Wednesday, February 25, 2015

Do We Need Formal Contract for Private School Permission?

Dear Rich: I work for a fully online private school and am seeking permission to use images, videos, and links within the course. Do I need to have a formal contract with a signature confirming that permission is granted to use the item, or is it enough to have an email response saying that they grant permission for our suggested use? 
The copyright law says that you need a writing signed by the copyright owner or his or her agent to transfer or license any of a copyright owner's rights. The signature can be handwritten or it can be a digital or electronic signature. If the email contains permission and is "signed" by the person who has authority to grant rights, your collection of emails is probably fine for permission purposes.

Monday, February 23, 2015

Can I Make "Night of the Living Dead" Action Figures?

Dear Rich: Night of the Living Dead (the original film by George A Romero) is in the public domain. However someone trademarked Night of the Living Dead for action figures. If I wanted to manufacture action figures from the movie, would I be violating trademark law or would I be allowed to because the source material is public domain? Could I bypass it by calling the line "George A Romero's Night of the Living Dead"? Or "They're Coming to get you Barbara" with the tag line as Night of the Living Dead? Or am I just opening a can of worms not worth opening?  Normally you would need two permissions to sell movie action figures: permission from the copyright owner of the movie; and permission from the actor (referred to as publicity rights). Because Night of the Living Dead is public domain, there is no copyright owner from whom you'll need permission. However, you would need permission from the actors and it appears as if Sphereworx, (the company that has registered the trademark) has already acquired permission from the four actors used in their initial action figure release. So, besides the trademark issues (discussed below), you already face some major obstacles getting consent from the actors.
Using trademarks to protect public domain works. 100 years ago, the Supreme Court held that the title of a public domain book -- Webster's Dictionary -- also fell into the public domain and could not be protected by trademark law. The Ninth Circuit reaffirmed this rule in a case involving the John Wayne movie, McLintock. However, these cases involve someone claiming trademark rights in a book title for a competing book and a movie title for a competing movie. The rules are different if a public domain movie title is used for non-movie goods or services -- for example, It's a Wonderful Life is a registered trademark for lottery services. We can't predict the outcome of a case in which a public domain movie title is used to prohibit others from selling character merchandise ... but we doubt you want to pay to find out.
P.S. Speaking of salvaging from the PD, even Night of the Living Dead spawned a copyrightable slogan, "When there is no room in hell … the dead will walk the earth” (Dawn Associates v. Links, 203 U.S.P.Q. 831 (N.D. Ill. 1978)

Monday, February 16, 2015

Pre-roll Ads and Publicity Rights

Dear Rich: Our company posts news interviews online. Does the fact that we're using pre-roll ads require us to get waivers from our interview subjects? 
Whether you need to obtain a waiver/release depends on why you want to use a person’s name or image. If your use is for commercial purposes—for example, using the interview as part of an informercial—you need to obtain a release. If your use is for editorial purposes such as a news interview, you probably don't need a release. We don't think a pre-roll -- those 10 second ads before YouTube videos -- converts a news interview into a commercial purpose (any more than running an ad before a 60 Minutes segment). No court has ruled on the issue and if you’re concerned about liability, you can always talk to the person ahead of time — and video the subject's consent. We've written more about interviews and releases here.

Friday, February 13, 2015

Can We Copy Textbook Chapters?

Dear Rich: The Vice President of Academic Affairs of the two-year state technical college I work at told all Program Chairs it was ok to copy and attach "a chapter or two" of their course's textbook and attach it to their learning management system (ANGEL) "if students are having difficulty obtaining a textbook." Is this justification, or action, permitted under the educational fair use of copyrighted materials? As a result, some faculty are copying many chapters of a given textbook and posting to the LMS. Do you have any specific examples, or documented cases, where this type of justification (students do not have access to a textbook due to bookstore shortages or late distribution of financial aid awards) that is permissible? Permission must be obtained from the copyright owners of the textbooks for the type of wholesale copying you’re describing. It sounds like your college is, in essence, creating digital coursepacks. This is not a fair use. Educational fair use guidelines established by publishers and the academic community do allow some limited copying by teachers for classroom use. But these guidelines do not permit the copying of multiple book chapters you’re describing. You can read more about them in Copyright Office Circular 21. Answered by Stephen Fishman, author of The Copyright Handbook: What Every Writer Needs to Know

Wednesday, February 11, 2015

Who Owns Gameplay in Video Game?

Dear Rich: If I screen capture while playing a video game like Call of Duty, who owns that? I know I don't own any rights to the video game itself but can I stop someone else from copying or showing my screen cap of how I played the game? 
In order for you to stop someone, you have to be able to demonstrate you have some proprietary rights in what was captured on screen. We doubt whether your gameplay -- absent any additional content -- amounts to copyrightable authorship. The issue first came up in 1983 when the Seventh Circuit Court of Appeals held (in a dispute over an unauthorized chip board) that just because the Pac Man game had an interactive multiple choice storyline did not move the copyright from the manufacturer to the player. In other words, the user "plays" the game; the user doesn't create content (although there may be an exception in the case of custom-created avatars or similar modifications). By analogy, courts have held that participants in sporting events -- no matter how accomplished, graceful, or skilled -- cannot claim copyright in their play or in specific moves they make. (See National Basketball Association v. Motorola). If this isn't what you wanted to hear, keep in mind that there some who believe games should not be protected by copyright at all!

Monday, February 9, 2015

Wants to Claim Copyright and Sell Public Domain Photos

2014 Winner of Best Public Domain Gif
Animal Category
Dear Rich: I have a souvenir photo book (images of public buildings, gardens, outdoor scenes) which I purchased over 30 years ago. It was published prior to 1923 (now part of the public domain, as I understand it). The book has no printed credits or copyrights, no info on who photographed the images or published the book. An Internet search has turned up one other copy of this book – it is in a USA university collection. The pages have been scanned and included in the university library’s digital collection; they have assigned a copyright to their scanned images; the digital images are available for purchase through the university. I would like to scan my copy of this book and use the images in artistic works and derivatives to sell, as well as offer the scanned digital images for sale. Would I be within my legal rights to copyright my scanned images from this book and use/sell them?
You can scan, copy and sell the images in the book but you could not claim a copyright. Because this book was published before 1923, it is in the public domain in the United States (however, it could still be under copyright in other countries). An exact digital scan of a public domain book is not copyrightable, just as a Xerox copy of a book is not copyrightable—both lack sufficient creativity to qualify for copyright protection. You are free to make a scan of your copy of the book and sell or otherwise make use of it. The university’s copyright claim in the scan they made is spurious. Unfortunately, false copyright claims like this are made all the time. Answered by Stephen Fishman, author of The Public Domain.

Wednesday, February 4, 2015

Do Progressive Downloads Infringe Copyright?

Dear Rich: There are plenty of websites that provide pirated streaming tv shows and movies. These videos are not live streams, but they are known as "progressive" downloads. My question is: Are the viewers of these streams violating copyright law? And if they are, have content owners gone after the viewers who watch the pirated streams of movies and shows? Has the U.S. government criminally prosecuted viewers for just watching?
As the name "progressive download,"suggests, a media file is downloaded progressively so you can begin watching it once a substantial portion has been stored on your device. Though there are differences between streaming and progressive downloading -- you can't fast forward through a video segment until that segment has been progressively downloaded -- most consumers consider progressive downloading as a form of streaming.
Will they hunt me down? Legal arguments have been offered that unauthorized progressive downloads may not constitute infringement (or that they qualify as a fair use because of their temporal nature). We haven't located any federal caselaw that specifically states streaming or progressive downloads constitute an infringement but we believe that the verdict in federal courts will be infringement. As for getting hassled, the trend is away from pursuing end users. Federal government prosecution is fairly rare and a 2011 bill to make illegal streaming a felony failed to pass (though the content owners keep trying).

Monday, February 2, 2015

Can We Repost Super Bowl Ad?

Gerald Ford at Univ. of Michigan (1933)
Dear Rich: Are we allowed to take a Super Bowl commercial from YouTube, add comments on the screen and then publish it on our website? 
If you’re copying and reproducing the ad without authorization it’s an infringement.  Of course, there's always the "Can we get away with this?" approach. That is, how likely is it that the advertiser will clamp down on reproductions especially when the whole point of making the ad is to maximize exposure?
Fair use. Alternatively, if the advertiser complained, you might be able to succeed with a fair use argument. That is, you’re using the ad for purposes of commentary. Alas, that would be an argument you’d have to make in court and we doubt you want to do that.
Ask for permission. If your comments are  unfavorable and you're concerned about a backlash, or if your website is on the prudent side (and worried about liability), ask for permission. Many super bowl advertisers are happy to say "okay" so you may be able to obtain authorization from the owner (either the ad agency or the advertiser). And, of course, be careful when you use the special words "Super Bowl."
P.S. Your other legal questions about the big game are all answered here!