Wednesday, July 31, 2013

Wants Help With Knife Company Trademark

Dear Rich: We are two artisan knife makers in Michigan and we've been getting so many orders that we think we're ready to quit our day jobs and go into full-time production. We wanted to call our company Flint Knife Works but someone told us that it's harder to get a trademark if it includes the name of a city. We haven't officially started up so what's the story? The short story is that we think you might want to come up with another name for your company. Here's the long story:
Already in use ... There already appears to be a company called Flint Knife Company so you're likely to confuse customers of this company and that could give rise to a claim of infringement. There also appears to be an organization called the Flint River Knife Club which has a registered trademark. More possible confusion.
Is it descriptive? Even if these organizations were not around, the name might pose a challenge for registration. It's possible that an examiner may object to the application on the basis that the mark is descriptive. That is, the trademark describes some feature or quality of the goods and services -- in this case, that flint and knives are often sold together. A descriptive mark for goods being sold in commerce can still be registered at the USPTO (and this article provides more information) but a descriptive mark cannot be registered as an intent-to-use registration (where the mark is reserved). An examiner might also object to the mark as being geographically descriptive, as explained in this article. For all these reasons, we think you should reconsider your choice of knife company name (and good luck with your venture).

Monday, July 29, 2013

What is "client stealing"?

Dear Rich: I was asked to sign an agreement with a company in L.A. that creates music for film trailers and production music libraries. The agreement says that I am not permitted to contact the clients of the company and if I do, it will be considered "client stealing"? What does that mean? One way or the other, we think the company is trying to prevent you from competing against it in the future.
Is it a noncompete? If the agreement is viewed as purely a noncompete agreement -- that is a court considers it as preventing you from competing -- a court is unlikely to enforce the agreement in California where such arrangements are prohibited.
Is it an NDA or nonsolicitation agreement? If however, the client list is considered to be confidential information -- that is, it's not easy to determine who is a client or to locate the client pool through typical industry sources -- then this information may be considered a trade secret. In that case the company can enforce the agreement. If, however, the company's clients are publicly known and a simple Google search could turn up a list, it's less likely that the provision will be enforced under an NDA or under a nonsolicitation agreement.

Friday, July 26, 2013

Songwriter May Have Committed Perjury

Dear Rich: What happens if you signed something under penalty of perjury and it's not true. I signed a statement in a copyright case saying that I co-wrote three songs but I later realized that I only co-wrote two. The case isn't about the songs I co-wrote. That just came out when I was interviewed. What's the worst that can happen to me if I don't do anything. It sounds like you signed a declaration under penalty of perjury. If the statement is shown to be "materially false" --  that is, a significant and relevant lie -- you would be guilty of perjury. Perjury is typically a felony and in federal civil cases such as copyright infringement, the perjurer may be subject to fine or jail time.
What should you do? You may believe that your statement is not particularly significant or relevant to the case but we think the best route would be to notify the attorneys who prepared the document that you signed and tell them of your error. There's always the possibility that you misjudged its importance and relevance and they would want to decide for themselves.

Thursday, July 25, 2013

Is Spouse Bound By NDA?

Dear Rich: I signed an NDA with my employer and one of the things it said was that my spouse was also bound by it even though she didn't sign it. Is this legal? If you're asking, "Will a court enforce the NDA against your spouse?" the answer is "No."  Unless your spouse is a party to the nondisclosure agreement and signs it, the agreement can't be used against him or her. That's not to say there won't be consequences if your spouse discloses confidential information that was obtained from you. In that case, the employer can pursue you for making the unauthorized disclosure in the first place. Similarly, if your spouse obtained the confidential information through improper means -- for example, your spouse stole your password and downloaded the info without you knowing about it -- the company could pursue your spouse under state laws. (You can find your state's trade secret laws here.).

Wednesday, July 24, 2013

Any Defense from Getty Images Claims?

Dear Rich: My company purchased several images from Getty Images for a client about six years ago. We used pieces of the project as a self promotion on our website. Getty License Compliance contacted us about it and we immediately removed the image from our site. Now they are nicely asking me how long the image was on the site because they want to collect for the usage. Do I have any defense in this case? If we could see into the future, we visualize you writing a check to Getty Images. You may have a reasonable defense -- fair use based upon your use for self-promotion (the equivalent of creating a resume) -- but chances are that when you measure your chances of success and compare that to the expense of a lawsuit, you'll find yourself reaching for your checkbook.
Getty isn't just chasing you ...  Getty is very active as a copyright enforcer and pursues approximately 40,000 instances of infringement in the United States each year. However, according to Getty, the company disfavors litigating:
"For cases of identified infringement, Getty Images typically attempts to recover damages in the form of lost license revenue and enforcement costs. Damages sought vary depending on the image used, and the nature and duration of use. Typical damages range from several hundred to several thousand dollars. While many of these cases are resolved amicably, many others are not. For those cases that are not resolved, litigation is available, but is prohibitively costly for either Getty Images or its individual contributors. The costs associated with litigation far outweigh the damages sought, and render litigation a completely ineffective option, unless a rights holder elects to make the investment to make an example of an infringer, regardless of the economics of the process."
If this is an accurate statement of policy, then a strong fair use defense that's part of a court case may achieve a more favorable settlement, particularly if Getty fears a precedent-setting decision about fair use of its images.  You can compare the facts in your case with other photo fair use cases and if you feel you have a decent fair use defense, consult an IP lawyer for confirmation. (You may also find this advice to be helpful.)

Tuesday, July 23, 2013

Are Oak Ridge Photos in Public Domain?

Dear Rich: I am curious as to why a federal government agency can put limitations on its content that it posts on Flickr. I recently ran across the photostream for the Oak Ridge National Laboratory, which is under the Department of Energy. The photos have a Creative Commons restriction. In reading through, my impression is that they are probably covering all bases with this license, but it seems to conflict with its own language. It prohibits commercial use and alteration, but also states that if an item is in the public domain its status is not affected by the license. I feel like if I had found the images on their regular website or image database I would have been interpreting the law correctly in using them as I saw fit (with best practices including attribution). However, this notice gives me a little pause. I am very familiar with photo agencies skirting public domain issues by issuing license restrictions rather than asserting copyright. Is this a similar phenomenon? Could you clarify whether it is ok to use something you know to be in the public domain when a federal government agency uses a Creative Commons license rather than stating that no known restrictions apply? We just re-read our answer, below, and we have to warn you that you should not operate heavy machinery while reading this ... it's kind of sleep-inducing. We can summarize it by saying, the Flickr photos may be public domain but we're not positive. (Zzzz!) We are sure of one thing -- public domain status would trump a Creative Commons license (because a Creative Commons license presumes that copyright exists). In other words if it is PD, you can disregard any CC limitations.
When is it PD? You can't always presume that content prepared under the direction of the federal government is in the public domain. FYI, a 1999 study determined that 15% of the materials offered by government agencies was under copyright. Only a "work of the U.S. government" is in the public domain. That's any work prepared by a federal officer or employee within the course of their duties. The federal government enters into contracts with many independent contractors (non federal employees) and in those cases, the contractor may retain rights under certain situations. Often, the government requires that the material be assigned to the U.S. government under federal acquisition regulations, and it is then, in turn, made PD. This seems to be the case with the Oak Ridge National Laboratory (ORNL) which is managed by UT–Battelle, LLC, a limited liability partnership between the University of Tennessee and Battelle Memorial Institute. In other words, many non-federal employees are contributing to the content at ORNL. The notice at the ORNL site states:
Copyright Status. Documents provided from the web server were sponsored by the U.S. Government under contract DE-AC05-00OR22725 with UT-Battelle, LLC, which manages the Oak Ridge National Laboratory. Accordingly, the U.S. Government retains a nonexclusive, royalty-free license to publish or reproduce these documents, or to allow others to do so, for U.S. Government purposes. Unless otherwise noted, they have been placed in the public domain, although we request the following credit line be used when documents or figures are used elsewhere: “Courtesy of Oak Ridge National Laboratory, U.S. Dept. of Energy."
Although this notice is not a model of clarity -- what does it mean to use the material "elsewhere"? -- it does establish that material at the site is public domain unless noted otherwise. We're not sure whether that applies to the Flickr photostream, supposedly protected under Creative Commons. It is possible that the photos posted there by the Oak Ridge Lab News are protected separately and not subject to the government contract (in which case the only way to be certain is to contact ORNL). If, however, you can find the same photos at the ORNL site and there is no copyright limitation there, you can assume the pictures are PD.
Finally, as to including the notice, “Courtesy of Oak Ridge National Laboratory, U.S. Dept. of Energy," there is no obligation to provide attribution on a public domain photo and there is no indication that you have entered into a licensing arrangement with ORNL to do so. However, a statute does require that if public domain works produced by the federal government are reproduced that some notice should be given as to what is PD.

Monday, July 22, 2013

No Contract Signature on Behalf of LLC

Dear Rich: What happens if a person working for an LLC enters into a licensing agreement but doesn't sign the agreement on behalf of the LLC. There is no listing of the LLC above the signature line. Is the LLC going to be bound to the agreement or is just the person who signed going to be bound? Three factors affect whether an entity is contractually bound: the language of the agreement (Does it name the entity as a party? Is the entity listed in the signature block?); the intention of the parties (if the contract language is ambiguous, did the parties intend to bind the entity?); and whether the person signing the agreement has authority to bind the entity. In some cases, this last factor may turn out to be the most important because if the signing party cannot bind the entity, the entity usually won't have any obligations under the agreement.
Who has authority?  To bind the entity, the signing party must have authority (or apparent authority). If you have doubts about whether someone has authority to sign an agreement, you should require evidence of that authority, usually in the form of a corporate resolution or similar documentation.Occasionally, language may be included in an agreement that states something like, "I have authority to sign this agreement." Alas, including that language does not bind the entity. At best, it allows you to sue the signing individual for misrepresentation.

Thursday, July 18, 2013

Can Nonprofit Use a Quotation in a Commercial?

John Bartlett -  The man behind the book
Dear Rich: I would like to use a quote in a commercial for a non-for profit institution/hospital. We will not give credit. The copy is something like: "It's been said" and then the quote is used. We're only using 9 words of 11 in quote. We are paraphrasing a bit. Do I have to determine if the "quote" has a copyright and who holds the copyright? Can a "phrase" or "quote" be copyrighted? And finally, how would I go about finding out who holds the copyright. My feeling is that I should be able to use the quote under "fair use" law. I know it is a TV commercial, but it is not for profit and for the betterment and education/information of the community. We answered a similar question about using "No Soup for You" as well as a related question about using movie quotes in a book. Both of those entries establish that short phrases and quotations are not protected by copyright law. (Here's an article we wrote on the subject, too.) Even though you're okay under copyright law, as a general rule we'd urge you not to rely on your theory that you're entitled to claim fair use because your use is for the betterment of the community. Nonprofits may have charitable and educational purposes but they are money-making ventures and in copyright cases, courts usually treat them the same as for-profit entities (You can read more about nonprofits and fair use here.) The exception is that a nonprofit use may be considered when examining the "purpose of the use" factor, one of the four fair use factors (and not determinative by itself).
But wait there's more ... There are two other things to consider: (1) Has the quote been registered as a trademark? (2) Is the quote so closely associated with a living person that by using it you are implying that person's endorsement? As for the first question, you can research the issue at the USPTO. We've prepared an explanation on how to search. The second question is less likely to be a concern as we doubt your use will trigger a right of publicity claim. However, it wouldn't hurt to conduct an informal survey of friends and workers and ask, "What do you think of when you see this ad?" If everybody answers, "Didn't Donald Trump say that?" you may want to regroup, especially if you're running a national campaign that might be seen by The Donald.

Wednesday, July 17, 2013

Will I Earn More from Administration Deal or Co-Publishing?

On our "turntable" while answering
this question. Hopefully King Tubby 
owns his publishing, too.
Dear Rich: May I possibly ask for some your advice towards factors that may affect income (including net receipts/at source deals) between administration and co-publishing deal? As a general rule musicians fare better under administration deals. One reason is that an administration arrangement is typically for a fixed period of time (say five or ten years) while publishing deals are often for the length of copyright. In that way, the musician can reclaim all publishing rights. Another advantage of admin deals (which isn't reflected in revenue) is that ownership of copyright is not transferred as in publishing deals. Finally, the percentages are often better with admin deals. Check out our previous entry on this topic.

Tuesday, July 16, 2013

Wants to Reproduce Soccer Statistics

Dear Rich: I live in South Africa, and here we have several indoor soccer clubs, that run their own leagues. All the league’s information and stats are freely available on the net to anyone who enters their website (without the need of a log in) Now, I would like to use all of their league stats in order to rank all the different teams from different clubs together, in one big ranking system on my website. Would I have any problems with copyright? As you mentioned on a different post, sports stats are fact and none can claim originality to fact. And what if I disclosed the source of the information, publishing “this information was sourced from” would that give me protection? We're not comfortable discussing South African copyright and database laws (although this site provides the rules) so, we can only answer in regard to U.S. law. (The copyright laws in the U.S. and S.A. law are derived from the same sources and both countries belong to the Berne Convention.) We discussed most of the issues regarding the use of sports statistics in a previous entry and we stick by our belief that in the U.S., individual sports statistics are not protected by copyright law but compilations of data, if they are arranged in a unique manner -- for example, correlating the age of players with the number of successful spot-kicks -- are protectable. As for disclosing the source, we're not sure that's a good idea as it may tip off the league as to what you are doing -- something they may not otherwise be aware of. 
That said dept. In addition, two other steps you may want to take are (1) to review the league website for any conditions of use, and (2) research whether the league has brought suit for similar violations. Under U.S. law, if you must agree to terms and conditions prohibiting from downloading a database, you could be bound. Be sure, as you say, you don't have to agree to use the sites. 

Monday, July 15, 2013

Editing Company Wants To Use Movie Stills on Site

Dear Rich: I just read your post regarding the legality of using movie stills on websites. We were thinking of creating a website promoting our editing company and wanted to use the stills from the movies we worked on.  Is that allowed, or do we need to get permission for each picture? One of the photos we want to use is on one of our IMDB pages. Can that be used? On our website, we were also going to have a credits page with about 40 TV shows and features that we received credit for. If not allowed, do we contact the various production companies, or do we have to find out who actually took each picture? We doubt that you will get hassled for your potential uses ... but you could. Here's why.
Why we doubt you'll get hassled. There's an industry tolerance when individuals and companies associated with film productions post examples of their work. The fact that you worked on these films and are using the stills as part of your business resume will probably deflect any claims from the owners of movies and TV stills that are featured. In addition, there is a reasonably transformative use happening (in the event you need to make a fair use defense). The stills are being shown to highlight your company's expertise and skills; they are not being provided -- as originally intended - to entertain or enlighten.
Why you could get hassled. You have two potential issues - copyright infringement and false endorsement. By reproducing the stills without permission, you're infringing the copyright. As noted above, that may be tolerated under a fair use defense. The second concern is that by posting the stills you are implying that your previous client (the individual or production company that hired you) endorses your work. If a client is unhappy about that kind of posting -- for example, you and the client had a falling out -- the matter can usually be resolved simply by taking the movie still (and accompanying text) down. To lower your risk, make sure that the work you performed on the project is described accurately. For example, don't imply you edited the complete film, if you only edited the chase sequence. You may also prefer using posters from films (instead of production stills) as the posters are always owned by the production company (to avoid the potential hassle in the event the production still copyright is owned by a third party).
In the future dept. You could consider adding a provision in your standard agreements in which the client agrees ahead of time to let you use a production still or other visual image from the film to promote your business.

Friday, July 12, 2013

Wants to Blog FOX TV Series

Dear Rich: Greetings from Denmark. I'm thinking about creating a web page that will be about a very popular Fox series. I want people to blog out best quotes and get voting etc. The web page will be also about fan material. I want to use their official JPGs that you find on Google. Do you think this is acceptable or its clear that I will get banned? Greetings from California where the Dear Rich Staff is busy avoiding the mess that is called the America's Cup. As for your potential website, Fox, like most TV networks takes an approach we would describe as "watchful noninterference." That is they will allow fans to create fan sites using copyrighted content provided that the site does not seek to exploit the content in a way that competes with the network. For example, Fox apparently looks the other way when it comes to fan websites for its popular Glee program. These sites also contain detailed disclaimers, as well. You should include a similar disclaimer (though as we have pointed out before, it has limited value). We imagine that you will likely run into problems if your site offers unauthorized T-shirts or DVDs, or offers downloadable content from the series. The only other way you might get "banned" would be if your Internet service provider, acting on its own, determined that you offered infringing material and demanded that you pull it -- an unlikely scenario.

Thursday, July 11, 2013

Wants to Use Initials as Trademark

Dear Rich: I would like to use the initials of my proper name as the name of my business followed by an exclamation point. There are other businesses out there with those initials. Do I need to worry that someone has trademarked them and will order me to change the name? Do you mean by "trademarked them," that someone has registered the initials with the USPTO as a trademark? If so, you can easily check whether that is the case using the USPTO database, explained below (BTW, it's best not to use "trademark" as a verb.)
Searching for initials. To check whether someone has registered your initials, visit the USPTO trademark page and choose "Search Trademarks." Then click "Basic Word Mark Search" and type in the initials. (We have an article and video that explains how to perform a search). Always keep in mind that you're primarily concerned about someone using the same initials for similar goods or services. Federal registration isn't essential for enforcing trademark rights but it's a decent indicator as to whether you will run into a problem
Chances are ... It's very possible that the other businesses using similar initials haven't registered  them with the USPTO. That's because it's often tricky to acquire registration for initials because you must be able to demonstrate that consumers associate those initials with your goods or services. That's not so hard for famous initials like CBS or AOL but it can get much more difficult when the initials are based on a surname or a generic term  For example, it's not possible to register "Brandy & Benedictine" because that's the generic term for an alcoholic beverage containing brandy and benedictine. Similarly, B &B cannot be registered if consumers associate that term with Brandy and Benedictine. In other words, if the initials are just a placeholder for a generic or descriptive term, the USPTO will treat the initials as being generic or descriptive as well. So if an applicant is using initials for his or her name, the examiner may start with the presumption that the mark is descriptive. (If you're looking for a more in-depth explanation on initials and trademarks, check out this law review article.)

Wednesday, July 10, 2013

Do I Disclose Prior Art for Double Invention?

Dear Rich: I have an invention.  It handles a specific problem.  While writing it up I discovered it handles another related but different problem for which there is prior art totally unrelated to the first item.  I know from Patent It Yourself that I can't do a double patent.  Both are valuable and I need to protect both.  Do I need to do the full prior art and so on for both?  It would be like writing up two patents in one.  Is there a way to do one then tag on the second so as to not increase my chances of rejection by going for two separate things? We spoke with Patent It Yourself author David Pressman who stated that it would be irresponsible for any patent attorney to give you advice without seeing the invention and the prior art so he urges you to seek professional advice in this situation.
That said dept. However Pressman notes one general principle that may apply is as follows: Suppose an invention is known for solving a problem, for example, a forked implement is known for cleaning window blinds. An inventor discovers that it can also solve another unrelated problem, such as facilitating seed planting. In this situation the inventor may be able to get a patent on a new use for the implement if it is truly novel and  unobvious over the known use. This is mentioned in the sixteenth edition of Patent It Yourself (page 103) and elsewhere. In any case PTO Rule 56 requires the inventor to disclose all information related to patentability.
Dont try this at home dept. Again Pressman stressed that this should not be construed as legal advice or applicable to your situation and you should see a licensed patent pro before deciding what to do.

Tuesday, July 9, 2013

Can I Post Music on Vine or Instagram Videos?

Dear Rich: I am the administrator for my church's social media accounts. I would like to post short six-second Vine and fifteen-second Instagram videos of our musicians performing hymns and other copyrighted music. Should I look into buying a copyright license for these videos, or would it be considered fair use because of the short length of the videos? As for buying a license, forget about it (and see our previous entry to understand the futility of that effort). The music companies have made the task of obtaining a sync license impossible for mere mortals.
The good news: As far as we can tell neither Vine or Instagram has a copyright filter similar to the one at YouTube (though that may evolve one of these days). So, it doesn't appear that Vine or Instagram will flag your use of unlicensed material. Chances are also good that a six to fifteen second music clip will be excused as a fair use particularly if you're not infringing the sound recording copyright --  that is, you're not using a pre-recorded song as a soundtrack for your video. Finally, music publishers and/or record companies may not want to pursue this rabbit hole of potential infringement. So, although it may possibly be an infringement, we don't think you'll run into legal problems in the near future.

Monday, July 8, 2013

Creating Book Quiz App

Dear Rich: I'd like to make an iPhone app that would consist of thousands of questions each with four answers from different books. The quizzes/questions actually ARE about the books  and would contain copyrighted terms, important sentences or names.  These quizzes are meant to be taken AFTER a user reads the book, so we don't compete with book authors, nor is that our intention. We also intend to clearly give credit for every single book to author that wrote it. Here is an example and here is another example of sites that already exist and are similar to what we want to make (difference: they make money by users spending more time on their site, we make money by charging $.99 for extra features). Well, our idea is for people to read books MORE and take quizzes after them.  If you keep the questions varied, take little from each book -- as in the two examples you provided -- you're probably fine. But because we don't know how much borrowing you will be doing, we're unable to bless your endeavor. Of course, we support your goal -- people reading more books -- but, as the cases cited in this recent Dear Rich entry demonstrate, your altruistic goals will not excuse an infringement. Ditto for providing attribution. As for your claim that you're not competing with authors, we don't think you are ... but that's ultimately up to a court to decide.

Friday, July 5, 2013

Wants to Use Song Snippets For Guitar Lessons

Dear Rich: I am working on a "for profit" project to create musical exercises for instrumentalists. Part of this will be to use a "snippet" of a popular song as the basis of the exercise. In one case, this is one measure of the guitar part with no reference to the lyrics or the greater song. The exercise would introduce some slight variations on the pattern and then would then transpose the pattern in each key. Would this be considered "fair use" since I'm building a "new work" from this very small kernel of a previously published and performed work? I've learned from your blog that providing an acknowledgement of the composers, the song name, and the album the song originally appeared isn't a factor, but I'm planning on doing that anyway. As you may be aware there are two copyrights on music recordings. One is the sound recording copyright (the recorded performance), usually owned by the record company; the other is the songwriting copyright for the song (the chords, melody and arrangement -- basically what you see on the sheet music). If you're using a snippet of the original recording -- for example, a segment from a Jimi Hendrix recording -- it's possible (though unlikely, as we'll explain) you could be liable for infringing both copyrights.  If you've recreated the segment by recording it yourself, you've reduced your liability somewhat because there's one less entity that might hassle you -- the record company that owns the original recording -- although you still may be hassled by the song owner. (You can read more about sampling here.)
Fair use. We think that the smaller the size of your snippets, the stronger your fair use argument. We're not sure about the rest of the factors ... and we're not sure that you're actually transforming the work or building a new one. Transpositions and retiming of a sound wave are likely to be viewed as superficial transformations (and the variations could be perceived as derivative infringements).
The reality. We can point you to a few cases ... one that says that any use of a sound recording is an infringement (we think that's an aberration), and one that says that just sampling a short segment of the song copyright may be excusable as a fair use (you can read about both in a previous entry). But we don't think either case really offers much guidance. As usual, it really comes down to whether record companies and music publishers discover your use and care (or are too busy pursuing pirate sites to go after your business). After all, zillions of YouTubers are offering similar styled guitar lessons without apparent hassle. If you're concerned about the risks, we'd suggest building your project in steps ... post a few lessons at a time. If you get a cease and desist letter from someone, take down that lesson instead of trying to fight it.
P.S. And check out our video above to learn Bruce Anderson's great guitar/sitar solo.

Wednesday, July 3, 2013

Do You Need Life Rights Agreement if Subject is Deceased?

Dear Rich: Do you need to get a release or life rights agreement from the heirs of a deceased person to make a film about or a film including him/her? If a person could be considered a "public figure," does that make a difference? We're not sure what you mean when you say that your film would "include" the deceased person but if the subject of your biopic or documentary is a deceased public figure, you won't need a life rights agreement. A "life rights" agreement is really a way to block three types of lawsuits from happening: violations of privacy, publicity or defamation. (These agreements may also involve "cooperation" arrangements requiring a living person to cooperate with the filmmakers.) A deceased person has no privacy rights and cannot be defamed. In some states the right of publicity survives death, but documentaries and biopics typically don't trigger these rights -- unlike the sale of merchandise or endorsement of products, for example. Of course, there may still be a need for permissions for copyrighted materials such as photos, music rights --for example in the case of a biopic about a musician, or rights based on a published work such as a biography.
When do you need them?  Life rights agreements are most often needed if liberties will be taken with the facts about a living person, or if the person is not a public figure. Public figures cannot stop a life story documentary or biopic in the U.S. if there are no violations of privacy or defamation ... although they can always threaten lawsuits.  Check out our previous entry on life rights. (BTW, this site explains the life rights rules.)

Tuesday, July 2, 2013

Wants to Use Northern Exposure Stills, Clips and Song in Documentary

we have nothing to say about
this poster but thought if we
added a caption we could
claim it was fair use! 
Dear Rich: I am filming a documentary that will be distributed FREE OF CHARGE on the internet. Pro Bono. The documentary is about the TV series Northern Exposure and the title of my documentary is "Our Town Cicely" In my documentary I will be attempting to use as much material as possible in a "Fair Use" context. I know you are not a lawyer and I do not hold you to any advice, but in your opinion can I use images or pictures of the cast members from the show in my film? Also I would need to use some of the clips from the TV series too. It is my idea that I can use the clips as long as I am critiqueing them or at least putting subtitles with some narrative commentary at the bottom on how this scene was relevant and how good it was etc. I also wanted to use a song from the show titled "our town" by Iris Dement. But it is owned by Warner Brothers. Your idea that adding subtitles creates a "fair use" exemption is fashionable and even big shots are making similar claims. However, we think that adding a caption is like putting an Instagram frame on a photo ... by itself, it won't be enough to defeat an infringement claim.
Claiming fair use. There are two big hurdles with fair use: (1) you will only know if it is fair use if a judge confirms it, and (2) you probably can't afford to find out. Your best option is to review previous fair use cases (and we've assembled a compilation here) to see how courts rule. It's true that some factors are in your favor: it's a not-for-profit factual presentation and you are commenting upon the show. But there are other factors in play, for example how much material is used -- a snippet of a song versus the whole tune, two seconds of a clip versus the whole scene, etc. And are you really commenting on the material or reproducing it for its entertainment value? As you'll notice from looking at case summaries, many artists, authors and entrepreneurs have failed with fair use claims when deconstructing TV shows, movies, and books. For that reason, we can't say whether your fair use argument will win the day.
That Said Dept. We hate to see you ditch your plans for a Cicely documentary. Perhaps if you keep things below the radar, nobody will notice or care. For example, if you avoid using a copyrighted song, you won't trigger complaints from sites like YouTube that use audio filtering software. On the other hand, you could also take the more risky approach of, "What are you going to do about it?" and see how far you can go before (or if) you get a cease and desist letter. BTW, please note the comment below, referring to American University's fair use guidelines for documentary filmmakers.

Monday, July 1, 2013

Same-Sex Marriage and Copyright

Dear Rich: I am a photographer in a same-sex marriage in California. Does the Supreme Court decision about gay marriage have any effect on my photo copyrights or my contracts with publishers? Yes, the recent SCOTUS decision does affect copyright law (and when did everything become SCOTUS and POTUS anyway?). In 1997, the General Accounting Office responded to a query from Congress about what laws would be affected by the Defense of Marriage Act (DOMA) and the GAO wrote:
The Copyright Act gives renewal rights and termination rights, in some circumstances, to the widow or widower of the creator of a copyrighted work. The law defines "widow or widower" as the creator's surviving spouse under the law of the creator's domicile at the time of his or her death, whether or not the spouse subsequently remarries.
In other words, if you are in California -- a state that has legalized same-sex marriage -- your surviving spouse will acquire the right to recapture copyright for pre-1978 transfers as well as the right to send and benefit from Notices of Termination.
The effect on your contracts. Other than the ability to terminate your transfer after 35 years (discussed above), the Supreme Court decision should have little effect on the contracts you signed regarding copyright transfers. Note, that in the nine states that have community property laws --Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin -- spouses automatically become joint owners of most types of property acquired during the marriage. California, for example, has held that a copyright acquired by one spouse during marriage is community property—that is, is jointly owned by both spouses. (Marriage of Worth, 195 Cal.App.3d 768, 241 Cal. Rptr. 135 (1987).) This means that if you are married and reside in California (or later move there), any work you have created or will create automatically would be owned jointly by you and your spouse unless you agree otherwise. Therefore, lawyers consider it prudent for both spouses to sign any assignments or exclusive transfers of copyright. (Note a court in Louisiana has held copyrights are not community property in that state. (Rodrigue v. Rodrigue, 50 U.S.P.Q.2d 1278 (E.D. La. 1999).)
For more information on how the Windsor decision on the Defense of Marriage Act affects other legal rights and responsibilities, see "The Supreme Court’s DOMA Decision."