Thursday, February 23, 2017
We believe that the owner of copyright of Robert Capa's D-Day photographs is either (1) the estate of Cornell Capa, (see copyright notice under photo) or more likely, (2) the International Center for Photography (see copyright notices under photos). The ICP was founded by Cornell Capa, Robert's younger brother. In any case, licensing rights are controlled by Magnum Photos. (The Library of Congress appears to validate this conclusion.) Magnum's relationship with Capa runs deeper than publication of a photo compilation. Robert Capa founded Magnum Photos in 1947 with Henri Cartier-Bresson, David Seymour, George Rodger and William Vandivert. In any case, it's amazing that Capa's eleven D-Day photos exist at all considering that a flustered Life Magazine photo lab employee destroyed 95 of the 106 photos Capa shot during the invasion.
Wednesday, February 15, 2017
Tim Conway is Kellyanne Conway's father
(Click picture for proof)
Seeing as how our mailbag is a little thin this week, the Dear Rich staff is going to wade into this potentially partisan, largely theoretical question.
What are facts and why aren't they protected? According to Merriam Webster, a fact is "something that truly exists or happens: something that has actual existence." According to the U.S. Supreme Court, facts are neither original nor created -- they are discovered or unearthed ("[T]he first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence ... [O]ne who discovers a fact is not its "maker" or "originator." Therefore, copyright law -- which only protects original creations -- will not protect facts. (The Supreme Court viewed facts in their traditional legal context, as statements of objective truth, a view that some legal scholars considered simplistic and flawed.)
What are alternative facts? The term, "alternative facts" was popularized by Kellyanne Conway, counselor to the president, in her defense of false statements regarding the size of inauguration crowds. Alternative facts have come to be known as demonstrable falsehoods (or lies) and they are considered a threat to unbiased knowledge. Some of Conway's defenders have categorized alternative facts as “truthful hyperbole” and others claim the term has a legal meaning, likening it to alternative pleadings. (Partisan proponents quickly constructed a competing Wikipedia entry, prefaced with so many disclaimers and warnings that the definition, itself, seems to have become an alternative fact.)
Copyright protects falsehoods. Harry Potter and Seinfeld have something in common -- they both exist in a universe built upon "created facts." For example, the "fact" that in a Seinfeld episode, Kramer is hypnotized by baggage carousels "is in reality [a] fictitious expression created by Seinfeld's authors." Similarly, "each [Harry Potter] book chronicles and expands on the fictional facts that unfold in the series," and when a number of these fictional facts are borrowed, a court will deem it infringement. Like Vandelay Industries and the Bond of Blood charm, alternative facts (i.e. massive voter fraud in New Hampshire) are created facts, not discovered, and therefore demonstrate the minimum of originality.
The Dillinger case. A 1990 case held that the intent of the creator determines whether a fact is protected. An author named Nash had written a book documenting his theory that John Dillinger survived his 1934 shootout and lived until 1979. A TV show had used the theory as part of its plot. The court ruled that because Nash treated his book as factual, not fiction, his facts were unprotected. ("Nash does not portray [his book] as fiction, however, which makes all the difference.") Following this ruling, alternative facts would not be copyrightable.
Not so fast, Kellyanne ... Regardless of the arguments, above, there remain a few obstacle to copyright protection. First, there is the matter of attribution -- who is the author for copyright purposes? If the author is a federal employee, the work falls in the public domain. At the same time, the brevity of "alternative facts" creates a roadblock for copyright protection. Finally, there is the unlikelihood of enforcement -- that is, it is doubtful that reproduction of falsehoods will lead to copyright lawsuits unless, perhaps, a compilation of alternative facts was published.
Monday, February 6, 2017
Ideally every copyright license should include: a "grant of rights" that explains what you can do with the copyrighted work; a "term" which provides the period of time you can exercise the rights; and a "territory" which describes where you can exercise those rights. Often these three provisions are merged into one or two clauses, as seems to be the case with some of your agreements. (When we say"copyright license" we're talking about any temporary grant of copyright -- for example a permission agreement.)
Publication includes distribution. Publication is assumed to include distribution unless the agreement provides otherwise. This jibes with trade practice and the copyright law definition of publication -- "the distribution of copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending."
Territory clauses. Territory is assumed to be a geographic area -- for example, "the United States" or "North America." In publishing contracts, territory is often tied with language restrictions-- for example you may be granted publication rights of an article and the territory is defined as "English and French language rights for North America." In that case, you could distribute in Mexico, but not a Spanish language version. It's also possible that your books may end up outside the territory -- for example, Amazon.com fulfills an order, or a third-party buys a carton of books and takes them out of the territory for resale. That won't violate the agreement but what you can't do is engage a distributor who carries your book outside the territory, or sublicense to a publisher outside the territory.
Interpreting contract language. What happens if there is a dispute about interpreting "distribution," "territory," and "publication"? Absent definitions within the agreement, a court when examining contract language, will usually seek out the "plain meaning" of the words--that is, how a reasonable person in the publishing industry would interpret them.
Wednesday, February 1, 2017
The question you're wrestling with -- whether the purchase of a copyrighted item permits you to use the item as part of another product -- has come up several times in court cases. For example, a company purchased notecards and affixed them to tiles and a court ruled that was permissible under the first sale doctrine (a legal principle that guarantees you the right "to sell or otherwise dispose" of copyrighted items). Another court took the same position when a fabric manufacturer complained about the use of its copyrighted fabric in children's bedding.
On the other hand ... A federal court in California ruled that ripping out images from a book by Patrick Nagel and reselling them on tiles was not permitted. Another California court ruled that pulling art images from a book and framing them was not permitted. And a New York court prohibited a company from re-selling posters after making them appear like oil paintings on canvas. These cases are based on the idea that the resulting products (framed artwork and decorative tiles) are derivative works (new works that transform, adapt, or recast existing works).
Five things to consider:
- Did you enter into a license agreement when you downloaded the sheet music? Check to see whether you clicked-to-agree to limited uses of the sheet music. A licensing agreement may trump copyright law.
- Don't make copies of sheet music. Only affix purchased copies. If the first sale doctrine shields you, it will offer protection only for authorized copies.
- The likelihood you'll get hassled is proportional to your company's profile. The bigger your company and the more expansive its marketing, the more likely a music publisher may object. The larger your sales, the more incentive there is for a lawsuit. Companies usually go after those with deep pockets especially when the caselaw is as confusing as it is for the first sale doctrine.
- If hassled by a cease and desist letter, consult an attorney. You may want to stand your ground, at least at the letter-writing stage. (Keep in mind that scholars and others have disagreed with the reasoning of the California courts.)
- Don't ask the sheet music company for permission to affix the music to keepsakes. Digital sheet music sellers are distributors with a narrow range of rights. They don't have the power to grant you anything other sheet music. Only the song copyright owner (a music publisher) can grant you the rights.