Friday, February 28, 2014
|from the Paris Sketch Book by |
William Makepeace Thackeray
First sale doctrine. You're free to cut up pages of a book and display them in your bar under a principle known as the first sale doctrine -- a copyright principle that enables the owner of an authorized copy of a work to sell or dispose of it. There are some limitations for fine art works and even for printed books (as we discussed in a previous entry). But your proposed use steers safely clear of problems. In addition, if the works were published in the U.S. before 1923, they are safely in the public domain and free for you to use for any purpose.
Thursday, February 27, 2014
Wednesday, February 26, 2014
How can this be? Unless the parties agreed that the eBay resolution -- the mutual cancellation -- was the final decision on the matter and was binding and precluded any further legal disputes, either party would be free to file in a "court of competent jurisdiction." It's unlikely that the cancellation prohibits filing a court case -- eBay's Resolution Center promotes mediation, not binding arbitration -- but just in case, review the small print from your mutual cancellation arrangement. If it binds and is non appealable, you can introduce that in court.
Why am I in court? Most eBay transactions occur across state lines. Civil suits are rare because the disgruntled party would have to sue in the other party's state court (in order to acquire personal jurisdiction). For example, if you lived in Ohio and the seller lived in New Jersey, the seller would likely have to file suit in Ohio. That's not an issue in your situation, so regardless of the unfairness, you must defend yourself or risk a default judgment (which could possibly be the seller's strategy).
The contract claims. Based on your letter, it sounds like you have a reasonable defense: the merchandise was defective (and the seller acknowledged that by returning your money). The case may hinge on whether the seller sought return of the merchandise and communicated that to you. If it's a contract claim, the amount sought by the seller should reflect the compensatory damages -- the amount that the seller expected to receive from the sale. Any demand in excess of this amount would have to be justified as being foreseeable by both parties. In other words, it's going to come down to a matter of evidence so you must organize to demonstrate each point that you make in your letter.
PS Dept. You state that the seller "illegally charged" you sales tax and you're both from New Jersey. We're not sure what you mean. Sales tax normally would be charged in such a situation.
BTW Dept. If your dispute is with eBay, you'll likely be barred from taking them to court by the eBay user agreement.
Tuesday, February 25, 2014
Fair use? Your proposed use seems like a fair use (for which permission is not required). The amount taken is small and it is being used a for a purpose not intended by the copyright owners (a transformative use).
Just in case dept. If you're not comfortable claiming fair use and you'd rather get permission, we think the owner of rights is Twin Peaks Productions, Inc. (formerly Lynch/Frost Productions). According to California corporations records, the company can be contacted either care of Hansen, Jacobson, Teller and Hoberman, 450 N. Roxbury Drive, 8th Flr., Beverly Hills, CA, 90210, or via Fred Altman, 9255 Sunset Blvd. #901, Los Angeles, CA, 90069. You can also review the history of copyright transfers for Twin Peaks by searching Copyright Office records -- search for "Twin Peaks" here.
BTW Dept. Twin Peaks Productions, Inc. chased an infringer in a 1993 fair use case.
Monday, February 24, 2014
What is a release? A release, in its purest form, is an agreement in which someone releases the other party from liability. For example, a ski lodge might seek a release from liability from the students on a school ski trip. When students perform for the radio, the public radio station may seek a release for future claims of invasion of privacy, right of publicity, or defamation. In other words, after granting the release, the minor can't come back and sue over the subsequent use of the material regardless of the context. Releases sometimes include an assignment of rights in which case the radio performer gives up any copyright in their words or performance. Some releases are broad (for all future uses) and some are narrow (that is, geared to a specific activity, for example, a release for a particular radio show).
In loco parentis. The doctrine of in loco parentis, as applied in primary and high schools, enables the school to stand in for the parents in certain matters -- typically disciplinary enforcement of school rules. Usually the doctrine is triggered when school officials isolate, interview, and penalize a "trouble-maker." Reviewing the doctrine, the Supreme Court has said, "First Amendment rights of students in the public schools are not automatically coextensive with the rights of adults in other settings."
A release is a contract. The school's ability to serve as a parental surrogate appears to be limited to enforcement of school rules and standards. We see no evidence that the in loco parentis doctrine permits the school to enter into legal agreements on behalf of a minor or to guarantee the performance of a contract, particularly a contract in which the student gives up the right to sue over tort claims. In addition, we can't imagine the doctrine applying when assigning a copyright (that is, giving up an intellectual property right). Previously we've waded into the issue of who can sign a release or agreement on behalf of a minor. The rules are murky involving voidable agreements, parental guarantees, and judicial ratification. Even if the school had the ability to act in loco parentis in this manner, we're not sure it's in the school's best interest to do so (and we think the school's general counsel might agree).
Thursday, February 20, 2014
Definitions. A definition is a statement of the meanings of words or phrases. As a general rule, if there is a limited number of ways to express a definition, copyright law tolerates copying. Short definitions may fall into this category. If not, a few changes in wording should suffice. However, be careful when you take too many word-for-word explanations from one source. The source may complain that you are infringing original expression (that is, they may argue that there are many ways to define the term) or you may be accused of "compilation" infringement.
Wednesday, February 19, 2014
Paying for resolution, not permission. When you pay for high resolution public domain video, you're paying for access to a better quality copy, not copyright permission. Museums employ a similar strategy when they prohibit photos of public domain paintings but license high resolutions images. An additional problem with paying for these processed PD works is that sometimes you must enter into a license agreement to use them, further limiting your right to the material. (We discussed such licenses in this entry.) Generally, you're better off avoiding such licenses.
P.S. The public domain video we "grabbed" for this entry shows the mighty Perceptron - a device with an apparent gender-blending blindspot.
Tuesday, February 18, 2014
Each individual inventor may only assign the interest he or she holds; thus, assignment by one joint inventor renders the assignee a partial assignee. A partial assignee likewise may only assign the interest it holds; thus, assignment by a partial assignee renders a subsequent assignee a partial assignee. All parties having any portion of the ownership in the patent property must act together as a composite entity in patent matters before the Office.If it were any other way, any joint owner could easily "steal" the rights of his co-owners depriving them of any possibility of revenue. There is even case law prohibiting joint owners from granting exclusive licenses (rights that exclude other inventors from licensing) without the consent of all owners. Of course, joint owners can contradict these rules by a written agreement.
PS Dept. Your edition of our book may not be current (it's about 20 years old). The current version is entitled Profit From Your Idea: How to Make Smart Licensing Deals.
Friday, February 14, 2014
Thursday, February 13, 2014
So who owns the image? We created this image which is a derivative work. We're heavy users of iStock and we're pretty sure the photo of the books was licensed from that site. We added the mesh background and balloon captions (which is probably a violation of the iStock license agreement - please let sleeping dogs ... etc.). If we'd created the whole thing, we'd gladly permit you to use the image with attribution but since we don't own rights to the underlying photo, we can't offer that. However feel free to apply our captions over your own bookshelf.
Wednesday, February 12, 2014
For those readers who are unaware, ASCAP is a performing rights organization/society (known as a PRO or PRS) that collects money from those who play songs in public ("public performance"). It then, in turn, pays the owners of those songs, typically a songwriter or song publisher. PROs collect money from malls, radio stations, TV stations, restaurants, and any other institutions or merchants who broadcast or perform songs from the ASCAP repertoire. Lately the PROs have begun to pursue an overlooked venue -- farmer's markets. Here's what a typical ASCAP letter might look like. The Farmer's Market Coalition is amenable to working out an arrangement but has balked at the stiff fees demanded by the PROs. The organization has retained legal counsel to look into the issue.
Will they pursue me? We're sorry to learn that your busking career has been so drastically altered, especially after having enjoyed the gig for several years. If you decide to return to the streets, we don't think you'll be hassled by a PRS. Performing right societies don't pursue individual musicians, they pursue and license the establishments where the music is performed. You can't pay an "individual" fee for performing cover songs because ASCAP only collects from the businesses, establishments or sponsoring organizations.
Isn't it unfair? That depends on who you ask. Your arguments -- you're not being paid, the market doesn't advertise live music, it's a public place -- may work for espousing free speech, but they don't line up with copyright law or commercial reality. The right to "perform" a song is controlled by the copyright owner. In any case, you're free to play music in a commercial setting as long as it's not ASCAP music. So your original or public domain compositions won't get anyone in trouble. Whether you get paid or not is of no consequence because the market benefits in the same way Urban Outfitters and Whole Foods benefits by presenting a more "pleasing" shopping event. (Note, slow music makes people spend more!) If it weren't so, the music would get turned off. (PS. The Dear Rich Staff is old enough to remember when you didn't have to listen to music when you shopped for English muffins!)
Monday, February 10, 2014
P.S. One advantage of exploiting the House on Haunted Hill is that it's based on an original screenplay, not a book, and therefore you avoid the hassles that plague some other public domain films (scroll to "Subsequent History").
Thursday, February 6, 2014
|Gutenberg gets his first Kindle|
Can I set up an eBook rental business. There are two hurdles to setting up an eBook rental business. The first is that most eBooks are licensed, not sold. When you buy a book via Kindle or through the iBooks store, for example, you have pre-agreed to the licensing rules which limit your use to the selected and approved devices. Similarly, many publishers who sell directly require end-user licenses (even those spreading the word of God). So, regardless of copyright law, these agreements prohibit further eBook distribution. Second, if the rental of eBooks is uncontrolled -- there are no mechanisms in place to limit copying -- it may be perceived as a means of encouraging infringement, especially if your site earns revenue from third-party advertising subscriptions, or some other form of revenue. In that case, you may have to fend off DMCA notices and claims of contributory or vicarious copyright infringement.
How do libraries do it? Libraries enter into agreements with eBook distributors such as Overdrive and EBSCO who, in turn, have entered into agreements with publishers. These agreements establish the end user's rights, digital rights management systems, and the limitations under which the library must operate.
Wednesday, February 5, 2014
Film permit laws. The primary purposes of film permit laws are to avoid liability (by guaranteeing insurance coverage), and to secure the location (police, parking, closures and other coverage) Permits also often serve as a location release for filmmakers and because some distributors and insurers audit releases and rights, it's possible that your ability to distribute your film may be limited by your lack of a permit.
Hats and shirts. You're unlikely to have a copyright issue over the t-shirt (copyright doesn't protect short phrases). As for the hat, we're not sure what you mean by "national logo." If you're referring to a flag or some other U.S. insignia, you're not going to run into a problem. If you're referring to a federally registered trademark, you may need permission if you are showing a non-documentary film in any sort of national distribution system (festivals, commercial distribution, etc.). Here's a post we wrote about trademarks and movies and here's a previous post we wrote about permits and photography. Also, you can check out our book on permission for more information on using trademarks.
Tuesday, February 4, 2014
What about Lassie? It's possible that famous animals may have a trademark claim to their name and/or likeness (and certainly their owners have tried for various property rights). But, so far, no court has extended right of publicity claims to animals.
Monday, February 3, 2014
Fair use opinions. Yes, fair use statements are often drafted by lawyers for movie companies who need them for the benefit of insurance companies. In fact, insurance companies often pre-select attorneys for these legal opinions based on their expertise and experience. Such statements provide an opinion supported by current case law.
Permission from Betty White? Betty White has the right to halt commercial uses of her image under right of publicity rules -- for example, in ads or to imply endorsement of a website. But, unless she owns the copyright to the photo, no permission from Betty White is required to use her poster for a documentary film.
Statement of Best Practices. We think your situation is an ideal one to apply the Documentary Filmmakers' Statement of Best Practices in Fair Use (prepared by The Center for Social Media). the Statement "makes clear what documentary filmmakers currently regard as reasonable application of the copyright fair use doctrine ..." and has been accepted by numerous broadcasters as well as four insurance companies, thus simplifying the clearance practice and avoiding expensive opinion letters. You should review that document and attempt to fit your use into one of the four classes. For example -- if the subject of the film (not the documentary maker) acquired and used the poster, your daughter may make a convincing argument using the third class of situations -- "Capturing Copyrighted Content in the Process of Filming Something Else." You may also benefit by reading up on the "transformative" aspect of fair use as well as looking at some summaries of fair use cases.
If fair use does not apply ... If fair use does not excuse the use, you would need permission from the person who owns the rights to the image on the poster, typically the photographer.