Does Copyright Notice Protect a Website?

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

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

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

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

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

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

Converting Chinaware Designs to Needlepoint Patterns: Problems Getting Permission

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

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

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

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

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

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

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

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

Frida Kahlo age 12 (1919)

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

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

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

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

Take What You Want From Sherwood Forest

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

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

Can They Back Out of the Deal?

Our favorite negotiation text

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

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

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

Are Ads in Old Magazines Protected by Copyright?

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

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

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

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

Bo Jackson photo by Chris Putnam (altered)

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

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

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

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

Civil War Letters Still Copyrighted?

Ulysses S. Grant -  Virginia, June 1864

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

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

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

       

Contract Template for Graphic Book Cover Artist

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

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

Cover Art Illustration Agreement

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

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

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

 
Company:

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

Does Renewal Apply to Both Published and Unpublished Works?

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

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

Natural v. Synthetic Tests: Copyright-Protected?

Dear Rich: I have a website that helps people determine whether jewelry and gemstones are natural or synthetic. I am redoing the site and want to eliminate some of the sources listed for the various tests. I've changed the wording so that it is not similar to the source material, but it is still the same test. I would like to know if this is fair use, as many of these tests are standard practice in the industry. Also, we've created something original because we are taking points from various sources and compiling them with our own explanations to create a relatively unique webpage.  

You're not infringing if you are describing common tests and standards used within an industry and you have made an attempt to distinguish yourself from the source material. That is, you are not copying verbatim. Copyright law won't protect "any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied." So, the fact that natural pearls are grittier than fake pearls cannot be copyright-protected. In addition, if there are a limited number of ways of describing the test -- for example, that natural diamonds can cut glass -- you will rarely run into a problem.

Fair use? If you are challenged over your site, your most robust defense would be that the tests are not copyrightable. Fair use -- which permits the unauthorized use of copyrightable material for specific purposes -- is likely not an issue.

Police Photo: Public Domain or Fair Use?

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

Public domain? Although state and local police are not prohibited from claiming copyright in their photos the answer depends on the state where the police department is located. Some states like New York, Illinois, and Michigan (called "closed copyright" states) actively pursue copyright for employee-created works. Other states like Virginia, California, and Massachusetts (called "open copyright" states) have a policy that makes state documents presumptively public domain. The Harvard Library has put together a map indicating each state's policy. It's also possible that the police department has created its own policy and granted blanket permission for informational purposes, or that licensing only requires attribution. BTW, photos by federal law enforcement are public domain.

Fair Use? Publication of the photo in your book may qualify as fair use if it provides commentary, expresses ideas “beyond what [the [photographer] expressed in his photographs," or disputes or makes fun of the imagery. When ruling on fair use, courts consider four factors. But, beware, if you claim fair use, you'll likely have to prove your claim in court, an expensive proposition. 

What to do? If it's unlikely that the police department will see your book (for example, the photo isn't on the cover) and you're utilizing eBooks and print-on-demand services, you can test the waters by using the image without permission. That way, if a challenge develops, it will be easier to remove the photo without losing a print run. If you're hoping your book becomes popular, or that you sign with a publisher, or you live in a closed copyright state, then, it's best to get permission from the police department.

P.S. Dept. You can find a thorough review of crime photography and copyright issues here. 

No Registration at Time of 'Infringement'

Types of Creative Commons licenses

Dear Rich: I reproduced a Creative Commons photograph on my blog. The photographer posted the picture to use for free. A few weeks later, I got an email from a company representing the photographer saying that I was infringing because I didn't list the photographer's name. They wanted $750 to settle. I took the photo down immediately. I asked for proof that they owned the copyright, and they wrote back that the registration was pending and that I had 21 days to respond before they handed it over to their attorneys.

The not-so-good news is that you'll probably have to pay something to make this go away. The good news is that you should be able to bargain your way down.

Copyright and credit. The photographer's Creative Commons license allows anyone to reproduce his image provided that the user gives appropriate credit, provides a link to the license, and indicates if changes were made. In other words, if you credit the photographer, you're not infringing. You failed to provide attribution, so you're not entitled to the license, i.e. you are infringing, The company can sue you and $750 is the minimum amount of statutory damages that a judge can award for copyright infringement. 

Registration and bargaining. If the copyright wasn't registered before you posted the picture (or within three months of the first publication of the photo), the photographer is not entitled to statutory damages (the $750 figure). Instead, he can seek actual damages. Actual damages are equal to "the amount a willing buyer would have been reasonably required to pay a willing seller at the time of the infringement for the actual use." In other words, how much does the photographer earn from a similar license? Because the photographer offers the license for free (as long as attribution is provided), the damages are difficult to discern and probably are less than $750. We recommend that you try bargaining the settlement figure down to $250 using the arguments above. And, of course, when negotiating, never split the difference.

Compulsory Licensing vs. Exclusive Licensing

Dear Rich: I was wondering how compulsory licensing fits with exclusive licensing. In other words, if a song is exclusively licensed for a movie, for example, can someone still license it to record another version? I remember reading somewhere about some songwriters setting licensing fees so high as to exclude many. Excluding statutory fees, is there any standard for such song license fees, or is it completely “willy-nilly”? 

A license agreement is exclusive if you are the only person who has the right to use the work as described in the agreement. For example, if you enter into an agreement with the owner of the song, Strangers in the Night for the exclusive use of the song in a movie, no one else could use the song in another movie. Exclusivity can be as narrow or as broad as you choose. For example, you could narrow the exclusivity by limiting the exclusive right to use Strangers in the Night in horror genre movies. Or you could expand the exclusivity of your license agreement by obtaining the exclusive right to use the song in movies and television shows.

Compulsory licenses are mandatory licenses established by law. A copyright owner must grant a compulsory license, provided that you follow certain legal rules and pay fees. For example, once Strangers in the Night has been recorded and distributed to the public on recordings, any person or group is entitled to record and distribute a cover of the song without obtaining the song owner's consent. Compulsory licenses are nonexclusive (meaning others can also cover Strangers in the Night, just like you can).

Long answer. So, the fact that a song has been exclusively licensed for a movie doesn't, by itself, preclude your ability to get the compulsory license for a cover version. But, keep in mind, if the song has never been "recorded and distributed to the public on recordings," you won't be able to obtain the compulsory license. 

Example: A song was used in a movie but never released on a soundtrack or other recording format. It would not qualify for the compulsory license. You would have to wait until the song owner released the song on a recording distributed to the public.

To take advantage of the cover song compulsory license, a notice must be sent to the copyright owner along with a fee set by the U.S. Copyright Office, known as the statutory fee or statutory rate. The recording fee (in 2022) is 9.1 cents per song (or 1.75 cents per minute of playing time). Alternatively, you can use online services such as Songfile.

How Do I Locate Image Associated With a Copyright Registration?

Dear Rich: If I'm provided with a registration number for a visual art's copyright, how can I check its image? I have tried searching on www.copyright.gov, but the result doesn't include the image.

The Copyright Office Public Records Portal does not provide copies of the images, books, movies, or other copyrighted materials registered under copyright law. These works are considered deposit materials (because the registrant deposits copies with the Copyright Office), and you must request them from the Research and Certification Section. (Keep in mind that the Copyright Office does not retain all deposited works for copyright registration.) The Copyright Office will only provide deposit materials in three situations: (1) you are the copyright owner (and can prove it), (2) you are preparing for litigation, and you complete the Copyright Office Litigation Statement Form, or (3) A court order is issued for the deposited material. All of this information (and more) is provided in Copyright Circular 6.

Can I Publish Interior Photo of Museum Without Permission?

Interior Entrance to the Department of Interior

Dear Rich: Do we need any kind of release to use a photo of an interior entrance in a new and very famous museum for use in a print-only format. The topic of our publication is the museum. The authors found the image on the web. I can’t find any caption with credit / © language . . . on the web.

Getting permission from the photographer would eliminate any risk resulting from your publication. But if you can't get permission,  you may have a reasonable fair use argument.

Fair use. Reproducing the image without the copyright owner's permission is an infringement unless you can claim fair use. If we consider the four fair use factors, the first factor, the purpose and character of the use, weighs in favor of fair use because your book is for purposes such as criticism, comment, reporting, and teaching, all reasons provided in the notes to the fair use statute. As to the second factor, the nature of the copyrighted work, courts generally consider photographs as creative works, unless, as might be the case with your photo, the photo is more documentary in nature and does not “showcase the original artistic expression of the photographer.” (See DeFontbrune v. Wofsy in which museum catalog photos of Picasso artworks were reproduced). Assuming the photograph is basically a documentation of the entrance, this second factor may weigh in your favor as well. The third factor, the amount and substantiality of the work used, weighs in favor of the photographer because we imagine you will be using the complete photograph, unaltered. (See Golden v. Michael Grecco Prods in which promotional photos of Xena the Warrior Princess were used in a blog post.) The fourth factor, the effect of the use upon the potential market, is difficult to call because we're not clear as to the source of the photo, whether the photographer has exploited the image, and whether the photo and the museum book compete in any manner.

If you go with the photo ... You can strengthen your fair use claim by reducing the size of the image (thumbnail is best) and you can demonstrate your good faith (which may help lower potential damages) by documenting attempts to find the copyright owner. In regards to the latter, have you tried Google's image search to locate other sightings of the photo?

Architectural copyright. If the museum is new (built after 1990), copyright law protects the building's design. As Circular 41 (Copyright Claims in Architectural Works) states, examples of works that satisfy this architectural copyright requirement "include houses, office buildings, churches, and museums (emphasis added). Keep in mind, that the architectural copyright extends to the overall form of the museum's building, the exteriors, and the arrangement and composition of permanent structures that divide the interior into separate rooms and spaces. However, the museum's architectural copyright does not include standard features such as windows, doors, or similar building elements, standard configurations of spaces, functional features, or interior design features, such as the selection and placement of furniture, lighting, paint, or similar items. Although we haven't seen the museum's interior entrance, it is possible that by itself, it may not qualify for copyright, or that your reproduction will be excused as fair use.

Why Won't Playboy Grant Cartoon Rights?

Dear Rich: Playboy Rights & Permissions recently denied us permission to use a Playboy cartoon in a print only, low number of copies, scholarly publication. The reason stated is “ I am sorry but the cartoon by [famous cartoonist’s name] that was originally published in the [month & 1965] issue of Playboy is not available for third party licensing.” What can I infer from that statement? I wonder does Playboy hold exclusive rights to that cartoonist's work? Do they know the rights status? I'd like to find a way to use the cartoon but not if it means taking a risk with an entity like Playboy. 

The statement, "not available for third party licensing," may mean Playboy doesn't have the right to license the cartoon. Although we are not privy to the arrangement between the magazine and the cartoonist, a case involving the artist, Patrick Nagel, revealed that until July 1979, Playboy acquired rights from artists by printing the following legend on the back of checks: 

Any alteration of this legend agreement voids this check. By endorsement of this check, payee acknowledges payment in full for the assignment to Playboy Enterprises, Inc. of all right, title, and interest in and to the following items: [a description of the work].

An assignment versus work made for hire. In the Nagel case, the court of appeals determined that this language referred to an assignment, not a work-for-hire. One difference between the two types of ownership is that an assignment can be terminated after a number of years while a work-for-hire cannot. For example, transfers of ownership made in 1965 could be terminated in 2021 (see 17 USC 304). Therefore if Playboy used a similar legend in 1965, and if the cartoonist's estate terminated Playboy's rights, the cartoonist's estate may own the right to license the cartoon. 

Or maybe they don't want to deal ... Alternatively, the cynical members of the Dear Rich Staff wonder if Playboy just doesn't want to bother with small licenses such as yours and they use this statement as an all-purpose rejection. 

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

Dear Rich: As the representative of a particular (living) artist, I was recently contacted by the organizer of an exhibition in which original art pieces owned by various collectors will be on display -- including my client's art. Photos of the art will be included in an exhibition catalog that will be made available for sale to patrons of the exhibit. Because these catalogs will be sold, the organizer of the event has requested my client's permission for said art to be included (my client will not be compensated). In this particular situation, is my client's permission actually necessary?

Yes, your client's permission is required. This is the case regardless of whether the catalog is sold or offered for free. That's because when an artwork is sold, the buyer only acquires ownership of the physical work, for example, the framed painting. As the Seventh Circuit held, “a copyright is not transferred automatically with the transfer of the copyrighted good [thus] when you buy a book, you don’t obtain the right to make and sell copies of it.” The copyright (the right to display and make copies) is typically retained by the artist. There are exceptions to this rule, for example, if the artwork is a work made for hire, or if the artist assigns copyright to the buyer, but otherwise, the artist controls the duplication. BTW, the same rules apply for non-fungible tokens (NFTs). So, if your client creates an NFT, an NFT buyer would not acquire copyright.

Opera Composer Seeks Rights to Deaf Poet's Life Story

Dear Rich: I am a composer looking to write an opera celebrating the life and work of British Sign Language poet, Dorothy Miles. I am struggling to find out how I may gain access to the rights to her life story, to compose a 20-minute work. Dorothy passed in 1993, and according to my preliminary research, she has no living descendants or relatives. Would you be able to advise me as to the best course of action in order to set aspects of her life story to music?

If you want to avoid lawyers and limit lawsuits, the best course of action is to base your opera on public records, existing news articles, and other public facts. 

Facts are free. The facts of Dorothy's life are free for all to use. This is true under U.S. and UK law. So, for example, you could dramatize the pertinent facts of Dorothy Miles's life - for example, how she was born with hearing but lost it after contracting meningitis, or how she fell in love with American sign language, and later combined British sign language and poetry, or how she suffered from depression and bipolarity and that led to her death. This use of public facts often provides the springboard for life-story dramatizations, as in the Dorothy Miles documentary, Dot.

Using Dorothy Miles's poetry and writings. If you want to use material taken from Dorothy Miles's books or poetry you will need to investigate its copyright status. Under U.S. and UK law, permission is required from whoever acquired rights from Miles after her death, perhaps Miles' niece, Liz Deverill, or perhaps the British Deaf History Society, the publisher of Miles' works. We couldn't find any copyright claims for Dorothy Miles in the Library of Congress (USA) so you may need to investigate copyright status at the UK's Intellectual Property Office. The rights that you seek for Miles's writing can be narrowly or broadly defined, for example, rights limited to the live opera performance, or rights to also distribute and stream the opera. Similarly, you would need permission to use video clips of Miles, for example, if you plan to display those clips in conjunction with your opera.

Living people. If you plan to identify and portray living people you don't need their permission under U.S. law unless you are trying to prevent three types of legal claims: right of publicity, defamation, or invasion of privacy. We don't imagine this will be an issue for you unless you are casting a living individual in a negative light or unearthing secret information about a private citizen. (We're not knowledgeable about British law but it's our understanding that the UK has no right of publicity.)

Adopting source material. If you're adopting source material, for example working from a biography and taking more than facts, you'll need a derivative rights agreement from the copyright owner. If you are using source material obtained directly from an individual portrayed in your opera, you may need either a release, a consulting agreement, or in some cases life-story rights. The latter agreement prevents lawsuits over fictionalization and releases the producers from any claimed injuries resulting from how the character is depicted. Hopefully, if you follow these suggestions, we'll soon see your opera on this list.  

Reproducing a Photo of a Statue

Dear Rich: As I understand copyright, if I visit a park and take a photo of a statute, I own the copyright to the photo and I can use it in a book. But if I open a magazine and take a photo of an illustration, I still own the copyright to the photo, but using it in a book would be a copyright violation. Why is it different?

Actually, they're not different. It's true you own the copyright in both photos but your copyright only extends to what you contributed, for example, the choice of subject matter, composition, lighting, etc. Your copyright does not extend to the statue, itself. If the statue and the image are protected by copyright, it would be a violation to reproduce them in your book (unless permitted under fair use principles). And, if you register your photos with the Copyright Office, you're required to disclose (and exclude) those items in your application because they are not original to you.

Photos of a statue. In some countries, for example, Canada, art that is permanently situated in a public place or building can be photographed and reproduced without permission. Not so, in the U.S. where unauthorized reproduction of a photo of a public statue can be costly -- as the U.S. Postal Service learned. (The USPS mistakenly used a photo of a Las Vegas imitation of the Statue of Liberty -- one with "a more contemporary, fresher face than the original" -- and the sculptor of the Vegas statue sued and recovered $3.5 million.) The reverse principle -- it is a violation of copyright law to create a sculpture of a photograph -- has also been followed by the courts.

In the real world. Few photographers of publicly-viewable statues need to worry about copyright lawsuits. The incidental appearance of a statue, for example, in a travel photo, a news photo, or an educational lesson is not likely to trigger a dispute and if it did, the reproduction would probably qualify as fair use. In addition, many statues are in the public domain and do not require permission (despite what some owners believe).