Showing posts with label copyright. Show all posts
Showing posts with label copyright. Show all posts
Can "Punks in Chunks" Quote Go on T-Shirt
I Have Grey Aliens Copyright: Can I Get Trademark, too?
The Greys! We assume you're aware that the term "grey alien" or "greys" is commonly used to describe extra terrestrials (though there is some dispute whether grey aliens are actually grey). So, we think you may be correct that this may be too much of a general -- or generic -- term to qualify for a trademark for your dolls (and no, your copyrights won't help).
The Examiner's Response. If you seek to register the trademark, a trademark examiner might consider the term to be merely descriptive (generic). That is, the term "grey aliens" is used to represent a type or class of doll product and does not distinguish your dolls from others in that class. If that is the case, you'll receive a substantive rejection for your application and you'll need to convince the examiner that consumers identify the name with you and not with a class or type of product. Alternatively, an examiner might consider your mark to be weak (or descriptive) in which case you would need to demonstrate more than five years of sales or other evidence of consumer associations. It's also possible that your application might fly through the USPTO without objection (that occasionally happens). One suggestion to improve your chances is to consider personalizing the term, for example, "The Grey Family" or naming the aliens, for example, "Dorian" or "Jennifer" (and don't forget the alien dog doll, "The Grey Hound").
Are Nonprofits Liable for Photo Infringement?
Nonprofits can be liable for infringement. Being a nonprofit won't shield you from a lawsuit. Nonprofits are occasionally named as defendants -- for example, the Internet Archive was sued over its caching of old web pages (and some nonprofits have filed suits as well). Nonprofit status may affect fair use determinations (as explained here). But in general, it makes little difference for purposes of determining infringement, whether the theft was for profit or not. You should also be aware that nonprofit status is a corporate tax status; a failure to profit doesn't make you a nonprofit.
Orphan works are not public domain. You are correct that works published in the U.S. before 1923 are in the public domain in the U.S. But these are not orphan works. An orphan work is one that is still protected under copyright but whose owner is missing in action and there's nobody to contact for permission. We think that's the case with most of the photos at your website.
Right, you had a question. We think the odds are slim that you will be the subject of a lawsuit. A copyright owner of one of your vintage photos (the owner would be whoever took the picture) is unlikely to see your work, unlikely to threaten a lawsuit and unlikely to recover much if the lawsuit should it actually go to court. So the chances are low that you will be hassled. Still, for the record, these are infringements. There is also a slim possibility that one of the subjects of these photos will see your site and claim an invasion of privacy or (if you sell the images) a violation of the right of publicity. Again, unlikely, but possible ... kind of like guessing whether an earthquake will hit Virginia.
Contract Worker Broke My NDA!
What else? If you have a noncompete provision and your state enforces noncompetes, you also may have a solid claim. Is your product protected under copyright or trade dress laws? That may be a way to stop copying. Bottom line dept. Assuming this product is important to your business, you should have a lawyer look at your agreement and your product.
Can I Use Book Covers on T-Shirts and Buttons?
Lowering Risks. You're totally safe to use cover art published in the U.S. before 1923 (public domain). You may also be safe using cover art published between 1923 and 1964 because a large percentage of works from that period were never renewed and fell into the public domain. (You can learn how to research renewals here). After 1964, most cover art is likely to be protected under copyright. Of course, there's always the possibility that a publisher has gone out of business, the cover artist has passed away, or nobody cares about the reproduction, and there is nobody interested in going after you (the orphan works syndrome). Non-merchandise thumbnail uses of book covers for purposes such as this blog are likely to be fair use.
Can I Reproduce Magazine Cover When My Product Is Featured?
Copyright issues. The safest use (and one that would likely be excused) would be to use a thumbnail of the magazine cover -- something in the ballpark of the illustration size above. Recent cases have considered thumbnails as permissible fair uses, including a case in which magazine covers were used in a book. You can probably even claim fair use successfully using larger sizes, though we must always remind readers that fair use is a defense that you have to prove in court (a scary proposition). You can also consider another factor that we mention to Dear Rich readers. Will the magazine find out about your use and will they care? Obviously -- based on the zillions of unauthorized reproductions of product reviews -- many people in your position take this "stop me if you don't like it approach."
Trademark issues. We know that the writer of the magazine article endorsed your product (Yay!) but that doesn't necessarily mean that the magazine endorses your product and it may have a policy that asks readers not to associate the magazine's name with product or service advertising. Other magazines may have a policy prohibiting use of the logo or other trademarks in advertising. Check out the magazine's trademark rules (usually posted at its website or within the magazine) and look for any blanket prohibitions. As a general rule you should be okay with straight informational statements like "Our cool binoculars were mentioned in Bird Magazine and the writer called them "extraordinary." (You can probably include a few lines from the review without running into copyright problems.)
Is Dance Troupe Liable for Photo in Background?
 |
| N.Y.C. Garbage collector's strike, 1911- horse-drawn cart being stoned (with 'scab' driver hiding inside). |
What do the courts say? There are a handful of cases where unauthorized imagery has appeared as the background in theatrical works, including theater, film, and TV. In one of the better known cases, a court of appeals determined that it was not a fair use to post the poster of a “church quilt” in the background of a television series (for a total of 27 seconds). The court was influenced by the prominence of the poster, its thematic importance for the set decoration of a church, and the fact that it was a conventional practice to license such works for use in television programs. (Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).) On the other hand, several copyrighted photographs appeared in the film Seven, prompting the copyright owner of the photographs to sue the producer of the movie. The court held that the photos “appear fleetingly and are obscured, severely out of focus, and virtually unidentifiable.” The court excused the use of the photographs as “de minimis” and didn’t require a fair use analysis. (Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2d Cir. 1998).) Your situation is likely somewhere in between these two cases. We've summarized other fair use cases here (to give you a flavor of how judges rule) and we discuss the four fair use factors, here. We think your case could go either way and will likely be dependent on the duration of the photo's display, whether the display is considered informational and/or for purposes of commentary, and whether the combination of the dance performance and photograph creates a transformative use of the image. This may be one of those cases where an attorney's advice is needed. Assuming you're in Memphis, can you avail yourself of this organization's legal services?
Has Roy Orbison Negatives
Right, you had a question. The short answer is that you can sell copies of your photographs (prints) and you can license the photos for editorial uses such as books and website articles. But you cannot license them for commercial uses such as product endorsements or merchandise unless such rights were conveyed to you by the people signing the releases (unlikely).
The longer answer. There are three legal principles at work: copyright, contracts, and the right of publicity. Unless the photos were done under an employment relationship, copyright grants the photographer (the person who took the pictures) the right to copy and create derivatives of the photos. The right of publicity allows the subject of the photo to control the way their image is used for endorsements and merchandise. Contracts are used to transfer these rights. So, the photographer retains copyright unless a contract transfers that right and the subject retains the right of publicity unless that right is transferred by contract (for example, a release). For that reason, you will obtain the most reliable answer after someone reviews your photo releases to determine what rights were granted to you.
Wants to "Own" Shakespeare Phrase for Merchandise
All that glistens is not gold. Your plan is admirable and ambitious but we're always a little wary of attempting to plan the launch of a commercial universe all at once. We think it's usually better to take it step by step and see what works and what doesn't. With that caveat in place, here are the answers to your questions.
Good enough to call your own. The idea of "owning" a Shakespeare phrase for merchandise is possible but it requires money and diligence. As you're aware, "ownership" of the phrase would require that you acquire trademark rights. (And as with all intellectual property rights, your claim will only have value if you have the money to go after those who infringe your trademark.) For each class of merchandise, you will need to register a trademark claim (between $275 and $325 per class, depending on how you register). So, candy would be in one class, greeting cards another, etc. By the way, if you register the phrase for greeting cards, that would give you the right to use the phrase for a line of cards; it wouldn't guarantee your exclusive right to use the phrase as the card's message. You can get the trademark registrations only by using the mark on the goods in commerce -- that is, you'll need to be selling the goods to get the rights. However, you can reserve the mark by filing an intent-to-use application, provided you have a bona fide intent to use the marks on the goods. Also, you cannot get trademark rights for a single book, but you can get it for a series of books.
What's in a name? As for using Shakespeare quotes for a book title, no problem, though you might want to check this site to avoid any confusion.
Let's kill all the lawyers. As for your last question, the Dear Rich Staff cannot refer you to any attorneys although there are many online sources for locating attorneys (including our employer's legal directory). As for doing the legal work yourself, that's always possible. Publishing the book won't bring up many legal issues and it sounds as if you have the necessary releases. More can be found in our Getting Permission book. As for the licensing deals, those probably will involve a lawyer and we would recommend contacting one once you have a solid offer in hand.
Can I Expose Exxon in My Documentary?
- Copyright - Because you did all the filming, we don't see much of an issue with copyright. If you are quoting from Exxon's written materials, using their photos, or video, that's an infringement but we think you have a strong fair use claim. However, as we always note, fair use can only ultimately be excused by a court which means you're spending money on lawyers.
- Trademarks - We don't see much in the way of trademark issues. The reproduction of trademarks in an informational film about Exxon is permitted under first amendment principles and we discussed those issues here. These rules regarding informational uses would protect you against claims for trademark infringement and trademark dilution. Our only suggestion would be to avoid modifying the logos.
- Privacy/Publicity Rights - Because your film is a documentary (and it's not a commercial endeavor), you may be able get away without releases as you are skirting right of publicity issues. However, without a release, the people portrayed in your film can possibly argue the film violates their right to privacy, or alternatively, it defames them. These aren't likely claims if you make a fair factual film, but as you know, employees who are concerned about retaining employment may regret their statements or wish to recant them. In your defense, you may be able to claim that their permission is implied by the fact that they talked to you and were aware of who you were, and that the material was being filmed. (In the future, you should consider getting a video release. While the camera is rolling, explain what you're doing and what the video will be used for and ask for authorization to use the material in your film. We explain more of these releases in our Getting Permission book.)
- Trade Secrets - You're familiar with this one. When you disclose confidential business information that you acquired by an unlawful means, a company can claim that you stole their trade secrets. So, if someone has stolen trade secrets from Exxon and they give them to you and you publish them, you could be enjoined (stopped) from distributing them. As you know, this is a gray area encouraging litigation because only a court can ultimately sort out what qualifies as a trade secret.
- Contract Claims - You're already familiar with tortious interference -- when you're accused of coming between two parties to a contract to undermine their dealings with each other -- another gray area of law in which a he said/she said battle can drag on in the courts. Your settlement agreements may also establish some contractual limitations on your future behavior (although it doesn't sound like it from your description).
- Defamation/Trade Libel -- If you include untrue statements that cause harm to Exxon's business reputation (or to any of their executives or employees), you may expose yourself to defamation claims.
- Likelihood of Being Sued When There are No Profits -- You asked if you were a likely target if you had no profits. Profits probably only matter when discussing copyright, trademark and contract claims. And Exxon may not care about your profits, anyway. They may be more concerned about stopping the film (getting an injunction). You could be personally liable for defamation, right of publicity or other tort claims. Some people who make documentary films attempt to shield their personal assets by creating an LLC or corporation to produce, own, and distribute the film.
Is Coffee Shop an ISP for Purposes of DMCA?
What's an ISP? We believe that if the copyright owner sent the notice to your friend's coffee shop, then your friend's coffee shop is beng considered as an ISP. An Internet Service Provider (ISP) also sometimes referred to as an Online Service Provider (OSP) is any business that provides access to the Internet. That includes big access providers like AOL, Yahoo! and Google, or it can refer to companies that provide website hosting, commercial wi-fi services, or file-transferring (FTP) services.
What's confusing about your friend's notice ... A DMCA takedown notice is intended to direct the recipient to take something down from the Internet (or disable access). This is obviously something within the ISP's control. We're not clear how that would work in the case of a wifi coffee shop. If there are standalone computers at the coffee house, perhaps the notice is requesting deletion of bit-torrent files -- for example, if the in-shop computers are serving as bit-torrent clients. But if the customers bring their own computers to the coffee shop, we're not sure what can be "taken down." More information is needed. (BTW, if this answer seems disjointed, it's because we stopped mid-answer to make ourselves a cup of coffee. We've fallen pretty hard for the Blue Bottle party line and we can't seem to free ourselves).
Church Steeple Copyright
Right, you had a question. We believe you can proceed with your book without seeking authorizations. Here are the general rules:
Anything created before 1990 is fine to reproduce. The appearance, architectural plans, drawings, or photographs of an architectural work (a building) created after 1990 cannot be reproduced without the consent of the owner of copyright -- usually the architect or developer. However, there are exceptions that would permit photos of post-1990s steeples -- for example, pictures of a church can be taken, distributed, or publicly displayed without permission if the church is located in a place that is ordinarily visible to the public. In addition, copyright will not protect standard architectural features (and a steeple seems pretty standard). Perhaps there exists a modern steeple that has ornate or other artistic details that make it protectable -- for example, maybe if this steeple were new. But even if it were protectable, your use of the photos in your book seems excusable because it is intended to comment upon the steeples -- precisely what fair use was intended to permit.
Adapting Pop Songs For Musical Show
 |
| musical in which Dear Rich staff had the lead in MacArthur High School |
- your work is totally original. Sorry, we're sure there is a lot of originality in your work, but it's also derived from other works. The copyright owner controls the right to make derivatives. Yes, there's creativity required to adapt works but doing so without authorization is infringement.
- your work doesn't compete with the original songs. Your work doesn't have to compete to infringe.
- your work promotes (advertises) the original work. Does it? It may cause listeners to conjure up the original -- that's the reason why people create parodies of famous songs -- but it's primarily being used to promote your ideas and concepts.
- the songs 'work' whether or not the listener knows the original. That's not a defense to infringement and in any case that's true for most parodies. We would probably appreciate Weird Al's "Eat it" whether or not we know the MJ version. But the real success of the adaptation relies on its juxtaposition and familiarity -- otherwise, why use the original in the first place.
- your plays are not commercial. This may be factor in a fair use analysis or in assessing damages, but won't make much difference when determining if you are infringing. In any case, you're seeking revenue for your work so we think this argument is moot, as the lawyers say.
- your adaptations are transformative. Don't confuse the fact that you are "transforming" the songs with the transformative standard used in copyright law. Most courts require that the transformation comment upon or parody the original. It is usually not considered transformative when the material is used to poke fun at something other than the original -- for example to use the Dr. Seuss style to poke fun at the judicial system. Check out these fair use examples.
We don't want to dissuade you from creating musicals. The world needs more. But we also don't want you to invest a great deal of money in promoting or publishing these works only to get hit with a cease & desist letter. The use of a song in a show requires a special license from the music publisher as does the modification of the lyrics (that's right, Weird Al has to pay big bucks for these songs!). So unless you're positive you'll be flying below the radar, we think you're engaging in some risky behavior.
Can They Use Photos of Our Home in Magazine?
The Legal Analysis. In answer to your specific questions, a magazine would need permission from the copyright owner of the photos (the architect, apparently) and would only need a property release for the interior pictures assuming they were taken without the authorization of the homeowners. That may be the case here but it's probably not worth hassling over and it may be difficult to prove without losing money on attorney fees. Exterior photos of your home taken from public locations can be used for editorial purposes without your consent. Using your quotes without permission is probably a violation of copyright law, unless the architect can demonstrate that you consented or that your consent was implied, or there is a fair use defense.
Ennyway ... all you really want is for people to behave properly in the future and most of the time, you can accomplish that with a well-written letter. Of course, if this isn't one of those times, then it may be worth having an attorney write them a letter to set things straight.
Using Movie Quotes on T-Shirts
Photo Credits: Can You Remove Them?
 |
| no shoes, no shirt; no fair use defense |
Dear Rich: Please discuss Murphy v. Millennium Radio Group, a recent case that deals with nudity, defamation and copyright law. Okay, here goes: A photographer's copyrighted picture of two nude radio "shock jocks" was published in the New Jersey Monthly. The radio station that employed the men scanned and posted the photo online (after removing the photo credit that ran alongside the photo -- known in the trade as a "gutter credit"). The station then encouraged listeners to download the photo, modify it and resubmit the photos to the station for posting. When the photographer's lawyer complained to the station, the jocks did what is expected from men who pose nude to promote radio shows -- they insulted the photographer, advised others not to do business with him, and made crude comments about his sexuality. The photographer sued for defamation, copyright infringement, and for violation of the Digital Millennium Copyright Act (DMCA). The district court ruled in a summary judgment against the photographer on all counts.The Court of Appeals Decision. On appeal, the Third Circuit reversed. More discovery was needed to decide the defamation claims (the tapes of the show had been destroyed). The Third Circuit also blew off any fair use defense. Posting the original photo and encouraging listener modifications was a purely commercial use and carried no additional transformative message. For those keeping score, all four fair use factors weighed against the station.
Removal of the credit. The most interesting claim was the argument that the DMCA prohibited the removal of copyright management information (CMI), which includes digital identifying information such as the name of the author. The Third Circuit ruled that the "gutter credit" qualified as CMI and cutting it off the photo violated the DMCA.
Takeaway Dept. In this case, someone physically cut off the photo credit, scanned the photo and posted the digital result, something not many people anticipated would trigger a DMCA claim. Does this mean that you must always include a photo credit when you reproduce a photo? Not necessarily; it just means you cannot remove an existing credit. This issue may become more confusing if the credit is not adjacent on the printed page, perhaps something that other cases will decide. For now, gutter credits qualify as CMI, at least in the Third Circuit.
Sampling: Comparing Beasties and George Clinton
Newton: A Lawsuit Over the Musical Composition. In Newton (the case involving the Beastie Boys' use of a James Newton flute sample), the Beasties paid for a license to use the sound recording, but they did not obtain a license to use Newton's underlying composition. When Newton sued, the court ruled that the borrowing of the composition was de minimis (too small to matter).
Bridgeport: A Lawsuit Over a Sound Recording. In Bridgeport (in which a film company used a George Clinton/Funkadelic song sample in a movie soundtrack), the defendants were sued solely over the failure to obtain the sound recording license. The court asked the same question as you, and answered as follows:
"[This case] raises the question of why one should, without infringing, be able to take three notes from a musical composition, for example, but not three notes by way of sampling from a sound recording. Why is there no de minimis taking or why should substantial similarity not enter the equation. Our first answer to this question is what we have earlier indicated. We think this result is dictated by the applicable statute. Second, even when a small part of a sound recording is sampled, the part taken is something of value. No further proof of that is necessary than the fact that the producer of the record or the artist on the record intentionally sampled because it would (1) save costs, or (2) add something to the new recording, or (3) both. For the sound recording copyright holder, it is not the "song" but the sounds that are fixed in the medium of his choice. When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one."Mental, eh? Unfortunately for musicians the takeaway is that based on Newton and Bridgeport, all sampling of sound recordings requires permission, whereas some sampling of compositions is excusable. We can't say we agree.