Thursday, October 25, 2012
|photos by Ohmargieg|
Right you had a question. You probably don't have any recourse against your supposed partner. You might have a better postion if (1) you made a financial investment or took some other action in reliance upon the agreement (2) you provided trade secret information about your business idea and the other party agreed to keep that information confidential, (3) you had a proprietary idea (one that could be protected under copyright, patent or trademark law) for a business and it was stolen or (4) you formally created a business entity such as an LLC or corporation which required state registration. We weren't sure what you meant by "register the business with companies house" until we Googled it and realized you were in the UK. Although we have similar legal systems, our answers are based on U.S. law.
Wednesday, October 24, 2012
Tuesday, October 23, 2012
Why seek permission? If permission is unnecessary for a fair use defense, why ask for it? First, acquiring permission bypasses the need for a legal dispute (and the uncertainties and expenses associated with it). Second, seeking permission also demonstrates your good faith and may mitigate the damages assessed if your fair use defense fails and there is a negative decision against you.
Does a failure to respond to a permission request mean that there is a lower risk of being pursued. We doubt it. Although, as anecdotal evidence, we can offer this story: Our mom called a lawyer at a well-known movie company for permission for her nonprofit to use a licensed character in a presentation. His response, "You never made this call." In other words, having to say "no," would have obligated the attorney to follow up.
FYI Dept. -- Silence doesn't mean legal assent. We remember getting letters from lawyers that would say things like, "A failure to respond shall confirm blah, blah, blah." But 99.9% of the time that's just not the case. Inaction, or silence rarely triggers any legal conclusion (either affirmative or negative). For example, there's a famous 19th-century English contract case in which a man offered to buy a horse and stated that unless he heard otherwise from the seller, “I consider the horse mine.” The British court ruled that his assumption didn’t create a contract; the other party’s acceptance had to be clearly expressed.
Monday, October 22, 2012
Fair use? You haven't explained in what media you intend to use the screenshot or what size. In general, your intended republication sounds like a fair use -- you're using the photo for a transformative purpose, to comment on an anthropomorphic personality trait. Of course, the less prominent your use (for example, not on the cover of a book or your use of a smaller image versus a large one), the more likely the fair use defense may work. But as we always say, you can only prove fair use in court ... which means that if Disney learns of your use (and cares) you'll have to give up on the imagery or go toe-to-toe (or is it head-to-head) with the Disney legal team.
Speaking of the Disney legal team ... We have a feeling that unless you're representing a major website, book publisher, or film production company, Disney is unlikely to respond to your permission request (or if they do, they will deny it). That's because it's generally inefficient for the company to deal with and track minor requests, and much easier to simply deny them. In that case, you'll be in the odd position of having been told by Disney that you can't use it. Because of that potential result, many people with self-published or independently distributed works bypass the permission request. These people don't expect Disney will learn of their use and (like you) they may have a decent fair use defense as backup.
Wednesday, October 17, 2012
Backstory. The Troll doll characters are protected under a copyright owned by the Danish company Troll Company ApS. [Disclaimer: We used to perform legal services for the Troll Company ApS and we're still deeply fond of the Thomas Dam creations.] The copyright history has been complex and for a period, U.S. courts considered Troll dolls to be public domain. That ended after the U.S. entered into an international copyright treaty in 1996 and the Troll Company reclaimed its rights in the U.S. (It had never lost them in the rest of the world.). The Troll Company has been active in its attempts to exploit its copyright and its most recent foray looks to be a major movie event with a release date set for 2015.
Protectible characters. BTW, we have previously written about the protectability of literary, film, and licensed characters. We think that literary publication of your story may be possible under fair use/free speech rights but beware that some uses of characters in literary ventures have been successfully blocked. Beyond literary publication, Troll Company would have a right to halt commercial exploitation -- for example licensing the story for TV or film.
Tuesday, October 16, 2012
First Sale. Once you buy a Disney licensed character costume, you're free to do a lot of things with it. For example, under the first sale doctrine (which applies under copyright and trademark laws), you can wear your costume around the house or in public, burn it as part of an anti-Disney protest, or resell it.
Disney's rights. However, Disney retains rights over how a proprietary character is commercially exploited. (And BTW, Disney also goes after those who buy and sell unauthorized character costumes.) Sometimes enforcement may seem heavy-handed. That's because companies like Disney view public exploitation -- whether in movies, on a nightclub stage, or entertaining for money at a children's party -- as a violation of their character rights. On the other hand, party-entertainment is a growth industry and the possibility of legal action hasn't deterred some character-based businesses that operate under the radar. In other cases, the owner of a licensed character may provide a way to license rights (so you might want to check with Disney UK). (Note, our answers apply in the U.S. only. Despite the similarity of U.S. and U.K. copyright and trademark laws, we can't say for sure whether all principles apply across the Atlantic.)
Monday, October 15, 2012
Right, you had two questions. It is infringement to copy audio samples from B-movies. Taking a few seconds may qualify as a fair use -- though keep in mind that at least one court has (perhaps illogically) held that taking any audio sample (regardless of its size) violates the sound recording copyright. You're okay to use the samples if the film is in the public domain. (Note, even in public domain films, composers have claimed separate musical copyright.) You may be able to defend your activities depending on the fair use factors. But as we always point out, you can only "win" a fair use argument if you're prepared to fight it in court. Considering the vast amount of unchecked sampling, we think the bigger issue is whether the owner of the B-movie rights will ever learn of your use, or will care if they find it.
Using the movie picture on a t-shirt. If you edited the image you can stop others from using your modifications. But you don't "own" the image. You only own what you added. The owner of the underlying copyright can still stop your derivative use. We don't know if you would get it trouble for using the image -- BTW, it wouldn't make any difference whether you sold them or gave them away for free. Again, that's a matter of anticipating the likelihood that the film's copyright owner would spot your use and care. Our guess is that you'll fly below the radar. (We answered a related question in a previous entry.)
Thursday, October 11, 2012
Wednesday, October 10, 2012
|In a post-Eastwooding world, all empty chairs have meaning|
- To qualify for a registration, a trademark owner must be engaged in commerce regulated by the U.S. government. You can satisfy this requirement if you are writing the blog to attract clients, offer or advertise for services, or if you are leveraging the blog for income, for example, from Google Ads or affiliate programs. Note: this registration will only guarantee protection for use of the mark with your blog. Once you begin consulting services, you may want to file a separate application for those services.
- Yes, you can establish a trademark even if you don’t have an official business registration (that is, you haven’t filed a DBA, or created an LLC or corporation). You can always transfer the ownership and registration from your sole proprietorship to another entity.
- You should file an application for the name that consumers associate with your business. Usually that doesn't include the generic top level domain extension (.com, .net, .org, etc.). If you do seek to register the full domain name you will most likely have to disclaim the extension. (We discussed disclaimers in a previous post.) With a federal registration, you can stop others who use the domain name in bad faith
- Each mark should be the subject of a separate application. No, you don’t need to register related trademarks at the same time. Note: you must pay the fee (approximately $300) for each class of goods or services for which you want protection.
Thursday, October 4, 2012
When the first sale fails ... The first sale doctrine cannot be used as a defense when non purchasers of the item (people who see the assembled product but who didn't purchase the kit) would be confused as to the source. This case provides some background on the principle and illustrates a few cases where the first sale defense failed. (Here's an article explaining the case.) By analogy there is a Supreme Court patent case that prohibits the "knowing" sale of kits (by which the purchaser can assemble an infringing invention). In that situation, the seller can be charged with inducing infringement. Bottom Line Dept. We can't predict how a court would rule in your situation but we believe that if the leagues learned of your activity, they would seek to halt it based on a theory of inducement of infringement.
Wednesday, October 3, 2012
Dear Rich: Can a publisher publish a crossword puzzle book "Parry Hotter and the Chamber of Crossword Puzzles Book," using situations and characters from the famous series as clues, if those character names are slightly altered so as not to infringe on copyright? You may be operating under the misconception that slight alterations to character names can avoid charges of copyright and trademark infringement. For trademark purposes, consumers are likely to be confused into believing that the term Parry Hotter has some association with the Harry Potter series (which, of course, is the idea). For copyright purposes, the plot situations and characters are still substantially similar despite the dyslexic character spellings.
Three-letter word for "litigate." There have been three recent unsuccessful attempts at dissecting elements of successful series and repackaging them:
- Twin Peaks. In this case, a company published a book entitled Welcome to Twin Peaks: A Complete Guide to Who’s Who and What’s What, containing direct quotations and paraphrases from the television show Twin Peaks.
- Seinfeld. In this case, a company published a book of trivia questions about the events and characters of the Seinfeld television series. The book included questions based upon events and characters in 84 Seinfeld episodes and used actual dialogue from the show in 41 of the book’s questions.
- Harry Potter. And of course, there was the more recent attempt to create the Parry Hotter ... er, Harry Potter encyclopedia. In that case, a court rejected a fair use defense.
Tuesday, October 2, 2012
- Employees. Employees (not independent contractors), don't require any paperwork. The employer acquires copyright in all creations completed within the scope of employment.
- Independent Contractors. Independent contractors would be bound by work made for hire provisions in their contracts. That's acceptable because a "translation" is one of the acceptable work made for hire categories.
- Volunteers. Volunteers do not receive a payment. However, that doesn't mean that some consideration is not passing to these folks. "Consideration" is the answer to the question as to why someone is performing a task. And as long as you can point to some consideration for volunteers -- for example, interns acquiring work experience, translators acquiring job references or a portfolio -- you can use a work for hire agreement with the volunteers. You can state "for consideration, the sufficiency of which is acknowledged," in the agreement (although if both parties sign, that's not necessary (scroll down) in a majority of states).
Can you make a pre-work assignment? Technically, the translator has no copyright to transfer until the work is finished or "fixed." That's when the copyright first manifests itself. Some agreements bypass this issue by having the person promise to assign the work and to grant a power of attorney for such purposes. For example, pre-invention assignment agreements typically include copyrights and these agreements have routinely been found to be valid.