Tuesday, October 29, 2013
Monday, October 28, 2013
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
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
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
|Dear Rich Staff "comes together" on Abbey Road|
Monday, October 21, 2013
|orchid donated to Dear Rich headquarters|
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
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
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
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
Rabbie Burns, one
of the great amateur poets.
- 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
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
|Have the nattering nabobs |
of negativism got ahold
of one of our readers?
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
Friday, October 4, 2013
Thursday, October 3, 2013
Wednesday, October 2, 2013
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
|dividing the songwriting pie|
- 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.