Monday, January 30, 2023

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.


____________________________________________   ____________________
Signature                                                                Date
Typed or Printed Name
____________________________________________   ____________________
Signature                                                                Date

Tuesday, January 24, 2023

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.

Tuesday, January 17, 2023

Natural v. Synthetic Tests: Copyright-Protected?

Dear Rich: I have a website that helps people determine whether jewelry and gemstones are natural or synthetic. I am redoing the site and want to eliminate some of the sources listed for the various tests. I've changed the wording so that it is not similar to the source material, but it is still the same test. I would like to know if this is fair use, as many of these tests are standard practice in the industry. Also, we've created something original because we are taking points from various sources and compiling them with our own explanations to create a relatively unique webpage. 
You're not infringing if you are describing common tests and standards used within an industry and you have made an attempt to distinguish yourself from the source material. That is, you are not copying verbatim. Copyright law won't protect "any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied." So, the fact that natural pearls are grittier than fake pearls cannot be copyright-protected. In addition, if there are a limited number of ways of describing the test -- for example, that natural diamonds can cut glass -- you will rarely run into a problem.
Fair use? If you are challenged over your site, your most robust defense would be that the tests are not copyrightable. Fair use -- which permits the unauthorized use of copyrightable material for specific purposes -- is likely not an issue.

Monday, January 9, 2023

Police Photo: Public Domain or Fair Use?

Dear Rich: I want to use a police plane crash accident photo in my book. It was released to the press and has been published in many news outlets attributed to the department. There are no privacy issues - no vehicle/person/property is identifiable. May I use it? Is it public domain or fair use? 

Public domain? Although state and local police are not prohibited from claiming copyright in their photos the answer depends on the state where the police department is located. Some states like New York, Illinois, and Michigan (called "closed copyright" states) actively pursue copyright for employee-created works. Other states like Virginia, New York, and Massachusetts (called "open copyright" states) have a policy that makes state documents presumptively public domain. The Harvard Library has put together a map indicating each state's policy. It's also possible that the police department has created its own policy and granted blanket permission for informational purposes, or that licensing only requires attribution. BTW, photos by federal law enforcement are public domain.
Fair Use? Publication of the photo in your book may qualify as fair use if it provides commentary, expresses ideas “beyond what [the [photographer] expressed in his photographs," or disputes or makes fun of the imagery. When ruling on fair use, courts consider four factors. But, beware, if you claim fair use, you'll likely have to prove your claim in court, an expensive proposition. 
What to do? If it's unlikely that the police department will see your book (for example, the photo isn't on the cover) and you're utilizing eBooks and print-on-demand services, you can test the waters by using the image without permission. That way, if a challenge develops, it will be easier to remove the photo without losing a print run. If you're hoping your book becomes popular, or that you sign with a publisher, or you live in a closed copyright state, then, it's best to get permission from the police department.
P.S. Dept. You can find a thorough review of crime photography and copyright issues here

Friday, December 9, 2022

No Registration at Time of 'Infringement'

Types of Creative Commons licenses
Dear Rich: I reproduced a Creative Commons photograph on my blog.
 The photographer posted the picture to use for free. A few weeks later, I got an email from a company representing the photographer saying that I was infringing because I didn't list the photographer's name. They wanted $750 to settle. I took the photo down immediately. I asked for proof that they owned the copyright, and they wrote back that the registration was pending and that I had 21 days to respond before they handed it over to their attorneys.
The not-so-good news is that you'll probably have to pay something to make this go away. The good news is that you should be able to bargain your way down.
Copyright and credit. The photographer's Creative Commons license allows anyone to reproduce his image provided that the user gives appropriate credit, provides a link to the license, and indicates if changes were made. In other words, if you credit the photographer, you're not infringing. You failed to provide attribution, so you're not entitled to the license, i.e. you are infringing, The company can sue you and $750 is the minimum amount of statutory damages that a judge can award for copyright infringement. 
Registration and bargaining. If the copyright wasn't registered before you posted the picture (or within three months of the first publication of the photo), the photographer is not entitled to statutory damages (the $750 figure). Instead, he can seek actual damages. Actual damages are equal to "the amount a willing buyer would have been reasonably required to pay a willing seller at the time of the infringement for the actual use." In other words, how much does the photographer earn from a similar license? Because the photographer offers the license for free (as long as attribution is provided), the damages are difficult to discern and probably are less than $750. We recommend that you try bargaining the settlement figure down to $250 using the arguments above. And, of course, when negotiating, never split the difference.

Tuesday, November 15, 2022

Compulsory Licensing vs. Exclusive Licensing

Dear Rich: I was wondering how compulsory licensing fits with exclusive licensing. In other words, if a song is exclusively licensed for a movie, for example, can someone still license it to record another version? I remember reading somewhere about some songwriters setting licensing fees so high as to exclude many. Excluding statutory fees, is there any standard for such song license fees, or is it completely “willy-nilly”? 
A license agreement is exclusive if you are the only person who has the right to use the work as described in the agreement. For example, if you enter into an agreement with the owner of the song, Strangers in the Night for the exclusive use of the song in a movie, no one else could use the song in another movie. Exclusivity can be as narrow or as broad as you choose. For example, you could narrow the exclusivity by limiting the exclusive right to use Strangers in the Night in horror genre movies. Or you could expand the exclusivity of your license agreement by obtaining the exclusive right to use the song in movies and television shows.
Compulsory licenses are mandatory licenses established by law. A copyright owner must grant a compulsory license, provided that you follow certain legal rules and pay fees. For example, once Strangers in the Night has been recorded and distributed to the public on recordings, any person or group is entitled to record and distribute a cover of the song without obtaining the song owner's consent. Compulsory licenses are nonexclusive (meaning others can also cover Strangers in the Night, just like you can).
Long answer. So, the fact that a song has been exclusively licensed for a movie doesn't, by itself, preclude your ability to get the compulsory license for a cover version. But, keep in mind, if the song has never been "recorded and distributed to the public on recordings," you won't be able to obtain the compulsory license. 
Example: A song was used in a movie but never released on a soundtrack or other recording format. It would not qualify for the compulsory license. You would have to wait until the song owner released the song on a recording distributed to the public.
To take advantage of the cover song compulsory license, a notice must be sent to the copyright owner along with a fee set by the U.S. Copyright Office, known as the statutory fee or statutory rate. The recording fee (in 2022) is 9.1 cents per song (or 1.75 cents per minute of playing time). Alternatively, you can use online services such as Songfile.

Saturday, August 13, 2022

How Do I Locate Image Associated With a Copyright Registration?

Dear Rich: If I'm provided with a registration number for a visual art's copyright, how can I check its image? I have tried searching on, but the result doesn't include the image.
The Copyright Office Public Records Portal does not provide copies of the images, books, movies, or other copyrighted materials registered under copyright law. These works are considered deposit materials (because the registrant deposits copies with the Copyright Office), and you must request them from the Research and Certification Section. (Keep in mind that the Copyright Office does not retain all deposited works for copyright registration.) The Copyright Office will only provide deposit materials in three situations: (1) you are the copyright owner (and can prove it), (2) you are preparing for litigation, and you complete the Copyright Office Litigation Statement Form, or (3) A court order is issued for the deposited material. All of this information (and more) is provided in Copyright Circular 6.

Wednesday, August 3, 2022

Can I Publish Interior Photo of Museum Without Permission?

Interior Entrance to the Department of Interior
Dear Rich: Do we need any kind of release to use a photo of an interior entrance in a new and very famous museum for use in a print-only format. The topic of our publication is the museum. The authors found the image on the web. I can’t find any caption with credit / © language . . . on the web.
Getting permission from the photographer would eliminate any risk resulting from your publication. But if you can't get permission,  you may have a reasonable fair use argument.
Fair use. Reproducing the image without the copyright owner's permission is an infringement unless you can claim fair use. If we consider the four fair use factors, the first factor, the purpose and character of the use, weighs in favor of fair use because your book is for purposes such as criticism, comment, reporting, and teaching, all reasons provided in the notes to the fair use statute. As to the second factor, the nature of the copyrighted work, courts generally consider photographs as creative works, unless, as might be the case with your photo, the photo is more documentary in nature and does not “showcase the original artistic expression of the photographer.” (See DeFontbrune v. Wofsy in which museum catalog photos of Picasso artworks were reproduced). Assuming the photograph is basically a documentation of the entrance, this second factor may weigh in your favor as well. The third factor, the amount and substantiality of the work used, weighs in favor of the photographer because we imagine you will be using the complete photograph, unaltered. (See Golden v. Michael Grecco Prods in which promotional photos of Xena the Warrior Princess were used in a blog post.) The fourth factor, the effect of the use upon the potential market, is difficult to call because we're not clear as to the source of the photo, whether the photographer has exploited the image, and whether the photo and the museum book compete in any manner.
If you go with the photo ... You can strengthen your fair use claim by reducing the size of the image (thumbnail is best) and you can demonstrate your good faith (which may help lower potential damages) by documenting attempts to find the copyright owner. In regards to the latter, have you tried Google's image search to locate other sightings of the photo?
Architectural copyright. If the museum is new (built after 1990), copyright law protects the building's design. As Circular 41 (Copyright Claims in Architectural Works) states, examples of works that satisfy this architectural copyright requirement "include houses, office buildings, churches, and museums (emphasis added). Keep in mind, that the architectural copyright extends to the overall form of the museum's building, the exteriors, and the arrangement and composition of permanent structures that divide the interior into separate rooms and spaces. However, the museum's architectural copyright does not include standard features such as windows, doors, or similar building elements, standard configurations of spaces, functional features, or interior design features, such as the selection and placement of furniture, lighting, paint, or similar items. Although we haven't seen the museum's interior entrance, it is possible that by itself, it may not qualify for copyright, or that your reproduction will be excused as fair use.

Wednesday, June 22, 2022

Why Won't Playboy Grant Cartoon Rights?

Dear Rich: Playboy Rights & Permissions recently denied us permission to use a Playboy cartoon in a print only, low number of copies, scholarly publication. The reason stated is “ I am sorry but the cartoon by [famous cartoonist’s name] that was originally published in the [month & 1965] issue of Playboy is not available for third party licensing.” What can I infer from that statement? I wonder does Playboy hold exclusive rights to that cartoonist's work? Do they know the rights status? I'd like to find a way to use the cartoon but not if it means taking a risk with an entity like Playboy. 
The statement, "not available for third party licensing," may mean Playboy doesn't have the right to license the cartoon. Although we are not privy to the arrangement between the magazine and the cartoonist, a case involving the artist, Patrick Nagel, revealed that until July 1979, Playboy acquired rights from artists by printing the following legend on the back of checks: 
Any alteration of this legend agreement voids this check. By endorsement of this check, payee acknowledges payment in full for the assignment to Playboy Enterprises, Inc. of all right, title, and interest in and to the following items: [a description of the work].
An assignment versus work made for hire. In the Nagel case, the court of appeals determined that this language referred to an assignment, not a work-for-hire. One difference between the two types of ownership is that an assignment can be terminated after a number of years while a work-for-hire cannot. For example, transfers of ownership made in 1965 could be terminated in 2021 (see 17 USC 304). Therefore if Playboy used a similar legend in 1965, and if the cartoonist's estate terminated Playboy's rights, the cartoonist's estate may own the right to license the cartoon. 
Or maybe they don't want to deal ... Alternatively, the cynical members of the Dear Rich Staff wonder if Playboy just doesn't want to bother with small licenses such as yours and they use this statement as an all-purpose rejection

Thursday, May 12, 2022

Is Artist's Permission Required to Reproduce Artwork in Exhibition Catalog?

Dear Rich: As the representative of a particular (living) artist, I was recently contacted by the organizer of an exhibition in which original art pieces owned by various collectors will be on display -- including my client's art. Photos of the art will be included in an exhibition catalog that will be made available for sale to patrons of the exhibit. Because these catalogs will be sold, the organizer of the event has requested my client's permission for said art to be included (my client will not be compensated). In this particular situation, is my client's permission actually necessary?
Yes, your client's permission is required. This is the case regardless of whether the catalog is sold or offered for free. That's because when an artwork is sold, the buyer only acquires ownership of the physical work, for example, the framed painting. As the Seventh Circuit held, “a copyright is not transferred automatically with the transfer of the copyrighted good [thus] when you buy a book, you don’t obtain the right to make and sell copies of it.” The copyright (the right to display and make copies) is typically retained by the artist. There are exceptions to this rule, for example, if the artwork is a work made for hire, or if the artist assigns copyright to the buyer, but otherwise, the artist controls the duplication. BTW, the same rules apply for non-fungible tokens (NFTs). So, if your client creates an NFT, an NFT buyer would not acquire copyright.

Thursday, April 14, 2022

Opera Composer Seeks Rights to Deaf Poet's Life Story

Dear Rich: I am a composer looking to write an opera celebrating the life and work of British Sign Language poet, Dorothy Miles. I am struggling to find out how I may gain access to the rights to her life story, to compose a 20-minute work. Dorothy passed in 1993, and according to my preliminary research, she has no living descendants or relatives. Would you be able to advise me as to the best course of action in order to set aspects of her life story to music?
If you want to avoid lawyers and limit lawsuits, the best course of action is to base your opera on public records, existing news articles, and other public facts. 
Facts are free. The facts of Dorothy's life are free for all to use. This is true under U.S. and UK law. So, for example, you could dramatize the pertinent facts of Dorothy Miles's life - for example, how she was born with hearing but lost it after contracting meningitis, or how she fell in love with American sign language, and later combined British sign language and poetry, or how she suffered from depression and bipolarity and that led to her death. This use of public facts often provides the springboard for life-story dramatizations, as in the Dorothy Miles documentary, Dot.
Using Dorothy Miles's poetry and writings. If you want to use material taken from Dorothy Miles's books or poetry you will need to investigate its copyright status. Under U.S. and UK law, permission is required from whoever acquired rights from Miles after her death, perhaps Miles' niece, Liz Deverill, or perhaps the British Deaf History Society, the publisher of Miles' works. We couldn't find any copyright claims for Dorothy Miles in the Library of Congress (USA) so you may need to investigate copyright status at the UK's Intellectual Property Office. The rights that you seek for Miles's writing can be narrowly or broadly defined, for example, rights limited to the live opera performance, or rights to also distribute and stream the opera. Similarly, you would need permission to use video clips of Miles, for example, if you plan to display those clips in conjunction with your opera.
Living people. If you plan to identify and portray living people you don't need their permission under U.S. law unless you are trying to prevent three types of legal claims: right of publicity, defamation, or invasion of privacy. We don't imagine this will be an issue for you unless you are casting a living individual in a negative light or unearthing secret information about a private citizen. (We're not knowledgeable about British law but it's our understanding that the UK has no right of publicity.)
Adopting source material. If you're adopting source material, for example working from a biography and taking more than facts, you'll need a derivative rights agreement from the copyright owner. If you are using source material obtained directly from an individual portrayed in your opera, you may need either a release, a consulting agreement, or in some cases life-story rights. The latter agreement prevents lawsuits over fictionalization and releases the producers from any claimed injuries resulting from how the character is depicted. Hopefully, if you follow these suggestions, we'll soon see your opera on this list.  

Saturday, March 5, 2022

Reproducing a Photo of a Statue

Dear Rich: As I understand copyright, if I visit a park and take a photo of a statute, I own the copyright to the photo and I can use it in a book. But if I open a magazine and take a photo of an illustration, I still own the copyright to the photo, but using it in a book would be a copyright violation. Why is it different?
Actually, they're not different. It's true you own the copyright in both photos but your copyright only extends to what you contributed, for example, the choice of subject matter, composition, lighting, etc. Your copyright does not extend to the statue, itself. If the statue and the image are protected by copyright, it would be a violation to reproduce them in your book (unless permitted under fair use principles). And, if you register your photos with the Copyright Office, you're required to disclose (and exclude) those items in your application because they are not original to you.
Photos of a statue. In some countries, for example, Canada, art that is permanently situated in a public place or building can be photographed and reproduced without permission. Not so, in the U.S. where unauthorized reproduction of a photo of a public statue can be costly -- as the U.S. Postal Service learned. (The USPS mistakenly used a photo of a Las Vegas imitation of the Statue of Liberty -- one with "a more contemporary, fresher face than the original" -- and the sculptor of the Vegas statue sued and recovered $3.5 million.) The reverse principle -- it is a violation of copyright law to create a sculpture of a photograph -- has also been followed by the courts.
In the real world. Few photographers of publicly-viewable statues need to worry about copyright lawsuits. The incidental appearance of a statue, for example, in a travel photo, a news photo, or an educational lesson is not likely to trigger a dispute and if it did, the reproduction would probably qualify as fair use. In addition, many statues are in the public domain and do not require permission (despite what some owners believe).

Monday, January 31, 2022

Does My Teenage Son Need to Declare Streaming Income?

Dear Rich: My teenage son has been streaming music on various digital platforms. Does he need to file taxes on the money he has generated?
That depends.
Did your son earn more than $12,550 in 2021? Your son does not owe taxes or have to file a return unless he earned more than $12,550 during 2021. That's assuming your teenage son is living with you and is listed as a dependent on your annual tax filing.
Did your son receive a 1099? Were taxes deducted from your's son's payments? Even though your son might not have any income tax liability, two situations may warrant a separate tax filing: (1) in the unlikely event he receives a W-2 form (he was an employee) and taxes were deducted from his payments, he would need to file in order to get a refund; and (2) if he received more than $400 as a self-employed musician (for example, he received a Form 1099 indicating a $500 payment), he would need to pay self-employment tax. Note, the $400 figure is determined after deducting your son's expenses from his total income. So, for example, if he received a Form 1099 indicating a $500 payment but he had $200 in studio expenses, your son would not reach the $400 threshold.  

Wednesday, December 22, 2021

Is a Listserv Moderator Liable for Subscriber Infringements?

Dear Rich, I created a listserv on my account at google groups. Someone on the list has been posting not only links to online newspapers but, without permission, the entire contents of the link as well. This includes New York Times and Newsweek. Who is legally liable for these copyright infringements: the platform (google groups), me (the group's creator/owner/manager), or the poster of the copyrighted material?
In cases involving infringing postings at Google listservs, a copyright owner (such as the New York Times or Newsweek) would likely pursue the poster and Google.
Safe harbor. Google will likely be shielded from a lawsuit by claiming the "safe harbor" benefits of the Digital Millenium Copyright Act (DMCA). Section 512 of the DMCA allows an Internet Service Provider (ISP) such as Google to avoid liability for infringement provided that the ISP promptly removed the material upon request and provided that the ISP has met other requirements. In other words, if Newsweek or the Times request removal, Google will issue a take-down notice, and if the poster fights the notice -- for example, the poster claims a fair use defense -- the copyright owner can sue the poster in federal court and sort out the matter, there.
What about you? It's possible (though unlikely) that you, as manager of the listserv, could be drawn into the line of fire. In one case, a federal appeals court indicated that if a moderator (under the supervision of an ISP employee) reviews and approves all postings, the ISP could be liable. We doubt whether you'll be named in a lawsuit. Still, because you're aware of a potential problem, you should provide your copyright policy to all subscribers, notify the poster that only links should be posted, and seek guidance from Google for the issue if the poster doesn't correct behavior.

Monday, December 13, 2021

We're No. 1: Music Law Named Best Copyright Book

Will YouTube Ruin My Album Release? Mechanical v. Sync License

Dear Rich: If I have the licensing for songs to record and distribute and want to use the same recording as part of a video, do I need to pay for additional licenses? I’m afraid that YouTube will ruin my album release video project. 
The mechanical license you purchased for recording and distributing the songs (as MP3s or on vinyl or CDs) differs from the license needed for using your version of the song in a video (referred to as a "sync license"). Sync licenses are negotiated directly with the copyright holder. Unfortunately, no collective like HFA provides blanket sync licensing (although various sites may negotiate sync licenses for a fee). 
Typically, you're on the defensive with YouTube. Even if you acquire the proper licenses, an initial objection may be prompted by Content ID or the Copyright Match Tool. At that point, you'll need to provide evidence of your license, or in the case of a takedown, a DMCA counter-notice. (A song owner can block, track or monetize an infringing video.) Even though covers may be harder to detect (because they don't match the digital fingerprint of the original version), there are methods for locating them, for example, text searching software that detects titles or lyrics. In some cases, YouTube can facilitate a revenue-sharing arrangement with the song owner. Bottom line: Because most song infringements on YouTube are monetized, not taken down, you may want to forego the sync license and wait and see if a copyright claim is made against your video.

Wednesday, October 27, 2021

Can I Claim Publishing for Public Domain Song?

Dear Rich: I have an album project where I have two "traditional" songs that are being performed in an original manner. Can I list myself as the publisher? 
It would be improper to list yourself as the publisher of a public domain song (we assume that by "traditional" you're referring to PD music). However, you may be able to acquire copyright protection for your unique arrangements. 
You can't list yourself as the publisher. A music publisher is a company that owns songwriting copyrights and collects money from people who sell, perform or modify the songs. Because public domain songs are not protected by copyright (they are free to the public) no one can claim ownership of these compositions. Publishers who claim ownership of PD music and try to enforce their claims are subject to lawsuits. One workaround is to add new lyrics to a public domain melody. Elvis and Ken Darby wrote new lyrics (Love Me Tender) for a civil war song (Aura Lee) and their music publisher can stop anyone from using their derivative version (though they can't stop anyone from using the Aura Lee music and lyrics). 
You can claim rights to a public domain arrangement. Although you cannot claim ownership of a public domain composition, you may be able to claim copyright of your arrangement. However, in order to assert affirmative rights (that is, go after infringers), the arrangement must be more than a trivial variation of the original. As one case established, "To extend copyrightability to minuscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain work." Perhaps more importantly, royalty collection organizations enable you to get paid for your public domain version. For example, the MLC allows you to register public domain works, as do SongtrustCDBaby and other rights organizations.

Tuesday, October 12, 2021

Coursepack Blues: Don't Count on Fair Use

Dear Rich: I plan to assemble and sell a coursepack on writing nonfiction. This coursepack will consist of writing and revising methods gleaned from various writing books (Strunk and White, On Writing Well, etc.) and will also include worksheets (which my team will create and design from scratch). Is it fair use to build on their material in this way, or do I have to ask the publishers for permission? 
We think that if you're taking more than a few blocks of text from each book, you should ask for permission. Even if you make a fair use argument (as they tried to do in this case), you probably can't afford to battle your way through a federal appeal. Also, keep in mind that publishers have aggressively pursued coursepack makers, sometimes to set an example, and sometimes to recover a half-million dollars. If there's a chance that publishers will learn of your use, if you're affiliated with a business or educational institution, or if you're going to seek a publisher, you should definitely seek permission.

Tuesday, October 5, 2021

Can I Use Fan Art in a Music Video?

Dear Rich: My teen has drawn several pieces of "fan art," following a challenge to begin with a known character and re-draw it into something more original. I would like to use the drawings in a music video. Would I be violating anyone's copyright to do so? 
Unless your video achieves surprising virality ratios, the copyright owner is unlikely to learn of your use. If they do find it on YouTube, they may issue a take-down notice or they may choose not to pursue it (i.e., "Don't bite the hand that feeds you"). The law regarding fan art is vague, and if fanfiction is any example, lawsuits are filed only when the fan competes with the copyright owner. 
Derivative works and fair use. Fan art involves the creation of a derivative work and only the copyright owner can grant permission for making derivatives. At the same time, it's possible your music video may qualify as a fair use. Lacking any fan art caselaw the law remains muddled and we can't predict how a court would rule. However, if your music video becomes another Gangman Style, you're sure to hear from the lawyers. 

Sunday, September 19, 2021

Does Failure to Submit Copies to Copyright Office Put an End to Copyright?

Postcard: Malo-les-Bains - Avenue Kleber,
sent 30 April 1915
Dear Rich: We are a specialized online magazine for postcard collectors. From 1983 to 1989 a print magazine, Postcard Collector, published many articles which we would like to republish. Each issue of the print magazine had a copyright notice ("© Krause Publications, Inc.") Questions: (1) As I understand it, the publisher would have had to submit 2 copies of the magazine to the Library of Congress to complete the registration process. How can I find out if the publisher actually sent copies of the magazine to the LoC to complete the process? (2) If the publisher did not, is the copyright notice meaningless insofar as being able to freely use the articles (we have contacted several of the authors who are still alive and they would be happy to have us re-publish their work). (3) If the publisher did submit the copies to the LoC, is it possible to find out if the publisher renewed the copyright? As I understand it, the copyright expired after 28 years, so even if the publisher did comply with the registration process, the copyright would have expired no later than 2014. 
The failure to submit the deposit materials won't terminate copyright protection; the penalties fall in the wrist-slap category. According to the Copyright Office, "If the required deposit is not made within three months after receiving a demand from the Copyright Office, the owner may be subject to a fine of not more than $250 for each work." In other words, searching the Library of Congress for proof of deposit won't help. Searching copyright renewal records also won't help because renewal is only required for works published before 1964. Our conclusion? We believe that copyright protects the 1983-1989 Postcard Collector magazines for 95 years from the date of publication.
So, who owns the magazine copyright? We don't know. Krause Publications, a publishing business with 46 magazines and 750 books, was the copyright owner until 2002 when Krause was sold to F+W. F+W went bankrupt in 2019 and auctioned off the profitable magazines (but there's no indication of what happened to the copyrights in the defunct magazines). 
Did the authors retain copyright? The authors would have retained the copyright in their articles unless they were employees of Krause, or they signed an assignment of copyright or work made for hire agreement. In other words, the article authors may have granted the first-publication license and kept the copyright. That wasn't uncommon back in the day. Further discussion with the authors may prove beneficial.