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

The Naked Cowboy… wearing boots and a trademark Reply

It’s not optimal weather here in NYC today for wearing only a cowboy hat, boots, and briefs… in Times Square. But in better weather it’s likely that you have seen (or taken a picture with) the Naked Cowboy. He performs regularly in Times Square wearing only his cowboy hat, boots, briefs and a guitar. The words “Naked Cowboy” are emblazoned on the back of his briefs, on his hat and on his guitar…and the “$” is painted on his boots. Not only does he wear his brand… but he has also registered it as a trademark with the USPTO for Entertainment Services (Reg. No. 3792432). [Click here for photo]

In an attempt to challenge CBS for including a look-a-like character on their daytime show “The Bold and The Beautiful,” the Naked Cowboy sued CBS for trademark infringement. In an episode of the “The Bold and The Beautiful,” one of the characters appeared wearing only briefs, a cowboy hat, and boots while singing and playing the guitar…. and this prompted the Naked Cowboy to sue CBS. An interesting and critical detail to the lawsuit is that the words “Naked Cowboy” did not appear anywhere during the episode, the words were not on the look-a-like, nor were they spoken aloud. Nor did the look-a-like have “$” painted on his boots. Since the words “Naked Cowboy” were not used by CBS, the court held that there was no trademark infringement.

Additionally, the Naked Cowboy challenged the purchase from YouTube of adword advertising for the term “Naked Cowboy”… as well as the use of “Naked” and “Cowboy” as searching TAGS on YouTube. The court held that these actions did not violate the Naked Cowboy’s trademark because the words were not placed on any goods or containers or displayed in a way to indicate source or sponsorship.

If you were wondering if you would violate Trademark Law if you wore only a cowboy hat, boots and briefs… the answer is… NO. This is something you are free to add to your to-do-list. (you won’t violate Trademark Law, anyway)

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

vk@kasterlegal.com

The case: Naked Cowboy, d/b/a Naked Cowboy Enterprises v. CBS and Bell-Phillip Television – Case No. 11 Civ. 0942–BSJ–RLE. Opinion issued by the S.D.N.Y. on February 23, 2012. See also: http://dockets.justia.com; @iplegalfreebies and www.kasterlegal.com.

An interesting online concert venue via STAGEIT.COM Reply

@

New and creative outlets and revenue streams are possible for artists on the internet.  Have you heard of STAGEIT.COM?  I just read about and surfed through the Stageit.com website and I’m impressed with the platform that it offers for artists to host live events online … and make money.

Via the Stageit.com website an artist can invite fans to join live events, concerts and jam sessions via the internet.  The interesting twist is that an artist can use a laptop to record and transmit their live performance (strumming guitar in their kitchen or recording in a studio.. etc) to their fans… who buy cheap tickets to tune into the concert from their own laptops.  Ticket prices vary and can range from ‘pay what you wish’ to a couple of dollars.  Stageit.com advertises that it gives artists up to 60% (sixty percent) of the ticket sales.  While I might prefer to see 80%-90% going to the artist… 60% isn’t too shabby.

Another fun feature of the website is that fans viewing the Stageit.com performances can tip to request songs and can also use Twitter to chat with performers.

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

vk@kasterlegal.com

For more info on this topic see  —>http://www.stageit.com/  and http://www.businessweek.com/magazine/evan-lowensteins-stageit-a-live-music-site-02092012.html; @iplegalfreebies and www.kasterlegal.com.

LOVING is the heart of the matter 1

A current exhibit at the ICP (International Center of Photography) is a collection of exquisite photographs taken at the home of Mildred and Richard Loving by Grey Villet. The photographs add a personal, intimate glimpse into the lives of the married couple who successfully defeated Virginia’s state laws forbidding interracial marriage in the 1950’s. After nearly a decade of lawsuits and arrests, the U.S. Supreme Court ruled in favor of the Lovings and held that state laws forbidding interracial marriage were unconstitutional.

In a unanimous decision by the court, the Chief Justice writes:

Marriage is one of the basic civil rights of man, fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Fitting that their last name is … “Loving”!

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

vk@kasterlegal.com

To see some of the photographs and read more about the exhibit: http://lens.blogs.nytimes.com/2012/01/18/the-heart-of-the-matter-love/ and http://www.icp.org/museum/exhibitions/loving-story-photographs-grey-villet. The case is Loving v. Virginia, 388 U.S. 1(1967) available at: http://supreme.justia.com/cases/federal/us/388/1/case.html

Lady Gaga defends her NAME as a trademark Reply

Lady Gaga successfully trumped the trademark application of a company who attempted to register her name as a trademark without permission.  Kind of sneaky to attempt to register LADY GAGA as a trademark to sell makeup and jewelry.  (Celebrities often get big bucks to endorse products).

Can a name be used as a trademark?  Yes!  If it’s your own name… or if you have a signed written consent to use another person’s name.  When submitting a trademark application to register another person’s name as a trademark, a signed consent must be submitted along with the trademark application.  In this case, a signed written consent would be needed from Stefani Germanotta to use her stage name, Lady Gaga, as a trademark.  (Could also be different if a common name like JOHNSON were at issue.. but LADY GAGA is unique name of a mega-superstar).

What happened?  The unauthorized LADY GAGA trademark registrations were cancelled.  (The unauthorized applicant filed for express abandonment of the trademark applications).  …and a lawsuit was filed in Manhattan.

For more info on this topic see also —> http://wp.me/p10nNq-4F .  The trademark applications at issue were serial numbers 85032486 and 85033835 filed by Excite Worldwide LLC. @iplegalfreebies and www.kasterlegal.com.

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

vk@kasterlegal.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.