Thursday, February 25, 2021

Ripped and Unclipped: Camming and Reaction Videos

Dear Rich: I plan to record an entire episode of a Netflix series through a webcam (therefore seriously depreciating its visual value) and record the audio through a microphone picking up the sound through a speaker (thus very much ruining the audio) and angle the camera so that I am visible and can make commentary. Is it fair use to use the entire unclipped episode, if, throughout my recording, I am making commentary on the episode I am watching?
Your project may qualify as fair use. What you are proposing combines the reduced quality video of "camming" -- when pirates set up webcams in movie theaters --  with reaction videos -- when a video is shown along with commentary or other "reactions." Although camming is an infringement (the purpose is to sell bootlegs), reaction videos can qualify as fair use, a copyright principle based on the belief that the public can freely use portions of copyrighted materials for commentary and criticism purposes. For example, a judge ruled that a reaction video that combined unauthorized content (from a YouTube video) interspersed with commentary from two YouTube celebrities was permitted as fair use.

The factors? A judge, when determining fair use, must consider four factors  
  • the purpose and character of your use. The first factor weighs in your favor because you are commenting upon the video.
  • the nature of the copyrighted work. We can't help you with the second factor because we don't know whether you are copying a factual or fictional work (and in any case, the second factor usually has little effect on the outcome).
  • the amount and substantiality of the portion taken. In the case mentioned above, the YouTube celebrities copied three minutes of content from a five-and-a-half-minute video. In your case, you're copying the full episode. Copying a complete work is usually interpreted against a fair use claim. That's not to say you can't win a fair use ruling. Forty years ago, the Supreme Court permitted copying of a complete television program.
  • the effect of the use upon the potential market. As to the fourth fair use factor, courts are interested in whether your video serves as a "market substitute" for the Netflix episode.Your degraded audio and video work in your favor as does the commentary. According to the Supreme Court  "the role of the courts is to distinguish between biting criticism that merely suppresses demand and copyright infringement, which usurps it." In short, if what you are doing is more like camming and less like a reaction video, you'll have  a harder time making a fair use claim.
In any case, if your goal is to stay out of a courtroom and avoid legal hassles, you won't do that by making a fair use argument. Fair use is a defense that is offered after you have been sued. Netflix will have the right to file a lawsuit (and possibly to issue a DMCA takedown notice).

Sunday, January 31, 2021

Can We Use Apes Clip in Surf Video?

Dear Rich: We are filming a travel series with a professional surfer highlighting important cultural and historic locations. One location is the beach where the ending for Planet of the Apes was filmed (the scene with the Statue of Liberty). We filmed the surfer re-enacting Charlton Heston beating the sand as was done in the original film. We'd like to use 20-30 seconds from Planet of the Apes. Can we claim fair use? 
We think you have a good basis for claiming fair use because you're commenting on the film. Your purpose is transformative -- that is, you're using the clip to highlight the location, not as part of a narrative about anthropomorphic primates. 
Reality check. Unfortunately, it's not enough to say, "This is a fair use, leave us alone." You can only prove fair use in a courtroom after you've been sued. That means that if 20th Century Fox sees your video and wants to hassle you, they can force you to prove fair use in court (an expensive proposition). If you want to use the clip and take your chances, that's understandable. Plenty of clips fall under the radar and Fox lawyers may not wish to devote energy to your claim and instead pursue others with deeper pockets. If you proceed, here are some tips for use of online video: keep the clip as short as possible and if you can, shrink the frame -- for example picture in picture or split-screen. A favorable fair use ruling is more likely the less you take.

Tuesday, January 5, 2021

Are Postage Stamps Public Domain?

Dear Rich: Which (if any) US postage stamp images are in the public domain? I have read that stamps issued prior to 1978 are in the public domain. Is this true?
According to the Copyright Office, U.S. postage stamps issued before 1971 are definitely in the public domain. In 1971, the U.S. Post Office (a federal agency) became the U.S. Postal Service (an independent agency of the executive branch). The new agency's status permitted it to register copyright in stamp images. 
Or did it? There is some confusion surrounding the copyright status of postage stamps issued between January 1, 1971(when the USPS was created) and January 1, 1978 (the year the revised copyright law was enacted). Wikipedia, for example, states that U.S. stamps are "public domain if issued before 31 December 1977." Because we are unable to verify the public domain status of stamps issued during this seven-year period (1971-1978),  the prudent course would be to assume these stamps are protected by copyright. The USPS has a system established for granting rights and permissions for the reproduction of stamps.

Tuesday, December 15, 2020

How Can I Make Sure I Get Credit for My Work?

Dear Rich: I want to copyright a report I researched and wrote and hope to sell to a museum. 
My report includes my collection of 19th-century photographs, most of which are extremely rare. When researchers use the report, I want them to credit me. How do I do that? When I tried to register my report at the Copyright Office, I was told that I could not claim copyright in the photos, only the text. Should I let the Copyright Office switch my registration to merely text and lose all ability to include photographs? 
Let's start with the things you can't do. 
  • You can't claim copyright in photos published before 1925 or in unpublished photos taken by photographers who died before 1950. These photos are in the public domain and free for anyone to copy.
  • You can't claim copyright solely based on your ownership of a photo. Purchasing a print is not the same as purchasing the copyright.
  • You can't register your report with the Copyright Office unless you declare whether your book contains pre-existing works. Pre-existing works might include your public domain photos, a foreword by a third party, or any previously registered or previously published works that are included in your book. The goal is to show what you contributed (the text).
  • You can't require attribution unless you have an agreement such as a license that requires it. (You can sue under the Digital Millennium Copyright Act, however, if the infringer removes copyright management information (CMI).)   
The Creative Commons License. If attribution is your primary concern, you may wish to pursue a Creative Commons license. (You can use their License Chooser to determine the best match for you.) You don't give up your copyright and you don't need a copyright registration. Instead, you permit users to freely copy your text and as a quid pro quo for the free use, the Creative Commons license requires a specific attribution. If the user doesn't provide attribution, the copyright owner can sue for violation of the Creative Commons license agreement, copyright infringement, and violation of the Digital Millennium Copyright Act.

Tuesday, November 17, 2020

Can Nonprofit Use NBA/NCAA Trademarks for Fundraising?

Dear Rich: We are an 
anti-human trafficking nonprofit creating a team-oriented fundraiser for educational purposes. Could "fair use" be applied if our fundraising teams name themselves after clearly trademarked team names like NBA teams or NCAA teams. 
We’d recommend against using the names of basketball teams for fundraising purposes. It’s possible that NCAA or NBA trademark owners would not know (or care) about your use of team trademarks. After all, their primary battle is against counterfeit merchandise manufacturers. But, in the event that the teams do care and consumers are likely to be confused into believing that a basketball team endorses or is associated with your nonprofit, then your use violates trademark law and the trademark owners can demand you stop. You might argue that fundraisers and contributors are sophisticated enough to minimize the likelihood of confusion. That is they understand that NBA and NCAA teams are not associated with your nonprofit. But this is a longshot strategy and we imagine you don't want to defend yourself in a lawsuit.
Why not fair use? "Fair use" is a copyright defense and doesn't apply to trademark disputes. (There is a trademark “fair use” defense but it is also not applicable to your situation.)  If you want to disregard our advice and go ahead with your plan, you might consider a prominent disclaimer to the effect that the NBA and NCAA do not endorse, and are not associated with your use. Keep in mind that disclaimers have little value when used incorrectly. 

Tuesday, November 10, 2020

When Is a Song Published?

Dear Rich: I'm about to submit a copyright application and have a question about whether or not a song is considered published. What exactly is meant by "distributed to the public"? If I send copies to a few people, is that considered "published," or does it have to be a mass distribution, like a sale? 
 Publication occurs when your song is first made available to the public on an unrestricted basis. That is, you (the copyright owner) authorized the distribution, and there are no explicit or implicit limitations for the disclosure of the work. For example, you post a link to a new song on your website, you offer your song at Bandcamp or iTunes, you license your song for an ad, or you sell LPs at a concert. 
Limited publication. The distribution of copies of a work to a definitely selected group with a limited purpose and without the right of diffusion, reproduction, distribution, or sale is a limited publication (an exemption from the publication rule, above). So, for example, sending out a handful of demos to record labels with the restriction, "For evaluation, Not for distribution" or posting the song to an invitation-only website, limiting the listeners, and preventing downloads would not be considered a publication. 
Copyright killer. Before March 1989, the issue of "publication" could be a copyright-killer. That's because copyright could be lost if a work was published without notice. Once Congress dumped this draconian penalty, the question of whether a work was published became less of a  life-and-death affair (though it is still important in disputes over fair use, duration, infringement, registration, and other matters).

Tuesday, October 27, 2020

Should I Register 2020 Vinyl Re-Release or 2005 Original CD?

Dear Rich: My band released a CD in 2005, and we never filed Form SR or PA for the album and underlying works. I am planning a vinyl reissue (with expanded artwork) this year, the songs are in the same order and have been remastered, but the artwork will be slightly different. Should I file the SR and PA for the 2005 release? Or should I treat the 2020 vinyl reissue as a new entity? 
If you're filing Form PA separately (Form PA reflects songwriting), it doesn't matter whether you use the  CD or the vinyl because the compositions are the same on both. (The date for the song publication would be 2005.) In order to register a group of published songs as one "unit of publication," you must meet certain rules.
If you're filing the Form SR separately (Form SR reflects the sound recording), we think you should use your newer remastered vinyl because that is the best sonic version and you will likely use that for downloads going forward. 
If you qualify to file the SR and PA as one application (or you need more information), you'll be best served by using the vinyl version as deposit materials. You can find more on these filing regulations in our Music Law book and in the music copyright lectures, we recorded for Lynda/LinkedIn
P.S. Dept. In case you weren't aware, you acquire copyright regardless of whether you register your music. However, there are many benefits to registration.

Wednesday, October 14, 2020

Squishy Animal Infringement

Dear Rich: I bought several $1 squishy animals and have taken pictures of them and shared the pictures with friends. If I use these pictures in a book do I infringe on the toy company’s trademark? 

It's unlikely that your book will trigger an infringement lawsuit or a response from the toy company. Here's why:

  • Most squishy animals ("SA") have a generic appearance with indistinguishable features. If yours are similar, it's not likely that a toy company would come after you. It's difficult to protect generic designs.
  • If you're making a book that simply displays your collection of SA photos, or you're just going to be distributing your book among friends or relatives, or you don't expect to sell more than a few hundred copies, it's unlikely the toy company will bother going after you even if it had the rights.
  • Unless you've created characters from your SAs and unless those characters became a sensation  (books, movies) you'll probably never hear from the SA manufacturer.

Wednesday, September 30, 2020

A Movie Falls Into the Public Domain ....

Dear Rich: If a movie falls into the public domain, are all of the individual images in it also public domain? What if the image is of a movie star?
Yes, you are free to copy the individual frames or images from a public domain movie without permission. Film elements such as music or promotional photos are also usually public domain as well although, on rare occasions, they may be under separate copyright.
What about movie stars? You are free to copy a movie star's image from a public domain movie without permission (and use it for informational purposes). You need to be careful in one particular instance -- when you are using the movie star for a commercial purpose (that is to endorse a product). That's because all living celebrities and some deceased ones have a right of publicity that permits them exclusive rights for endorsement purposes. 

Monday, September 21, 2020

Do I Have Right to be Listed on Employer's Copyright?

Dear Rich, I wrote a book as part of my employment. While others did provide input, no one else actually wrote any of the content. My employer is requiring that they be listed as the second author. They are also requesting that only they are listed on the copyright. As I understand it, this is a work for hire situation, so they of course should be on the copyright. Do I have a leg to stand on in advocating that I should also be on the copyright?  
If you wrote the book as part of your employment duties, the employer owns the copyright as a work made for hire. According to the Copyright Office, the employer should be listed as the owner (copyright claimant) and as the author on the copyright application.

Wednesday, September 16, 2020

How Lulu Lost Her Mark

Dear Rich: A company in Florida filed a trademark on "Louise Brooks" and has used that to remove all Louise Brooks items off of Etsy in order for its company to sell its own Louise Brooks products. My understanding is that all publicity photos taken back in the 1920s and 1930s were never copyrighted, therefore, in the public domain, especially if the photographer is unidentified. Is this legal for a company to suddenly do this? Louise Brooks has never had an active estate before ... to the best of my knowledge
It's a tribute to Mary Louise "Lulu" Brooks (who would have been 114 this year), that merchandise with her image is still popular. It's probably attributable to her jazz icon persona, the availability of public domain imagery, her always-stylish bob haircut, and the fact that her estate has not exerted control over the sale of Brooks goods (the estate is not behind the series of takedowns you mentioned). Instead, vendors had operated laissez-faire, selling a wide range of goods until December 2019, when a Florida company acquired the exclusive right to use the Louise Brooks trademark on over 40 types of merchandise (listed below). 
The story behind the trademark. A company from Coral Gables, Florida applied for the Louise Brooks trademark in 2018. The application seemed doomed in February 2019, when the USPTO trademark examiner issued a final office action (FOA) denying registration. The rejection was based on Section 1502(a) of the trademark law -- registration is denied to marks that falsely suggest a connection with a person or an institution (and includes a four-part test). In this case, the examiner stated that "the applied-for mark shows a false suggestion of a connection with the famous actress, Louise Brooks ..."). An FOA rejection is usually the end of the road for most applicants but in August 2019, the Florida company sought reconsideration (on the basis that Brooks had left no estate to assert rights to her name) and the USPTO reversed its stand and approved the application. This gives the Florida company the right to halt sales of listed goods sold under the Louise Brooks trademark. We contacted the USPTO for guidance as to why the FOA was reversed but the examining attorney directed us back to the documentation. Hmmm.
The public domain. You're correct that Louise Brooks publicity photos are probably public domain. Any published photos pre-dating 1925 are automatically public domain (although Brooks' career didn't begin until 1925). Publicity photos published after 1924 were rarely renewed (a requirement for works published before 1964) and they often did not include a copyright notice (a requirement for works published before March 1989). So, many, if not most of the popular Brooks photos appear to be public domain.
Here's where things go south. Most vendors of Louise Brooks merchandise are not using "Louise Brooks" as a trademark -- that is, they're not using the name to indicate the source of the goods. They're using it to describe the goods -- for example, to identify Brooks as the person in the poster or on the t-shirt. Under the trademark law, there's no infringement if "Louise Brooks" is "used fairly and in good faith only to describe the goods or services of such party." 15 USC Sec. 1115(b)(4)  This legal subtlety is lost when companies such as Etsy and eBay issue takedowns at the behest of trademark owners. Their approach is to issue blanket takedowns and to let the parties sort it out under the DMCA or similar laws. So, the combination of trademark ownership and online retail practices has in effect, granted the Florida company the equivalent of Louise Brooks' right of publicity.
What to do? Federal law permits you to use public domain imagery of Louise Brooks and to use "Louise Brooks" to describe it. But that may not help if you are forced to defend yourself in a lawsuit, or if an online store turns a deaf ear to your predicament. That's why some Louise Brooks vendors use variations on the name, for example, Lulu, Mary Louise, Flapper Icon, or "Retro Woman," because those names are unlikely to be confused with the "Louise Brooks" trademark. It's a wonky workaround but it should suffice.
List of goods that are part of the Louise Brooks trademark registration.
(1) “Works of creative expression, namely, photographs, paintings and printed matter, namely, graphic design prints; art prints; graphic and printed art reproductions; lithographic works of art; calendars; greeting cards; photo albums; books featuring art reproductions and graphic prints; magazines featuring art reproductions and graphic prints; pictures; portraits; postcards; posters; stationery; stickers; decorative stickers; iron-on and plastic transfers; bumper stickers; decals; wrapping paper; pens; business cards,” in International Class 16; and (2) “Clothing, namely, jackets, T-shirts, shorts, pants, aprons; chefs’ clothing, namely, aprons; clothing for sports, namely, jackets, pants, short pants, jerseys, hats and shirts; drawers, gloves, headbands, hoods; ready-made clothing, namely, jackets, sport coats, pants, short pants and shirts; belts, footwear, sneakers, basketball sneakers,” in International Class 25.
That's a laundry list of goods and much of it is available at the trademark owner's website

Friday, September 11, 2020

Does TuneCore Charge a Commission?

Dear Rich: I am an independent artist, possessing all of my songs and sound recording material. For uploading my music to Spotify and other platforms I use a music distribution company called Tunecore, which states ''Keep 100% of your sales revenue & copyrights''. If I want to have a Sync Licensing for a TV or movie of one of the music that I licensed to the TuneCore service, would I have any problem or reduction of my percentage?

According to TuneCore, the service allows "any musician to sell their songs worldwide while keeping 100% of their sales revenue." In other words, revenue from digital stores like iTunes, Spotify, Amazon Music, YouTube, and TikTok is not commissioned by TuneCore. However, if you sign up for TuneCore Publishing Administration -- a separate arrangement that covers publishing and sync royalties -- TuneCore acquires exclusive synchronization rights and the company takes a commission of 20% for fees and royalties related to synchronization uses. That's in addition to a $75 setup fee, and a 15% commission from publishing and performance royalties. In summary, if TuneCore distributes your music to online stores, you get 100% of revenue, but if you opt for non-sales publishing/licensing revenue, TuneCore applies a commission. (We discuss the various publishing income sources in this blog entry.)

Friday, September 4, 2020

Do I Need Clearance in the U.S. if I Acquire Rights from a Public Domain Source Abroad?


Dear Rich: I'm really hoping you can answer my question. I'm in the process of publishing a book that will contain lots of images, mostly of artworks by one artist in particular. The artist is French, I am British, and my publisher is based in the U.S. The artist died over 70 years ago, and in Britain and Europe, his works are out of copyright. But in the U.S., there's a copyright extension on the works. If I, the British author, am getting images from European suppliers, for my American-published book, do I have to pay for copyright clearance?
Yes, you will need U.S. clearance for some of the works. Although most countries have placed the artist's works in the public domain (based on the life+70 years rule), the U.S. follows a different course. A work first published outside the U.S. (before 1978) is protected in the U.S. for 95 years from publication. That puts all of the artist's works published before 1925 in the public domain in the U.S. Because your publisher is distributing the book in the U.S. you will need clearance for all works published after 1924, regardless of where you obtained the source artwork.

Tuesday, August 18, 2020

Is Attribution Needed When Using Public Domain Materials?

Dear Rich: I have just finished writing a fantasy novel. I have used public domain quotes within the novel (from Aristotle, Lincoln, etc.), but because the world of the novel is not Earth, I claim the quotes are from some nonexistent book that fits in the novel's world. Is this hinky?

Your suggested use is not hinky. According to the Supreme Court, there is no legal requirement to provide attribution when public domain works are copied and placed into new works.

Tuesday, July 7, 2020

Can Auto Company Use Same Name as Band?

Dear Rich: A musician friend of mine has had a  musical project for 20+ years. He uses a name that he made up (not a real word) and he has included the name on several albums (on several different labels). He has achieved some international acclaim. Well, along comes a Korean automobile company, announcing that they have a new camper/car with the same name. I would hope he has some claim to the name, as he has widely published it for decades now. Did he have to file an official application for a trademark for that name? I know of a band that was paid several thousand dollars to give up its name to another band. Can my friend go to the auto company and get them to basically pay him for the use of the name? Alternatively, and perhaps more reasonably, should he simply be staking a claim to the name to prevent the auto manufacturer from coming after him and claiming some kind of bogus trademark infringement?
Your friend isn't the first musician to share a name with an automobile. Consider REO Speedwagon, The Valiants, The Road Runners, The Avantis, The Mustangs, The Rivieras, The Ferraris, The Lincolns, and our musical favorites, Galaxie 500. The difference is that in your friend's case, he was using the name before the car existed. 
Is there a claim against the car company? Even though your friend may have invented the name and used it first, we don't believe he has a trademark claim against the car company. That's because trademark disputes are resolved using a likelihood of confusion standard. Are purchasers of the Korean car likely to be confused as to whether it originated with your friend's musical project? Are consumers of your friend's records likely to be confused into thinking that the source for the music is the Korean car company? Because the categories of goods are so different (and don't compete with each other), and because purchasers of cars and music are discerning enough to distinguish between the two, we think that consumer confusion is unlikely. 
Money from the car company? Because confusion is unlikely, the car company need not pay your friend for the right to use the name. The example you mentioned -- one band paying off another band for the right to use the name -- differs from your friend's situation because consumer confusion is much more likely when two bands have the same name. That doesn't mean car companies can name their vehicles, The Beyonce, or the Beatles. Using a famous band's name implies endorsement and violates unfair business and right of publicity laws.
Should the name be registered? Federal trademark registration offers benefits but is not mandatory. If your friend's right to the name is challenged, the most important factor will be evidence of where and when he used it in commerce -- for example, advertisements, reviews, discography, etc.

Tuesday, June 30, 2020

Record Label Trademark: What's the Proper Class?

Dear Rich: I am trying to trademark my record label name, but am stuck on which class of goods best describes what I want to sell as a label. I plan on selling vinyl records and digital downloads. Which goods class would be most appropriate?

International Class 009 (IC 009 - Electrical and Scientific Apparatus) is your best choice if you are applying to federally register your record label trademark. Your goods and services (G&S) would be, "musical sound recordings." A trademark examiner -- the government lawyer who examines your application -- may require a more descriptive listing of goods and may even suggest certain goods, for example, "pre-recorded phonograph records, and downloadable music sound recordings."
Teach a man to fish dept. There a few ways to determine the proper class. One method is to search the ID Manual at the USPTO website. Type in your goods or services -- for example "recordings"-- and the search will uncover the relevant classes. Alternatively, when you apply online for a federal trademark using the TEAS system, you will be offered the chance to search for your class (and copy and paste the information into your application). Finally, you can either find (or confirm) the right class by searching the trademark database for other companies that sell similar products.  For example, we chose Basic Word Mark Searchand searched first for "Polygram" and then, "CBS Records." The registrations appeared and confirm Class IC 009. Note, record labels that also offer recording studio services may want to add a second class (IC 041 - Education and Entertainment Services).

Tuesday, June 16, 2020

Will They Sue Our Church for Infringement?

Dear Rich: I work at a church and am conducting our services online. I do a PowerPoint and export it to video. If we are not making money off the videos (they are not monetized on YouTube and won't be), and we are a non-profit, is it a fair use of images to include pictures as long as I reference the source? Can we argue that a church service is educational on a spiritual level? 
Before we provide our standard fair use explanation, let's make a short risk analysis. What are the odds of being discovered, and what are the chances that the copyright owners will pursue an action against your church?
Seek, and ye shall find. As copyright owners employ more sophisticated copyright bots (content recognition software), the chances increase that infringement will be discovered. On the other hand, Content-ID (Google's YouTube bot) searches for audio and video but does not seek out individual images within a video. So, the chances of your video being dinged by a bot are slim. (However, beware that if you post an unauthorized image on a web page, it is easy to discover using Google's Reverse Image Search.) Two other factors can influence whether an infringement is identified: disgruntled employees, competitors, or others may report the offense, and the more popular your work becomes, the more likely you become a target for a takedown. 
Vengeance is mine. What are the chances that a copyright owner -- once the infringement is discovered -- will pursue a claim against your church? Apparently, copyright owners are not shy about suing churches, causing many religious institutions to reach into the collection box to pay off damage awards.
Thou shalt not steal. Does fair use shield you from a lawsuit? Even if your potential infringement qualified as fair use (and we lack the details to guess), that does not automatically shield you from a lawsuit. That's because fair use can only be determined by a court. In other words, a fair use defense is usually useless if you can't afford to "lawyer up."
The wise are cautious and avoid danger. Although the chances of a copyright owner discovering infringing images within your video are slim, and although your use may ultimately qualify for fair use, we think the more prudent course is to be copyright compliant. Fortunately, there are numerous Internet resources to help you do that, including church copyright guidelines, tips for finding free Christian imagery, church copyright fact sheets, religious copyright compliance suggestions, public domain Christian clipart, and lots more.
PS. And in other religious copyright news, this just in ...

Sunday, May 10, 2020

While He Was Sleeping ...

Dear Rich staff busy at work on your question
Dear Rich: 35 years ago, when I was five, a newspaper photographer took a picture of me while I was sleeping. The picture was for publication though I clearly did not give permission. I recently found this picture online (tagged to me) and I bought the original picture. Now, I want all digital pictures online removed. The photographer died 30 years ago. Assuming the photographer owned the copyright, can I claim it now since I am the subject of the picture?
Copyright law has no provision that permits you to acquire rights to a photo simply because you're the subject of the photo. The exception is a selfie in which the photographer and the subject are the same (provided you're not a monkey). The copyright can still be acquired by a transfer (assignment) but you'll need to track down the copyright owner -- possibly the newspaper under work for hire rules, or the photographer's estate. There are, however, three other legal bases for prohibiting publication of the photo.
Defamation. Defamation occurs if publishing the photo creates a false impression and injures your reputation. Unless the photo materially ridicules, humiliates, or subjects you to contempt, you'll have a hard time claiming defamation.
Invasion of privacy. Your privacy can be invaded if the photo falsely portrays you in a highly offensive manner; if the photo discloses private or embarrassing facts about you without relation to a legitimate public concern; or if the photographer intruded on you to take the photo in a situation where you had a reasonable expectation of privacy. However, it is not an invasion of privacy to photograph someone in a public place or at any event where the public is invited. Such photos can be used freely for informational purposes, provided that the use does not defame or hold you up to a false light. Because the photo was published 35 years ago and you have not objected until now, we think you may have a hard time claiming your privacy is invaded.
Right of publicity. The right of publicity prohibits using your image to imply that you endorse a product. The use of the photo for news, information, or public interest purposes is not a violation of the right of publicity. If the photo is used to sell products (for example, a mattress ad) you could have a claim for violation of your right of publicity.

Thursday, April 16, 2020

Is "The Naked Kiss" Missing Copyright Notice?

Criterion's pristine version
of "The Naked Kiss"
Dear Rich: I'm having a debate over the legitimacy of a chain of title of the motion picture, "The Naked Kiss" (1964). There are very clear records in the post-1978 Copyright Office database indicating copyright ownership but this person is insisting it is an invalid copyright because there is no “©” insignia anywhere on head or tail. I’ve found a lot of confusion about this, but my understanding is that even without an insignia, its creator could have copyrighted it. Does the absence of the insignia mean that the film is public domain?
Nowadays, the publication of a film without copyright notice won't effect ownership, but in 1964, the penalty was draconian. If the copyright owner failed to include a copyright notice on "The Naked Kiss," then it would likely be in the public domain. This was the rule until March 1, 1989, when the notice requirement was terminated.
Is the copyright notice missing? Distributors of public domain films have considered "The Naked Kiss" as PD for at least twenty years. Ditto for online sources such as the Internet Archives. The IMDB entry states, "No copyright year is shown at the beginning/end credits." [Link may require a subscription.] A proper copyright notice includes (1) the copyright symbol © or the word, "copyright", (2) the year of first publication, and (3) the copyright owner's name. Under the copyright law effective when "The Naked Kiss" debuted, a notice was defective if the date was missing.
What about the copyright records? Documents filed at the Copyright Office as recently as 2011 indicate that various parties controlled copyright to "The Naked Kiss". Yet, if they control copyright why do they permit so many vendors to distribute the film freely? It may be because a lawsuit over the film (we couldn't find any) would officially designate it as PD thereby denying future licensing revenue.

Sunday, April 5, 2020

Can I Copy from an Unpublished Library Manuscript?

Dear Rich: I am in the final stages of publishing an academic monograph. I am seeking to cite a few lines of text from an unpublished manuscript that is held by the Beinecke Library. Is depositing the book at the library a form of "publishing?" I asked the estate for permission to publish small citations but they claimed I would give away the plot and thus their ability to make money on it if they were to publish. A few other scholars have published on the work so they have given away the plot. Would my publishing on this work be fair use? If I don't cite specific passages from the text but paraphrase would that allow me to publish on that work?
If you are simply copying a paragraph or two (say 150 - 200 words) for an academic monograph, a court is likely to consider it fair use because your use is transformative (for commentary) and your borrowing is minimal. The fact that the work is unpublished weighs against fair use but is not by itself dispositive. (BTW, depositing an unpublished manuscript in a library doesn't amount to publication for copyright purposes.) As for paraphrasing and revealing the plot, we'll get to that, below. But before we digress, we must remind you that a judge may disagree with our opinion -- only a court can determine fair use -- and proving fair use can be an expensive proposition.
Paraphrasing. We don't recommend paraphrasing as a means of absolving you from liability. As one court stated, “We recognize that even in the absence of closely similar language, courts have found copyright infringement on the basis of “recognizable paraphrases.”
Can you reveal the plot? If you agreed not to disclose the plot -- for example, you were required to sign an agreement to access the unpublished work -- then that agreement would determine your rights (especially if it forbade copying). Alternatively, if what you disclosed of the plot was considered the heart of the unpublished manuscript, it may weigh against fair use. Otherwise, we don't see how your discussion of the plot for an academic monograph would amount to infringement, especially if others have disclosed it and the manuscript is available to the public. (The results might differ if you were a fiction writer borrowing the plot.) And, of course, some plots -- boy meets girl, boy loses girl, boy gets girl -- are so stock, that they are considered merely unprotectable "ideas," not original expressions, a theory best expressed in this case