Copying another artist’s work into a New Medium can violate copyright 2

The idea behind a piece of artwork is not protected by copyright.  However, a near replica of an artist’s work in different medium can be a copyright violation if the new work closely copies a copyright protected work.  What this means is that being inspired by an idea of another contemporary artist to recreate your own artwork from scratch is…100% legit.  For example, if a famous photograph of the pyramids inspires you to fly to Egypt and try to recreate the exact same photo to display and sell in a gallery… there is no copyright violation.  However, it is different if you use a copy of a famous photograph of a pyramid to paint a replica of the photograph.  Painting a copy of a photograph changes the medium of the artwork, but it can often still be a copyright violation of the copied work.

Here are a few examples of instances when copying someone else’s artwork into a new medium could be a copyright violation of the original work:

  • Photographing a sculpture… for use on a postage stamp
  • Making a painting of another artist’s photograph… to display in a gallery show
  • Making a campaign poster out of another artist’s photograph… to sell and raise money
  • Making a sculpture of another artist’s photograph of a sad kid in a costume… to display and sell
  • Recreating another artist’s painting in peanut butter and jelly and photographing the PB&J  rendition… to display and sell

Obviously, there are many unique facts and factors to consider in each case… and many of these types of challenges settle before a court issues a final ruling.  However by the time the parties begin negotiating a settlement, the stakes are higher and the alleged infringer generally ends up paying much more than it would have cost to secure a license at the outset.

The solution is to get a license from the original artist to make a derivative work.  (Trying to deny or cover-up your source material is often unsuccessful and can cost a lot more $$ in the end.)

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

vk@kasterlegal.com.

Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992)( The infringers fair use defense was denied); Gaylord v. United States, 595 F.3d 1364 (Fed. Cir. 2010); Fairey v Associated Press; alleged infringement between A.Brown and littlewhitehead; alleged infringement between Burdeny and Leong; NY Times article 9/28/11, questioning originality of Dylan paintings at the Gagosian; @iplegalfreebies and www.kasterlegal.com.

Sending a Cease and Desist Letter (stop monkeying around) 1

Sending a cease and desist letter is a common way to notify someone that they are using your copyright protected material without your permission and to request that they remove the infringing use and/or pay up.

The owner of the copyright protected material (ie the author, photographer or commissioner of the original work) has the authority to issue a cease and desist letter.  If the infringing use is on a social media website or popular internet website, look to the TERMS or TERMS OF USE agreement posted to the website (usually a clickable at the bottom of the page) for step by step instructions on how to draft your cease and desist letter.  Generally, the ‘Terms of Use’ on a reputable website provide a clear outline of the information that needs to be included in your letter.   Click on the ‘Terms of Use’; scroll down to the ‘Protecting Copyright and Intellectual Property’ section; use the language provided; and give the requested information to the provided contact.

A cease and desist letter is only effective if it is sent by the owner of the work.  A funny scenario surfaced recently, when a news agency sent a cease and desist letter requesting that a photograph taken by a monkey be removed from a website.   But hold on… who owns the copyright in a monkey’s self portrait anyway?!?  Evidently, a monkey in a national park in Indonesia picked up a photographer’s camera and snapped a few pictures.  (One of them is this hilarious self portrait of the monkey. See above or take a look  at –>  http://www.techdirt.com/articles/20110706/00200314983/monkey-business-can-monkey-license-its-copyrights-to-news-agency.shtml.)

Since, the news agency didn’t employ the monkey or own the monkey, nor did it license the monkey’s work… the cease and desist letter that it sent… doesn’t have much oomph.

For more info on what to do if you receive a cease and desist letter, see –> http://wp.me/p10nNq-1B 

BY: Vanessa Kaster, Esq.

vk@kasterlegal.com and www.kasterlegal.com

Tattoo Copyright FACE-off (Mike Tyson’s tattoo artist v. Hangover II movie) Reply

The hoopla surfacing over the unauthorized use of a copyrighted tattoo that is prominently featured in the Hangover II movie sets the stage for examining the elements of a strong copyright claim.  Elements of a strong copyright infringement claim are: 1) is the work original and vested with copyright protection; 2) was the work copied; and 3) was the work copied without authorization.

  • Is the tattoo an original work vested with copyright protection?  Copyright protection is automatically vested in an original work that has been fixed in a tangible form.  A tattoo is ‘fixed’ and if the design is original, then there isn’t any reason why it wouldn’t be covered by copyright protection.  In this instance, the tattoo artist claims that he created the design.  Hopefully he did.  However, one way that the movie studio may try to overcome this claim of originality is by researching ancient or historical tattoo patterns.  If for example, this tattoo was common among Maori-warriors, Samurai  or some other ancient sect, tribe or culture… then the artist’s claim of originality could be trumped depending on how unique and original his version is.
  • Was the tattoo copied?  You bet.  Rather blatantly… and from what I’ve read the exact copying of Mike Tyson’s tattoo is an element of the movie plot.  I just took a look at online photos of the movie character and Mike Tyson for comparison… and the tattoos are virtually identical.  (looks better on Tyson, though).
  • Was the tattoo copied without authorization?  The artist claims that he didn’t authorize the use.

As unexpected as it might seem, this has the makings of a strong copyright infringement claim.  I’m rooting for the tattoo artist… and I hope he negotiates a solid settlement.

The case is: Whitmill v. Warner Bros. Entertainment Inc. –> see Warner Bros. response at http://www.nytimes.com/interactive/2011/05/21/business/media/20110521tattoo-case-warner-brothers.html AND see also http://dockets.justia.com; @iplegalfreebies and www.kasterlegal.com.

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

vk@kasterlegal.com

Copyright Law: Using quotes from someone else in your book, blog or website (part 2) 6

When quotes from copyright protected works can be used in other books, blogs or websites without permission of the copyright owner… is a popular topic… lets explore it further.

As I’ve mentioned before that this is a gray area.  Unfortunately, there are no set rules about how much or what percentage of a copyrighted work can be used for free (ie without permission of the copyright owner); however, here is a tip to keep in mind.  The HEART of a work is heavily protected by copyright law.  What does this mean?  This could be a famous and popular refrain that embodies the HEART of a famous speech; This could be 300 words out of an unpublished memoir that reveals the key (or HEART) of the story; This could be an original and unique part of a song or lyrics (ie the HEART of the work).

Courts use a sophisticated, multi-part test to evaluate when a portion of a copyrighted work can be used without permission.  For the rest of us… using common sense is a good place to start.  If you are copying the HEART of someone else’s work to use in your blog, book or website… permission is probably needed.

For more info on this topic see these other two posts:  http://t.co/2rhWznM and http://wp.me/p10nNq-fd AND for more info on PUBLIC DOMAIN works that are FREE to use and quote from —> http://wp.me/p10nNq-ft  and http://wp.me/p10nNq-gn); @iplegalfreebies and www.kasterlegal.com.

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

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

If you think you Need Permission to use a Copyrighted Work… Get it. Reply

Usually, using a copyrighted work requires permission (often in the form of a license.)  However, The Fair Use Doctrine (that is part of US Copyright law) allows copyrighted works to be used FREELY without requisite permission, in some instances.   Be forewarned… that what qualifies as a ‘fair use’ is more limited than you might think.   Here are a few examples:

  • Using a copyrighted photograph in the national broadcast of a criminal trial………   – IS FAIR USE
  • Publishing plot summaries for a popular science fiction television series………         – NOT FAIR USE
  • A Michael Moore movie poster that copies a “Men in Black” movie poster………..     – NOT FAIR USE
  • Using 300 words out of a former president’s biography  – NOT FAIR USE
  • Incidental inclusion of two paintings in the home of a movie character……………..     – IS FAIR USE

Determining what qualifies as a fair use is a gray area.  Courts evaluate fair use on a case by case basis.  Their analysis involves balancing several factors:  1) the purpose and character of the use, 2) the nature of the work, 3) the amount and substantiality of the portion used, and 4) the effect of the use on the potential market and value of the copyrighted work.   [These factors are out listed in Section 107 of the US Copyright Law.]

Hint: if you think that you might need permission to use a copyrighted work… you probably do.

Licensing a Cover Song: simple music copyright licensing Reply

Securing a license to include a song that you cover (ie a song written by someone else that you record) on your CD is simple and more affordable than you might guess.  For example, if you have recorded a Bruce Springsteen song that you want to include on your ‘soon to be released album’ then you need to secure a license to use the song.  Clearing cover songs has become simple with online licensing and royalty service providers like RightsFlow.

RightsFlow offers an easy online service for licensing cover songs for use on physical CD’s, ringtones, digital downloads and interactive streaming.  So back to the Bruce Springsteen example, the price for licensing a Bruce Springsteen song for use on 500 CD’s and 500 digital downloads is less than $150.00.  If you are selling your CD’s for $10 and giving the digital downloads away for free on your band website… you only have to sell 15 CD’s before you have recovered the licensing costs.  (this is peanuts compared with possible fines and litigation that can be brought on by illegitimate use of a Springsteen song.)

Check out RightsFlow for simple music copyright licensing  –>  http://rightsflow.com/

Note, that RightsFlow offers discounts to ASCAP members.

For more information: @iplegalfreebies and www.kasterlegal.com.

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

vk@kasterlegal.com

ORIGINALITY is Key To Copyright Reply

Originality is key to securing copyright protection over a work.  This is true for literary works, sculptures, paintings, music and all varieties of creative output.  While this may seem obvious, in truth it’s a gray area.  Here are a few examples:

  • TELEPHONE DIRECTORY, WHITE PAGES:  not original; therefore, no copyright protection.
  • PHOTOGRAPH OF AN ARMFUL OF PUPPIES: is original; therefore, making a sculpture that is a deliberate copy of the photograph is a copyright violation.
  • A PAINTING: is original; however, making an engraving of the painting is not a copyright violation because of the engravers artistic use of light, shade, lines and dots.

MARDI GRAS INDIAN COSTUMES: possibly original works of sculpture.  At present the Mardi Gras Indians are seeking copyright projection for their elaborate costumes as works of sculpture.

What does this mean?  For the Mardi Gras Indians it will mean that photo releases, licenses and fees will need to be paid to the Indian sculptors before others copy, reproduce and sell their images as photographs, fine art, in calendars or on t-shirts.

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

vk@kasterlegal.com

for info on copyright registration –> http://t.co/ynaHCbX; @iplegalfreebies and www.kasterlegal.com.

Three Myths About Music Sampling Reply

MYTH:  sampling less than 6 seconds of someone else’s music is okay

MYTH:  sampling less than 5 words of someone else’s lyrics is okay

MYTH:  sampling from a church group is okay

ALL THREE OF THESE STATEMENTS ARE MYTHS.  None of these instances are an automatic green light when it comes to sampling someone else’s music without permission.

[For more on Music Sampling see —> http://wp.me/p10nNq-3A ]

Copyright Law: Using quotes from someone else in your book, blog or website 3

Dr. Martin Luther King Junior’s speech ‘I Have a Dream’ is one of the most recognizable speeches in US history and it is covered by copyright protection.  Dr. King registered the speech for copyright protection in 1963.   This leads to the question, when can quotes from his famous speech or other copyright protected works be used in other books, blogs or websites without permission?

The answer to this question is vague, ambiguous and needs to be analyzed on a case by case basis.  Generally speaking, it is possible to use limited portions of a copyright protected work for news reporting, commentary, criticism and scholarly reports under the fair use doctrine of the US copyright law.  However, there are no legal rules permitting ‘free use’ of a certain  number of words or percentage of a copyrighted work.  Additionally, there are several factors that weigh heavily into the analysis: 1) the purpose and character of the use, 2) how much money will be made from the use, 3) the nature of the work, 4) the amount and substantiality of the portion used, and 5) the effect of the use on the potential market and value of the copyrighted work.

Unfortunately, there is not a clear rule regarding when and how much of a copyright protected work can be used without permission.  Dr. King’s heirs have the legal right under copyright law to monetize the ‘I Have a Dream’ speech that they inherited and to treat it as commercial property.   (The safest bet when quoting from copyright protected work is to seek, pay for, and get permission to use the material.)

Note, that crediting the source does not substitute getting permission to use or quote from the material.

Note 2, any work published in the US before 1923 is likely in the public domain and is FREE to use and quote from. (Copyright protection of these older works has likely expired).

For more information on Copyright and Dr. King’s speeches see this post –> http://wp.me/p10nNq-FD; for more information on using quotes from someone else see these other two posts –> http://t.co/rLurDnX and http://wp.me/p10nNq-fd  AND for more information on PUBLIC DOMAIN works that are FREE to use and quote from —> http://copyright.cornell.edu/resources/publicdomain.cfm; 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

Music Sampling: a few Do’s and Don’ts 6

Music Sampling is the act of incorporating bits of someone else’s musical score or sound recording into your own music.  Music Sampling becomes risky business when it’s done without proper authorization and licenses.  To further complicate things, musicians and composers often view sampling as a logical progression in the music composition process; and often ignore the formalities and laws that regulate sampling.

Here are a few basic Do’s and Don’ts of music sampling.

  • IT’S OK TO:  sample from the song White Christmas (original score) because it in the public domain.
  • IT’S NOT OK: to sample from Frank Sinatra’s sound recordings of the song White Christmas because these are not in the public domain.
  • IT’S NOT OK: to sample ‘arrangement elements’ of Frank Sinatra’s sound recordings of the song White Christmas because the sound recordings are not in the public domain.

The common theme of these three examples is whether or not the sampled music is in the public domain.  The public domain is the land of ‘free public property’ and music that is in the public domain is free for the taking, sampling, using, reproducing, or distributing.

What music is in the public domain?  Any musical score that was published in the US before 1923 is in the public domain, due to expiration of copyright.  There are also newer musical scores in the public domain too, but a case by case analysis needs to be done on scores published in 1923 or later to determine if they are in the public domain and free for sampling.   A significant, but easily overlooked detail, is that almost all sound recordings are ‘new enough’ to still be under copyright protection (this includes bit and pieces of the sound recording as well as arrangement elements) and hence are not necessarily free for sampling.

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

vk@kasterlegal.com.