Wants to Reproduce 1890s Diary

Dear Rich: I have an unpublished diary from the late 1890s that is chock full of material of real interest to historians. It contains not a whiff of scandal or impropriety, but the owners of the copyright for this work (the diary writer's children) have no interest in publishing it themselves and will not grant permission for anyone else to publish it. If, for educational purposes, it were to be transformed into a free searchable online blog, with added photos and links to explanatory information, do you think that would pass the fair use test? We just started keeping a eDiary and we can't wait to write in today's entry that today we answered a question about somebody else's diary. Actually, we never realized how much work it is to document daily life.  And we have to say it's a little disappointing sometimes to re-read it and realize that our life is basically a series of meals interrupted by commentary. (Good meals, BTW).
Right, you had a question.  If the author of the diary died before 1942, then nobody owns copyright. The work is in the public domain. If the author died after 1941, the diary would still be under copyright and republication as you describe would most likely be an infringement, and not a fair use.

Can I Make a Dave Matthews Band Quiz?

Dear Rich: I am in the process of creating a Dave Matthews band quiz. It has questions from all aspects of the bands background, songs, and albums…etc. Would there be any copyright issues by creating these questions? Also, if down the line we were to charge a fee to download ‘more questions’ on this app, would that get into a sticky copyright area? Wow, the Dear Rich Staff feels old! We remember a time when you could listen to pop music without getting tested. Personally, we like the idea and we're in favor of anything that will put off dealing with life's big issues!
Right, you had a question. You can probably get away with your trivia app assuming you can make it past the app store gatekeepers (at the Apple Store and Google) and nobody from the DMB, the band's management, the band's publishing company, or the band's record label sees your app and cares enough to challenge. If the app is challenged, most likely you'll have a problem. First, the app store where it is located can terminate availability based upon its own analysis or a DMCA complaint (we've got a legal guide for app makers that explains this route), and second, the copyright owner (the band, label, publisher, etc.) could sue for copyright infringement or possibly trademark infringement. We base this conclusion on three previous cases involving trivia books (we wrote about them in this entry). We're not saying you might not eventually prevail but we would think twice before investing considerable time in commercializing this venture.

Which State for Governing Law or Venue?

Dear Rich: I am working on a contract where one party (the one providing the services and technology) is based in Texas and the client is based in California. Both parties want the governing law and venue to be in their respective states. Any advice? You're dealing with two concepts: (1) A “choice of law” or “governing law” provision in which the parties agree that a particular state’s laws will be used to interpret the agreement, and (2) we think when you refer to "venue," you're talking about a "jurisdiction" provision—sometimes called forum-selection clauses— require the parties consent in advance to the jurisdiction of a specific court and give up the right to complain about jurisdiction in other locations.
What really matters? Both provisions are important but of the two, we think the venue/jurisdiction provision is more important. That's because state laws may differ on some issues -- for example, Delaware favors corporations, etc.-- but for the most part choice of law doesn't make much difference. But jurisdiction provisions can create more expense and inconvenience because they determine where you must travel to in the event of a dispute. For example, a resident of California may not want to spend several weeks conducting business from a Texas hotel room, and vice versa. Despite the fact that the chances of triggering the provision are statistically very low -- so few contracts devolve into lawsuits -- lawyers like to puff up their chests and "stand their ground" on this issue with the "bigger" party usually getting its way.
Compromise? There are a couple of workarounds. You can leave out jurisdiction entirely and then either party may file where they live (assuming they can get personal jurisdiction over the other party). Or you can set up an either/or provision such that the party filing the lawsuit can choose the state law and jurisdiction. So the Texans can file in Texas, and if the Californians are suing, they can file in Cali. If you can't reach a compromise, you may have to bite the bullet and hope that you're never dragged into a lawsuit.
FYI, DR readers, two states, Idaho and Montana, refuse to honor forum selection provisions. In some other states, courts enforce these provisions only if the parties have some contact with the state beyond the contract provision—for example, they must do business with the state’s citizens even if they live (or the agreement is signed) in a different state.

Why is Faulkner Suing Woody Allen?

Dear Rich: You have been advising people that it's okay to use quotations without infringing ... but the Faulkner estate recently sued several companies for using a Faulkner quote.  Is it okay or isn't it? Speaking of Faulkner, we recently read The Sound and the Fury for the first time and we have to say that was one heck of a confusing book. We kind of liked it but if it weren't for the Cliffs Notes-style explanation in Wikipedia, we're not sure we could positively distinguish Quentin and Ms. Quentin. We tried the movie version for clarity and that was a big mistake (although that's a pretty unique cast!) Right, you had a question. Yesthe Faulkner estate recently sued over the use of two Faulkner quotes. The first lawsuit is over the quote “The past is not dead! Actually, it's not even past." The estate sued Sony Pictures over the use of that quote in Woody Allen's "Midnight in Paris," (more details here), and they also sued Northrop Grumman and the Washington Post over an ad that used a second Faulkner quote, "We must be free not because we claim freedom, but because we practice it," (more details here). The two complaints are similar (see the movie complaint; see the Grumman complaint). They both have three claims --  copyright infringement, Lanham Act violation, and commercial appropriation. We'd bet our mortgage that the copyright infringement claim will fail for the reasons expressed in yesterday's blog. As for the other two claims, we have a feeling that the estate is unhappy with the associations (military contractors, Woody Allen) and is trying to push the limits of "endorsement" claims, which could be troublesome considering that Mississippi has little precedent for right of publicity claims.
Takeaway Dept. We'll stand by our position on copyright and quotations but add the caveat that being "right" doesn't mean that copyright owners can't sue you. If you're planning an advertisement that uses a quote from someone who is alive or recently deceased, get it reviewed by a lawyer.

Calligrapher Sells Quotes

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17th Century
German calligraphy
Dear Rich: I am a calligrapher. If a client asks me to write a favorite quotation or poem in calligraphy, do I need to get permission? The calligraphy would be done once and not be reproduced. It would likely never be exhibited except in the client's own home or office.  No problem. As we have indicated in previous entries, you're free to use quotations (that is, short statements of one or two sentences). This conclusion is partially based on fair use principles, and partially based on the fact that copyright doesn't protect short phrases or "de minimis" uses. In addition, you don't need to worry about using quotes that were published before 1923 (see this chart for more on that).
FYI Dept. Although typefaces are not protected under copyright law, hand-written lettering (calligraphy) can be protected in some cases. In other words, you may be able to stop those who copy your hand written version of the quotation without your authorization.

Wants to Use DVD in Classroom

Dear Rich: I’m a school librarian. I recently ordered DVDs for a teacher for a class on Forensic Science, and the packaging comes with the warning “For non-commercial, private exhibition in homes only. Any public performance, classroom use, or other use is strictly prohibited" (emphasis added). Can they make the "classroom use" claim, or are they just trying to bully those who don’t know about the Section 110(1) face-to face teaching exemptions? I know the teacher in question wants to use the DVDs as an integral part of her curriculum. The Dear Rich Staff is a big fan of forensic science and we remember studying it as a co-major back at Indiana University. Alas, we never did put it to use, except perhaps to analyze the raccoon prints left on our dock recently.
Right, you had a question. If the teacher's use of the DVD qualifies under the face-to-face exemption of the copyright law (below), then it is not an infringement and you can disregard the "warning." (There is an exception, described below.)
17 USC 110 Notwithstanding the provisions of section 106, the following are not infringements of copyright: (1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;
What if "no classroom use" is a condition of a license? There is an exception. Many companies have attempted to circumvent the copyright laws (some successfully) by forcing the consumer to license the work, rather than purchase it. However, in order to create a binding license -- one that permits a company to step in and stop so-called unauthorized uses -- the company needs to prove that the end user entered into an agreement. As we've mentioned before, the most effective end-user licenses (EULAs) require some type of actual agreement -- typically a click-to-accept checkbox or button. These mechanisms for "agreeing" come in many shades -- and courts have even enforced shrink wrap agreements in which tearing open the shrink wrap signifies that the end user agrees with the license. Check your method of ordering to determine if you agreed to any licenses and check the packaging for signs of a license agreement. As a general rule, the easier it is to demonstrate that the other party agreed to the terms and conditions, the easier it will be to enforce the agreement. If the license is part of the packaging, it should be prominent and obvious that breaking the seal enters the end user into a license agreement. Our gut feeling is that the "warning," by itself, probably has little legal effect.

Wants to Publish 100-Year Old Floor Plans

Dear Rich: I own a large collection of early 1900's architectural drawings and photographs of residential homes. Most of these homes were built during the 1920's and some are now owned by famous celebrities. This collection of drawings and photographs was left to me by an architect relative who died more than fifty years ago. I'm working on a book of this architecture and would like to display many of the drawings and photographs of these homes in the book and on the Internet. I believe the architect, or their heir (me, in this case) owns the rights to architectural drawings and ideas but I'm not sure of the legal issues of displaying these images to the public. Could privacy be an issue here even though all the original owners of these mansions are long dead and the homes are no longer owned by that family? Do I have the right to publish room layouts, dimensions and photographs of these homes? Some of the homes have been torn-down so I assume publishing anything about those would be safe but what about those that are still standing and occupied? I'm also concerned about losing the rights to these things if I put them online. Couldn't someone else copy them and claim a copyright for either the architectural idea or the image itself? Do I even own the copyright on these drawings and photographs and architectural ideas just because I own the paper they are printed on?  So many questions, so little time. Here goes: The photos and architectural drawings may be protected under copyright if the author died after 1942 and either (1) the works were never published, or (2) they were published after 1922 and properly renewed. If the works meet these criteria, and you are the heir to the copyright owner’s estate (and can prove it), you can register copyright in your name and stop others from copying the works.
Copyright for architectural works. Architectural drawings were not classified as protectable works until December, 1990.  Prior to that, courts tended to protect architectural blueprints. The extent of protection may depend on how distinctive or elaborate the plans are, but it's likely the works you describe will meet the standards for protection.
Privacy.  We don't believe that publication of architectural drawings would give rise to a successful invasion of privacy claim because the publication doesn’t disclose personal facts, or intrude into personal affairs. Even if we are correct, however, a wealthy homeowner could always still mount a tort claim. You may lower the chances of such a suit by not mentioning the names of the persons presently living at the home.