Friday, August 31, 2012
How many is a series? Apparently, two separate creative works is enough to establish a series according to the Manual of Examining Procedure. However, you will want to make sure that the submissions are significantly different in content -- for example, it's not simply the same book, but slightly revised. Also, the title (or portion of the title) used as a trademark must create a separate commercial impression (TMEP 1202.08(d)(i)) -- meaning that the size, font, and color used for the mark being registered for the series should be separable or different from the remainder of the title.
Thursday, August 30, 2012
What really matters ... It doesn't matter that the photographs are widely available on the Internet or that you are offering your documentary for free. The copyright owner (either the photographer, or the party who commissioned the picture) can still pursue you for infringement. We're not so sure that will happen as the owner may never see your work (and may not care, either). But defending fair use is not something you'll want to do. If you don't want to ask for permission, you should limit the use of the imagery to the shortest screen time possible and (if possible) limit the size so that the image fills only a portion of the screen. That may strengthen your position ... should you need to defend it.
Tuesday, August 28, 2012
- The puppet maker has an enforceable copyright. Assuming there is sufficient originality in the design, (sock puppets might not count), the manufacturer owns copyright in the puppet's appearance. As our readers know, purchasing a copyrighted work doesn't automatically convey the right to publicly display or publicly perform the work. So, assuming the puppet is protected by copyright, the manufacturer controls rights and can stop unauthorized uses. Okay, but ...
- The puppet maker may be reluctant to enforce rights. It would put a damper on puppet sales if a manufacturer were to clamp down on every customer who made a YouTube puppet video. So, as a general proposition, if you don't attract too much attention, and you don't upset anyone, your videos will stay posted and undisturbed. It's even possible that some manufacturers may never care. (We wouldn't go so far as to urge the use of copyright-protected puppets for their SEO value.)
- Customized puppets make it more confusing. Obviously original puppets are no problem, as are puppets that are so customized you can't recognize the orignal. (We also don't think that creating a Muppet Whatnot amounts to original authorship). But, in general, creating a derivative puppet won't shield you from infringement claims.
- Puppet makers may take action ... A puppet maker is more likely to take action if (1) you used the puppet in a scandalous or offensive manner (which is why attribution may not be a good idea); (2) you capitalized on one or two puppet characters -- for example created a popular series with two Silly Puppets -- thereby affecting the ability of the manufacturer to license or otherwise exploit the puppet, or (3) you used the manufacturer's trademarks in the titles of your works. Note, though owners of puppet characters have exerted rights on YouTube, we believe the current tendency is to tolerate many types of infringements. In other words, you may not have a chance to earn YouTube ad revenue because the owner of the puppet copyright would already have a hand in the till.
Monday, August 27, 2012
(1) What if the nickname has already been bought and sold nationally and the artwork associated with the nickname is copy-written as well as having the nickname trademarked? (Common Law TM'd/© for some time before it caught on - Registered TM in process)
(2) I realize that the player most likely owns their likeness, but wouldn't the person who created a potential $-maker of a nickname for them and got the ball rolling on that side of things, be entitled to something? Thanks for checking out our previous entry, which was unusually popular. For that reason, we're happy to run through your questions in the hopes that it will churn up our metrics. (BTW, there's a difference between a copyrighter and a copy-writer. Check with Don Draper for more details. Also, there are some among us who do not believe trademark (or copyright) should be used as a verb.)
Question 1: Sorry, but we don't know what you mean by "bought and sold nationally." If the artwork is protected by copyright , then the owner of copyright can stop others from using it. But that doesn't mean the owner can use the artwork as a trademark. Imagine that you created artwork for the new Starbucks logo. You owned the copyright and wanted to use that on a line of coffee mugs. Starbucks would have little trouble stopping you. As for common-law copyright, that's not relevant to your discussion for reasons we don't have time to explain. "Common-law trademarks" (that is, unregistered trademarks) are subject to most of the same rules as registered marks and a sports star or team could most likely stop competing uses.
Question 2: There's no question that fans of sports stars love those nicknames, but ultimately anyone who commercially promotes a sports star's nickname is trading off the sports star's success. The nickname-exploiters didn't "get the ball rolling," they hopped on the ball for a ride. (Would the nickname have any value if the star hadn't become famous?) Trademarks reward commerce, not creativity and on that basis, the sports star (or the team or league, as the case may be) will most likely prevail in disputes.
Thursday, August 23, 2012
Tuesday, August 21, 2012
What about the property release? A property release is typically used to allow someone permission to enter property (typically, a house or building) and use the location in a photo or film. A property release wouldn't be required at an auto show show (unless the venue had photo restrictions).
Monday, August 20, 2012
|"God the Father" by Pompeo Girolamo Batoni|
Thursday, August 16, 2012
Tuesday, August 14, 2012
|Library of Congress WWI Rotogravure Collection|
Try to determine ownership. It's not clear whether your great-uncle had a will (and the copyright wasn't mentioned in it) or whether he didn't have a will. If he had a will, and the copyright wasn't mentioned, it would likely go to whoever received the residuary estate. If he didn’t have a will, you would need to map out the family tree and determine what blood relatives were alive at the time your uncle died. For example, if your uncle had no will and your grandmother was his closest living blood relative at the time he died she probably became copyright owner under the rules of intestate succession (you can see how it works if he died in California). So, initially the copyright went to whoever received the residuary estate or by intestate succession. If it went to your grandmother, then, upon her death, the copyright would have passed according to her will, or if she didn't have a will, intestate succession would kick in again.
The diaries and the copyright. Your grandmother may have given you the diaries as a gift but giving you the physical possession of the diaries is different than giving you the copyright. It's the difference between giving someone a painting, and giving someone the right to reproduce the painting. That's why copyright transfers must be proven by a written document. By the way, the unpublished diaries are protected under copyright for seventy years from your uncle's death.
If this seems too confusing ... If this seems overwhelming, keep in mind that what you’re really trying to determine is whether there is a relative who will object to your claim of ownership or seek a share of any revenue from the publication. So, if you don’t expect the publication to be a major source of revenue, it’s likely you can proceed without bothering with most of these ownership rules because battles usually only arise when a big bankroll is at stake. If the diaries generate revenue and you're still unsure about ownership, put the money in an account for a period of several years in case someone appears out of the woodwork to challenge your claim. That good faith effort will likely go a long way towards resolving the matter.
Copyright applications. By the way, if you should file a copyright application, you would list your uncle as author and yourself as copyright claimant and under “transfer statement,” you would choose "By Inheritance" (as shown above). Also, if you should file a copyright application, you will have to make a statement under oath that the information provided about ownership is correct.
Monday, August 13, 2012
How come the previous post said ... Our previous entry on "Fortune 500" explained that informational uses, for example -- using the Fortune 500 trademark or logo in a book or magazine (or in a blog) -- do not require permission. However, commercial uses such as creating an online information service, will likely run into problems. We know the difference between informational and commercial uses is slippery, but one dividing line you can use is to ask whether the mark is being used to analyze or discuss the associated goods or services (for example to reflect on or discuss the "Fortune 500" phenomenon). In that case, it is more likely informational. Finally, the use of "Fortune 500" as part of the domain name is going to set out a separate series of flags as it may be viewed as a form of cybersquatting.
Thursday, August 9, 2012
|from Spirit Photographs of William Hope|
The Conet Project. Yes, the owners of the Conet Project did sue Jeff Tweedy of Wilco for unauthorized use of their spooky recordings. (You can listen to the samples and the resulting recording here.) The case settled before a court could rule on the copyright ownership of these recordings. Akin Fernandez isolated and fixed the recordings and claimed copyright ownership. (By the way, since that lawsuit, the Conet Project's label has become part of the Free Music movement ... although we can't presume that means that copyright has been disavowed as well.)
Tuesday, August 7, 2012
Friday, August 3, 2012
Thursday, August 2, 2012
What's public domain? If you wish to do everything according to the law, you should review the date of first publication for each copyright (the date of publication of the sound recordings is apparently indicated on the CD covers shown here). If you can determine those dates and then apply the rules found here, you'll know which recordings are public domain. You'll soon see the challenge with this, as pre-1972 sound recording, although not protected by federal la, may be protected under state or foreign laws.
Permissions. We suppose you could contact either: (1) Sub Rosa, the label behind the compilation or (2) Mark Dachy, the compiler of the collection, and ask whether permission was sought or needed. We think the pursuit of permissions for most of this material will be difficult. Generally, you can assume that newer tracks will be protected --- for example, the three tracks that are post 1972 --- and will require permission. Same for the tracks that include music (they incorporate a third copyright -- the music). As always, it really comes down to whether those who own rights will learn of your use (or care), and as a general rule, the older the work (say, for example, pre-1950s), the less likely you'll wake anybody up.
Wednesday, August 1, 2012
In any case, we couldn't tell you with any certainty if a copyright owner could pursue an infringement claim. Most likely the unauthorized audio recordings constitute infringement but as for the rest, that depends on the amount taken, whether the use is excused as a fair use, whether the copyright owner can maintain a lawsuit in the foreign jurisdiction (or has a basis for suing in the U.S.), and who committed the alleged infringement.