- the purpose and character of your use. The first factor weighs in your favor because you are commenting upon the video.
- the nature of the copyrighted work. We can't help you with the second factor because we don't know whether you are copying a factual or fictional work (and in any case, the second factor usually has little effect on the outcome).
- the amount and substantiality of the portion taken. In the case mentioned above, the YouTube celebrities copied three minutes of content from a five-and-a-half-minute video. In your case, you're copying the full episode. Copying a complete work is usually interpreted against a fair use claim. That's not to say you can't win a fair use ruling. Forty years ago, the Supreme Court permitted copying of a complete television program.
- the effect of the use upon the potential market. As to the fourth fair use factor, courts are interested in whether your video serves as a "market substitute" for the Netflix episode.Your degraded audio and video work in your favor as does the commentary. According to the Supreme Court "the role of the courts is to distinguish between biting criticism that merely suppresses demand and copyright infringement, which usurps it." In short, if what you are doing is more like camming and less like a reaction video, you'll have a harder time making a fair use claim.
Thursday, February 25, 2021
Sunday, January 31, 2021
Tuesday, January 5, 2021
Tuesday, December 15, 2020
- You can't claim copyright in photos published before 1925 or in unpublished photos taken by photographers who died before 1950. These photos are in the public domain and free for anyone to copy.
- You can't claim copyright solely based on your ownership of a photo. Purchasing a print is not the same as purchasing the copyright.
- You can't register your report with the Copyright Office unless you declare whether your book contains pre-existing works. Pre-existing works might include your public domain photos, a foreword by a third party, or any previously registered or previously published works that are included in your book. The goal is to show what you contributed (the text).
- You can't require attribution unless you have an agreement such as a license that requires it. (You can sue under the Digital Millennium Copyright Act, however, if the infringer removes copyright management information (CMI).)
Tuesday, November 17, 2020
Tuesday, November 10, 2020
Tuesday, October 27, 2020
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.
Wednesday, October 14, 2020
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
Monday, September 21, 2020
Wednesday, September 16, 2020
(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.
Friday, September 11, 2020
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
Tuesday, August 18, 2020
Tuesday, July 7, 2020
Tuesday, June 30, 2020
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."
Tuesday, June 16, 2020
Sunday, May 10, 2020
|Dear Rich staff busy at work on your question|
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
|Criterion's pristine version|
of "The Naked Kiss"
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
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.”