Monday, November 19, 2012
Right, you had a question. If the author of the diary died before 1942, then nobody owns copyright. The work is in the public domain. If the author died after 1941, the diary would still be under copyright and republication as you describe would most likely be an infringement, and not a fair use.
Monday, November 12, 2012
Right, you had a question. You can probably get away with your trivia app assuming you can make it past the app store gatekeepers (at the Apple Store and Google) and nobody from the DMB, the band's management, the band's publishing company, or the band's record label sees your app and cares enough to challenge. If the app is challenged, most likely you'll have a problem. First, the app store where it is located can terminate availability based upon its own analysis or a DMCA complaint (we've got a legal guide for app makers that explains this route), and second, the copyright owner (the band, label, publisher, etc.) could sue for copyright infringement or possibly trademark infringement. We base this conclusion on three previous cases involving trivia books (we wrote about them in this entry). We're not saying you might not eventually prevail but we would think twice before investing considerable time in commercializing this venture.
Friday, November 9, 2012
What really matters? Both provisions are important but of the two, we think the venue/jurisdiction provision is more important. That's because state laws may differ on some issues -- for example, Delaware favors corporations, etc.-- but for the most part choice of law doesn't make much difference. But jurisdiction provisions can create more expense and inconvenience because they determine where you must travel to in the event of a dispute. For example, a resident of California may not want to spend several weeks conducting business from a Texas hotel room, and vice versa. Despite the fact that the chances of triggering the provision are statistically very low -- so few contracts devolve into lawsuits -- lawyers like to puff up their chests and "stand their ground" on this issue with the "bigger" party usually getting its way.
Compromise? There are a couple of workarounds. You can leave out jurisdiction entirely and then either party may file where they live (assuming they can get personal jurisdiction over the other party). Or you can set up an either/or provision such that the party filing the lawsuit can choose the state law and jurisdiction. So the Texans can file in Texas, and if the Californians are suing, they can file in Cali. If you can't reach a compromise, you may have to bite the bullet and hope that you're never dragged into a lawsuit.
FYI, DR readers, two states, Idaho and Montana, refuse to honor forum selection provisions. In some other states, courts enforce these provisions only if the parties have some contact with the state beyond the contract provision—for example, they must do business with the state’s citizens even if they live (or the agreement is signed) in a different state.
Wednesday, November 7, 2012
Takeaway Dept. We'll stand by our position on copyright and quotations but add the caveat that being "right" doesn't mean that copyright owners can't sue you. If you're planning an advertisement that uses a quote from someone who is alive or recently deceased, get it reviewed by a lawyer.
Tuesday, November 6, 2012
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FYI Dept. Although typefaces are not protected under copyright law, hand-written lettering (calligraphy) can be protected in some cases. In other words, you may be able to stop those who copy your hand written version of the quotation without your authorization.
Monday, November 5, 2012
Right, you had a question. If the teacher's use of the DVD qualifies under the face-to-face exemption of the copyright law (below), then it is not an infringement and you can disregard the "warning." (There is an exception, described below.)
17 USC 110 Notwithstanding the provisions of section 106, the following are not infringements of copyright: (1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;What if "no classroom use" is a condition of a license? There is an exception. Many companies have attempted to circumvent the copyright laws (some successfully) by forcing the consumer to license the work, rather than purchase it. However, in order to create a binding license -- one that permits a company to step in and stop so-called unauthorized uses -- the company needs to prove that the end user entered into an agreement. As we've mentioned before, the most effective end-user licenses (EULAs) require some type of actual agreement -- typically a click-to-accept checkbox or button. These mechanisms for "agreeing" come in many shades -- and courts have even enforced shrink wrap agreements in which tearing open the shrink wrap signifies that the end user agrees with the license. Check your method of ordering to determine if you agreed to any licenses and check the packaging for signs of a license agreement. As a general rule, the easier it is to demonstrate that the other party agreed to the terms and conditions, the easier it will be to enforce the agreement. If the license is part of the packaging, it should be prominent and obvious that breaking the seal enters the end user into a license agreement. Our gut feeling is that the "warning," by itself, probably has little legal effect.
Thursday, November 1, 2012
Copyright for architectural works. Architectural drawings were not classified as protectable works until December, 1990. Prior to that, courts tended to protect architectural blueprints. The extent of protection may depend on how distinctive or elaborate the plans are, but it's likely the works you describe will meet the standards for protection.
Privacy. We don't believe that publication of architectural drawings would give rise to a successful invasion of privacy claim because the publication doesn’t disclose personal facts, or intrude into personal affairs. Even if we are correct, however, a wealthy homeowner could always still mount a tort claim. You may lower the chances of such a suit by not mentioning the names of the persons presently living at the home.