Friday, June 28, 2013

More on Parental Consent for Contracts

Dear Rich: In yesterday's blog, you mentioned that a parent's consent should be obtained when contracting with minors. What's the effect of a parent signing the agreement with the statement that you note? Do you think the parent's signature cuts off the minor's right to void the license agreement while still a minor? As a general rule, a minor can void an agreement signed while under the age of consent (18 in most states) prior to reaching the age of consent. If a parent or guardian co-signs an agreement with a minor, the parent is obligated to fulfill the contractual obligation (if possible) or compensate for the damages caused by the termination of the contract. For that reason, assignments by a minor typically include parental consents such as this one for magazine submissions, or this one used for student entries in a contest. We caveat this by saying we have not found any cases where a minor sought to void a copyright assignment or copyright license that was co-signed by a parent or guardian ... so we can't guarantee that a parental consent on a license will be enforced. However, by analogy, patent law does not require consent by a minor's legal representative for oaths or declarations.
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

Needs Minor's Consent For Cover Artwork

Dear Rich: I am creating a book cover for a book I wrote. I would like to use some images created by a kid. Although I don’t know them, the kid’s parents and I share what I consider a good friend. The kid spent a good amount of time creating these images for me, and I really want to give her credit for them in print – both inside the book, and on the back cover where the images will be. Just a statement indicating she created them, and that she and I share copyright on the cover. What are the legal ramifications of doing so, based on her being a minor? Can I feasibly do this with a simple release of some kind? Her parents are all for it, and have indicated they are willing to sign whatever I come up with – once they read it of course. Compensation for my use of the images has already been discussed, and agreed on. The Dear Rich Staff is no stranger to commissioning artwork for kids book covers. (Check out Steve Purcell's awesome cover for one of our free kid's books.) To acquire these rights, we usually license the artwork for exclusive use in connection with books and allow the artist to retain copyright. In that way we're the only ones who can use it on a book cover but the artist can reproduce the imagery for other purposes. You can do that by creating a simple license agreement ("The artist licenses to author .... etc.") Alternatively, you can do what many book publishers do and acquire the copyright via an assignment agreement. In that case, you, not the artist would control all rights to the illustrations ("The artist assigns to author ... etc.") (This article explains the differences between assignments and licenses.) You wouldn't use a release unless you needed to get permission from a model or a person whose image is featured in the artwork. (You can find all of the forms discussed above in our permissions book.)
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

Should Actor Register His Name?

Dear Rich: I'm starting out as an actor. What's the best way to get a trademark on my name? If you are just starting out as an actor, you'll probably have a few hurdles to registering your name at the U.S. Patent and Trademark Office. Your big challenge is demonstrating that the public associates your name with acting/entertainment services -- a tall order for someone who's just starting out. The Trademark Manual For Examining Procedure (TEMP) explains the requirement here, and provides other details on registering performing artist names.  Also, you cannot register the name of a living person without their consent so you will need an affidavit for that purpose. (Here's an article we wrote about registering family names).
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

Does Not-for-Profit Own Teachers' Courses?

We are a not for profit that has several courses and workshops developed by teachers who are contractors. We want to publish the courseware online. What is required to be clear that the IP is owned by our organization not the teacher? They were paid for developing the materials. Absent an agreement to the contrary, a contractor acquires copyright in works created for someone else. (Check our previous entry, Who Owns What I Write For NonProfit?) So if your non-profit wants to reproduce copyrighted materials, you'll need to have an agreement in place. You may have already signed such an agreement, or you can go back now and seek either an assignment or a license, both discussed below.
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.

Thursday, June 20, 2013

When Can I Start Deducting Invention Expenses?

Dear Rich: I've been working on a "green" invention for a few years but I haven't been deducting my invention expenses because I was told I had to wait until I start making the product. Is  that right? According to tax maven Steve Fishman, the general rule is that you can begin making these tax deductions once your inventing business begins using its assets to produce products for sale. However, it’s not necessary that the products be completed or sales be made. Thus, for example, courts have held that a writer’s business begins when he or she starts working on a writing project. The act of production itself is “carrying on” the trade or business of writing. Similarly, courts  have found that inventors who worked on inventions -- but never completed or patented them -- were carrying on a business. Under the logic of these court decisions, your inventing business begins for tax purposes on the day you actually begin developing an invention. Thinking or dreaming about an invention is not sufficient. You must do real work on it -- but it is not necessary for you to finish it, patent it or make money from it. A thorough and complete inventor’s notebook documenting your work is the best evidence you can have to prove when you started working on your invention.
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

Another Band is Selling Our Jams

Dear Rich: If someone (call them Band 2) came to a band's show (call them Band 1) and Band 2 secretly recorded a six minute jam song which Band 1 never wrote down, nor because of it's nature never laid down in a studio etc. or otherwise recorded, and Band 2 made a song out of the jam and copyrighted it and sold downloads on their website, is that legal because the jam song was never "fixed" by Band 1? It depends on what you mean by "made a song out of the jam." If Band 2 used samples or sounds from the recording, then Band 2 would be liable under anti-bootlegging laws, described below. If they didn't copy (sample) any of the recording, then read on.
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

Song Titles as Chapter Headings

Dear Rich: I have written a book that has 40 chapters and each chapter title is a song title by various artists. Only the title was used and I intend on giving a credit listing to the authors of those songs. I know if I use any lyrics in the book I will have to get permission but what about titles only? You can use various song titles as chapter headings without getting permission (and without providing attribution). Song titles are not protected by copyright law and the songwriter cannot use trademark law to prevent your use as chapter headings, either. Using a song title as the name of a book is also fairly common (although apparently things can get litigious when using a song title as the name of a TV show).

Monday, June 17, 2013

Is it Illegal to Own a Knockoff Purse?

Dear Rich: I know it's illegal to sell knockoff purses but is it illegal to buy or own one? Can a person be arrested just for owning a counterfeit? Short answer: Purchasing or possessing a knockoff or counterfeit purse in the U.S. won't get you arrested (unless some U.S. lawmakers have their way). Buying counterfeits is illegal in Italy and France. Although buying a single counterfeit or illegal purse won't get you in trouble in the U.S., selling a knockoff or counterfeit is illegal.
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

How Do You Protect a Pilot Pitch?

Dear Rich: What protection do you need when pitching a pilot? Protecting the underlying ideas that constitute a "pitch" can be tricky. Copyright protection may help, but the key is to demonstrate that there was an implied contract between you and the party to whom you're pitching -- and that the contract was intended for your financial benefit.
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

Happy Birthday Lawsuit

We blogged about this subject three years ago. Somebody finally picked up the gauntlet. Yea!

Can We Use Famous Person's Name in Documentary Title?

Dear Rich: Can you use the name of a famous person for documentary title, and how do you trademark the documentary? Assuming that your documentary has something to do with the famous person, you can use the person's name in the title. As we mentioned in a recent entry, a celebrity's right of publicity doesn't extend to communicative/informational uses such as documentaries or news articles.
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

Can We Use Author Photos and Quotes?

Dear Rich: We're designing a website for our business, and are in need of some basic guidelines to avoid copyright and trademark violations. Specifically, can photos be used that show up in Google Image searches? Also, can I post a picture of an author and/or quote him/her? What about a company logo -- what is the least expensive way of creating one? We're looking for a little excitement today, so we'll answer your questions in reverse order.
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 For more specific information, we suggest you hop on your favorite search engine (or pick up our book on permissions).

Tuesday, June 11, 2013

Will We Get in Trouble for Sports Celebrity Prints?

Dear Rich: Can an artist sell to the public prints from paintings done of famous sport celebrities for profit in California and other places. He was told an artist's 'first amendment publicity' or something like that trumps the rights of the famous person. This artist doesn't seem to be concerned at all but he's a good friend and not in good health and if something happened and if he was drug into court, he'd likely die from the stress and embarrassment to his career (even if he won). Shall I try and stop him? He says if there is a problem he'll simply just stop immediately. I'm worried about him. We think that what your artist friend was told was that "an artist's first amendment right trumps a sports celebrity's right of publicity," a maxim that oversimplifies a complex issue. The right of publicity allows every person to control the use of their name or persona for commercial purposes -- typically on a product (like our Tiger Woods golf ball). However, celebrities cannot control so-called informational or "communicative" (first amendment) uses -- for example, articles, books, or documentaries.
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

LLC Doing Business Out of State

Dear Rich: My business partner and I recently created a non-transacting LLC in Texas, where I live. He, however, lives in Colorado. Is there anything he must file with his state? I have searched all over and cannot find anything. We spent a little time trying to figure out what this question has to do with intellectual property and finally gave up. We're also not sure what a "non-transacting LLC" is. Google doesn't seem to know, and neither does the State of Texas. Do you mean that you're not transacting business in Texas? Knowing where you transact business is key to answering your questions ... In any case, here are some things to consider.
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

Copying Dragnet: Risk v. Public Domain

Some readers were SSCD (shocked, surprised, concerned, and disappointed) over our entry about whether episodes of the Dragnet TV Show are in the public domain. One reader cited Steve Fishman's public domain book as evidence that we got it wrong. "[Fishman] suggests that, because broadcast does not constitute publication," wrote the reader, "and because federal trial courts have decided that syndication doesn’t equal “publication” for copyright purposes, 'the conservative course of action is to assume that programs syndicated before 1964 are not in the public domain, even if they were not timely renewed.'" A similar sentiment was expressed by an attorney who suggested that the first question to ask was "[W]hen did Mark VII productions, the presumed copyright owner of Dragnet, start selling copies of the program?" Readers also warned us about relying on unsupported assertions in Wikipedia or the Internet Archive. All good points (and we hope our previous answer doesn't result in the loss of our license to blog). In our answer, we asserted that some (or all) of the 1951 Dragnet series episodes "appear to be in the public domain" because they've been offered for sale by public domain DVD vendors, because of a claim in Wikipedia, and because of the presence of the material on the Internet Archives. We should have mentioned that relying on the Internet Archives as a standard for the public domain can be risky, and we should have added that unsupported assertions in Wikipedia are not sufficient to ward off liability from copyright owners. The only way to guarantee public domain status is to research and prove publication and then research Copyright Office records and confirm a failure to renew (or some other basis for PD status). In addition, as we indicated in our linked entry, use of the Dragnet theme music may trigger objections from Dragnet Music Company, publishers of the theme tune (and which may explain why some public domain vendors have removed the theme).
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

Wants to Excerpt News Articles

Dear Rich: I'm in the process of writing a book. I'd like to use excerpts from news reports from newspaper articles as introductions to each chapter. Is this covered by copyright? Yes, news articles, like all original textual works, are protected by copyright ... unless of course, they're in the public domain. However, your excerpts from these news articles will likely qualify as a fair use (click for some examples), provided you keep them  short -- for example, 50 to 100 words. In that way, your use appears to fit within fair use guidelines as a "transformative" and excerpted use of nonfiction text for purposes of commentary. We provide our usual caveat when it comes to fair use -- the final word in any fair use dispute is a court, so there are no guarantees (as demonstrated in this recent case). And also, let's not forget how strange some companies can be in their pursuit of copyright "justice".

Wednesday, June 5, 2013

When Co-Author Credit is Removed

Dear Rich: Authors A, B, C, and D are researchers who together write Article X that is published in Journal Y. Authors A, B, C, v D also write a report for Foundation Z, which funded their research. The report goes unpublished except for on the Internet. Later, Authors A and B decide to coauthor a book. Authors C and D will not author anything in the book. Authors A and B have permission from Journal Y (the copyright holder of Article X) to reprint that article in the book. Authors A and B would also like to reprint or adapt parts of the report written for Foundation Z. Do Authors A and B need to obtain permission from Authors C and D to reprint or adapt sections of the report written for Foundation Z? Is it considered plagiarism that Authors C and D are coauthors of Article X but not of the reprinted version in Authors A and B's book? If so, is there a cause of action that Authors C and D can pursue against Authors A and B? Wow, that's a lot of ABC's! We’re assuming that the researchers were independent contractors, not employees of the foundation and that you all assigned your interests in the article to the journal and the foundation.
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

Can We Use Amazon Reviews in Our Product Ad?

what a bank employee once told us ...
Dear Rich: Our software product has gotten great reviews on Amazon. If we were to include any of these reviews in the copy on the software product page, is there anything I should be aware of or get permission for? We know how great it is to get positive online reviews for your stuff. But unfortunately, you must obtain permission before using someone's name or persona to endorse your product. If you don't, you are likely violating that person's right of publicity. (Although there are some gray areas regarding the right of publicity, it's generally acknowledged that using someone's name without permission in an advertisement is a no-no.) In addition, if you copy and post a lengthy review, it's possible (though unlikely) that a reviewer could claim copyright infringement.
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

Can We Share Songwriting Money With Non-Writers?

Dear Rich: Is it possible to fill out the copyright form for a song listing only two songwriters as the official songwriters, but then share the songwriting profits with two more (band members or mommy and daddy). That is, the CDs, sheet music, etc., will list only the two songwriters as the writers but the revenue will be divided, evenly or unevenly, between more people? Should the form be filled out with just the two writers listed and another agreement between the parties made for splitting such profits with band members? I feel that there is no need to misleadingly credit an individual just because you agree he should share in such profits. Sharing song revenue with non-songwriters is not uncommon; many bands do it. To accomplish this, list the current songwriters on the copyright application, and then enter into an agreement with writers and non-writers to share in the revenue (often structured as music publishing arrangements). A lawyer can set up the agreement or you can read how to do it in our music law book.
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.