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

Saturday, March 28, 2020

Can I Use James Joyce Case to Justify Copying?

Dear Rich: I am an Australian author now based on Italy. I have written a biography of a major Italian journalist with the permission/collaboration of his publisher and newspaper, obtained by my former Australian publisher, which approved the manuscript for publication. Unfortunately, very similar to the Shloss case, his heir who inherited the copyright to his work has refused use of the archive material which is central to the biography and I cannot publish the book. Can I use the Shloss case to look for an American publisher?
We don't think you'll have much success using the Shloss case as justification for your borrowing -- that is unless, like Carol Shloss, you're willing to take on your adversary in an expensive lawsuit.
The Shloss case. Shloss v. Sweeney (aka Shloss v. Estate of Joyce) was filed by Carol Shloss, a scholar of James Joyce, who had written a book about Lucia Joyce, James's' daughter. Shloss and her publisher were pressured by Joyce's estate to remove published and unpublished material relating to James and Lucia Joyce. Later, Shloss wanted to publish the excised material as an electronic supplement to the book and she asked a federal court to determine whether she had the right to do so. Shloss's lead attorney, Lawrence Lessig was seeking "a clear statement from the court that such academic use of copyrighted materials is protected under fair use.”
No precedent. Shloss succeded in getting more than she wanted. After failing to knock the lawsuit away with a Motion to Strike, the Joyce estate agreed to settle, removing their objections to the publication of the deleted material, granting Shloss more rights than she originally requested, and ultimately (after a court order) paying $240,000 to compensate Shloss for her legal fees. But as Lessig indicates, even though the case was a victory for fair use, it did not set a legal precedent. That's because the parties settled the matter, not the courts. Unless you can marshall legal forces like the Stanford Fair Use Project, citing the Shloss case will have little value.

Friday, March 20, 2020

Does Coronavirus Trigger Copyright Exemption?

Dear Rich: I am writing on behalf of a large group of film professors whose colleges and universities are contemplating moving instruction online due to Coronavirus concerns. Can we temporarily move our face-to-face screenings online without violating copyright law? Does the 2018 "Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies" allow us to rip DVDs for this purpose?
The coronavirus creates unchartered territory for copyright lawyers. Fortunately, an assortment of college, university, and public librarians have issued a Public Statement of Library Copyright Specialists: Fair Use & Emergency Remote Teaching & Research. Although the statement did not address face-to-face screenings directly, it did provide some guidance for fair use and circumvention.
Fair use.  As for fair use, the librarians wrote:
"While there are no fair use cases squarely addressing copying to help minimize a public health crisis, the other wide variety of public benefits cited by courts leads us to believe that this purpose would weigh extremely heavily in favor of fair use."
We agree and suggest that your adherence to the statement's principles, including documentation of your efforts will go a long way to heading off potential litigation. We would also suggest that you follow the standards presented in 17 U.S. Code Sec. 110 (2) regarding the prevention of unauthorized copying or dissemination.
Circumvention. As for ripping CDs, the statement concludes:
"[T]he current exemptions [to DMCA circumvention rules] extend only to copying “short portions” of motion pictures for use in certain types of teaching, not to copying entire works, even when doing so is clearly fair use. Courts disagree on whether circumvention violates the DMCA when the underlying use is non-infringing (for example, because of fair use) and on what constitutes circumvention."

Friday, March 13, 2020

Is "War with the Newts" in the Public Domain?

Dear Rich: Is the 1936 novel, War with the Newts, by Karel Čapek copyrighted? Can I write (or legally sell) a screenplay based on the book?
War with the Newts fell into the public domain in most countries on January 1, 2009, 70 years after Karel Čapek's death in 1938. The book had been in the U.S. public domain, but copyright was restored in the United States until January 1, 2032. In other words, you'll need permission currently to sell your screenplay in the U.S.
Why isn't it in the public domain in the U.S.? When the United States passed the Uruguay Round Agreements Act (URAA), it restored copyright in foreign works like War with the Newts that, as of 1996, had fallen into the public domain in the U.S because of a failure to comply with U.S. formalities (apparently the U.S. publisher failed to renew War with the Newts). Copyright was restored in works like this, and they were given a copyright term of 95 years from first publication. To qualify for this extended term: (1) the author had to be a non-U.S. citizen, (2) the book could not have been published in the U.S. within 30 days after its publication abroad, and (3) the book needed to still be in copyright in Czechoslavakia as of January 1, 1996. We believe that War with the Newts meets these qualifications and that copyright protection lasts for 95 years from first publication. 
What about the translation? The 1937 translation of War with the Newts qualifies for separate copyright protection and would also qualify for a 95-year copyright term. For more information on determining public domain status, check out Steve Fishman's The Public Domain, The: How to Find & Use Copyright-Free Writings, Music, Art & More.

Thursday, February 27, 2020

How Can I Stop Colorizers From "Stealing" My Antique Photo Collection?

Dear Rich: I have an extensive collection of original antique photo prints. Some are art photos, some are amateur/snapshot photos, some are news photos from Acme and other agencies. I foolishly posted a few on Pinterest a long time ago without watermarks. There are colorizers who swipe images without permission, colorize them, then present the result as their copyrighted art. Instagram has stopped removing colorizations of my photos when I report them saying I can't prove I hold the copyright to the original. I realize the news photos are copyrighted by Getty most likely (they charge $100 per hour to find out), but what about the art photos and private amateur photos? How do I establish copyright to protect my collection?
Owning a photographic print may have value as a vintage collectible but in order for you to stop colorizers from copying and modifying your collection, you need to acquire copyright in the photos. That's unlikely for two reasons: (1) most of the photos are likely in the public domain in which case, no one can claim copyright, and (2) if copyright still existed for some of the photos, you would need to track down the owner (the photographer or the person or company who acquired it from the photographer) and buy the rights. That's a considerable expenditure of time and money.
If the photos are public domain, how can Getty claim copyright? As the Library of Congress explains (in regard to Acme photos), news photos published before 1963 are likely public domain because they weren't renewed. Getty cannot assert copyright in public domain pictures but they may be betting that users would rather pay the licensing fee versus proving that copyright has expired. In short, users are paying to access high-quality scans of vintage photos.
If the photos are public domain, how can colorizers claim copyright?
As we explained a few years ago, it is possible to register a colorized black and white photo with the Copyright Office provided that the results "reveal a certain minimum amount of individual creative human authorship." Analogizing as to how the Copyright Office processes colorized motion pictures, the colorizer would have to demonstrate (1) numerous color selections made from an extensive color inventory; (2) a range of additional colors that is more than a trivial variation, and (3) that the overall appearance of the picture must be modified. A colorized image is considered a derivative work and the copyright extends only to the color choices. If the underlying work is not in the public domain, the colorizer will need permission from the copyright owner to reproduce or sell the derivative (or risk a charge of infringement).

Wednesday, February 19, 2020

Can I Use Old Trademarks on T-Shirts?

Dear Rich: I'm a designer and antique collector. I have an idea to recreate old logos, screenprint them on t-shirts and sell them on an e-commerce website. I understand if these logos were trademarked before 1924 they are in the public domain and free to use for commercial purposes. But if this company is still around and uses a new, redesigned logo, am I allowed to use that company name in the product description of my e-commerce website and advertisements? For example, I might name it something like "Vintage COMPANY NAME T-shirt with Distressed Logo." 
Apples and Oranges? You may be confusing trademarks and copyrights and we think you should put your t-shirt plans on hold until you sort things out.
What's the diff? Copyright, which protects literature, music, art, and similar expressions, has a limited shelf life (generally 95 years from first publication). That's why any copyrighted work first published in the United States before 1925 is now in the public domain and free for you to print on a t-shirt.
Trademark law, however, protects any distinctive word, phrase, logo, graphic symbol, or other device that is used to identify a product or service. Trademark rights don't expire as long as the trademark owner continues to use the mark in commerce. So, vintage trademarks, once used by existing companies may still be protectable, particularly if they contain a word mark that is still in use or a logo that has been freshened up over the years.
Abandonment. If, however, the vintage mark is for a product that is no longer in existence, you may be free to use it, provided the mark has been abandoned. Abandonment occurs when the mark is no longer used in commerce and there is sufficient evidence that the owner does not intend to use it. Under the Lanham Act, a trademark is presumed to be abandoned after three years of nonuse. This presumption does not mean that the mark is automatically classified as abandoned after three years of nonuse. It means that the burden of proof shifts to the owner of the mark to prove it is not abandoned. The owner must prove an intention to resume commercial use.
P.S. Dept. Beware, some previously abandoned marks may have been revived as zombie trademarks.

Tuesday, February 11, 2020

Is D.H. Lawrence Poem in the Public Domain?

Dear Rich: We are publishing a book in conjunction with a museum exhibit. The artwork in the exhibit was inspired by D.H. Lawrence's poem, "Whales Weep Not!" On the website, Poets.org, they indicated the poem may still be under copyright by the poet's estate (Copyright © 1964, 1971 by Angela Ravagli and C. M. Weekly, Executors of the Estate of Frieda Lawrence Ravagli. Used by permission of Viking Penguin, a division of Penguin Books USA Inc.) Is the poem in the public domain or do we need permission? 
If the copyright for "Whales Weep Not!" was renewed, it is still under copyright and will not fall into the public domain for several years. The poem was published posthumously in 1932 in the collection, "Last Poems" (Lawrence died in 1930). Copyright law protects such works for 95 years from first publication, provided that it was timely renewed. However, we couldn't find evidence of renewal of "Last Poems" at the Stanford Renewal database. That's not conclusive ("Absence of evidence isn't evidence of absence") and may be due to an error in data conversion or imprecise searching. (The estate had been diligent in renewing Lawrence's other works, including his poetry.) The only definitive proof would be to pay for a certified Copyright Office search.