Friday, June 28, 2013
Contracts that can't be voided. In some states -- for example, California and New York, certain contracts with minors (and with a parental consent) can be approved by a court thereby making it relatively bullet proof from attack by a minor. And although we didn't get into the details in our previous post, certain contracts -- whether or not a parent co-signs -- cannot be disaffirmed by a minor if they are for payment of taxes, banking agreements, military obligations, or necessities. (Also parental consents releasing a minor from injuries -- for example, a release at a ski resort -- may not always be binding on a minor.)
Thursday, June 27, 2013
When a minor's consent is needed ... A minor (a person under 18 in most states) lacks the capacity to enter into a contract. What that means is that if a minor signs an agreement the minor can void (terminate) the agreement any time before reaching 18. If the minor turns 18 and hasn't ended the agreement, it can no longer be voided. For that reason, persons entering into contracts with minors also seek the consent of the parent or guardian, usually with a statement such as "I am the parent or guardian of the minor named above. I have the legal right to consent to and do consent to the terms and conditions of this agreement."
Wednesday, June 26, 2013
Do you need to register your name? Many actors have acquired trademark protection for entertainment services -- for example, Robin Williams, Clint Eastwood, Meg Ryan and Sandra Bullock. But the vast majority of actors don't register their names as trademarks (including Tom Cruise, Julia Roberts, and Dustin Hoffman) because there's usually little need for trademark rights for movie actors unless they are offering a non-entertainment business such as a line of perfume or fish and chips. In addition, you don't need to worry about someone else registering your name. Living persons must consent to use of their name, so for example, the USPTO routinely prevents registration of well-known celebrities by profiteers seeking to cash in. Typically, actors find reasonable protection via actor's unions -- for example, one goal of the Screen Actor's Guild, (SAG) is to steer new registrants away from using any names that appear in their database (including derivatives, for example "Tommy Cruise").
Tuesday, June 25, 2013
Acquiring ownership of contractor works. Your non-profit will own the copyright in the coursework (and not have to seek permission) if the contractor signed a work for hire agreement at the time the materials were prepared. Alternatively, you and the contractor might have signed an agreement containing an assignment provision -- an arrangement that says something to the effect of, "I assign all copyright in the work I created to the not-for-profit." Either of these arrangements allow the non-profit, as copyright owner, to freely exploit the materials including publish them online. Although it is probably too late to execute a work made for hire -- such agreements should be made in anticipation of the completed work -- the contractor can execute an assignment at any time.
License it. Even if the non-profit doesn't own copyright and can't acquire ownership via an assignment, the nonprofit may have acquired a nonexclusive implied license to reproduce the materials for their intended purpose. That is, if you hired the teachers to create course materials and the teachers were aware of your intention to publish the materials online, you would still have an implied license to publish the materials online. The drawback to an implied license is that it is nonexclusive and the teacher can offer the course materials to others, as well. In that case, you can still achieve your goal by executing an exclusive license for the rights you want. You can find sample agreement for most of the purposes discussed above in our Getting Permission book.
Friday, June 21, 2013
Thursday, June 20, 2013
Startup expenses. Startup expenses are a whole different topic. Unlike business operating expenses, start-up expenses cannot all be deducted in a single year. This is because the money you spend to start an inventing (or any other) business is a capital expense -- a cost that will benefit you for more than one year. Normally, you can’t deduct these types of capital expenses until you sell or otherwise dispose of the business. However, a special tax rule allows you to deduct up to $5,000 in start-up expenses the first year you are in business, and then deduct the remainder, if any, in equal amounts over the next 15 years. (IRC Sec. 195.)
Wednesday, June 19, 2013
Anti-bootlegging law. It's true that copyright only protects "fixed" performances -- works that are considered "sufficiently permanent" to be perceived and communicated. And the "fixer" -- the party who records it with authorization -- is often presumed to be the author or co-author of the sound recording copyright (although not the author of the underlying song composition). In addition, in 1994, a new law was adopted -- anti-bootlegging legislation that prohibits someone from making unauthorized recordings of live performances and transmitting, duplicating, or "trafficking" in the sounds on that recording (see 17 USC 1101).
Did Band 2 violate the anti-bootlegging law? We know of no cases similar to yours -- where someone makes an unauthorized bootleg recording and then constructs a new recording (without using any sounds from the bootleg) that is similar to the unauthorized bootleg recording. We doubt whether this constitutes a violation of the anti-bootlegging law because Band 2 is not distributing the unauthorized recording to the public -- they're distributing their own recording. We think any claim regarding infringement of sound recording copyrights is going to be difficult to make. We think you'd be better off focusing on infringement of song composition copyright. (You can read about the differences between the two copyrights here).
The song composition copyright. If Band 2 registered the song composition at the U.S. Copyright Office (and you can check the records here), and Band 2 listed themselves as authors of the composition, that may amount to fraud on the Copyright Office. (Band 2 can't be the authors if they've pilfered the song from Band 1). We're also not clear about how much of this is an unprotectable "jam" and how much is a protectable "composition." That is, if you are registering a song, you can stop others from using some combination of elements such as bass parts, chord structure, lyrics and melody lines. You may not be able to stop the use of other combinations or elements, such as harmonies, drum parts, or common chord structure such as a standard 12 bar blues progression. Assuming Band 2 took enough to claim an infringement of a song by Band 1, we'd recommend using the original live bootleg recording (which you state you have a copy of) to register the work at the Copyright Office and then pursue a claim of infringement of the song copyright. Because the facts on this are so unusual, we'd welcome any reader comments.
Tuesday, June 18, 2013
Monday, June 17, 2013
Knockoffs ≠ counterfeits. Although many people use the terms interchangeably, knockoffs and counterfeits are not the same. A knockoff purse resembles another company's purse but doesn't use the names or trademarks. For example, a knockoff purse would lack the Chanel Double-C logo (left). Counterfeiting is the act of making or selling lookalike goods or services bearing fake trademarks, for example, a business deliberately duplicating the Chanel trademark on purses.
Likelihood of confusion, the basis for a trademark infringement claim, is self-evident in counterfeiting, because the counterfeiter’s primary purpose is to confuse or dupe consumers. But unlike typical trademark infringement, even when a buyer knows that the product is a fake, the business is still liable for counterfeiting, because the product can still be used to deceive others.
Trafficking is the crime. It's a federal crime to traffic in counterfeit goods. According to federal law, the term “traffic” means to transport, transfer, or otherwise dispose of, to another, for purposes of commercial advantage or private financial gain, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or otherwise dispose of. Because customs officials are only interested in trafficking, they crack down on large shipments but allow a U.S. citizen to bring in one counterfeit product per class (scroll to Section (d) Exemptions).
Book Alert! And if you're looking for a noir-ish mystery in which counterfeit goods are the root of all evil, check out The Accident: A Thriller.
Friday, June 14, 2013
Putting together the pitch. There's a lot that goes into a TV pilot pitch: an outline, production costs, loglines -- short summaries of several episodes -- and sometimes a sample script. All of these elements can be protected by copyright and you can chase anyone who reproduces these elements using copyright law but ...
Protecting ideas. The trouble with relying on copyright protection is that it won't protect your underlying ideas -- the kernel on which the pitch is based. For example, the idea of an African prince coming to the U.S., losing everything, and being forced to fend for himself in an urban environment, is not an idea that can be protected by copyright. The people who submitted this idea to Paramount studios were not paid when the movie, "Coming to America" was produced. They were able to achieve a small victory when they sued under a theory -- not copyright -- that a contract was breached (the option agreement that Paramount and the writers had signed).
The implied contract. Unfortunately, not everyone pitching an idea signs an option agreement. So lawyers became more creative and subsequent idea-theft cases expanded the theory to "implied contracts." That is, the idea for a dance competition show was submitted with the understanding of being compensated, even though there was no written contract. Ditto for a pitch that turned into a show called Royal Pains. These implied contract claims often fail or are settled as nuisance lawsuits (it's cheaper to settle than deal with the court case). And those that succeed usually take years before a recovery or settlement. For that reason, the best protection is some form of documentation like an option agreement. Studios or producers are wary, particularly if the idea is unsolicited or the person making the pitch is unknown. For that reason, lawyers believe the best strategy is to avoid pitching an idea until the other side conveys some interest in hearing it and it is clear that the arrangement is for compensation. And of course, document all of this. (Here's a previous entry, and another on idea submission protection -- and here's an article on the history of this type of protection.)
Thursday, June 13, 2013
Trademark rights. We think you mean "How do we register the name of our documentary as a trademark?" The answer is that you cannot federally register a single title for a book, documentary or fiction film as we discussed in a previous entry.
Wednesday, June 12, 2013
Creating a logo inexpensively. Have you tried typing "create company logo" into your search engine of choice? You should find many businesses that advertise this service for under $50. Our caveat is to avoid using a logo that resembles a competitor's trademark. Learn more about trademarks here.
Can you post a picture of an author and/or quotation? The quote will be fine (read more here) but you may run into problems if the photo of the author is protected by copyright (see below).
Can photos be used that show up in Google Image searches? Copyright law -- we're going to assume you're not familiar with the principles -- enables the copyright owner (often the photographer) to stop others from using the image without permission. So, if you use an image that shows up in Google Image Search and it is protected by copyright, the owner can hassle you and possibly seek compensation for the unauthorized use. (You'll note that when you click on an image in Google Image Search, you may see the message "Images may be subject to copyright.") You don't need to ask permission for images that are in the public domain, a status achieved by old age (or related factors -- for example, if the copyright owner has dedicated the work to the public domain). Alternatively, the owner may retain ownership but permit commercial uses under a Creative Commons license (attribution is typically required). In either case, the rules are complex and often confusing. Some sites offer a wealth of public domain materials and others claim to offer "copyright-free" materials although the pedigree is sometimes difficult to verify. Usually the safest route is to pay for photos at a site such as istockphoto.com. For more specific information, we suggest you hop on your favorite search engine (or pick up our book on permissions).
Tuesday, June 11, 2013
What about the gray areas? Things get tricky at the intersection of communicative and commercial uses -- such as limited edition art prints. In that situation, a ten-year old Ohio ruling favors your friend. An artist painted Tiger Woods at the Masters Tournament and later sold more than 5000 prints of the image superimposed with other great golfers. (Here are some details on the artwork). A federal court of appeals ruled that the sale did not violate Tiger's right of publicity. A related ruling regarding paintings of the University of Alabama's football team -- though it dealt more with trademarks than the right of publicity -- also was in favor of the artist. Both of these cases took years and a great deal of attorney time and fees to decide. So, although the law may be on the side of your friend, that doesn't mean he can't be dragged into court to defend his rights.
No copyright infringement. Also, we're assuming that the prints being sold are made from your artist friend's original paintings. If the paintings are by another artist, or if they are based on a photographer's original photos, then your friend could be hassled for claims of copyright infringement by the original artist or photographer respectively.
Monday, June 10, 2013
What's typical? Most LLCs (and corporations) are organized in one state and may or may not have to register ("qualify to do business") in other states. The state in which the LLC is organized is usually the state in which it has its principal place of business or where some or all of the owners live. If the LLC plans to do business in other states, the LLC must qualify in those states. Keep in mind, your LLC must only qualify in other states if it is engaged in intrastate commerce, not if it's engaged in interstate commerce. (This article explains the distinction.) If the only connection that your LLC has with Colorado is that an owner lives there, that would not be a basis for qualifying to do business in Colorado. If, on the other hand, you operated stores in Colorado, you would likely have to qualify.
What does it mean to qualify to do business? "Qualification" refers to a registration process that
involves filing paperwork and paying fees—similar to the procedures and fees required for incorporating or forming an LLC. You must also designate a registered agent—a resident person or company in the state who agrees to accept legal papers on your behalf in the state. The qualification fees range from $100 to $300 or more (depending on the state). Your Secretary of State can fill you in on the requirements.
Other filings ... Because we're not clear where and how you operate your business, we're not sure what other filings you will need to make. LLCs, unlike corporations, do not pay income taxes. The owners must declare the LLC income on their personal returns. However, it's not always this simple -- for example, many states require qualifying LLCs to withhold state income tax from their profits. Consult a tax professional for the best course of action.
BTW Dept. We're the co-authors of an eGuide on the subject of out of state business. That guide provides more depth if you need it.
Friday, June 7, 2013
Proving publication ... Steve Fishman, author of The Public Domain (of which we are the editors) does recommend a conservative course of action when using TV series from the 1950s and 1960s. That view is based on the confusion as to whether syndicating television shows is a "publication," triggering the renewal requirement. Two courts have ruled that syndication agreements where there is no copying does not amount to publication. (Broadcasting the original shows is not considered publication.) Fishman writes that "[T]he riskier course of action is to rely on the assumption that programs syndicated in 1964 and earlier have been published for copyright purposes. Therefore, if they were syndicated before 1964, they had to be renewed 28 years later or they entered the public domain."
That Said Dept. We respond to a lot of queries regarding the public domain and often we respond based on a risk analysis -- how likely it is that we think the reader will run into a problem. We believe these Dragnet episodes fall in a middle-world between public domain and copyright-protected -- a place where orphaned works live or where rights are not clear, and as a result, where owners don't appear to enforce copyright claims. We must add that the fact that many people distribute these episodes without apparent consequence is not a guarantee of future behavior (nor can we comment on the moral consequences of these uses) but the risk of copying the Internet Archive episodes or those duplicated by public domain vendors seems substantially lower than copying those episodes legitimately licensed by the copyright owner.
Thursday, June 6, 2013
Wednesday, June 5, 2013
Okay so far ... If this is accurate, and the journal and foundation own their respective copyrights, you don’t need permission from Authors C and D to reprint or adapt portions. Authors C and D no longer have copyright in those works. If, however, the co-authors own the copyright in the foundation report, then the co-authors are co-owners. In that case, you can still reproduce the report without the consent of C and D, assuming you're not contractually bound otherwise, and provided that you share your book revenues with C and D based on the value of their contribution. (Yes, we know ... good luck figuring that out!)
Credits. Although copyright law does not require attribution, Authors C and D may still have a legal claim if their name is removed from the article, particularly if C and D can prove that removing their names caused injury to C and D's professional reputation or that you had an agreement to share credit. This is important if you work in a field where credit for publications is crucial for job advancement. You can avoid the potential hassle by crediting the article and the report in the same way as they were originally published (By the way, most copyright experts agree that making a work publicly available on the Internet is a form of publication.)
Tuesday, June 4, 2013
|what a bank employee once told us ...|
How does Amazon get away with it? Amazon requires that users assent to its Conditions of Use in order to post a review. Those conditions state: "You grant Amazon and sublicensees the right to use the name that you submit in connection with such content, if they choose."
What can you do? The safest route would be to use short excerpts from the reviews -- say 20 words or less -- and to avoid identifying the reviewer. Definitely don't use last names or screen handles, avatars, etc. First names and initials are probably fine unless they're so unique as to identify the person.
But what about what Amazon does on Facebook? There's a whole different set of rules when Amazon pays Facebook to use your name and endorsement on products.
Monday, June 3, 2013
It’s the law. Listing the correct co-authors on the application – that is, the persons who made material contributions to the songwriting -- isn’t just a matter of fairness, it’s the law. Making false statements – if they are discovered -- may be labeled as fraud on the Copyright Office and could invalidate the registration. Of course that hasn’t prevented abuses – for example, some performers have demanded and gotten songwriting credit as a condition of performing a song.