Thursday, August 29, 2013
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
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
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
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
Wednesday, August 21, 2013
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
|Ladies military style NFL cap|
Monday, August 19, 2013
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
Thursday, August 15, 2013
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
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
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
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
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
Wednesday, August 7, 2013
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).