Nolo Trademark SearchNolo's Guide to Trademark Registration

provisional patent applications - Nolo's Guide to Provisional Patent Applications

Does Site Owner Own Blog Post?

Dear Rich: Are an author’s blog posts the copyrighted material of that author, regardless of whose blog he or she posts on. Example, your blog is Nolo’s IP blog but if a post is authored by you, the words you wrote would be yours and you’d be free to republish in another work you write, right? I have a friend who is part owner of a site who wrote some blog posts based on company materials. But the words and thoughts are clearly those of the author/part-owner and every post has a byline to the author/part-owner. So who's material is it? For the sake of full disclosure (and even without FTC goading) the Dear Rich Staff acknowledges that it is employed by Nolo and this blog is created within the course of our employment. That makes Nolo the copyright owner. In other words, once these words ejected from our cerebrum and fixed on this screen, we relinquished ownership (a disclosure likely to haunt us during a future deposition.)
Author/Owner issues. In your question, the blogger is not an employee. Typically, the only way that a non-employee gives up ownership to blog material is by a written transfer (typically an assignment or a work made for hire agreement). But in your question, the blogger is a part-time owner. That raises a different set of issues. What type of business form is it -- partnership, LLC or corporation? If it is a corporation or LLC and the blogger is an officer, the blogger/owner may have written or fiduciary obligations. Alternatively, the corporation's or LLC's owners may have obligations not to compete -- something that might occur if the material was used for other purposes. If it is a partnership (the default for a group of owners who don't do anything formal), is the blog-writing considered part of the blogger/partner's contribution? That may affect claims to ownership. Finally, if the blog is derived from existing company-generated material or research there may be co-authorship or co-ownership issues. That doesn't mean the blogger can't republish it ... but the blogger would have to account to the co-authors if any money was earned.

Friday, June 15, 2012

Dear Rich Staff Live in Sunnyvale 6/18

just when you thought it was safe to watch a Powerpoint .... Monday, we're live in Sunnyvale to discuss Five Ways You Can Protect Your Great Idea Without Filing a Utility Patent.

Who gets copyright in book publishing contract?

out of print -- The Book Of Wonders
(late 14th Century)
Dear Rich: Is it standard in the industry today for authors to retain copyrights to nonfiction works, or are most copyrights registered in the publisher’s name? The trend since the mid-1990s (when we all started going digital) is for publishers to acquire copyright in the publisher's name. However, this has been characterized as a "ghost issue" (scroll to Question #2) in author-publisher negotiations because no matter under whose name the copyright is registered, the publisher always controls the rights granted in the publishing agreement (and it should be clear that rights not granted to the publisher are reserved by author).
There may be some administrative advantages for the publisher to acquire protection in its name (and it used to make it easier to proceed against infringers) but what probably matters more than the name of the copyright holder, is whether rights will revert under the publishing contract and what triggers reversion. In today's digital publishing universe, the issue often comes down to when a book is considered to be out of print -- many authors are arguing for a standard based on a limited number of sales per quarter. Here's a related blog entry on the subject.

Tuesday, June 12, 2012

How Do You Opt Out of Craigslist Terms of Use?

Dear Rich: I was curious how someone would 'opt out' of the Craigslist user agreement. It seems to me that being forever tied to a changing user agreement, if one isn't posting ads anymore, isn't right. There seems to be some confusion as to whether a Craigslist account can be terminated. Craigslist doesn't appear to have a posted policy. Some maintain that sending an email to CL's tech support will eventually do the trick. Others propose various workarounds such as changing your profile to include a fictitious email address or simply being inactive for four months which deactivates (whatever that means) an account.
Constantly changing EULA. As for your comment about the end user license agreement (EULA) that's constantly changing, we assume you know that's par for the course on the Internet where most EULAs reserve the right for the website to change terms arbitrarily. Look for a statement such as "Company reserves the right to modify and/or change any of the terms and conditions of this EULA at any time and without prior notice." The simplest solution to avoid having these newer user terms enforced against you is to stop using the site for all purposes.

Monday, June 11, 2012

Wants to Fictionalize Baseball Blogs

Dear Rich: I am in the process of writing a fictional novel. Part of the novel involves a romance with a minor league baseball player. Since I know nothing about life in the minor leagues, I've been reading baseball wives blogs. I was hoping to base some of my material on the material written in these blogs. Is this a case where I would need a life rights agreement from the writer of these blogs, or is it considered public domain now that it is written on the Internet? Most of the material from the different blogs is similar in content, and since the story is fictionalized, I think they would have a hard time relating the incidents in the novel to their own blogs. Again, I wouldn't take any specific information, just base my fiction off of their real-life incidences, and for only a portion of the novel. What do you think? We were going to say, "No worries," but we couldn't do it. We think 'No worries,' like it's cousin, 'No problem,' is just another responsibility-shifting language gambit. For example, when we announced that the coffee pot was empty at our local cafe, we were told "no worries," as if we shouldn't feel bad (or we should) for "worrying" about the lack of caffeine. A more traditional response would have been, "Okay, I'll bring you a fresh pot," (or the employee could have said nothing -- grumpy employees are fine with us). We believe 'No worries' is a subvariant of 'whatever' and that its  Australian-U.S. transmutation is a result of a misreading of Meher Baba (who did incorporate responsibility).
Right, you had a question. It's fairly common for novelists to do what you're doing -- fictionalize anecdotal material from true life stories. The case law on the subject leans heavily towards permitting fiction writers to use facts and stories from real life.  Generally, there are two things to keep in mind if you want to be free of hassles.
Avoid using material in a manner in which a specific person can be identified from the retelling. Changing settings, names, dates, etc. can all prevent someone from making a claim that readers identify the characters with specific individuals which could in turn give rise to claims of defamation (if the story weren't true) or invasion of privacy. For example, you are certainly free to create an evil antagonist in your novel who is an ex-hall of famer, owes money to the IRS and is trying to buy a baseball team. But you shouldn't set the story in San Diego, name the character Gwynn or Tony (or something similar) and have him team up with a movie producer. This article explains how to put distance between your fictional character and a real life counterpart.
Rewrite the adventures so that that you only borrow the underlying facts. Avoid claims of copyright infringement by not lifting the language or unique expression provided by the blogger (not merely the anecdotal material or underlying facts). Check out this article for more on copyright, novels and facts.
Animated Gif Dept. Thanks to our readers for finally telling us to turn off the flashing GIFs (sorry, but we need to keep the CLA banner ad on for a few more weeks). Who knew there were government guidelines?

Wednesday, June 6, 2012

How to Find Quotes to Use on Greeting Cards

Dear Rich: I have created a card line from my art. I want to use inspirational quotes. I was able to contact Mary Oliver's staff and they said no. Anais Nin's estate want money to use them. Other than those two I am having a hard time determining. Rumi? Rilke? Movie quotes? Music quotes? Others I haven't heard of before but have lovely things to say. Can you help me sort it out? First, the animated GIF issue. As regular readers may have noticed, we've settled down quite a bit and we seem to be finding our pace. Thanks for your helpful comments and feedback.
Right, you had a question. Attempting to negotiate permission from famous poets or songwriters (or their estates) can be expensive, frustrating and time-consuming. If we may recommend an alternative, legal course to pursue -- find similar writers whose works are in the public domain. One way to find out what potential consumers might like is to use Google's new Knowledge Graph feature. If you type Mary Oliver into Google, for example, a box appears on the right of the listings (see above) showing you what Oliver-searchers are also searching for (surprise - Jalal ad-Din Muhammad 'Rumi' is No. 1). How do you know which writers are in the public domain? This article provides the basics and if you need more help, consult Steve Fishman's helpful book.

Tuesday, June 5, 2012

When Can Inventor Claim Net Operating Loss?

Dear Rich: My co-inventor and I have a partnership and we've spent a few thousand dollars working on an invention. Can we deduct our losses from the partnership's income tax return, or do we do it individually on our separate returns? First, let's address the animated GIF issue. As we have indicated previously, we're caught up in something that's apparently difficult to control. We know the effect cheapens our blog and makes it seem as if we are now accepting banner ads from car insurance companies (which, hey, we're not against doing if the numbers worked out). But these days when we reach in our mailbag, our overriding criteria for choosing a question is whether it lends itself to a GIF. And our holy grail is to find a question that we can answer solely with an animated GIF. Stay tuned!
Right, you had a question. We're not tax experts but we do know enough about taxes to tell you that a partnership's return is "informational" and that a partnership is a "pass-through" entity, which means that the profits and losses pass through the partnership to the individual owners. Whether the partners can deduct a net operating loss (NOL) depends on your ability to show the IRS that your inventing activities are a business, not a hobby, that you  keep accurate records of your expenses, and that you have a legitimate legal basis for your deductions. Assuming you can do that, you may be able to use your NOL deduction either going forward (in future tax years) or apply it against past returns. There's more on NOLs in this IRS booklet and we've also got an article explicitly on the subject of  NOLs and inventors.

Monday, June 4, 2012

When Does a Version of a Song Qualify as Fair Use?

Dear Rich: I am working on a tribute album and I'm trying to figure out the distinction between derivative works and transformative fair use.  At what point is a song transformative enough to be considered fair use, vs. a derivative work? And how can I use this knowledge to negotiate with publishing companies, prior to recording/selling and performing the songs? If I am not given permission to create or sell a derivative work and I only perform them live, what is the risk and potential liability of infringement? Sorry, we would have gotten to your questions sooner except we've been obsessed with creating animated GIFs ever since Photoshop Elements 10 arrived (finally, you can change the timing on the animation). We expect to get over it soon, and yes, we know they're annoying to watch. 
Right, you had a question. If you're doing a tribute album, we assume you're doing cover versions of existing songs and that it is a "tribute" to a band or performer. There are two legal rules at work here.

  • Compulsory license. First, under Section 115A of the Copyright Act, a music publisher must permit you to record any song that has previously been recorded and released to the public. However, you cannot use the compulsory (mechanical) license if you change the basic melody or fundamental character of the song. For example, a singer cannot alter a song’s lyrics without permission. That said, many people change elements of songs without a problem (as we mentioned in this previous entry).
  • Derivatives and fair use. A derivative work is one that is based upon or modifies an existing work. A fair use is when an existing work is used in such way that a court, balancing four fair use factors determines that permission is not required. The transformative quality of the work is an important factor but so is another factor -- the amount and substantiality of the portion taken. In most music cases where fair use is found it's because a relatively short segment of the original work is used. We don't think providing a full-length cover of a song will qualify as a fair use -- even if it is as transformative as this.

The "So What" Issue. Even if you believe you have a strong fair use argument, a music publisher is likely to respond, "so what?" Only a court -- not you or your lawyer -- can verify that it is a fair use, so a publisher is unlikely to feel pressured to grant permission based on your arguments. What you might wish to consider --  although this advice is contrary to Section115A --  is to simply pay the mechanical license fees even though you have modified the songs. Our experience is that most publishers just want to be compensated and don't want to have to deal with special permissions. As for performing the songs live -- any venue where you play will have to pay performing rights fees for each song -- so it is unlikely that music publishers will care about your version just as long as the song title is correct.

Friday, June 1, 2012

Wants to Protect Database/Dataset

Dear Rich: I am a long time business professional that has formulated an idea for a new business venture. I have developed a process for utilizing both proprietary (generated through commissioned market research) and non-proprietary (purchased from another firm) data in such a way that would allow me to merge them to create an enriched data set. Using this enriched data set, I have plans to develop a database that allows me to build analytical tools that can be sold or licensed. Is there a way for me to protect the idea, process, methodology in a concrete manner? If so, what path do I take and what type of detail would I need to provide? The reason for my question is that inherent in selling the "value proposition" would be a need to disclose a fair amount of detail of the process so as to demonstrate the product value. Wow, sorry it took so long to answer this but we had to research "value proposition," and then once we did that, we spent a long time wondering about whether the Dear Rich Staff is offering its customers a suitable VP. Then we got sidetracked creating animated GIFs and entirely lost our train of thought. Ennyway, we think you really have two questions and we'll address them separately.
(1) Is there a way to protect a database that consists of publicly available research and original material? Copyright offers fairly limited protection for compilations of data, particularly if portions of the data are publicly available. The owner has to demonstrate that the selection, coordination, or arrangement of the materials is original. To prove infringement of factual compilations, for example, you generally must show verbatim copying. The more popular method of protecting databases is with end user licenses restricting how the material can be used. Other database users attempt to protect their sites with encryption or passwords. However, these precautions may have little effect. For example, one court permitted a company to use a "spider" to scrape public domain data from a competitor's website. Alas, the copyright circular on protecting automated databases (Circular 65) is currently being revised
(2) What's the best way to disclose information about that database to third parties such as investors? If your database is not publicly accessible,  the best way to disclose information about it is under the terms of a nondisclosure agreement. We've posted examples you can use at our NDA site.