cathyweeksJan-27-2012 11:17am
Copyright Status restored to foreign works – removing works from public domain
Submitted by: Vanessa Kaster, Esq., LL.M. vk@kasterlegal.com
Last week, The US Supreme Court mandated copyright restoration for foreign works that are covered by copyright protection in their country of origin or the country where copyright protection is claimed. This renewed respect for foreign works, removes a bulk of works out of the public domain and vests them with copyright protection. This means that many foreign works will no longer be free to perform, record, copy or make derivative works of here in the US. For example, Prokofiev’s ‘Peter and the Wolf’ which has been free to use in the US since it has been in the public domain, has had its copyright restored and will require the same permissions and usage fees as Copland and Bernstein…. who are Prokofiev’s contemporaries and who still enjoy copyright protection of their music. (Now an orchestra could be expected to pay approximately $800 per performance of Peter and the Wolf). Evidently, J.R.R. Tolkien’s writings, Alfred Hitchcock’s films and Pablo Picasso’s paintings are also among the foreign works with newly restored copyright protection.
The reasoning behind this copyright restoration is largely based on international foreign policy. As the court points out in its holding… the US has taken a ‘minimalistic approach’ to complying with the Berne Convention for the past two decades… and this copyright restoration of foreign works is a significant step toward US compliance with the treaty. There are 164 counties signed onto the treaty and the one of the many terms of the Berne Convention is that member states offer reciprocal copyright protection. Interestingly, this could be a significant step towards an international copyright system.
If you are already using ‘Peter and the Wolf’ or other restored works, the court’s holding speaks to a grace period for parties who are currently using or exploiting the restored works and encourages negotiations to determine reasonable compensation.
(Tolkien’s heirs come to mind as the ‘Lord of the Rings’ movie extravaganza could lead to interesting negotiations if an agreement hasn’t already been made.)
BY: Vanessa Kaster, Esq., LL.M.
For more personalized legal services contact me at vk@kasterlegal.com
More information: The US Supreme Court case is Golan v. Holder. The holding is also available at www.supremecourt.gov; The Berne Convention, Article 18 at http://www.wipo.int/treaties/en/ip/berne/; Other articles on the subject: http://www.nytimes.com; http://online.wsj.com; http://www.legalnewsline.com/news/234980-peter-and-the-wolf-must-be-paid; http://orchestralworks.blogspot.com/2008/09/prokofiev-peter-and-wolf.html
Fiat pays for use of Graffiti Mural “I ❤ the Bronx” …in their commercial
Article submitted BY: Vanessa Kaster, Esq., LL.M.
The exact amount that Chrysler has paid to TATS Cru, the Bronx based graffiti artist, for use of their mural in a Fiat commercial hasn’t been disclosed… although I applaud the two sides for coming to an agreement.
Is a Graffiti Mural protected by copyright? YES, YES, YES!! All it takes is ORIGINALITY to qualify for copyright protection… and in this instance there wasn’t any question about the mural being original.
Should Chrysler have known that the mural was protected by copyright? YES, YES, YES!! Because, there is a copyright notice painted into the lower right hand corner of the mural: “©2010 TATS Cru” (I applaud TATS Cru for being diligent and including the copyright notice). Even if there hadn’t been a copyright notice on the mural it still has copyright protection and Chrysler should have done some research. The exact reason that Chrysler included the mural in their commercial (to give authenticity as to the commercial which features JLo in the Bronx singing about strength while driving through the neighborhood where she grew up) should have been a HUGE indicator that the mural is original and covered by copyright protection. IT’S NO EXCUSE “not to know” a work is covered by copyright protection. Using a copyright protected work without permission is copyright infringement – and ignoring a copyright notice on a work is even worse. Both are illegal… and ignoring a copyright notice can triple the damages owed.
What do you do if your copyright is infringed? In this case, TATS Cru reached out to Fiat/Chrysler via their lawyer and reached a settlement. The exact amount that TATS Cru was paid hasn’t been disclosed, although both parties have announced that they are excited to be collaborating. As part of the deal that was struck… a Fiat has been given to TATS Cru to paint and auction off to a charity of their choice.
I ❤ the Bronx, too! A lot can be learned about the art of making a deal in the Bronx!
BY: Vanessa Kaster, Esq., LL.M.
For more personalized legal services contact me at vk@kasterlegal.com
For more information: http://tatscru.net/commercial. The mural is located at 1156 E. 165th St. in the Bronx. Watch the commercial – http://www.youtube.com/watch?v=deNRiBQiQ3Q. http://wheels.blogs.nytimes.com/2011/11/28/in-the-bronx-a-collision-of-cars-celebrity-and-copyright/ ; http://latino.foxnews.com ; http://www.nypost.com
check out my blog —-> http://iplegalfreebies.wordpress.com/
Works in the Public Domain are FREE to use
BY: Vanessa Kaster, Esq., LL.M.
www.iplegalfreebies.wordpress.com
Music and other published works that are in the Public Domain are free to use; since, they are not under copyright protection and therefore do not require any permissions from the author (or former copyright owner) to be used. Works that are in the public domain are free for the taking, sampling, using, copying, reproducing, recording and distributing.
Typically, works in the Public Domain are very old works. For example, ancient published texts like the “Bhagavad Gita” (a pre-Christian, Sanskrit text) are in the public domain…. as well as “newer-old-works” like the Shaker song “Simple Gifts” (music and lyrics written in the United States in the mid 1800’s). The original text, music and lyrics of the works are in the public domain. However, newer translations or compositions based on the original works… as well as sound recordings and arrangement elements of these newer versions are likely covered by copyright protection…. and NOT in the public domain.
What works are in the public domain? Any work or musical score that was published in the United States before 1923 is in the public domain, due to expiration of copyright. Newer works can also be dedicated to the public domain and if a work failed to meet the requirements for copyright protection it will also be in the public domain. Generally, a case by case analysis should to be done on works published in 1923 or later to determine if they are in the public domain because, it’s not always obvious. [Would you have guessed that the Happy Birthday Song is still covered by copyright protection… and not in the public domain?]
Keep in mind that copyright duration and the timeline for works entering the public domain vary country by country.
See also: http://www.copyright.gov , http://copyright.cornell.edu/resources/publicdomain.cfm , http://creativecommons.org/publicdomain/
Copyright Law: Using quotes from someone else (including Cajun keychain sayings) in your song, blog, book or website
Blog post submitted by Vanessa Kaster
http://iplegalfreebies.wordpress.com/
Did you know that it’s possible to buy a “Cajun in your pocket” keychain? …that plays spoken Cajun phrases? GOOD NEWS – you can buy the keychain and use the sayings without violating copyright! Even though the toy manufacturers have copyrights that include the sayings on the keychain… there is no copyright violation for using the sayings in your own song, book, blog or website because, the phrases are not original.
A federal court in Louisiana held that the phrases at issue (see below) were common Cajun phrases and therefore, when the rap artist Mystikal included the exact word arrangements in his hit “Shake Ya As*” he did not infringe the toy maker’s copyright. (One of the necessary elements of a copyright infringement claim is that the parts of a copyrighted work that are copied without authorization must be original.)
- “We gon pass a good time, yeah, cher”
- “You gotta suck da head on dem der crawfish”
Another aspect of evaluating whether copyright protected works were copied without authorization is proof of access to the copyrighted work and similarity of the works. Interestingly in this case, it was proven that Mystikal’s nephew had a “Cajun in your pocket” toy… which was how the artist had access to the copyrighted work prior to the creation of his song. (By the way, it was estimated that the rap song had sold over six million units worldwide by the fall of 2000 and had also appeared in several movies and numerous CD compilations.)
When quotes from copyright protected works can be used in songs, books, blogs or websites without permission of the copyright owner… is a grey area and the facts and circumstances are fundamental to a case by case evaluation of copyright infringement.
Let the good times roll and stay clear of copyright infringement. “Laissez les bons temps rouler”!! (the “Cajun in your pocket” toy says this too.)
BY: Vanessa Kaster, Esq., LL.M.
See also: http://www.emanation.com/products/cajun-in-your-pocket and Emanation Inc. v. Zomba Recording, Inc., 72 Fed. Appx. 187 (5th Cir. La. 2003). Emanation Inc. v. Zomba Recording, Inc., 72 Fed. Appx. 187 (5th Cir. La. 2003).
Little Bo Peep and Her Flammable Sheep
Blog post Submitted by Vanessa Kaster
http://iplegalfreebies.wordpress.com/
Creativity abounds as household items are incorporated into Halloween costumes; however, use common sense and pay attention to intended uses and warnings on everyday items that you use in your costumes. Courts are not always very sympathetic to costume-related injuries because, products are often used in ways that were not expressly intended when incorporated into costumes.
For example, did you know that some cotton balls are highly flammable? Little Bo Peep and her husband (who unfortunately for him was dressed as a sheep at a Halloween party) discovered this in a matter of seconds when he lit a cigarette and was quickly engulfed in flames. The sheep costume was made by gluing cotton balls all over a pair of long underwear (from his head to ankles)… and neither Little Bo Peep nor her husband-sheep had any idea how quickly cotton balls would burn if caught on fire.
Ultimately the court held that making a sheep costume with cotton balls was outside of the intended, medicinal uses of the product and therefore a failure to warn was not the proximate cause of the man’s injury.
[an intellectually property law post script relating to costumes… is that original costumes, like the elaborate feather costumes and headdresses worn by Mardi Gras Indians are eligible for copyright… as sculpture and works of art. This applies to elaborate galactic, warrior costumes… like Stormtroopers too.]
This case is: Ferlito v. Johnson & Johnson, 1992 U.S. App. LEXIS 34781; see also, Case Law From the Crypt: The Law of Halloween by D. Moar in the October, 2011 issue of the NYSB Journal.
Seeking Copyright Termination for Y.M.C.A. and other hit songs of 1978
Blog submitted by Vanessa Kaster
http://iplegalfreebies.wordpress.com/
September 8, 2011
It’s no secret that young musicians often have zero bargaining power when it comes to negotiating recording contracts. (Congress even knows this which is why they inserted the Copyright Termination provisions into the US Copyright Law). Usually, recording contracts signed by musicians favor the recording companies heavily. (ie record company fork over $$ and make an investment in an unknown and not-yet-famous musician… and this is done on the recording company’s terms.)
If and when the musician becomes famous (for example: Bob Dylan, Bryan Adams, Tom Petty, Loretta Lynn, Tom Waits, Charlie Daniels and Victor Willis) … then the record company makes money… and the musician is already bound to the terms of an unfavorable agreement that exploits them. FOR THIS REASON, the US Copyright Law contains termination provisions.
News of the copyright termination provision abounds recently since; the first batch of songs from 1978 will be eligible for copyright termination in 2013… AND notice of the intended termination must be given this year. With some exceptions, The Copyright Law states that a grant or transfer or license of a copyright that was made by an author in or after 1978 may be terminated by that author (or his widow and/or children) 35 years after the grant. Authors must give notice of their intent to terminate not less than two or more than ten years from the intended termination date.
The time is NOW and evidently many famous musicians including Bob Dylan, Bryan Adams, Tom Petty, Loretta Lynn, Tom Waits, Charlie Daniels and Victor Willis (of the Village People/YMCA) have given notice of copyright termination. Not surprisingly the recording companies are putting up resistance to the possible disappearance of large revenue streams. News reports indicate that the recording companies are challenging Victor Willis’s claim on the basis of ‘work for hire’. This means that the companies claim that Willis was an employee… and legally… status as an employee trumps a copyright termination claim. It will be interesting to see what evidence is presented to the court to prove this claim. (fyi… living in a van or at a YMCA without health insurance or employee benefits is not a strong indicator of work for hire/employee status.)
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