Can I Avoid Infringing By Making Book Public Domain?

Dear Rich: An author writes a book about a band – we’ll call it ROC STAR. The author sells the movie rights, to a studio. The studio makes a movie – which carries the same name as the book and the band – but from THEIR screenplay, which differs from the original book, in that they change the names of the characters. The original author – who apparently still owns the rights to the story, the title, and the name of the band – writes a sequel to the original book. A second author writes a book, inspired by the movie, and which is blatantly a ‘derivative work’. It is about six different characters who form a different band, which is discovered by the members of ROC STAR (the band from the original story). While it is a 100% original story, the second author does mention the original band by name, as well as the original characters, but by their names in the MOVIE. It also quotes a few lines of lyrics from a song ROC STAR performed in the movie, which of course is owned by the studio. Assuming the second author (of the derivative work) is considering publishing his story, what permissions will he need, and more importantly, who does he need to request them from? My final question would be, what are the ramifications - if any - of simply putting the story into the public domain (posting it and giving it away), should I decide not to jump through all the hoops I expect are going to be presented if I try to publish it. If you don't have the rights to all the material  -- you're creating an infringing derivative work -- you don't have the legal power to dedicate it to the public. Only the copyright owner (either the movie company or the initial author) can dedicate the work to the public domain.
Does your book infringe? Possibly. You probably remember when a Swedish author was prohibited from publishing a sequel to Catcher in the Rye (even though the lead character's name -- Holden Caulfield -- never appeared in the "sequel.") We could point to other cases as well but the takeaway is that any success you may achieve will be short-lived because it's likely that once the author or movie company learn of your work, they'll try to shut it down (and you probably can't afford to fight over it). On the other hand, if the book stays low on the radar -- for example, it's posted on a fanfiction type site -- the owners may consider it "non-threatening" and allow it to remain posted in obscurity.  Because your work overlaps with fanfic, you should check out the Chilling Effects FAQs  on the topic.

Customizing Barbie Dolls

Dear Rich: If a custom doll is created using another one as a base, is it an infringement on the copyright to mention the doll used as a canvas even if you specify that it has been modified. For example, if I were to buy a Barbie, MonsterHigh or Blythe doll and then paint and sculpt her face to look the way I want and then decided to sell this doll on Etsy or exhibit her in an art gallery as a custom X Brand Name could I do that? In essence, I'd only be mentioning that she was an X to give people a general idea of her size and type since the doll would no longer look like the dolls you can buy, but are you allowed to say this? I know that people who customize cars and motorcycles don't seem to get into trouble for mentioning the brand of the vehicle they used, is this different? And if it is, why is it so? Also, even if you're allowed to mention the canvas doll's brand do you have to refrain from selling your custom doll in the box she came from since that item does have the maker's logo? It's possible that you're infringing copyright, (though it probably won't matter). Unlike classic automobiles, Barbie is protected under copyright laws and modifying the doll creates a derivative work, something that its owners, Mattel, may consider an infringement. In practical terms, it seems pretty unlikely Mattel will pursue you simply for modifying the doll (and you may have a reasonable fair use argument). There are many "altered" Barbies and Mattel seems to have a "live and let live" approach to these plastic ladies (our altered entry is shown, above). In any case, the company hasn't had good luck pursuing arty derivative makers and seems to have accepted the fact that folks like to parody their cash "cow" (nay offense, B!).
What about trademarks? The company is more likely to object to the sale of the modified doll within the original packaging. That raises a trademark issue --  consumers are more likely to be confused -- and it implies that Mattel is the source of the derivative. When selling it on Etsy, you can mention that it is a modified Barbie doll but if you're really concerned about liability, include a disclaimer that  the modified dolls are not endorsed by or associated with Mattel. That will make it more challenging for the company to claim consumers could be confused.

Singin' in the What?

Dear Rich: I am trying to write a play for a school based on the movie, Singin' in the Rain. I have changed the title to We Sing in the Rain, changed the story quite a bit to cut romance out (the school is very religious), changed the ending, edited lyrics to songs to make them more appropriate for this school, and cut the romantic songs out. Where do I stand legally? What else can I do to be able to copyright this script for myself? I feel like this falls under parody and fair use in every way except the changes are not for commentary or humor, but to make them more appropriate. Wow, who knew Singin' in the Rain was so offensive, so full of "excessive immodesty? Plus we're wondering, without the romance, what's really left? Ennyway ... Perhaps your efforts will go unnoticed by the copyright owners but cutting stuff out to meet religious standards is infringement (as the CleanFlicks company learned a few years back). You can always challenge that ruling in your area but we think you'll have to give up on a fair use defense; you admit you're not commenting upon or parodying the original work, just removing things you find offensive.

Can I Use Watercolor Versions of Photos?

Dear Rich: I am doing a documentary on a school board desegregation lawsuit that began in 1962 and ended in 2010. Three of the attorneys are still practicing and one is a state appellate court judge. I downloaded their pictures with their bio. I then sent the pictures to a watercolor artist who made a portrait of them in an impressionistic style so there are similarities such as direction of the subject's head and direction of eyes and other features and other general similarities such that you could presume that the watercolor portrait came from the downloaded pictures. The websites where I got the pictures (the law firms and courts) are openly available on the Internet and I am going to release my documentary on the Internet completely free of charge. I was planning on having these watercolor portraits in a dedicated frame as I do a voice over about the role each one played in the case. Is this fair use? If the similarities are like those between our watercolor (left) and the unadorned version (right), then it's probably not fair use. Of course we can't say for sure because that may depend on various factors such as: how long the watercolor appears in the film (the less time, the better your outcome), the size within the frame, (smaller is better for fair use purposes) and whether the artist's modifications result in a change in perspective -- that is, a person viewing the watercolor gets a different impression of the subject than they might from seeing the original photograph. There are various cases in which artwork is modified (and a derivative is created) and the results are not considered fair use. (You can read about similar cases here).
What really matters ... It doesn't matter that the photographs are widely available on the Internet or that you are offering your documentary for free. The copyright owner (either the photographer, or the party who commissioned the picture) can still pursue you for infringement. We're not so sure that will happen as the owner may never see your work (and may not care, either). But defending fair use is not something you'll want to do. If you don't want to ask for permission, you should limit the use of the imagery to the shortest screen time possible and (if possible) limit the size so that the image fills only a portion of the screen. That may strengthen your position ... should you need to defend it.

Who Owns Alfred Hitchock Show Script?

Dear Rich: I'm working on a script that is very loosely based on a radio play by a dead author; it was remade into an Alfred Hitchock show and I tried to track down the owner via NBC, who aired the show in the 60s, to no avail. So do I go through the family of the dead author? Would his estate own it (he wrote successful movies as well, so he's sort of a respected screenwriter) The NBC folks weren't really sure who owned the show, and the play was originally on an old radio play from the 30s or 40s, presumably all of the producers are dead and the show seems to be public domain ("Suspense") but I'm not totally sure if the story is since it got reproduced for TV. My story would digress substantially but has a similar set up and theme, although my characters are very different. How should I proceed? We're not sure we agree with you that the source material is public domain. The Alfred Hitchcock Presents episode does not appear to be public domain (only one of his TV episodes seems to have slipped under the PD trapdoor). The status of the work is also unclear because you are dealing with issues regarding derivative works. That is, there may be separate copyrights in the underlying story (based on the radio play) and in new material added to the teleplay.  (This chart provides a breakdown of the AHP teleplay writers and story creators.)
Tracking the owner -  the Rear Window problem. By a strange coincidence, your problems in determining ownership may be compounded by a Supreme Court ruling dealing with another Hitchcock work. As you can see from reviewing the case, ownership of older stories-turned-to-screenplays can often be murky. If you had sufficient resources you could engage a copyright research company to provide a full report on the ownership status. (Here's how to review public records on your own.) We think you'd have a far easier time modifying the plot and characters so all that remains are the general ideas and perhaps the basic plot twist -- sort of like the way Brian DePalma's Obsession is based on Hitchcock's Vertigo.
Need any theme music? By the way, you're free to re-record and use the Alfred Hitchcock Presents theme as that was lifted directly from a public domain composition (theme starts at about 38 seconds in) On a related note, here's a summary of the public domain status of Hitchcock's films.

When Does a Version of a Song Qualify as Fair Use?

Dear Rich: I am working on a tribute album and I'm trying to figure out the distinction between derivative works and transformative fair use.  At what point is a song transformative enough to be considered fair use, vs. a derivative work? And how can I use this knowledge to negotiate with publishing companies, prior to recording/selling and performing the songs? If I am not given permission to create or sell a derivative work and I only perform them live, what is the risk and potential liability of infringement? Sorry, we would have gotten to your questions sooner except we've been obsessed with creating animated GIFs ever since Photoshop Elements 10 arrived (finally, you can change the timing on the animation). We expect to get over it soon, and yes, we know they're annoying to watch. 

Right, you had a question. If you're doing a tribute album, we assume you're doing cover versions of existing songs and that it is a "tribute" to a band or performer. There are two legal rules at work here.

• Compulsory license. First, under Section 115A of the Copyright Act, a music publisher must permit you to record any song that has previously been recorded and released to the public. However, you cannot use the compulsory (mechanical) license if you change the basic melody or fundamental character of the song. For example, a singer cannot alter a song’s lyrics without permission. That said, many people change elements of songs without a problem (as we mentioned in this previous entry).
• Derivatives and fair use. A derivative work is one that is based upon or modifies an existing work. A fair use is when an existing work is used in such way that a court, balancing four fair use factors determines that permission is not required. The transformative quality of the work is an important factor but so is another factor -- the amount and substantiality of the portion taken. In most music cases where fair use is found it's because a relatively short segment of the original work is used. We don't think providing a full-length cover of a song will qualify as a fair use -- even if it is as transformative as this.

The "So What" Issue. Even if you believe you have a strong fair use argument, a music publisher is likely to respond, "so what?" Only a court -- not you or your lawyer -- can verify that it is a fair use, so a publisher is unlikely to feel pressured to grant permission based on your arguments. What you might wish to consider --  although this advice is contrary to Section115A --  is to simply pay the mechanical license fees even though you have modified the songs. Our experience is that most publishers just want to be compensated and don't want to have to deal with special permissions. As for performing the songs live -- any venue where you play will have to pay performing rights fees for each song -- so it is unlikely that music publishers will care about your version just as long as the song title is correct.

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!