Wednesday, September 26, 2012

Union Re-use Fees

Union Workers on Parade -  1909
Dear Rich: I am trying to navigate the complex world of union reuse fees - can you suggest any resources? Sorry, we've come up short and we're hoping maybe our readers can suggest something. As you are aware a re-use fee is a payment made to union members: either the American Federation of Musicians (AFM), or the Screen Actor's Guild (SAG)/American Federation of Television and Radio Artists (AFTRA. These fees are sometimes paid when musical or related material is reused and is subject to union agreements. Usually, when it comes to music licensing questions, one can turn to Kohn on Music Licensing, but we couldn't find any references in the index. The only other course of action would be to align yourself with a licensing agent/lawyer (for example, Greenlight), or contact the unions (links above) for more direction. Also, when searching for information, "re-use" is sometimes spelled without the hyphen. (BTW, does "non-hyphenated" get a hyphen?)

Tuesday, September 25, 2012

Trademark Symbols: When Can I Use Them?

Dear Rich: I’m told my company has a trademark on the company name but not the company logo. May I use the TM with the logo? We think what you mean to say is that your company has received a federal registration from the U.S. Patent and Trademark Office (USPTO) which qualifies you to use the ® symbol with the name. It is illegal to use the ® symbol if the trademark in question has no USPTO registration. If the trademark hasn’t been registered, as in the case of your logo, the TM symbol can be used. Similarly, the SM symbol can be used for service marks that have not been registered. The TM and SM have no legal significance other than to indicate the fact that the owner is claiming trademark rights. (And yes, it's national due process day, YEA!)

Monday, September 24, 2012

Wants to Write Fictional Biopic

Dear Rich: I want to write a screenplay about a real life person. This person is deceased and has been the subject of several non-fiction books as well as magazine and news articles. My screenplay would not be directly based on a particular work but would be an original conception using incidents from the subject's life. The real name would be used, though. I was wondering if I could write my screenplay on spec and what, if any, copyright or life right issues I may have to deal with? Write on! A deceased person has no privacy rights and can't be defamed, so you're free to write what you want. However, the same would not be true about those still living. For living folks, you can avoid defamation claims by dealing in the facts, which are free for all to use. Also, you should avoid copying more than the facts from any published nonfiction works about the person. By the way, we explored life rights from another angle in a previous entry.
If the person is deceased and real names are not used  ...  In that case, you've shielded yourself from most potential liability -- as did Harold Robbins when he wrote The Carpetbaggers, based on the life of Howard Hughes (though some sources unconvincingly claimed it was based on Bill Lear, designer of the Lear Jet). 

Thursday, September 20, 2012

Making Movies Out of Craigslist Ad

Dear Rich: I have a series that I've been working on for a big part of the year called The Best of Craigslist. It's been doing pretty well on Funny or Die. Here's a link to one episode. So they've been really well received and I think there's an opportunity here to take them to YouTube and make some money by selling ads or partnering with a client. Each video is made from an actual Craigslist post. Now my understanding is that Craigslist technically owns the rights to these posts. Am I correct in that? If I started to make money-- do you think I'd be liable as I make money? Could they be portrayed as a parody? We answered a related Craigslist question about six months ago and in that time, Craigslist changed its Terms of Use (TOU). We think you are correct and now, contributors automatically grant rights to Craigslist to "copy, perform, display, distribute, prepare derivative works from" their ads. More importantly, the contributor assigns to Craigslist all rights to pursue "unauthorized copying, performance, display, distribution, use or exploitation of, or creation of derivative works from, any content that you post." In other words, even if the contributor retains copyright -- it's not clear whether the grant is exclusive -- only Craigslist has the right to pursue infringers. That means Craigslist, not the contributor can go after you for your movies (which would be considered derivative works).
Okay, so what if Craigslist sues you for copyright infringement? Assuming the Craigslist TOU holds up in court -- that is rights actually go from contributor to Craigslist -- you will be on the defensive. You will have to demonstrate either that (1) the ad is unprotectible under copyright because it's too short or trivial (we've seen your videos and we think the ads are long enough to merit separate copyright protection), or (2) the movies are a fair use. You have a reasonable fair use argument in that the ads are not being used for their intended purpose (to sell stuff) and your movies are commenting upon or parodying the ads. As we always warn, making a fair use argument against a well-heeled company is an uphill battle that could prove costly. BTW, the fact that you are making money off the movies doesn't affect the ability of Craigslist to come after you for infringement.
Trademark issues. In addition to copyright claims, Craigslist has the ability to come after you for trademark claims --  that is, you are creating the impression that Craigslist endorses or is associated with your movies. In your favor is the fact that you are arguably making an editorial use of their mark (for example, similar to "Best Cars Made By General Motors" or "Great Strategies of Fortune 500 Companies). Working against you is the fact that you use the trademark so prominently and Craigslist is already using a similar title at its site (and for a similar purpose, to highlight the wackier ads).
Bottom line dept. As with all potential infringement claims, the higher your profile, the more likely you will attract attention from Craigslist. We are hesitant to suggest that you stop your creative work. After all, some artists have jumpstarted their careers with infringements. For what it's worth, Craigslist is a relatively forward-thinking (and generally lovable) company and it's possible that their management may take a more enlightened approach to your work -- or at least, will offer means for you to halt without dragging you through litigation. But certainly if you intend to move to higher levels of exposure, at some point you will likely have to deal with the company.

Wednesday, September 19, 2012

How Do I Turn a Story Into a TV Series?

How to Sell a TV Show -- powered by ehow
Dear Rich, I had written a story (not a book). How do I copyright my story and my characters in the story? I plan to sell the story to TV producer for a whole season drama TV series. Do I need a lawyer? Is there self to do it method? Do you know how I can find the TV producers? You get a copyright automatically once you finish your story. So, you don't need to do anything. The copyright will cover the characters provided they are fleshed out thoroughly and not merely stock characters. If you would like to file an application for copyright registration for your story you can do it online (the cost is $35).
Making the deal. By "self to do it" we assume you mean do-it-yourself and no, we doubt there's any way you can DIY a deal unless you are capable of creating an alternate universe in which regular people can access industry decision-makers (perhaps a universe similar to the one in which Tinker Bell's life-support is maintained by thousands of believers). We base this opinion solely on anecdotal evidence from those who have pitched their work in New York and L.A. The relatively vacuous advice provided in the eHow video above, seems to validate our opinion. Despite the grim scorecard, we do believe that phenomenal writing and talent can succeed. To proceed along this course, we'd suggest you hone your skills with one of the many booksworkshops, or seminars on the subject.

Tuesday, September 18, 2012

Voice-Over Narrator Release Agreement

Readers have complained that SCRIBD requires premium membership for the "free" download so here is a copy of the voice over/narrator release. Copy and paste!

Audio Reader Release Agreement

This Audio Reader Release Agreement (the Agreement) is made between [your company or name]  ("Producer"), and [name of reader] (“Reader”).

Rights. Reader’s performance has been recorded in conjunction with a recording (the “Recording”) as described below:

Describe the Production

Reader assigns all rights in the performance on the Recording to the Producers and its assigns, licensees and successors. Reader’s grant includes, but is not limited to, the right to use the recordings listed above in all forms and media including composite, transcribed, or modified for all purposes, including advertising, trade or any commercial purpose throughout the world and for the length of copyright in such Recordings. Reader understands that Producer is not obligated to utilize any of the rights granted in this Agreement. Producer grants a non-exclusive license to Reader to perform samples of the Recording for portfolio purposes to show others the style and nature of Reader’s work.

Payment. Producers have paid Reader as follows: $___ as payment in full for the rights granted under this Agreement.

Credit. Producers will credit Reader with credit in the same size and format as is consistent with the audio book industry—that is, an audio credit either at the beginning or conclusion of the complete program and, if possible, print credit on the exterior packaging for the production. The failure to provide a credit shall not be a material breach of this Agreement.

Mediation; Arbitration. If a dispute arises under this Agreement, the parties agree to submit the dispute to binding arbitration in [City/State], conducted on a confidential basis pursuant to the arbitration rules of the American Arbitration Association.

General. Nothing contained in this Agreement shall be deemed to constitute either Producers or Reader a partner or employee of the other party. This Agreement shall be governed by and interpreted in accordance with the laws of [State].

Dated: _______________

By  ____________________

Dated: _______________

By  _________________


Social Security No.:____________

Do I Need Voice Over Clearance?

Dear Rich: I'm trying to sort out all the various copyright issues surrounding the recording of audio programs to be used on radio and podcasts. While I know that there needs to be clearance for music used, and arrangements for the recording studio to transfer copyright in the recordings back to me, I'm a bit unclear about the copyright issues surrounding the people who are voicing the program from scripted materials. Is it also necessary to have them sign work for hire or copyright assignments? Do they have any copyright in the materials they've been paid to voice? If the readers are not employees, you should have them sign releases. A narrator, reader, or voice-over artist could conceivably make a claim as partial owner of a sound recording copyright. To avoid that result, have them release such rights -- we've provided a free downloadable agreement you can use and customize. More information on the release is provided in a previous entry.

Monday, September 17, 2012

Who Owns Employee-Created Invention

Dear Rich: This is a question related to the ownership of the invention between the employer and employee. I was employed by a company and I created an invention at work. The product that I invented was not related to any company business nor did I design the product using any knowledge that I acquired from the job; I just used the computer at work. In its program guidelines, the company said that if the invention was company business related, the company own the right although if the company was not interested in pursuing, it would release it and give the right back to the employee. If the project was not related to the company business, but the company was interested, then it would negotiate with the employee as to how two parties work together. If it was not interested, then the employee was free to do whatever he wanted.The employment agreement did say that if the employee uses any company resource to create anything, the company owns the rights. I left the company shortly after and a few months later, the company came back and proposed that we jointly submit the invention to a large corporation. They did not want to put any money in patenting. Without IP protection, I was not willing to go along. I told the company that I wanted to pursue the invention further on my own. A few days later, I received two documents that I requested --  a signed NDA and a letter of release, stating that I am the sole legal owner of the invention and that the company will not claim any legal right in the future: Is it safe for me to say that I now truly own the legal right of my invention (if I get the patent)? It seems that the guideline somewhat contradicts the terms in the employment agreement. My assumption is that the letter release should override the employment agreement.
Long Question; Short Answer Dept. You need to see an IP attorney. We believe the letter granting all rights will trump prior agreements but we couldn't say for sure without looking at the papers. If you're still interested in patenting the invention, you need to confirm your ownership and you also need to check your deadlines particularly if the invention has been disclosed or published. Here's a collection of articles that may help you sort out ownership issues and here's a previous entry relevant for California inventor-employees.
BTW, speaking of inventors, today (actually yesterday) marks the one-year anniversary of the America Invents Act and seven provisions of the AIA go into effect: inventor's oath or declaration; preissuance submissions; supplemental examination; citation of patent owner claim scope statements; post grant review; inter partes review; and covered business method review. Read more about it at our AIA timeline.

Friday, September 14, 2012

Wants to Patent T-Shirt Designs

I need to know how to get my designs patented. I just opened my own online t-shirt business and I have 300 designs so far and want and need to protect them all? How do I get started without spending a lot of money? Hey, what do you think of this idea? It's for people who only want to do laundry once a year? You sell 365 t-shirts, each with a different day of the year! It could even be a subscription thing, so if you just wanted to do it once a month, you could just get that much at a time? You can use the idea if you want because the Dear Rich Staff has a million of 'em!
Right, you had a question. First, you don't want to patent your t-shirt designs. Utility patents are for inventions and design patents are not intended for the appearance of t-shirts. You can read about the differences here and you can learn more about design patents, here. Second, you're best protected by copyright. If you don't want to spend much money, don't do anything. You get copyright automatically once you create an original design. If you want to register your most popular designs, you can do so online for $35 by following the instructions, here. Copyright registration provides benefits but is really only required if you are going to sue someone for infringement.

Thursday, September 13, 2012

Battle Over Charitable Trademark: Compassion in Action

Dear Rich: Hello, I coordinate a 100% volunteer run non-profit organization that distributes toys and food to low income families at Christmas. Our legal name is Toy& Joy/Compassion in Action Clackamas County. We keep getting calls from a man who says we are illegally using that name. His entity is entitled Compassion in Action. Toy & Joy was formed on 4/7/1994 with the name change to Toy & Joy/Compassion in Action of Clackamas County on 7/20/2007. He stated that people get confused by who is who. As a non-profit with limited income, we don’t have the funds to hire a lawyer to fight this unless it is absolutely imperative. Can you offer an opinion. I went online and found all kinds or organizations across the United States with different variations, however, he seems to have focused on us. I have attached our IRS letter and copy of our State of Oregon registration. First, thanks for doing your charitable work. We're not sure whether we have good news or bad news but we believe that neither you, nor the unhappy caller (nor the dozens of other entities using the term) has a legal right to claim "Compassion in Action" as a trademark for charitable services. The Salvation Army has registered the trademark for that term and has been using it for religious and charitable purposes since November 1967. If the Salvation Army desired it could request that both of you remove the term from your names. Also, just so you know, neither the IRS letter, nor a state entity registration establishes trademark rights.

Wednesday, September 12, 2012

Do Interior Architectural Photos Infringe?

Dear Rich: I am an architect and interior designer who designed a very nice custom house for some great clients. The house was recently put on the market and the real estate agent paid a photographer and a separate videographer to come in and shoot the interior and exterior. (BTW, the house sold in less than 24 hours as a result of the web marketing, for $100K over the asking price.) When the photographer offered to license me his photos of the house for my own use, I countered that maybe we should just consider trading licenses, since he had already violated my own copyright for the interior shots. (The exterior of the house is visible from the street.) The photographer huffily responded that he didn't need my permission; the owners had given him full permission, and that since the building was publicly visible, he had not violated any copyright. (Which I agreed was true for the exterior shots.) He also later stated that he had reviewed the situation with a photographic industry attorney, who agreed with him. But I'm pretty clear that I have a design copyright under the AWCPA, and believe that the interior photography done for commercial purposes without my permission infringed on this copyright. Care to opine on the situation? We can't say whether you would succeed in a court battle (more on that below), but it looks like you have a reasonable claim which should not be brushed off. That's assuming you can demonstrate your ownership of copyright (you're the "author" of the house) and that you did not sign any paperwork transferring your rights.
What's at issue? You're correct about the right to shoot exterior views. We don't believe interiors, even if publicly viewable, would be covered by that exception. Unfortunately, we haven't located a case that distinguishes photos of the interior of a publicly viewable home from the exterior and that's what makes us unable to reach a more definitive conclusion. It's possible that the photographic uses of the interiors -- the real estate agent's promotion of the house sale -- would be considered permissible either under an implied license (they're essential for selling the house which we assume was everyone's goal), or possibly for purposes of fair use (the objective was to sell the house, not the images). As for further use of the photographs beyond the sale, ultimately it's going to come down to (1) whether your interiors are sufficiently original to merit copyright protection -- that is, whether the layout of the rooms goes beyond "standard configurations," (2) what elements (unprotected) are "functional elements whose design or placement is dictated by utilitarian concerns," and (3) whether the photographs of the interior reveal enough information to infringe the architectural plans or designs. Simply showing the kitchen, or bedroom, for example is unlikely by itself to constitute an infringement; you'll need to show that the combined effect of the photos is an infringement of several elements of the design. This legal article may help explain in more detail.
BTW Dept. If you're looking for more information on the law and photography we like Carolyn Wright's blog.

Tuesday, September 11, 2012

Can I Use Quotes WIth Photobook?

Portrait of Anais Nin (1920)
I made a photograph book for my school project from my photographs and quotes From Martha Graham (1894-1991), Anais Nin (1903-1972) and Stephen Nachmanovitch (1950-present). Now I like to reproduce them and want to know what I shall do. Also, please let me know what are the options to reproduce a photo books for a reasonable price and find a distributer? Yes, you are fine to use all three quotes in conjunction with your photos. As we've discussed in other "quote" related questions, your rights are partially based on fair use, partially based on the fact that copyright doesn't protect short phrases, and partially based on the fact that some quotes are so short as to qualify as being "trivial" or "de minimis" uses.
Reproduction and distribution. We couldn't tell you who to use or your options for making photo books (that's what Google is for) but we know there are lots of companies like shutterfly, lulu, and snapfish that produce those kinds of things.
Making Postcards or Posters? We're not sure what other types of reproduction you have in mind but if you intend to break out an image and quote for purposes of a poster or a postcard, a living person such as Stephen Nachmanovitch (or in some states, the estate of a dead person), may object under right of publicity laws. To successfully make such a claim, he would need to demonstrate that you were exploiting his personna. We think that's a longshot (or as a meteorologist might put it, "less than 10 per cent chance of rain") but we're lawyers and have to consider all possibilities.

Monday, September 10, 2012

Can I Use Screenshots and Icons in Training Manual

Dear Rich: I have to write a training manual for Adobe Photoshop. I will use it to teach a community education class and will put it on a website for people to download. Can I use screen shots and icons from Photoshop in the book if I give credit to Adobe? I also have to write one for using Internet Explorer and Gmail. Can I use icons and screenshots from those programs as well? Yes, yes, and yes. Icons and file menus are generally not considered to be protectable under copyright law following the 1994 ruling in Apple Computer v. Microsoft. As for reproducing screenshots, at least one court has labeled it as fair use (in a comparative advertising setting). Considering the thousands of how-to websites, do-it-yourself videos, and published computer guides that make use of similar screenshots and icons, we'd say you'll be fine. (From a practical perspective it also doesn't make sense for these companies to chase down people whose guidebooks encourage the use of their products.) Our only caveat would be to avoid uses of screen shots strictly for commercial purposes instead of commentary, for example copying screen shots of copyrighted sheet music. Prominent disclaimers -- "Not affiliated with or endorsed by Adobe" -- may help prevent any trademark claims by dissuading readers from believing you are connected with these companies.

Friday, September 7, 2012

Wants to Expand Trademark to Other Classes

photo USDA
Agricultural Research Service
Dear Rich: We are a small organic farm near Salem, Oregon. We have an existing 1(a) trademark with an International class 001 and several U.S. classes for the products we manufacture and distribute. I would like to add three additional U.S. classes. I can’t seem to get a handle on exactly which form to use. Seems straight forward if the trademark has NOT been published and still under review but I can’t find the answer to post publication addition of classes. If your trademark application has been published for opposition (see Step 11), and you want to add additional classes, you should file a second application. It won't make any difference financially as you will be charged the same per class (approximately $300 each) however you file. You can even file three separate applications if, for example, you anticipate problems with one of the classes but not with the other two.

Thursday, September 6, 2012

Night of the Living Kids Book

Dear Rich: I work for a children's publisher and one of the things we periodically produce are young reader editions of horror classics, such as Dracula and Frankenstein. In the last decade, another horror favorite has risen (from the grave) in popularity: the zombie. Now, the ur-text for the zombie, as people today think of them, is the 1968 film 'Night of the Living Dead'. Famously, the original film is in the public domain owing to some error made by the production company. So my question is, does that mean the story itself is public domain, too? For example, would it be legitimate to produce a book using the same name, character names and plot? Or, failing that, would it be legitimate to produce a book that copied the story but went under a slightly different name (e.g. 'Night of the Zombies'), and changed the character names? Copyright experts agree that the 1968 film, Night of the Living Dead, is in the public domain in the U.S. and -- thanks to a case involving a 1962 John Wayne film -- so is the underlying screenplay. That would leave others free to duplicate the story, plot and dialogue and create derivatives.  The characters such as Ben, Barbra, Harry, Helen, Tom, and Judy, would also fall into the public domain, as this case has indicated. Finally, the title of the work has also passed to the public domain as the Supreme Court has held that the title of a work that enters the public domain cannot be protected as a trademark. Which means that a children's re-telling, as you propose, would not violate U.S. copyright law. However, your derivative work could only be protected to the extent of any new or "incremental" material added to the original.
Muddy waters. Although the story, title, plot, dialogue, and characters are in the public domain, the original screenwriters (George Romero and John Russo) went gone on to create copyrighted sequels and remakes of the original using the same characters. (The two screenwriters couldn't agree on a sequel and Romero acquired the right to movie sequels using "Of the Dead" and Russo acquired rights to "Living Dead" movie sequels. Russo also went on to create a series of Night of the Living Dead comics using the characters and plot from the original.) No trademarks have been federally registered for "Night of the Living Dead" for books but the comics publisher has a reasonable claim that the term is used as the trademark for the series. All of this adds to the confusion surrounding copyright (and explains why a squadron of would-be and oft-bogus enforcers swoop down in opposition whenever the film is loaded on YouTube).
Bottom Line Dept. We think the coast is clear for a young reader's edition in the U.S. but you may want to get an opinion letter from a copyright/trademark lawyer, if possible. You have a good chance of prevailing on copyright claims but we think your activity may possibly attract lawsuits, anyway. In addition, we can't confirm copyright status of the film in the U.K. (where you're located).
BTW ... For those interested in "monetizing" the film, it's also unclear whether certain "separable" elements of the film are also public domain -- for example, the music (credited at different times to William Loose and Fred Steiner and to Scott Vladimir Licina), and the trailer for the film.

Wednesday, September 5, 2012

He Wants to Publish Book About Former Employer

Dear Rich: I’d like to self-publish a favorable book about a former employer that is part company bio (unauthorized) and part employee memories of working for that company. Do I need permission to reproduce images of their products? What about images of their advertising? You shouldn't have a problem writing an unauthorized biography of a company unless you signed an employee agreement with the company prohibiting that. Facts about the company's history are not protected under copyright. FYI, though you probably already know it, you also can't disclose company trade secrets -- so no posting the secret bagel recipe. Also, you probably want to avoid any trademark related claims by indicating that the book is not an "authorized" history.
What about the products and ads? If any of the ads were published before 1923, they are not protected under copyright. (This chart will help you sort out which ads are in the public domain.) Even if copyright exists, chances are good that your reproduction will constitute a fair use as you are using the ads for purposes of commentary. You're probably fine with product imagery, too, as your reproduction would also likely be considered a fair use. Legally, the photographer (or whoever the photographer transferred the rights to) would own the copyright but typically, slavish reproduction of products will trigger limited copyright protection (despite what some companies may argue). Also, that's a general rule and ultimately depends on the creative details of the packaging, and the attitude of the copyright owner. In addition, check out Section 113(c) of the Copyright Act which is not exactly on point, but by analogy seems to permit informational uses of product imagery. Although we don't want to influence your writing, the fact that your history is "favorable" may quell any gathering copyright storms.
PS, no, the book cover isn't real, although you can feel free to use it if you're writing a fictional history of a bagel business. (We did work briefly in a bagel bakery and even burned our fingers grabbing and dropping hot onion bialys -- and the boss said, "What? Too heavy for you?" ).

Tuesday, September 4, 2012

Singin' in the What?

Dear Rich: I am trying to write a play for a school based on the movie, Singin' in the Rain. I have changed the title to We Sing in the Rain, changed the story quite a bit to cut romance out (the school is very religious), changed the ending, edited lyrics to songs to make them more appropriate for this school, and cut the romantic songs out. Where do I stand legally? What else can I do to be able to copyright this script for myself? I feel like this falls under parody and fair use in every way except the changes are not for commentary or humor, but to make them more appropriate. Wow, who knew Singin' in the Rain was so offensive, so full of "excessive immodesty? Plus we're wondering, without the romance, what's really left? Ennyway ... Perhaps your efforts will go unnoticed by the copyright owners but cutting stuff out to meet religious standards is infringement (as the CleanFlicks company learned a few years back). You can always challenge that ruling in your area but we think you'll have to give up on a fair use defense; you admit you're not commenting upon or parodying the original work, just removing things you find offensive.