US Intellectual Property Law » copyright http://www.iplawintheus.com Copyrights, Trademarks, and Patents Mon, 28 Feb 2011 21:38:15 +0000 en hourly 1 http://wordpress.org/?v=3.1 Youtube and Copyright Law http://www.iplawintheus.com/youtube-and-copyright-law/ http://www.iplawintheus.com/youtube-and-copyright-law/#comments Thu, 10 Dec 2009 16:28:01 +0000 Andrew http://www.iplawintheus.com/youtube-and-copyright-law/ Youtube and Copyright Law is a post from: US Intellectual Property Law

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Youtube and Copyright Law

If you go on Youtube and look up any mainstream musician you can think of, you’re probably going to find hundreds of videos posted by fans, providing not only their popular, studio released music, but also, rare B-sides, live performances, and alternate takes of popular songs. This, in addition to interview footage, TV specials, and scenes where the musician had a guest spot on a popular TV show, or a cameo in a big movie.

Unless posted by the actual owner of the copyright, all of this material constitutes copyright infringement when it is first posted.

So why haven’t the music companies cracked down on Youtube like they have with Napster, Bearshare, and other file sharing sites and services?

Part of that may simply be that the vast majority of the material found on Youtube is actually not in violation of any copyright laws. Most of it is original footage created and uploaded by the same person. Trying to shut Youtube down would be completely unfair to, say, Ronald Jenkees, the musician who is making a name for himself by providing free content on Youtube, or independent, Youtube-distributed film production companies like Ubsey Movies.

Now and then, videos are actually removed from the site due to copyright infringement, but these cases are usually only when material is lifted directly from another source. For example, if you make a video where, in one scene, somebody is watching “Spiderman 3” on television, that’s not really a big deal to the copyright holders of the film, because nobody is really going to be squinting at the TV in the background of that video as an alternative to actually watching “Spiderman 3”. However, if you just post “Spiderman 3” on Youtube, you’ll probably see it taken down immediately, and you might even have your account suspended.

Now, that doesn’t mean that you’re not committing copyright infringement by including clips from a copyright protected film in your youtube video, it’s just that it’s not a huge deal to the actual copyright holder.

Another route taken by companies like Sony BGM is to simply allow copyright infringing videos to stay up, but to actually endorse those videos… in exchange for advertising space. If you’ve watched a popular youtube video recently, you might have seen a banner ad pop up on the lower half of the screen. A minor annoyance for some viewers, but it’s easily gotten rid of with a click of the “X” icon. Many of these videos being coupled with advertising are a result of the video’s author including a copyright protected song on the soundtrack, without permission, and then receiving a letter from the copyright holder giving the author the option of either A) removing the video, or B) allowing the copyright holder to advertise on the video.

It’s really a fair trade for many video authors. The vast majority of Youtube members cannot afford to actually license the songs they want to use in their movies, or to make fan-made music videos with, and so, offering to trade free soundtrack material for advertising space is a wonderful alternative for both struggling directors, and for copyright holders who see an opportunity where others only see a violation (because honestly, how many times have you been to the movies, heard a song on the soundtrack, and thought “Man, I gotta go BUY that album!”).

Besides blatant copyright infringement, much of the work on Youtube amounts to parody, criticism, or education, and as such, can get away with appropriating actual footage from other movies.

For example, one of the most popular Youtube content creators would be James Rolfe, who goes by the name of The Angry Video Game Nerd for his series of humorous, and profanity laden, video reviews of old Nintendo games. Rolfe’s work actually serves as parody (making fun of the actual video games), education (discussing elements of game design in an analytical fashion), and criticism (calling bad video games *@$% and *@!!#), and as such, his work is more than covered by the Fair Use Doctrine, which dictates that any work that serves as parody, education, or criticism is completely covered by the First Amendment. This allows Rolfe to use actual gameplay footage from the games he parodies and criticizes, without any of his work ever actually qualifying as copyright infringement.

Youtube, and similar means of internet-based self publication, are really the way of the future for today’s aspiring artists and creators. To get a little sappy here; to shut down Youtube or similar sites would be to stomp on the dreams of many young artists, only to stop a few media pirates, who could’ve easily been stopped by simply removing their videos. Youtube, and similar sites like Revver.com, are here to stay.

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]]> http://www.iplawintheus.com/youtube-and-copyright-law/feed/ 1 Video sharing http://www.iplawintheus.com/video-sharing/ http://www.iplawintheus.com/video-sharing/#comments Thu, 10 Dec 2009 06:57:28 +0000 Andrew http://www.iplawintheus.com/video-sharing/ Video sharing is a post from: US Intellectual Property Law

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Copyright Law and Video Sharing Sites

We all know about Youtube and Google video, of course, and we all know that you can go on those sites and find tons of copyright infringing copies of copyright protected content.

The people who own the copyrights to the protected content know it, too.

So how does all that illegal content stay up?

The truth is actually kind of mundane: There’s too much of it to track. In order to eliminate every single incident of copyright infringement on Youtube and Google video, there would have to be a team of literally hundreds of thousands of people browsing those sites constantly to find every single incident of copyright infringement, and then a legal team would have to be given the task of issuing hundreds of thousands of cease and desist emails every single day.

And even then, many videos would slip through the cracks, carrying either copyright infringing video, or just copyrighted songs used on the soundtracks without authorization.

The cost of such a massive program would wind up being several times the amount of any actual income loss suffered by copyright holders thanks to copyright infringement and piracy.

So why not just shut those sites down, like with Napster?

Nobody really wants that. Youtube and Google video both insist that their users should not post copyright infringing material. Certainly, many users do so, anyways, but those users are violating their terms of use in doing so.

Users who persist in using copyrighted material without authorization, despite several warnings, usually have their accounts deleted by the operators of the site.

Many copyright holders use the site for their own means, as well. Most major record labels have taken to posting official music videos through their own, corporate owned Youtube channels. Youtube is a great resource for pirates to find music and steal it, but it’s also a great resource for legitimate copyright holders to advertise new albums. Not to mention the fact that probably the vast majority of Youtube and Google video users actually are posting original content, as that really is the main allure of these sites: Showing your own stuff off to the world.

Recently, a few alternatives have popped up on the internet, with the most well known probably being Revver.com.

Revver uses an actual compensation system for their users. By allowing Revver to place advertisements at the end of every video, authors are rewarded with a share of the advertising fees on a per-click basis.

Because actual money is changing hands, Revver has to be much more careful about copyright issues so as to avoid liability. Every video that goes up on Revver has to first be approved by the site’s staff. The video has to meet the criteria of belonging, in its entirety, to the person who uploaded the video, before it can go through and be displayed on the website.

Needless to say, Revver is a little smaller in scale than Youtube or Google video. Reviewing every single video that goes up takes time, after all.

Many believe that websites like Revver really are the way of the future when it comes to video sharing. Where Youtube allows directors to upload their own work, there is no compensation system in place. Furthermore, the website is simply too massive to really control in terms of copyright issues.

Note that, even on Youtube, Revver, Google video and every other video sharing website based in the United States, the Fair Use Doctrine stands. The right to fair use for the purpose of parody, criticism, or education is non-negotiable.

Which is great news for many on Youtube; Parody, criticism and education are three of the most popular types of videos on the site. One of the most popular authors on Youtube, the Angry Nintendo Nerd, actually does all three in his humorous video game review/essay videos.

Even on the internet, fair use can extend to incidents wherein a work is directly derivative of the work it parodies.

Really, every copyright law that holds true in print and on television holds true on the internet, as well. This means that everything you can get in trouble for in print is equally illegal on the internet, but it also means that any non-negotiable rights you hold as an American citizen hold true on the internet, as well.

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]]> http://www.iplawintheus.com/video-sharing/feed/ 0 US intellectual property laws http://www.iplawintheus.com/us-intellectual-property-laws/ http://www.iplawintheus.com/us-intellectual-property-laws/#comments Wed, 09 Dec 2009 21:54:57 +0000 Andrew http://www.iplawintheus.com/us-intellectual-property-laws/ US intellectual property laws is a post from: US Intellectual Property Law

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How are US Intellectual Property Laws Unique?

It’s probably fair to say that throughout most of the civilized world, copyright laws are kind of built on the same skeleton, more or less. The author or owner of a given work has certain exclusive rights with regards to publishing, distribution, copying, and making derivative versions of that work. However, the copyright laws, from country to country, and in some countries, from state to state, province to province, or jurisdiction to jurisdiction, the laws can vary in subtle ways.

These little subtleties might not seem like a huge deal, and to be completely honest, ninety percent of the time, you can skate right on by them and not worry about it. However, these little details can also put you in some pretty hot water ten percent of the time. As we all know, the field of law, and especially law regarding intellectual property, is largely dependent on tiny little oversights and so on. We live in an era where a filing error can result in a property worth millions being handed to the wrong person. If you have any interest in distribution, publishing, creating original work, or heck, even photographing famous tourist attractions, you should be familiar with the little bits and pieces of copyright law that may be unique to the area where you are doing any of these things.

If you are on a trip to the US for the first time, here’s something you should know about photography within the United States; In the US, thanks to certain laws governing personal privacy, you need to get a release form from everyone appearing in film or photography taken in a public place before you can legally publish that footage or photograph, even on a personal website. In lieu of a written, signed release form, the publisher or distributor is required to blur out the face of anyone who has not signed such a form, so as to protect their identity.

It seems like a silly step, and, certainly it’s usually not the kind of thing anyone would bother to press charges against you for, and it’s not the kind of thing that will matter if nobody winds up pressing charges, but it’s something to keep in mind, nonetheless.

Another major difference between the US and the rest of the world, regarding copyright and intellectual property law, would be the Fair Use Doctrine. The founding principle upon which the United States was founded is personal freedom. Thanks to the First Amendment to the United States Constitution, a vital American right is the ability to say literally anything you want (well, short of say, threatening to kill someone, etcetera). By way of the Fair Use Doctrine, this first right amendment extends not only to criticism of politicians, laws, and public figures, but also to criticism of art, literature, and entertainment. Fair Use covers any and all parody which targets the character of an original work, and Fair Use also protects any use of a work for educational purposes.

Note that Fair Use isn’t really a bullet-proof shield if you’re not actually using a work for parody or education. So you can’t, say, remake a movie without authorization from the original author, and then throw in a couple of jokes and call it a parody. The humor and criticism within the movie have to actually be targeting the essence of the original work. Likewise, you can’t screen a movie, charge admission, and call it education. You have to actually include the film in some sort of a lesson plan, you have to actually be offering an educational experience.

Other major countries have their own unique copyright laws, as well. Again, most of these differences are actually pretty small in the long run, but if you don’t watch yourself, one little oversight can have a ripple effect, and what counts as parody in one country might wind up counting as copyright infringement in another. What is public domain in one country might be legally owned by someone in another country. Wherever you are, if you plan on publishing, creating, distributing, or copying anything, it’s a good idea to know what, exactly, you can get away with in that country as opposed to other countries.

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]]> http://www.iplawintheus.com/us-intellectual-property-laws/feed/ 0 UK intellectual property laws http://www.iplawintheus.com/uk-intellectual-property-laws/ http://www.iplawintheus.com/uk-intellectual-property-laws/#comments Tue, 08 Dec 2009 08:05:46 +0000 Andrew http://www.iplawintheus.com/uk-intellectual-property-laws/ UK intellectual property laws is a post from: US Intellectual Property Law

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How do UK Intellectual Property Laws Differ from US Laws?

In many areas, the United States and the United Kingdom are pretty similar when it comes to intellectual property laws, copyrights, the public domain, and so on. However, there are some small differences here and there. “Small differences” sounds like they may be negligible, but we all know that, when it comes to the law or anything you can be sued over, a “small difference” may amount to a “huge fine”!

One notable difference is in regards to public photography. In the United States, there are certain laws in place protecting people’s privacy, and while these laws can certainly do a lot of good, they can also cause hassles for anyone taking photographs in public. For example, in the US, if you take a photograph of say, the Statue of Liberty, and there are a whole bunch of people walking between your camera and the statue when you take the photo, you need to get a release form from every person that appears in the photograph, or you need to blur their faces out in the event that you hope to publish the photograph, even on a personal website.

Another weird little difference; The King James version of the Holy Bible is public domain throughout the world, including the United Kingdom. However, in the UK, any publishing of the King James Bible must be approved and authorized by the Crown or its agents before it can reach print. This is actually not a copyright issue so much as it is based on “royal prerogative”.

A vital difference would be the duration of a copyright. In the United States, if a film producer holds the copyright of a movie, then they hold that copyright for a different amount of time than if the film were owned by the director. If a music company owns a copyright, they own it for a different amount of time than say, a self published musician would own his own music.

The UK also has such a thing as Moral Rights. Introduced into British law thanks to the 1988 act, these rights come from the tradition of the civil law system, rather than the common law system. This act allows for authors of literary work, theatre, music, art, and film to be identified as the author of their own work, regardless of copyright holder (which is notable, since any work made in the employ of say, a producer, is copyright owned by the producer). The act also allows the artists to object to any derogatory treatment of the work, as well as the right to object to false attribution, as in a music producer giving song writing credit to the singer rather than the actual song writer.

Also worth mentioning would be that, in the United States, there is the Fair Use Doctrine. Fair Use is a doctrine based on the first amendment right to free speech, and it covers any appropriation of intellectual property to the ends of parody and criticism, or education.

As you probably know, using a movie or a book or what have you for parody or education in the United Kingdom isn’t exactly illegal, either. Certainly, the country that birthed The Sex Pistol’s “God Save the Queen” isn’t one to place outright bans on parody, however, the defense that a UK parody artist puts forth might not be as bullet-proof as the defense put forth by a US parody artist, arguing that his work falls under Fair Use. That’s not to say that you can’t do parody in the UK, just that it may be harder to defend yourself against charges of copyright infringement should you, say, lift scenes directly from an existing movie without really changing anything, or appropriate actual sound, footage, photography or other media from another work for the purpose of parody. Parody is certainly legal in the UK, but certain forms of parody, when they might also be considered copyright infringement or unauthorized use of intellectual property, are oftentimes left to the court’s discretion.

It may also be worth noting that certain parties in the UK are leaning towards legalizing things like CD ripping, wherein you would copy the data from a CD to your computer for backup. In the US, this is too often associated with pirating of software, and, certainly, in both countries, the water is kind of cloudy on this issue, with it being okay in some circumstance, but not okay in others.

So there aren’t a whole lot of major differences between the US and the UK when it comes to intellectual property law, but there are a few that you should probably keep up to date on the copyright laws in any country where you hope to create, publish, duplicate, or photograph something.

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]]> http://www.iplawintheus.com/uk-intellectual-property-laws/feed/ 0 Trademark http://www.iplawintheus.com/trademark/ http://www.iplawintheus.com/trademark/#comments Mon, 07 Dec 2009 17:44:37 +0000 Andrew http://www.iplawintheus.com/trademark/ Trademark is a post from: US Intellectual Property Law

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What Exactly is a Trademark for? ™

You always see those ™ trademarks all over everything from movie posters to toys to food packaging. If you ask most people, they’ll be able to tell you that the Trade Mark has “Something to do with copyright… doesn’t it?”

Licensing, copyright, trademark, intellectual property, it gets confusing trying to sort them all out sometimes. So let’s just focus on Trademark for a minute, and try to put it in simple terms without too much in the way of legal terminology that reads like a foreign language.

A trademark is defined as a distinctive sign, or an indicator of some sort, put to use by either an individual, a company, or a legal entity, so as to mark the source of the products that bear the trademark.

The ™ is not the trademark. The ™ symbol is only used to indicate that what you are reading is, in fact, a legal, registered trademark. For example, when you look at a sign that reads Coca-Cola™, it’s actually the word Coca-Cola that is the registered trademark, not the ™ slapped onto the end. The ™ is only there to indicate that the trademark is registered, so as to dissuade anyone from trying to appropriate the trademark for their own use without permission or license from the trademark owner.

Trademarks are not registered solely to names, either, but also to logos, symbols, a specific word when written in a specific font, iconic imagery, etcetera. Basically, anything that can be used as a “mark” to place on all products from a common source. Sort of like Batman or Superman wearing their own trademarks on their shirts. The trademark is sort of a signature for either an individual or a larger legal entity.

A registered trademark differs from copyright ownership in that the trademark is just the symbol applied to something. A company needs to copyright individual products, and cannot simply rely on slapping their ™ on it and consider it copyright protected.

So, a copyright protects the intellectual property of an individual or a company, such as films, a soda pop recipe, a t-shirt design, etcetera, while registering a trademark protects a logo, a company name, or a signature tag of some sort.

In the United States, when a trademark is applied to a service, rather than a product, it is called a Service Mark.

The owner of a registered trademark or service mark is free to pursue legal action regarding matters of trademark infringement, and may also take steps to prevent a trademark from being used without authorization. However, registration is not actually required. If possible, it is preferable, but not absolutely necessary. A common law trademark may file suit, but without registration, the trademark may only be considered valid in the region where the trademark has been used by its originator.

An amusing incident wherein this was taken advantage of: In the 1980’s, when the Christopher Reeve’s Superman movies were released, the essence of the Superman character sort of boiled down to the big red “S” trademark on his chest, and the symbol had only been a common law trademark at the time. This left filmmakers in India, Turkey, Italy, and Spain to make their own Superman movies without fear of legal repercussions by changing details about the actual character as such that the big red “S” was really the only similarity left. Because these movies were neither condoned nor informed by the trademark holders, the results could be pretty far out, casting well known heroes as homicidal villains and so on.

So in other words, registering your trademark is only necessary if you hope to own the trademark in other countries and so on. If you’re not really worried about that, you only need to do a little research to make sure your trademark isn’t already taken, and then put a ™ next to that trademark wherever it appears.

For clarification, a trademark only covers itself. A trademark does not extend into copyright laws. Placing a trademark on a product of your creation does not make that product your legal intellectual property. Inventions need to be patented, and creative concepts need to be copyrighted. The trademark only covers your distinctive logo, title, stamp, or other signature. In some cases, as we mentioned, with Superman, the trademark can be such a major part of a character or idea that it’s practically all you need to worry about (nobody’s going to make a Superman story without the big red S, for example), but in general, having a trademark is only good for protecting a brand name, and not other intellectual property.

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]]> http://www.iplawintheus.com/trademark/feed/ 2 Syndication http://www.iplawintheus.com/syndication/ http://www.iplawintheus.com/syndication/#comments Mon, 07 Dec 2009 06:34:49 +0000 Andrew http://www.iplawintheus.com/syndication/ Syndication is a post from: US Intellectual Property Law

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How Syndication Works

Simply put, in broadcasting, syndication is a way for the creators of a TV show to turn that show into an asset, rather than a sort of a one shot deal. By selling the rights to broadcast the show to any number of networks, the owners of the show are allowed to retain the copyright while still earning revenue off of it and having the show broadcast on, sometimes, several networks.

Syndication is only really common in countries like the US, where, instead of one major centralized network which controls the television content throughout the country, there are several networks throughout the country, each with its own programming.

It should be noted that the networks do not have to pay any royalty fees per broadcast of each episode. By buying the right to broadcast a show, they buy the right to broadcast that show outright. This means that any music that appears on the show which is owned by a third party is allowed to remain in the show, as part of the package of rights that the show actually required in order to broadcast the song in the first place (ie, the right to play a given song in the context of this show).

There are actually a few different types of syndication. These are first run syndication, off network syndication, and public broadcasting syndication.

First-Run Syndication

First run syndication refers to programming which is debuted as a syndicated show, as opposed to being debuted as the sole property of one particular network, or at least, were offered to several networks for debut (even if only one wound up answering the call). Many networks are actually reluctant to pick up first-run syndication shows, as there is competition in the fact that more than one network is carrying the show, so viewers are more likely to watch it whenever convenient, rather than to make time to watch their favourite show on the one network over the other.

Off-Network Syndication

Off network syndication refers to the sale of a show which was first broadcast on network television. This is what we call a rerun.

Public-Broadcasting Syndication

Public Broadcasting Syndication is something that has arisen in the United States a sort of parallel service to stations within the PBS program, and a small number of independent public TV stations.

Benefits

The benefits of putting a show into syndication should be obvious. By selling to multiple networks, a producer or copyright holder is free to retain the rights to the actual show itself, while only selling off the right to broadcast, and to make a lot more money than if he or she had chosen to only sell to one, exclusive buyer.

Another, perhaps less obvious benefit, is that shows which were kind of overlooked on their first run are given new life when they go into syndication. For example, when it first aired, “Futurama” was not really a huge smash hit. It generated a small cult following, but Fox cancelled the show before long.

However, in syndication, “Futurama” is phenomenally popular. “Futurama” currently airs on Cartoon Network and indeed many networks owned by Fox. Not only that, but Fox has actually responded to the outpouring of support for the show in syndication by helping to finance a number of direct-to-DVD movies which are all based on the show.

This also happened to “Family Guy”, which was cancelled out of the blue when viewer-ship started to sag. After going through the same channels as “Futurama”; doing very well in syndication, selling a lot of DVDs of the show, and being a cult favourite, Fox eventually conceded that cancelling the show had been a mistake, and today, we actually have “Family Guy” back on the air, and backed by Fox.

You may be wondering why it keeps coming back to Fox in this article…

Well according to some fans, Fox has made some bad decisions by cancelling shows rather than trying to find the right audience, and that’s really where the strength of syndication lies: in giving a TV show a long enough lifespan to find its audience.

But really, the list goes on. Another popular show that was put into syndication, where it really found its niche, would be “Mystery Science Theater 3000”. Syndication is really helpful for offbeat shows, allowing them time and freedom to find just the right viewers.

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]]> http://www.iplawintheus.com/syndication/feed/ 0 Satire http://www.iplawintheus.com/satire/ http://www.iplawintheus.com/satire/#comments Sun, 06 Dec 2009 17:54:03 +0000 Andrew http://www.iplawintheus.com/satire/ Satire is a post from: US Intellectual Property Law

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Satire: What can I get away with?

You’ve probably heard all three of these words; satire, parody, and spoof.

Here we’ll get into satire, and furthermore, how it pertains to copyright law. More specifically, we’ll get into how far satire is covered by the fair use doctrine.

Satire is generally seen as a literary genre, though it is not always so strictly defined. Satire can actually extend, in the actual practice, into the graphic arts, performing arts, filmmaking, music, etcetera. Satire generally focuses on human vice and shortcomings, and oftentimes focuses on political, or governmental foolishness. In effect, satire is pretty much the idea of telling a story that is, in a poetic sense, more true than the actual facts, by taking the human motivations and shortcomings which cause a problem or folly, and seeing that through to extreme conclusions for the sake of comedy or social commentary.

Spoofs and parodies are generally seen as being more light hearted and strictly for comedy, whereas satire is seen as something that is usually making a statement, either on society, the government, human nature, or the nature of art.

Satire is usually less specific, broadly mocking themes such as say, alcohol addiction, political over spending, greed, etcetera. Or satire can target another genre, such as the Naked Gun movies, which satirize the police movie genre that was popular at the time.

Spoofs are usually more specific. For example, a scene in a movie where a character runs across the street may be spoofed in say, MAD magazine, in a scene where the character runs across the street and slips on a banana peel.

Parodies are usually send-ups of an individual work of art.

Parodies are fully protected on the grounds that the parody is actually a parody of that individual work. It may seem like splitting hairs, but remember, the courts often times do nothing but split hairs for weeks on end!

For example, if you’re walking through a toy store and you see a Bratz doll, and you are offended by the idea of selling sexualized toys to children, so you respond by selling a line of dolls based on Bratz, wherein all of the characters are prostitutes, that would be covered by first amendment fair use doctrine, as long as you could reasonably argue that your creation is a direct response to the original work.

On the other hand, if you hate moustaches, so you release a line of Ninja Turtles wearing ridiculous moustaches, your use of the Ninja Turtles is not covered by fair use doctrine. The parody has to actually be a parody of the work that it appropriates.

Satire, on the other hand, by its stricter definition, is not really subject to copyright law, simply because you cannot copyright broad concepts like “greed”, nor can you copyright a genre of film.

If you write a novel that features Superman and Barbie fighting crime, and you use that to put forth some social satire, your use of Superman and Barbie might not be protected. Unless your parody actually makes some content on the characters you appropriate, your satire might not be protected under fair use.

Beyond copyright infringement, though, satire is entirely protected within the US. You can use George W. Bush as the comedic anti-hero in a novel, for example. No matter how foolish you present the character as being, no matter what happens to him, you are fully protected, as public figures are generally seen as fair game for ridicule, at least from a legal perspective.

This right is one of the most important and well protected within the US. Being able to voice complaints about one’s government is, in fact, the very idea that the US was founded upon, and is absolutely, objectively vital to maintaining a free country.

It actually is kind of funny when you think about it. You can use a character like say, Bart Simpson, in any context you want, just so long as you are actively making fun of that specific character. If you use him in a way that is not meant to criticize the character or ridicule him, you are not protected unless you have permission from the copyright holder of that character. This is the law as it pertains to fictional people like cartoon characters. You can use them however you like, but only if you make fun of them. If you treat them with too much respect, you might get in trouble.

On the other hand, you can do and say whatever you want with the image of the American president. If there is one idea that the US was founded on, it is that criticism is vital and important to living free. More important than lionizing our heroes, which is a practice that is not always protected.

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]]> http://www.iplawintheus.com/satire/feed/ 0 Sampling http://www.iplawintheus.com/sampling/ http://www.iplawintheus.com/sampling/#comments Sun, 06 Dec 2009 08:25:37 +0000 Andrew http://www.iplawintheus.com/sampling/ Sampling is a post from: US Intellectual Property Law

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What does the Law think of Sampling?

Sampling is defined as the act of taking a small portion of one work of art, and then taking that piece and mixing it into an original work of art. This is probably most common in music, particularly in genres like hip hop, house, electronic, techno, and contemporary dance music.

It goes without saying that there are going to be legal issues coming up if you choose to use other people’s music as a part of your own without first getting their permission. Anyone considering sampling should probably read up a little on how the law pertains to this method of composition.

But… unfortunately, there is no one outcome someone can expect if they choose to sample one song and mix that clip into another. All we can really do is look at individual cases. Many artists who use samples argue that sampling is covered by the Fair Use Doctrine, and many judges agree. However… many judges disagree, as well.

The reason there’s so much contention is kind of because, well, art is largely subjective. The official ruling is that, for sampling to constitute plagiarism, that the “heart” of the song must be evident or obvious. Now… how are you going to come up with a legal definition for what exactly the “heart” of a song happens to be?

In some cases, a hip hop artist might use ten seconds of a song on a loop, and play with the sample in such a way that it sounds wholly original. In other cases, an artist might only borrow three or four notes, and get slammed with stiff fees for copyright infringement because their work was not deemed original enough. It’s hard to know when you’re in the clear, because one judge might be a little more open to the idea of sampling than another, one judge might have sharper ears and be able to spot a two second loop that would fly right by most judges and so on. You might even be able to build a song entirely out of samples, play it for the original artists, and not have a single one of them spot their own work buried within yours.

Today, you’ll actually hear less and less sampling in mainstream hip hop music. Most record companies will not release music with samples that are not cleared with the copyright owner before the time of release. Because the original artists are free to demand as much money as they want for the use of a sample, this has resulted in hip hop artists giving the sample owner seventy percent ownership of the new song, and a massive chunk of the revenue, even if their sample only consists of less than one second of the song, and only occurs one time.

The final verdict on whether or not you should use samples really comes down to like… sample at your own risk. There’s no way you’ll ever guarantee, one hundred percent that you won’t be sued. For example, the Beastie Boys were once sued because they used a sample of a song which they had cleared. Unfortunately, they only got authorization for that particular cover of the song. The copyright holder for the original notes wound up suing them, and the Beastie Boys were forced to remove the sample, even after paying for it.

On the other hand, you might be like Daft Punk, building songs entirely out of samples and never being sued. It’s just plain hard to know how it’ll all wind up when you’re using samples.

Although, if you choose to sample music that is in the public domain, you can pretty much do whatever you like with the end product. You can also sample most open source music, just so long as you do not use the end product for commercial purposes.

Almost anyone who really knows something about music can probably recognize that sampling can be a legitimate form of creating new compositions. Even the Beatles used sampling on several albums. Still, others just hold a negative opinion on sampling in general, and it’s certainly not helping when a rapper basically uses a sample like a Xerox machine, putting ten seconds on an endless loop and adding nothing new to it. It all really depends on the opinion of the original artist, and the opinion of the judge.

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]]> http://www.iplawintheus.com/sampling/feed/ 0 Royalty fees http://www.iplawintheus.com/royalty-fees/ http://www.iplawintheus.com/royalty-fees/#comments Sat, 05 Dec 2009 22:25:13 +0000 Andrew http://www.iplawintheus.com/royalty-fees/ Royalty fees is a post from: US Intellectual Property Law

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The Importance of Royalty Fees

For clarity, we’ll quickly define the meaning of royalty fees.

A royalty payment system is an agreement wherein, rather than buying the copyright to a work, or even buying the publishing rights outright, the licensee, or buyer, will pay the artist or copyright holder on a by sale basis.

The pay paid out per sale may be per actual item sold at a retail store, or by unit shipped, be that unit a dozen or a hundred of the actual item. The actual amount paid out may be a flat fee settled upon before hand, or a percentage of overall sales.

Receiving royalty fees isn’t an option for every artist, unfortunately. For the longest time, royalty fees in comic books were pretty much unheard of.

One story regarding an early attempt at instating a royalty system at Marvel comics in the 1960’s has it that Will Eisner, comic book artist and creator of “The Spirit”, was once brought into the Marvel studios by Stan Lee to meet with the owner of the company and talk about taking over editorial duties on a number of the comics.

Asked what he would do with the company, Eisner stated that the very first thing would be to instate a royalty system for the artists and writers, and to allow them to hold the copyrights for any original characters they created.

According to Eisner, the owner of Marvel tried to stifle his laughter at the very notion of paying comic book artists anything but a flat fee.

And those flat fees weren’t much back in the sixties. An artist was lucky to make twenty bucks a page most of the time.

If at all possible, any publishing deal which will allow you to retain ownership of your work is absolutely ideal. Even if it seems to pay less money in the short term, it’s better to have your work to sit on as an asset. If you sell your work outright to a publisher, you’re basically saying “Here you can have this”. This means that, say if you sell a book to Doubleday, and you sell the actual copyright… If Doubleday is offered a movie deal on your book, you don’t have any creative control over that movie, and you never see a dime from it. If Doubleday wants to publish a sequel without your consent, they can do that. If they want to alter the characters so that the main character is Shaquille O’Neal, they can do that, too (as long as they get permission from Mr. O’Neal that is). Selling ownership outright, in the US, means that the publisher can even take your name off the book if they want.

In fact, that was common practice in the early American pulp magazines. Many times, dozens of authors would be credited under the same pseudonym so that the magazine could inspire a completely bogus fan loyalty to non-existent authors.

By retaining ownership, by protecting your right to your own work, you are turning what could be a one time deal into an actual investment. Through either royalties, or limited publish rights deals, if at all possible, whatever you can do to retain ownership of your own work should be pursued.

One thing to keep in mind if you’re dealing with publishers is to not feel obligated to sign anything. Many publishers will play hardball, and kind of act like they’re doing you a huge favour and this is your one and only chance at getting published. That’s not really the case, even though it feels like it. If your work is good enough to get one publisher interested, there will be others out there, too. These people know exactly how it feels to be a struggling artist and, unfortunately, many would rather take advantage of that eagerness than nurture it.

Don’t ever sign anything without reading it, and don’t ever sign anything you’re not comfortable with. Get a deal that works for you. If possible, keep your ownership rights and talk about compensation through royalties rather than selling the publishing rights in full.

Don’t fall for the trick of feeling like this is your last chance, know what kind of a deals you’re being offered, and try to get the best deal possible.

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]]> http://www.iplawintheus.com/royalty-fees/feed/ 0 Royalties http://www.iplawintheus.com/royalties/ http://www.iplawintheus.com/royalties/#comments Sat, 05 Dec 2009 07:38:09 +0000 Andrew http://www.iplawintheus.com/royalties/ Royalties is a post from: US Intellectual Property Law

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The Rules of Royalties

Royalty payments are defined as a usage-based form of payment made by one party, referred to as the licensee, and another party, referred to as the licensor.

The licensor would be the artist or copyright holder of an intellectual property, though outside of copyright law, any real asset can be arranged to pay by a royalty system.

The actual royalty payments will consist of a percentage of the net sales, as derived from the use of an asset or intellectual property, or, at a fixed price per unit sale.

The royalty system is often seen as preferable to the more traditional form of simply selling licensing or publishing fees outright. Usually, in the event that the licensee and licensor agree to a royalty system, the initial fees paid will be much smaller, often times only for the actual work done rather than for any publishing or licensing rights. However, the royalty fees paid over time can wind up amounting to much, much more than a simple flat fee would have been. Not to mention that a royalties system is often seen as more fair, as an artist or inventor or other creator can be rewarded proportionately to the actual success of their work, rather than by simply taking the flat fee, and letting the publisher or distributor work out the rest.

Many young actors thank their lucky stars for having signed a royalties contract. When you’re just starting out, it can be difficult to find consistent work as an actor, but if an actor does even a bit part in a TV show, under a royalties system, then every time the show is syndicated, the owners of the show will send the actor a check. The check may be anywhere from fifty dollars here to a couple hundred there, depending on the money made per syndication, but as any struggling actor can tell you, a little here and a little there can really help out when you need to make ends meet.

Whether a royalty system sounds right to you or not, one thing that very few people really recommend is selling the copyright to your work, except on rare occasions. Writers often sell copyrights to their books directly to the publisher, but this means that your work will only make you that amount of money you just got for selling the copyright, and never a penny more. So if the publisher sells the movie rights to Paramount studios or MGM, you won’t see a penny. If they want to produce a sequel, they don’t need your consent. In the US, they can even take your name off of the book and publish it under a pseudonym. Certainly, many of the most famous authors in early pulp fiction in the early twentieth century did not even exist, rather, they were just a pseudonym for a collection of anonymous ghost writers, writing stories for the same characters, copying each other’s styles, and trying to pass it off as the work of a single author.

On the other hand, many talented artists and writers are kind of pushed into a corner. When selling the copyright is the only way you have of making any money, and, well, you have to eat, there may not be much to say for the virtue of holding out for royalty fees.

Comic books, until fairly recently, had long held the worst reputation for delivering royalty fees. Comic artists coming into the field during the sixties would be made “promises of work”, meaning that, as long as they remained exclusive to this comic publisher, they could be guaranteed work, on a flat fee per page basis. These comic artists were making anywhere from five to fifty bucks a page, and the average comic artist can only really draw about a page a day. Without a royalty system in place, nobody working in comics at the time was really happy with their lot in life.

Many artists and writers tried to organize their colleagues to strike, to form a union, to do something to improve the way the publishers treated them, but more often than not, they were met with laughter.

Today, artists do have a few more options than they used to. There are still publishers who would rather just buy property flat out, but if at all possible, royalty fees are really, really beneficial to the artist.

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