Thursday, February 28, 2013
Unrealism. If the videographer is being unrealistic and won't agree to the terms described above, he should be made aware that he will be unable to distribute, stream, reproduce or otherwise exploit the video unless he obtains permission from whoever owns the rights to the musical compositions. That's because the video contains (1) an audio-visual copyright reflecting the videographer's authorship, and (2) a copyright in the original musical compositions, in this case owned by the musician's estate. Based on this second copyright -- as well as any claims that the musician's estate may have regarding right of publicity or similar claims -- the videographer can not duplicate, stream, or reproduce the video or audio without the permission of the respective copyright owners.In other words, he is not the sole copyright claimant to the video.
What about dispute resolution? You can also suggest that the parties proceed to mediation or arbitration at California Lawyers for the Arts. If that fails and you're certain that the videographer will never sue, you can always consider the risky strategy of distributing the disks without permission.
The music CD. Typically music CDs are considered to be "sound recordings" which copyright law defines as “works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work.” Since your audio CD is derived from sounds accompanying a motion picture, we're not sure what to make of its status. We believe that it would either be considered a derivative work (derived from the video) or would be analogous to a sound recording. If it were a typical sound recording it would be jointly owned by the musician's estate, any other musicians who performed on the work, and possibly the videographer for fixing the sounds. The trouble with the videographer making claims to the sound recording only is that we're not sure that simply placing a microphone on stage, or hooking a direct feed from the P.A. to video camera constitutes sufficient originality to qualify for sound recording authorship. We doubt it, but we don't have enough information to be certain.
Wednesday, February 27, 2013
1. Are you infringing the magazine's trademark? In your case, no, because you are using it for editorial purposes (as we explained in this post).
2. If there is a person on the cover, are you violating that person's right of publicity? Not based on your use (give thanks to Joe Namath).
3. Are you violating the magazine's copyright by reproducing the cover without permission? Yes, reproduction without permission is infringement. However, you're likely to be excused as a fair use because you're commenting on the magazine and especially if the reproduction is a reduced or thumbnail size (as we discussed in a previous entry).
P.S. Considering the popular definition for "quick question," perhaps we should all reconsider its future use.
Tuesday, February 26, 2013
Dear Rich: I want to be a princess party entertainer for kids. If I make a costume (not licensed) and NOT call the princess by its "Disney" name, can I charge for my party entertainment services? Is there a loophole on the whole copyright thing? What about celebrity impersonators? Can't I be the blue princess celebrity impersonator? (Dress blue and white, not licensed). Sorry, I'm not trying to get you in trouble with "The Mouse." We're not sure what you mean about being a celebrity impersonator princess ... is it something like this. As for a copyright loophole, we assume you're seeking a legal means of escaping liability for infringement. We doubt whether you would qualify for any of the existing methods -- for example, fair use, the first sale doctrine, etc. Under copyright law, Disney can go after anyone who reproduces or exploits a substantially similar version of one of their proprietary princesses. Even so, we believe most "liability evasion" occurs because Disney hasn't learned about the infringement or is so booked up with legal matters that it cannot act on princess rip-offs. As usual, the lower your profile -- don't book a show on Buena Vista Street in Burbank -- the better your odds of evading detection. Also, you might want to check out our past entry on Disney princesses
Monday, February 25, 2013
Friday, February 22, 2013
Thursday, February 21, 2013
Wednesday, February 20, 2013
Dear Rich: I am the author of several management books about workforce diversity. In two of these, I used an original model to define what I meant by "dimensions of diversity." Over the past 20 years, my model has become very popular in training programs held at universities, in companies and by public organizations. I recently discovered that an unknown competitor is featuring my model (a derivative, slightly altered version) on her business website and is misrepresenting my original work in her criticisms of it. I would like to deny her the right to reproduce the model - as she seems to me to be attempting to benefit at my expense. She did not ask for permission and I would like to forcefully deny her that now. Do I have any rights here? You can assert your rights but we can't guarantee you'll succeed. Your competitor could argue that your model -- which appears to be a circle within a circle, each circle containing 10 diversity factors -- may be closer to an idea, and copyright doesn't protect ideas, only their expression.
E=MC2 does not equal copyright. We know it took some creative effort to visualize and compile your model but copyright does not protect works because of the labor invested -- referred to as "sweat of the brow" -- or because they contain ground-breaking ideas, methods, or systems. What's required is sufficient textual or visual expression to justify protection. That's not to say, you can't protect your model. Many companies claim copyright in workplace posters and related graphics. But in those cases, the owner be acquiring what is known as a "thin copyright" -- one that would only stop exact or close duplications. In other words, the more modifications that are made to your model, the less likely it may infringe.
So, what should you do? We'd suggest seeking copyright registration for your model. Having a registration doesn't guarantee you'll succeed against infringers but it creates a presumption you have a valid copyright and often, that's all that's needed to stop interlopers. Enclose a copy of the registration and demand the removal of the material. If it's at a website, you may also be able to take advantage of the DMCA takedown rules (scroll down for a how-to). Your competitor may have a few defenses available -- for example, you mention that the competitor is criticizing your model; criticism is a common basis for fair use.
Tuesday, February 19, 2013
Friday, February 15, 2013
What's your jurisdiction? The rule that a corporation must be represented by an attorney is jurisdiction-specific -- that is, it's not a universal rule. For example, in California and New York, the rule does not apply for small claims court but does apply for other civil lawsuits. So, your first step is to determine whether your state (or the particular court in your state) permits corporations to represent themselves without an attorney, and if so, in what instances. Sometimes lawsuits are permitted if the corporation is represented by a director, officer, or employee of the corporation.
Can the "right to sue" be sold? There are many legitimate ways to transfer a right to sue someone. If the right to sue arose out of a contract, those contract rights may be assigned (unless the agreement prohibits or eliminates assignments). Similarly, if the lawsuit is over a debt or an existing judgment, that may be assigned, as well. Many jurisdictions prohibit "champerty," the funding of, or investment in lawsuits and "champertous connivances," (scroll down to P. 165) are rare.
Thursday, February 14, 2013
Wednesday, February 13, 2013
If she was an employee ... If the executive director was an employee of the nonprofit, and if the website was created within the course of her employment, then the nonprofit owns all the content including the appearance and design. That's a basic principle of copyright known as an employee work made for hire. However, having an official title of executive director and managing the checking account don't necessarily make her an employee. Use the government standards for judging whether she can be categorized as an employee or contractor.
If she wasn't an employee ... The nonprofit might still own all rights to the website if there is a contract or other paperwork setting out the executive director's obligations and transferring ownership to the nonprofit. Also check the nonprofit's bylaws in the event they address the ownership issue. Even if there is no paperwork and you conclude the director was an independent contractor, not an employee, there's a good chance that the nonprofit acquired a nonexclusive implied license to use the materials provided by the executive director. Finally, it's possible that the elements contributed by the director are not copyrightable by her -- perhaps because they are based on other material or because they lack sufficient originality to qualify for copyright protection.
Tuesday, February 12, 2013
Designating an agent. You can use the Copyright Office form to designate an agent and you can read more about agents at the Copyright Office site. For more on the DMCA, check out this Nolo article, this Citizen Media article, and this previous DMCA post. .
Monday, February 11, 2013
How do you determine micro-entity status for multiple inventors? The rules apply individually to each joint-inventor. So, no joint inventor can have been named as an inventor on more than four applications, and no joint inventor can have a gross income (as defined by the IRS) exceeding three times the median household income for the preceding calendar year (currently $150,162).
Thursday, February 7, 2013
Wednesday, February 6, 2013
Tuesday, February 5, 2013
What good is ASCAP? ASCAP and BMI (ASCAP's main competitor) can't help you with getting the rights for reprinting sheet music. Those organizations are performance rights societies and grant rights for playing music live or broadcasting it over radio or TV. However, BMI and ASCAP, and their sibling organization, the Harry Fox Agency, (which grants rights for so-called mechanical licenses) are good for a related purpose -- they can provide you with the name, address and contact information for the music publisher who owns the rights. You can then contact the music publisher directly. Publishers differ as to their policies for sheet music reproduction. They often grant sheet music rights for a royalty (typically 10 to 15%) or for a flat fee if it is a limited reproduction (for example, 2,000 books). Of course, mention the nonprofit aspect of the effort (in the hopes that you can get a better deal), and be prepared to be flexible in your choice of campfire songs because in some cases, you may find the publisher non-responsive, or seeking fees beyond your budget.
Using Public Domain songs. We're all for the use of public domain campfire songs. In some cases, however, beware that individuals attempt to claim copyright on PD songs. We've written about the practice in a previous post and offer some suggestions on how to deal with that issue.
Monday, February 4, 2013
|children of copyright owner|