Thursday, August 29, 2013

Wants to Post Debt Collector Voicemail

Dear Rich: I'm a blogger and want to post a voicemail that a debt collector left on my answering machine. Can I get in trouble for posting that? Maybe, but we think it's unlikely.
Consent to recording. The first legal issue is whether the recording was made with consent. By its nature, a voicemail implies consent because the caller knows that a recording is being made of the message. If it was a recording of a conversation (not a voicemail), you would need one or both parties consent, depending on in which state you're making the recording. For example, California is a two-party consent state so both parties would have to consent to the recording.
Have you "injured" someone? Publicly posting the debt collector's voicemail could possibly trigger tort claims. It's possible that the caller may defame some third party, or alternatively, when you write about the caller, you defame the debt collector. It's also possible, though a little farfetched, that the debt collector could claim you have caused an invasion of privacy (which would be a strange role reversal). Your liability can be limited by making sure that the individual speaking, the employer (the debt collection company), or any of the parties involved, are not identified. In any case, the odds of a debt collector proceeding with a lawsuit in this situation are slim and chances of success for the collector's potential claims don't seem that good.
What about copyright? Who owns the copyright in a recorded phone message? Most likely the debt collector although we agree with attorney Emily Bass that there is no "clear answer." So, assuming there is sufficient originality in the voicemail, the debt collector could claim copyright infringement. Like the tort claims mentioned above, this would be a long shot for the debt collector.

Wednesday, August 28, 2013

Wants to Use 50-Year Old European Recordings

Dear Rich: I'm thinking of starting a a business that re-packages recordings on memory sticks. I'm in San Francisco and I have a partner in London. In England, recordings that are over 50 years old are in the public domain so we're timing things so that we can release collections of music from the so-called British invasion - Stones, Beatles, Kinks, etc. We figure if we sell these tracks out of Europe -- our website server is in Brussels -- then people in America can buy the tracks as an import. What do we need so that we don't get in trouble? We think you may need a new business plan. British law used to provide for expiration of copyright of recordings after 50 years. In fact, the Beatles 1962 single of Love Me Do b/w P.S. I Love You was one of the last recordings to fall into the public domain. Then, thanks to some kicking and screaming by British labels fearful of enterprises such as yours, the law was changed from 50 years to 70 years. As a result, in Europe, a recording issued in 1963 won’t fall into the public domain until 2034. There is an exception to the rule -- if labels don’t make 50-year+ recordings available for “consumption and purchase,” the artist will be able to claim copyright.
Two more caveats. Even if a recording falls into the public domain, the underlying song copyright--protected for the life of the songwriter plus 70 years -- is not likely public domain. So you will have to obtain mechanical licenses from the music publishers. In addition, music labels are a territorial lot. If they find a company engaging in substantial exports of copyrighted music (that is, recordings that are still protected by copyright in the U.S.) across borders, they will pursue the company with litigation. As a result, you may need to revise your plans -- for example, here's how a Canadian music website handles the public domain issue.

Monday, August 26, 2013

Making GIFs from Book Covers

Dear Rich: I am taking covers from books I have purchased (first use), scanning them into Photoshop, then creating animated GIFs to show how they may be portrayed in the future. The animation will alter considerably the original cover by this new technology but will use the entire title and name of author as displayed in the original. I will only be using the front cover of the book for this purpose. My work is for use in museum shows and the animated gifs would NOT be for sale, but for purposes of helping substantiate the theme of the exhibition which has as its purpose to make the public think about the future of libraries and the transformation of books as utilitarian objects into obsolete artifacts. Even though the animation may make some of the covers funny, “parody” would not essentially be the purpose. I have studied rules under “Transformative use” statutes. I think I would fall under “fair use” under these rules. For one, I would only be taking the front of the cover and title for use. Second, I would be transforming it with “new technologies” for a purpose of making people think about the future of books as utilitarian objects in themselves instead of “virtual objects”. Which would fall under “commentary.” You're correct that transformative uses are more likely to qualify as fair use. However, using new technologies to alter or convert the book covers probably doesn't qualify as transformative, anymore than converting a vinyl recording into a MP3 makes the result transformative. In other words, don't confuse transformations of works (creating derivatives, for example) with "transformative uses" of those works. We find the use of the term "transformative" to be fairly slippery, but it generally applies to the purpose and character of the use -- for example, are you using the work to make a statement that conflicts with the original intention of the artist? (Here's an article we wrote summarizing some transformative/fair use cases.)
Fair use. Also the fact that the work is not for sale probably won't make much difference in a fair use analysis -- it is still an unauthorized display and you are benefiting from the exhibit as an artist, either financially or professionally. Don't get us wrong; we're on your side and would like to encourage your creative uses. But we haven't seen your work and know that in the end -- even if you have a reasonable fair use claim, it won't make much difference if the copyright owners want to prevent your use.
Who's on the hook? Chances are fair to good that the copyright owners -- probably the publishers --  won't know about or care about your use. Unless the use is considered offensive or of depriving them of income, they probably won't be motivated to speed dial general counsel. But if they do care, your fair use arguments will be buried under the costs of making your arguments in a court room. Alas, it is in front of a judge that fair use arguments are decided. In addition, check your agreement with the museum. Finally, you may have second thoughts about the project if you are required to indemnify the exhibitor for any third party claims of infringement.
BTW -  first use/ first sale -- You refer to "first use" when describing the books that you purchased. We assume you mean "first sale," a copyright doctrine that lets you sell or dispose of authorized copies that you purchased. The first sale doctrine does not permit copying, however, of the cover or contents of the books.

Friday, August 23, 2013

Free Assignment of Copyright

Dear Rich: I am in the process of having someone illustrate a book that I wrote, and am looking to put in place an assignment of IP rights. Where can I find an assignment agreement?  Here's an example of a very basic copyright assignment from our Getting Permission book. Only the person assigning rights needs to sign it.

I, _________________________ (“Assignor”), am owner of the work entitled ______________ (the “Work”) and described as follows: ______________________ ___________________. In consideration of $ __________ and other valuable consideration, paid by _____________ ______________________ (“Assignee”), I assign to Assignee and Assignee’s heirs and assigns all my right, title, and interest in the copyright to the Work and all renewals and extensions of the copyright that may be secured under the laws of the United States of America and any other countries, as such may now or later be in effect. I agree to cooperate with Assignee and to execute and deliver all papers as may be necessary to vest all rights to the Work.
Signature of assignor(s) ___________________

Thursday, August 22, 2013

Using Photoshop to Eliminate Trademark Issues

Dear Rich: We are a small for-profit business involved in counseling and psychotherapy. This is an original photo but contains a trademark in the background (Rolex). We want to use it in our social media, but I don't want to create a potential lawsuit. It shouldn't be an issue. You don't need permission to use trademarks for editorial (or "informational") purposes. You should only be concerned if the trademark is used in a commercial manner (you're trying to raise money or sell something with the photo) and consumers are likely to be confused into thinking Rolex endorses your nonprofit. Considering that half the trademark is missing and that Rolex is unlikely to see (or care) about your use, you're probably okay. But, if you're concerned, why not just to do what professionals do  -- remove the name via Photoshop or some similar image software?

Wednesday, August 21, 2013

Best Way To Protect Doll House Design?

Dear Rich: I just read an old entry of yours about design patents and doll houses. So just to be clear, if one designs a doll house, doll, doll etc., they are to get a design patent, yes? Must they get a patent for every new doll sculpt/outfit/change to the exterior? No and maybe. Design patents -- though they may provide protection for some designs -- are not suitable for every doll house. To qualify for a design patent, the innovation must be original and ornamental. The challenge is that some doll houses may not be original (for example vintage doll house designs). Some may be functional (not ornamental) but may qualify, instead for a utility patent. Some designs may be better protected by copyright instead of design patents (read about the differences here). As for changes, if you make major changes in the appearance of the doll or doll house after filing a design patent application, you will need to file an additional application to cover the changes.
What should you do? We'd recommend that you start by getting some background on both design patents and copyrights and decide which works best for your doll house and your doll designs. Because of the cost and instant protection, we'd recommend copyright protection. Also keep in mind that if you have publicly disclosed or sold your design, you can no longer seek patent protection. So, you need to make your decision prior to the doll or doll house's public debut. And of course, there's also trademark law to protect the name of your Barbie or Betsy Wetsy (here's the story of that brilliant innovation) We discuss doll trademarks here.

Tuesday, August 20, 2013

Using NFL Team Names on Caps

Ladies military style NFL cap
Dear Rich: I am creating some caps and I am using my own letters and creating words like Cowboys, Eagles, Texans, and Aggies without their logos or letters is this legal?  It may seem unfair that certain words are off-limits for use on headgear (caps, hats, etc.) because the National Football League or a college has registered them as trademarks in Class 025, but that's the case with the words you've chosen. The trademark owner's goal is to control the unauthorized distribution of merchandise -- in other words, to stop people from doing exactly what you're planning. Their rationale is that they're the ones who popularized these terms, so why should others be able to trade off those rights? According to the U.S. Patent and Trademark Office (USPTO), the NFL owns trademarks for Eagles (Reg.No. 3413981), Texans (Reg. No. 3268449), and we assume for Cowboys (though we didn't sort through the hundreds of "cowboys" marks in Class 25 to verify). There are various Aggies registrations (apparently to distinguish the Texas Aggies from the California Aggies). So we leave you with our usual two-part caveat ... (1) Yes, your merchandise is likely to be considered infringing (changing the lettering style won't matter) and (2) if you proceed anyway, you may bypass any hassles if the trademark owners don't learn of your use or care enough to send you a cease and desist letter.

Monday, August 19, 2013

Wants to Use Sled Dog Photo

Dear Rich: Because the Sled Dog Action Coalition and its website are educational, noncommercial entities, under the doctrine of "fair use," I think I should be able to put the Anchorage Daily News photo of Dick Mackey on my website without violating the paper's copyright. At this time, the paper isn't selling copies of this photo on its website. In your opinion, may I publish the photo of Dick Mackey on the Sled Dog Action Coalition website without violating copyright laws? Should I give the Anchorage Daily News credit for the photo? In this case, we're hesitant to make our usual statement --  "Yes, it's infringement but it's not likely that the copyright owner will pursue the matter." As we mentioned in a previous entry, copyright owners sue over uses like yours if (1) it's a business to business dispute, or (2) it's easy to sue, or (3) it's a matter of principle -- for example, copyright lawsuits involving Scientology, George Harrison, and Ben Stein were spurred on by non-financial considerations such as revenge, harassment or personal offense over how the copyrighted material was used. Because your site likely is the source of some controversy, it's possible that angry Alaskans may figure into the lawsuit equation -- that is, if the copyright owner of the photograph is pro-Iditarod, you may find yourself hassled.
What about fair use? Fair use may excuse your reproduction of the photo (you can find a list of photo fair use cases here). Perhaps you can argue that your use is transformative as you are using it to make a pro-dog, anti-Iditarod statement. And it's possible that the nonprofit aspect of your use will work in your favor. But as we regularly point out, fair use can only be decided by a court and most people can't afford to pay the legal fees for that type of resolution. As for attribution, see our previous post.

Friday, August 16, 2013

British Museum Copyright Stamp (Seal)

Dear Rich: I was wondering if you could give me some information about a stamp. I have attached a picture of it. It is from a book in the British Museum. I'm trying to figure out what the number 20 on the left hand side means. Also do you have any idea what year it could be from? As I know the stamp changed some time between 1960's and 70's, from the old lion and unicorn stamp. Sorry, but we are unable to locate any information about the stamp, including any similar stamps -- we used Google's reverse image searching feature. We've posted it (left) in case other readers can fill in the gaps. We're probably off-track, but if it helps, the museum offers a 6-volume, geographically arranged, published catalogue, Catalogue of Seals in the Department of Manuscripts that covers all types of 'seals.'

Thursday, August 15, 2013

Blog Gets Copied: Plagiarism v. Infringement

Dear Rich: A blog post of mine was republished almost word for word on another site. The publisher at the other side attributed it through an "acknowledgement" and a link. Is that enough? What constitutes "plagiarism" in copy? What you describe is not plagiarism but it may be copyright infringement. Plagiarism is when someone else poses as the originator of your words or ideas. For example, we wrote this article for Nolo, and a competing legal site later plagiarized it.  Copyright infringement is when someone makes unauthorized use of your copyrighted material.   Attribution has zero effect on determining whether copyright infringement has occurred -- it's kind of like if someone stole your car but was nice enough to paint your name on the side; you're still the victim of car theft. It's possible that attribution may be considered as a mitigating factor when determining damages for copyright infringement (which is more likely if the borrower sought to locate the copyright owner but failed) or a judge may consider it an aggravating factor (proof that the borrower knew you were the author but went ahead and ripped you off anyway).
How do you deal with theft of a blog entry? That's a tough call. You can write to the borrower and ask them to remove it, citing your copyright ownership. You can exert rights under the DMCA and have the borrower's ISP take down the entry. But filing a lawsuit would probably not be worth your efforts unless you could demonstrate a financial injury that would justify the attorney fees.

Wednesday, August 14, 2013

Beyond Watermarks: How Else to Protect?

Dear Rich: Other than watermarks is there any way for a creator to protect their work online? Digital watermarking -- the embedding of a signal that is only perceptible under certain conditions -- doesn't really protect a work. That is, it doesn't stop anyone from copying a photo or music. The watermark simply makes it easier to trace infringement. For example, a movie company may use different watermarks on a film in order to determine which of its suppliers is participating in piracy. A photographer may use digital watermarks to track the use of a photo on the Internet. In addition, if the copyright owner wants to bring a lawsuit, the watermark may make it easier to prove that the work was copied. Digital watermarks (which must be purchased from vendors) are distinguished from visible watermarks (as in the photo to the left) and for which photographers have mixed feelings.
Copy protection? Many software programs, DVDs, and video games come with protection systems -- software that prevents the user from using it (not copying it) unless there is some verification of ownership. These systems alternately known as copy protection or copy prevention (also known as DRM or digital rights management) require users to work a little harder. A failure to supply the required code, serial number, or unlocking hardware prevents the program movie or video game from starting up. Many companies bypass such forms of DRM because they may get in the way of the operation of the device and because consumers disfavor them because of the extra layers required to activate. But DRM generally only works in the case of media that runs -- not passive media like photographs and documents. Moreover, few forms of DRM have proven uncrackable.

Tuesday, August 13, 2013

Wants to Curate and Re-Post Content

We would like to curate, gather and re-post content from other publishers or creators -- sort of like Buzzfeed, Tumblr and Pinterest. These sites seem to walk a thin line between curating and plagiarizing/stealing content from other creators. Can you define that line and tell us when it's okay and when it's not? No, sorry, we can't define that line because there's no measurement of how many words you take to constitute infringement. The law regarding curation/aggregation is unclear and most legal cases regarding these issues are settled before a final decision is made. (See this article for more information.) In general, infringement is determined on a case-by-case basis using a standard known as "substantial similarity" --  which generally means somebody had access to your work and copied it such that an observer would believe that the similarities in expression are more than trivial and not coincidence.
Infringement isn't the issue. Anyway, the "line" that most people care about is, “Will I get in trouble for doing this?” -- that is, "Will I get involved in a legal confrontation, typically a lawsuit or the threat of a lawsuit, or some other legal mechanism such as shutting down an account?" In that way infringing is a different issue from getting hassled, much like littering is different than being fined for littering. There are three common ways that a curator/aggregator could get hassled:
  • It's business. You are a suitable commercial target, taking content from another established business – a business to business dispute. For example, that's what happened when the AP sued Meltwater.
  • It's easy. You are an individual or business and you are an easy target for a business – for example, it’s quite simple for Getty Images to determine if someone has infringed one of its photos and to demand a licensing fee from them (see our previous blog entry). Ditto for lawsuits brought by the RIAA or by copyright trolls.
  • It's the principle. Third, you’re an individual or business and a copyright or trademark owner just feels strongly about your use and wants to stop it – for example, you're using their photo in a manner they consider offensive.
Therefore, unless you are competing in business, easy to locate, or your use bothers a principled copyright owner, you're likely to get away with your curation regardless of whether it is an infringement.

Monday, August 12, 2013

Wants to Register a Trademark for eBooks

Dear Rich: I am writing a series of travel eBooks that will be published for use on Amazon's Kindle. All of the book titles share a common phrase. I also have website and the domain name is the same phrase as used on the books. So far, I've only written about one city. How do I protect the phrase so some other publisher won't use it? I am not sure if there will be any other products beyond the eBooks, but I would like the ability to brand the phrase for use on other products -- for example, maps, T-shirts, or mugs. If you are registering the title for paper books and eBooks, you would register in Class 16 (paper goods) and Class 9 (downloadable content). If you wanted to register your name for use as business website, you would register in Class 41 (education and entertainment services). Each registration permits you to stop interlopers infringing within the class of goods or services (or closely related goods and services, too). Therefore, even though you are only producing eBooks (and would file in Class 09), if you intend to also offer printed books, you may wish to "reserve" trademark rights in Class 16 as well. (We're aware that at $275 per class, these registrations can become expensive).
Book marks ...  Keep in mind that you can't register a single book title as a trademark, only a series of book titles (see our previous entry). So before filing as a potential trademark for books, you would need to show the examiner that you have a series, not just one book -- for example, the Dummies books are a series, as are the Harry Potter books.
How to proceed ... Because we're not sure of your grand plan -- for example, whether you want to use the phrase as the name of your publishing business -- we'd suggest you consult with an attorney. If that's not possible on your budget, consider filing a registration in Class 9 (assuming you're convinced you have a series). As for the other goods you mentioned, you would need to file separate registrations for mugs (Class 21; household items), and t-shirts (Class 25; clothing). As for maps, those might be covered if you filed in Class 16 for paper goods.

Friday, August 9, 2013

Wants to Use Police Photo of "Grateful Doe"

Dear Rich:  I want to use images that appear on the Virginia State Police Missing Person's webpage for a 1995 unidentified person's case in which a young hitchhiker was killed in an automobile accident following a Grateful Dead show. The driver was identified but the young hitchhiker passenger has yet to be identified despite a feature on Unsolved Mysteries, a Facebook page dedicated to the case, and a lengthy, detailed thread on a Grateful Dead fan message board. I am interested in publishing a book about the case and wish to use the police sketch image, computer facial reconstruction photograph, and photographs of his belongings in the book. The images appear on the Virginia State Police Missing Person's webpage as well as various subsidiary missing persons sites. The book will be a sort of shrine and memorialization of "Grateful Doe" as he's called, as well as an exploration of my obsession with the case and human identity. Can I argue transformative, fair use? It's unlikely that any of the materials you want to use -- police sketch image, computer facial reconstruction photograph, and photographs of his belongings -- are in the public domain. Assuming they were created under the direction of the Virginia State Police, that agency (or the State of Virginia) would own copyright unless the state expressly disclaimed copyright (and there's no such statement at the state's website). That Said Dept. However, as with many police sketch photos, most-wanted photos, and age-enhancement missing persons' photos, it's extremely rare for a law enforcement agency to pursue those who copy/infringe the photos (at least we've never heard of a lawsuit over this issue). One reason is that republishing the images typically serves the purpose of the agency -- to determine the identity or location of the photo subject. That may explain why these images are commonly reproduced without permission (see, for example, the Unsolved Grateful Dead Fan Cases, and the Unsolved Mysteries Wiki).
Permissions and Fair Use? You indicated that you requested permission from the Virginia State Police and have not heard back. That's understandable because they probably don't know how to deal with such requests. (Keep a record of this request in case you are ever hassled over your use -- it may mediate claims against you.) Although you have a strong fair use claim, as always, we discourage making that defense because, as we mentioned in a recent post,  it's expensive to prove. Most likely the copyright owners will not care about your use.

Thursday, August 8, 2013

Wants to File Multiple Inventions in a Single Provisional Patent Application

Dear Rich: After reading Nolo patent books I have arrived at the following conclusions: I can submit multiple independent inventions (each meeting Sec. 112 requirements) in a single PPA (using any title) with only one PPA filing fee. And later, while filing the RPA, I can ask the examiner to refer to/locate that particular invention (buried along with other inventions) in the PPA. Please confirm if I got it right! Not exactly. First, are you sure you've been reading the most current versions of the Nolo patent books. Patent law has changed quite a bit in the past five years and earlier editions of our books are seriously outdated. Second, if you are concerned about protecting the rights to multiple inventions and you wish to "compress" them into one provisional patent application, you should consider speaking with a patent professional --  an attorney or an agent who can best advise you how to preserve your multiple rights. Finally, your question is based on the premise that a patent examiner will be looking at your provisional patent application (PPA).  Examiners typically will not review PPAs unless the inventor needs to rely on the filing date to prove that the application was filed prior to a cited reference or another patent or application -- a not-so-common occurrence. According to patent expert, David Pressman, only then would an applicant refer to the PPA and its filing date. If the PPA included several inventions and the applicant needed an earlier date for a particular invention claimed in a connected regular patent application, the applicant could then tell the examiner where the PPA disclosed that information.

Wednesday, August 7, 2013

Wants to Make Money From "Let's Play" Videos

Dear Rich: Many YouTube accounts are posting what is known as "Let's Plays." Through use of a screen capturing program, the video's creator records a segment of gameplay and during game play talks about the section, sometimes as a guide, sometimes as a form of critique. There is a partners program with YouTube that allows the user to make money off of his or her videos. I've been wanting to do this for some time with games from multiple publishers and developers. If this video is a review, can I still make money from it? The Terms of Use for one of the programs states the game content can only be used "in a non-commercial context for private, personal use only." However, am I correct in the assumption that fair use supersedes this? No, fair use does not trump a "terms of use" agreement. Assuming you entered into the agreement properly -- that is with a Click to Accept or I Agree styled statement -- the agreement would likely control the outcome of a dispute. A fair use defense would be irrelevant. The only exception might be (and many courts don't agree) if the material used is in the public domain. (Also, we're not positive about your use of the term "supersede.")
If there is no license agreement. If there is "no terms of use" agreement, will a fair use defense excuse the posting of a Let's Play video? Probably not. Although we appreciate your lengthy explanation as to why you would qualify for fair use (sorry, we had to edit your question), you may not be aware of two things. First, fair use is a defense (not an offensive move). In other words, a court will only consider fair use after the court has determined that infringement has occurred. Second, only a court can confirm that your defense is valid ... and most likely you can't afford that. So, if a company goes after you for infringement and you yell, "FAIR USE," the company can disregard your claims and force you into court anyway. Which is why for most people, claiming fair use is a losing proposition.
So what about the zillions of posted Let's Play videos? As with many other postings online, people get away with video postings that violate the law because the copyright owner is unaware, or chooses not to pursue the matter. As for pursuing revenue as a YouTube Partner, that's your call and will likely violate the YouTube Partners policy (see Section 6 F).

Friday, August 2, 2013

Wants to Write Sequel to It's a Wonderful Life

Dear Rich: My question is that I would like to write a sequel to “It’s a Wonderful Life” in novel/e-book format. I have been trying to determine whether the original film’s characters and storyline, or anything from the short story on which the film was based, are in public domain. Or if not, how I would find out how to obtain permission to write a novel sequel to the film. I read your article entitled Public Domain Trouble Spots in which you wrote that although the film was in the public domain, the sound track was not. Was the film itself never copyrighted, only the soundtrack? And wouldn’t the new copyright laws now protect the originators of such works, even if they were created before the laws were changed in the 1970’s? Although it's fine for the film to be the inspiration for your flower shopband and shawlette (who knew?), you should probably rethink your plans for an It's a Wonderful Life eBook sequel. That's because the story on which the film is based is still protected. The copyright for the story was renewed in 1971 and is protected until 2039 (95 years from the date of publication). If you proceed with your plans, the owner of rights -- we presume that's the estate of Philip Van Doren Stern -- could come after you for copyright infringement. It's possible (but unlikely) that your derivative work will be protected under fair use (And authors in similar situations have worked out settlements.). In either case, it would be expensive to prove that you're correct and unless you're sure your work will fly below the copyright owner's radar, it's best to come up with a new idea.