Will We Get in Trouble for Sports Celebrity Prints?

Dear Rich: Can an artist sell to the public prints from paintings done of famous sport celebrities for profit in California and other places. He was told an artist's 'first amendment publicity' or something like that trumps the rights of the famous person. This artist doesn't seem to be concerned at all but he's a good friend and not in good health and if something happened and if he was drug into court, he'd likely die from the stress and embarrassment to his career (even if he won). Shall I try and stop him? He says if there is a problem he'll simply just stop immediately. I'm worried about him. We think that what your artist friend was told was that "an artist's first amendment right trumps a sports celebrity's right of publicity," a maxim that oversimplifies a complex issue. The right of publicity allows every person to control the use of their name or persona for commercial purposes -- typically on a product (like our Tiger Woods golf ball). However, celebrities cannot control so-called informational or "communicative" (first amendment) uses -- for example, articles, books, or documentaries.
What about the gray areas? Things get tricky at the intersection of communicative and commercial uses -- such as limited edition art prints. In that situation, a ten-year old Ohio ruling favors your friend. An artist painted Tiger Woods at the Masters Tournament and later sold more than 5000 prints of the image superimposed with other great golfers. (Here are some details on the artwork). A federal court of appeals ruled that the sale did not violate Tiger's right of publicity. A related ruling regarding paintings of the University of Alabama's football team -- though it dealt more with trademarks than the right of publicity -- also was in favor of the artist. Both of these cases took years and a great deal of attorney time and fees to decide. So, although the law may be on the side of your friend, that doesn't mean he can't be dragged into court to defend his rights.
No copyright infringement. Also, we're assuming that the prints being sold are made from your artist friend's original paintings. If the paintings are by another artist, or if they are based on a photographer's original photos, then your friend could be hassled for claims of copyright infringement by the original artist or photographer respectively.

LLC Doing Business Out of State

Dear Rich: My business partner and I recently created a non-transacting LLC in Texas, where I live. He, however, lives in Colorado. Is there anything he must file with his state? I have searched all over and cannot find anything. We spent a little time trying to figure out what this question has to do with intellectual property and finally gave up. We're also not sure what a "non-transacting LLC" is. Google doesn't seem to know, and neither does the State of Texas. Do you mean that you're not transacting business in Texas? Knowing where you transact business is key to answering your questions ... In any case, here are some things to consider.
What's typical? Most LLCs (and corporations) are organized in one state and may or may not have to register ("qualify to do business") in other states. The state in which the LLC is organized is usually the state in which it has its principal place of business or where some or all of the owners live. If the LLC plans to do business in other states, the LLC must qualify in those states. Keep in mind, your LLC must only qualify in other states if it is engaged in intrastate commerce, not if it's engaged in interstate commerce. (This article explains the distinction.) If the only connection that your LLC has with Colorado is that an owner lives there, that would not be a basis for qualifying to do business in Colorado. If, on the other hand, you operated stores in Colorado, you would likely have to qualify.
What does it mean to qualify to do business? "Qualification" refers to a registration process that
involves filing paperwork and paying fees—similar to the procedures and fees required for incorporating or forming an LLC. You must also designate a registered agent—a resident person or company in the state who agrees to accept legal papers on your behalf in the state. The qualification fees range from $100 to $300 or more (depending on the state). Your Secretary of State can fill you in on the requirements.
Other filings ... Because we're not clear where and how you operate your business, we're not sure what other filings you will need to make. LLCs, unlike corporations, do not pay income taxes. The owners must declare the LLC income on their personal returns. However, it's not always this simple -- for example, many states require qualifying LLCs to withhold state income tax from their profits. Consult a tax professional for the best course of action.
BTW Dept. We're the co-authors of an eGuide on the subject of out of state business. That guide  provides more depth if you need it.

Copying Dragnet: Risk v. Public Domain

Some readers were SSCD (shocked, surprised, concerned, and disappointed) over our entry about whether episodes of the Dragnet TV Show are in the public domain. One reader cited Steve Fishman's public domain book as evidence that we got it wrong. "[Fishman] suggests that, because broadcast does not constitute publication," wrote the reader, "and because federal trial courts have decided that syndication doesn’t equal “publication” for copyright purposes, 'the conservative course of action is to assume that programs syndicated before 1964 are not in the public domain, even if they were not timely renewed.'" A similar sentiment was expressed by an attorney who suggested that the first question to ask was "[W]hen did Mark VII productions, the presumed copyright owner of Dragnet, start selling copies of the program?" Readers also warned us about relying on unsupported assertions in Wikipedia or the Internet Archive. All good points (and we hope our previous answer doesn't result in the loss of our license to blog). In our answer, we asserted that some (or all) of the 1951 Dragnet series episodes "appear to be in the public domain" because they've been offered for sale by public domain DVD vendors, because of a claim in Wikipedia, and because of the presence of the material on the Internet Archives. We should have mentioned that relying on the Internet Archives as a standard for the public domain can be risky, and we should have added that unsupported assertions in Wikipedia are not sufficient to ward off liability from copyright owners. The only way to guarantee public domain status is to research and prove publication and then research Copyright Office records and confirm a failure to renew (or some other basis for PD status). In addition, as we indicated in our linked entry, use of the Dragnet theme music may trigger objections from Dragnet Music Company, publishers of the theme tune (and which may explain why some public domain vendors have removed the theme).
Proving publication ... Steve Fishman, author of The Public Domain (of which we are the editors) does recommend a conservative course of action when using TV series from the 1950s and 1960s. That view is based on the confusion as to whether syndicating television shows is a "publication," triggering the renewal requirement. Two courts have ruled that syndication agreements where there is no copying does not amount to publication. (Broadcasting the original shows is not considered publication.) Fishman writes that "[T]he riskier course of action is to rely on the assumption that programs syndicated in 1964 and earlier have been published for copyright purposes. Therefore, if they were syndicated before 1964, they had to be renewed 28 years later or they entered the public domain."
That Said Dept. We respond to a lot of queries regarding the public domain and often we respond based on a risk analysis -- how likely it is that we think the reader will run into a problem. We believe these Dragnet episodes fall in a middle-world between public domain and copyright-protected -- a place where orphaned works live or where rights are not clear, and as a result, where owners don't appear to enforce copyright claims. We must add that the fact that many people distribute these episodes without apparent consequence is not a guarantee of future behavior (nor can we comment on the moral consequences of these uses) but the risk of copying the Internet Archive episodes or those duplicated by public domain vendors seems substantially lower than copying those episodes legitimately licensed by the copyright owner.

Wants to Excerpt News Articles

Dear Rich: I'm in the process of writing a book. I'd like to use excerpts from news reports from newspaper articles as introductions to each chapter. Is this covered by copyright? Yes, news articles, like all original textual works, are protected by copyright ... unless of course, they're in the public domain. However, your excerpts from these news articles will likely qualify as a fair use (click for some examples), provided you keep them  short -- for example, 50 to 100 words. In that way, your use appears to fit within fair use guidelines as a "transformative" and excerpted use of nonfiction text for purposes of commentary. We provide our usual caveat when it comes to fair use -- the final word in any fair use dispute is a court, so there are no guarantees (as demonstrated in this recent case). And also, let's not forget how strange some companies can be in their pursuit of copyright "justice".

When Co-Author Credit is Removed

Dear Rich: Authors A, B, C, and D are researchers who together write Article X that is published in Journal Y. Authors A, B, C, v D also write a report for Foundation Z, which funded their research. The report goes unpublished except for on the Internet. Later, Authors A and B decide to coauthor a book. Authors C and D will not author anything in the book. Authors A and B have permission from Journal Y (the copyright holder of Article X) to reprint that article in the book. Authors A and B would also like to reprint or adapt parts of the report written for Foundation Z. Do Authors A and B need to obtain permission from Authors C and D to reprint or adapt sections of the report written for Foundation Z? Is it considered plagiarism that Authors C and D are coauthors of Article X but not of the reprinted version in Authors A and B's book? If so, is there a cause of action that Authors C and D can pursue against Authors A and B? Wow, that's a lot of ABC's! We’re assuming that the researchers were independent contractors, not employees of the foundation and that you all assigned your interests in the article to the journal and the foundation.
Okay so far ... If this is accurate, and the journal and foundation own their respective copyrights, you don’t need permission from Authors C and D to reprint or adapt portions. Authors C and D no longer have copyright in those works. If, however, the co-authors own the copyright in the foundation report, then the co-authors are co-owners. In that case, you can still reproduce the report without the consent of C and D, assuming you're not contractually bound otherwise, and provided that you share your book revenues with C and D based on the value of their contribution. (Yes, we know ... good luck figuring that out!)
Credits. Although copyright law does not require attribution, Authors C and D may still have a legal claim if their name is removed from the article, particularly if C and D can prove that removing their names caused injury to C and D's  professional reputation or that you had an agreement to share credit. This is important if you work in a field where credit for publications is crucial for job advancement. You can avoid the potential hassle by crediting the article and the report in the same way as they were originally published (By the way, most copyright experts agree that making a work publicly available on the Internet is a form of publication.)

Can We Use Amazon Reviews in Our Product Ad?

what a bank employee once told us ...

Dear Rich: Our software product has gotten great reviews on Amazon. If we were to include any of these reviews in the copy on the software product page, is there anything I should be aware of or get permission for? We know how great it is to get positive online reviews for your stuff. But unfortunately, you must obtain permission before using someone's name or persona to endorse your product. If you don't, you are likely violating that person's right of publicity. (Although there are some gray areas regarding the right of publicity, it's generally acknowledged that using someone's name without permission in an advertisement is a no-no.) In addition, if you copy and post a lengthy review, it's possible (though unlikely) that a reviewer could claim copyright infringement.
How does Amazon get away with it? Amazon requires that users assent to its Conditions of Use in order to post a review. Those conditions state: "You grant Amazon and sublicensees the right to use the name that you submit in connection with such content, if they choose."
What can you do? The safest route would be to use short excerpts from the reviews -- say 20 words or less -- and to avoid identifying the reviewer. Definitely don't use last names or screen handles, avatars, etc. First names and initials are probably fine unless they're so unique as to identify the person.
But what about what Amazon does on Facebook? There's a whole different set of rules when Amazon pays Facebook to use your name and endorsement on products.

Can We Share Songwriting Money With Non-Writers?

Dear Rich: Is it possible to fill out the copyright form for a song listing only two songwriters as the official songwriters, but then share the songwriting profits with two more (band members or mommy and daddy). That is, the CDs, sheet music, etc., will list only the two songwriters as the writers but the revenue will be divided, evenly or unevenly, between more people? Should the form be filled out with just the two writers listed and another agreement between the parties made for splitting such profits with band members? I feel that there is no need to misleadingly credit an individual just because you agree he should share in such profits. Sharing song revenue with non-songwriters is not uncommon; many bands do it. To accomplish this, list the current songwriters on the copyright application, and then enter into an agreement with writers and non-writers to share in the revenue (often structured as music publishing arrangements). A lawyer can set up the agreement or you can read how to do it in our music law book.
It’s the law. Listing the correct co-authors on the application – that is, the persons who made material contributions to the songwriting -- isn’t just a matter of fairness, it’s the law. Making false statements – if they are discovered -- may be labeled as fraud on the Copyright Office and could invalidate the registration. Of course that hasn’t prevented abuses – for example, some performers have demanded and gotten songwriting credit as a condition of performing a song.