Thursday, January 31, 2013
If you're a "dot-your-i's" kind of person ... The permissions required are fairly straightforward and include permission to "perform" and "reproduce" the poems and songs. In the case of Leonard Cohen, you'd need permission from the owner of the song (probably a music publisher) but you wouldn't need permission from the owner of the sound recording copyright (the record company). We have permission forms you can adopt for these uses in our permissions book.
Wednesday, January 30, 2013
Right, you had a question. Image copyrights are owned by the person who created the image - the photographer. If the image contains separately copyrightable material--for example, there's artwork within the image, or the architectural design is copyrightable -- then permission is required from the photographer and the artist or architect whose work appears in the photo. There are many exceptions to these rules, for example, if the exterior is publicly viewable or the reproduction qualifies as a fair use. We wrote about many of these issues in this post on architectural photos. The only other issues that might arise would be contractual (did you agree not to post images?) or privacy (did you invade the client's privacy in some way by posting the images?). Assuming these are standard interior shots without client identification (as commonly seen on Houzz), we doubt that the latter issue will arise.
Tuesday, January 29, 2013
Can a gallery be liable? Yes, galleries, museums, flea markets, swap meets or any other venue where infringing goods are sold can be liable for what is known as either vicarious, contributory or indirect infringement. Although each of these has different standards, the major principle in cases like this and this is that if the venue had knowledge of the infringement and benefited, the owner of venue can be brought to trial.
Monday, January 28, 2013
Friday, January 25, 2013
Thursday, January 24, 2013
Design patent or utility patent? Although you're using the word "design" to describe your innovations, they don't sound like design patent material (which is reserved for the appearance of functional objects). If your innovations enhance safety or security, then they are functional and may be the subject of a utility patent. Read up on utility patents to decide whether your ideas will qualify. Keep in mind that the date of your invention -- 2004 -- is less relevant now that the new patent law will go into effect in March. And if you've made any public disclosures of your idea, that will likely kill any patent hopes. As for the notarized envelope, don't expect that to provide any protection. It's sometimes referred to as a "post office patent" or "poor man's patent." But whatever you call it, alas, it doesn't prove anything.
Wednesday, January 23, 2013
Tuesday, January 22, 2013
Friday, January 18, 2013
Right, you had a question. We've said it before in other blog entries, but we're happy to repeat it here: Anyone is free to photograph publicly viewable buildings in the U.S., (even those constructed after architectural copyrights were legitimized). Under copyright law, building owners cannot prevent you from taking photos from a public spot and they can't hassle you over manipulations or other "pictorial representations." As for hassling you over patents, that's a non-starter. The design and appearance of a building can't be protected by a utility patent. Arguably, it may be protected by a design patent but that could only be infringed if someone created a similar building. As for trademark protection, it's possible that uniquely shaped structures such as the 1111 Lincoln Road parking lot may claim trademark rights (we found a registration for the mark, "1111," Serial No. 77816143) but even if the parking lot achieved trademark/trade dress status, the owners can't stop artistic or editorial uses such as a photo exhibition, or a book from an exhibition (or even for use on postcards).
Thursday, January 17, 2013
Wednesday, January 16, 2013
Leader as sole proprietor. If the leader hires the band members and pays them as contractors --- for example, contracting for performances -- then he is a sole proprietor and the band members are considered independent contractors. In that case, you would not be bound by the agreement unless you signed it, as well.
Partnership? If the band is a general partnership (the parties share in the liabilities and profits), band members may be bound by the signature. (You do not have to have a formal partnership agreement to be a partnership.) Typically, you're a partnership if you all contribute to the business (equipment, time and money) and share income (performance, royalties, etc.) In that case, any general partner can bind the band. So, if the leader signed the agreement on behalf of the band then the band could be bound. (Here's an article about contract signatures.) If you have a copy of the agreement, check to see whether the partnership is named as a party to the agreement, in which case all of the partners are bound "individually and collectively".
Corporation or LLC. If the band has incorporated or formed an LLC, the leader could also bind the band if corporate or LLC documents authorized the leader to sign on the band's behalf.
Tuesday, January 15, 2013
Right, you had a question. Generally, novelists and dramatists can get away with fictionalizing real life people and events without permission, and those who object usually have a hard time winning claims. (This article explains some of the rules and exceptions, and we explored similar issues in this blogpost.) In your case, we think extra-care is required because you are basing the play on a copyrighted work in turn, based on real people. The more likely that a viewer of your play finds similarities between the stories or characters from the show -- similar names, dialogue, appearance, etc. -- the more likely the show's producers (or the persons appearing in the show) may object. We're not saying you can't succeed on a First Amendment basis, but you will be best served to make the characters distinctly distinguishable from the folks on TV. Of course, this is dependent as well on the producer or show participants learning of your play.
Friday, January 11, 2013
Fair use? We're not sure about your fair use defense; it all depends on whether your use of the photo could be considered transformative. Maybe ... but it really doesn't matter because as readers of this blog are aware, even when the experts claim it's a fair use, that often has little practical effect.
Bottom line dept. Are yearbook photographers from 30 and 40 years ago likely to see your video, recognize their photos, and complain? We think the chances are slim.
Wednesday, January 9, 2013
Chapter 11. One hurdle is the bankruptcy. If the judgment were incurred prior to the filing of the bankruptcy, it's going to be tricky (maybe impossible) to enforce. We're guessing that judgments and debts like yours (unsecured creditors) were scrubbed when the company emerged from Chapter 11 bankruptcy.
Even if we're wrong ... Absent the bankruptcy, it's sometimes cost-prohibitive to enforce a debt of less than a thousand dollars. The good news is that you have plenty of time -- in some states up to 20 years -- to enforce a judgment (statutes vary). You can track down a business's assets using online services. If you're handling it without an attorney, you'll need to do paperwork -- for example, maybe file an Abstract of Judgment -- depending on the state law where the judgment is enforced.
Tuesday, January 8, 2013
Turf protection. There's a lot of money riding on the proposition that trademarks can protect these public domain franchises -- for example, Disney's proprietary approach to Cinderella, Pinocchio, Snow White, Little Red Riding Hood, Sleeping Beauty, and the Little Mermaid. Peter Rabbit's lawyers are internationally active and we assume the Hasbro and Simon & Schuster legal teams for Raggedy Ann (and BFF Andy) are also vigilant.
Bottom Line Dept. We don't want to discourage your use of public domain materials and we like your book ideas. We also think that there's some case law that supports your position -- for example, the Supreme Court prohibited the use of trademarks to create a "mutant" copyright regime and the high court also liberated titles of public domain works. There's simply no bright line test to determine when (or whether) fictional characters from public domain books can be used to limit public domain reproductions. For that reason, proceed with care. As a general rule the further you stray from the original public domain publication, the more likely you are to trigger a cease and desist letter. And if you plan to proceed with your projects, include prominent disclaimers stating that the works are not associated with the various trademark owners.
Monday, January 7, 2013
Friday, January 4, 2013
|P.S. We miss John Candy! R.I.P.|
If you inherited ... Your next step is research and documentation. If you and your brother inherited your mother's share, you will have some paperwork ahead of you. First, you need to determine the sources of the royalties. Then, you must contact the sources and provide them with appropriate documentation proving that you are entitled to the payments. This may require providing a death certificate as well as estate or probate documents (state laws differ) demonstrating you are the heirs. Most likely you will have to contact your mother's siblings.
As for the name and likeness ... Making money off your grandfather's name and likeness (from endorsements, etc.) depends on the contracts he signed while alive, the contracts signed after his death and state "right of publicity" laws -- some states provide for post-death rights, others do not. Again more research is needed. Possibly, somebody is coordinating these endorsements, and that most likely is one of your aunts or uncles, or someone appointed by them to manage these endorsements. Research is needed!
Thursday, January 3, 2013
What about trademarks? The company is more likely to object to the sale of the modified doll within the original packaging. That raises a trademark issue -- consumers are more likely to be confused -- and it implies that Mattel is the source of the derivative. When selling it on Etsy, you can mention that it is a modified Barbie doll but if you're really concerned about liability, include a disclaimer that the modified dolls are not endorsed by or associated with Mattel. That will make it more challenging for the company to claim consumers could be confused.
Wednesday, January 2, 2013
What gives them the right? Laws about unregistered marks are derived from a way-old English business principle: if someone attracts customers (goodwill) it is unfair for someone else to falsely pass off products or services with a similar trademark, thereby confusing consumers. Sometimes these state or federal laws are referred to as unfair competition laws, or unfair business practices. Famous unregistered trademarks can be protected under federal dilution laws. (Note, some functioning regional trademarks may not qualify for registration because they are not used in commerce regulated by the federal government -- typically, interstate commerce.)
The registration process. Some people believe that registration is the process of turning a name into a trademark. Actually, it's the opposite. You can't get a registration unless the name already is a trademark. Once your examiner is satisfied that you have a trademark, registration is granted and that enhances your already-existing trademark rights. Registration gives the owner a presumption of ownership, provides constructive notice to other companies in the U.S., and offers the hope of incontestability (after a few years). Registration may also increase your payment in case of a willful infringement.
The unregistered trademark. As noted, an unregistered first user of a trademark can often claim trademark rights within the geographic selling area. But keep in mind that having an unregistered name is not the same as having an unregistered trademark. You can't claim trademark rights, unless the moniker meets the legal requirements of a trademark -- that is it's distinctive and associated with your goods and services.
The way it is. All that said, nowadays, the tendency is to register as much as possible. That's partially attributable to the Internet: registration helps in domain name battles and the Internet has made made many regional (previously local unregistered) trademarks into national businesses. In addition, registration is now de rigueur for startups whose equity investors perceive it as adding value.