Tuesday, April 29, 2014

She Wants to Curate and Embed Tweets on Her Blog

Dear Rich: I'm a freelance content marketer who works with corporate entities. Can I embed tweets in my blog that are curated from various Twitter feeds (not associated with my clients)? Can I embed tweets on blog posts that don't direct anyone to buy any products (via blog copy), yet product shots are located on the same page. If it is illegal, then why can online media outlets embed content on web pages that feature advertising. Isn't that essentially the same situation?
Copying text tweets is unlikely to violate copyright laws. But copying the name or image of a person who wrote the tweet may violate right of publicity laws if you're implying that person endorses a product or service.
Tweet infringement? Legal experts believe that the vast majority -- if not all text tweets --  are too short (and lacking originality) to acquire copyright protection. (This article summarizes the theories). So, aside from potential right of publicity claims, you're free to copy them -- uhh, we mean "curate" them.  That's not to say that copying a tweet can't get you in trouble under copyright law. But you're more likely to get hassled if you tweet infringing pictures or movies, links to infringing content, or if you post a collection of tweets by someone.
What about the right of publicity? Obviously, you can retweet any tweets within the world of Twitter without any problem. But if you post the name or image of a person associated with a tweet in a commercial context apart from Twitter you need to do so in a way that doesn't imply endorsement or association. You might want to look at some right of publicity cases to get an idea of how the law works.
How can they do it? Your situation is distinguishable from a media outlet because your posts are considered commercial  -- that is, you're marketing a client's services or goods,  not reporting information. This may seem like an artificial distinction and the relevant law is not crystal clear ... but that's where things stand at present.

Friday, April 25, 2014

Cutting Up Art Books and Selling the Prints

Dear Rich: In one of your articles, you state, "... the first sale doctrine does not permit the owner of a book of copyrighted art prints to separate the prints, mount them in frames and sell them separately.” This was the first time I have seen this interpretation. Where does the infringement start? Separating the prints? Selling separately? Mounting the prints? Framing and selling? I always thought it was okay to separate and sell -- for example, I buy a portfolio of loose prints by various artists printed and sold in the 1960s. Can I sell these separately as is. If yes, what if the folio is spiral bound, or stapled? Two California courts ruled that ripping out images from a book and reselling them in frames is not permitted under the first sale doctrine. A New York court seemed to agree with these rulings, while an Illinois court ruled that it was okay to disassemble a box of notecards and mount each card on a tile and sell it. (We wrote about these cases back in 2009.) We can't tell you the outcome of the various scenarios you describe but we can say that as a general rule, you'll have a harder time winning a case where prints are removed from a bound volume than from an unbound collection.
At what point? The infringement probably starts when you commence distribution of the derivative copies (the separate images taken from the book). It may start earlier -- when you separate the images -- but nobody is going to care about that, at least not until the images are available to the public. That's when the injury occurs and the copyright owner wants to take action.

Wednesday, April 23, 2014

Still Life of Vacuum Cleaner?

Dear Rich: I'd like to create still-life oil paintings (and prints of them) of objects that have been commercially produced. I intend to blur or render vague logos or other trademarks on the objects in the course of painting them. Is a painting of a functional commercial object inherently transformative, as it completely changes the intended use? Does it matter (or help) if the design patent has expired for the object? As a couple of examples: a still life painting of a 1980s VCR machine (expired design patent, no longer marketed) vs. a still life painting of a Dyson vacuum cleaner (still under design patent, actively marketed)? Turning commercially produced objects into "art" -- particularly if you blur the trademarks -- is unlikely to trigger legal action.
What about copyright? Copyright protects aspects of industrial designs that are separable from the functional object -- for example, a three dimensional design from a belt buckle, or an image silk screened on a car trunk. In the objects you describe --  a VCR or a vacuum -- the function and the form are inseparable and therefore unprotectible under copyright. (However, you might be infringing if you based your painting on someone else's copyrighted photograph of the Dyson.)
What about design patents? The presence or absence of a design patent doesn't matter. You would only infringe Dyson's design patent if you sold competing products that looked substantially similar.
P.S. Dept. We clean the Dear Rich headquarters with a Miele, not a Dyson, so we had to use that for our rendering.

Monday, April 21, 2014

Can We Use Video of Seal Slaughter?

Dear Rich: Certain large charities have video footage of government-sanctioned killing of wildlife. It costs a lot of money to be able to get this footage. Thus small charities generally don't try to do so. They allow journalists to use the footage, but when it comes to providing the footage (and stills) to small charities to further the campaign, the big charities at times and for certain purposes have been helpful but at other times and for other purposes have not. We are now trying to further the campaign by encouraging people around the world to create videos, music videos, songs, digital art, or traditional art to protest against the killing in a creative way. Our hope is that some people will create good enough work that it goes viral and makes a big difference to the campaign. We have asked the big charities to allow us to provide some footage and stills to people for this purpose (of course with copyright credits provided), but so far, our requests have been denied by one and ignored by another. We don't profit from anything at all. We have some stills from the big groups that we have posted on our website in our archives. This is a fraction of what they gave us several years ago. We also have some footage that they have provided us previously for different purposes. Would it be considered a copyright violation or fair use if we tell people that they can take clips from certain footage or use some still photographs that we have as long as it makes up less than a certain percent of their work, they credit the owners, and they only use it for this work and not for other purposes in the future? We don't want to stand in the way of positive social forces but we also don't want you to be misled by the "fair" in fair use. Judges applying copyright law typically do not encourage a sense of charitable fairness when confronted with issues such as yours. They will consider the nonprofit aspect of your enterprise as a minor element when analyzing the four fair use factors. In addition, because nonprofits compete for donation dollars, the copyright owners may argue that stepping on their rights deprives them of an important source of revenue (and therefore discourages their investing in such footage in the first place). We're also not sure whether the uses you're envisioning are transformative; they're promoting the same message as originally intended -- to shock the public into preserving wildlife. Therefore, we're not comfortable arguing fair use, regardless of the percentage taken.
Some other concerns. A major factor weighing against your legal position is that you are encouraging others to use this footage without authorization. That could be perceived as risky behavior for two reasons: (1) it exposes third parties to the potential for legal action (and they may seek indemnification from your organization); and (2) it opens up the possibility that third parties, with your permission, may seek to subvert your message encouraged by your offering of unauthorized footage. And, as you recognize, this will also certainly jeopardize any symbiotic relationships you may have built up with the larger charities, particularly if they are forced into a public relations dilemma of having to go after those whom you authorized. Maybe it's best to encourage creative individuals to create their own imagery.

Wednesday, April 16, 2014

A Perfect Day for Banana Hockey? Patenting a New Sport

Dear Rich: Is there anything patentable or copyrightable in the equipment, rules or jargon for a new sport? Say I’ve created “Banana Hockey,” which involves skating on banana peels instead of ice, specifies using fresh bananas as pucks, requires special sticks with banana-shaped scoops. Let's say that Banana Hockey also has its own rules and jargon, which bear only a remote resemblance to those of ice hockey, e.g., a player who “shoots” a banana at a goal is known as a ‘banana caster." Is this stuff worth getting intellectual property protection for?Novelty sports like bed racing and elephant polo may benefit from IP protection but the cost of securing it is not always worth the effort ...
Can we obtain patents on the sport? It's possible to patent sports and sport methods. So, if your game is new and not obvious to others, you may be able to get a patent. But patents are expensive, and it takes more than a year for the PTO to grant one (during which time you have no patent protection). By the time you do get a patent, you will need enough funding to hire a lawyer to enforce it.
Can we get copyright protection for the sport? You won't be able to obtain a copyright on the idea of the game though you can get protection for rule books, images, theme music, etc. Professional sports owners also retain tight ownership over the right to record and broadcast games.
Can we obtain trademarks for the sport? Trademarks helped to generate $470 billion in sports revenue yearly. If you're intending to sell merchandise, you should seek a federal registration. But, here's the catch: you can't obtain a federal registration until you use your sports trademarks in commerce.
Bottom line: IP protection can help protect your turf ... but there won't be any turf to protect without a marketing budget and fan loyalty.

Tuesday, April 15, 2014

Will They Got Mad if We Argue Fair Use?

Dear Rich: If we buy half a dozen of photos from a photo agency, let’s call it XYZ images, and discover that other photos which we obtained from out-of-business newspaper archives (sold on eBay) are credited to a Now Defunct News Service (NDNS) a company since bought out by XYZ, are we obligated to declare those additional photos to XYZ? These are photos that otherwise appear to meet the criteria for fair use, and are not found in a search of the XYZ’s website. If we already did report to XYZ that we have some of these pictures, would that void our option to fair use those photos? If we told them our attorney advised fair-using the NDNS photos, would that make them mad or would they consider that normal business practice? You can buy and sell photos on eBay but if you want the right to reproduce those photos, you'll need permission from the copyright owner. Otherwise, if the owner learns of your use and decides to hassle you, you'll have to deal with the infringement or defend yourself with a fair use argument.
Making them mad. We don't know if claiming fair use will make the owner angry. But if you're using fair use as a negotiating tool, be prepared to defend your position with a reasonable argument based on caselaw. Seeking permission does not preclude you from later claiming fair use -- that's what happened in this case.
BTW Dept. We don't think an attorney would advise "fair-using" something. ("Fair use" is not a verb.)

Monday, April 14, 2014

Can I Reproduce Article About Myself?

Dear Rich: I am a realtor and am creating a web page of myself with the listings that I have. I wanted to know if I can use articles that have been published about myself as well as photos of me taken by several newspapers, magazines etc. In other words, if I have been featured in an article about myself or mentioned in any article, do I have the rights to post it/use it on my website? You might think that being the subject of an article or photo would give you rights to use the results, but it doesn't. There are a few exceptions -- you can reproduce the specific statements you made in the article, and you can prevent use of your image for purposes of commercial endorsement -- but the copyright for the articles and photos vests in the writer, photographer or their employer, and they control the right to publish and reproduce.
That said dept. As a practical matter, it's very possible that the copyright owners will look the other way if you reproduce their works as part of a website, resume, or portfolio. They may consider it a tradeoff for your cooperation, or they may believe you have a reasonable fair use claim, or they may simply feel that the hassle of pursuing you is greater than the potential rewards of a lawsuit. If you plan on attempting this route, it's best to keep all the material within context -- for example, if a photo accompanied an article, post them together, not on separate web pages -- and avoid any implication that the publication is endorsing you or associated with your website or business. If you are concerned about getting hassled, contact the publisher and seek permission --  a simple email confirmation will protect you.

Friday, April 11, 2014

So Many Copyright Questions ... So Little Time

Dear Rich: (1) What is the length of time the U.S. Copyright Office takes to approve or not approve a copyright application? (2) If I secure a lyrics copyright on a public domain melody for commercial purposes can someone else use that same melody with different lyrics --- say a competitor -- and secure another lyric copyright on that same melody? (3) Regarding the renewal of copyrights, is a renewal of copyright application sent out to copyright owners at the appropriate renewal time, by the copyright office or is there a formal time frame that copyright owners must adhere to? How many times or how often is that renewal required? (4) When using public domain music, it is difficult for me to not have a doubt the melody could have copyright protection. Does using a disclaimer provide some helpful consideration in the case of an infringement? Does using a disclaimer absolve the defendant from fines if the cease and desist notices are honored and observed? (5) If a request for a copyright on an established (for sure) melody in public domain has not been approved or affirmed by the copyright office, and an opportunity to negotiate a deal for that completed song arises, what are the risks if the business is carried out despite the fact the copyright and request had not been confirmed? We'll go through your questions, below, but first we wanted to remind you that copyrights are not like patents or trademarks for which "approval" by federal government examiners is essential for protection. Copyright is automatic and registration is necessary only if you want to sue an infringer. Here are your answers by number:
(1) It takes three to five months for an electronic copyright application to be processed. It can be expedited if you are suing someone.
(2) Yes, anyone can receive copyright protection by creating lyrics for a public domain melody (ask Elvis).
(3) Copyrights no longer have to be renewed. Renewal obligations ended for works created after 1963.
(4) Music is either in the public domain or not. If you need help determining public domain status, consult this website or use this book. A disclaimer may have some effect in a trademark infringement case but a copyright disclaimer -- especially the meaningless and confusing use of "No copyright intended" -- has little to no effect mitigating copyright infringement. 
(5) You can't acquire copyright protection over a public domain melody. You can only acquire protection for original material that you add to the melody, or for the manner in which you creatively re-construct the melody.

Thursday, April 10, 2014

Employee Trade Secret Duty

Dear Rich: I don't see many questions about trade secrets on the blog and I have a particular question. Is an employee (not under an NDA) under any duty to discover what are his/her employer's trade secrets are, and/or protect/not divulge them? Employees always have a duty to protect employer trade secrets regardless whether they signed a nondisclosure agreement (NDA). This duty not to disclose is typically found in state trade secret laws. As for the duty to "discover" trade secrets ... an employer usually makes it clear what is a trade secret. If not, the categorization (of what is a secret) may become an issue if an employer decides to sue.
Why do employers use NDAs? Employers use NDAs -- in addition to state laws that protect them -- because it's possible to obtain extra benefits when suing, including increased damages, payment of attorney fees and a guarantee as to where or how the dispute will be resolved.
Not to put to fine a point on it ... The Dear Rich Staff answers many trade secret questions (over 20 so far). Use the search box on the right to find them. We also have a thorough trade secret site with lots of free NDAs!

Friday, April 4, 2014

Using Music in Vine Videos

Dear Rich: It's been a year since the Vine-Prince copyright infringement incident, and I was wondering if anything has changed or progressed regarding having music in one's vines. I ask because I'd like to expand my music criticism blogging to include seven second long real-time critiques of copyrighted song sections. How do the waters look currently, concerning this grayest of issues? Nothing seems to have changed -- at least in terms of Vine policy -- since Prince filed his DMCA notice (and we last wrote about the situation). Vine's TOS prohibits infringing content and permits Vine to remove it "without prior notice and at our sole discretion." That's all standard language for a social media site. However, we haven't seen any news about other popstars chasing down Vine videos. You can sort through DMCA notices at Chilling Effects but a cursory look doesn't reveal any Prince-style complaints. (The notices would go to Twitter, Vine's owner.) We also don't see any indication that Vine is using a Content ID system to flag material.
Is seven seconds a fair use? There are no size, shape, or time limitations that excuse an infringement, although the shorter the segment and the more transformative it is, the more likely it will be excused as a fair use. Your proposed music criticism blog (with seven second snippets) also sounds like a fair use. And if you have a strong fair use position, you can always push back against a DMCA notice. But, if threatened with a lawsuit, speak with an attorney before throwing down the gauntlet.

Thursday, April 3, 2014

Wants to Use Alice in Wonderland Quotes

Dear Rich: I had sort of an epiphany while watching the  Tim Burton version of "Alice in Wonderland." It prompted me to start writing a book called "The Six Impossible Things I Believe Before Breakfast." I plan to self publish but am concerned about permissions. I will use about 8 dialogue quotes in the book and then I have come up with my own 6 Impossible Things I Believe Before Breakfast inspired by Alice's. For example Alice's 1st Impossible thing is "There is a potion that can make you shrink" Mine is "There is an enemy that can make you shrink" Do I need permission to expound on an idea inspired by watching a movie? If so, who do I get it from? No permission is needed. Lewis Carroll's Alice's Adventures in Wonderland was published in 1843 and lives comfortably in the public domain. Even if it were not in the public domain, we think you would be safe revising eight quotations from the book under fair use principles.

Wednesday, April 2, 2014

Are Freestyle (Improvised) Songs Protected by Copyright?

Dear Rich: Are songs that are created "on the spot" protected by copyright laws? I do freestyle songwriting and upload the video or MP3 on the internet. My songs contain original lyrics and melodies and are done without any type of preparation whatsoever. Most of my songs are without instruments, just my voice (acapella style). Your freestyle songwriting is protected by copyright law because it is “fixed” -- that is, you’ve recorded your songs as videos and MP3s. You don’t need full instrumentation to claim a songwriting copyright either; words and melody should be suitable. Your copyright enables you to chase anyone who has access to your songs and who copies them. (By the way, this is what your brain looks like while freestylin'.)

Tuesday, April 1, 2014

Fortune 50 Company Rewriting Pop Songs

Dear Rich: The company I work for -- for-profit Fortune 50 -- has been creating songs as learning tools for its employees and clients' employees. These adapted songs keep the tunes of popular music and simply change the lyrics to fit the subject matter.  Does this fall under parody? Or would this be a copyright infringement if the company does not ask or get permission from the original artists?  If the company is recording or performing copyrighted songs without permission, it's infringement. If the company is simply rewriting the lyrics and encouraging others to sing it to a certain melody that may be an infringement (as we discussed recently). Lyrics are separately copyrightable and if the company is borrowing too much from the originals, they would create an infringing derivative.
Are these parodies or fair use? We doubt whether the changed lyrics qualify as fair use/parody. Most judges believe that a parody of a song makes fun of the underlying subject matter (although one judge claimed a parody doesn't even have to involve humor). In any case, if the use is commercial, and the company is recording or performing the complete song, this would be a hard sell as a fair use defense. In addition, the Fortune 50 classification and the accompanying deep pockets also make the company an appealing target ... should the song owners learn of the infringement.
By the way Dept. Permission is not required from the original artists; it's required from the owners of the song copyright (usually a music publisher).