Thursday, January 30, 2014
Wednesday, January 29, 2014
Speaking of the Declaration of Independence and Typefaces ... Who knew that one man's signature would inspire font collections and eventually become the registered trademark for a financial institution.
Tuesday, January 28, 2014
If your husband is owner ... Assuming your husband can demonstrate ownership, you should contact a copyright attorney. Both of the scenarios you discuss are infringements and more importantly, the entities committing these infringements appear to be deep-pocketed. In other words, the potential damages may justify the financial costs of pursuit. In order to pursue copyright litigation, you will need to register the works with the Copyright Office (although no registration is required if only the VARA claims are made).
What's VARA? The Visual Artists Rights Act (VARA) amended the Copyright Act to provide artists with attribution (the right to take or not take credit) and integrity (the right to prevent distortion, modification or mutilation). As for destruction, VARA does not apply if your husband's mural was created (or installed as a mural) before December 1990, or if your husband waived his rights in a written agreement, or the destruction occurs naturally (due to the effects of time or the composition of the materials). When artwork is incorporated in a building and the owner plans to modify the building (which will affect the artwork), the owner must provide the mural artist with notice so that the artist has the opportunity to remove the work, or pay someone to remove it. (In order to insure that notice is received by the artist, the Register of Copyright was supposed to establish a system whereby the artist may record identifying information at the Copyright Office. However we were unable to uncover any evidence that the registry was ever created.)
What does VARA protect? VARA only applies to “works of visual art” defined as: (1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or (2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author. You can read more about VARA here and here.
Monday, January 27, 2014
Determining commercial viability. Although we recommend determining commercial viability before filing a patent application -- it can save you thousands in fees -- it's not a prerequisite for patent protection. There are many ways to assess commercial viability for an innovation and in his book, Patent It Yourself, David Pressman lists over 60 factors that can make a difference such as cost, ease of use, ease of production, durability, convenience, novelty, etc. Many of these innovation factors may not be applicable to a music-teaching system and you can probably get a relatively reasonable perspective by reviewing the music-teaching systems industry -- that is, the sale of instructional book, CDs, DVDs and apps. If you have the funds to have someone else review an innovation, two independent invention evaluation services considered reputable by Pressman are: the Wisconsin Innovation Service Center, and the I2 Innovation Institute. Otherwise, avoid invention promotion scams.
Copyright and Trademark. You can't stop others from using your publicly disclosed ideas but you can stop others from copying the way you express those ideas using copyright law -- for example, your books and CDs on the subject. And, if you can register the name of your system as a trademark, you can prevent others from using a similar name. You can't stop others from discussing the underlying principles of your method as we wrote about in a recent post.
Friday, January 24, 2014
What about patent law? If the system is patented, you can discuss it, write about it, and reproduce the information in the patent ... but you cannot make, use or sell the system. For example if someone patents a system for sending water usage statistics from your water department to your cell phone, you can write about the system but you cannot create an app that uses the system.
What about maps and guides? We wouldn't advise copying someone else's map for an app either. Maps and guides are protected under copyright and wholesale copying is considered an infringement. (The earliest copyright laws in the U.S. were clear to protect "maps, charts, and books" in order to encourage the development and growth of the nation.)
PS Dept. We assumed you're not referring to the Scientific Method - question, hypothesis, prediction, testing, etc. -- which is centuries-old and in the public domain (just as is any method or explanation published in the U.S. before 1923).
Thursday, January 23, 2014
What does the operating agreement say? The operating agreement is the rule book for the LLC owners. Does yours say anything about ownership of copyrightable materials? If it assigns or transfers ownership to the LLC, then you are in the clear. (Note: LLC operating agreements don't always address these sorts of intellectual property issues.)
Was the officer an employee of the LLC? An LLC member/owner is not automatically an employee of the LLC. (The determination of employee payments may affect how LLC members are taxed.) If the LLC treated the officer as an employee -- for example, paid a regular salary or provided benefits, any copyrightable work created within the course of employment would be owned by the LLC under work made for hire principles.
Did the LLC enter into a contract with the officer? Even if the officer was not an employee, it is possible that the parties entered into a contract that transferred some or all rights to the officer's blog entries. In the absence of a written agreement, there may be an implied license for the LLC to use the officer's entries. If you anticipate a dispute with the heirs over this issue, it's prudent to consult with an attorney.
PS Thanks to Steve Fishman for his comments on this one.
PS Thanks to Steve Fishman for his comments on this one.
Wednesday, January 22, 2014
|photo: David Shankbone|
Why no registrations? If you searched copyright records and did not find any registrations for the show, that doesn't mean that the show is not protected. Registration is not a requirement for copyright protection, although it is required for a lawsuit.
Would your use qualify as a fair use? Maybe, but we doubt it. A five minute clip might be considered too long to qualify. In any case, it could prove fairly expensive to find out -- the only way to be positive is to have a court rule on the matter. We'd suggest that you peruse some fair use cases dealing with audio-visual works.
Monday, January 20, 2014
Public pix. You can't stop people from shooting photos of your boat if it is in a public place. The photographer is free to reproduce these photos for editorial purposes (informational uses such as the boat insurance article). The same may not be true for commercial uses (for example, an ad for boat insurance), because there is an argument you may be able to assert that people associate you with the boat and the use in ad implies your endorsement. That's expensive, and you may have to be a Tiger Woods to pull that one off.
Copyright issues. If you took the photo, or you acquired copyright from the photographer, you can claim copyright ownership and demand that the unauthorized use stop. (We have the feeling that's not the case.)
What to do? We like your suggestion to kindly ask that the author change the photo (or at least block out the name of the craft). Sometimes people can be surprisingly reasonable. If the author doesn't cooperate, there's not much you can do except hope it fades into obscurity.
BTW Dept. As the seller you probably know you can't conceal existing flaws. So if the incident caused damage, you may have a duty to disclose that. State laws may differ on this requirement.
P.S. Dept. You asked whether the reproduction was legally kosher? Not to put too fine a point on it but the true meaning of "kosher" is that something -- food or a ritual -- conforms to Jewish law. We couldn't find any Jewish boating laws but we did find evidence of Jewish copyright laws.
Friday, January 17, 2014
Have you weighed your options? In trademark litigation -- where damages rarely cover the costs of litigation -- you have to be careful not to let emotional reasoning dominate your decision-making. Always keep in mind that lawyers love a client who fights because of "principle." We know it is anger-making to find another business using a similar name. But before you seek injunctive relief, speak with your attorney about the likelihood of success. If you're not satisfied with your attorney's answer -- it's evasive or unclear -- get a second opinion! Determine as best as possible what the impact of the other mark is on your business? Do you have actual customer confusion or lost sales? If not, proceed slowly. Is it possible to engage in trademark arbitration with the other party? That may save money and be less hassle. If you decide to continue with your attorney, here are 10 tips for minimizing costs (scroll down to "Keep it Cheap.")
Thursday, January 16, 2014
You have the code, now what? Once you know the code, you can then use the Trademark Search feature on this page. Choose "Word and/or Design Mark Search (Structured)". For the "Search Term," insert the code, and for the "Field" choose Design Code from the drop down.
In the second search term box, you can enter goods or services (choose "Goods or Services" from the Field drop down), information about the design such as "galloping" or "saddle" (choose Design Description from the Field drop down), or any other combo of search term and field. Make sure you choose "AND" from the Operator drop down on the right side
described in the video.
Wednesday, January 15, 2014
Tuesday, January 14, 2014
Monday, January 13, 2014
Who owns the rights? Although Blade Runner rights are attributed to the Blade Runner Partnership and the Ladd Company, the controller of rights appears to be Bud Yorkin, the man who brought us What's Happening!! and who supposedly caused the "happy ending" to be tacked on to the Blade Runner domestic release. That's just a guess based on the fact that Yorkin is credited as the transferor of prequel rights to Warner Brothers. In any case, our experience is that film producers usually don't want to deal with granting permission for stills. We'd suggest that you find a site such as Corbis Images that offers licensing rights to production stills and that also offers services to obtain rights on your behalf.
Friday, January 10, 2014
|Chekov family - Anton in white jacket|
What about Internet posting? As we mentioned in another recent entry, posting material on the Internet is generally considered to be a publication, assuming there is a means of reproducing or downloading the material.
P.S. Dept. A minor correction in your question ... to qualify as PD, a work must be published (not created) before 1923. For more help, check that helpful PD chart, we cited above.
P.P.S. Dept. We hope you don't mind that we cut your question in half. We are followers of FDR's maxim, “Be sincere. Be brief. Be seated.”
Thursday, January 9, 2014
Wednesday, January 8, 2014
|USGS: Rocky and Sandy Seafloor Offshore California|
Monday, January 6, 2014
noun. a legal doctrine that portions of copyrighted materials may be used without permission of the copyright owner provided the use is fair and reasonable, does not substantially impair the value of the materials, and does not curtail the profits reasonably expected by the owner.Based on that definition, we think you'll be fine using a single excerpt without permission (you can get more fair use here). We add our usual disclaimer: fair use is a defense with the final outcome determined by a judge.
If you're uncomfortable relying on fair use ... You can review Merriam Webster's copyright policy and seek permission as provided. If you don't want to ask for permission or rely on fair use, perhaps your definition exists in one of these public domain dictionaries (scroll down).
The real world ... A lawsuit over a single definition would not be a brilliant public relations strategy. Dictionary publishers concentrate their legal arsenal on those who purloin groups of definitions.
Friday, January 3, 2014
But wait there's more ... The rules regarding accessing and acquiring DoD imagery are about to change. According to announcements made last month, a private company has been awarded a contract to digitize and license DoD content. Here's the DoD's statement of objectives for the project and here's an article explaining how it works. In short, accessing DoD works may involve more fees and more licensing restrictions.
Thursday, January 2, 2014
|pity the pooch|
Selling handmade Mr. T puppets. If you manage your sales privately and without much fanfare, you're probably fine. But if your puppets are spotted by Laurence Tureaud (aka Mr. T) , then you might receive a cease and desist letter. We assume Mr. T enforces his right of publicity (the right to exploit his personna for commercial purposes) based on the varied collection of kooky merchandise that he exploits. If you seek to register a Mr. T trademark for the puppets, you will also run into a problem because trademark law prohibits registration of the name or likeness of a living person (Mr. T. is alive and even has his own app!) without that person's consent.