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could be a famous and popular refrain that embodies the HEART of a famous speech; This could be 300 words out of an unpublished memoir that reveals the key (or HEART) of the story; This could be an original and unique part of a song or lyrics (ie the HEART of the work).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

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

Opt-in vs. Opt-out: US Court Rejects Google’s Digitized Books Deal 4

For several years, Google has been working to scan millions of printed books and make them widely available in an epic, digital library.   This ambitious undertaking hit a setback this week when the US Court of Appeals rejected ‘the deal’ that Google negotiated with authors and publishers to actualize this plan.   A critical issue in the court’s rejection was that the agreement reached with authors and publishers was an ‘opt-out’ vs. an ‘opt-in’ deal.  This means that folks would have to proactively ‘opt-out’ of being included in Google’s digital library, rather than ‘opting-in’ to the library.  This decision is in line with standard licensing deals and contracts, where a signature (which is an official ‘opt-in’) is required to enter a binding agreement regarding the use of copyrighted works.

Why is Google pushing for the ‘opt-out’ deal instead of the ‘opt-in’?  For the obvious reason that more books will be included in the digital library if the automatic default is inclusion.  Additionally, an ‘opt-out’ deal would automatically include millions of books that are currently under copyright protection, but whose authors are unknown or can’t be found (these types of works are known as ‘orphan works’).

What will happen next?  It is possible that a substantially revised agreement could keep this ambitious digital project moving forward.  However, for now, the deal has been rejected for several reasons… including violation of copyright and antitrust laws.

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 ]

‘NAME Brand’ – Using your name as a brand and trademark 3

It is not uncommon for businesses to be named after their founders… nor is it uncommon for famous celebrities and politicians to create businesses using their names.   In both instances, a person’s name can become their brand and trademark.  For a person’s name to be registered as a trademark it must be associated with goods or services in commerce (or soon to be in commerce).

For example, Sarah Palin recently filed a trademark application with the U.S. Patent and Trademark Office to register her name as a trademark.  The service that she is using her name to sell and promote is a website featuring political issues and motivational speaking.

Sarah Palin is certainly not the first politician to trademark their name.  In fact, one of the fist U.S. Trademarks was granted to Paul Revere as a trademark for his pots and pans.  The Revere cookware lives on today.

The only downside to using your own name as a trademark is that if you sell your business and trademarks… then you sell the commercial use of your name in association with the type of business you established.  (…This may not be much of a downside if you negotiate a good price.)

For more on the power of trademarks-> Owning a Trademark = Power (Exclusive Use of a Trademark)www.kasterlegal.com  and vk@kasterlegal.com

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

 

Put the World On Notice of Your Copyright 2

Like all property rights, copyright is an asset.  Keeping track of your copyright copyrightprotected works and putting the ‘world on notice’ of your copyright is important.  Take the simple step to give the world notice of your copyright by adding a copyright notice to fixed forms of your original works.  For example, add a copyright notice to copies of all your manuscripts, sheet music, screen plays, comic strips, websites and other original, creative works.

It’s simple to do.  The general format for writing out a copyright notice in the USA is: ©; followed by the year that the work was created; followed by the name of the owner/creator of the work.  For example: “© 2011 Ima Star.”  Adding the extra phrase ‘All rights reserved’ to the copyright notice adds some international copyright protection in Central and South America.  For example: “© 2011 Ima Star.  All rights reserved.”  In either format, the notice is usually placed on the title page of a manuscript, and on the bottom of sheet music, comic strips and websites.

Registering your copyright protected works for copyright protection with the US Copyright Office is also a great idea; however, do know that you can use the copyright notice before registering for copyright protection.

© 2011 Ima Star.  All rights reserved.

To register your work with the US Copyright Office –> http://www.copyright.gov/forms/

See also:http://wp.me/p10nNq-1o for info on adding a copyright notice to your website;  http://www.copyright.gov; @iplegalfreebies and www.kasterlegal.com.

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

vk@kasterlegal.com

“Super Bowl” is a registered Trademark and permission is required to use it in advertising and promotions. 7

“Super Bowl” is a registered Trademark and permission is required to use it in advertising and promotions.

The NFL owns the registered trademark “Super Bowl” and using their trademark in a commercial context requires authorization.  For example you must get permission from the NFL to use the term “Super Bowl” in commercials, promotions and advertising of any kind, including ticket giveaways.  By contrast, the term “Super Bowl” can be freely used in news stories, commentary or discussions.  The difference in these two examples is commercialization.  If a trademark is used for a commercial purpose, then the use must be authorized by the trademark owner.

Many trademark owners aggressively police their trademarks and it is important to keep in mind that commercial use of a trademark term requires authorization.

See also: USPTO registrations #3138590, #3343714, #76572704, #0882283, and #0846056 at www.uspto.gov; Owning a Trademark = Power (Exclusive Use of a Trademark); @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 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.