Release Me: Interview Consents and Multiple Uses

Dear Rich: If a reporter has consent to interview someone, can that reporter also play that recording during an interview on air?  

The reporter can probably play the interview on air, but the answer depends on several factors.

Consent: Oral, implied, or written. A consent to interview (also known as a 'release') is a promise by the interview subject not to sue over various legal claims -- for example, invasion of privacy, defamation, copyright infringement, and emotional distress. Consent can be oral, for example, if the interview subject agrees to the recording on the phone; it can be implied when the interview subject is aware the reporter is tape-recording and proceeds with the interview, or it can be in writing, in which case, the document may establish whether the interviewer can audio broadcast the interview. FYI, in some states, such as California consent is required to tape record a conversation/interview -- that is, the interview can't be recorded unless both parties consent. Federal law only requires that one party consent

Limited or Unlimited. Broadcasting the tape recording may depend on whether the interview subject grants a limited or unlimited release. The latter provides broad rights, while the former specifies which rights the interviewer acquires. If a use exceeds what’s permitted under the limited release, the interview subject can sue for breach of the agreement. For example, if your consent to use the interview material is only in conjunction with a specific online publication, you cannot later use it as the basis of a podcast. (A limited and unlimited model release are provided at our craftslaw website.) 

What about "off the record" comments? It is common for an interview subject to ask to read or edit the interview or to have some comments removed or kept “off the record.” Any agreement that is made with the interview subject (including an agreement for anonymity) should be documented. Failure to honor the arrangement may give rise to a lawsuit for monetary damages. 

Sample consent/release. Here is a link to an interview release provided by Yale University. You'll see that this is an unlimited release granting broad rights ("to publish, reproduce, distribute, transmit, broadcast, exhibit, digitize, display, translate, modify ... ") and it also includes an assignment of copyright. That's because the interview subject may retain copyright as to their response.   

Publicly Posted PowerPoint ≠ Public Domain

Dear Rich: I run a volunteer-run/non-profit educational program for students who have failed the Naplex several times. I saw PowerPoints posted publicly on a school's website, which I thought would be useful. They are available publicly for everyone to see and download. The website does not have a notice about not being allowed to use them. I intended to cite the source and include the author's name in the title. Is it still considered copyright infringement to use them?  How do you tell if materials are public domain or fit under fair use? 

For readers who are unaware, the NAPLEX is "a 250-question, multiple choice, computerized examination designed to determine whether candidates have the knowledge, judgment and skill necessary to practice pharmacy at entry-level competence." As for your concerns: 

The PowerPoints are publicly available. The PowerPoint slides may be available, viewable, and even downloadable, but that does not give you the right to copy and republish them. There's a difference between authorized end-user activity and unauthorized copying. 

There is no statement forbidding copying. Under U.S. law, a copyright owner does not need to include a copyright notice on published works, nor does the owner need to post notices barring the use of the work. You should presume works are protected by copyright unless proven otherwise. 

Citing the source. Attribution is a thoughtful gesture, but providing the author’s name or source will not excuse someone from a charge of infringement (or qualify the use as a fair use). That said, judges and juries may take attribution into consideration. For example, an author who provides attribution may be considered more favorably when  a judge or jury makes a fair use determination or awards damages. Occasionally attribution backfires, for example, if the author doesn't want to be associated with your program or if the author was otherwise unaware of the copying and was alerted to it by the attribution.  

How do you tell if materials are public domain or fit under fair use? Any work of authorship not protected under copyright law is said to fall within the public domain. This means anyone can use the work without obtaining permission from the author or the author’s heirs. There are  several common reasons why works may be considered to be in the public domain as demonstrated by this chart. Because the PowerPoints were created within the past few decades, we doubt whether they are in the public domain.

Your copying may qualify as fair use, but that depends on whether your unauthorized use is excused because the work is being used for a transformative purpose such as research, scholarship, criticism, or journalism. When determining whether an unauthorized use should be excused based on fair use, a court will use several factors, including the purpose and character of the use, the amount and substantiality of the portion borrowed, and the effect of the use on the market for the copyrighted material.

It’s important to understand that fair use is a defense rather than an affirmative right. This means that a particular use only gets established as a fair use if the copyright owner decides to file a lawsuit and the court upholds the fair use defense. There is, therefore, no way to find out in advance whether something will or won’t be considered a fair use. Of course, if you obtain permission from the PowerPoint copyright owner, then the uncertainty surrounding the use goes away.

Baby (Has Finally) Come Home!

Listen to Bessie Smith

Dear Rich: I'm trying to determine if a recording of a song from 1923 is in the public domain for use as background music in a film scene. The song is 'Baby Won't You Please Come Home' by Bessie Smith. It was recorded on April 11, 1923, and written by Clarence Williams. My understanding is that this recording is now in the public domain because of the Music Modernization Act of 2018.

You are correct! Both the composition (the song) and the sound recording (the record) are in the public domain. The song was written by Clarence Williams (though others have claimed songwriting credit), and published in 1919. As for the sound recording, the Music Modernization Act retroactively awarded 100 years of copyright protection to pre-1972 recordings (which would place this 1923 recording safely in the public domain).

Upcycling: From Feedbag to Tote Bag

This dress was made by Mrs. G. R.
(Dorothy) Overall of Caldwell, Kansas,
in 1959 for the Cotton Bag Sewing Contest 

Dear Rich: Would it be a violation of trademark or copyright law to take an empty livestock feed bag (with the name and/or logo of the company that produced the feed on it, along with usually a picture of an animal), cut it up, and sew it into a reusable grocery tote bag for sale? I have seen these items for sale on platforms like Etsy, but I know Etsy doesn't filter for IP law violations.

Unfortunately, we can't give you a green light, only a yellow one. Although we believe you will be fine under copyright law, trademark law is unclear regarding upcycling. On the one hand, anyone can recycle and resell authorized trademark goods under the principle known as trademark exhaustion (or the First Sale doctrine). This allows you to resell trademarked goods in their original form -- for example, a used Specialized bicycle or a vintage Gretsch guitar. 

Upcycle ≠ Recycle. Upcycled goods -- because they deconstruct legitimate goods to create new products -- are in a different category than recycled goods. The trademark owner may have a legal gripe if the new products reflect poorly on the brand, if they trigger product liability issues, or if consumers are confused or harmed by the upcycled products.  For example, the trademark owner of a distillery may have concerns about a lamp being constructed using its trademarked bottle. Consumers may not believe that the lamp comes from the distillery but the distillery still has the ability to threaten a lawsuit, something you don't want to deal with. 

The real world. Upcycled goods are prevalent on Etsy because they have not yet come to the attention of the trademark owner or because the trademark owner doesn't believe it is worth pursuing the seller. Based on these "odds," you may avoid being hassled. You can improve your odds by avoiding the use of the trademark owner's name in your Etsy text (although that approach may cut into your sales). Keep in mind, though, that even if Etsy does not filter for infringing items, it responds to trademark owner complaints about items that violate its IP policy.

PS Dept. In the 1920s and 1930s, rural women prided themselves on repurposing feedbags as dresses. Once the feedbag companies were aware of this phenomenon, they competed with each other by offering more elaborate dress-friendly bags. 

We're Off to Sue the Wizard

Dear Rich: I want to use a small portion of lyrics from a copyrighted song (We're Off To See The Wizard," by  E.Y. Harburg and Harold Arlen) in a first novel currently being written. Songview, the search service made available at the BMI website says the song is 50% controlled by the writer and 50% controlled by the publisher (100% ASCAP). Would permission from the publisher alone be sufficient in this situation? 

Yes, permission from the song publisher (EMI Feist Music Publishing, P.O. Box 415000, Nashville, TN 37241-0814) would suffice. However, if you are only using a small portion of the lyrics, and the purpose of your use relates to the novel, its plot, or characters, we don't think you need permission just yet. Even if you self-publish, you're likely to qualify as a fair use. Alternatively, the copyright owner might consider your use of the lyrics to be de minimis and not worth the effort of chasing you.  However, if a book publisher is interested in releasing your novel, you may be required to obtain written permission.      

Fair Use: Yes or No?

Trick photograph of man with two heads (1901) 

Dear Rich: I have a new, unique book soon to be published about judging the quality of art. Every image in the book, from ancient to contemporary art,   is aesthetically critiqued, often with diagrams. There are no variables. It is consistent throughout. From everything I've researched, all the images in the book should come under fair use. What are your thoughts? I believe this is a simple yes or no question. 

Polar interrogatives work well in psychology tests, congressional hearings, and wedding vows, but they're not suitable for analyzing fair use. Congress intended that fair use be determined on a case-by-case basis, making judges the final arbiters. Any yes-or-no prediction of how a judge will rule is just that: a prediction. That said, we think you are likely to prevail in a fair use dispute.

Fair Use Factors. In making a fair use decision, judges analyze four factors, of which the two most important are (1) the purpose and character of use and (4) the effect of the use upon the potential market. As for the first factor, the purpose and character of your use is for criticism, comment, reporting, teaching, scholarship, or research, all of which are permitted under the copyright fair use statute.  As for the fourth factor, we don't believe that the potential market for the artwork will suffer as the republication in your book should not interfere with revenue from fine art prints, catalogs, postcards, and other licensing opportunities. 

But wait, there's more ... There are arguments that can be made against fair use. The third fair use factor - the amount and substantiality of the portion taken -- weighs against you because you are using the complete work. It can also be argued that the fourth factor also works against you because a potential market for licensing fine art for textbooks and art criticism may exist. Finally if you are seeking to exploit your book through a commercial publisher, you may be required to get permission of copyrighted works or to provide indemnification if a copyright owner chases you.

The Enchanted Copyright History of Nature Boy

Frank Sinatra with eden ahbez (ahbez did not capitalize his name
 believing that "only God and infinity deserved capitalization.") 

Dear Rich: I wrote a poem using the entire song "Nature Boy" with the lyrics interspersed between my words, sort of a running narrative. Do I need permission to publish it in a book or other written form, or a video wherein the entire poem is recited? 

Yes, you would need permission to use all the lyrics from "Nature Boy." The song was first published in 1948 and the estate of the songwriter, eden ahbez (1908-1995), claims copyright (although the ownership has been disputed). The song won't fall into the public domain until 2043 (95 years after publication). We don't believe your use is exempt from permission because you are using all of the lyrics. Although some courts have granted fair use when copying complete works, the general rule is that when a large portion of the copyrighted work is copied, fair use is less likely to be found.

Are you flying under the radar? From a practical point of view, you are unlikely to run into a problem if your book publication is limited (under 100 copies) or your video fails to go viral. In cases of limited exposure like this, it is unlikely that the copyright owner would take action even if the infringement is discovered. However, if you plan for more exploitation or you don't want to risk a copyright lawsuit, you can contact the song's owner, Golden World, in Mather, California.

Even though you didn't ask ... The backstory for Nature Boy is an anomaly in the history of songwriters and copyright. The songwriter, eden ahbez, was considered a proto-hippie, living in a tent under the Hollywood sign in the late 1940s. He had composed several songs, when a DJ friend heard the autobiographical Nature Boy and suggested that ahbez show the song to Nat King Cole. ahbez rode his bicycle to the theater where Cole was performing. Cole's manager refused to deal with the songwriter. However,  Cole's valet took a copy of the song to the singer who loved it but didn't know who wrote it (ahbez didn't include his name). After investigators dug up the songwriter, the tune was recorded and stayed at number one on the charts for eight weeks. Over 230 artists have since covered it (including a duet by Tony Bennett and Lady Gaga), and it was the centerpiece of two movies, The Boy With Green Hair and Moulin Rouge. After Nat King Cole's success, ahbez was accused of taking the melody from a 1935 Yiddish theater song, Be Still My Heart (ahbez was believed to be Jewish and grew up in a Jewish orphanage in Brooklyn). He settled the claim for $25,000 ($300,000 in 2024 dollars). The melody for the first section of Nature Boy was also the same as the second movement of Antonin Dvořák's Piano Quintet No. 2 in A, Op. 81 

Do I Owe Former Collaborator for a Song He Didn't Co-Write?

Dear Rich: I used to write songs with a musician friend until we had a falling out. Fast forward four years, and I'm now releasing an album of original songs with a California-based indie label. My ex-songwriter friend heard my demo and said that one of my new songs is based on another song that we wrote together. He says that he should be given credit and a portion of the music publishing income. He's threatened to get a lawyer. I don't want this to mess up my record release. 

We can provide you with the legal rules that apply in your situation, but if you're concerned that the dispute will jeopardize your label relationship, you should seek the advice of an entertainment attorney. There are two likely arguments that your former collaborator can make; that he is a co-author of the new song, or alternatively, that the new song is a derivative of the earlier collaboration.

Is he a co-author? It's unlikely that your former collaborator would qualify as a co-writer of your new song. That's because a co-writer (or joint author) must intend for their contribution to merge with your new work. Other factors that are important are: 

• each co-writer must make an independently copyrightable contribution to the new work,
• each co-writer must exercise control over his contribution (he had some creative control or supervisory power over the creation of the work)  and 
• the audience appeal of the work is derived from both of your contributions (and "the share of each contribution in the song's success cannot be appraised"). 

Is the new song a derivative work? Your former collaborator may argue that your new song is a derivative of your earlier collaboration. The performer, Lizzo, ran into a similar problem in 2019 when two former collaborators claimed that her hit song, "Truth Hurts," was derived from an earlier co-written composition entitled "Healthy." Although the trial court dismissed some of the copyright claims in favor of Lizzo, the former collaborators were allowed to continue their lawsuit on other related claims. As a result, the case dragged on for three years and was finally settled confidentially in 2022. 

Takeaway. Get an attorney's opinion on your former collaborator's chances in court. Analyze your financial risks and determine whether it could be more convenient and less expensive to reach a settlement. 

Matricide, Movies and Salinger

Dear Rich: I have written a play and movie script around a public matricide. I gained access to years of diaries, photos, and scrapbooks through a university's special collections library. The entire collection was placed on the curb for the trash collector in 1973 or 1974 but was then rescued and given to the library. I have read that the "change of ownership" of this collection is considered a publication. Is that correct? Included in the collection is an undated typewritten poem by the daughter-murderer (who died in 2007), probably written 1944-1949. Plus, there were threatening letters from the daughter to the parents in 1969. I wish to use the poem and parts of the letters in the script. Is there any chance that the poem and letters are copyrighted? There are also numerous photos taken by unknown persons. If someone owns this collection, how would I know who? The library wants money to use these items in our play/movie. Does paying the library for their use put the burden of ownership/copyright on them? Is this solvable, or should we drop the project? 

We can't tell you whether to drop the project, but we can illuminate some potential issues.

Is there copyright? The daughter's poem and letters are likely protected by copyright. (The author of a letter is the copyright owner.)  If we assume these works are unpublished, copyright protection lasts until 2077 (life of the author plus 70 years). The expiration date would be different if the letters or poems had been published (95 years from publication or 70 years from the author's death, depending upon the year of publication).

Transfer of ownership ≠ transfer of copyright. Physical ownership of a work is not the same as copyright ownership. A copyright transfer can only be accomplished by the authority of the copyright owner. However, people who find abandoned artwork, manuscripts, and musical recordings can claim ownership of the physical objects. 

Transfer of ownership ≠ publication. The acquisition of the works by the library doesn't affect their unpublished status. In a case involving author J.D. Salinger, recipients of unpublished letters from Salinger transferred ownership to the Princeton Library, where they were accessible for research purposes. When Salinger later learned that an author was planning to reproduce portions of the letters in a book, he registered the unpublished letters, sued, and won a judgment preventing the book's release. 

Who owns the copyright? Whoever acquired the daughter's estate is the copyright owner of her poem and letters. That person or institution may not be aware of the copyright. Still, if they become aware, they can, like Salinger, register the unpublished materials and seek to prevent the release of your play or movie.

Paying the library. Unless the library acquired a written assignment from the copyright owner, they have no copyright claim. So, paying the library for the use of the materials won't get you copyright permission. 

The photographs. The copyright in a photograph is owned by the photographer. As you can imagine, tracking down the copyright owners for 40- or 50-year-old photos is likely a fruitless quest. The photos are probably orphan works in most cases, placing the rights in limbo.

What to do? If your play/movie gets a good reception and a distributor or producer wants to become involved, you may want to see an attorney particularly if you have to sign an indemnity provision. An entertainment lawyer can guide you in the intricacies of fair use, and provide you with an opinion letter that you can use with insurers.

Kick It! Marital Arts, Choreography, and Copyright

Dear Rich: I am writing a martial arts mobile phone app. The app includes text describing the martial arts movements and choreography illustrating the moves. The martial arts forms have been relatively unchanged since the 1970’s. From what I can tell, the movements have been treated like they are in the public domain, without copyright or trademark notices. Is this accurate?

The various martial arts schools use combinations of choreographic moves called "forms" or "kata" that date back centuries. So, most of what you want to use is in the public domain due to old age, and you can perform or duplicate the moves and describe them in your own language. Alternatively, you can use language from a publication that is in the public domain. You're free to use any text or imagery published before 1928. And you are likely free to use text published before 1964 (probably in the public domain). 

Limited ways to express yourself. If there are limited ways to describe a martial arts movement, you have more freedom to use similar language (known as the "merger doctrine"). For example, if there are limited ways of describing a double-leg takedown (defined as a "takedown where you grab the opponent’s legs while pushing their upper body forward, forcing them to fall back.") you would likely be excused for using the same language in your app.

Here are some things to avoid:

• Using text or imagery taken from works published since 1964,
• Taking imagery from a website unless the website provides a Creative Commons license or has dedicated the image to the public domain,
• Using clips from martial arts videos without permission or
• Using the name of any martial arts fighter, martial arts program, or martial arts studio if it implies endorsement or association.

New martial arts schools may claim copyright and trademark rights. For example, American Kenpo, founded by Ed Parker in the 1950s, owns multiple trademarks and copyrighted instructional manuals, books, and audio and visual digital content. Also, remember that although a martial arts studio may claim copyright or trademark rights over public domain titles and movements, that does not always make it so. 

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Does Copyright Notice Protect a Website?

Dear Rich: Does putting "Copyright 2023" at the bottom of website pages protect the site from visitors who download an image or narrative content?

Placing a copyright notice on your website is like sticking a "Keep off the grass" sign on your front lawn. People who respect your property rights will stay off, and those who don't ... you'll just have to chase them away. The copyright notice doesn't add any new weapons to your copyright arsenal (although it used to be very important). Unless you're willing to follow up on the theft of your website with a threatening letter (or better yet, have your attorney do it), it's unlikely your copyright notice will have much effect on a bad actor bent on copying.

Rephrase the question. Can we suggest you rephrase your question to "What can I do about visitors who download images and content from my website without my permission?" (Note: There are technical methods of preventing copying of your text, but these involve website coding, and some techies consider them pointless.) 

The legal route. Tracking infringers, threatening them with legal action, and dragging them into court for financial punishment has proven to be the most effective way to deal with website theft. Because the government does not enforce copyright, you must hunt down infringers and seek justice, so protecting your website can be expensive. Also, remember that winning your case doesn't guarantee a return on attorney fees.

Fortify your defenses. If you foresee the possibility that you'll nab someone copying your website, the following steps will increase your chances of success and remuneration for your troubles.

1. Ensure you own or have permission to use your website content.
2. Include copyright notice on each of your web pages (It may help prove that the infringer was aware you claimed copyright). 
3. Include a method for contacting you if someone wants to license content.
4. Gather evidence of copying. Prepare side-by-side tables showing your site and the copied site.
5. Register your website. If you have a registration in place three months before an infringement occurs, a judge has more freedom in awarding statutory damages -  a range of punishments instead of just compensating you for out-of-pocket damages -- and attorney fees. You'll find help on website registration at the Copyright Office. 
6. If you can afford it, have an attorney write a cease and desist letter. 
7. If you can afford it, have an attorney file a copyright suit, or if you are a go-getter with a DIY mindset, consider filing a case in the Copyright Small Claims court.
8. Review the facts before you make threats. Some who copy may have fair use defenses.
9. Pick your fights carefully. Go after those (1) inflicting the most damage competitively or (2) high-profile copying that you can't ignore.

Converting Chinaware Designs to Needlepoint Patterns: Problems Getting Permission

Dear Rich: I am adapting needlework-like designs used in pottery/chinaware by creating patterns for needleworkers. Much of the chinaware was produced in the 1800's but some as late as the 1960s. I have sought and received permission where possible, but not in all cases because the companies no longer exist. What are the laws covering those designs for which I cannot get permission? 

We think you will be fine using the chinaware designs for needlepoint patterns but you should review the following factors: 

Do you need permission? You say you're only using works created before 1970. You don't need permission for designs produced before 1928 as they are in the public domain. You likely don't need permission for designs produced before 1963 because they would have to have their registrations renewed (and few were). And you don't need permission if the works were produced between 1963 and March 1989 if they did not include a copyright notice. In summary, you only need to be concerned about 1963 - 1969 designs with copyright notices.

Is it an orphan work? An orphan work is a work for which copyright clearance is required, but the identity of the owner of the work is unknown, or the owner is known but cannot be located. (In 2015, the Copyright Office analyzed the orphan works dilemma.) In order to minimize your possible liability, we suggest you make (and document) a good-faith effort to locate the owners by searching copyright records. 

Will the owner see your work? Even if the work is protected, you won't have to be concerned about liability unless there is a chance that the current copyright owner recognizes the similarities and decides to act on it. Would the owner of a 50-year+ chinaware design be policing needlepoint designs in 2023?                      

Are you licensing your needlework patterns to a third party? If a third-party company wants to license and sell your design, your license agreement will require you to indemnify the company against any possible lawsuits. You may wish to take a conservative approach and avoid licensing post-1963 designs for which you don't have permission.

FYI Dept. Because your patterns will be based on public domain designs, you will have difficulty stopping anyone who copies your patterns.

Use Frida's Paintings? (Yes!) Use Frida's Name? (Maybe)

Frida Kahlo age 12 (1919)

Dear Rich: I'm filming a romantic comedy in San Miguel de Allende, Mexico, and refer to the artist Frida Kahlo in two scenes and show a photo of one of her paintings (self-portrait) hanging on the wall. Do I need permission to use her name and photo of her self-portrait? 

You don't need permission to refer to Frida Kahlo in your film's dialogue. Free speech guarantees your right to reference a historical figure. More importantly, deceased figures cannot be defamed or have their privacy invaded (the two common basis for lawsuits involving the use of real people in fiction). 

The painting. Mexican copyright law placed Kahlo's works in the public domain 25 years after her death, so you don't need authorization to include a photo of her painting in your film.

The Kahlo name. Certain rights associated with Frida Kahlo were retained (and disputed) by her family, most importantly, the right to use her name for commercial purposes -- for example, Mattel licensed the name for its Frida Kahlo Barbie doll. Although you're free to use Kahlo's artwork in your film, crafts artists should beware that use of the Kahlo name in connection with Kahlo-inspired works sometimes can cause a problem.        

Take What You Want From Sherwood Forest

Dear Rich: I am writing a historical fantasy novel, and I want to incorporate elements from Henry Gilbert's Robin Hood (1911). Despite the publication date, I can't tell if this book is in the US public domain. It appears to have been only published in the UK, and I've seen evidence the copyright was renewed in the 30's. I have a recent UK copy of the book, and it has no copyright notice. But the book is also not in Google Books or Gutenberg, which leads me to believe it's still under US copyright. 

Like Robin Hood, copyright law takes from the rich and gives to the poor.  Because it was published prior to 1928, Henry Gilbert's Robin Hood is in the U.S. public domain where it can be reproduced or modified without permission. The book is available from the Internet Archives and is preserved by Google Books as part of its public domain project.

Can They Back Out of the Deal?

Our favorite negotiation text

Dear Rich: I've been negotiating a license agreement with a company specializing in branding cleaning products for supermarket and box store chains. The negotiations have been going on for two months, and we've agreed on the basic terms, the royalties, and most of the "back-end" issues, but we're hung up on who owns the rights to improvements. The company is talking about canceling the deal. Can they legally back out at this point? 

Generally, the licensor can withdraw an offer at any time before you formally accept. Without rehashing law school principles of contracts, a court will enforce your licensing agreement when there is a legitimate offer, an unconditional acceptance, and mutual consent to all material conditions. Because material conditions – for example, who acquires rights to invention improvements -- are often negotiated right up until the day of signing, most licensing agreements are enforceable at the time of execution, that is when the agreements are signed. 

The parties may have signed off on a term sheet (or other document summarizing the material terms). That may bind them regardless of the intent to draft a more comprehensive licensing agreement later. However, we don't imagine you want to chase a potential licensee into court based on this contract theory. By the way, to avoid being bound by term sheets, napkin agreements, or email exchanges,  add a disclaimer to the effect of "This is not intended to be a binding legal agreement and does not impose any legal obligations." Unless the offer provides a time limit, it will be assumed to be open for a "reasonable" period, depending on the industry or trade.

Are Ads in Old Magazines Protected by Copyright?

Dear Rich: I am working on a book project which would use advertisements from a major U.S. corporation that were published in a popular U.S. magazine between 1918 and 1962. The magazine itself was copyrighted, but the ads do not contain any copyright markings, so my understanding is that the ads would have entered into the public domain.

The advertisements are most likely in the public domain. It's true that the 1976 Copyright Act expressly requires that advertisements in magazines have separate copyright notices. But your advertisements (1918-1962) are subject to the 1909 Copyright Act, which had no rules for magazine ads.  (See Sec. 3 of the 1909 Act.)

How do they become public domain? First, the ads published from 1918 through 1927 are automatically in the public domain as the copyright has expired. Second, there is caselaw under the 1909 Act that holds that a periodical does not acquire copyright in its ads, even if the magazine's art department created the ads. Third, even if the ads published between 1928 through 1962 were protected by copyright, they would be in the public domain if the copyright was not renewed after 28 years. Only a small percentage -- between 7 and 15% -- of copyrighted works were renewed, so the odds are in your favor.  P.S. You can hire the Copyright Office to search the renewal records.

Bobbleheads and Baseball Cards: Does Pairing Make it Less Risky?

Bo Jackson photo by Chris Putnam (altered)

Dear Rich: I’m trying to figure out if I can pair a sports card displayed with a piece of matching bobblehead art featuring celebrity/athlete likenesses for sale in a limited offering (maybe 100-250 of each). I know selling celeb art is risky business but what happens when it’s paired with something of value that is perfectly legal to sell like a card. For example, I made a Christmas-themed bobblehead of Bo Jackson inspired by his 1990 scorecard. Would the bobblehead alone be considered transformative art?

Selling an infringing item with a non-infringing item doesn't excuse the infringement. No matter how you look at it, you're distributing infringing merchandise. 

Are you infringing? If you sell merchandise with an athlete's name or likeness, you're probably violating what's known as the "right of publicity." Celebrities and sports figures have the right to control their image and name when it is exploited to sell something (even if they're deceased). If you're mass-producing bobbleheads and the athlete's law firm learns of your activity, you may receive a cease and desist letter. 

BTW, it doesn't matter if the use is transformative. That's a standard used in copyright law, which is a different legal claim.

Civil War Letters Still Copyrighted?

Ulysses S. Grant -  Virginia, June 1864

Dear Rich: I am writing a book about the Civil War. I would like to include certain quotes from letters of Civil War soldiers. The question is, when were they first published? I have two cases where they were published in book form in the 1990s, but those letters were copied from university libraries where apparently the originals are on display. According to  your book, "publication" includes "offering for public display." If I can determine that said letters have been on display at those libraries since before 1927, can I conclude that the first publication occurred before 1927, thus placing them in the public domain?

You should be fine reproducing the letters. Here's some guidance to help you decide. Divide your letters into three categories:

• Unpublished letters as of January 1, 2003. All unpublished works by individual authors who died in 1932 or earlier are in the public domain.
• Letters published as of 2003 without the authority of the copyright owner. Same as above. "[A]n unauthorized distribution of copies or phonorecords does not constitute publication." Copyright Compendium. That's also true for unauthorized displays or performances. Therefore, unless the two publications you cite were with the authority of the author's estate, those letters are also public domain.
• Letters published before 2003 with the authority of the copyright owner. These letters will have copyright protection until 2047 or until 70 years after the author's death, whichever is greater.

       

Contract Template for Graphic Book Cover Artist

Two iconic book covers that later
became the posters for the film adaptations

Dear Rich: My company is wanting to hire an illustrator to do the cover of our travel book. We want to pay this person a one-time, flat fee to do this work, and they wouldn't retain future royalties or intellectual property of the work. Is there a contract template for this scenario? 
Below is a sample agreement that's based on our downloadable work-for-hire contract on our Crafts Law website. (You can find an explanation for the provisions at the site as well.) A work-made-for-hire agreement is used, so the hiring party acquires ownership of the work. Not all hiring situations meet the legal requirements of works made for hire, so a clause is included that alternatively assigns all rights in the work to the hiring party (a “copyright assignment”).

Cover Art Illustration Agreement

This Work-Made-for-Hire Agreement (the "Agreement") is made between Bossa Nova Publishing ("Company"), and Astrid Jones ("Illustrator").
Services. In consideration of the payments provided in this Agreement, Illustrator agrees to perform the following services: create original cover art for the book, Travels With Trudy (“the Work”) based on the   approval and delivery specifications in Attachment A.
Payment. Company agrees to pay Illustrator $1500 as follows: $500 upon execution of this Agreement, and $1000 upon acceptance of the completed Work. 
Works Made for Hire--Assignment of Intellectual Property Rights. Illustrator agrees that, for consideration that is acknowledged, any works of authorship commissioned pursuant to this Agreement (the "Works") shall be considered works made for hire as that term is defined under U.S. copyright law. To the extent that any such Work created for Company by Illustrator is not a work made for hire belonging to Company, Illustrator hereby assigns and transfers to Company all rights Illustrator has or may acquire to all such Works. Illustrator agrees to sign and deliver to Company, either during or subsequent to the term of this Agreement, such other documents as Company considers desirable to evidence the assignment of copyright. 
Illustrator Warranties. Illustrator warrants that the Work does not infringe any intellectual property rights or violate any laws and that the Work is original to Illustrator.
Entire Agreement. This is the entire agreement between the parties. It replaces and supersedes any and all oral agreements between the parties, as well as any prior writings. Modifications and amendments to this agreement, including any exhibit or appendix, shall be enforceable only if they are in writing and are signed by authorized representatives of both parties.
Successors and Assignees. This agreement binds and benefits the heirs, successors, and assignees of the parties.
Notices. Any notice or communication required or permitted to be given under this Agreement shall be sufficiently given when received by certified mail, or sent by facsimile transmission or overnight courier.
Governing Law. This agreement will be governed by the laws of the State of California.
Waiver. If one party waives any term or provision of this agreement at any time, that waiver will only be effective for the specific instance and specific purpose for which the waiver was given. If either party fails to exercise or delays exercising any of its rights or remedies under this agreement, that party retains the right to enforce that term or provision at a later time.
Severability. If a court finds any provision of this agreement invalid or unenforceable, the remainder of this agreement will be interpreted so as best to carry out the parties' intent.
Attachments and Exhibits. The parties agree and acknowledge that all attachments, exhibits, and schedules referred to in this agreement are incorporated in this agreement by reference.
No Agency. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise between the parties.
Attorney Fees and Expenses. The prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorney fees incurred in enforcing this Agreement.

Jurisdiction. The parties consent to the exclusive jurisdiction and venue of the federal and state courts located in San Francisco, California, in any action arising out of or relating to this agreement. The parties waive any other venue to which either party might be entitled by domicile or otherwise.  

Signatures. Each party represents and warrants that on this date they are duly authorized to bind their respective principals by their signatures below.

 
Company:

____________________________________________   ____________________
Signature                                                                Date
 
____________________________________________
Typed or Printed Name
 
____________________________________________
Title
 
Illustrator:
 
____________________________________________   ____________________
Signature                                                                Date

Does Renewal Apply to Both Published and Unpublished Works?

Dear Rich: A song was first copyrighted in an “unpublished” form in 1950, and subsequently, in the same year, the same song was copyrighted in “published” form. The published registration was renewed in a timely fashion. The unpublished copyright was not renewed. Does the renewal of the published work protect the rights of the composer? Or does failing to renew the unpublished version put the song in the public domain?

If the copyright was renewed, it’s protected for 95 years from the first publication. If the music was published in 1950, it wouldn't become public domain until 2045. It doesn't matter that the unpublished version was never renewed unless the unpublished version contains material that differs from the published version. For example, if the unpublished version contains an intro that's not present in the published version, the intro would be public domain.