Tuesday, July 31, 2012
Dear Rich: I'm working on a script that is very loosely based on a radio play by a dead author; it was remade into an Alfred Hitchock show and I tried to track down the owner via NBC, who aired the show in the 60s, to no avail. So do I go through the family of the dead author? Would his estate own it (he wrote successful movies as well, so he's sort of a respected screenwriter) The NBC folks weren't really sure who owned the show, and the play was originally on an old radio play from the 30s or 40s, presumably all of the producers are dead and the show seems to be public domain ("Suspense") but I'm not totally sure if the story is since it got reproduced for TV. My story would digress substantially but has a similar set up and theme, although my characters are very different. How should I proceed? We're not sure we agree with you that the source material is public domain. The Alfred Hitchcock Presents episode does not appear to be public domain (only one of his TV episodes seems to have slipped under the PD trapdoor). The status of the work is also unclear because you are dealing with issues regarding derivative works. That is, there may be separate copyrights in the underlying story (based on the radio play) and in new material added to the teleplay. (This chart provides a breakdown of the AHP teleplay writers and story creators.)
Tracking the owner - the Rear Window problem. By a strange coincidence, your problems in determining ownership may be compounded by a Supreme Court ruling dealing with another Hitchcock work. As you can see from reviewing the case, ownership of older stories-turned-to-screenplays can often be murky. If you had sufficient resources you could engage a copyright research company to provide a full report on the ownership status. (Here's how to review public records on your own.) We think you'd have a far easier time modifying the plot and characters so all that remains are the general ideas and perhaps the basic plot twist -- sort of like the way Brian DePalma's Obsession is based on Hitchcock's Vertigo.
Need any theme music? By the way, you're free to re-record and use the Alfred Hitchcock Presents theme as that was lifted directly from a public domain composition (theme starts at about 38 seconds in) On a related note, here's a summary of the public domain status of Hitchcock's films.
Monday, July 30, 2012
Friday, July 27, 2012
|Type/Status Drop Down Menu from Google Patents|
Thursday, July 26, 2012
Wednesday, July 25, 2012
Copyright permission needed. As much as we like your theory about property releases, it's not accurate and it's not going to help. Sculptures are protected under copyright law. Assuming a sculpture you want to photograph and reproduce is protected under copyright law, you would need permission from the sculptor (or whoever the sculptor transferred copyright ownership to) in order to reproduce it. (The property owner is unlikely to be the copyright owner unless the sculpture was commissioned.) Mass-produced lawn ornaments may be protected under copyright but it's unlikely the manufacturer will see or care about your collage. Those folks are generally more interested in stopping competing manufacturers. Also, for copyright law purposes, it doesn't matter whether the sculpture is on public or private property; what matters is whether the animal sculpture is protected by copyright law and whether your reproduction is an infringement.
When do you need permission from the property owner? You mentioned property releases and the main reasons you would need one is that you're photographing a copyright-protected building (unlikely) from private property, or you're photographing a property location as the basis for an advertisement or a movie. Photographs of copyrighted buildings taken from publicly accessible areas don't require permission. (We offer a free property release if you ever need one.)
BTW Dept. May we inquire: Does that triple question mark in your last sentence signify something ??? and why is it inserted in mid-sentence? Hopefully that's not a trending grammatical quirk.
Tuesday, July 24, 2012
Let's start with the principle that you can reproduce the card imagery for any informational purpose you want -- for example, in a book or a documentary or at a website explaining the history of baseball.
What if you sold a t-shirt? What if you sold merchandise with PD baseball card imagery that says "Reds" outside the Great American Ball Park? Would that trigger a lawsuit? Possibly. Would you prevail? We'd like to think you would. It's going to come down to a variety of factors such as the prominence of the name on the merchandise, consumer motivation for purchasing (Reds fan vs. baseball history fan), and issues similar to those raised in Dastar Corp. v. Twentieth Century Fox Film Corp (in which the Supreme Court held that a trademark claim could not be used to bar a public domain reproduction). Note, that case is not exactly on point with your situation and to see why, check out this article (scroll down to "C. Effect of Dastar on Merchandising Cases and on Federal Trademark Law.")
When the cards don't include the name of the team. Many of the cards in the collection don't include the names of the teams. As a general rule, if you're not using the name of the team, just the city, there shouldn't be any trademark issues (unless the lettering for the city/team is so distinctive that it makes an association with consumers.)
Teams that don't exist. Obviously for those baseball teams that are no longer in existence -- for example, the Boston Beaneaters -- the trademark rights are no longer being exploited and the marks are considered to be abandoned (although you may want to check the USPTO records to make sure nobody has resurrected these as zombie marks). As for the Brooklyn Dodgers, that mark had been abandoned and then brought back for certain merchandise (according to the ruling in Major League Baseball Properties, Inc. v. Sed Non Olet Denarius, Ltd). Nowadays, it appears that the mark has been resurrected and officially licensed for clothing (although non-infringing homages are always possible, too).
Bottom Line. If you don't want to get hassled, avoid merchandise that prominently displays existing team marks.
Monday, July 23, 2012
Posted by The Dear Rich Staff at 12:22 PM
Friday, July 20, 2012
Dear Rich: I'm trying to avoid seeking permission to mention a song in a novel I'm writing and plan to self-publish. I understand that song titles can't be copyrighted, but I'm wondering if quoting a single word from a named song will require permission, given the context: two of my characters are arguing about the lyrics to Kiss From a Rose, with one saying that a grave is mentioned in the song, and the other contending that the word is "gray" (which my research tells me is the case). One character also says that the lyrics refer to a kiss and a rose, but since these words are given in the song title, I would hope that they are safe. Am I on dangerous ground with the grave-versus-gray dialogue? Also, if one of my characters refers to Kiss From a Rose as "like, the cheesiest song in the world," would this be considered libelous? Let's address your last question first. You are not committing libel because you are not making a false statement. "Cheesiness" is defined as "trying too hard, unsubtle, and inauthentic." Therefore, we can conclude that Kiss From a Rose is actually like, the cheesiest song in the world (it's number two of cheesy songs on this list). Even if it was the third or fourth cheesiest song in the world (or didn't even make the top ten), you and your characters are free to diss any Seal song under First Amendment principles.
Using lyrics. It's fine for your characters to talk about songs and even quote one or two lines under fair use principles. (Spoiler Alert: In our humble opinion, Kiss From a Rose contains some of the strangest, most incomprehensible lyrics ever!) In any case, you should probably only consider seeking permission if you're using more than a couple of lines. We talk more about when permission is needed for song lyrics (and how to get it) in this book.
Wednesday, July 18, 2012
Tuesday, July 17, 2012
You will have to worry about enforcing your patent. Having a patent doesn't relieve you from the obligation of enforcing it, just the opposite. As this article (and as David Pressman explains in his book Patent it Yourself), a patent is merely a license to go after infringers. Unfortunately, you will have to finance that enforcement out of your own pocket.
Don't rely on the patent examiner for your claims. Patent examiners have an obligation to assist applicants and the article includes two first-person accounts: one in which the applicant dissed the competency of the examiner; and the other in which the applicant was assisted in claims drafting by the examiner. (You can probably find many other comments about patent examiners by trolling the web or reviewing sites such as bustpatents.com.) In any case, though examiners can and may assist, you should draft and understand your claims before and after any modifications by the examiner. It would be best if you can have your patent claims reviewed by a patent expert (although practically, most patent attorneys will want to review the whole thing).
No matter who drafts your claims, it's always possible that a patent may be declared invalid. Don't assume that your patent will survive all attacks just because an examiner helps you with your claims. (By the way, the same is true even if a patent attorney drafts your application; the difference being that you can sue the attorney for malpractice but not the examiner). Nobody can guarantee that an issued patent won't be later determined to be invalid, or too narrowly drawn to cover infringements. That often depends on the evidence that's uncovered, the tenacity of each party in the dispute, and the whims of the legal system.
"Based on the legal advice I have read on your site ..." Not to put too fine a point on it, Nolo and the Dear Rich Staff shy away from providing legal advice. Whether or not you should handle your own patent application depends on your resources -- time, money, and technical abilities -- as well as your personality (are you the type of person who can manage a fairly complex project?) If you need further information on whether you are suited (or whether it's worth pursuing a patent), check out Pressman's Patent it Yourself.
Monday, July 16, 2012
Do you have the legal right? We start with the premise that the basic idea of a documentary about a famous personality (and his annual event) is not protectable and anyone can pursue it -- unless you've contractually agreed not to. Whether you would prevail in an idea-theft lawsuit depends on your employment agreement, whether your treatment arose to the level of a company trade secret, whether the treatment was copyrightable, and how much of the treatment is used in your production. As a general rule, the more detailed the company's treatment, the harder it will be for you to launch a similar project. Unique details -- a novel line of questioning, an out-of-the-box POV, or previously undiscovered research -- tend to enhance trade secrecy and copyright, and make it easier to prove theft. As for the title, if it's so unique that you want to take it, it's probably a trade secret. Check your employment agreement to determine any post-employment limitations, and keep in mind that you'll have to indemnify your production, so it may be worth getting a legal full-monty.
Friday, July 13, 2012
Thursday, July 12, 2012
|my mom as a teenager|
What about the copyright exception for photos of women in swimsuits? Because of the immense popularity of photos of women in swimsuits, male lawmakers in 1983 created an exception to copyright law known as the Anderson Rule (named after Baywatch star, Pamela Anderson), which permits limited reproductions of photographs of swimsuit-clad women if the use is not-for-profit and proper attribution is provided. (After a case was brought by Victoria's Secret, it was established that the rule does not apply to women in lingerie.) Following an outburst by women's groups, the Anderson rule was expanded in 1987 to include men, as well. Of course, none of this is true but we just wanted to keep you on the page as long as possible to improve our SEO.
Wednesday, July 11, 2012
Why don't we believe these scraps are protected by copyright? According to this site, Victorian paper scraps appeared at the beginning of the 19th Century initially in black and white or color (if hand-tinted). Color printing of these scraps began in the late 1930's. Because of these dates, chances are very strong that these works are in the public domain (see this chart for more details) either because copyright expired or was never renewed. In any case, determining whether copyright exists is an academic exercise as your use is permitted by the first sale doctrine and does not violate copyright law.
Tuesday, July 10, 2012
Monday, July 9, 2012
The Author’s commitment to maintaining the confidentiality of Company’s Confidential Information shall not extend to information the Author already possessed at the time of disclosure by Company, information which is in or subsequently becomes public domain, whether through release by Company or through a source other than the Author.
Company understands that the Author will share information about the Author’s work, including, but not limited to, draft manuscripts and/or concepts for a book or books (hereafter “Author’s Confidential Information”) with Company during Author’s dealings with Company. Company agrees to keep Author’s Confidential information confidential, except as necessary to provide services to the Author.I wanted to know if that’s all I need for an initial meeting with a book development editor.
We're excited because this is the first time that a reader and the Dear Rich Staff went to the same summer camp -- Camp Lohikan. We have fond memories of our times there but we're glad we got out before the Honda dirt bikes arrived.
Right, you had a question. The first paragraph, above, is a typical "exclusionary" clause from an NDA and we explain its purpose at our NDA site. It's nice to have this clause but its absence probably wouldn't make much difference, as a court would insist on these exclusions even if they weren't part of the contract. The second paragraph establishes that confidential information about your book won't be disclosed unless it's required for the Company to do its job. You might inquire as to what types of services require disclosure. If concerned, you might even insist that the agreement be modified so that your permission is sought whenever the Company discloses the book to a third party.
Is that all you need for the meeting? You could have an attorney look at the remainder of the contract, or you could review the basics of confidentiality agreements at our site. And of course, if you have sufficient clout in negotiations with the editor, you might want to consider providing your own contract. That agreement could sort out any copyright or ownership issues or prohibit the editor from publishing a work that competes directly with your project.
Who do you trust. Mostly it comes down to trust. The biggest issue for you is whether the editor is reputable and whether you can trust her. Generally, it's difficult for an editor with an unethical reputation of stealing book ideas to stay in business for a long time. So if an editor's been around for many years, that may be an indicator of trustworthiness. Perhaps you can also ask to speak with other clients, as well as checking the editor's reputation online.
Friday, July 6, 2012
|From "Correct Postures for Housework"|
Thursday, July 5, 2012
Publication. If the photos were published, the rules vary depending on the date of publication and whether the work had to be renewed. You can explore all of these possibilities using this public domain chart.
Exploiting the negatives. We hope you can share and enjoy the negatives in some way. It's true that a few glass negative discoveries bring about a jackpot, but, alas, most glass negatives aren't worth dragging to Antiques Road Show (although they may have some historical value).
Tuesday, July 3, 2012
- The Dragon. You should presume that the Schleich dragon is protected under copyright law. Your "irreverent psychedelic pop technique" may create a distinct derivative work, and maybe you could make a fair use argument (see above) but if Schleich saw your work and chose to hassle you, they could drag you into court and make you prove your fair use claim. (It's true that in one case, an artist was permitted to use Barbie dolls in his works but even if your facts are the same, keep in mind that the artist was dragged through a lengthy and expensive court proceeding.) Anyway, with so many public domain dragons, you may want to choose one of those instead?
- George. A portrait of George Washington made during his life time -- for example, one of the George Stuart portraits -- is in the public domain. A portrait first published in the U.S. before 1923 is in the public domain. Works published after 1922 may or may not be in the public domain (check this chart for more details).
- Willie. The Willie Nelson statue is protected under copyright law. It doesn't matter whether the statue is viewable in public or private. We assume the sculptors own the rights (unless they transferred them to someone else) and if the copyright owners find out about your use (and care), they could hassle you. Again, a fair use argument is possible but see above.