Happy Birthday Shakespeare (Your prose… a public domain goldmine) 2

William Shakespeare turns 450 today.  His masterful use of language keeps his plays popular, relevant, in production and available to us all as literary treasures in the public domain.  Public domain works, like Shakespeare’s plays, are available for the public to use, copy, distribute, perform, quote, sample and make derivative works from… for free.  Shakespeare’s plays are in the public domain because they are nearly 400 years old.  (Here in the United States, works published before 1923 are in the public domain).

It’s important to note that newer productions, translations or works based on Shakespeare plays may still be covered by copyright protection… and may NOT be in the public domain.  For example, movies of Shakespeare plays are “new” enough to still be covered by copyright.  The length of time that a play or other creative work is protected by copyright, and the timeline for when works enter the public domain varies country by country.

Happy Birthday Shakespeare!  Thank you for your stellar intellectual property!  “…can one desire too much of a good thing?”

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

vk@kasterlegal.com

See also: earlier blog posts on the topic of “public domain,” https://iplegalfreebies.wordpress.com/category/public-domain/; other copyright and public domain resources, http://www.copyright.gov, http://copyright.cornell.edu/resources/publicdomain.cfm, http://creativecommons.org/publicdomain/; ending quote from, As You Like It; @iplegalfreebies and www.kasterlegal.com.

Vivian Maier- Publishing a newly discovered photo treasure-trove 2

Finding Vivian Maier, is a fascinating, documentary film about a talented street photographer who kept her photographs secret… and was recently discovered when a young entrepreneur purchased boxes of her negatives and undeveloped film on a hunch at auction. This situation raises an interesting copyright scenario; because, Vivian Maier took her photographs from the mid-1950’s-1990’s but they are only now being “published” and made available to the public for viewing, sale and distribution. The “publication” of a work is an element in copyright registration that can often seem mysterious for a first-time copyright registrant. Let’s take a look at the publication element in US copyright registration by using Vivian Maier’s newly discovered photographs as an example.

Here is background on Vivian Maier and her photographs: “Now considered one of the 20th century’s greatest street photographers, Vivian Maier spent her life as a nanny, secretly taking over 100,000 photographs. Hidden during her lifetime, Maier’s work was discovered by pure chance when amateur historian John Maloof ended up with a stash of her photo [negatives] at an auction. Fascinated, he searched for more—and for the story behind the woman. Now, this unsung art- its strange and riveting life and work are revealed through never-before-seen photographs, films and interviews with dozens who thought they knew her.”   [the synopsis of the film, Finding Vivian Maier, as posted on the IFC website at http://www.ifccenter.com/films/finding-vivian-maier/] [the film gets 2 thumbs up].

What is copyright publication?
Publication has a technical meaning in copyright law. According to the statute, “Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.” Generally, publication occurs on the date on which copies of the work are first distributed to the public. [Quoted from the US Copyright Office website at http://www.copyright.gov/help/faq/faq-definitions.html]

Why is the publication date of a copyrighted work important?  Because, the publication date of a work may impact the duration of copyright protection vested in a work. This is especially true for works, like many of Vivian Maier’s photographs, which were created before January 1, 1978 but only recently published. Here are details on how long copyright protection endures:

  • Copyright Protection for Works Originally Created on or after January 1, 1978.  A work that was created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author’s life plus an additional 70 years after the author’s death. In the case of “a joint work prepared by two or more authors who did not work for hire,” the term lasts for 70 years after the last surviving author’s death. For works made for hire, and for anonymous and pseudonymous works (unless the author’s identity is revealed in Copyright Office records),the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter. [Excerpt from US Copyright Office, Circular 1 at http://www.copyright.gov/circs/circ01.pdf]
  • Copyright Protection for Works Originally Created Before January 1, 1978, But Not Published or Registered by That Date. These works have been automatically brought under the statute and are now given federal copyright protection. The duration of copyright in these works is generally computed in the same way as for works created on or after January 1, 1978: the life­plus­70 or 95/120­year terms apply to them as well. (Many of Vivian Maier’s newly discovered and published works likely fall into this category).  [Excerpt from US Copyright Office, Circular 1 at http://www.copyright.gov/circs/circ01.pdf]
  • Copyright Protection for Works Originally Created and Published or Registered before January 1, 1978.  There is quite a bit of variation in copyright terms vested in works created and published before January 1, 1978. The longest term of copyright protection for these works was for 95 years [See page 6 of US Copyright Office, Circular 1 at http://www.copyright.gov/circs/circ01.pdf]

For Vivian Maier’s newly discovered and published works, they will likely benefit from a longer term of copyright protection; since, they have recently been published some twenty to sixty years after they were taken.

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

vk@kasterlegal.com

See also: Information about Vivian Maier at http://www.vivianmaier.com/about-vivian-maier/; the US Copyright Office website at http://www.copyright.gov/help/faq/faq-definitions.html; US Copyright Circular 1: Copyright Basics at http://www.copyright.gov/circs/circ01.pdf and http://www.copyright.gov/circs/circ01.pdf#page=3; show times for seeing Finding Vivian Maier at the IFC in NYC at http://www.ifccenter.com/films/finding-vivian-maier/; @iplegalfreebies and www.kasterlegal.com.

FIRST KISS viral video (the music was used with permission) 2

The FIRST KISS video that went viral earlier this month is a digital advertising phenomenon that uses music with permission! Giving a shout out the folks involved for doing it right! Here, the clothing company Wren created a three-and-a-half-minute video featuring pairs of strangers kissing for the first time accompanied by the musician Soko’s song, “We Might Be Dead Tomorrow,” which was licenseFirst Kissd for use in the video. Within days of being released on YouTube, the video went viral… and over 73 million views later, both the clothing company and the musician are selling more and making more money.

According to a recent NY Times article, “there has been a ‘significant bump’ in sales on Wren’s online store since the video made its debut. And the song accompanying the video, Soko’s ‘We Might Be Dead Tomorrow,’ sold 10,000 copies in North America on Tuesday and Wednesday [following the video’s release].”  It’s also reported that sales for Soko’s album featuring the song went up too and that the video was made on a modest budget of about $1,300.

Three cheers for the entrepreneurial ladies (clothing designer, musician and video director) for their successful collaboration on the FIRST KISS viral video phenomenon.   Gotta love a happy ending.

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

vk@kasterlegal.com

See also: YouTube video link at https://www.youtube.com/watch?v=IpbDHxCV29A; The NY Times Article by J. Koblin, “A Kiss Is Just a Kiss, Unless It’s an Ad for a Clothing Company” at http://www.nytimes.com/2014/03/14/business/media/a-kiss-is-just-a-kiss-unless-its-an-ad-for-a-clothing-company.html?_r=0; Wren’s website at http://wrenstudio.com/clothing/; @iplegalfreebies and www.kasterlegal.com.

Title Copycats – (Titles are not protected by copyright) Reply

Evidently, Stieg Larsson’s popular trilogy of books The Girl With the Dragon Tattoo, The dollar (2)Girl Who Played With Fire, and The Girl Who Kicked the Hornet’s Nest have inspired a plethora of title copycats.  NINETY-ONE title copycats as per a recent count that have used a similar title since 2010 when The Girl With the Dragon Tattoo became an international sensation.  This raises an interesting and common copyright question regarding the copyright protection vested in the TITLE of a copyrighted work.

Does Copyright Protect The Title of a Work?  In the US the short answer is NO.  US Copyright Law does not protect titles, names, short phrases or expressions.  Even if the title is original or distinctive it cannot be protected by copyright.  Entirely different works can have the same or a similar title.  This may seem counter intuitive; since, US Copyright Law does protect “original works of authorship” in the form of literary, musical, pictorial or graphic expression.  However, titles, names and other short phrases do not meet the requirements for copyright protection.  (Some names and short phrases can be protected by trademark).

Back to the 91 title copycats who have recently published books similar to the titles of Larsson’s popular Girl With the Dragon Tattoo series.  A few of my personal favorites of the copycat titles are: The Girl With the Thistle Tattoo; The Girl With the Sandwich Tattoo; The Girl With the Iron Touch, The Girl with the Golden Parasol; The Girl With the Brave Heart and The Girl With Chipmunk Hands.  (All can be purchased on Amazon… target difference age ranges and cover a wide range of topics).

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

vk@kasterlegal.com

For more information see, Circular 34: Copyright Protection Not Available For Names, Titles and Short Phrases published by the US Copyright Office; The Title With The 91 Imitators by H. O’Neill in New York Magazine; earlier posts “How to Write a © copyright notice and why to use it?” and “Copyright Protection Only Costs $35“; @iplegalfreebies and www.kasterlegal.com.

Are Sherlock Holmes characters and story elements copyrighted? Reply

A lawsuit over the FREE USE of the Sherlock Holmes characters and story elements prompted the US District Court in the Northern District of Illinoisdollar (2) to do some detective work into the famous, fictional detective to determine whether Holmes, other characters and story elements of Sir Arthur Conan Doyle’s books and stories had entered into the public domain.

The lawsuit, Klinger v. Conan Doyle Estate, raises two interesting copyright questions:  1) what are the copyrightable elements of a literary work; and 2) when do copyrightable elements of a literary work enter the public domain and become available for free public use.

As a bit of background info, Sir Arthur Conan Doyle authored four novels and 56 short stories featuring Sherlock Holmes and Dr. Watson and published these in the US over a span of 30 years (from 1890 – 1926). As one might expect, new characters and plot elements were introduced in the novels and short stories over time.  Hint: these details are critical to the court’s analysis of the copyright questions raised in the case.

QUESTION 1: Copyrightable Elements of a Literary Work.  The court held that copyright protection extends to characters, character traits, and storyline because these are copyrightable “increments of expression.”  By contrast, the court reiterated a general tenant of US copyright law that “ideas, plots, dramatic situations and events” are not elements in a literary work that are protected by copyright.

QUESTION 2: When Do Copyrightable Elements of Sir Author Conan Doyle’s Literary Works Enter the Public Domain and Become Available For Free Public Use?  The short answer is that his works published prior to 1923 are in the public domain.  Since Sir Author Conan Doyle published works featuring Sherlock Holmes and Dr. Watson both before and after 1923, the court analyzed the publication dates of the works and the introduction of various copyrightable “increments of expression” (including characters, character traits and storyline) to determine which were published pre-1923 and post-1923.  Those published pre-1923 are in the public domain and those published post-1923 are still protected by copyright.

Interestingly, some of the post-1923 characters, character traits and storylines that were at issue in the lawsuit and held by the court to be still protected by copyright are: 1) Dr. Watson’s second wife (introduced in 1924); 2) Dr Watson’s background as an athlete (introduced in 1924); 3) and Sherlock Holmes’ retirement from his detective agency (introduced in 1926).

Only 10 of Sir Author Conan Doyle’s works featuring Sherlock Holmes and Dr. Watson were published in the US post-1923 and are still covered by copyright protection.  The 50 earlier works are in the public domain, which means that “increments of expression” including characters, character traits and storyline (most notably Sherlock Holmes and Dr. Watson) are available for the public to use for free without a license.

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

vk@kasterlegal.com

This summary is based on the Memorandum Opinion and Order issued by the United States District Court for the Northern District of Illinois in a ruling on the plaintiff, Klinger’s, motion for summary judgment against the Conan Doyle Estate.   See also: earlier blog posts on the topic of “public domain,” https://iplegalfreebies.wordpress.com/category/public-domain/; other copyright and public domain resources, http://www.copyright.gov, http://copyright.cornell.edu/resources/publicdomain.cfm, http://creativecommons.org/publicdomain/; @iplegalfreebies and www.kasterlegal.com.

Benefits of US Copyright Registration Reply

Copyright vests automatically in an original work once it is ‘fixed’ in a tangible dollar (2)form.  While copyright vests automatically, it can also be advantageous to register an original work for copyright registration with the US Copyright Office.  Registering a work with the US Copyright Office is not a requirement but it can be beneficial for the following reasons:

  • Registration with the US Copyright Office establishes a public record of the basic facts including ownership of an original work.
  • Before an lawsuit may be filed against someone infringing your work, registration is necessary with the US Copyright Office for works of US origin.
  • If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions.  Otherwise, only an award of actual damages and profits is available to the copyright owner.
  • If registration is made within 5 years of publication of the work, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
  • Registration with the US Copyright Office allows the owner of the copyright to record the registration with the US Customs Service for protection against importation of infringing copies.

It is possible to file for US Copyright Registration at anytime within the life of the copyrighted work.  Currently, it only costs $35 to file an application with the US Copyright Office for registration.

The term of copyright protection for a work created on or after January 1, 1978 is for the life of the author plus 70 years (or if a work is made for hire the term of copyright protection is 95 years from the date of publication or 120 years from the date of creation, whichever expires first.)

Wishing all of you reading this post a Happy New Year!   Starting off the new year with a reminder that all your original creative content that is written down, drawn, painted, recorded, sculpted or otherwise fixed… is automatically vested with copyright feels auspicious.  As detailed above, taking the extra step to register your work with the US Copyright Office can be beneficial.

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

vk@kasterlegal.com

For more information see, Circular 1, Copyright Basics; Circular 15A, Duration of Copyright. and all the information circulars and fact sheets available at the US Copyright Office website: http://www.copyright.gov/circs/; and also an earlier post “Copyright Protection Only Costs $35“; @iplegalfreebies and www.kasterlegal.com.

3D Printing – A New Dimension of Possible Copyright and Trademark Infringement (Scan or Design and Print 3D Objects) Reply

3D

3D Printer

It’s possible to print in 3D by scanning an object to create a 3D model file… and then printing it with a 3D printer (be careful not to infringe a copyright, trademark or patent in the process).  The ability to scan an object with a laser to create a 3D model file is particularly interesting to me, because, it opens up a new dimension of (potential) intellectual property infringement.  For example, scanning and printing someone else’s original jewelry design could be copyright infringement.

3D printing is an additive process by which incredibly thin layers of material are ‘printed out’ and built up to create a three-dimensional object.  This is accomplished by using 3D model files to provide 3D printing instructions to 3D printers.  As you might guess, 3D model files can be generated in several ways including: 1) scanning an object, 2) using design software to create a design from scratch and 3) re-designing a scanned image by using design software.  For example, it would be possible to scan an engagement ring and scan a family pet and combine the two scans to replace the ring’s center stone with a miniature image the beloved pet.  (Perhaps not an example of something folks are rushing to do… but you get the idea.  The possible infringement comes into play if scanning and reproducing an object infringes a copyright, trademark or patent, like a copyrighted jewelry design).  The 3D scanner that I saw in action involved a slowly rotating pedestal and a laser scanner that was being used to scan a person and print out a miniature, plastic, 3D-action-figure portrait of the scanned person.

Interestingly, 3D printers can print in a wide range of materials including plastic, some medals, ceramic type materials that can be fired and even edible substances.  (The article I read about printed food didn’t sound too appetizing).

While this blog post is focused on mentioning the new dimension of intellectual property infringement  (including copyright, trademark and patent) that is possible with 3D printing, there are countless other possibilities available with 3D printing.  In fact, you may have read that Philadelphia has just become the first city in the US to ban the use of 3D printers to manufacture firearms.  On a more positive note, artists and engineers are designing and printing fascinating new works.  The Out of Hand exhibit at the Museum of Art and Design features some of these creative new works.

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

vk@kasterlegal.com

For more information, see also, Makerbot printers at www.makerbot.com; Shapeways 3D printing marketplace and community at www.shapeways.com; the Out of Hand exhibit at the Museum of Art and Design featuring artistic uses of 3D printing at http://madmuseum.org/exhibition/out-hand; news about Philadelphia’s ban at  www.forbes.com/sites/timworstall/2013/11/25/how-cute-philadelphia-passes-law-banning-3d-gun-printing; @iplegalfreebies and www.kasterlegal.com.

Video Parody on Coca-Cola’s Soda-Guzzling Polar Bears Highlights Gruesome Health Consequences Reply

A thought provoking video parody has been released by The Center for Science in Public Interest to fuel its longstanding campaign to reduce the consumption of soda and other sugary drinks.  The video parodies the soda-guzzling polar bears featured in Coca-Cola commercials by featuring a polar bear family (The Real Bears) that suffer from the unhappy health consequences of consuming too much soda including: weight gain, diabetes, tooth decay, obesity, impotence and amputation.

The synopsis of The Real Bears video from the website of The Center for Science in Public Interest:

The Real Bears tells the story of a family of polar bears who, even in their distant Arctic environment, are not immune from sunny marketing messages from Big Soda. The whole family is consuming too much soda… and is experiencing everything from weight gain to tooth decay to problems in the bedroom. Only after recuperating from a terrifying visit to Doc Fox’s chilly surgical suite does Pop Bear come to realize that soda has brought nothing but sadness to his family. In the film’s stirring dénouement, he leads his family to reclaim their health—and their happiness.

This video of The Real Bears is an interesting example of a parody, which is one type of fair use exception to the exclusive rights of a copyright holder.  I don’t know that any challenges or copyright infringement claims have been made against “The Real Bears” video; however, the video provides an interesting opportunity to review the legal standards for a parody.

When a court evaluates if video, or other work, is entitled to fair-use protection as a parody they analyze the four fair-use factors codified in Section 107 of the U.S. Copyright Act.  Here are the four fair-use factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

When assessing whether a parody is entitled to fair-use protection under the U.S. Copyright Act, all four of the factors are to be analyzed and the results weighed together in light of the purposes of copyright.  The purposes of copyright balance the exclusive rights of copyright owners and rights of the public including free speech, criticism and commentary of a work.

FILM CREDITS: The film features an original song, Sugar, by Grammy-award winning singer-songwriter Jason Mraz which he wrote and performed with the San Diego-based rapper MC Flow.

HEALTH FACT ABOUT SODA CONSUMPTION listed on the CSPI website: Soda and sugary drinks are the biggest single source of calories in the American diet, accounting for about 7 percent.

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

vk@kasterlegal.com

See also, The Real Bears video at http://therealbears.org/#video; the website for The Center for Science in Public Interest at http://cspinet.org/new/201210101.html; the US Copyright Act at www.copyright.gov/title17/92chap1.html; another blog post on parody; @iplegalfreebies and www.kasterlegal.com.

Copyright in photographs… a bundle of exclusive rights Reply

Photographs are one type of “original works of authorship” that copyright law protects. Copyright protection gives the authors or owners of a copyrighted photograph the exclusive rights to do and to authorize others to do the following:

  • TO REPRODUCE the copyrighted photograph;
  • TO PREPARE DERIVATIVE WORKS based upon the copyrighted photograph;
  • TO DISTRIBUTE COPIES of the copyrighted photograph to the public by SALE or OTHER TRANSFER of ownership, or by rental, lease, or lending;
  • TO DISPLAY the copyrighted photograph publicly;
  • TO PERFORM the copyrighted work publicly. (Performance may be less applicable to photographs; although, in today’s digital age it could be possible and worth mentioning).

These exclusive rights in copyrighted works, including photographs, are outlined in Section 106 of the US Copyright Act. Violating any of the rights vested in the owner of a copyrighted photograph is illegal. However, it is important to note that there are some exceptions and limitations to these rights. One major limitation is the doctrine of “fair use.”

While copyright exists in any original photograph (and any original work) from the time the work is created in a fixed form, registering the photograph with the US Copyright Office has additional advantages including: 1) establishing a public record of the copyright; and 2) assisting with any infringement actions that may arise. (Keep in mind that applying for Copyright Registration is not expensive – Copyright registration only costs $35).

For more information on using someones photograph on your blog or website click here to see another post on the topic.

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

vk@kasterlegal.com

See also, the US Copyright Act at http://www.copyright.gov/title17/92chap1.html; the US Copyright Circular 1 on Copyright basics at http://www.copyright.gov/circs/circ01.pdf; the US Copyright Office Website at www.copyright.gov; other blog posts on photography copyright; other blog posts on copyright registration of original works; @iplegalfreebies and www.kasterlegal.com.

Jewelry Designs can be copyrighted Reply

The US Copyright Office provides copyright registration for original jewelry designs. While reading a recent article about an alleged copyright infringement of jewelry designs by Urban Outfitter in The Columbia Spectator… the article makes the assumption that jewelry designs are ineligible for copyright registration and protection because they are “fashion designs.” This is not the case, folks. Original jewelry designs are eligible for copyright registration and protection. [Note that Originality is Key].

Jewelry Designs ≠ Fashion Designs

Currently the US Copyright Office (when it’s not closed due to the Government Shutdown) provides copyright registration for original jewelry design as a “work of the visual arts.” The US Copyright Office eCO application defines jewelry design as follows:

Jewelry design includes 3-dimensional designs applied to rings, pendants, earrings, necklaces, and the like.

Fashion Designs are another story. Copyright registration of original fashion designs is currently being considered in the Innovative Design Protection Act.

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

vk@kasterlegal.com

See also, the US Copyright Office definitions at http://www.copyright.gov/eco/help-author.html#visual; other blog posts on copyright registration of original works; @iplegalfreebies and www.kasterlegal.com.