Newly Discovered Jazz Archive in a Copyright Tangle Reply

You might have heard that an archive of historic jazz recordings was discovered and donated to the National Jazz Museum in Harlem last year. Accompanying the hundreds of donated discs containing recordings of legendary jazz musicians of the late 30’s and 40’s… is a tangle of legal copyright issues.

THE MUSIC – This newly discovered jazz archive exists due to the technical genius of William Savory who was both a jazz aficionado and a technical wizard. Mr. Savory developed ways to make superior, longer and more durable sound recordings and recorded historic jazz performances during the golden era of American Jazz. Among the treasures in his collection are never released recordings of: Benny Goodman, Billie Holiday, Count Basie, Bobby Hackett, Ella Fitzgerald, Louis Armstrong, Coleman Hawkins and Lester Young.

This historic collection is currently being restored and digitized by the National Jazz Museum and can be heard in eight short clips on the museum’s website and by making an appointment to visit the museum’s listening room. (http://www.jazzmuseuminharlem.org/savory/index.php or by calling 212-348-8300).

THE BIG QUESTION – is whether this historic collection will be made available to the public once digitized.

COPYRIGHT ISSUES ABOUND – Copyright law has changed and morphed over the years and the legal protocol for using, distributing, copying and making these digitized recordings (or any copyright protected work) available… requires identifying the musicians and copyright owners of the recordings and getting their permission to use the works. As you might guess, this is no small task. It can be difficult to identify and locate copyright owners especially since decades have passed since the recordings were made. Most of the musicians are no longer living and the business entities and companies that may hold ownership interests in the works have likely morphed and changed too.  (Note that copyright protection lasts for longer than the life of the owner.  The duration of copyright protection has changed over the years.  Currently, copyright protection lasts for the life of the author + 70 years and if owned by a corporation it lasts for 95 years from publication.)  If an organization wishes to use copyrighted works, but the copyright owner cannot be located… the organization has two choices: 1) not to use the work or 2) to use the work without permission, which is a risky gamble.

HOW BIG OF A GAMBLE IS IT TO USE A COPYRIGHTED WORK WITHOUT PERMISSION? The short answer – Big. Using a copyrighted work without permission can put the user at risk of owing treble damages to the owner for willful infringement AND can prevent any further use of the work via an injunction. The risk of potential copyright liability for using works without permission is generally too high for most museums, filmmakers and libraries to take.

WHAT HAPPENS NOW? Evidently the National Jazz Museum in Harlem is in the process of restoring and digitizing the Savory collection. It will be interesting to see how the museum decides to use the works. Hopefully, tracking down the copyright owners and getting permission to use (and make available for distribution) at least some of the works will be possible. (I would like to hear these recordings!) Alternatively, legislation could change the penalty for using the works by reducing the fee from treble damages to ‘a reasonable licensing fee’ payable to the copyright owner retroactively once they resurface and make a demand for payment. These types of legislative changes to the current Copyright Law have been proposed but have not been adopted. For now, making an appointment to visit the National Jazz Museum in Harlem’s listening room is the way to hear these historic jazz recordings.

See also: http://www.jazzmuseuminharlem.org/; http://jazzmuseuminharlem.org/the-museum/collections/the-savory-collection/; http://www.copyright.gov/; Orphaned Treasures: A Trove of Historic Jazz Recordings has Found a Home in Harlem, But You Can’t Hear Them, by S. SeidenbergFor more information on works in the Public Domain, see http://wp.me/p10nNq-ft and http://wp.me/p10nNq-gn; @iplegalfreebies and www.kasterlegal.com.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

 

Copyright Law – Using photos of other people on your website, blog or publications Reply

Using recognizable pictures of other people on your website, blog or publication of any kind requires their express permission (unless they are a celebrity or it is ‘newsworthy’ photo).  How do you do this?  Ask them for permission AND have them sign a simple agreement giving you permission to use their image.  Specify in the agreement the ways, websites, publications etc where the photo will be used.

Here are a few myths and truths on this topic: 

MYTH:  Just because you took a photo of the bride at her wedding gives you permission to use it on your website

MYTH:  Having permission to use a portrait in a book automatically gives you permission to use it in a film

MYTH:  It’s okay to use a portrait you took of someone in a public place without permission

TRUTH:  Virtually any photo of a celebrity is considered newsworthy and okay to use

Cover your bases and get permission to use the photos you take of other people at the time you take the picture.  (These types of agreements are called a Photo Release or Model Release).

See –> http://wp.me/p10nNq-J for more information on Photo releases and www.kasterlegal.com.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

Copyright Law: Using someone else’s photograph in your blog, website or promo materials 2

If you have reached this posting because you Googled, “is it free to use photographs taken from another person’s website” ….the answer is probably NO… and this post is dedicated to you.

Just because it is EASY to access and copy photographs via the internet doesn’t mean that the photographs are free for the taking.  Copying a photograph from another website or online article or blog can easily violate another person’s copyright in the image.

Did you know that every original work (including photographs, designs, poetry, text, music… etc) that is created in the US today, is instantly vested with copyright as soon as it is written down, printed… or ‘fixed in any tangible form’?  It’s true.  Copyright is instantly vested in fixed, original works and this means that the owner has the right to monetize the work. (ie charge a fee to license or sell a photograph).

As you might guess, the price to license a photograph depends on how you plan to use the image and for how long.  For example to license a photograph from Getty Images for 1 month, to use on a social media site costs approximately $160… and $360 for 3 months.  (the price varies by image etc).  Or hire a photographer to take photographs for you!  Or take them yourself.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

See also: http://www.gettyimages.com

Copyright Status restored to foreign works – removing works from public domain 1

Last week, The US Supreme Court mandated copyright restoration for foreign works that are covered by copyright protection in their country of origin or the country where copyright protection is claimed. This renewed respect for foreign works, removes a bulk of works out of the public domain and vests them with copyright protection. This means that many foreign works will no longer be free to perform, record, copy or make derivative works of here in the US. For example, Prokofiev’s ‘Peter and the Wolf’ which has been free to use in the US since it has been in the public domain, has had its copyright restored and will require the same permissions and usage fees as Copland and Bernstein…. who are Prokofiev’s contemporaries and who still enjoy copyright protection of their music. (Now an orchestra could be expected to pay approximately $800 per performance of Peter and the Wolf). Evidently, J.R.R. Tolkien’s writings, Alfred Hitchcock’s films and Pablo Picasso’s paintings are also among the foreign works with newly restored copyright protection.

The reasoning behind this copyright restoration is largely based on international foreign policy. As the court points out in its holding… the US has taken a ‘minimalistic approach’ to complying with the Berne Convention for the past two decades… and this copyright restoration of foreign works is a significant step toward US compliance with the treaty. There are 164 counties signed onto the treaty and the one of the many terms of the Berne Convention is that member states offer reciprocal copyright protection. Interestingly, this could be a significant step towards an international copyright system.

If you are already using ‘Peter and the Wolf’ or other restored works, the court’s holding speaks to a grace period for parties who are currently using or exploiting the restored works and encourages negotiations to determine reasonable compensation.

(Tolkien’s heirs come to mind as the ‘Lord of the Rings’ movie extravaganza could lead to interesting negotiations if an agreement hasn’t already been made.)

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

More information: The US Supreme Court case is Golan v. Holder. The holding is also available at www.supremecourt.gov; The Berne Convention, Article 18 at http://www.wipo.int/treaties/en/ip/berne/; Other articles on the subject: http://www.nytimes.com; http://online.wsj.com; http://www.legalnewsline.com/news/234980-peter-and-the-wolf-must-be-paid; http://orchestralworks.blogspot.com/2008/09/prokofiev-peter-and-wolf.html; @iplegalfreebies and www.kasterlegal.com.

Fiat pays for use of Graffiti Mural “I ❤ the Bronx” …in their commercial Reply

@kast

The exact amount that Chrysler has paid to TATS Cru, the Bronx based graffiti artist, for use of their mural in a Fiat commercial hasn’t been disclosed… although I applaud the two sides for coming to an agreement.

Is a Graffiti Mural protected by copyright?  YES, YES, YES!!  All it takes is ORIGINALITY to qualify for copyright protection… and in this instance there wasn’t any question about the mural being original.

Should Chrysler have known that the mural was protected by copyright?  YES, YES, YES!!  Because, there is a copyright notice painted into the lower right hand corner of the mural:  “©2010 TATS Cru” (I applaud TATS Cru for being diligent and including the copyright notice).  Even if there hadn’t been a copyright notice on the mural it still has copyright protection and Chrysler should have done some research.  The exact reason that Chrysler included the mural in their commercial (to give authenticity as to the commercial which features JLo in the Bronx singing about strength while driving through the neighborhood where she grew up) should have been a HUGE indicator that the mural is original and covered by copyright protection.  IT’S NO EXCUSE “not to know” a work is covered by copyright protection.  Using a copyright protected work without permission is copyright infringement – and ignoring a copyright notice on a work is even worse.  Both are illegal… and ignoring a copyright notice can triple the damages owed.

What do you do if your copyright is infringed?  In this case, TATS Cru reached out to Fiat/Chrysler via their lawyer and reached a settlement.  The exact amount that TATS Cru was paid hasn’t been disclosed, although both parties have announced that they are excited to be collaborating.  As part of the deal that was struck… a Fiat has been given to TATS Cru to paint and auction off to a charity of their choice.

I ❤ the Bronx, too!  A lot can be learned about the art of making a deal in the Bronx!

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

For more information: http://tatscru.net/commercial.  The mural is located at 1156 E. 165th St. in the Bronx.  Watch the commercial – http://www.youtube.com/watch?v=deNRiBQiQ3Q. http://wheels.blogs.nytimes.com/2011/11/28/in-the-bronx-a-collision-of-cars-celebrity-and-copyright/; http://latino.foxnews.com; http://www.nypost.com; @iplegalfreebies and www.kasterlegal.com.

breathe easy… in any Hatha Yoga sequence Reply

Following up on a post last month on a Hot Yoga Copyright Dispute… launched by Bikram Yoga to defend copyrights held in a sequence of 26 Hatha Yoga postures… The US Copyright Office has weighed in on the court proceedings and issued a letter stating that a Hatha Yoga sequence is NOT granted copyright as a work of choreography.

An excerpt from the Defendant’s legal document submitted to the US District Court in California, quoting correspondence from the US Copyright office:

“..[T]he Choudhury Yoga Sequence is legally invalid because the Copyright Office has determined that yoga is not protected as choreography. According to a December 7, 2011 letter to Defendants from Laura Lee Fischer, Acting Chief of the Performing Arts Division of the Copyright Office, the Copyright Office previously “took the position that although functional physical movements did not represent the type of authorship which Congress intended to be protected under the copyright law, [the Copyright Office] could register the selection and ordering of public domain exercises.” However, the Copyright Office recently reevaluated this position. “The Registration Program of the Copyright Office reviewed the legislative history relating to section l02(a) of the copyright law, and in conjunction with senior management, determined that exercises, including yoga exercises, do not constitute the subject matter that Congress intended to protect as choreography. Thus, we will not register such exercises (including yoga movements), whether described as exercises or as selection and ordering of movements.” [From page 10-11 of Defendant’s Answer to the Complaint dated 12/9/2011. In the case: Bikram’s Yoga College of India L.P. v. Yoga to the People, Inc., 11-cv-07998, U.S. District Court, Central District of California (Los Angeles).  click here for the court document ]

You can breathe easy… in any Hatha Yoga sequence of your choice. Although, it appears that this lawsuit is still alive and moving forward since there are other non-copyright elements in the case.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

For more information: http://wp.me/p10nNq-fE on HOT YOGA dispute; http://www.dailybusinessreview.com/PubArticleDBR.jsp?id=1323647402672&slreturn=1; http://dockets.justia.com and http://www.yogatruth.org/; @iplegalfreebies and www.kasterlegal.com.

 

Hot Yoga Copyright Dispute 3

Evidently Bikram Yoga is suing Yoga to the People (another Hatha Yoga establishment) for copying a sequence of 26 Hatha Yoga postures performed in a hot room (105 degrees) …claiming a violation US copyright law.

Is this Copyright Infringement? Could be if the postures or the “routine of postures” are original. (It is possible to obtain copyright protection for choreography.) Although proving that a sequence of Hatha Yoga postures is original could be a challenge; since, Hatha Yoga is an ancient spiritual tradition with roots in India.

Interestingly, over the last decade, the Indian government has launched aggressive ‘traditional knowledge’ campaigns seeking to recapture ancient traditional knowledge, including Yoga, Ayurveda, and Homoeopathy practices that have been granted intellectual property protection in other counties. For example, several patents have been revoked in the US and the EU for turmeric, basmati and neem tree extracts because the patents were for traditional uses that are mentioned in numerous ancient texts. (Patent and copyright protection are similar ~ they both require originality. Patent law requires “novelty” for legal protection and enforcement… and copyright law requires “originality.”)

It will be interesting to see how flexible the US courts and the Indian Government are with Bikram’s allegation of copyright ownership and infringement of the “Hot Yoga” sequence at issue.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

For more information: 12/9/2011 UPDATE http://wp.me/p10nNq-fT from the US Copyright Office; India’s Traditional Knowledge Digital Library: http://www.tkdl.res.in/tkdl/langdefault/common/Abouttkdl.asp?GL=Eng; The WIPO Creative Heritage Project: http://www.wipo.int/freepublications/en/tk/934/wipo_pub_l934tch.pdf; and Bikram’s US Copyright registration numbers: TX0005259325, TX0006555860, TX0005624003, TX0000179160, TXu001323218, TX0005499662, TXu001022657, TXu000934417, PA0001053335; @iplegalfreebies and www.kasterlegal.com

Works in the Public Domain are FREE to use Reply

Music and other published works that are in the Public Domain are free to use; since, they are not under copyright protection and therefore do not require any permissions from the author (or former copyright owner) to be used. Works that are in the public domain are free for the taking, sampling, using, copying, reproducing, recording and distributing.

Typically, works in the Public Domain are very old works. For example, ancient published texts like the “Bhagavad Gita” (a pre-Christian, Sanskrit text) are in the public domain…. as well as “newer-old-works” like the Shaker song “Simple Gifts” (music and lyrics written in the United States in the mid 1800’s). The original text, music and lyrics of the works are in the public domain. However, newer translations or compositions based on the original works… as well as sound recordings and arrangement elements of these newer versions are likely covered by copyright protection…. and NOT in the public domain.

What works are in the public domain? Any work or musical score that was published in the United States before 1923 is in the public domain, due to expiration of copyright. Newer works can also be dedicated to the public domain and if a work failed to meet the requirements for copyright protection it will also be in the public domain. Generally, a case by case analysis should to be done on works published in 1923 or later to determine if they are in the public domain because, it’s not always obvious. [Would you have guessed that the Happy Birthday Song is still covered by copyright protection… and not in the public domain?]

Keep in mind that copyright duration and the timeline for works entering the public domain vary country by country.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

See also: http://www.copyright.gov, http://copyright.cornell.edu/resources/publicdomain.cfm, http://creativecommons.org/publicdomain/; @iplegalfreebies and www.kasterlegal.com.

 

Copyright Law: Using quotes from someone else (including Cajun keychain sayings) in your song, blog, book or website 2

Did you know that it’s possible to buy a “Cajun in your pocket” keychain? …that plays spoken Cajun phrases? GOOD NEWS – you can buy the keychain and use the sayings without violating copyright! cajun pocketEven though the toy manufacturers have copyrights that include the sayings on the keychain… there is no copyright violation for using the sayings in your own song, book, blog or website because, the phrases are not original.

A federal court in Louisiana held that the phrases at issue (see below) were common Cajun phrases and therefore, when the rap artist Mystikal included the exact word arrangements in his hit “Shake Ya As*” he did not infringe the toy maker’s copyright. (One of the necessary elements of a copyright infringement claim is that the parts of a copyrighted work that are copied without authorization must be original.)

  • “We gon pass a good time, yeah, cher”
  • “You gotta suck da head on dem der crawfish”

Another aspect of evaluating whether copyright protected works were copied without authorization is proof of access to the copyrighted work and similarity of the works. Interestingly in this case, it was proven that Mystikal’s nephew had a “Cajun in your pocket” toy… which was how the artist had access to the copyrighted work prior to the creation of his song. (By the way, it was estimated that the rap song had sold over six million units worldwide by the fall of 2000 and had also appeared in several movies and numerous CD compilations.)

When quotes from copyright protected works can be used in songs, books, blogs or websites without permission of the copyright owner… is a grey area and the facts and circumstances are fundamental to the case by case evaluation of copyright infringement.

Let the good times roll and stay clear of copyright infringement. “Laissez les bons temps rouler”!! (the “Cajun in your pocket” toy says this too.)

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

See also: http://www.emanation.com/products/cajun-in-your-pocket and Emanation Inc. v. Zomba Recording, Inc., 72 Fed. Appx. 187 (5th Cir. La. 2003). Emanation Inc. v. Zomba Recording, Inc., 72 Fed. Appx. 187 (5th Cir. La. 2003).

Making ‘Stormtroopers’ in your basement? (gotta look at that basement) 2

In a galaxy not so far away… (the United Kingdom under the rule of HRH)… the original designer and prop maker of the Star Wars stormtrooper costume continues to make replicas of the iconic stormtrooper in his basement and sell them over the internet.  This basement stormtrooper-production-line led to a legal battle in the UK’s highest court.  Lucasfilms filed a lawsuit for copyright violation, in the hopes of shutting down the basement production.

The court ruled in favor of the basement stormtrooper-production since UK copyright law offers a short term of copyright protection for ‘props’ and that period of protection had expired.  (Interestingly, the same stormtrooper costumes are covered by a much longer term of copyright protection in the UK if the court had found them to be works of sculpture instead of classified as props.  Here in United States, if the stormtroopers were being produced in a basement on US soil… it is likely that Lucasfilms would have prevailed because, the US copyright law offers a much longer term of copyright protection regardless of the classification of the copyrightable work as a sculpture or prop.)  Since the stormtrooper costumes are still under copyright protection in the US, damages may have to be paid to Lucasfilms for any costumes that were sold here in the US.

Copyright laws and the term of copyright protection vary from country to country.

(I gotta tell ya, that I visited the UK courtroom while this case was being tried and there were stormtroopers set up all over the place.  The combination of wigs, robes, courtroom formalities and stormtroopers felt like another dimension… straight out of Star Wars.)

The case is: Lucasfilm v. Ainsworth, No. [2011] UKSC 39, U.K. Supreme Court.  See also, http://www.supremecourt.gov.uk/news/latest-judgments.html; @iplegalfreebies and www.kasterlegal.com.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com