Guide Through the Legal Jungle

Journey Into the Public Domain

A Guide Through the Legal Jungle Trivia Question

Generally, a songwriter may use a sample of a song without infringing the sampled song when the song is no longer protected by copyright law and is in the public domain. Which of the following is a way in which a song might enter the public domain?

1. Expiration of the copyright protecting the song
2. Excessive radio play of the song
3. Imprisonment of the songwriter
4. Death of the songwriter

The Future of XM Satellite Radio’s Pioneer Inno

In one of my past trivia questions, A Bumpy Ride for XM Satellite,  I highlighted the legal troubles of XM Satellite.

One legal problem facing  XM Satellite is a lawsuit concerning its Pioneer Inno, a portable satellite radio with advanced recording features that allow listeners to download songs as they hear them on XM and keep them on the recorder for the duration of the XM subscription.  The music industry called the Inno’s recording capability equivalent to an illegal download and sued XM for copyright infringement. Since filing of the lawsuit in May 2006, XM has settled with three of the four major record companies: Sony BMG, Warner Music Group, and Universal Music Group. EMI is the last holdout of the four majors.

Sirius Satellite Radio offers a similar device, the S50. However, there was no music industry lawsuit against Sirius because the parties entered a licensing agreement pursuant to which Sirius pays for songs recorded by their listeners and limits the number of receivers with recording capabilities produced.

Sirius and XM are on the verge of a merger. It will be interesting to see what will happen to EMI’s claim, the music industry lawsuit, and continued support of XM’s Pioneer Inno once the merger takes place.

Intellectual Property Owners Pay for United States’ Snub of World Trade Organization's Ruling

In an attempt to stamp out offshore internet gambling, the United States outlawed access to offshore internet gambling.  Antigua, known for its beautiful Caribbean beaches, found the action had a negative impact on its nascent online gambling industry and complained to the World Trade Organization (“WTO”) that the action violated free trade treaties. The WTO agreed with Antigua and told the United  States to remedy the violation. Instead of complying, the United States opted to pass additional legislation – this time ordering United States banks and credit card companies to stop processing payments to online gambling businesses.

What’s All That Got to Do with the Price of Eggs?

What has online gambling and the Antigua/WTO situation have to do with intellectual property owners, you ask. I would say not much.  However . . .

YouTube Claims Innocence

A Guide Through the Legal Jungle Trivia Question

YouTube, owned by Google, is a popular video-sharing website where users can upload, view, and share video clips. YouTube users who often post clips from TV shows, movies and sporting events have few reservations about violating copyright. Companies such as Viacom are bringing copyright infringement actions against YouTube. Which law is YouTube using as its primary defense?

1. Digital Millennium Copyright Act
2. Audio Home Recording Act
3. Computer Fraud & Abuse Act
4. Electronic Communications Privacy Act

Imitating the Work of Admired Visual Artists – Flattery or Copyright Infringement?

According to the adage, imitation is the sincerest form of flattery. However, to what extent can one visual artist imitate the work of another visual artist? This topic came up recently on the Digital Painting Forum.   

Anyone may duplicate the ideas or concepts reflected in your artwork.  For example, if you paint a horse, copyright law does not prevent anyone else from painting a horse  – even if it is the exact same horse. What another may not do is duplicate the expressive elements used by you in your artwork. Expressive elements in visual artwork include the selection of lighting, shading, camera angle (for photographs), background and perspective.

Copyright law also often allows you to use a copyrighted work if you transform the work in some manner. Your use of a copyrighted work is transformative if your use is creatively different from the way in which the copyright owner used it. As a general rule, the transformed work can not serve as a substitute for the original work.   Transformation is a key element in determining whether or not a particular use of a copyrighted work qualifies as a fair use.

Learning from the Experiences of Jeffrey Koons

Visual artist Jeffrey Koons seems to be a lightening rod for copyright infringement lawsuits. Looking at two of his experiences might help illustrate how to draw the line between copyright infringement  and transformative use.

SXSW Illustrates Phenomenon in Licensing Music for Film, Television, and Multimedia Productions

The annual South by Southwest (SXSW) Festival in Austin,Texas is currently wrapping up. SXSW began twenty-two years ago as a small showcase for independent bands and has grown into a massive music, film and interactive technology extravaganza

One effect of the growth is the rise in film, television, and multimedia producers who attend SXSW in search of good music for their productions. In a recent Wall Street Journal article, reporter John Jurgensen profiles SXSW as a source for film and television background music.

The phenomenon is consistent with the advice I often give to my producer clients who want good music for their productions but have limited budgets for music acquisition. I recommend using original music by independent art­ists.

Clinton Campaign Learns the Perils of Stock Footage with the Red Phone Ad

Many of you probably saw news coverage of Hillary Clinton’s red phone ad over the past week.

Stock Footage Actress is Reluctant Participant in Clinton’s Red Phone Commercial

The ad focuses on Clinton’s claims that Barack Obama lacks the experience to serve as President. It shows a series of sleeping children and asks voters which candidate they would want to see answering a 3 a.m. emergency phone call to the White House. One of the sleeping children in the commercial is Casey Knowles.  The depiction of Knowles is from stock footage made eight years ago. Getty Images now owns the footage. 

It turns out Knowles is a staunch supporter of Barack Obama’s presidential candidacy.  Knowles has campaigned for the Obama campaign, has attended his rally, and served as a precinct captain for the Washington caucus. Knowles has laughingly suggested getting together with the Obama campaign to produce a counter ad.

The Downside of Stock Material Usage

There is nothing wrong with using properly licensed stock footage. Producers do it all the time. However, as I discuss in The Permission Seeker’s Guide Through the Legal Jungle and as the Clinton campaign has learned, using stock footage can carry some downsides:

Are Made-Up Languages Copyrightable?

nuqneH?

That’s a typical Klingon greeting. Roughly equivalent to “Hello”, nuqneH? is pronounced nook-neck and literally means “What do you want?” Klingon is a made-up language developed for the Star Trek television and motion picture franchise. And that brings me to the topic of today’s post.

Are made-up languages copyrightable?

Duplicating and Selling Celebrity Images

A Guide Through the Legal Jungle Trivia Question

Leslie is an amazing sketch artist and avid Tom Cruise fan. She specializes in charcoal drawings, and recently drew an impressively realistic image of Tom Cruise’s face. The sketch is so precise that some even mistook it for a black and white photograph! To show what a fan she is, she copied the image of Tom Cruise onto a t-shirt for herself. She got many compliments on her t-shirt—so many that she decided to make t-shirts in bulk with the sketch printed on it. She sold over 1,000 t-shirts! Does Tom Cruise have a claim against Leslie?

1. No, Leslie is an artist and has a right to profit from her art.


2. No, Tom Cruise is a celebrity, and people have a First Amendment right to comment on celebrities through art and profit from their labor.


3. Yes, Leslie used Tom Cruise’s likeness for her personal profit without his permission.