Wednesday, July 30, 2014

Registering Copyright For Deceased Photographer


Dear Rich: My father, who died in 2008, was a talented amateur photographer in the 1950s and 1960s, and I’ve started to post some of his medium-format images online (none were ever published). I’d like to batch-register his images with the copyright office. I’ve registered many of my own images, but I’m not sure how to register images for someone who has died (I do have a copy of his death certificate, if that helps). Can you suggest the procedure? It sounds like you're already familiar with batch registrations of photos but if you need more information, read this circular. You'll have to do two registrations: one for published works, the other for unpublished works. When registering works for a deceased photographer, you would need to provide the photographer's year of birth and death. If you are the owner of copyright, you would list yourself as copyright claimant. Otherwise, list whoever it is who now owns copyright. You must also list how the claimant acquired copyright. On the electronic application there is a  drop down menu and one of the choices is "By inheritance." If that's accurate, choose that. Otherwise indicate how copyright was transferred. (Below are some screenshots of the online application).
FYI Dept. Your question reminded us of another photographer who is no longer with us. 

Tuesday, July 29, 2014

Relationship Between Fair Use and Infringement

Dear Rich: I was troubled by the blanket assertion in a recent post in which you stated that if you copied a copyrighted work without authorization, you're infringing. I believe that if your use is a fair use, you are not infringing. Or are you trying to suggest that a fair use is a form of authorization? We wrote, "If you copied a copyrighted work without authorization, you're infringing. Whether that's unlawful depends on whether you can mount a successful defense." In other words, we think fair use means "permissible infringement," and we think your position is that it means "no infringement." From the defendant's POV, we're both right because in either case, the defendant is off the hook. (The distinction might matter in a dispute over indemnity or insurance coverage.)
Where we're coming from ... Fair use is an affirmative defense and affirmative defenses allow a defendant to avoid liability even if the defendant committed the alleged acts. That's why a court usually won't consider fair use until after making a finding of infringement. As the folks at Chilling Effects put it, "Once the plaintiff has proven that his or her copyright was infringed upon, the burden lies with the defendant who invokes the fair use defense to prove that her or his use of the copyrighted work of another should be legally permitted ..."
That said dept. We stand corrected -- see comment below. Thanks Peter!

Friday, July 25, 2014

University Won't Patent My Invention

It looks like I may have made a scientific breakthrough with definite commercial applications. The thing is the university patent office (who would own the work) is reluctant to start paperwork on it as they say a few patents have already been filed using similar "terms" and applications. The thing is, those ideas have been proven NOT to actually work, whereas I now have good solid data proving my concept (not based on anyone else's work) is the one that will produce results. If someone files a patent for a process, but that process is flawed and does not work, does their patent still hold? It's like someone claiming they can build a faster-than-light spaceship, but never actually getting one to work. Then someone else succeeds, and the first party claims their original patent covers all faster-than-light work. We can imagine your frustration at having created something useful and then learning your superiors don't want to patent it. However, the decision seems to be out of your hands. We assume that as a university employee you signed some sort of pre-invention agreement under which you agree to assign all your university-related discoveries to the university. In that case, the university is free to do whatever it wants with your discovery (unless there's a provision in your agreement providing for reversion or buy-back rights).
Your faster than light scenario. In order to obtain a patent, the applicant must have a reason to believe that an invention will "work for its intended purpose." If that's not the case -- the spaceship can't travel faster than the speed of light -- then that can be the basis for attacking the patent's validity. (By the way, the USPTO does not test each patent's functionality.)

Thursday, July 24, 2014

Sold Original Painting: Who Gets Copyright?

Dear Rich: Is it possible to sell an original painting and keep ownership at the same time? For example, if I sell the original to someone and later contract for the work to be used in another area of entertainment, could I maintain ownership of work? Unless an artist has signed a written agreement assigning copyright to the buyer  or establishing a work for hire agreeement, the artist retains copyright ownership of the image. That is the "default" arrangement when an artist sells a work. The artist retains exclusive rights to reproduce, license or make derivatives of the work while the buyer obtains only property rights to the physical painting. To avoid any issues over this, some artists and photographers include a statement in their invoice to the effect that the artist retains all copyright in the imagery.

Wednesday, July 23, 2014

Wants to Use 1970s UK Public Service Films

Dear Rich: I was hoping to use sections of the script/narration from a series of UK Public information films from the 1970’s as one visual element in my original artwork. The lines are either a short sentence or part of a sentence (no more than 12 words in one piece or work), and the artwork will be sold in a very limited print run. We think you can use the material without seeking permission. Even if the copyright owner of this 40-year old source material saw your limited edition prints, it's unlikely they would bring an action as the copying is probably too trivial to cause any damage (de minimis copying). Alternatively, it might be excused as fair use because you're taking so little  (and you're transforming it).
Disclaimer Dept. We're writing about U.S. Copyright law. Britain doesn't have a fair use defense but it does have "fair dealing."
FYI Dept. We're pretty sure that's the remarkable Donald Pleasance narrating the first segment of our video.



Tuesday, July 22, 2014

Collage of 1950s Magazines: Fair Use?

Dear Rich: I want to photograph a collage of magazines from the 1950s and reproduce it in a book about the ‘50s. Does this count as fair use – transformative? Putting aside our usual boilerplate response -- fair use can only be determined by a judge or arbitrator -- we think your use is likely to qualify. Our conclusion is based on a few fair use cases: In Warren Publishing Co. v. Spurlock, a Pennsylvania court ruled that it was fair use to reproduce covers of several out-of-print monster magazines from the 1950s, ’60s, and ’70s. The covers were used in a biography of the cover artist. In Bill Graham Archives v. Dorling Kindersley Ltd., the Second Circuit ruled that it was a fair use to reproduce thumbnail-sized Grateful Dead concert posters within a book. In Kelly v. Arriba-Soft and in Perfect 10, Inc. v. Amazon. com, Inc., the Ninth Circuit ruled that thumbnail-sized reproductions qualified as a fair use. Based on these cases, you are likely to successfully claim fair use if the images are used for a purpose other than selling magazines, if the magazines are out-of-print, and if the reproduced covers have been reduced in size.

Monday, July 21, 2014

Am I Infringing My Client's Newsletter?

Dear Rich: 1) I am an Independent Contractor and web/graphic designer, and my client thinks that I have appropriately shared proprietary information. Do electronic newsletters constitute proprietary information? 2) I forwarded several emails newsletters at the request of a former employee and friend with whom I had collaborated on the newsletter design. Did I unlawfully share a proprietary work? 3) Does my client own full copyright to the electronic newsletter which I designed? 4) Does usage of the newsletter in a portfolio violate any copyright laws? We think the answers are yes, yes, yes and yes. Newsletters whether in print or electronic are protected under copyright law.
If you copied a copyrighted work without authorization, you're infringing. Whether that's unlawful depends on whether you can mount a successful defense. One possible defense is that you are a co-owner because you designed the template used in the newsletter. Proving that will be an uphill battle because common elements of web designs are not protected by copyright --- font choices, look and feel -- and because many of the design choices are limited by practical realities and should be free for everyone. If you can overcome these presumptions (and there are no written work made for hire agreements or assignments), you might be able to claim co-ownership. You might also be able to claim fair use considering that your use was for portfolio purposes and did not cause the owner a loss in revenue. Because co-ownership and fair use are expensive to prove (only a judge or arbitrator can decide), many graphic and web designers deal with these issues in their contracts by including a "portfolio provision" or by retaining non-exclusive rights for certain design elements.

Wednesday, July 16, 2014

How Many Seconds From TV Show?

Dear Rich, I would like to ask you how long/how many seconds we can use from movies and, well any video material. I think the answer is like 5 seconds or something. What I mean is that can we mix in with our own material with some material that is copyrighted? I am building a 'TV intro' to be used on my website that is an upcoming Online Business Incubator. I live in Sweden. It would be so great if there were a "five-second rule" or something similar. Alas, any assurance of safety based on the number of seconds borrowed is a myth. The same is true for the so-called "8-bar" and "8-note" rules. The U.S. Congress refuses to quantify the border between permissible borrowing and infringement and the legislators leave the heavy lifting to the judges. In the U.S., the only course is to review the fair use caselaw to see what's been permitted in the past (and why). By the way, as a very general rule, it's not the amount of time taken but the importance of the section taken and the context in how it is used. Also, our usual disclaimers here: our staff doesn't know Swedish copyright law although a cursory look seems to indicate there is no fair use equivalent.

Tuesday, July 15, 2014

Can State Department Employee Modify Meme?

Dear Rich: I work at the U.S. State Department and I was wondering if you had any references on government agencies’ fair use? For example, if we were to take a Game of Thrones meme (w/a quote) and replace the character’s face with a Russian official, titling it “Russia’s Foreign Policy?” we are not parodying Game of Thrones per se, but we are criticizing the Russian government’s actions by modifying a well-known meme. There is ostensibly no “market” for this product. It is criticism of a policy. Does this qualify as Fair Use? In a straight rule-following world, meme-makers would most likely need permission from the owner of the underlying photograph (In the case of GOT, we're not sure which of the five production companies claims copyright ownership). However there probably wouldn't be any copyright associated with the accompanying text. It's too short to garner protection. In any case, as we intimated in a previous entry on memes, if you're concerned about the legal issues, you're probably too old to be making memes.
What about fair use? Copyright owners seem to have reached a truce with meme-ists, realizing that hassling meme owners isn't worth the potential backlash. However, the owners of Game of Thrones could always make an exception if they feel that the government is using its copyrighted characters in furtherance of an unpopular policy. (Remember when George Lucas almost sued Reagan over the use of the Star Wars trademark?)
Can they sue the feds? Yes, the U.S. government can be sued for copyright infringement. It's possible that the government could defend itself using a fair use defense as it did here, but as we remind our readers, only a judge or arbitrator can make a final determination about what is fair use.

Sunday, July 13, 2014

Do I Sign Solo Artist, Band, or Both?

Dear Rich: I recently started a music production business and I am in the process of signing a new artist as his manager. I have some questions regarding the contract between myself and the artist. He has a solo singer-songwriter act and a small band, that I will oversee. Do I need two separate contracts, as a manager for both his band and his solo act? He has agreed to a five album term instead of year by years contract. Can I change the terms of the contract, in your Music Law book, as we both agree on our terms? If the solo artist and the band operate as two separate entities, you should sign two separate contracts. That will allow you as a manager to keep separate accounts reflecting income and expenses. Otherwise, income destined for the band may be hijacked to pay off the solo artist's debts. If they are not separate entities -- for example, the solo artist hires the band as contractors and pays them an hourly rate -- then one management contract with the solo artist should suffice and there is little need to sign the band.
What about changing the agreement? It's more common to sign a management contract based on years (or financial goals), not on number of albums. (It sounds like you are crossing a record contract with a management agreement.) After all, what happens if the artist doesn't have (or keep) a label deal? Does that mean the management agreement ends? In any case, you're free to make any changes you wish to the agreement but we would suggest that when modifying the standard agreement, always review the instructions that accompany the agreement. Also, beware that in some cases, managers may need to be licensed in California.

Thursday, July 10, 2014

Micro-Entity Costs For Design Patent Filing

Dear Rich: If I am filing a design patent electronically, how do I know ahead of time what the fees are? I am a micro so does that mean $190.00 ($45 + 30 + 115)? Is that correct or will I find out a different number after I have uploaded my application. You can always calculate current micro-entity fees by using the USPTO fee schedule. And yes, your calculations are correct ($45 for basic filing fee, $30 for the search fee, and $115 for the examination fee).

Wednesday, July 9, 2014

Using Lyrics in a Website Logo

Dear Rich: If we would like to use a few lines of a song for a logo that will represent a website or blog logo, is that ok? Traffic to the site is not huge but would like to use it for logo art and if we want to share thoughts on how the song inspired us?  Here are some reasons why you probably won't have to worry about being pursued: (1) If traffic to the site is not substantial, the song owners are unlikely to learn of your use. (2) If the song owners do learn of it, they may not care (unless they find the use offensive). (2) If they do care about it, they probably won't bother to pursue you because a lawyer will likely advise them that you have a fair use defense. (3) If they decide you don't have a valid fair use argument or they want to pursue you for trademark claims, they will likely decide against lawsuit unless they have reason to believe that your pockets are deep. Of course, if the songwriters smell money -- for example, if Facebook, Apple, Amazon, or Google buys your site -- disregard the reasoning, above. Also, because your logo functions as a trademark, to further protect yourself, consider a disclaimer on your homepage stating that the songwriter isn't associated with your site.

Tuesday, July 8, 2014

Why Bother With Foreign Patents?

Dear Rich: Why would you bother getting a patent in other countries if you have been granted one in the USA. Surely, if a patent were granted in the USA that would be enough to deter someone from taking it out in other countries? If you had taken out a PCT and filed for the patent in other countries but only taken it to full patent in the USA someone else would surely be prevented from taking a patent out on your idea in the other countries as it had already been published. Is this correct thinking or am I missing something here?  It's true that after you file your patent application, inventors outside the U.S. may be blocked from getting a similar patent in their respective countries. But the lack of foreign patent rights makes it easier to make and sell your invention abroad. After all, if nobody has a patent, anybody can make the invention. (As you're aware, a U.S. patent is only enforced within national borders.) For many inventors, control over the U.S. market is enough -- after all, the U.S. often accounts for one-third or one-quarter of a new product's sales. Also, the cost of obtaining foreign patents can be prohibitive and often outweighs their speculative value. But for big multinationals with global product introductions, international patent protection is necessary.

Wednesday, July 2, 2014

Design Patent Protection for Pendant

bird food pendant
Dear Rich: I want to protect my designed pendants in the USA. What should I do? And what cost per pendant design? And how long will it take? A design patent may take one year or more to issue (although half of the applications issue in less than a year). An applicant can speed things along -- that is, obtain a design patent within two to six months -- by filing a Request for Expedited Examination of a Design Patent and paying a hefty fee. Here's an article about the expedited system. You can learn more about design patent strategy in this article and we explain the steps for preparing an application at this site. You can learn current fees at the USPTO website.