Friday, November 29, 2024
007: License to Infringe
Saturday, September 21, 2024
Release Me: Interview Consents and Multiple Uses
Tuesday, September 17, 2024
Publicly Posted PowerPoint ≠ Public Domain
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.
Sunday, August 11, 2024
Baby (Has Finally) Come Home!
Listen to Bessie Smith |
Friday, July 19, 2024
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 |
Saturday, May 25, 2024
We're Off to Sue the Wizard
Tuesday, April 9, 2024
Fair Use: Yes or No?
Trick photograph of man with two heads (1901) |
Saturday, March 30, 2024
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.") |
Wednesday, February 21, 2024
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.
Tuesday, January 16, 2024
Matricide, Movies and Salinger
Saturday, December 9, 2023
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?
- 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.
Tuesday, September 26, 2023
Does Copyright Notice Protect a Website?
- Ensure you own or have permission to use your website content.
- Include copyright notice on each of your web pages (It may help prove that the infringer was aware you claimed copyright).
- Include a method for contacting you if someone wants to license content.
- Gather evidence of copying. Prepare side-by-side tables showing your site and the copied site.
- 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.
- If you can afford it, have an attorney write a cease and desist letter.
- 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.
- Review the facts before you make threats. Some who copy may have fair use defenses.
- Pick your fights carefully. Go after those (1) inflicting the most damage competitively or (2) high-profile copying that you can't ignore.
Sunday, August 27, 2023
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.Thursday, July 27, 2023
Use Frida's Paintings? (Yes!) Use Frida's Name? (Maybe)
Frida Kahlo age 12 (1919) |
Tuesday, June 20, 2023
Take What You Want From Sherwood Forest
Friday, April 7, 2023
Can They Back Out of the Deal?
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Wednesday, March 15, 2023
Are Ads in Old Magazines Protected by Copyright?
Friday, February 24, 2023
Bobbleheads and Baseball Cards: Does Pairing Make it Less Risky?
Bo Jackson photo by Chris Putnam (altered) |
Monday, February 6, 2023
Civil War Letters Still Copyrighted?
Ulysses S. Grant - Virginia, June 1864 |
- 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.
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.
Company:____________________________________________ ____________________
Signature Date
____________________________________________
Typed or Printed Name
____________________________________________
Title
Illustrator:
____________________________________________ ____________________
Signature Date