Friday, January 30, 2015

Reading Passages of Classic Literature in Movie

Dear Rich: There is a scene in the feature film I am currently making where a character turns on the radio and listens to the host read a small passage from classic literature (something like Romeo and Juliet). Would there be any copyright issues? 
Everything published in the United States before 1923 is in the public domain in the United States. Everything created by authors who died more than 70 years ago is in the public domain in almost every country other than the United States. Thus, classic works of literature like the complete works of William Shakespeare are in the public domain throughout the world (as well as 80,000 Shakespearean illustrations). When a work enters the public domain you are free to use it any way you want without obtaining permission from anyone. This means you are free to read from Romeo and Juliet or any other work of Shakespeare (or any author published before 1923 in the U.S.) in your film. Answered by Stephen Fishman, author of The Public Domain.

Wednesday, January 28, 2015

Can I Make Audiobooks for Private Use?

Dear Rich: Is it legal to borrow a book from my local library, make my own homemade audiobook, return the book afterwards, and keep the audio files I produced? I only want to make audiobooks for my own personal research and study, but I don't know if this breaks some copyright about making unauthorized copies. These audiobooks are just for my private research. Yes, you're likely violating copyright law; only the copyright owner can create derivative versions. But if you're the only one listening to them and you're not distributing copies, we doubt whether the copyright owners will know or care about your use. It's our little secret!

Monday, January 26, 2015

Nonprofit Wants to Translate Screenplay

Dear Rich: I'm the director of a small amateur nonprofit theatre company that puts on plays in Italian. We're planning our next production, and we want to adapt a movie screenplay into a stage play. This would involve translating the screenplay into Italian and adapting for the stage. Do we need to obtain permission to do this or would this adaptation by a nonprofit be a fair use? 
The copyright laws apply to nonprofits the same way they do to for-profit enterprises. When a person creates a work like a screenplay, he or she automatically obtains a bundle of exclusive copyright rights in the work. These include the exclusive right to adapt the work into a new medium or translate it into a new language. Thus, you can’t adapt a screenplay into a stage play or translate it into Italian without obtaining permission from the copyright owner. The fair use rule does not apply to the adaptation of an entire work into a new medium. Answered by Stephen Fishman, author of The Copyright Handbook.

Friday, January 23, 2015

Wants to Control Use of Video and Photos of Workshops

Dear Rich: I work for an environmental non-profit and I have a question about how to handle photos and videos at our workshops. While presenting to schools, or out in the community we sometimes have people video tape our presentation or shoot photos of our step to step instructions. If people are using the images or video for their personal use then we are ok with that, or if they have a blog and they want to post what they learned then that’s great, we could use the exposure!!! What we don’t want if people filming our workshops and then using that video to educate others, same with the photos. How can we protect ourselves from that happening? Is there some language we can include in our registration forms or we announce at the beginning of a workshop? Yes, you can put language in the registration form that permits recording for certain uses. That form should be executed at the time the user signs up for the workshop. (Alternatively, it can be executed after the user signs up, provided the user can get a full refund if he or she doesn't want to sign.) Use plain English to explain what is permitted and what is not -- for example, "Workshop grants a limited license to users to videotape the presentation solely for personal use and users may not share, duplicate or present the videotape to others." Like any contract, this limited license agreement is only as effective as in your ability to enforce it --  that is, to find violators and pursue them for breach of the license.

Wednesday, January 21, 2015

Can I Make a 90's Blog Using TV Images?

Dear Rich: I've recently created a 90's blog, where I would basically like to make posts with reviews and commentary about various things from the 90's (TV shows, music, video games, etc). I'm wondering...would it be considered "fair use" if I use a picture based on what I'm posting about? For example, if I'm reviewing a TV show, I would have a picture from the show in the post, if I'm giving my thoughts on an album, I would have a picture of that particular album in the post. Based on things that I've read on your website, I don't think that I would be in violation of any copyright laws, being that I'm only using a picture as part of what I'm reviewing. But, also based on what I've read, this seems like a very gray area that gets very confusing. I just wanted to get your opinion. Side note - I'm signed up on Google Adsense and Amazon Associates, so in theory, if my blog ever becomes huge, I could probably make money off of it (I'm not sure if that factors into anything). Although, with Amazon Associates, I would most likely just be promoting what I was reviewing anyway. 
The fair use privilege allows the public to make limited use of copyrighted works without obtaining permission from the copyright owners. One of the reasons for fair use is to encourage criticism and comment on copyrighted works. Quoting or excerpting a work in a review is a classic example of a fair use. Including a picture of a work you’re reviewing is also a good example of a fair use—this is done all the time in reviews. So long as you don’t use any more of the works involved than is necessary for your reviews, your intended use of works from the 1990s in your blog should qualify as a fair use. That said, not every copyright owner understands or agrees with the fair use rule, and some may complain even though your use is allowed by the copyright law.
Answered by Stephen Fishman, author of The Copyright Handbook.

Monday, January 19, 2015

Does Netflix TOS Trump Copyright Law?

Dear Rich: You’ve written that classroom use of Netflix might get a copyright pass but I have a question about that section of the copyright law ( Section 110). The Netflix TOS reads: "The Netflix service, and any content viewed through our service, are for your personal and non-commercial use only. During your Netflix membership, we grant you a limited, non-exclusive, non-transferable, license to access the Netflix service and view movies and TV shows through the service on a streaming-only basis for that purpose. Except for the foregoing limited license, no right, title or interest shall be transferred to you. You agree not to use the service for public performances."Wouldn’t the Netflix terms of service trump the exemption based on the idea that the acquisition for a non-private/personal purpose is illegal thereby nullifying the exemption?
It's true that Terms of Service (TOS) and End User License Agreements (EULAs), if properly executed, are considered legally enforceable and can force copyright law to the curb. But we can't say for sure how it would play out as no court appears to have addressed whether a license can defeat the educational exemption in Section 110. More importantly, the reader noted that when he contacted Netflix, they readily agreed with his educational use. That makes good legal and public relations sense. No company wants a Macarena on their hands!

Friday, January 16, 2015

Can I Video My Dedication to Public Domain?

Dear Rich: I was curious whether or not an author can declare their work as being in the public domain verbally, like say on video, as opposed to something documented and signed on paper? Does a persons verbal statements (on video or simply witnessed) hold the same legal standing as those on paper, if even at all with regard to declaring a piece of work... photo, story, video, painting, etc. as being remanded to the public domain?
Courts have held that a copyright owner may dedicate a work to the public domain simply by manifesting the intent to do so through an overt act. A signed document is not absolutely required. Thus, including a statement in a video that the work is dedicated to the public domain would likely be sufficient. However, to avoid possible disputes and misunderstandings, it is always best for the copyright owner to sign a document dedicating the work involved to the public domain. Such a document need not be long or fancy. The Copyright Office says that it need only:
  • identify the work involved--preferably including the author(s), title(s), and registration number(s) for the work (if any) 
  • provide the copyright owner’s full name and state that such person is the current owner of the copyright in the work 
  • state “I the copyright owner of this work, hereby release it into the public domain,” and 
  • be signed by the copyright owner or co-owners or by an authorized representative.
Answered by Steve Fishman, author of The Public Domain.

Wednesday, January 14, 2015

Can Musician Terminate Management Contract?

Dear Rich: I have a contract with an artist who is now seeing some success. He decided out of nowhere that he wanted to redo our contract after he got success. I refused. So he had a lawyer tell me that it’s terminated. We have 2 albums worth of songs. I’m also the indie label he signed to within the confines of the management deal he signed with me. Can I release an album if I co-wrote songs and co-authored audio production? I also co-own the masters. His lead vocals are on the album. Lastly, am I able to use his name and image? The contract says I can, but again, he says the contract is terminated. Can someone terminate a contract without a court ruling? 
The artist can't arbitrarily terminate the contract simply because he's had some success and wants out. He'll need to come up with a a valid legal basis.
What's a valid legal basis to terminate? If you failed to honor a  material term of the agreement, for example you deliberately failed to account to the musician for royalties and wouldn't correct the error, the musician could say, “That’s it, we’re done,” and terminate based on the material breach. In that case, the musician may have a reason to stop honoring the agreement. (This approach is sometimes employed when under-age musicians disaffirm management deals.) But if the reason is bunk -- a lawyer is just trying to bully you with legal hocus-pocus -- you may need an attorney's help to stop the insanity. If you prevail in a dispute, you would be entitled to payment of damages (usually what you would have received if the contract were performed). Claims of breach in management contracts are often preludes to settlement. In other words, how much will it  cost the musician to buy his way out of the contract? (BTW, a more peaceful way to terminate  would be if your management contract contains provisions that trigger termination or provide a right to terminate at will or under certain conditions, for example if the term -- the period of a time during which the contract is in force -- has ended.) Finally, as to using the musician's name and image, that may depend on whether the management agreement stands or falls.
What about the co-writing and co-ownership? It's tough to tell what your rights are as a co-writer or co-owner. The traditional rule is that any co-owner of a copyright can exploit the copyright (sell it or license it) as long as the other co-owners are compensated. But those rules may be trumped by your agreement --  for example, you may have agreed otherwise, or you both may have assigned the song copyrights to a publisher or the sound recording copyright to the indie label and established rules as to how that material can be used. In short, you need to consult with a lawyer. If you're low on funds, perhaps there is a lawyers-for-the-arts group in your area.

Monday, January 12, 2015

Who Owns My Radio Show?

Dear Rich: I invented, developed and have been broadcasting a unique radio show on an internet station for several months. I am/was a volunteer, I never signed a contract, never received any compensation for development costs or broadcasting/presenting the show. I paid for travel/music/concerts/hotels/food/internet/equipment myself. I was caught in the crossfire of two stations either partnering up or merging and was given the choice to simulcast on the other station or not. I chose not to and was asked to resign my post (I was actually doing two shows a week). Less than 10 minutes later, the station owner told me I could not take my wildly popular unique show to a different station because "she had copyrighted the name of the show and would develop it further without me." Can she even DO that in 10 minutes, and who owns the show?
We don't know what kind of show you had -- music, interviews, monologues -- but you probably own the copyright to the content that you created -- that is, the material that you would read if the show was transcribed. (In addition, you may own a sound recording copyright to the audio production.) That's assuming (1) you didn't sign any agreements with the station, and (2) you were not an employee of the station. Even if you own copyright, the station (for which you volunteered) likely acquired an implied license to broadcast or archive the show.  If, however, you co-created the content or sound recording with employees of the station you would be a co-owner of copyright which means that your co-owner (the station) can make use and reproduce the content provided it accounts to you.
Who can make new shows? Going forward, we're less interested in copyright law and more interested in trademark law. The primary trademark -- in this case, the name of the show -- has a great deal of value (or goodwill) because that's what listeners associate with the program. But who has legal rights to the trademark? Typically, the first business to use the name in commerce usually owns the mark. In the case of a radio show, it would usually be the company that produces the show. That may be you or it may be the station; we don't have enough details to say with certainty but if we were a betting blog, we might bet on the radio station. However, if the station is merely a web service for distributing the show -- for example, something like -- you would retain trademark rights. The same trademark rules would apply of the show's format, which could possibly be considered to be trade dress, a form of trademark.
Hey, speaking of radio, don't forget to check out the Dear Rich Staff on a recent episode of On the Media.