Wednesday, December 22, 2021

Is a Listserv Moderator Liable for Subscriber Infringements?

Dear Rich, I created a listserv on my account at google groups. Someone on the list has been posting not only links to online newspapers but, without permission, the entire contents of the link as well. This includes New York Times and Newsweek. Who is legally liable for these copyright infringements: the platform (google groups), me (the group's creator/owner/manager), or the poster of the copyrighted material?
In cases involving infringing postings at Google listservs, a copyright owner (such as the New York Times or Newsweek) would likely pursue the poster and Google.
Safe harbor. Google will likely be shielded from a lawsuit by claiming the "safe harbor" benefits of the Digital Millenium Copyright Act (DMCA). Section 512 of the DMCA allows an Internet Service Provider (ISP) such as Google to avoid liability for infringement provided that the ISP promptly removed the material upon request and provided that the ISP has met other requirements. In other words, if Newsweek or the Times request removal, Google will issue a take-down notice, and if the poster fights the notice -- for example, the poster claims a fair use defense -- the copyright owner can sue the poster in federal court and sort out the matter, there.
What about you? It's possible (though unlikely) that you, as manager of the listserv, could be drawn into the line of fire. In one case, a federal appeals court indicated that if a moderator (under the supervision of an ISP employee) reviews and approves all postings, the ISP could be liable. We doubt whether you'll be named in a lawsuit. Still, because you're aware of a potential problem, you should provide your copyright policy to all subscribers, notify the poster that only links should be posted, and seek guidance from Google for the issue if the poster doesn't correct behavior.

Monday, December 13, 2021

We're No. 1: Music Law Named Best Copyright Book

Will YouTube Ruin My Album Release? Mechanical v. Sync License

Dear Rich: If I have the licensing for songs to record and distribute and want to use the same recording as part of a video, do I need to pay for additional licenses? I’m afraid that YouTube will ruin my album release video project. 
The mechanical license you purchased for recording and distributing the songs (as MP3s or on vinyl or CDs) differs from the license needed for using your version of the song in a video (referred to as a "sync license"). Sync licenses are negotiated directly with the copyright holder. Unfortunately, no collective like HFA provides blanket sync licensing (although various sites may negotiate sync licenses for a fee). 
Typically, you're on the defensive with YouTube. Even if you acquire the proper licenses, an initial objection may be prompted by Content ID or the Copyright Match Tool. At that point, you'll need to provide evidence of your license, or in the case of a takedown, a DMCA counter-notice. (A song owner can block, track or monetize an infringing video.) Even though covers may be harder to detect (because they don't match the digital fingerprint of the original version), there are methods for locating them, for example, text searching software that detects titles or lyrics. In some cases, YouTube can facilitate a revenue-sharing arrangement with the song owner. Bottom line: Because most song infringements on YouTube are monetized, not taken down, you may want to forego the sync license and wait and see if a copyright claim is made against your video.

Wednesday, October 27, 2021

Can I Claim Publishing for Public Domain Song?

Dear Rich: I have an album project where I have two "traditional" songs that are being performed in an original manner. Can I list myself as the publisher? 
It would be improper to list yourself as the publisher of a public domain song (we assume that by "traditional" you're referring to PD music). However, you may be able to acquire copyright protection for your unique arrangements. 
You can't list yourself as the publisher. A music publisher is a company that owns songwriting copyrights and collects money from people who sell, perform or modify the songs. Because public domain songs are not protected by copyright (they are free to the public) no one can claim ownership of these compositions. Publishers who claim ownership of PD music and try to enforce their claims are subject to lawsuits. One workaround is to add new lyrics to a public domain melody. Elvis and Ken Darby wrote new lyrics (Love Me Tender) for a civil war song (Aura Lee) and their music publisher can stop anyone from using their derivative version (though they can't stop anyone from using the Aura Lee music and lyrics). 
You can claim rights to a public domain arrangement. Although you cannot claim ownership of a public domain composition, you may be able to claim copyright of your arrangement. However, in order to assert affirmative rights (that is, go after infringers), the arrangement must be more than a trivial variation of the original. As one case established, "To extend copyrightability to minuscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain work." Perhaps more importantly, royalty collection organizations enable you to get paid for your public domain version. For example, the MLC allows you to register public domain works, as do SongtrustCDBaby and other rights organizations.

Tuesday, October 12, 2021

Coursepack Blues: Don't Count on Fair Use

Dear Rich: I plan to assemble and sell a coursepack on writing nonfiction. This coursepack will consist of writing and revising methods gleaned from various writing books (Strunk and White, On Writing Well, etc.) and will also include worksheets (which my team will create and design from scratch). Is it fair use to build on their material in this way, or do I have to ask the publishers for permission? 
We think that if you're taking more than a few blocks of text from each book, you should ask for permission. Even if you make a fair use argument (as they tried to do in this case), you probably can't afford to battle your way through a federal appeal. Also, keep in mind that publishers have aggressively pursued coursepack makers, sometimes to set an example, and sometimes to recover a half-million dollars. If there's a chance that publishers will learn of your use, if you're affiliated with a business or educational institution, or if you're going to seek a publisher, you should definitely seek permission.

Tuesday, October 5, 2021

Can I Use Fan Art in a Music Video?

Dear Rich: My teen has drawn several pieces of "fan art," following a challenge to begin with a known character and re-draw it into something more original. I would like to use the drawings in a music video. Would I be violating anyone's copyright to do so? 
Unless your video achieves surprising virality ratios, the copyright owner is unlikely to learn of your use. If they do find it on YouTube, they may issue a take-down notice or they may choose not to pursue it (i.e., "Don't bite the hand that feeds you"). The law regarding fan art is vague, and if fanfiction is any example, lawsuits are filed only when the fan competes with the copyright owner. 
Derivative works and fair use. Fan art involves the creation of a derivative work and only the copyright owner can grant permission for making derivatives. At the same time, it's possible your music video may qualify as a fair use. Lacking any fan art caselaw the law remains muddled and we can't predict how a court would rule. However, if your music video becomes another Gangman Style, you're sure to hear from the lawyers. 

Sunday, September 19, 2021

Does Failure to Submit Copies to Copyright Office Put an End to Copyright?

Postcard: Malo-les-Bains - Avenue Kleber,
sent 30 April 1915
Dear Rich: We are a specialized online magazine for postcard collectors. From 1983 to 1989 a print magazine, Postcard Collector, published many articles which we would like to republish. Each issue of the print magazine had a copyright notice ("© Krause Publications, Inc.") Questions: (1) As I understand it, the publisher would have had to submit 2 copies of the magazine to the Library of Congress to complete the registration process. How can I find out if the publisher actually sent copies of the magazine to the LoC to complete the process? (2) If the publisher did not, is the copyright notice meaningless insofar as being able to freely use the articles (we have contacted several of the authors who are still alive and they would be happy to have us re-publish their work). (3) If the publisher did submit the copies to the LoC, is it possible to find out if the publisher renewed the copyright? As I understand it, the copyright expired after 28 years, so even if the publisher did comply with the registration process, the copyright would have expired no later than 2014. 
The failure to submit the deposit materials won't terminate copyright protection; the penalties fall in the wrist-slap category. According to the Copyright Office, "If the required deposit is not made within three months after receiving a demand from the Copyright Office, the owner may be subject to a fine of not more than $250 for each work." In other words, searching the Library of Congress for proof of deposit won't help. Searching copyright renewal records also won't help because renewal is only required for works published before 1964. Our conclusion? We believe that copyright protects the 1983-1989 Postcard Collector magazines for 95 years from the date of publication.
So, who owns the magazine copyright? We don't know. Krause Publications, a publishing business with 46 magazines and 750 books, was the copyright owner until 2002 when Krause was sold to F+W. F+W went bankrupt in 2019 and auctioned off the profitable magazines (but there's no indication of what happened to the copyrights in the defunct magazines). 
Did the authors retain copyright? The authors would have retained the copyright in their articles unless they were employees of Krause, or they signed an assignment of copyright or work made for hire agreement. In other words, the article authors may have granted the first-publication license and kept the copyright. That wasn't uncommon back in the day. Further discussion with the authors may prove beneficial.


Thursday, September 2, 2021

What are Residuals?

Jennifer Aniston
the queen of residuals
photo:angela george (modified)
Dear Rich: As I understand it, trademarks, patents, copyrights, and trade secrets are different types of intellectual property assets and each can be licensed at a fixed rate or percentage. Is this correct? And to clarify, are residuals a form of contractual payment where a studio, music producer, publisher, TV Producer, etc. will pay for the use of a 3rd party IP license at a fixed rate or percentage?
You're correct that intellectual property can be licensed. But the royalty rate is generally not fixed. There are a few IP assets where the royalty rate is fixed by law, for example, licensing rights to perform a cover version of a song. A licensor (the owner of the asset) is usually offered a rate within a narrow range, based on what the market will bear. For example, fabric designers typically earn about 5% of the wholesale price per yard of fabric sold. 
Residuals v. royalties. Residuals and royalties have a few things in common and the terms are sometimes used interchangeably. They're both periodic payments for the right to exploit something, and they're both based on formulas that are calculated for a period. Royalties are paid for the licensing or sale of things -- writings, art, music, inventions, designs. Residuals are paid for entertainment services -- for example, acting in, or directing a TV show. Residuals (as the term implies) are typically paid after the project has earned back its initial expenses. Royalties are typically calculated as soon as the product is on the market. 
For info on patent and trade secret licensing check out our book, Profit From Your Idea. For the lowdown on copyright and trademark licensing, check out our book, Getting Permission.  

Saturday, August 21, 2021

Can I Get an ISBN for Public Domain Book?

Dear Rich: I am part of an organization that is over 130 years old. One of the founders wrote and published a book in 1899 (in the USA and in France). The author has no known living relatives. A few years ago, we found out a publishing company had republished the book as part of their classics series. We were wondering if we can republish the original design of the book (along with the French Title page/picture cover) for the 125th anniversary of the book. Or would we need to get permission from the publisher that republished the book as part of their classics series? Also will we be able to get a new ISBN number?
No, you don’t need permission, and yes, you can get a new ISBN. 
Public domain. The French and English books were published before 1926 and are in the public domain and you are free to reproduce everything from those two versions. You do not need to ask the "classics publisher" for permission unless you are using some of the publisher’s original text — for example, a forward, introduction, or footnotes. 
ISBNs. International Standard Book Numbers (ISBNs) identify the publisher, title, edition and format for a book. ISBNS are required by booksellers and distributors and you should purchase one if you will be distributing your book through retail outlets. Bowker sells ISBNs in the U.S.

Saturday, August 7, 2021

Fair Use When Writing Grant Proposals

Dear Rich: Does the reproduction of copyrighted material in a grant proposal constitute fair use? Examples might include a statistical chart from a medical textbook used in a grant application for a hospital or a photograph pasted into an application seeking funds for an exhibit of the artist’s work, or text from a book on homelessness quoted in an application for a shelter. Grant proposals are rarely published and are written on behalf of non-commercial entities (such as charities, schools, and local governments). Some grantmakers, including government agencies, do publish winning proposals on their websites.
Under most of the scenarios you mention, the reproductions would probably constitute fair use. There is no blanket rule for grant-seekers and no cases directly on point. So, each example you mention would be subject to a four-factor analysis by a court. The four factors are:
  • the purpose and character of the use. We think that your examples demonstrate two classic fair use purposes: commentary and research. This factor favors those who transform the material taken from the copyrighted work "by using it for a broadly beneficial purpose different from that of the original."(The Code of Best Practices in Fair Use for Academic and Research Libraries).
  • the nature of the copyrighted work. The examples -- a medical chart, a photograph, a book -- are factual works that have been published, two qualities that favor fair use (unlike imaginative, creative, and fictional works, or unpublished works). Also, fair use is favored when the work (from which the material is taken) is out of print.
  • the amount and substantiality of the portion used. The less you take from the original work, the more this factor favors fair use. This standard is based on the quantity and the quality of what is taken -- that is, are you taking the heart of work? At the same time, how you reproduce the work -- for example, photographs used as thumbnails -- can make it more likely that a court would rule for fair use.
  • the effect of the use upon the potential market. Even though the point of a grant proposal is to receive money, the particular uses described in your examples are to support your arguments for providing a public benefit. In summary, the grant-seeker isn't depriving the copyright owner of sales of the original work (from which the chart, photo, or text is taken).
When proposals are published. You should alert the entity posting the material that you believe certain items are subject to fair use. 
Attenzione! If a copyright owner disagrees with your fair use analysis, they can sue and let a judge decide.

Tuesday, July 27, 2021

Fictionalizing a Science Experiment

Margaret Mead, anthropologist

Dear Rich: I'm writing a novel based on a scientific experiment that was well-publicized at the time. There has since been a documentary on the subject, as well as numerous newspaper articles. The head scientist is now deceased. However, the woman who ran most of the study is not. Some of her diaries of the experiment were also published in 1969. I'm reimagining the story from her perspective, giving credit to her and her work in the acknowledgments. It’s similar to Lily King's book, Euphoria, based on Margaret Mead's experiences. I’d also like to take the experiment as a jumping-off point, changing the names and locations and key details, though not the overall events. I’d state that I used the original experiment as inspiration but that no character was based on a real person, etc. Will I get in trouble? 
Probably not. Courts give novelists wide latitude when creating characters from real people and when fictionalizing true events. Still, fiction can trigger a lawsuit in three ways: if you defame/libel someone (that is, you harm someone by publishing something untrue), if you invade someone’s privacy, or if you infringe someone’s copyright.
Defamation and invasion of privacy. For purposes of defamation and invasion of privacy, you only need to be concerned with living people. The dead can’t suffer these types of injuries. Also, you probably don’t have to be concerned if your characters are based on public figures because the first amendment gives novelists a lot of leeway. Typically, non-public figures who may be recognizable  precipitate most lawsuits. Lower your chances of a lawsuit by changing names, physical characteristics, and other identifying features of the real people upon which the characters are based (and here is some additional guidance).
Copyright infringement. You're free to use facts and concepts, but fiction authors get sued when they lift chunks of descriptive material, or when they borrow characters from others, or when they use unpublished materials. This may be an issue if you borrow lengthy sections from the study manager’s diary, assuming it’s protected under copyright.
PS Dept. If you secure a publishing agreement, the agreement will require you to guarantee that publishing your book won’t result in a lawsuit (a principle known as indemnity). Before signing a deal, you should have your book vetted by a literary attorney.

Wednesday, July 14, 2021

Bequeathing Royalties in a Will or Trust

Dietmar RabichBorkum, Alter Leuchtturm,
Dear Rich: I'm in the middle of planning my estate and I'm doing my own will. How do I include royalties from a very successful toy I invented. Assuming it’s still generating income when I die, I’d like the royalties to go to a charity. 
You should have no problem bequeathing your royalties, as well as any other rights you have to the toy design in your estate plan. Start by contacting the charity to learn if they have a process to initiate bequests. Many charities have special departments geared to assisting with grants and gifts. (For example, here's how the Audubon Society does it.).
Specific bequest. If the charity doesn't have a program for bequests, you can make the gift as part of your will. List the royalties as a specific bequest being careful to name the subject of the bequest, the recipient, and the source of the royalties (the contract and licensee company). For example:
“I bequeath all income derived from my toy, Waddle Wheels, to the charity, Corvid Recovery Group. Waddle Wheels income includes but is not limited to royalties paid under the MakeGo Licensing Agreement.”
It may also be helpful to list the address of the charity and its tax I.D. Upon your passing, your executor would notify the licensor, (in this case, MakeGo), of your bequest and request that MakeGo pay periodic royalties to the charity. In the same manner, you could make a bequest assigning any patents on which you are named. (Your executor would register the assignment with the USPTO.) 
Trusts. If you're creating a trust, you can assign your royalties (and patent rights, if any) to the trust.  

Friday, July 9, 2021

Copyrighting Your Movie

Original Photo by Jeremy Bishop on Unsplash
Dear Rich: I need to copyright my new film. On-screen, I put “copyright 2021" along with a fictitious name. The name is not a recognized legal entity; it's a name for my business. I wonder if I can file copyright officially under my real name but somehow acknowledge the fictitious name without all the shenanigans of making the name a legal entity. Or can I use the fictitious name even though it’s not an official company? 
If you plan on using a fictitious name (also referred to as a DBA), you should check with your county clerk as to how to register a fictitious business name (or you can use one of the many DBA registration services online). The purpose of registering is so that the public can determine who owns a business. Most states only require sole proprietorships or partnerships to register if the fictitious business name does not include the names of the owners. If you're a sole proprietor (single business owner) and you are using a fictitious business name, you shouldn't have a problem registering the copyright. (This circular explains the basics for registering film.) When you file, list your real name as the copyright claimant (the owner of the copyright). 
What if a copyright examiner sees that the owner listed on the notice differs from the owner named in the application? Explain that you used a DBA (and furnish proof of registration, if necessary).
FYI - If you are using a pseudonym, review your options before filing. 
PS You have copyright without filing registering; it's automatic.

Tuesday, June 29, 2021

Wants to Use Lyrics and Tweets in Musician Biography

We love musician biographies and memoirs.
(One of our favorites is 
Playing the Bass
With Three Left Hands
 by Will Carruthers.)
Dear Rich: My non-fiction historical biography of a musician examines each album, song, and concert, in a review/analysis format. What are the fair use guidelines for lyrics? Can I use two lines? What if I need to use three lines? Also, what are the legalities regarding tweets inserted to clarify points that I am making in the biography? 
If you're using the lyrics for purposes of criticism and commentary and you’re only reprinting two or three lines, you can rely on fair use as a defense. (Caveat: The copyright owner can still sue you, but you would prevail in the lawsuit.) If you’re inclined to seek permission, the fees for reprinting lyrics in a book are not fixed. (We've provided a "lyric permission" letter in our permissions book). You can research song owner information at Harry Fox or check Hal Leonard, a company that often grants print permissions.
Reproducing tweets. Copying individual text tweets is unlikely to trigger a lawsuit unless the tweeter can demonstrate sufficient originality and creativity to qualify for copyright protection (a difficult task when considering the brevity of tweets). You’re more likely to run into problems when reproducing long threads of tweets or if you post a collection of tweets by one person. This article provides the basics on tweets and copyright.

Saturday, June 19, 2021

When Collective Works Are Made From the Public Domain

Speaking of the public domain, the Public Domain Review has an informative essay
(“The Mark of the Beast”) about the first anti-vaxxers
Dear Rich: I wish to reproduce photographs from a website. I want to use them in a book I've written. It is almost certain that any pre-existing copyright on these photos, all taken before 1963, has lapsed. The site itself is being deliberately obtuse about answering questions. How can I determine if I'm prevented from reproducing these photos by a "collective works" copyright?
If the photos are in the public domain and the website hasn’t substantially modified them, you are free to copy them. A collective works copyright doesn’t remove the photos from the public domain. It merely prevents you from copying the website’s original selection and arrangement of the photos. The keyword is “original” because copyright won’t shield collections of works selected by typical sorting criteria (Top Ten Lists, Greatest Hits, or alphabetization). If you don’t copy the selection and arrangement of the photos on the website, you should be fine.

Pre-1964 photos. We assume copyright lapsed because the owner of the photographs failed to renew copyright (a requirement for all works published from 1926 through 1963). If the photographs were first published within books, you can verify public domain status at Stanford’s Copyright Renewal Database.

Thursday, February 25, 2021

Ripped and Unclipped: Camming and Reaction Videos

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

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

Sunday, January 31, 2021

Can We Use Apes Clip in Surf Video?

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

Tuesday, January 5, 2021

Are Postage Stamps Public Domain?

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

Tuesday, December 15, 2020

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

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

Tuesday, November 17, 2020

Can Nonprofit Use NBA/NCAA Trademarks for Fundraising?

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