Monday, December 22, 2014

My Brother Claims I Infringed

Dear Rich: My father spent several years writing his memoirs. He wound up with 200 pages of typewritten work. He and my mother put all their estate in a trust in 1994. He passed away in 2002. My mother passed away in 2009. After her death, the estate was divided, per their will, into four equal parts. Each of the four children took what they wanted as far as material goods from the family home. My brother and I each kept a copy of my father's manuscript. Fast forward to 2014. I spent several months retyping the manuscript into the computer, adding footnotes, an epilogue and a chapter written by my father's sister  (used with her written permission). I self-published the book on Amazon. My brother found the book on Amazon and rather than contact me, he contacted Amazon, claiming copyright infringement. I've done some research, and I believe that he and I are co-owners of the copyright, and that I do not necessarily need his permission to use my father's manuscript in the manner in which I did. Am I right or wrong?
You are right. When you and your siblings inherited your mother's estate you became equal co-owners of the copyright in your father's memoirs. Co-ownership of a copyright is very similar to being a tenant in common of a piece of real property with one or more other owners. Since there are four of you, you each own an undivided 25% interest in the copyright in the work. Each co-owner of a copyright has the legal right to enter into nonexclusive licenses with others to publish or otherwise exploit the work without obtaining permission from the other co-owners. However, the co-owner must provide the other co-owners an accounting of any profits earned upon request, and share the profits according to the ownership interests. Some courts have held that co-owners may not enter into exclusive licenses without obtaining permission from the other co-owners--- for example, you couldn't grant a movie studio an exclusive license to create a movie based on the memoirs without the consent of the other owners. But, this is not what you've done with Amazon--the Createspace publishing agreement used by Amazon specifically provides that the agreement is nonexclusive. Since the publishing agreement with Amazon is a nonexclusive license, you had every right to enter into it without permission from your siblings. Their rights are limited to receiving an accounting from you and their 25% share of any royalties you earn. Likewise, any of your siblings may enter into nonexclusive licenses on their own to publish the memoirs; but they may not use the footnotes or epilogue you wrote without your permission--you are sole copyright owner of these elements you added to the original memoirs.
By Dear Rich staffer Steve Fishman, author of the The Copyright Handbook.

Friday, December 19, 2014

Consignment or Rep: Doll Deal Gone South

Dear Rich: Did I make a consignment agreement? I was at a doll show selling manufactured porcelain dolls. The woman at the next table was selling her dolls which are handmade. I was impressed with her work and offered to exhibit her dolls for sale at any of the other shows in New Jersey that I would be attending and I would like to show her dolls to some store owners and I would try to interest a few popular mail order catalogs. She agreed and gave me some of her pieces. As security measure (as we were strangers) I left with her one of my dolls that I was selling which was of comparable value to the merchandise she had given me. We did not agree on any other terms. Unfortunately, I didn't have much luck. I tried several store owners, two doll shoes and two catalogs without any interest. I had reported back to the artists at least three times during the seven months I tried to sell her work.I contacted the artist to arrange the return and exchange of our merchandise. She then told me that since I held her merchandise so long I had to pay for (buy) two pieces which she felt she could have sold at her shows and that she felt would not be her current styles in the future shows. She told me I would have to send a check for those 2 pieces ($90.00)as well as a check for $25.00 for shipping charges for her to return my piece to me. I would also have to ship her merchandise back to her at my expense. We went back and forth and I even offered to drive from New Jersey to Pennsylvania to bring back her dolls. She said in her last correspondence that she would allow for a return of her merchandise with a change being that I would still have to send a check for $25.00 to cover cost of returning my piece to me and that if she felt she could "set the other 2 pieces out for sale" there would be no cost to me. She would not agree to any other conditions. You inquired as to whether you had made a consignment deal and we don't think so. In a consignment arrangement, a gallery or store agrees to sell merchandise and pay the artist only if the merchandise sells. Otherwise the merchandise is returned. Your arrangement seems to be a rep agreement -- an arrangement in which the rep seeks to promote an artist's work to various sources, and in return receives a commission from the sale.
Insert terms here. You reached an agreement on something at that first meeting -- after all the artist accepted your doll and you took her merchandise with a promise to promote it. We're going to presume a contract was formed (although that might be incorrect if you never agreed upon financial compensation). In any case, contract or not, we think the result would be the same if the case went before Judge Judy. She'd probably seek to put the parties back where they were before the arrangement was made -- a remedy known as restitution. In other words, you'd return the dolls to each other and each pay the respective shipping costs.
What about the demanding artist? You have no legal obligation to abide by the artist's demands unless you're seeking a speedy resolution and the return of your doll. If you do decide to exchange dolls, we'd suggest you exchange paperwork confirming the terms of the resolution. And of course, if you want to rep an artist in the future, we'd suggest using a rep agreement like the one we've included in our  Craft Artist's Legal Guide.

Wednesday, December 17, 2014

Can Manager Sign Side Deal with Lead Singer?

Dear Rich: I recently became band manager and I have some questions regarding the contract that we are in the process of negotiating. The lead singer writes all the original material himself so would it make sense, or even be possible to have a contract with the band as a whole but a separate contract with the lead singer as he is writer and therefore any publishing deals or sync royalties I set up would only be relevant to him. He also has a solo tribute act that I will oversee. So, if I had a separate contract with him for his solo act, which would only involve performance commissions, could that contract also include publishing/sync elements relative his material written for the band since the other band members would not actually receive anything from that revenue stream.
We're old fashioned and believe in discrete agreements for discrete purposes. Because of that, we see three agreements in your future
Managing the band. You'd use a management agreement with the band. Because you seem particularly interested in the career of the lead singer, you would probably want a leaving member provision that allows you to manage any band member who strikes out on their own.
Music publishing agreement. Traditionally, when a manager wants a cut of a musician's songwriting income, the manager acts as music publisher and enters into an agreement with the songwriter, either a music publishing agreement or music administration agreement. In the music publishing agreement, the music publisher acquires copyright in the songs and the songwriter gets a cut of revenue. In the administration arrangement, the songwriter retains copyright and the publisher gets a cut for handling the paperwork associated with song promotion. As a general rule, we discourage musicians from entering into publishing agreements with managers unless there are strict limitations on time (it should not extend much longer than the management deal) and songs (it should only cover songs released during the management term).
The tribute band agreement. Why are you getting paid by the tribute act? If it's because you're booking shows, you would use a booking agent agreement. (Note, that in some states, like California, booking agents are regulated and must be licensed.) If it's because you're managing the act, then you'd use a management agreement.
FYI Dept. You can find detailed explanations of all three of these agreements in our book, Music Law, or in our exciting new Music Law program presented by

Monday, December 15, 2014

Can I Turn Master and Margarita into Opera?

Dear Rich: I am contemplating composing an opera in English based on The Master and Margarita by the Russian author Mikhail Bulgakov. Bulgakov died in 1940. The Master and Margarita was published posthumously in two parts in the Soviet Union in 1966 and 1967. With the help of a Russian friend, I have made a translation into English from the original Russian. This first Russian edition was never published in the U.S. Until the fall of the Soviet Union, there was little doubt that The Master and Margarita in its original Russian had become public domain. That changed with the advent of the Russian Federation which signed onto the Berne Convention, among other agreements. The Russian Federation also rewrote some of its own copyright rules. As it now stands, it would appear that The Master and Margarita in its original Russian edition will become public domain in The Russian Federation in 2017, following their 50 year period of copyright for posthumous works. I have been assured by publishers in England that it will also be public domain there. According to the Berne Convention, as I understand it, copyright for posthumous works is 50 years. Will it also be public domain in the U.S. in 2017? Does the US follow the rule of the shorter term, following the rules of copyright for works published in another country in which the copyright period may be shorter? Or is it protected for 95 years from the date of posthumous publication? Dear Rich staffer Steve (The Public Domain) Fishman provided this answer:
Stephen Fishman
Unlike the United Kingdom, the United States does not follow the rule of the shorter term. The Master and Margarita entered the U.S. public domain when it was originally published in Russia and France in the late 1960s because the U.S. had no copyright relations with the Soviet Union. However, its U.S. copyright was automatically restored on Jan. 1, 1996 under the Uruguay Round Agreement Act and it is entitled to a full term of U.S. copyright protection. This term is 95 years from the year of first publication. So if it was first published in 1966, the novel will remain under copyright in the U.S. through the end of 2061. You'll need to get permission from Bulgakov's heirs to use it in an opera. Be sure to do so, they are litigious bunch. They recently filed an unsuccessful suit against a U.S. publisher that published an e-book version of an English translation of the novel. See Peter Mayer Publishers, Inc. v. Shilovskaya, 2014 U.S. Dist. LEXIS 45887 (SDNY Marc 31, 2014).

Thursday, December 4, 2014

How Long Can They Use My Photos in Catalog?

Dear Rich: Do I have a right to ask for extra payment if a company is still using my photos from a photoshoot in April 2012. After the photoshoot they made me sign a small paper stating I received a payment of 15,000 pesos. There was no other written agreement. They just told me they will call me again if I will be accepted for their next photoshoot. The photos were used in their catalog (I think in April or May 2012 and the next catalogs after that). Up to now there are some photos still in their new catalogs even in their website. Can I ask for extra payment? Are there written limitations about how long they can use my photos? We don't think you're likely to have much recourse for the continued use of your photos but the answer depends on the factors described below.
What nation's law is applicable? You mentioned that you were paid in pesos which indicates that you or the company paying you is Mexican. If the work is subject to Mexican copyright law, we're not going to be of much help. Rules about ownership differ slightly from U.S. law. The copyright law in Mexico is grounded more in European copyright principles than in British rules (like the U.S.). If your arrangement is subject to U.S. law, read on.
Who is the copyright owner? By default you are the copyright owner as the creator of the photograph. However, if you were an employee (not likely) or a contractor who signed a work made for hire agreement, the company would own your catalog photos and would have the right to reproduce them whenever they wanted. So, your first task, if you still have that piece of paper, is to see whether that agreement establishes a work made for hire arrangement or alternatively, whether you gave up rights with an assignment.
License or work made for hire? It's also possible that you may have retained your copyright ownership but you licensed the catalog uses. This could have been done with an explicit license (again, check the paperwork) or it could be an implied license. For example, if the job description stated you were taking photos for use in a catalog, or you orally agreed that they could be used for catalogs, a judge would likely believe that an implied license was granted and the company would be within its rights (provided it only used the photos for catalog purposes). On the other hand, if your oral understanding was that the use was to be limited to a period of time -- say, two years -- then, you would be within your rights to demand more money.

Tuesday, December 2, 2014

News Aggregation and Fair Use

Dear Rich: We're interested in aggregating entertainment news for a new app. Is there any formula to use to figure how much can you take from a news site. Sorry, but there's no way to quantify how much is "too much." It's more helpful to look at the handful of public disputes over news aggregators (websites or applications that gather news or news feeds from other sources). In 2005, the Associated Press (AP) was involved in a dispute with All Headline News, a company that copied and rewrote news stories and resold them. AP seems to have had the upper hand because the parties settled before trial with All Headline News agreeing to pay for past use and to halt future use of AP content. In another dispute, AP went after Google for its news clipping service. The result: Google entered into a licensing deal with the AP, as well as with another news organization, AFP.
Meltwater and the search engine defense. More recently AP sued Meltwater and prevailed on its infringement claim. Meltwater argued that it functioned like a search engine -- an argument that had worked successfully in other fair use/search engine litigation and scanning/search engine lawsuits. But Meltwater differed from search engines like Google because it was a paid subscription service. It also failed the fair use test because its service cut into AP's clipping service revenues and because it sometimes copied up to 60% of articles. (One possible takeaway: don't mess with AP!)
Fox News and TVEyes.  A related case involved a TV clipping database, TVEyes, that made it possible for users to search news broadcasts using keywords, then view a portion of the curated news clip containing those keywords. A district court determined that the storage, indexing, excerpting, and reproduction of the clips was a fair use. The court emphasized that the purpose of the database was unique and transformative, and dismissed the “very small possible impact” of  lost revenues for Fox.
Bottom Line Dept. As this informative (slightly outdated) article explains, the type of aggregation (there are a few variations) may make a difference as to whether your app qualifies for fair use. It also explains the disfavored concept of hot news. In any case, we must repeat our fair use mantra: no matter what we say, only a court can determine what constitutes fair use.