An Artist’s LOVE – can extend to COPYRIGHT 1

Have you read that the American Pop Artist Robert Indiana (famous for his “LOVE” with a tilted O) will be featured in a new exhibition at the Whitney Museum in NYC? Have you also read that he missed out on controlling all the rights to his famous “LOVE” work because he didn’t copyright it properly?

In a recent NY Times article, Mr Indiana spoke about being brokenhearted over not properly copyrighting his work:

…because ‘LOVE’ – with its tilted O – wasn’t properly copyrighted, it spread to all sorts of places and products [I] didn’t want. And that broke [my] heart. ‘Rip-offs have done a great harm to my own reputation.’

This is an important reminder to artists and creative folks to copyright your work! For a work to be eligible for copyright registration it must be original and “fixed in a tangible form.” This can include any original work, fixed in virtually any tangible form. For example, original copyrightable works can include: sculptures, drawings, photographs, artwork, music, poetry, graffiti, jewelry designs, motion pictures, video clips, translations, texts, manuscripts, recordings…. etc. And the requirement that the work be “fixed in a tangible form” can include traditional mediums such as paper, canvas, clay, DVDs, CDs… and less traditional mediums such as a napkin… scrap of paper… and probably even peanut butter.

Please take Mr. Indiana’s words to heart and copyright your work. For more information on how to copyright your work see my earlier post titled: “Copyright Protection Only Costs $35.

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

vk@kasterlegal.com

See, The US Copyright Office Website at: www.copyright.gov; for more information on the upcoming exhibit of Robert Indiana’s work in NYC www.whitney.org/Exhibitions/RobertIndiana, @iplegalfreebies and www.kasterlegal.com.

As a post script, I mentioned peanut butter above as a possible medium for fixing an original copyrightable work, because, there is a contemporary Double Mona Lisa work made out of PB&J – www.artnet.com/usernet/awc/awc_workdetail.

“The Wind Done Gone” a famous parody of “Gone With The Wind” Reply

Criticism of a copyrighted work (which parody is one variety) is often a protected form of free speech. If a parody is challenged as being a copyright infringement, courts will conduct a “fair use” evaluation to determine if the parody is a permissible fair use for the purpose of criticism, commentary and preservation of free speech.

Parody is generally a mocking criticism of another well known work. As you might have guessed, The Wind Done Gone is a parody of the famous American novel, Gone With The Wind. In The Wind Done Gone the plot follows the story line of Gone With The Wind but is told from the viewpoint of Cynara, a mulatto salve on the plantation who is Scarlett’s half sister and Rhett’s mistress. Cynara ends up being freed and continuing her life off the plantation.

When The Wind Done Gone was published, a trustee for Mitchell (the author of Gone With The Wind) filed a law suit claiming copyright infringement and seeking an injunction to prevent the publication and distribution of The Wind Done Gone. The district court granted the injunction, which was appealed. The appellate court issued an order vacating the injunction on the grounds that it was unconstitutional and issued a comprehensive opinion in 2001 which held that The Wind Done Gone was a fair use parody of the novel, Gone With The Wind.

Here a few interesting quotes from the appellate court’s opinion:

[Note that the court uses abbreviations for the titles of both novels. The Wind Done Gone (TWDG) and Gone With The Wind (GWTW)]

It is hard to imagine how Randall [the author of TWDG] could have specifically criticized GWTW without depending heavily upon copyrighted elements of that book. A parody is a work that seeks to comment upon or criticize another work by appropriating elements of the original. “Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination.” Campbell, 510 U.S. at 580-81, 114 S. Ct. at 1172. Thus, Randall has fully employed those conscripted elements from GWTW to make war against it. Her work, TWDG, reflects transformative value because it “can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.” Campbell, 510 U.S. at 579, 114 S. Ct. at 1171. [**46]

[Note that characters in the two novels have different names which the court references in this next quote. Scarlett is “Other” in TWDG; Rhett is “R.B.” in TWDG; Gerald is “Planter” in TWDG and Pork is “Garlic”]

There are numerous instances in which TWDG appropriates elements of GWTW and then transforms them for the purpose of commentary. TWDG uses several of GWTW’s most famous lines, but vests them with a completely new significance. For example, the final lines of GWTW, “Tomorrow, I’ll think of some way to get him back. After all, tomorrow is another day,” are transformed in TWDG into “For all those we love for whom tomorrow will not be another day, we send the sweet prayer of resting in peace.” Another such recasting is Rhett’s famous quip to Scarlett as he left her in GWTW, “My dear, I don’t give a damn.” In TWDG, the repetition of this line (which is paraphrased) changes the reader’s perception of Rhett/R.B.–and of black-white relations–because he has left Scarlett/Other for Cynara, a former slave. Another clear instance in which a memorable scene from GWTW is taken primarily for the purpose of parody is Gerald/Planter’s acquisition of Pork/Garlic. In GWTW, Gerald won Pork in a card game with a man from St. Simons Island. In TWDG, Planter wins Garlic in a card game with a man from St. Simons Island, but Garlic, far from being the passive “chattel” in GWTW, is portrayed as being smarter than either white character by orchestrating the outcome of the card game and determining his own fate. There are many more such transformative uses of elements of GWTW in TWDG. [**46-47]

The concurring opinion sums it up by stating that The Wind Done Gone is a “book that seeks to rebut a classic novel’s particular perspective on the Civil War and slavery…. its main aim being to shatter Gone With the Wind‘s window on life in the antebellum and Civil War South.”

Arguably exposure to the perspective offered on Civil War and slavery by The Wind Done Gone is a benefit of the First Amendment. Parody and the fair use exception are interesting components of US Copyright Law that highlight the balancing of a copyright owner’s exclusive rights and freedom of speech.

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

vk@kasterlegal.com

See, Suntrust v. Houghton Mifflin Co., 268 F.3d 1257 (U.S. App. 2001) and Suntrust v. Houghton Mifflin Co.,252 F.3d 1165 (11th Cir. 2001); US Copyright Act § 107 on Fair Use at http://www.copyright.gov/title17/92chap1.html#107 and http://www.copyright.gov/fls/fl102.html; The Wind Done Gone at http://www.amazon.com/dp/B0015MLOYI and Gone With The Wind at http://www.amazon.com/Gone-Wind-Margaret-Mitchell/dp/1416548947; @iplegalfreebies and www.kasterlegal.com.

An interesting fact mentioned in the court’s opinion issued in 2001 is that, “since its publication in 1936, Gone With The Wind has become one of the best-selling books in the world, second in sales only to the Bible.”

Getting Paid for… Co-Creating awesome stuff like the game Twister and Superman Reply

Getting paid for creating wildly successful stuff can take many forms and is an important part of the creative process. Often stuff that becomes wildly successful (like the Superman comic and the game Twister) start out as humble creative endeavors created by two co-creators. For example: superman

  • SUPERMAN was created by Seigel and Schuster who created a comic book out of four weeks worth of comic strips that they couldn’t sell. They sold the comic book along with their rights to the creation for $130. (long-running litigation has ensued regarding the existence, validity and scope of an agreement transferring the rights to Superman).
  • TWISTER was created by Foley (a game designer) and Rabens (an artist) who were awarded a twisterUS Patent (No. 3,454,279) for their invention of an “apparatus for playing a game wherein the players constitute the game pieces.” Evidently Foley did not receive royalties for the game; however, he did negotiate a buyout and sold his rights. (According to a Mr. Foley’s obituary this past week, he accepted about $27,000 in a negotiated buyout).

It’s interesting to compare these deals. Did the creators have any idea that their creations would become iconic? Probably not. At least not in the case of Superman. If Superman’s co-creators had known how famous their creation would become, they probably would have negotiated a higher price, residual rights, royalties and possibly reserved merchandising rights.

Personally, I am a big fan of both Superman and Twister! I am in awe of the creative minds who created these gems… and I encourage folks to negotiate creative deals to maximize revenue from their creations. You never know…. your creation could become a cultural icon.

For more information on the ongoing Superman litigation, see also, http://dockets.justia.com/docket/california/cacdce/2:2004cv08400/166317/; http://robot6.comicbookresources.com/2013/03/superman-legal-battle-isnt-over-yet-siegels-try-a-new-strategy/; http://www.businessweek.com/articles/2013-06-13/marc-toberoff-supermans-lawyer; @iplegalfreebies and www.kasterlegal.com.

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

vk@kasterlegal.com

Enterprising Thai student gives book publishers a run for their $$$$ Reply

An enterprising PhD student from Thailand discovered that he could make a profit by reselling textbooks on eBay that were bought in Thailand and shipped to him in the U.S. It’s important to note that the textbooks being bought and shipped to the student were legitimate copies of textbooks that were being manufactured and sold in Asia at a much lower price than the same textbooks are sold here in the U.S. (hence the profit margin). The student was sued by a textbook publisher for copyright infringement and the lawsuit made its way to the U.S. Supreme Court in March 2013.

The Arguments on both sides:

THE TEXTBOOK PUBLISHER argued that copies of the textbooks that were manufactured and sold outside the U.S. could not be imported and resold here in the U.S without their permission.

THE STUDENT argued that legitimate copies of the textbooks could be bought and resold freely as per the “first-sale doctrine” of the U.S. Copyright law.

The first-sale doctrine is codified in Section 109 of the Copyright Act and states that, “the owner of a particular copy…. lawfully made under this title… is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy.”

In March, the U.S. Supreme Court ruled for the enterprising student. Promoting free trade was the primary theme of the court’s opinion. The court held that Section 109 of the Copyright Act does not include a geographical limitation on the resale of legitimately purchased goods containing copyrighted content or materials. If permission of each and every copyright owner was needed to resell items made over-seas, free trade would be impaired. The court reiterated that the intention of the Copyright Act is to “promote the progress of science and useful arts” and is not to impair free trade nor restrict the use and resale of many lawfully purchased items.

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

vk@kasterlegal.com

See also: KIRTSAENG v. JOHN WILEY & SONS, INC. The US Supreme Court opinion available by clicking here and at www.oyez.org; Justice Breyer delivered the opinion for the Supreme Court: www.law.cornell.edu; Copyright Act, Section 109: www.copyright.gov; @iplegalfreebies and www.kasterlegal.com.

Sojourner Truth…. copyright owner (among other heroic acts) Reply

Sojourner Truth registered her historic image “I sell the shadow to support the substance” with the US Copyright Office08978_150px in 1864.   To me, it’s remarkable that in addition to Sojourner Truth’s famed work as an African-American abolitionist and advocate for women’s rights… she was also a copyright owner.

Back in 1864 when Sojourner Truth registered her image with the US Copyright Office, the copyright laws were different than they are today… and claiming copyright protection involved more formalities.  However, the basic principles of copyright protection were the same: controlling the copying, printing, reprinting and publishing of a registered work.  Evidently, Sojourner Truth sold copies of her image to raise money for the abolitionist movement. (ie a good motivation to control the use, copying, printing and reprinting of the image with copyright registration).

While I have always held Sojourner Truth in high regard for her historic advocacy work, I’m adding copyright owner to the list of her heroic acts.

(The copyright notice on Sojourner Truth’s historic image caught my eye while visiting a recent exhibition of Civil War Photography at the Metropolitan Museum of Art).

See also, www.nps.gov/wori/historyculture/sojourner-truth.htm; US Copyright Act of 1790 at www.copyright.gov/history/1790act; www.loc.gov/pictures/item/98501244/; @iplegalfreebies and www.kasterlegal.com.

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

vk@kasterlegal.com

Unleashing viral whiplash instead of a lawsuit 1

An online following of over 617,000 folks can be a powerful negotiation tool.  I read recently that a NY street-photographer leveraged his online following by “unleashing a viral whiplash” on DKNY for using some of his photographs in a Bangkok window display without permission.

Evidently, DKNY approached the photographer for permission to use some of his photographs… but the parties couldn’t agree on a price and the deal fizzled out.  Yet… some of the photographer’s photographs ended up being used anyway in the window display of a DKNY store in Bangkok.  Someone who happened to be familiar with the photographer’s work (possibly one of the 617,000 folks who follow the photographer online) saw the images in Bangkok and notified the photographer.

This is where it gets interesting!  In response, the photographer launched the following online campaign by posting this on Facebook at 9:01am on 2/25/13 [The Facebook page for HUMANS OF NEW YORK]:

I am a street photographer in New York City. Several months ago, I was approached by a representative of DKNY who asked to purchase 300 of my photos to hang in their store windows “around the world.” They offered me $15,000. A friend in the industry told me that $50 per photo was not nearly enough to receive from a company with hundreds of millions of dollars of revenue. So I asked for more money. They said “no.”

Today, a fan sent me a photo from a DKNY store in Bangkok. The window is full of my photos. These photos were used without my knowledge, and without compensation.

I don’t want any money. But please SHARE this post if you think that DKNY should donate $100,000 on my behalf to the YMCA in Bedford-Stuyvesant, Brooklyn. That donation would sure help a lot of deserving kids go to summer camp. I’ll let you guys know if it happens.

The online campaign quickly transformed into viral whiplash.  The Facebook post garnered over 4,500 comments the same day that it was posted and was noticed and “liked” by over 41,000 folks and was shared over 30,000 times.  Within four hours, DKNY issued a prompt apology and pledged to make a $25,000 charitable donation to the YMCA in Bedford-Stuyvesant Brooklyn in the photographer’s name.  [Click to read DNKY’s statement issued at 12:52pm on 2/25/13 and the photographer’s response accepting the donation as a settlement issued at 1:18pm on 2/25/13].

Not the full $100,000 donation that was asked for… but a creative an interesting negotiation and resolution within FOUR hours.  In support of this creative negotiation I “liked” the Facebook page for HUMANS OF NEW YORK, becoming follower number 617,012.

See also, a creative resolution to a trademark infringement between Franklin & Marshall college and a hot European Brand at http://wp.me/p10nNq-lu; @iplegalfreebies and www.kasterlegal.com.

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

vk@kasterlegal.com

Saving America’s Recorded Sound Heritage Reply

It’s amazing to think about the vast treasure trove of sound recordings archived at the Library of Congress — historic speeches, music, radio

broadcasts and other recordings. Early recordings of Gershwin and Judy Garland; Alexander Graham Bell’s earliest sound recording experiments; a recording of a Blackfoot tribal song made in 1906; and a wire recording made in the cockpit of the Enola Gay during the bombing of Hiroshima in 1945. Evidently, these are just a few pieces of American history captured in sound recordings and archived within the Library of Congress.

This week, the Library of Congress unveiled an extensive plan (called the Library of Congress National Recording Preservation Plan) to help libraries and archives nationwide preserve historic sound recordings. Unfortunately, it seems that many of the oldest recordings which were recorded on cylinder records may have already been lost… although, hopefully this new preservation plan can help to save whats left of America’s recorded sound heritage for future generations. In a statement released this week, James H. Billington, Librarian of Congress stated:

The publication of this plan is a timely and historic achievement…. As a nation, we have good reason to be proud of our record of creativity in the sound-recording arts and sciences. However, our collective energy in creating and consuming sound recordings has not been matched by an equal level of interest in preserving them for posterity. Radio broadcasts, music, interviews, historic speeches, field recordings, comedy records, author readings and other recordings have already been forever lost to the American people.

Collecting, preserving and providing access to recorded sound requires a comprehensive national strategy. This plan is the result of a long and challenging effort, taking into account the concerns and interests of many public and private stakeholders. It is America’s first significant step toward effective national collaboration to save our recorded-sound heritage for future generations

The Library of Congress and the Smithsonian Institute have been awarded a grant of $750,000 to preserve the irreplaceable sound recording treasures in their archives and they are trying to raise an additional $750,000 in matching funds. (for more on Save Our Sounds http://www.loc.gov/folklife/sos/index.html)

The vast treasure trove of America’s recorded sound heritage is awesome and awe inspiring. With any luck, the preservation efforts may also start making some of these historical recordings available to the public.

See also: News update from the Library of Congress at http://www.loc.gov/today/pr/2013/13-014.html; quotes from the National Sound Preservation Plan at http://www.loc.gov/today/pr/2013/files/SoundPreservationPlanQuotes.pdf; the Save Our Sounds initiative at http://www.loc.gov/folklife/sos/index.html; http://www.cbsnews.com/8301-201_162-57569264/library-of-congress-unveils-plan-to-save-historic-recordings/; and www.kasterlegal.com

“Founded in 1800, the Library of Congress is the nation’s oldest federal cultural institution. It seeks to spark imagination and creativity and to further human understanding and wisdom by providing access to knowledge through its vast collections, programs and exhibitions. Many of the Library’s rich resources can be accessed through its website at www.loc.gov.”

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

vk@kasterlegal.com

Summary for Photographers of IP Legal Freebies: Reply

And a few lagniappe topics:

This post is a valentine for my mom… who will be lecturing on this topic for other authors and photographers over the weekend.

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

vk@kasterlegal.com

 

Looking back at the top posts on IP Legal Freebies Reply

As we kick off a new year, let’s take a look at the top posts on IP LEGAL FREEBIES:

  1. Copyright Law: Using quotes from someone else in your book, blog or website Using Dr. Martin Luther King Junior’s famous ‘I Have a Dream’ speech as an example of a copyrighted work filled with famous quotes… we take a look at the fair use doctrine and how evaluations are made regarding use of copyrighted content.
  2. Music Royalties will start being paid for plays on YouTubeIn 2012 YouTube started paying royalties for plays on their website.
  3. How to write a © copyright notice and why to use itWriting a copyright notice on your original work is free and easy to do. (if you aren’t already in the habit of doing this, make it a new years resolution!)
  4. Copyright Law: Using quotes from someone else in your book, blog or website (part two)Remember that the HEART of a work is heavily protected by copyright law.
  5. Copyright is valuable – ‘The Birthday Song’ earns $2 Million a year in royaltiesWe all know it… it’s only eight measures long, spans an octave and was written for children …but it’s a big money maker.
  6. Understand How You’re Getting Paid – ROYALTIES on GROSS vs NET REVENUE and an ADVANCESeeing these words in a contract or agreement will impact payment… become familiar with the meaning of these terms.
  7. ‘NAME Brand’ – Using your name as a brand and trademarkPaul Revere may have been the first American entrepreneur to use his name to brand his products. Are you considering it too?

Happy New Year! Thank you for reading. Wishing you all the best with your creative and entrepreneurial endeavors.

For the latest post see: https://iplegalfreebies.wordpress.com and www.kasterlegal.com; @iplegalfreebies and www.kasterlegal.com.

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

vk@kasterlegal.com