Wednesday, April 29, 2015

Hockey History Book: What Can I Use?

Dear Rich: I am writing a hockey history book and would love to include photos of players and memorabilia, but I don't know how I can do this while keeping my costs low, and making sure I don't use someone else's photos illegally. What if, for example, I buy an original photo (like a press photo)? Can I legally use this in my book or do I need to get permission from the photographer? Also, if it is an old hockey card from the 1970s, can I scan it and put it in my book since I paid for the hockey card and it is mine? What about memorabilia? If I take a picture, for example, of an old ticket stub or a t-shirt, would this be considered my own photo, and thus, making it legal for me to include it in my book? I'm very confused right now. I should also add that I am a resident of Canada, but there is a good chance my book will be published by an American publisher since the topic of the book is the California Golden Seals. 

Unfortunately the rules are complicated (so complicated we had to write a book about it). Here are a couple of U.S. legal principles to help you avoid the penalty box:
PS Dept. If you self publish your hockey book you have the constitutional right to sell it outside hockey stadiums.

Monday, April 27, 2015

Generic Soccer Balls

Dear Rich: (1) My understanding is that the word "soccerball is in the public domain and can't be registered as a trademark, am I right? (2) What about if someone invents a sport? Does the inventor of the sport get trademark rights? 
(1) Terms that are generic for the goods or services are not registrable on either the Principal or the Supplemental Register under any circumstances. So, "Soccer Ball" can't be registered as a trademark for soccer balls. But it can be registered as a trademark for other products, for example, bubble gum.
(2) You wouldn't get trademark rights for inventing a sport. You only get rights when the mark is exploited in connection with goods or services. So, if someone invented a sport, or recreational activity, for example, Knockerball, and exclusively exploited the mark in commerce, a trademark registration may be awarded. The challenge for the owner is to avoid having the mark become the generic name for the activity, in which case trademark rights will be lost .

Wednesday, April 22, 2015

Wants to License Oral Histories

Dear Rich: I founded a nonprofit that is an archive of oral histories. A European museum wanted to feature three stories from my project in an exhibition. They asked me under what conditions I'd allow use of material belonging to the nonprofit and whether my license would also cover the rights of the three stories in particular. Since this is the first time I've had to seriously consider how to protect my work I'm unsure as to what I should request to ensure my work is safe. 
The answer depends on what rights you have to license. We reviewed your standard release and it authorizes your nonprofit to "use, reproduce, and/or publish video footage for educational and informative purposes" and to use it in "public affairs releases, or for other related endeavors." That language is suitable for using the material in association with your nonprofit, for example, at your website or perhaps at presentations made by the nonprofit. We're not clear about the meaning of "related endeavors" but, a conservative analysis would not include licensing the material to a third party. (We would feel better if the release specifically granted you the right to license the material to third parties.) If we're correct, you would should contact the subject and seek consent to license to the European museum. That makes sense, considering the personal nature of oral histories.
What should you seek from the museum? Once you have the necessary permissions from your subjects you would enter into a license agreement with the museum. You would need to define and limit reproduction and display/performance rights (how many copies, how many streams, what forms of media), length of license (how long the museum can use the material) and payment, if any. These arrangements are sometimes simple, sometimes complicated. We provide examples of these types of licenses with explanations in our book on permissions. Also, because it could be a challenge to enforce an agreement with a European museum, we'd suggest a little bit of research, if possible, to learn about the museum's past business dealings.

Monday, April 20, 2015

Who Periscoped My Game of Thrones?

Dear Rich: I have a basic understanding of copyright law, and my impression is that certain types of live-streaming could be defended as fair use -- for instance, if someone Periscoped "Game of Thrones" while offering a live critique of it. Or maybe if someone Periscoped a group of friends watching the show. My question is – at what point, if any, does live-streaming become “transformational”?
"Periscoping" refers to live streaming via the Periscope app to friends, and we doubt whether transmitting a complete episode of "Game of Thrones" would qualify as a transformative use, even with a live critique. A transformative use occurs when someone alters a copyrighted work and creates something "with new expression, meaning, or message," parody being a good example. Being transformative is only one factor in a fair use victory. However, the more transformative the use, the less important the other fair use factors (nature of work, amount taken, financial impact). In a recent example, a judge ruled that borrowing the characters and settings from "Three's Company"to create "an upside-down, dark" theatrical drama, was a transformative use. (You may also get guidance on transformative uses by checking fair use rulings.)
It's a moot question if ... If the user had agreed to a license — for example a click-to-agree EULA for HBO GO -- that agreement would likely pre-empt fair use arguments.
By the way dept. It's been a long time since a court okayed reproducing a whole TV show as a fair use; 31 years ago the Supreme Court held that "time shifting" a single copy of an over-the-air TV show for personal use was okay.

Monday, April 13, 2015

Fish Out of Water (and Copyright)

Dear Rich: I am currently in the process of making a logo for trout nets I sell. My graphic design artist did a great job but used a trout silhouette off of a stock photo site. The site says it is prohibited to use their material as part of a logo, but it is just a silhouette of a trout jumping and I feel like that is more public domain than not. I talked to my graphic design artist who is willing to sketch one up from scratch, I just feel it is kind of silly as there are only so many ways to depict a silhouette of a trout jumping out of the water. 
Your argument -- that there are a limited number of ways to portray a jumping trout silhouette -- is a reasonable defense to copyright infringement and may possibly qualify under the merger doctrine or as "scenes a faire." However, if you obtained the image from a stock photo site and entered into a license agreement, copyright would take a back seat to the contract. If the stock company notices (and cares), they can hassle you over breach of license and your copyright arguments would have little value. Have you considered public domain or Creative Commons imagery? There's a lot of other fish in the sea.*
* and yes, there are saltwater trout!

Wednesday, April 8, 2015

Do I Need a Lawyer to License Crafts?

Dear Rich: I'm a crafts artist and I create fantasy animals and sell them as sculptures and prints. A company wants to license two designs for fabric for use in children's products. They're asking me to sign a license for three years. According to the contract, I can still sell sculptures and paper prints. I just can't do clothing. bed sheets and similar fabric items. I think I understand the agreement. I'd hate to blow most of my advance on a lawyer if I don't need one. But people are telling me I should see an attorney. What do you think?
That's a tough call. We talk about licensing at our crafts law website (where we also offer a sample license agreement for purposes of comparison). If you can't make it over there, here's what we suggest: If you’re a savvy, confident businessperson capable of reading contracts -- and this is especially true if the other side provides a concise easy-to-understand agreement -- you can probably negotiate your own license.  If legal agreements just make you nervous, and a company wants to license your best-selling or signature work, you might as well secure some backup and retain a knowledgeable licensing attorney.
Watch out for "assignments." One warning flag that you might need an attorney is if you see the word “assign” or "assignment" in the proposed license agreement. An assignment means that you are selling legal rights in a work to someone else which is far different from the “rental” arrangement of a typical license. If you assign all your rights in a work, then that’s it—you can’t reproduce and sell that work any longer. There may be an occasion where an assignment makes sense—for example, sometimes you can assign all rights for the term of the license and they will be assigned back to you after it’s over, or you may receive a large sum of money for an assignment. Nevertheless, if the licensee seems to be angling for an assignment, have an attorney review the draft agreement to guarantee that you’re not permanently giving up all rights.

Monday, April 6, 2015

Does Your Chewing Gum Lose its Flavor in Canada?


Dear Rich: Is the song "Does Your Chewing Gum Lose Its Flavour (On the Bedpost Overnight)" in the public domain in Canada?
Although many music fans believe that Does Your Chewing Gum Lose its Flavour originated with Skiffle-master Lonnie Donegan in 1959, the novelty song was originally released in 1924 by the Happiness Boys. It was written by Billy Rose, Ernest Breuer, and Marty Bloom (see label, right) with one difference; their song was titled Does Your Spearmint Lose its Flavour. Donegan changed it because the BBC would not play songs that included trademarks and SPEARMINT was a registered trademark for a brand of chewing gum. (BTW, the same now-outdated policy is why the Kinks' song "Lola" references "cherry cola," instead of Coca-Cola, and why Paul Simon's track Kodachrome ended up as the B-side of a single in the UK.)
Right, you had a question. Neither the original version of this song nor the later arrangement by Lonnie Donegan are in the public domain in Canada. Copyright terms in Canada generally last for the life of the author plus 50 years. In the case of multiple authors, the term is measured from the year the last living author died. Billy Rose died in 1966, Marty Bloom in 1974, and Ernest Breuer in 1981 (according to this article ). Thus, the Canadian copyright term for Does Your Chewing Gum Lose Its Flavour runs through the end of the year 2031. Lonnie Donegan died in 2002, thus the Canadian copyright in his arrangement lasts through 2052. Answered by Stephen Fishman, author of The Public Domain.

Wednesday, April 1, 2015

White House of Cards: Selling the Presidents

Soon, I will be launching my Kickstarter Campaign for a card game I designed entitled "RePresidency." The game will feature works from the public domain that includes images of former political leaders and other political icons that helped shape the United States into what it is today. All of those portrayed in the game will be featured in a positive light and the physical cards will include an image of the person, their name, their signature (also public domain), and the symbol of their political affiliation. Most of the cards will feature deceased individuals from the early 20th Century and public domain imagery and art of the World War eras. My concern is that, even though portrayed positively and truthfully, that some individuals or their heirs may come at me if the campaign is successful. 
We don't think you're going to have any copyright concerns because your images are all public domain. So, your only concern is whether the ex-prexys will sue for right of publicity. A few states have a post-mortem right of publicity -- that is the heirs of Richard Nixon might be able to pursue you. Living ex-presidents like Jimmy Carter, Bill Clinton, and George W. Bush also have the legal basis to hassle you. (It's unlikely you'll be hassled by the current president because of public relations issues.) Unfortunately,  even though politicians like Spiro Agnew, Arnold Schwarzenegger, and Jesse Ventura have sued over right of publicity claims, these cases settled without any court precedent. So, there are no legal rulings indicating whether a politician's right of publicity trumps commercial free speech rights.
Bottom Line Dept. We think you should proceed with your card set. Other companies have followed a similar path and we assume they did so without contacting the grandchildren of Harry Truman, etc. Should you get hassled, we think you have a strong free speech defense (and the publicity probably won't hurt your sales either).