Tuesday, April 30, 2013
Practically speaking ... If you are only selling the disks locally to members of the community, you can probably forego most of the permissions mentioned above. (It's what often happens when a tree falls in the intellectual property forest.) It may help to have something in writing (emails are fine) between you and the school that indicates you have their permission for your endeavor. If you intend to sell to a broader audience, you will probably need to get the permissions discussed above (and described in detail in the Getting Permission book.)
Monday, April 29, 2013
You hereby agree to grant and assign to Company affiliated publishing company, Mr Publisher (ASCAP) a division of Mr Publisher Media Group LLC a 50% copyright and performing rights interest less collection fees and 100% administration rights in and to each musical composition written, owned or acquired by you during the term of this recording agreement ("Compositions"). In connection therewith, you agree to enter into a separate Exclusive Co-Publishing Agreement with Mr Publisher (ASCAP), the terms of which shall be negotiated in good faith, but which shall include the right of Mr Publisher (ASCAP) to administer the Compositions throughout the world and may elect to charge an administration fee of (ten 10%). Should Company and Sub decide to terminate this agreement all rights of copyright will revert back to Sub unless Company can prove substantial progress in its tenure of administering compositions.Since we are splitting the copyright does that mean they are able to continue selling our music without our permission? Are we able to register our masters with the copyright office on our own given they have a 50% stake? So confused... Whenever the Dear Rich Staff gets a long letter that includes excerpts from a contract, our first thought is usually, "Get thee to an attorney." We think that's the proper course of action in this case. Here's why:
The cure letter. If your basis for claiming breach of contract was a failure to market, book and distribute the band, then by providing the "cure" letter you gave the company 60 days to correct those omissions. If the label failed to market, book and distribute within 60 days of your letter, the agreement is terminated. Putting the music up for digital and physical sale isn't enough to cure. The label needs to demonstrate an effort to market and book the band, too (and correct any other omissions mentioned in your cure letter). If not cured, the label is in breach and your grant (assignment) of publishing rights would be terminated as well. In other words, terminating the record deal for breach would allow you to retain all of your publishing rights and there would be no reason to execute a written publishing agreement.
Get out of it! So, you should stay focused on ending the contract which, by the way, seems a bit lopsided (welcome to the music business). As we understand it, you pay to produce the album and you give up half of your publishing. The label doesn't seem to be taking any risk. After all posting a recording is easy, and creating physical CDs can be done without much of a financial commitment. So, unless the label has an impressive track record with other artists, you'd do best to pool your money, hire a lawyer and make sure the agreement is fully terminated quickly. The annoyingly difficult part is getting the label to take down the music it has posted for sale. In conjunction with getting an attorney, you should also register your music at the Copyright Office and with a performing rights society. And of course, another reason to check with an attorney is that we could be completely wrong about all of this. A second opinion will help.
Hiring a lawyer. If paying for a lawyer is a challenge, find out if there's a volunteer lawyer for the arts service near you.
Friday, April 26, 2013
Is the artwork supplementary or essential? If the artwork is an essential part of the purchasing decision -- as in a home decorating or children's picture book -- that would be more likely to justify a cut of the earnings. If the illustrations simply supplement the writing (as in most nonfiction books), flat fees are more common.
How much time will it take and what is your time worth? Estimate the number of hours per drawing. If you were billing an anonymous client for the same work, what would you charge? This would be your starting point in determining what you want to earn back (though of course there may a steep discount for your friend). The Graphic Artists Guild Handbook provides assistance with pricing.
How likely is it that the book will be distributed by a commercial publisher? If this work will be the subject of a book deal, the typical advance (assuming there is one) for a nonfiction book would be between $3,000 and $10,000 (though others indicate these advances are higher; we don't think that's an accurate reflection of today's marketplace). Royalties would be 5 to 10% of the book's income but would only be paid after the advance has been earned back. Nonfiction books usually have a sales life of 12 to 14 months. If a book deal is in the works, and you feel you are entitled to a cut of the earnings, you should seek to become a party to the publishing contract. Otherwise, you must rely on the writer to receive the income and then forward your payment.
What does your friend want to do? Because you're dealing with a friend -- not an anonymous client -- we'd like to see you work out an arrangement that doesn't jeopardize your personal relationship. You could propose a two-tiered system -- for example a reduced flat fee but an additional payment if a book deal is signed.
What about the rights? Are you transferring copyright ownership? Do you want to retain certain rights so that you can continue to use, sell or display the artwork. Determining rights may affect the price. For example, if you would like the right to sell limited edition prints, or to advertise those prints in the book, you might want to adjust your fees accordingly.
Wednesday, April 24, 2013
- The Second Circuit ruled that it was a fair use to reproduce a series of web essays as supporting evidence.
- A New York district court reached a similar result when copyrighted videos were introduced as evidence.
- A Michigan federal court also reached the same fair use conclusion when construction photos were introduced into evidence.
- The Tenth Circuit excused copying of a copyrighted work for litigation purposes as a fair use in 2007. However, the Tenth Circuit refused, unlike the Ninth and Second Circuits, to establish a fixed rule that such uses, by their nature, are a fair use. Instead, each case should be judged on its merits.
- The Ninth Circuit has stated that the use of copyrighted material as evidence in judicial proceedings is fair use, so long as the users do not reproduce the work for its “intrinsic purpose.”
What's an "intrinsic purpose?" It's a use that is for the same purpose as the copyright holder intended. For example, it was not a fair use when one party copied photos after it refused to pay the $15 per photo fees incurred by a trial evidence firm that had prepared the photos for litigation. In other words, the photos were prepared for the litigation and one party sought to avoid paying for their preparation.
PS. Good luck with your pro se case. (Here's the strategy that the lawyers on the other side will use against you.)
Monday, April 22, 2013
Friday, April 19, 2013
Thursday, April 18, 2013
Wednesday, April 17, 2013
Is it a violation of law? Copyright infringement occurs when a copyrighted work is reproduced without the permission of the copyright owner. So, technically you are infringing by forwarding chapters without permission. We doubt this will turn into an issue for you, however, because it seems unlikely that the copyright owner will learn of your use. And if the owner does learn of your use, the case for infringement is not especially strong because you limited distribution (and damages) and may even be able to qualify the copy as a fair use. You can further limit liability by requesting that the potential client not reproduce the samples and maintain their confidentiality. (That indicates your good faith in limiting reproduction.) That's not as powerful as having the potential client sign a confidentiality agreement (which we doubt you want to do). However, if the potential client asks you to sign a confidentiality agreement, by all means, seek to make it mutual, so that the submissions will be confidential. And in the future, if you use editing agreements, you might want to include a provision that grants you a non exclusive license to reproduce segments of the editing work in your "portfolio" to be shown only to potential clients.
Tuesday, April 16, 2013
As you may already know, there's more to forming a band LLC than preparing the LLC operating agreement. Unlike a partnership, you need to file documentation with your state government. This article explains the steps to LLC-dom.
Thursday, April 11, 2013
How do most cartoonists protect their creations? Most cartoon characters are protected under copyright and trademark law (not patent law). Even though copyright is free and automatic, we still recommend copyright registration (online $35). Read more about copyright protection and registration for protecting cartoons and comic strips. You can also acquire trademark protection for your character. That provides exclusive rights to the character name, logo, and image on certain goods and services. Read more about trademark law, here. Keep in mind, no matter what laws protect your character, you can't prevent others from stealing it. These legal protections give you the basis - assuming you can afford it -- to chase, sue and recover from the wrongdoers.
* That Said Dept. Although there's no way you can obtain a utility patent for a cartoon character (utility patents only protect functional inventions), you can file a design patent, if, for example, your character is incorporated into the design of a lamp base. It's probably overkill in your situation because of the costs involved for filings (particularly if you are seeking expedited treatment). Copyright and trademark laws should provide equivalent or better protection.
Wednesday, April 10, 2013
Amazon's POV. As you know, it's not possible to ask Amazon to exclude specific pages or materials from SITB books. The retail behemoth has the final say as to what's SITB-able (although opting out of the program is possible, even for self-publishers). We're not aware of any lawsuits testing the copyright aspects of SITB, and we assume that Jeff Bezos' legal staff views SITB as the virtual equivalent of browsing in a bookstore (and therefore a fair use).
Your permission agreements. Technically, it may be a violation of your permission agreement to permit the digital display of SITB segments. However, we doubt that anyone will complain about the issue because it will probably be viewed as an accepted part of the book-selling process. However, if your permission agreement specifically prohibits this type of use, you're best off opting out.
Fair use. As for the segments for which you can prove fair use, you should be fine. That's because, if your fair use arguments succeed for the print or electronic versions of the book, they will likely succeed for the SITB virtual display.
Tuesday, April 9, 2013
Rights: Producer shall own all rights of every kind in the results and proceeds of Actor's services hereunder. Producer shall have the unlimited right throughout the universe and perpetuity to exhibit the motion picture in all media, now, or hereafter known. Actor's services are a work for hire.By the way, Donaldson also recommends getting similar "work for hire" contractual assurances from the crew working on the film. Check out his book for more information.
Friday, April 5, 2013
Thursday, April 4, 2013
Question #2: Dear Rich: I am a visual artist from Germany, living in the U.S.A. A few years ago I inherited Gray's Anatomy, the 22d Edition. It has beautiful engravings, and I fell in love with one or the other, and combine them with my own work. I would like to use some of the engravings which are in public domain, but scan the ones from my book for a better resolution. I also would like to remove the text. So, my question, is, am I allowed to use the engravings on bartleby.com without getting in trouble? Although we've already answered a similar question, we'll summarize the rules one more time.
- The 20th edition is public domain in the U.S. because it was published prior to 1923.
- It's likely that the 20th edition is public domain around the world. (That would not be the case if some illustrators of the 20th edition were not anonymous and lived past 1942. PS -All works by Henry Vandyke Carter are in the PD).
- You can freely copy, scan or reproduce images that are in the public domain whether on Bartleby.com or wikimedia.org.
- The current owner of rights and publisher of the 40th edition is Elsevier. (Here's information about their rights and permissions policies.)
Wednesday, April 3, 2013
Does your book infringe? Possibly. You probably remember when a Swedish author was prohibited from publishing a sequel to Catcher in the Rye (even though the lead character's name -- Holden Caulfield -- never appeared in the "sequel.") We could point to other cases as well but the takeaway is that any success you may achieve will be short-lived because it's likely that once the author or movie company learn of your work, they'll try to shut it down (and you probably can't afford to fight over it). On the other hand, if the book stays low on the radar -- for example, it's posted on a fanfiction type site -- the owners may consider it "non-threatening" and allow it to remain posted in obscurity. Because your work overlaps with fanfic, you should check out the Chilling Effects FAQs on the topic.
Tuesday, April 2, 2013
Can I use the title? Even if the sign's content were protected, you can use the phrase "railway enthusiasts disease" without infringing. We don't see any evidence that it's being used as a trademark and short phrases are difficult to protect under copyright law.
P.S. As you've noticed, all of the examples are from British sites, so we're going to assume you're British as well. In that case, we issue our typical disclaimer: our answer is based on U.S. copyright law, which although derived from British law, is not the same.