Wants to Blog FOX TV Series

Dear Rich: Greetings from Denmark. I'm thinking about creating a web page that will be about a very popular Fox series. I want people to blog out best quotes and get voting etc. The web page will be also about fan material. I want to use their official JPGs that you find on Google. Do you think this is acceptable or its clear that I will get banned? Greetings from California where the Dear Rich Staff is busy avoiding the mess that is called the America's Cup. As for your potential website, Fox, like most TV networks takes an approach we would describe as "watchful noninterference." That is they will allow fans to create fan sites using copyrighted content provided that the site does not seek to exploit the content in a way that competes with the network. For example, Fox apparently looks the other way when it comes to fan websites for its popular Glee program. These sites also contain detailed disclaimers, as well. You should include a similar disclaimer (though as we have pointed out before, it has limited value). We imagine that you will likely run into problems if your site offers unauthorized T-shirts or DVDs, or offers downloadable content from the series. The only other way you might get "banned" would be if your Internet service provider, acting on its own, determined that you offered infringing material and demanded that you pull it -- an unlikely scenario.

Wants to Use Initials as Trademark

Dear Rich: I would like to use the initials of my proper name as the name of my business followed by an exclamation point. There are other businesses out there with those initials. Do I need to worry that someone has trademarked them and will order me to change the name? Do you mean by "trademarked them," that someone has registered the initials with the USPTO as a trademark? If so, you can easily check whether that is the case using the USPTO database, explained below (BTW, it's best not to use "trademark" as a verb.)
Searching for initials. To check whether someone has registered your initials, visit the USPTO trademark page and choose "Search Trademarks." Then click "Basic Word Mark Search" and type in the initials. (We have an article and video that explains how to perform a search). Always keep in mind that you're primarily concerned about someone using the same initials for similar goods or services. Federal registration isn't essential for enforcing trademark rights but it's a decent indicator as to whether you will run into a problem
Chances are ... It's very possible that the other businesses using similar initials haven't registered  them with the USPTO. That's because it's often tricky to acquire registration for initials because you must be able to demonstrate that consumers associate those initials with your goods or services. That's not so hard for famous initials like CBS or AOL but it can get much more difficult when the initials are based on a surname or a generic term  For example, it's not possible to register "Brandy & Benedictine" because that's the generic term for an alcoholic beverage containing brandy and benedictine. Similarly, B &B cannot be registered if consumers associate that term with Brandy and Benedictine. In other words, if the initials are just a placeholder for a generic or descriptive term, the USPTO will treat the initials as being generic or descriptive as well. So if an applicant is using initials for his or her name, the examiner may start with the presumption that the mark is descriptive. (If you're looking for a more in-depth explanation on initials and trademarks, check out this law review article.)

Do I Disclose Prior Art for Double Invention?

Dear Rich: I have an invention.  It handles a specific problem.  While writing it up I discovered it handles another related but different problem for which there is prior art totally unrelated to the first item.  I know from Patent It Yourself that I can't do a double patent.  Both are valuable and I need to protect both.  Do I need to do the full prior art and so on for both?  It would be like writing up two patents in one.  Is there a way to do one then tag on the second so as to not increase my chances of rejection by going for two separate things? We spoke with Patent It Yourself author David Pressman who stated that it would be irresponsible for any patent attorney to give you advice without seeing the invention and the prior art so he urges you to seek professional advice in this situation.
That said dept. However Pressman notes one general principle that may apply is as follows: Suppose an invention is known for solving a problem, for example, a forked implement is known for cleaning window blinds. An inventor discovers that it can also solve another unrelated problem, such as facilitating seed planting. In this situation the inventor may be able to get a patent on a new use for the implement if it is truly novel and  unobvious over the known use. This is mentioned in the sixteenth edition of Patent It Yourself (page 103) and elsewhere. In any case PTO Rule 56 requires the inventor to disclose all information related to patentability.
Dont try this at home dept. Again Pressman stressed that this should not be construed as legal advice or applicable to your situation and you should see a licensed patent pro before deciding what to do.

Can I Post Music on Vine or Instagram Videos?

Dear Rich: I am the administrator for my church's social media accounts. I would like to post short six-second Vine and fifteen-second Instagram videos of our musicians performing hymns and other copyrighted music. Should I look into buying a copyright license for these videos, or would it be considered fair use because of the short length of the videos? As for buying a license, forget about it (and see our previous entry to understand the futility of that effort). The music companies have made the task of obtaining a sync license impossible for mere mortals.
The good news: As far as we can tell neither Vine or Instagram has a copyright filter similar to the one at YouTube (though that may evolve one of these days). So, it doesn't appear that Vine or Instagram will flag your use of unlicensed material. Chances are also good that a six to fifteen second music clip will be excused as a fair use particularly if you're not infringing the sound recording copyright --  that is, you're not using a pre-recorded song as a soundtrack for your video. Finally, music publishers and/or record companies may not want to pursue this rabbit hole of potential infringement. So, although it may possibly be an infringement, we don't think you'll run into legal problems in the near future.

Creating Book Quiz App

Dear Rich: I'd like to make an iPhone app that would consist of thousands of questions each with four answers from different books. The quizzes/questions actually ARE about the books  and would contain copyrighted terms, important sentences or names.  These quizzes are meant to be taken AFTER a user reads the book, so we don't compete with book authors, nor is that our intention. We also intend to clearly give credit for every single book to author that wrote it. Here is an example and here is another example of sites that already exist and are similar to what we want to make (difference: they make money by users spending more time on their site, we make money by charging $.99 for extra features). Well, our idea is for people to read books MORE and take quizzes after them.  If you keep the questions varied, take little from each book -- as in the two examples you provided -- you're probably fine. But because we don't know how much borrowing you will be doing, we're unable to bless your endeavor. Of course, we support your goal -- people reading more books -- but, as the cases cited in this recent Dear Rich entry demonstrate, your altruistic goals will not excuse an infringement. Ditto for providing attribution. As for your claim that you're not competing with authors, we don't think you are ... but that's ultimately up to a court to decide.

Wants to Use Song Snippets For Guitar Lessons

Dear Rich: I am working on a "for profit" project to create musical exercises for instrumentalists. Part of this will be to use a "snippet" of a popular song as the basis of the exercise. In one case, this is one measure of the guitar part with no reference to the lyrics or the greater song. The exercise would introduce some slight variations on the pattern and then would then transpose the pattern in each key. Would this be considered "fair use" since I'm building a "new work" from this very small kernel of a previously published and performed work? I've learned from your blog that providing an acknowledgement of the composers, the song name, and the album the song originally appeared isn't a factor, but I'm planning on doing that anyway. As you may be aware there are two copyrights on music recordings. One is the sound recording copyright (the recorded performance), usually owned by the record company; the other is the songwriting copyright for the song (the chords, melody and arrangement -- basically what you see on the sheet music). If you're using a snippet of the original recording -- for example, a segment from a Jimi Hendrix recording -- it's possible (though unlikely, as we'll explain) you could be liable for infringing both copyrights.  If you've recreated the segment by recording it yourself, you've reduced your liability somewhat because there's one less entity that might hassle you -- the record company that owns the original recording -- although you still may be hassled by the song owner. (You can read more about sampling here.)
Fair use. We think that the smaller the size of your snippets, the stronger your fair use argument. We're not sure about the rest of the factors ... and we're not sure that you're actually transforming the work or building a new one. Transpositions and retiming of a sound wave are likely to be viewed as superficial transformations (and the variations could be perceived as derivative infringements).
The reality. We can point you to a few cases ... one that says that any use of a sound recording is an infringement (we think that's an aberration), and one that says that just sampling a short segment of the song copyright may be excusable as a fair use (you can read about both in a previous entry). But we don't think either case really offers much guidance. As usual, it really comes down to whether record companies and music publishers discover your use and care (or are too busy pursuing pirate sites to go after your business). After all, zillions of YouTubers are offering similar styled guitar lessons without apparent hassle. If you're concerned about the risks, we'd suggest building your project in steps ... post a few lessons at a time. If you get a cease and desist letter from someone, take down that lesson instead of trying to fight it.
P.S. And check out our video above to learn Bruce Anderson's great guitar/sitar solo.

Do You Need Life Rights Agreement if Subject is Deceased?

Dear Rich: Do you need to get a release or life rights agreement from the heirs of a deceased person to make a film about or a film including him/her? If a person could be considered a "public figure," does that make a difference? We're not sure what you mean when you say that your film would "include" the deceased person but if the subject of your biopic or documentary is a deceased public figure, you won't need a life rights agreement. A "life rights" agreement is really a way to block three types of lawsuits from happening: violations of privacy, publicity or defamation. (These agreements may also involve "cooperation" arrangements requiring a living person to cooperate with the filmmakers.) A deceased person has no privacy rights and cannot be defamed. In some states the right of publicity survives death, but documentaries and biopics typically don't trigger these rights -- unlike the sale of merchandise or endorsement of products, for example. Of course, there may still be a need for permissions for copyrighted materials such as photos, music rights --for example in the case of a biopic about a musician, or rights based on a published work such as a biography.
When do you need them?  Life rights agreements are most often needed if liberties will be taken with the facts about a living person, or if the person is not a public figure. Public figures cannot stop a life story documentary or biopic in the U.S. if there are no violations of privacy or defamation ... although they can always threaten lawsuits.  Check out our previous entry on life rights. (BTW, this site explains the life rights rules.)

Wants to Use Northern Exposure Stills, Clips and Song in Documentary

we have nothing to say about
this poster but thought if we
added a caption we could
claim it was fair use! 

Dear Rich: I am filming a documentary that will be distributed FREE OF CHARGE on the internet. Pro Bono. The documentary is about the TV series Northern Exposure and the title of my documentary is "Our Town Cicely" In my documentary I will be attempting to use as much material as possible in a "Fair Use" context. I know you are not a lawyer and I do not hold you to any advice, but in your opinion can I use images or pictures of the cast members from the show in my film? Also I would need to use some of the clips from the TV series too. It is my idea that I can use the clips as long as I am critiqueing them or at least putting subtitles with some narrative commentary at the bottom on how this scene was relevant and how good it was etc. I also wanted to use a song from the show titled "our town" by Iris Dement. But it is owned by Warner Brothers. Your idea that adding subtitles creates a "fair use" exemption is fashionable and even big shots are making similar claims. However, we think that adding a caption is like putting an Instagram frame on a photo ... by itself, it won't be enough to defeat an infringement claim.
Claiming fair use. There are two big hurdles with fair use: (1) you will only know if it is fair use if a judge confirms it, and (2) you probably can't afford to find out. Your best option is to review previous fair use cases (and we've assembled a compilation here) to see how courts rule. It's true that some factors are in your favor: it's a not-for-profit factual presentation and you are commenting upon the show. But there are other factors in play, for example how much material is used -- a snippet of a song versus the whole tune, two seconds of a clip versus the whole scene, etc. And are you really commenting on the material or reproducing it for its entertainment value? As you'll notice from looking at case summaries, many artists, authors and entrepreneurs have failed with fair use claims when deconstructing TV shows, movies, and books. For that reason, we can't say whether your fair use argument will win the day.
That Said Dept. We hate to see you ditch your plans for a Cicely documentary. Perhaps if you keep things below the radar, nobody will notice or care. For example, if you avoid using a copyrighted song, you won't trigger complaints from sites like YouTube that use audio filtering software. On the other hand, you could also take the more risky approach of, "What are you going to do about it?" and see how far you can go before (or if) you get a cease and desist letter. BTW, please note the comment below, referring to American University's fair use guidelines for documentary filmmakers.

Same-Sex Marriage and Copyright

Dear Rich: I am a photographer in a same-sex marriage in California. Does the Supreme Court decision about gay marriage have any effect on my photo copyrights or my contracts with publishers? Yes, the recent SCOTUS decision does affect copyright law (and when did everything become SCOTUS and POTUS anyway?). In 1997, the General Accounting Office responded to a query from Congress about what laws would be affected by the Defense of Marriage Act (DOMA) and the GAO wrote:

The Copyright Act gives renewal rights and termination rights, in some circumstances, to the widow or widower of the creator of a copyrighted work. The law defines "widow or widower" as the creator's surviving spouse under the law of the creator's domicile at the time of his or her death, whether or not the spouse subsequently remarries.

In other words, if you are in California -- a state that has legalized same-sex marriage -- your surviving spouse will acquire the right to recapture copyright for pre-1978 transfers as well as the right to send and benefit from Notices of Termination.
The effect on your contracts. Other than the ability to terminate your transfer after 35 years (discussed above), the Supreme Court decision should have little effect on the contracts you signed regarding copyright transfers. Note, that in the nine states that have community property laws --Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin -- spouses automatically become joint owners of most types of property acquired during the marriage. California, for example, has held that a copyright acquired by one spouse during marriage is community property—that is, is jointly owned by both spouses. (Marriage of Worth, 195 Cal.App.3d 768, 241 Cal. Rptr. 135 (1987).) This means that if you are married and reside in California (or later move there), any work you have created or will create automatically would be owned jointly by you and your spouse unless you agree otherwise. Therefore, lawyers consider it prudent for both spouses to sign any assignments or exclusive transfers of copyright. (Note a court in Louisiana has held copyrights are not community property in that state. (Rodrigue v. Rodrigue, 50 U.S.P.Q.2d 1278 (E.D. La. 1999).)
For more information on how the Windsor decision on the Defense of Marriage Act affects other legal rights and responsibilities, see "The Supreme Court’s DOMA Decision."