Tuesday, October 29, 2013

Copying New York Times for GRE Purposes

Dear Rich: I have developed a website to help GRE examinees. The site is non-profit and all the materials are public (no registration is needed). For improving reading comprehension, I'm scraping GRE-level articles from various new agencies like nytimes.com and mark the GRE words in their text and show the article to the users. The source of the articles are included on the bottom of the page. I don't have any financial purpose for this site. I fear that maybe I'm infringing the copyright law. Listen to your fears because it sounds like you are infringing regardless of your "educational" purpose, financial motives, or desire to provide attribution. You might be able to excuse your infringement by claiming a fair use defense but we don't think you'll succeed because it sounds like you're reproducing complete articles, and because your use, although slightly transformative, probably doesn't tip the four fair use factors strongly in favor of a solid defense (keep in mind that the New York Times charges for its articles or limits access to them).  News syndicates like the New York Times, AP and others, seek to halt practices that use their content for other purposes. So unless you maintain a low profile, chances are fair-to-good --  considering the piracy detection software that's available -- that at some point you'll find a cease and desist letter in your mailbox.

Monday, October 28, 2013

Mathew Brady, Call Your Attorney! Using Daguerreotypes

Dear Rich: I am both a professional photography and artist with over 40 years in the business. I intend to paint portraits from the 19th century of some very prominent people for a gallery exhibition. Images are held in the the Library of Congress. Many have "no known copyright restrictions" labeling. In many cases the original photograph (from daguerreotype to albumen prints and on) exists in their collection or in the National Archives, which should mean something like "held in public trust" - paid by the public taxpayers. Often there is no clause as the image being in the "public domain". Most of these images have been repeatedly published constantly since then bringing up the issue of book publishing and their use of copyright. However because of their historical interest and duplicate copies made at the time and since many reside in private collections. So far I have not found a copyright permission form on the LOC website. I know from my experience and research that my project falls under doctrines of transformative use, but there is the transformative issue in Rogers vs Koons, but not in Dyer vs Napier. What is your estimation on the potential of copyright infringement on the use of these specific portraits? Unfortunately I cannot go into more detail publicly. I would appreciate a response as this project is time sensitive and I cannot afford to hire a copyright attorney at this time. Time sensitive? Okay let us finish our herbaggio sandwich and we'll get right to it. As you may know from reading our posts, copyright duration is affected by when a work is first published (and to some extent when it was created). "Published" means more than a limited number of copies were distributed to the public -- for example, printed in a book, magazine, or on postcards. Displaying the daguerreotype prints in a museum is not a publication. Posting on the Internet is a publication if there is some way of downloading or reproducing the posted content. Determining public domain status is a matter of plugging the dates into this public domain chart.
How can I tell when the work was first published? Let's be real -- you probably won't be able to determine first publication dates. However you can probably make a few assumptions. The only way a work from the 19th Century would still be protected would be if it (1) was first published after 1977 and before 2003, in which case the work is protected until December 31, 2047 (notice is required for works first published before March 1989), or (2) was first published after 2002 and the photographer died after 1943. There are some other possibilities for continued protection and you can figure them out using the public domain chart. But generally, these scenarios are fairly unlikely. As you're also aware, the Library of Congress makes an effort to explain copyright status -- for example, as with this collection of daguerreotypes and with this general explanation.
What should you do? Your references to case law are impressive but unnecessary. Your use of the photographs may be transformative (we're not so sure) but you won't want to be dragged into court to prove your point. And more importantly, whoever dragged you into court would have to (1) qualify as owner in the face of the public domain rules and (2) show a clear chain of title dating back to the 19th Century. That is, to sue you, a copyright owner would have to prove that the rights descended through inheritances, or were passed along to the owner through a series of copyright assignments. If anyone has heard of copyright holders asserting such rights in 19th Century photographs, let us know ... but until we hear otherwise, the risk of creating portraits seems fairly low.

Thursday, October 24, 2013

Wants to use Vietnam Vet Photos

I am very interested in using the photographs from a Vietnam War veteran website in a potential art book/project. I've written the photograph manager and the webmaster of the site several times at this point without receiving a response. The photos definitely belong to vets, and I realize this would be a gross infraction of their rights, both personal and legal, but I am just curious as to what the technical "ownership" boundaries are for this kind of thing--what can be safely done with photographs posted on the internet that aren't watermarked or blatantly copyrighted? If as you've indicated, you're concerned about the personal and legal rights of the vets, you should get permission. Most likely the photos are protected under copyright law.
When were the photos published? Copyright duration is affected by when a work was first published (and to some extent when it was created). We know the photos were all created before 1976 (the Vietnam War ended in 1975) but we don't know when they were first published. "Published" means more than a limited number of copies were distributed to the public. Displaying the photos or sharing scrapbooks is not a publication. Posting on the Internet is generally considered to be a publication (assuming there is a means of reproducing or downloading the material). If all of the photos were first published on the Internet, chances are good that the works are under copyright. Here are the possibilities:

  • if the photographs were first published before March 1989 and the publication did not include notice, the photos are in the public domain. If they were published during this time with notice, they are protected for 70 years after the death of the photographer, or until December 31, 2047 (whichever is greater).
  • if the photographs were first published after March 1989 but before 2003, the lack of notice won't matter and the photos are protected for 70 years after the death of the photographer, or until December 31, 2047 (whichever is greater).
  • if the photographs were first published after 2002, the photos are protected for 70 years after the death of the photographer.
  • if, in the event that the photographer was a U.S. soldier taking photos as part of his service (that is, photo taking was part of the job description) then, the photos are in the public domain.
We're guessing that the first publication was on the website and that the copyright in the photos is owned by the photographer, or his estate.
Blatantly copyrighted ... Watermarking, using notice, or including copyright warnings, are not required to protect a photo copyright. Posting on the Internet without any additional statement does not terminate copyright protection. (The presence of copyright notice only matters for works first published before March, 1989.)  Finally, as for persons included in those photos, permission is not needed unless you are using their image to sell a product or service (we're not referring to your book or art project).

Wednesday, October 23, 2013

Can I Use Old Newspaper Photos and Articles?

Dear Rich: I’m writing a book about basketball in 1949-50 in one Indiana county. Looking for old pictures, I reached out to the publisher of a local newspaper for help and told him exactly what I was doing. In his reply he said that was his copyrighted material, I didn't ask for permission the correct way, and he wouldn't approve of my use of any of his newspaper’s material in my book. I'm also quoting the sportswriter (who was a full-time employee) from that newspaper throughout the book. A study of old copies revealed that the newspaper never provided proper notice. I checked several dates, including the first of the series run (examples attached). Many of the pictures that were published in the newspaper turned up in private collections because the newspaper sold copies or gave them away and no copyright notice appeared on the front or back of those copies either. A retired employee of the newspaper says he took all of the pictures in question. He is still alive and indicated the paper never copyrighted anything back then. I couldn't find a record of copyright renewal by this newspaper through the copyright office, either. On another note, the newspaper's circulation has dropped 50% over the last six years. Did this material pass into the public domain as soon as it was published in the newspaper without notice? Are there any other considerations I need to be aware of? Is this an example of copyfraud? There are two ways the photos and sports articles from 1949 and 1950 would be in the public domain: if they were published without notice or if they were not renewed.
Missing the copyright notice. Prior to March 1, 1989, all works published in the U.S. had to include proper copyright notice (and for works published before 1978, the notice had to include the year). The failure to include notice resulted in the loss of copyright unless certain correct steps were taken (and such steps were rarely taken -- here's a sad story). The newspaper could have protected its photos and articles with a single copyright notice, typically placed on the title page or editorial page. That type of notice would have extended to all photos and articles. This does not necessarily mean that the newspaper owns the copyright in all of the works. It may or may not, depending on the contract with the author or photographer. But based on your question, it appears as if the sportswriter and photographer contributed their efforts as employees and the newspaper would have owned the copyright.
Failure to renew. Any work initially published in the United States in 1949 or 1950 would have lost copyright if it wasn't renewed 28 years after publication. Chances are good that's what happened to the newspaper articles and photos. According to Steve Fishman, author of several books on the public domain, the Copyright Office estimates that only about 15% of all works published during 1923-1963 were ever renewed. Assuming your Copyright Office research is accurate, the failure to renew may be the basis for claiming the work is in the public domain, although it is possible (though not likely) copyright information for the photos or articles could be listed separately by title in the records.
What about your book? If the work is in the public domain, you (and everybody else in the world) are free to use it. The biggest challenge is access, of course. The publisher's response may be copyfraud though we're not sure if intent matters (it is always possible that the publisher has simply been misled as to copyright rules). You could start by confronting the publisher with your factual determination and perhaps find out if you're incorrect -- can he demonstrate that notice was included or that issues were renewed? Also, if your book is distributed by a publisher that demands indemnity, you would be best served to have a copyright attorney sign off on the final determination.
And thanks for stirring up memories. The Dear Rich Staff worked for five years at a southern Indiana newspaper back in the 1970s!

Tuesday, October 22, 2013

Wants to Use Beatles Lyrics as Wall Art

Dear Rich Staff "comes together" on Abbey Road
Dear Rich: If I used a line in a Beatles song or other artist - painted on a wooden slats to hang on the wall - and sold it for like 30.00 at a local shop, would I need to get permission? For example if I painted the words "You may say I'm a dreamer but I'm not the only one" from the song "Imagine" on the boards which would essentially be art - how would I make sure I am not doing something horribly wrong? Because copyright law does not protect short phrases, taking one line from a song and painting it on a piece of wood should not create any legal problems for you (regardless of whether it is art). That's especially true if you avoid mentioning the source -- for example, "the Beatles" or "Lennon and McCartney," or any other reference to the artist that implies endorsement. It's always possible that if your artwork becomes popular, a music publisher may hassle you, and if you're concerned about that, you can review the nuanced rules for short phrases in an article we posted.

Monday, October 21, 2013

Wants to Patent Seeds

orchid donated to Dear Rich headquarters
Dear Rich: My wife and I have created seeds for a new strain of tomatoes. We started with heirloom seeds but used some secret gardening ideas and selective breeding to create a hardy, vigorous new breed. How do we go about patenting the seeds? There are two approaches to patenting plants. A novel, distinctive plant created by asexual reproduction (by grafting or cloning), can be protected under the Plant Patent Act (sometimes referred to as a "plant patent"). If a plant cannot be duplicated by asexual reproduction, it cannot be the subject of a plant patent.
So how does Monsanto patent seeds? As an alternative to plant patents, companies such as Monsanto often seek utility patents (the most common type of patent and commonly associated with drugs, machines, and inventive processes) to protect seeds. That's right, a human-made plant can be the subject of a utility patent. These are for plants that can be reproduced either sexually (by seeds) or asexually. To give you an example, utility patents have been issued for elements of plants such as proteins, genes, DNA, buds, pollen, fruit, plant-based chemicals, and the processes used in the manufacture of these plant products. To obtain a utility patent, the plant must be made by humans and must fit within the statutory requirements (utility, novelty, and nonobviousness). The patent must describe and claim the specific characteristics of the plant for which protection is sought. Sometimes the best way to meet this requirement is to deposit seeds or plant tissue at a specified public depository. Here's a good primer on plant patent protection (and here's how the dark side presents the issues).
That sounds like a lot of work. Obtaining a patent on your seeds will present a lot of expenses and hurdles so it's best not to start the process unless you're sure you can make money from your plants and you're pretty sure that you've created something new. If you're unsure, consider an evaluation by a patent attorney. Also, be aware that patent protection for seeds is not popular with everyone (particularly after this recent decision).

Thursday, October 17, 2013

Using Movie Scenes in Self-Help Book

Dear Rich: Where can I find info about using movie scenes or dialogue in a self-help book? We're not sure if you want to use screenplay excerpts, still images, or plot summaries (or all of the above). So, we've mapped out three possible routes to take:
Get permission. Using film images and screenplay dialogue requires permission unless it qualifies as fair use (discussed below). (Summaries of scenes very rarely require permission.) Getting permission from the copyright owner -- most likely a movie studio -- will be expensive and difficult (assuming the studio permissions department takes your call).
If you signed a book contract and have indemnified the publisher for your content, we'd suggest that you summarize the scene and only include a few lines of verbatim dialogue from each film (which should qualify as a fair use). BTW, you can find and license them at sites such as Photofest, or MPTV Images.
Don't get permission and rely on fair use.  If you're self publishing or you don't have to worry about indemnifying a third party publisher, you could consider doing whatever you wanted, and hope it qualifies as a fair use. We provide our usual caveats: (1) less is more when it comes to fair use. That is, the less you take, the more likely you will be able to claim fair use; and (2) a final fair use determination is up to the courts so a studio can hassle you all the way to the courthouse. If in doubt, review fair use cases and rules, and follow the suggestions above about summarizing scenes.
Don't get permission and do what you want. If you're self-publishing and don't anticipate that anyone associated with the films or the studios will see your book, then do whatever you want. There's always some risk ... but chances are good that even if someone sees it, they won't take action unless they spot a big target (e.g., a major publisher) from whom to seek damages.

Tuesday, October 15, 2013

How Do We Protect Educational Comic

Dear Rich: I work for a small start up company that goes to various elementary schools in New York and teaches students on the benefits of a proper nutritious diet. We primarily teach them through comic strips that we created. We went through the proper channels to make sure our brand is trademarked and our works copyrighted. However, we're afraid that some educators may use our works without our permission. How much does fair use protect when it comes to educational materials? What more can we do to protect our work? We assume that when you say the "proper channels," that you (or your lawyer) (1) registered your trademark with the USPTO, and (2) registered your comic strips with the U.S. Copyright Office. Those procedures enable you to chase infringers, assuming you have the money for an attorney. If you're looking for additional means of chasing those who use your work without permission, you can require users to enter into an end user license agreement (sometimes referred to as an EULA). Under that arrangement you may attempt to further limit your client's rights and you may establish methods of resolving disputes (for example, requiring arbitration, not litigation). Finally, if someone posts your work without your permission, you have the takedown provisions of the DMCA at your disposal.
Fair use?  As you know, fair use permits limited unauthorized uses of copyrighted materials for purposes of commentary or criticism. To the consternation of some in copyright law, a few courts have held that a license agreement can negate fair use rules. Whether fair use trumps a license agreement is ultimately up to the courts. We can't tell you "how much" fair use protects --  it's not a mechanical calculation -- so, you'll need to review cases with similar facts to determine your possible outcome. But we can tell you that if someone makes an unauthorized use of your material, and they're using it for the same educational purposes as you intended, and depriving you of revenue, it's probably not a fair use.

Monday, October 14, 2013

How Do You Remove Blog From "Ban" List?

Dear Rich: A self proclaimed authority blog is using a blog link without permission (in a ban list). They have no intention of removing it despite repeated protests by the blog owner.The misuse of the blog link is damaging the "banned" blog's reputation and reducing the traffic. Kindly suggest what can be done in this situation. We're not familiar with "ban lists" but we assume you're referring to a list of blogs that are prohibited by some entity. For example, various ministries in Canada's government bans blogs because of use of language. Then, there are blogs that are banned by private companies because of their controvecontent -- for example, Tumblr bans "self-harm" blogs. It's also possible that you're using the term "ban list" loosely, referring to some arbiter of taste who lists sites that should be boycotted -- for example, a list of sites that Democrats should boycott because the owners of those sites support Republican candidates.
Links and free speech. There's nothing illegal about providing text links. Linking only creates a problem if the link is used to induce infringement, violence, or some other illegal behavior. Second, people have the right to speak freely and if they choose to speak out against others, they have the right to do so using a "ban list" ... within certain limits. If, however, someone has a ban list entitled "Blogs By Convicted Sex Offenders" and lists your blog on the list, knowing that you are not a sex offender, then posting the link is defamatory (it makes a false statement that damages the blogger's reputation) and a lawyer may be required to correct the situation and perhaps sue for damages. Dealing with a government ban list will require some bureaucratic wrangling -- you will need to research the bureaucratic procedure for appealing such government categorizations (assuming it's a government that cares about such procedures).

Friday, October 11, 2013

Can I Publish Unpublished Poem?

Rabbie Burns, one 
of the great amateur poets.
Dear Rich: I have a copy of an unpublished poem that an amateur poet gave to another person as a gift. I also have the letter that accompanied the poem, in which the poet states that he has destroyed his original and the recipient is free to do whatever he wishes with the copy he sent. In his reply (which I also have), the recipient thanked the poet and added that he might publish the poem at a later time. The poet acknowledged the recipient's statements in his own reply and raised no objection to the idea of publication. The poet is now dead but the recipient is still alive. If I have the recipient's permission to publish the poem, is that protection against a possible infringement claim by the poet's heirs? We think the permission needed would come from the poet's estate, not the recipient of the poem. This permission can be informal -- even an email. At the same time, if the estate is passive (doesn't seem to know or care) about their relative's poetry, you could consider, after weighing the risks, of proceeding without permission. Below is a legal analysis.
  • The poet's estate owns copyright. The poet's estate retains copyright ownership and will continue to own it for 70 years from the date of the poet's death. 
  • "Free to do whatever he wishes." The poet's statement that the recipient can "do whatever he wishes with the copy," doesn't really establish any clear rights. It's ambiguous whether the poet is referring to the physical copy or the legal right to reproduce (or modify). 
  • Implied license. If the poet intended to transfer any rights under copyright law, his statement might be an implied license. The recipient could not transfer those implied license rights to you (any more, for example, than the recipient could transfer his driver's license to you). 
  • Silence is not consent. The poet's failure to object to the recipient's plan for publication is not the same as "consent." If there ever was a lawsuit over the issue (and we hope you're not dealing with this poet), the failure to respond wouldn't be much of an infringement defense.

Thursday, October 10, 2013

Someone "Closed" My Open Source Software

Dear Rich: A friend of mine has made a free, open-source software project, and made it available on internet (app and source code) for everyone to use, download and modify, but he didn't include any TOS or license on it. The first problem is that some guy contacted him and offered a piece of code to collaborate with the project, my friend accepted, and the guy fully knew the free open-source nature of the project. Everything went ok for several months, my friend's project became popular but when my friend decided to update the source code for download (with this guy's additions) the guy demanded him to take off his part of the code, because it was his and he didn't wanted to be available as open source (!!). Can he legally do that? he willingly offered the code to a free, well known, open-source project, there was no contract or anything, but he offered it nonetheless, to a free open-source project. How can he "change of mind" later demanding rights over his GIVEN code? The second problem is: this same guy took my friend's software (as it is open-source and free), made his own derivative version with his own code, and never published any source making it basically closed-source. Isn't this somewhat illegal? Sorry, we didn't include your third question -- a hypothetical involving two developers named John and Stuart. We avoid hypotheticals.
The next level? And speaking of the real world, assuming your friend had a strong legal position (which we're not sure he has), is he willing to take things to the next level -- that is, is he willing to pursue his legal claim by hiring a lawyer or filing a lawsuit? Such actions would only be worthwhile if there were substantial profits generated from the "stolen" code. (If you can determine the profitability of the second project that could help determine your course of action.) Otherwise, the pursuit would be a Pyrrhic victory.
Who owns what? The failure to include a license agreement or a TOS (terms of service) doesn't preclude your friend from claiming copyright on his original code. In fact, the failure to include an open source license works against the belief that the software actually is open source because open source by its nature requires a license (and in many cases an assignment of copyright). However, posting a notice that others are authorized to freely copy and modify the code would likely shield any persons who took or modified the code.
The contribution. As for the code "contribution," assuming that the other guy owned rights in the contribution, he would have either created an implied license (for use in your friend's code) or he would have created a joint work and become a co-author (unlikely but possible --  somebody would have to evaluate the code and the contribution). Under an implied license, the other guy could possibly ask to have his work removed from subsequent versions because his implied license was only intended for a specific version. If it's a joint work, removing the code would not be an option. As for making it closed software, if your friend retained copyright and it's not a joint work, he could claim infringement (see "The next level," above). If it is a joint work, your friend could claim some percentage (presumably half) of the revenues earned by the other guy (but again, that involves taking it to the next level).

Tuesday, October 8, 2013

Should I Use Digital Time Stamp Service?

Have the nattering nabobs
of negativism
 got ahold
of one of our readers?
Dear Rich: I'm a writer and illustrator who would like to be able to write some text, or draw a picture and immediately post it on my blog, but also retain a strong copyright position, all without paying $35 per posting to the U.S. Copyright Office. Would you recommend use of a copyright "timestamp" service (e.g., such as digistamp.com) to establish proof of authorship? Or would you just let the slimy scum scurrilous scribes of plagiaristic perfidy despoil the purity of your title to the children of your pen? If you're posting material to your blog, we can't see much use for digital time stamping. Your blog software records the date of publication (and probably even records history of uploads), and even if there are doubts about that, the pub date can easily be verified by online services such as Way Back Machine. The bigger question is why is dating the material so important?
Being first is overrated. We recently saw an ad for a casino that said "Understated is overrated." That was depressing but the truth is that in intellectual property, being first is really overrated. For example, it rarely matters in patent law because the U.S. has joined the rest of the world with its first-to-file system (and ditched the first-to-invent requirement). And being first is rarely an issue in copyright law, too. Like the quote goes, "if by some magic a man who had never known it were to compose anew Keats’s Ode on a Grecian Urn, he would [acquire copyright]." In other words, copyright protects independent creation, not being first. Timing only matters if, for example, you were an unknown songwriter claiming Britney Spears stole your song and her lawyers argued she couldn't have copied your song because your song didn't exist at the time she wrote hers.
Copyright registration? As you probably know, copyright protection is automatic. Registration before infringement helps determine how much you will recover (and ultimately is required for filing a lawsuit). But you should be able to maintain reasonable copyright protection without doing anything. How existential is that?

Monday, October 7, 2013

Hired to Make Words With Friends Christmas Card

Dear Rich: I have a client who wants me to make her Xmas  card using the Words with Friends scrabble board....approximately 130 cards.  I'm not sure if I'm able to do this because of Zynga copyright laws.  She is only using this for her Xmas cards and will not be selling these.  However, she will be paying a small fee to me to cover my time and paper expenses.  Is this legal? If you mean, will you get hassled for making the card, the chances are pretty slim (unless Don Mattrick is on your Christmas card list). Zynga may have a copyright in its board game's appearance and structure (note its non-infringing differences with Scrabble) but we doubt whether the company would chase after someone who printing a limited edition Christmas Card collection for private use. (They're too busy chasing porn apps and recovering from their stock slide). As long as you're not commercializing or competing, you're not likely to get a cease and desist letter.

Friday, October 4, 2013

Wants to Use "Johnny Cash" on T-Shirt

Dear Rich: I want to print "God Bless Johnny Cash" on a t-shirt using a custom t-shirt website. They said that in order to print Johnny Cash's name, I have to get permission from him (well, he's dead, so probably his estate.) Do I seriously have to get permission JUST for using his name? I don't want anything else printed on the t-shirt, just God Bless Johnny Cash written in white on a black t-shirt. What should I do? Yes, you need permission to use Johnny Cash's name on t-shirts because doing so without permission would be a violation of right of publicity laws. If you make a t-shirt like this at home, chances are good that nobody will know or care ... but the custom t-shirt company is a big corporation that doesn't want to risk lawsuits, hence the permission hurdle. By the way, the company that manages these rights for the estate of Johnny Cash (and June Carter) is Greenlight (though we don't think you will have much luck getting the go-ahead from them).

Thursday, October 3, 2013

Do I Need Release From People Filmed in Public Place?

Dear Rich: My employer is a an M.D. in Florida, and is getting ready to begin filming for his first documentary. I will be his production assistant, but have very little experience with documentary filming. It is my job to make sure that we have all of our ducks in a row, legally. We are filming patients in multiple locations, so my question is this; Do we need to get a signed release from every person who happens to be in the background when we are filming in public? For instance, we are going to be filming at a local farmer’s market and at a grocery store. I will e handing out releases to anyone we will be directly filming, but if there will obviously be other customers present who may end up in our frame. Do I need to hunt each of them down and get a signed release or else be forced to blur their faces? No need to hunt down bystanders who appear in public places in the background of your documentary. According to our favorite resource on the subject -  Clearance & Copyright: Everything You Need to Know for Film and Television -- there is no general right to privacy for someone who is in a public place. You should obtain releases from your interview subjects, however, and we provide a sample release form and explanation in this entry.

Wednesday, October 2, 2013

How I Can Avoid Reversion of Copyright?

Dear Rich: I have copyright to a valuable script. If I ask people to donate (assign) recorded performances, or artist's illustrations, animations (new, in fixed media) of script passages, can I keep the 35-40 year reversion window to assigned rights closed? How do film clip compilers avoid both actors' and donors' reversions? This will support a scholarship program by publishing compilations for the lifetime of my copyright, or the scholarship fund's rights. If California's law prevents work-for-hire as an answer (because donors become unaccounted employees) does it matter if I arrange a (non-monetary) benefit to the performer or artist? If you're looking for a way to avoid reversion of copyright -- copyright law enables the original author or heirs to terminate agreements after 35 years -- you can stop looking. There is no way to stop the process unless you can somehow turn back the clock. The only good news is that you can continue to exploit derivative works created prior to the reversion ... in other words, you can continue to sell and distribute authorized versions or adaptations. Note, also, under the law no new derivatives can be created (unless authorized by the reversionary owner). This Author's Guild article explains the reversion rules.
California work made for hire question ... We're familiar with the rule that works made for hire agreements in California may create an employer-employee relationship. (We've written an entry on the subject.) But -- after several passes -- we're still not understanding your question. If you're concerned that work for hire contributions will create an employer-employee relationship have the donor assign copyright instead of using a work made for hire arrangement .

Tuesday, October 1, 2013

How Do BMI and ASCAP Co-Writers Register Songs?

dividing the songwriting pie
Dear Rich: I am part of a musical duo. We've made a CD (that has't been pressed yet), which features songs written by both me and my bandmate/duo-mate. I'm affiliated with ASCAP. I've got a publishing company also affiliated with ASCAP. My bandmate/duomate is affiliated with BMI, but rather than starting up a publishing company, he just claims 200% of songwriting credits in order to receive full royalties. Here's my question: How do we credit his songs? Should he claim 200% songwriting ownership under BMI, or should I claim them under my publishing company? Is there any benefit to have a particular album/CD/recording under one publishing company (mine)? According to a BMI rep, your partner registers the song as a writer (with BMI), and you register the song with ASCAP (as a writer/publisher). In other words, the same song can be registered at both societies (something we weren't aware of). Writer/publisher information should be cross-indexed on each registration -- that is, when filling out the ASCAP registration form, you would enter your partner's BMI affiliation under "Writer." And vice-versa when your partner completes the registration. If your goal is to split the revenue evenly, you should either:
  • have your partner create a BMI publisher. We're aware that's' pricey -- $150 -- but that will allow each person to receive an equal split of both publisher and writer revenue from their respective PRO, or 
  • make your ASCAP music publisher entity the band's publisher and give your partner half of the income you receive from your ASCAP publisher checks.
Crowdsourcing welcome ... We're interested in verifying this answer with our readers. Has anyone actually registered the same song at both PROs? You can also follow up with your respective PRO as follows: ASCAP Member Services (1-800-952-7227); BMI Member services (newyork@bmi.com (212-220-3000); Los Angeles losangeles@bmi.com (310-659-9109)).