Wants to Use Sports Nicknames

Dear Rich: I would like to use nicknames of sports stars on merchandise. Can you tell me what is allowed and what isn't. For example, let's use New York Knicks (team colors are blue and orange) player, Jeremy Lin, who wears number 17. He has had many nicknames given by the media. Can I: (1) print on a blue t-shirt, with orange writing saying "Linsanity" and the number 17, (2) print on a blue t-shirt, with orange text just saying "17," or (3) print on a blue t-shirt with orange text saying "New York" and the number 17? The general rule we've observed in sports merchandise infringement is that if you're on the league's radar in a big way  -- whether copying numbers, letters, colors or some combination -- the league's lawyers will come after you. It usually doesn't matter whether the league will win in court (though most of the time they will) because most small merchandisers can't afford to take them on. (Yes, we know that can be unfair to the fans.) That said, you can probably get by with #2, a blue shirt with an orange number 17, and with #3 (especially if the lettering for New York is not in the Knicks typestyle). As noted, avoiding getting hassled may have a lot to do with where you sell your stuff. As you can imagine, you're always more likely to get hassled if you set up a booth near a licensed merchandiser who will certainly report your sales.
Nicknames. The legal right to exploit a player's nickname may belong to that player, particularly as with Linsanity, where the nickname incorporates the player's surname. In that case, the player may be able to assert right of publicity claims or trademark claims. As the search results for Linsanity show (above), there are presently nine people vying for the Linsanity registration for products ranging from computer software to perfume (Bouquet de Gym Socks?). We think, except for this applicant, most applicants will likely have wasted their $345 application fees.

What's Best Way for Band to Go Digital?

Dear Rich: We are a band of older guys. We've been around for over 30 years, mostly playing in Philadelphia area. We sell CDs at our shows but some people have asked us why we're not on iTunes and the answer is because we don't know how to do it. How does a band get their songs on iTunes? Speaking about older guys in bands, we can't wait until May 1, when Gregg Allman's memoir hits the streets. We're going to opt for the audiobook read by Will Patton, the go-to narrator for southern classics.
Right, you had a question. You can't submit your songs directly to iTunes. You'll need to go through a distributor, probably either CDBaby or Tunecore, as they have emerged as the main routes to digital distribution. You affiliate with one of them, upload the MP3s and these companies take care of the rest. Both services distribute to a host of download services including streaming services like Spotify, and download services like Rhapsody and Amazon MP3. They both usually manage to post on iTunes within two days of the hand-off.  What's the difference between the two? The main difference is that CDBaby takes a 9% cut of your net revenue from downloads. Tunecore doesn't take a cut, but requires that you pay an annual renewal fee per album. Here's a summary:
  • CDBaby. CDBaby will sell your physical CDs as well as distribute and sell your digital downloads. (If you just want to go digital and forego physical sales, you can do that as well.) There's a one-time fee of approximately $50 per album or $10 per single. You upload the music and artwork and they get your stuff out to everybody. The company keeps 9% of digital net sales. So after iTunes takes its 30% cut of each download, CDBaby takes 9% of the remainder and pays you the rest by PayPal. You get a CDBaby product page at their website and a fairly sophisticated dashboard so you can learn exactly who in Kazakhstan is buying your music. CDBaby can also handle synchronization licensing services. (Disclaimer: We've used them for years and have never had a problem.)
  • TuneCore.  TuneCore only handles digital distribution. (You cannot sell physical CDs.) Your band simply uploads your music and artwork and the company takes care of the rest, distributing the downloads to all of the major (and minor) players. The one-time fees for registering an album or single are similar to CDBaby: approximately $50 per album and $10 per single. However, Tunecore doesn’t take a cut from your digital sales. Instead they require that you renew each album and single annually (currently that's $50 per album, $10 per single). The company, through their relationship with IndieMerchandising (www.indiemerchandising.com) also offers merchandise production services. 
  • The others. A few other companies also attract customers in this competitive space. Among these are BFM Digital, ONErpm, and indieheaven.com. We have not researched these services so we can’t provide information except to note their existence. The Orchard, and IODA also offer digital distribution but they're more selective about who they handle and you must apply and get approved before they will deal with your music.

Wants to Patent an Idea

Dear Rich: I need detailed information on patenting an idea/product, the region that may or may not be covered, the limits to what cannot be patented etc. Thank you! IMOH. Lately we've been slowed down by the acronyms that are turning up in the Dear Rich emailbag. In this case we're baffled by your use of IMOH. Does this mean you're writing from the Iraqi Ministry of Health? Or does it mean you're just "in my own head," (which wouldn't make sense in this context, would it)? So that just leaves, "I'm outa here." But why would you be want to be out of here? Wouldn't you want to be here to get our answer? Ennyway, we're old, so maybe a younger reader can provide a path to enlightenment.
Right, you had a (broad, almost unanswerable) question. Considering that about six zillion pages have been written about patenting an idea/product, we'll try to steer you to a few sources of information that we find reliable (mostly, because we wrote them). To learn the basics of patenting, check out two sites we've worked on: Nolo's Patents and Business site has a fairly thorough explanation of the requirements and limitations of patent law; and Nolo's Patent Law and Inventions topic page provides some serious overlap. Of course, there's also a lot of great free information at the U.S. Patent and Trademark Office site, too. As for the regions that are "covered," the general rule is that your patent extends to the territorial boundaries of the country in which you have registered. Patent registration beyond the U.S. and Canada is complex, expensive and comes with time constraints --  for example, if you file in the U.S., foreign patent applications must be filed within certain times periods. Here's free information about international patents. (By the way, if you're planning on filing a patent without an attorney's help, the bible for DIY inventors is Patent It Yourself.)

Can We Publish Poems Given as Gift?

Dear Rich: We were given some poems 25 years ago from a family friend and would like to publish these in a small book and aim to sell the books to raise money for a local charity. Any problems with doing this? NB He has a living daughter. We would have gotten to this question sooner but it took our staff a little while to figure out that "NB" referred to nota bene ("note well"), not New Brunswick, newborn, no brainer, or not bad.
Right, you had a question. The copyright in the poems (and therefore the right to control reproduction) is owned by the estate of the family friend and it lasts for seventy years from the poet's death. Therefore, if you publish without permission, the estate (we'll assume it's the daughter) can halt your publication, or seek financial damages (or both). Is there any chance you can obtain permission for a limited publication for your purposes? Is the daughter aware of the existence of these poems? If not, she may be confused as to how to move forward. Let us know and we'll make that the subject of a separate blog entry.

Figuring Out Songwriter Credits

Dear Rich: I have a question about how songwriting credits work when there are multiple songwriters. I'm in a band with four people. The lead singer/guitarist, I'll call him A, writes all of the lyrics and usually brings in an introductory melody when we're writing songs, but the other three members (let's say B, C, and D) all work together collaboratively to come out with a finished song. We're trying to figure out the best way to present our songwriting credit, because A feels that he is the "primary songwriter," but the rest of us don't want to be left out entirely (and does copyright even recognize a "primary songwriter" vs. a secondary one?). We've agreed between us that any royalties will be split equally, but in case something happens I want to be sure that the legal situation and the personal preference are the same. Is there a legal difference between listing songwriting credits as "written by Band Name," "written by A and Band Name," "written by A with B, C, and D" or "written by A, B, C, and D"? Fortunately, the Dear Rich Staff doesn't have problems divvying up credit for our new album, Bar Stool Walker. It really helped to get rid of the lyricist. (That's right, it's all instrumental; no pesky vocals!). And, yes, you can pick it up at iTunes, too. Too early for illegal downloads but we'll let you know.
Right, you had a question. You're really talking about three things: (1) how you get paid, (2) how you get credited, and (3) how you register the copyright. Let's take a quick look at each.
How you get paid. If you have decided that songwriting royalties will be divided equally, you should write that into an agreement signed by A, B, C and D. These songwriting-splits arrangements are usually found in band partnership agreements (and we've included some examples in our Music Law book). The songwriters will also get paid for public performances by performing rights organizations (PROs) such as BMI and ASCAP. In other words, all of the songs and songwriters (and their shares) need to be registered with an appropriate PRO. However, you can probably wait on that until after you're getting sufficient radio, or webcasting (Pandora or Live 365) play.
How you get credited. Credit and payment are distinct. So, however you credit the songwriters, it shouldn't affect how you get paid (assuming there's an agreement about payment in place among the songwriters, as discussed above). For consistency's sake, you should probably agree on something --for example, "all songs written by A & B, arrangements by C & D" -- and include that 'credit language' in the band partnership agreement as well.
How you register songwriting copyright. If you file an application for the song copyright (which is a good idea but not a prerequisite for copyright protection), you must list each person who has contributed to the songwriting and their contribution. If you're filing online (see below), for example, you would simply check a box (or boxes) indicating whether the author's contribution was music, lyrics, or musical arrangement. You should keep it simple and avoid the "Other" box, if possible. The Copyright Office doesn't care who is getting paid or what their percentages are. It merely wants to keep track of the songwriters. (Again, all this is discussed in our Music Law book.)

Musicians and 35-Year Reversions: British Rule?

Dear Rich: I've read about American musicians fighting to get back their rights under the 35-year rule. Is there a similar rule for British musicians? By the 35-year rule, we assume you're referring to Section 203 of the U.S. Copyright Act, which is being tested in the courts now by the songwriter for the Village People. For readers who are unfamiliar with this law, the principle is simple – assignments made after 1977 can be terminated after 35 years. This applies to song copyrights (musical works) or to sound recording copyrights. The rules and regulations to make the termination are complex and can be found in Section 203. (Because of their complexity, the advice of an attorney is recommended when seeking to terminate.) Notices of termination must comply in form, content, and manner with requirements in a regulation issued by the Register of Copyrights.
What about British copyright law? Whenever we venture outside U.S. copyright law, we must disclaim that our knowledge is cursory. That said, there's no equivalent to Section 203 in British law. Britain does have a reversionary right that permits the termination of transfers (made by the author), 25 years after the death of the author. So, for example, the heirs of Ian Curtis, the songwriter for Joy Division, who died in 1980, could terminate his assignments and reclaim all his rights in 2005. Section 14 of Canada's copyright act provides a similar rule (though most of the other former British colonies have not adopted the principle).

Should We Register at BandName.com?

Dear Rich: We have three possible band names that we want to use. We're going to decide when we finish our record next month. We can't afford to file a federal registration for all three so you do you think it's worth it to pay $45 to register the three names at BandName.com. We're not positive, but we don't think that BandName.com would want you to register band names unless you are using them. To "reserve" band names at the directory would defeat one of the purposes of the site, which is to put the world on notice as to which names are currently being used.
Is it worth it to register? According to our research, BandName.com is an online directory of band names that you can search at least six times without having to pay a fee. After six searches, there is a $15 fee that enables unlimited searching and registration of your band’s name. If you're doing a lot of searching for band names, it's probably worth the $15. Bandname.com appears to be a fairly thorough band directory that includes bands that have registered and more importantly, many who have not. We tested two obscure bands that had not registered with the service and they both showed up. At the same time -- and as the site points out --  just because a band name is in the directory doesn't mean that the name is currently in use.
What does registration of the band name get you? We’re not sure what the registration of a band name at BandNames.com gets you … apparently your band’s name is included in the online and print directories, thus serving as notice to others searching the directory that you are claiming rights in the name. It’s true – as the website claims – that establishing prior usage is the key to preventing legal challenges. But registering at BandNames.com does not establish prior usage, it merely records your claim. You establish prior usage by selling recordings, playing shows and by selling music and merchandise on the Internet under the band name. In other words, much as we like it as a search engine of band names, we don't think that registering with the service will gain any new rights for you.

Wants to Use Dictionary Definitions

Dear Rich: I'm writing a conceptual/experimental book that will use about 200-300 definitions, quoted verbatim, from Merriam-Webster's Collegiate Dictionary, 11th edition. The book intends to address a commonly asked question in literary works (especially poetry), "But what does it mean?" The definition of each word of my original poem in the book will be lifted from the dictionary. Merriam-Webster reserves all rights, but am I not using the dictionary exactly as they intended (okay, it's a little extreme). Isn't this a parody? I would, of course, give the complete source of the definitions --- that's part of the concept.  Much as we love your attitude and your project, we don't believe Merriam-Webster's attorneys would feel the same way about your legal conclusions,
Fair Use? Using a copyrighted work for a transformative purpose may provide a fair use defense. But we're not clear why you believe your use is transformative. It seems like you're using the definition for the intended purpose -- to explain the meaning of each word. Similarly, just because your project is mocking the idea of literary comprehensibility, doesn't make it a parody. A parody is a work that ridicules another, usually well-known work, by imitating it in a comic way. Typically, the work that is borrowed -- in your case, the dictionary definitions -- is the work that's being parodied. That doesn't seem to be the case here. If you were only using one or two definitions, you might be able to argue fair use (or the merger doctrine). But considering the large number of borrowed definitions, we're not seeing a safe defense. Of course, as we always note in our windups, MW's lawyers may not see or care about your project, so you could always consider forgetting about us and our square opinions!

Wants to Use Images from Adult Coloring Books

Dear Rich: I enjoy coloring and crafts. I purchase adult coloring books by Dover Publications thru Amazon. The pictures I color are called mandalas. I color, decorate and frame the pictures. If I were to sell these at a craft fair would I be in violation of the copyrights? I am a 65 year old widow looking for extra income but I do not want to do anything illegal. I am only coloring pictures I purchased and am not putting my name on it. It is for decoration only. Please let me know. We're so ashamed of ourselves. When you used the term "adult coloring book," our minds foolishly lept to X-rated coloring books. Little did we know that the terminology is commonly used to distinguish a genre of non-kids coloring books. Please forgive us.
Right, you had a question. Yes, we believe that coloring in, tearing out, and then selling pages from Dover Publications is permissible for a few reasons. Without first considering copyright law, we can't imagine that Dover --  a company with a lot of goodwill amongst crafts artists -- would pursue legal claims against an 60+ artist selling single images from their mandala books at a crafts fair. (They'd be headed for a variation of the Streisand Effect!) In any case, you could probably make a decent claim under copyright law that your use is justified by the first sale doctrine. (Note that the first sale doctrine can be a complicated pointy-headed kind of issue, as we discussed in a previous post.)
Dover's Policy. In any case, we looked at Dover's policy as expressed in one of their Mandala books. Reproductions by a graphics service (you're not doing that) are prohibited. The policy also states:
"You may use the designs and illustrations for graphics and crafts applications, free and without special permission provided that you include no more than four in the same publication or project."
We're not sure that applies to what you're doing -- you're not assembling a publication or project -- but we think it indicates a level of tolerance for crafts people with similar projects. We think as long as you avoid selling reproductions of your images, and as long as you avoid using coloring books that specifically prohibit what you're doing, you should have a green light for your plan.

Worried About Posting on Pinterest

Dear Rich: I'm advising homeowners and real estate agents  about Pinterest and I guess the question to you is whether Pinterest users should be concerned about copyright. Is it a matter of just crediting the source or is there more to it than that? And do you see this being an issue for either the creators of content or those who are reposting it? Pinterest recently revised its Terms of Service (effective tomorrow, I think) but some people say it didn't really change anything. Copyright owners are like grizzly bears. If you're not on their radar and you're not depriving them of  food, they'll probably leave you alone. (We know our analogies suck but we can't stop ourselves). Anyway, that's probably true for most Pinterest users, too -- nothing is going to happen to them unless they attract a lot of attention or start making money off other people's content. (At that point, you may soon get an email from Getty Images.) Of course every copyright owner has a right to stop unauthorized postings (and let's not forget that we were once threatened after reposting the most obscure clip art). But generally, size matters when it comes to copyright infringement and owners prefer to go after infringements generating the most hits and ad revenue. More importantly, as Pinterest grows, so will the arrangements it makes with content providers -- much like YouTube eventually placated and monetized most uses of sound recordings.
What about the real estate angle? You refer to real estate agents and we assume their use is related to photos of property and architecture. We've addressed related issues here, here and here. As for the terms of use, it appears as if Pinterest users must credit their source. That's swell and respectful of the photographers and artists but it won't get you off the hook for infringement. Finally, if your photos are the object of a DMCA takedown notice at Pinterest, here's an article that explains how to respond.

Wants to Create Heavy Metal Coloring Book

Dear Rich: A friend of mine and I have several book project ideas that we are discussing and looking to move forward on. One idea is a coloring book of hard rock and heavy metal guitarists. If we base the images on photos, or even more directly, create the coloring book images from photos, do we need to get permission to use and/or adapt the image from the photographer or photo agency? And/or from the artist? It took a while to answer your question because we kept getting sidetracked Googling heavy-metal stuff. We once played in a band that many people mistakenly believed was heavy-metal (Stairway to Hell even included three of our albums). We definitely weren't heavy metal and proof of that can be found in our lackluster (less than lackluster, actually) record and ticket sales. Other proof: we didn't have a light show or fireworks, and we were generally too smarty-pants for the sign-of-the-horns crowd (As one of our album titles warned, Always Leave 'Em Wanting Less.) But even though we weren't HM musicians, the Dear Rich staff loved headbangers in a rock-critic way, and years later the staff even went on to do some nice metal covers. It began to unravel when, back in the late-70s, we concluded that metal -- despite its soaring solos and flash -- was really a sad, depressing, musical genre. Our first inkling was at a 1978 San Francisco press conference at which Kiss announced they were going to issue four separate solo albums. There was something about the lighting and the buffet, combined with the fascist LP posters, that just created a demoralizing effect, and really brought our heads down. That was a precursor to the hair-sprayed 80s metal and then in the 90s, when people started calling Nirvana metal, the whole thing was really over. That's why nowadays, we're not surprised to find that Gene Simmons is into mutual fund salesmen and Dave Mustaine has a Rick Santorum crush.
Right, you had a question. If you don't already regret asking your question, you'll surely regret it once we start spouting this answer. If you want your book to be published by somebody legit -- that is, more than a publish-on-demand limited edition -- you'll have to get permission. That's because if you're seeking a publishing deal, that deal will likely require that you get permission and indemnify for all rights. And the photo permissions may be a little complex because you're not seeking to reproduce the images -- you're seeking to modify them so that they can be used in a coloring book (known as creating a derivative). In other words, the standard stock photo license won't work. If you hired an artist to recreate these photos, the rules would likely be the same (Although if the artist uses sufficient creative license -- resulting in less similarity --  there's less need to seek permission, as described below). Of course, all of this is based on the likelihood that a copyright holder will find your work.
What should you do? If you're really gung ho about this project, we'd suggest hiring an artist with a distinctive style that will be applied consistently throughout the book. Give the artist photos to show the appearance of the musicians but instruct the artist to change the clothing, settings, placement, and other elements so that the resulting work isn't similar to the supporting photos -- it just looks like the musician and is part of a consistent overall look and feel to your book. And yes, btw, you will need to get permission from the artist (you can find an appropriate form in our Getting Permission book) Rock on!

Should Inventor Incorporate?

Dear Rich: I'm an inventor of a process involving processed food. I expect the patent to be granted within a few months. My attorney told me to think about incorporating and transferring the patent to the corporation. What do you think? As a general rule, we think you should follow your attorney's advice unless your attorney is incompetent, or worse, your attorney is competent but favors unnecessary legal work that tends to drive up the bill (we guess that's a form of incompetence, too). The vast majority of attorneys don't fall into the latter two categories so you probably don't need to worry.
Questions to ask: But if you're concerned, you should ask why your attorney favors incorporation. If he or she can't explain why in a way that you can understand, then get a second opinion. There are really only three reasons to incorporate: (1) it may provide tax or other financial benefits, or (2) it limits your liability, or (3) the corporate governing structure makes it easier to obtain investment. If it's for reason one (taxes), ask about the benefits and make sure you understand the principal of pass-through taxation. If it's for reason two (liability), ask why an LLC (or insurance) won't provide similar benefits. If it's for reason three, ask why the incorporation needs to happen, now. Why not wait until the investment is imminent? To help you learn more, here's an article for inventors who incorporate.

Do I Get Any Money From Cover Song Play?

Dear Rich: Our band covered a song and it's getting good airplay on Live 365 and at some other places. Do we get paid for this? How do we get the money? Most of the money generated from the playing of music --  whether on the radio, at an American Apparel store, or even on Internet stations --  is collected and paid to the songwriters, usually by performance rights societies. So, performing a cover song is usually not the best route to a guaranteed royalty stream. However, there is one way you can earn money for the public performance of your recording. Performers and record labels get paid for every performance of a song by a non-interactive webcaster – for example, Internet radio stations such as Live 365, Pandora, Sirius XM, Cable TV music channels, or virtually any digital transmitter in which the listener is unable to choose the specific song that's played. This money is collected and distributed by SoundExchange and you can sign up with them and list your tracks. The sign-up process is a little labor-intensive but once you are in their system, things should move smoothly.

When Stage Names Become Real Names

Dear Rich: I do stand-up comedy under a stage name, not my real name. In the beginning, that was good because I had a day job and wanted to keep my stand-up life separate. Now, I'm about to go into stand-up full time and  wondered about adopting my stage name as my real name. What's the best way to handle it? Someone told me that if I just use my stage name all the time and that if I keep using it instead of my real name, it eventually will become my real name. Or should I register my stage  name as a trademark? Wow, we wish that April Fool's Day didn't fall on a Sunday because we had a great gag question to use. We suppose we could have published on Sunday (like some enterprising pranksters) but in case you haven't noticed by our falling Google Analytics numbers, we've been publishing less because we'be been kind of swamped lately, what with new demanding occupational goals, a new series of Mad Men, and endless home repairs.
Right, you had a question. Back in the day, the "usage method" (consistent use of the new name) was a great way to change your moniker but in these indentity-fraud, post-9/11 days, the recommended approach is to change your name using a court procedure. Every state's law differs but usually the court procedure means filing a petition, or alternatively, getting a court order as part of some other proceeding such as divorce or citizenship actions. By the way, once you change your name in one state, that name will be effective throughout the U.S. (If you're interested in changing your name in California, we recommend How to Change Your Name in California.)
Should You Register Your Name as A Trademark? Registering your name as a trademark and changing your name are two different worlds. You would change your name primarily for legal purposes -- that is, so that your name would be used in all documentation and official paperwork. You would register your name as a trademark to exclude others from using a similar name for similar goods or services. We don't think trademark registration is essential for a performer, unless that performer is offering non entertainment services or products -- for example, as when a rapper lends his name to headphones. Someday it may be worth your while to register the name for entertainment services but until then you can invoke tort claims such as unfair competition or common law trademark claims against an interloper who tries to steal your good name.