Guide Through the Legal Jungle

Finding a Spot on Paintings and Sculptures for Copyright Notice

I recently spoke about copyright law with members of the Washington Sculptors Group.  Pondering copyright law as it applies to visual artists made me think that a review of how to place copyright notice on fine art might be useful.

Here’s an example of a proper copyright notice:

Copyright 2008 by Joy R. Butler

Tips for Naming Your Film, TV Programs and Books from Hari Puttar vs. Harry Potter

Warner Brothers, which owns the rights in the Harry Potter motion pictures, unsuccessfully tried to block release of the Bollywood film, Hari Puttar: A Comedy of Terrors.  While Warner Brothers succeeded in delaying the originally planned September 12, 2008 release in India, a New Delhi court ultimately dismissed the lawsuit.

Even though the Hari Puttar lawsuit was decided under Indian law, the case provides a good excuse for me to discuss selecting titles for your films and television programs.  Your title can raise objections from a producer with a similarly titled media production or from a trademark owner whose trademark finds itself in your title. 

Joe the Plumber: Unhappy With Some Media Coverage But Has Slim Chance of Success on Defamation and Privacy Claims

Poor Joe the Plumber, aka Joe Wurzelbacher.  He’s the Ohio citizen who was repeatedly mentioned during Senators Obama’s and McCain’s third presidential debate on October 15.

 

Mr. Wurzelbacher’s questioned Obama about income tax policies during a political rally and the exchange was caught on tape.  During the presidential debate, McCain referred to Mr. Wurzelbacher to illustrate the distinctions between the McCain and Obama tax plans.  Not only did both presidential candidates invoke Mr. Wurzelbacher’s name several times during the debate, each candidate also looked into the camera and spoke to Mr. Wurzelbacher directly throughout the evening.

 

The result.  Instant fame for Mr. Wurzelbacher.  At least fifteen minutes of it.  While his new-found fame may have an upside, the downside includes some unflattering comments made about Mr. Wurzelbacher in the media as well as media discussion of personal information Mr. Wurzelbacher would probably prefer not sharing with the nation.

 

Even if some of the unflattering comments were false and potentially defamatory, Mr. Wurzelbacher probably wouldn’t have much luck pursuing a defamation, privacy rights violation, or similar claim. That’s because Mr. Wurzelbacher’s surprise guest appearance at the presidential debate has made him an involuntary limited purpose public figure.  A limited purpose public figure is someone who is thrust to the forefront of a particular controversy or public matter.  That thrust sometimes happens by accident or contrary to the wishes of the individual.

 

As an involuntary limited purpose public figure, Mr. Wurzelbacher is held to the same standard as a public figure with respect to any statements on subjects relevant to the controversy or public matter.  For Mr. Wurzelbacher, those subject areas likely include politics, his tax and financial situation, and his job as a plumber.  The public figure standard means Mr. Wurzelbacher would need to show any defamatory statements made about him were made with actual malice.  In contrast, if he were considered to be a private citizen for defamation purposes, he would need to meet the much lower standard of showing that the media was negligent in making any defamatory statements.

 

There's a good chance any private or embarrassing facts released about him or violaitons of his privacy are "okay" per the First Amendment. 

Upcoming Compulsory Mechanical License Rates

The Copyright Royalty Board recently released recommendations for compulsory mechanical license rates for the period 2008 through 2012.  The recommendations were the result of a proceeding that has been ongoing all year.

 

What Is the Compulsory Mechanical License?

 

Once a recording of a non-dramatic song has been commercially released with the authorization of the copyright owner, anyone may make another recording of the song and sell copies of their recorded version.  You do not need the permission of the copyright owner in order to obtain a compulsory mechanical license.  Your only obligations to the copyright holder of the song are providing notice and periodic accountings and paying the mechanical license fee set forth in the statute.  The compulsory mechanical license rate is periodically adjusted.

Figuring Out Your Publication Date

Publication within copyright law can be a complicated concept. As a general rule, in order for a work to be considered published, the copyright owner must authorize the publication and make multiple copies of the work available to the public.

A small publisher inquired whether the publication date would be “the date your books emerge from the bindery, the date the shipment arrives at your warehouse, the date you send out review copies, or the date you sell your first copies. I would argue that for copyright law purposes, the date you offer the first copies for sale is the date of publication.

Hiding Offshore Doesn’t Always Block US-Based Lawsuits

One frustration for United States owners of copyrights and other intellectual property assets is combating infringers based in foreign locations. The United States Constitution limits the ability to sue a foreign person or company in a United States court. Suing in a United States court requires that the foreign person or company has some relationship or engage in some type of activity within the state in which the lawsuit is filed.

For that reason, some businesses organize offshore to make it difficult for copyright owners to pursue their infringing behavior.

The Case of Mygazines

The website, Mygazines, encourages visitors to digitize and upload articles from popular magazines. Its opening page indicates that “Mygazines is your place to browse, share, archive and customize unlimited magazine articles uploaded by you, the Mygazines community.” While many view that business model as blatant copyright infringement, Mygazine refutes this characterization in an email sent to various media.

Borat Producers Know the Importance of Personal Releases

Say what you want about the 2006 film, Borat, and its low-brow, often vulgar humor. You have to admit the Borat attorneys know their way around a personal release.

Numerous people who appeared in the film have sued for right of privacy and similar violations. To my knowledge, the Borat producers have triumphed in every lawsuit. That’s because each participant signed an apparently bullet-proof written release waiving the right to sue in connection with their appearance in the film. You can read one of the most recent Borat court decisions here.

Did the Borat Producers Play Fair?