Monday, December 31, 2012
Friday, December 28, 2012
- Indemnity. If your husband deals with a book publisher, the publishing agreement will likely require you to pay the publisher's legal fees for any disputes caused by the book. Even if you succeed with a fair use dispute, you'll end up footing your legal bills and the publisher's, too.
- Vetting the book. Also, a publisher may require that you provide proof of permission for all non-original material. Chances are that the publisher will not want to take a chance on your fair use arguments (even if you cite the Dear Rich Staff as your source).
- Publish it yourself. If you're not dealing with a publisher, your biggest concern is whether someone from Time Magazine's licensing department will find out about your use. If so, you may likely get chased, perhaps all the way to the courthouse. If Time doesn't see it (or chooses to ignore it), you can pass Go and collect $200 (metaphorically speaking).
Alternatively, some legal scholars argue that a better approach is that the interviewer and subject jointly create one work. Under that analysis, the interviewer and the subject are joint authors. In that case, either party can use the interview for any purpose provided that the party using the interview accounts to the other for any profits. We're not sure that applies to your situation, because it sounds as if the article goes beyond the Q-and-A format. (Anyway, you can read more on these two interview approaches at the Publaw.com site.) (Note that one court -- dealing with an interview with Ernest Hemingway -- hinted that Hemingway's failure to limit usage at the time of the interview implied unlimited use by the interviewer!)
Bottom line dept. We think this is one of those risk analysis situations. If you have a strong desire to use the article and are self-publishing to a limited audience, consider taking the risk. If you're planning on a bigger launch and a broader audience, you may want to limit reproduction to your interview responses and short snippets from the article for a stronger fair use argument. As for any photos, you would contact the local newspaper and find out whether they sold all rights in your husband's image to Time, or whether they can license the photo use to you for your book.
Wednesday, December 26, 2012
Status Report. You can find the status of an application at the USPTO website. Choose "Search Trademarks" from the Trademark drop down. Choose the "Basic Word Mark Search" and enter the mark (or Serial Number if you know it). Once you get to the main page for the mark, click the "TSDR" button ("Trademark Status and Document Retrieval"). There you'll find a timeline of activity and the documents filed in the case.
The form. If the mark is approved for publication, you can file a "Notice of Opposition to Registration." Click "File a New Proceeding" on this USPTO page (see screenshot above). Choose "Notice of Opposition to Registration" from the drop down and enter the Serial Number of the trademark that you're opposing. Be aware that you're triggering an activity at the Trademark Trial and Appeals Board (TTAB). You may want to confer with an attorney before filing and get a professional opinion as to whether you have a chance at terminating the application (and also because TTAB actions are the kinds of tasks requiring an attorney's assistance).
Monday, December 24, 2012
Can the contract be enforced against you? A valid contract is one that a court will enforce. Some reasons your contract might not be enforceable are if (1) it violates the law or public policy, (2) there's no consideration -- you didn't receive any benefit from the arrangement, (3) the other side fraudulently induced you to sign, or (4) you were coerced (duress) into entering into the agreement. If fraud or duress are present, then you can void the contract. All parties are released from their obligations and you can pursue your claims against the band. In cases of intentional fraud—for example, if a band mate deliberately lied to induce a deal, you can elect to seek additional damages under tort law. (BTW, even if the agreement is valid, you may also have claims that the other side breached it, thereby terminating the agreement.)
What is duress? Duress occurs when a party’s consent to a contract is physically or mentally coerced. A party under duress lacks the legal free will to refuse to sign. Therefore, the agreement is not voluntary and the contract that results must be voided. Threats of physical force are rarely used as a means of inducing a contract. Instead, economic duress has emerged as a bigger issue. Economic duress (also known as “business compulsion”) occurs when, for example, a supplier of goods jacks up the price on a customer who is in desperate need of goods, or one party threatens to breach an existing contract unless the other party agrees to some further demand. But keep in mind that proving duress in a court or at an arbitration -- which is where you'll have to prove it -- requires more than threats. You'll also need to show you had no other choice but to comply, a sometimes difficult task.
Does the agreement transfer copyright? The musical compositions and the musical performances are works that are subject to copyright. In order for the band to acquire those rights, the agreement (or some other written agreement) must specifically transfer these rights. If the agreement doesn't say anything about copyright ownership, your rights in those works may be unaffected and you are probably free to register your rights in your name. Along with that, you can exploit your interest in the songs and collect royalties for their use.
Bottom Line Dept. If you want true closure, you should see a music attorney.
Thursday, December 20, 2012
Wednesday, December 19, 2012
Who gets sued? LEGO Group appears to focus its legal efforts on copycat toy manufacturers, or those who trade off its name (such as those who use LEGO in a domain name). So, we doubt LEGO Group will pursue those who create LEGO artwork unless the artist is doing something that implies that LEGO endorses or is associated with the work.
Handy disclaimer. LEGO Group provides an intellectual property statement that includes a disclaimer you can use when posting Lego material at a website -- "LEGO® is a trademark of the LEGO Group of companies which does not sponsor, authorize or endorse this site." You can probably also adopt it for many other uses. Alas, as the company points out, using this disclaimer won't shield you if you're violating the law.
PS. Based on your spelling of "personalised," we're guessing that you're writing from the UK, in which case we have to bore you with our own disclaimer -- our advice is based on U.S. law.
Monday, December 17, 2012
Friday, December 14, 2012
Thursday, December 13, 2012
Right, you had a question. Keep in mind the words of Thomas Jefferson: "How much pain have cost us the evils that have never happened." While you imagine the ultimate end-scenario -- TV-show attorneys gloat over the huge cash verdict they've inflicted on you -- the reality is far more complex. We've put together this table with our guesstimates as to the likelihood (based only on our anecdotal information and personal experiences):
Odds of Happening
|Someone associated with the 20-year old TV show will hear your track.||
1% or less. Considering the zillions of tracks out there, it’s highly unlikely anyone will hear your track unless you have a reasonable hit.
|The person hearing the track will recognize the sample as coming from the 20-year old TV show.||
50% or less. We haven’t heard your track but you state the sample is heavily effected, making it harder to recognize.
|The person will care enough to investigate.||
25% or less. Usually copyright owners don’t get worked up about a single quote from a show. However, there are exceptions for superstars (and of course, if you’re a superstar, you can afford to deal with all this.)
|After investigating, the copyright owner of the 20-year old TV show determines that its worth engaging an attorney to stop your use||
50% or less. Just getting the attorney on the phone is at least $300. So there has to be a substantial concern to contact an attorney over a single quote used on a recording.
|The attorney who is engaged writes a cease and desist letter asking you to stop and for some arbitrary payment.||
75% or less. Once engaged, it’s no big deal to write a C&D letter. But anybody can make demands. Your attorney may advise you have a good defense and suggest blowing off the demands, or alternatively reaching a peaceful settlement -- perhaps you stop distribution, destroy existing copies and pay a few thousand dollars (if any money).
|You blow off the letter and the attorney decides to file a lawsuit.||
25% or less. It’s $5,000 to $10,000 just to file a lawsuit. Chances are the other side won’t want to risk the suit with this minor an infringement. Alternatively, they may investigate you and determine your pockets are not deep enough to pursue.
|A lawsuit is brought and you lose.||
50%. You never know how things will go with a fair use or “de minimis” claim in court but you’ve got a decent shot with these facts.
|After you lose, the court awards your house and inheritance to the owner of the 20-year old TV show.||
15% or less. The punishment has to fit the crime and if you didn’t make much money, a reasonable judge won’t likely hit the big buzzer for statutory damages. You keep the home and inheritance.
Bottom line dept. We agree with Joseph Heller -- “Just because you're paranoid doesn't mean they aren't after you.” But we also don't want interesting art to be unfairly sideswiped. Yes, it's always possible that something bad will happen based on your release, but we think the odds are on your side.
Wednesday, December 12, 2012
Unfair and/or illegal? Amazon's edition linking policy (stated here) may be unfair to some authors but that doesn't make it illegal. It's true that some unfair business practices violate the law because consumers are deceived. But even if some consumers are misled by Amazon's relevance searches, Amazon's overall rationale for this practice -- it wants to tie reviews of books to specific editions -- seems to have been borne from a desire to prevent consumer deception. In addition, unlike companies who engage in unfair business practices, Amazon does not directly profit from the policy. It sells the same number of books with or without the policy (just not as many of our books!)
Does the policy violate any agreements? Your publisher might be able to challenge the policy if it violates the Amazon publisher distribution agreement -- but that's doubtful because Amazon likely preserves the right to make such policy changes. The policy also doesn't appear to violate the Author Central end-user agreement.
Bottom line dept. Alas, the message from Amazon is that an author jeopardizes goodwill by updating books. There are many workarounds that Amazon could have instigated -- for example, a tag such as "This review refers to a previous edition." And some authors have reported some luck using Author Central's call-in service (while others have not). Jeff, if you're reading (and for some reason we don't think you are), keep in mind that we're also loyal Prime customers!
Tuesday, December 11, 2012
Rights associated with a book are always separable. Typically, the publisher obtains worldwide English-language print rights. These are the rights to sell book versions of the work and nowadays that includes "passive" eBook versions -- for example, Kindle, ePub or Mobi book rights. These eBook formats are passive, not interactive, or as publishing attorney Lloyd Jassin states, these are "verbatim" displays of text. (Note, older "legacy" contracts were not clear about who retained these ebook rights.) Enhanced eBooks, such as are often sold in iBook or App format often include features that allow the reader to engage additional content or media or otherwise engage the user. They are considered interactive, and Jassin believes that most publishers are not in a position to exploit them. In the old days -- back in the 1990s, interactive rights might only be applicable for videogames or CD-Rom applications based on the book. But nowadays the borders are often blurred. The closer the work is to a verbatim reproduction of the text, the less likely it would be considered interactive ... Wow, have eBooks really been around for 40 years? ...
Monday, December 10, 2012
Dear Rich: Can you tell me if I can use the original Statler & Waldorf masks on YouTube without getting into copyright problems? I want to do an item in our show (which is being planned at the moment) with us wearing the masks and do activities and visit events and comment on it! We are planning to earn money with YouTube (don't think the chance is big, but we don't want trouble if we would start earning money with it) Or is there a website where I can find out stuff about the copyright of the muppets? Statler and Waldorf -- the heckling Muppets named after New York City hotels -- are both protected under copyright law. The copyright is owned by Disney. Your use is likely to be considered infringing -- you are creating a substantially similar work that does not seem to be transformative, such that it would be permitted as a fair use. (BTW, The copyrights for Muppets that first appeared on Sesame Street are owned by the Sesame Workshop).
Bottom Line Dept. We've written several times about getting permission from Disney (put "Disney" into search box on right), but you don't need to bother reading those entries. Disney is highly unlikely to give you permission. The bigger issue is whether they'll notice your use, and if they do notice whether they'll care. As always, the more popular you become, the more likely you'll get a cease and desist letter.
Thursday, December 6, 2012
Dear Rich: I've read your response on the publishing of Great Uncle's diaries and appreciate that. I have possession of a Folsom prisoner's diary that goes from about 1911 - 1915. It was given to me by a friend and local historian about 30 yrs ago. I've found "his last name" in the diary, but I know he was never a prisoner, so am figuring he was given it by a relative. I don't remember years ago him mentioning a familial connection, but it's logical (and not a very common name). The man who gave me the diary has been dead over 20 years now. His wife has been gone close to that long too. The diary writer is not identified. There is a short poem inside the cover though that was written by a man who's not referred to anywhere else in the book so I've wondered if he might have been its author. I haven't taken it to Folsom yet because I'm wondering if I shouldn't work too hard to know who the author really is? Am I allowed to publish a "diary by an UNKNOWN prisoner at Folsom"? Can I get a copyright to do that? The diary is either (1) in the public domain -- in which case anybody can reproduce it and nobody can claim copyright -- or (2) it is protected by copyright -- in which case ... well, read on.
Is it PD? Probably the biggest issue is whether the work is considered anonymous or not. Under copyright law (scroll down), an author's contribution to a work is “anonymous” if that author is not identified on the copies of the work. We're not sure if that's the case with the diary, but if the author is not identified, the copyright lasts for 120 years from the date of creation which is unlikely to make it public domain. If it's not anonymous and you can identify the author by perusing the diary and the author died before 1942, you can claim public domain status and freely reproduce the diary. Sound confusing ... but wait there's more. You may want to take a look at a rarely used section of copyright law, 17 U.S.C. § 302(e), which states:
(e) Presumption as to Author’s Death.— After a period of 95 years from the year of first publication of a work, or a period of 120 years from the year of its creation, whichever expires first, any person who obtains from the Copyright Office a certified report that the records provided by subsection (d) disclose nothing to indicate that the author of the work is living, or died less than 70 years before, is entitled to the benefits of a presumption that the author has been dead for at least 70 years. Reliance in good faith upon this presumption shall be a complete defense to any action for infringement under this title.Bottom Line Dept. The lineage for this publication seems so distant (and tangled) that you may decide to proceed with publication regardless of copyright law. After all, the only way someone can stop you is to demonstrate that they are the copyright owner which -- based on your info -- seems like a difficult task. If the chances of being hassled are slim, you may wish to risk it for the sake of popularizing this historic document.
Wednesday, December 5, 2012
Tuesday, December 4, 2012
Recording the assignment. In addition to registering the work, you can also record the assignment agreement with the Copyright Office. It's not necessary but it makes the document available for public inspection and can help establish priority of ownership rights if there is a dispute. The procedures for recording transfers are explained in this circular.
Monday, December 3, 2012
Yoga moves can't be protected by copyright. As you're probably aware, we wrote about a similar situation last year in which the so-called "owners" of Bikram Yoga techniques sued 'Yoga To The People.' We're not aware of a resolution of that dispute but shortly after posting our response, the Copyright Office weighed in with a letter stating that yoga moves, and the ordering and selection of public domain yoga exercises, are not copyrightable. This letter does not have the effect of law but the opinion conforms with most copyright experts -- physical practice techniques are not subject to copyright. Therefore, we don't believe the orgasm techniques you borrowed or invented will acquire copyright protection (though of course original illustrations or text about those techniques can be protected). As for trademarks, it's possible that, like the Bikram folks, someone can own trademark rights to the name under which a physical technique program operates -- for example "Bikram Yoga" or "Bikram's Yoga College of India." But it would be difficult, if not impossible to acquire trademark rights to the name of a specific exercise. Nevertheless, if you're paranoid, change the wording of exercises you borrow, to avoid any confusion. (BTW, patent protection for novel, nonobvious techniques is always possible ... although we have to wonder, are any sexual techniques nonobvious?)
Contracts and permission. Yes, the email should suffice as permission with a couple of caveats. (1) Even if a technique cannot be copyrighted, a person can contractually agree not to copy it. (2) Some contracts prohibit modifications unless there is a writing signed by both parties. We doubt whether this will be an issue for you and we understand the need for informality so you're fine as is. Nevertheless, if you are concerned about formalities, you may want to amend your contract to provide for the permission.