Monday, November 24, 2014

Does TM Law Limit Superman's PD Reproduction?


Dear Rich: In another entry, you mentioned that there were public domain Superman strips. If someone published a book of the public domain Superman strips, would that be infringing upon Superman as a trademarked character? Or would it infringe (if at all) only if the book title included Superman? Would a generic title get around that? Or does the fact that those particular strips are now public domain outweigh any trademark concerns? You're within your legal rights to simply reproduce the public domain Superman strips. And you're within your rights to use Superman within the title of your book, provided that it accurately describes the source -- for example, "Forgotten Superman Comic Strips from the 1940s," "Superman in the Public Domain." (Here's an entry explaining how the Superman character survived falling into the PD). You may run into problems with Superman's trademark owners if you reproduce the public domain strips on merchandise or if you use them to sell a product or service other than the republished comics.
The mutant copyright. The world of character trademarks vs. public domain source material is not black and white as we discussed in an entry about Sherlock Holmes, and as Stephen Fishman writes in his public domain treatise: "[W]ill “Mickey Mouse” cease to enjoy trademark protection when the original cartoon on which it is based enters the public domain in 2024? No court has definitively answered this question." One thing seems clear, the Supreme Court does not support using trademark law to make an end run against the public domain. If trademark law could do that, as Justice Scalia wrote, it would "create a species of mutant copyright law that limits the public's 'federal right to "copy and to use"' expired copyrights."

Thursday, November 20, 2014

Can Someone "App" My Reading Program?

Dear Rich: I have written a reading program and created written materials as well as manipulatives that go with it. I have received a lot of questions from teachers as to whether I will make much of it into apps. Can someone create an app from my program without permission? I learned during my writing of my program that you can't protect an idea only your expression of the idea. Is the creation of an app considered a different expression of the idea and therefore legal? We assume that by "reading program," you mean a process or system to assist readers. You are correct that it's hard to protect a system or process under copyright. Perhaps you can patent it but the fact that you've shown your method to teachers means you may have missed the boat on a utility patent. Even if you haven't, you're facing an uphill climb (you must prove it's novel and nonobvious), it will be costly (expect to pay north of $5,000 dollars) and it takes time to get a utility patent (two-to-three years) during which time you can't stop copycats.
What would Evelyn do? What do innovators with new methods do to protect their brainstorms if patent protection is unavailable. Perhaps we can take a tip from Evelyn Wood, the woman who popularized the term, "speed reading." Ms. Wood achieved success and dominance in her field by doing four things: (1) getting her system out first -- that is by offering seminars and getting the Reading Dynamics program out soon after publication of her groundbreaking 1959 book; (2) associating the method with her name and the Reading Dynamics trademark -- so consumers sought her out rather than competitors; (3) promoting her method on TV and with celebrities; and (4) securing copyright protection for her materials, and trademark protection for her services and products.
Is the expression of the app considered a different idea? The term "app" refers to a specialized program that accomplishes some task. There may be two copyrightable aspects to an app: its content, for example the dictionary within a dictionary app; and the programming or coding -- the internal architecture that enables a user to access and manipulate the content. You would have a claim against an app if the content within was expressed in a substantially similar manner to your content. For example, if many sections of your writing were lifted verbatim or near-verbatim. You may have a claim if they are similar but not near-verbatim but that depends on the content and whether it is protectable (see above).

Friday, November 14, 2014

Why Can't I Copyright a Character?

Dear Rich: I want to copyright a character from a graphic novel that I wrote. I've already copyrighted the graphic novel. How do I copyright just the character? When you say you've copyrighted your graphic novel, we assume you mean that you registered the work with the Copyright Office. However, according to the Copyright Office Compendium, the Copyright Office won't register characters. That doesn't mean you can't stop others from copying your character as depicted in the graphic novel. As you'll see from perusing character standards, you may have already achieved copyright protection for your character. Also, if you create a series of graphic novels with the character in the title, or use the character on merchandise or in connection with services, you can seek trademark registration for the character's name and appearance.
BTW Dept. The Copyright Office doesn't grant copyrights; that occurs automatically. Think of the Copyright Office like the County Recorder's office ... a place where you record your copyright claim.

Wednesday, November 12, 2014

Charles Ives Fair Use?

Dear Rich: Here's a question for you regarding published music. Charles Ives Variation on America is a piece of music arranged for band and protected through copyright with the Theodore Presser company. I would like to take 11 measures of the Trumpet 1 part to post in a small Facebook group (private) of trumpet players that will be discussing this excerpt to prepare for future auditions and performances. Do you believe that for this educational purpose, I can post this small excerpt and not have to worry about copyright? Reproducing short excerpts of a work for purposes of commentary, criticism, scholarship, or research is often considered a fair use. So, it's possible you will prevail in a legal dispute. But only courts can determine fair use standards and we assume you don't want to get involved in a fair use battle (just as we assume you don't want to be the recipient of a DMCA takedown notice at Facebook).
Your previous contact with the publisher. We note that you've contacted the music publisher and asked for permission -- a good first step according to the Copyright Office. On the other hand, that puts the publisher on notice of your intended use. Because the response from the publisher was so reasonable (the proposed permission fee was reduced to a token payment), we think it's worth accepting the publisher's offer ... even if its just to put some spare change into the Charles Ives tip jar.

Monday, November 10, 2014

Upcycled Band T-Shirts Pulled from Etsy

Dear Rich: Can we revisit this topic of upcycling/repurposing of band t-shirts? Specifically relating to transformativeness and or derivative works relating to intellectual property and copyright infringements. I'm curious how the laws or interpreting of laws have evolved around this topic since your previous post. I just had some items pulled from my Etsy shop at the request of a band's attorney citing intellectual property rights violation. From what I grasp the offense is taken mostly from the public displays of the bands name and logo in the picture listings as well the attorney's assumption I am financially gaining off the logo and not my labor/seamstress skills. We're sorry to hear that your Etsy items were pulled. As for your copyright question, not much has changed regarding copyright law and we still stand by our position that repurposing legitimately-acquired t-shirts should not infringe copyright.  But we need to elaborate on our trademark law comments.
Etsy and trademarks. An Etsy shop owner is at the mercy of two outside forces: Etsy and the offended trademark owner. Apparently Etsy will turn off access to shop items or even close down shops if a trademark owner provides sufficient notice for an "Intellectual Property Infringement" (as defined in Etsy IP guidelines). We're a little confused by this policy because the term "trademark" never appears in the guidelines and the guidelines mirror DMCA requirements which are strictly for copyright. In addition, this 2011 statement by an Etsy in-house atorney states that Etsy doesn't intercede between the shop owner and trademark owner; they just establish contact between the two. Nonetheless, there appear to be cases of Etsy closures and shutdowns based on trademark complaints. Considering the volume of complaints and Etsy's desire to avoid liability for the site itself, we assume it makes more business sense to shut down an item first and ask questions later.
Trademark law. Upcyclers are in a gray area of trademark law. On one hand, anyone can resell authorized trademark goods under the principle known as trademark exhaustion. For example, a band can't stop you from selling a collection of their used t-shirts. But upcycled goods -- because they deconstruct legitimate goods to create new products -- are not in the same category as recycled goods. For example, if the new products reflect poorly on the brand or if they trigger product liability issues -- for example, a chair made from Sherwin-Williams paint cans -- the owner may have a gripe that consumers will be confused or harmed. On the other hand, goods with no liability issues -- for example, refrigerator magnets, kitchen aprons, or upcycled underwear -- that are obviously not created by the trademark owner, are unlikely to be infringements. Bottom line dept. Even if you're convinced you fall safely in the latter category (we think you do) we don't recommend fighting the trademark owners. The battle will turn into a black hole and your store will suffer. We only wish more trademark owners would at least consider Option 3 before asking Etsy to close down stores.

Tuesday, November 4, 2014

Why is There a Higher Copyright Fee for Two Writers?

Dear Rich: My wife and I write songs. For the last ten years we've been registering at the Copyright Office. But now things are different because they charge us a higher fee just because there are two writers. How can they get away with that? This year, the Copyright Office introduced a triple-tiered fee system. A single electronic application (details here) is $35, a standard electronic application (any electronic filing that doesn't qualify as a single application) is $55, and a paper application (remember them?) is $85! As for your question, "How can they get away with that?" -- check out this circular! Keep in mind, copyright registration is not mandatory (unless you're filing a lawsuit). You can read about the benefits here.