Category: Register

Sherlock Holmes is (Free) for the Public Domain

Posted by Ari Good, JD LLM on January 6, 2014

Sherlock Holmes in the Public Domain? Elementary My Dear Watson.

A federal judge recently ruled that Sherlock Holmes (and most of his story) belongs to the public. The legendary sleuth first made his appearance in 1887. Author Conan Doyle would go on to publish four novels and 56 stories about Holmes’ exploits until his death in 1930. All but 10 of those stories, notably, were printed before 1923. The judge, in applying U.S. Copyright law, used the 1923 year as the cut-off line for what is, and what isn’t, in the public domain when it comes to Sherlock Holmes. Anything before that year can be used by anyone. Stories after January 1, 1923, are still protected by copyright law, however.

What is the “Public Domain”?

Public domain is the simple concept that, after a certain amount of years, copyrighted work no longer enjoys protection. The public is free to use formerly copyrighted works in any way they choose and don’t have to pay an author, the author’s estate, or a copyright holder. It’s free! Federal law, however, has consistently shifted the goalposts for how long it takes a copyrighted work to enter the public domain.

The first U.S. Copyright Act in 1790 allowed a term of copyright for 14 years, and the author could renew that copyright for 14 more years. By 1909, the copyright term had doubled to 28 years with an option for a 28 year renewal of the original term. Thanks to the Sonny Bono Copyright Term Extension Act of 1998, federal law now authorizes a copyright term that covers the author’s entire life, and then 70 more years after that. A young musician or writer, for example, who publishes work in 2013 when they’re 25, lives until they’re 85, would have that work copyrighted for 130 years (or until 2143).

Why is 1923 Important to U.S. Copyright Law and Public Domain?

January 1, 1923, is a date to know when it comes to copyright law. Works that authors published before this date are in the public domain and not protected by copyright. No exceptions. A complex web of laws and calculations, however, apply to works published after this date to determine whether there is still copyright protection. You can find specific details about those calculations here.

Copyright Law, Sherlock Holmes, and Public Domain.

In a nuanced decision, the federal judge held fast to this sticking point of January 1, 1923. He ruled that the parts of of Sherlock Holmes’ and Dr. Watson’s story published before 1923 are in the public domain. Parts of that story published after that date, including Dr. Watson’s background as an athlete, Dr. Watson’s second wife, and Holmes’ retirement, are still protected by copyright law and owned by Doyle’s family.

The judge rejected arguments that the Sherlock Holmes’ literature was a single story-line that couldn’t be separated before and after 1923. In other words:

1. Doyle’s publication of Sherlock Holmes literature before 1923 does not make the entire story-line public domain (Sherlock Holmes publications after Jan. 1, 1923).

2. Likewise, Doyle’s publication of Sherlock Holmes literature after Jan. 1, 1923, does not make the entire story-line protected by copyright (Sherlock Holmes publications before 1923).

This case proves that public domain domain and the term of copyright are still important issues for authors, artists, musicians and other creative types. If you have any questions on this topic, feel free to ask.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the shareholder of Good Attorneys at Law, P.A. He graduated from the DePaul University College of Law in 1997 and obtained his L.L.M. in Taxation from the University of Florida.

Image by timofeia

She & Them: Photographer Loses Copyright Battle Over Profits with Apple

Posted by Ari Good, JD LLM on July 18, 2013

She & Them: Photographer Loses Copyright Battle Over Profits with Apple

Apple’s Commercial Uses Copyrighted Image Without Permission

A federal judge has ruled that Apple doesn’t have to share profits with a photographer over their infringing use of an image in an iPhone commercial. This lawsuit started when prominent fashion photographer Taea Thale snapped a promotional photo of the band She & Him. Hipster actress Zooey Deschenel (of TV and movie fame) is one half of the band duo and a former Apple endorser. Ms. Thale registered her copyright to the photo and then licensed it with Merge Media for band promotion. That license prohibited specifically the use of the photo to hawk other products.

Apple would later air a commercial for 2 weeks in 2010 that advertised its iPhone 3GS. The 30 second commercial was a montage of images showing the iPhone’s latest innovations, including including album cover art. 5 seconds of that commercial used Ms. Thale’s image of She & Him as part of the montage, despite Apple never getting permission to use it. When a royalty check never arrived from Apple, Ms. Thale sued the company for copyright infringement.

So What’s the Harm from Apple’s Infringement?

Ms. Thale’s lawsuit asked specifically for profits from Apple’s sale of iPhones that the infringing commercial promoted. The Court, however, shut this claim down. A copyright lawsuit typically complains of infringement that creates direct profits for the offender. A musician who rips off lyrics profits directly from album sales. An author who steals a plot from another writer profits directly from book sales. And a magazine that uses photos without permission profits directly from subscription sales. The facts of Ms. Thale’s case, on the other hand, could only support that Apple profited indirectly from its infringement. Apple didn’t profit by people viewing its infringing commercial (rather, it likely paid large sums to air the commercial), but could only have profited indirectly through the sale of the iPhone on the back end.

Ms. Thale’s copyright claim ultimately failed because she couldn’t prove Apple profited from its infringement. Apple’s copyright infringement was not an issue. In a claim for indirect profits, however, the plaintiff must offer concrete evidence of that profit. The Court decided in this case that the facts showed that Apple only hoped to generate iPhone sales from the commercial. Ms. Thale didn’t offer any actual proof of boosted profits and could only speculate that the commercial generated increased iPhone sales. The Court also noted a logical and reasonable argument (such as Ms. Thale’s) is still just speculation and does not add up to proof of profits. It’s not enough to show there is some relationship between the infringement and profits, there must be a cause and effect relationship between the two.

Does Apple Just Get Away with its Copyright Infringement?

Apple is not off the hook just yet. The Court only decided Apple doesn’t have to share profits. Ms. Thale can continue to seek damages for any actual harm that Apple’s infringement caused her (e.g. her lost profits!). This case teaches what’s necessary to make a claim when infringement creates indirect profits.

Join the discussion and leave a comment.

Ari Good, JD LLM, is an experienced Miami entertainment lawyer and aspiring musician himself who represents DJs, live musicians, fashion models, and other entertainers in copyright, licensing, and contract matters. For a free and confidential consultation to discuss your legal rights, contact Ari of Good Attorneys at Law, P.A., in Miami-Dade County at (239) 216-4106 or toll free at (877) 771-1131 or by email to info@goodattorneysatlaw.com. Visit goodattorneysatlaw.com for more information.

Image by Mindy Bond

Filmmaker Ungrateful About Claimed Copyright Infringement

Posted by Ari Good, JD LLM on July 9, 2013

Filmmaker Ungrateful About Claimed Copyrighted Infringement

The Back Story for the Copyright Infringement Lawsuit

Grateful Dead copyright infringement — Grateful for copyright law

A California filmmaker, Len Dell’Amico, is suing the Grateful Dead for copyright infringement over his allegation that the band leased documentaries and concert films that he created and owned. This long, strange trip begins in 1980 when Dell’Amico, a NYU film and television grad, first worked with the band on it’s live TV broadcast and home video ‘Dead Ahead.’ Dell’Amico would go on to be the Dead’s ‘film and video guy’ for the next 11 years, producing and directing their film projects from 1984 to 1991. Dell’Amico also claims in his lawsuit that they negotiated a deal for back-end compensation from the video release of these works. The years rolled along and, in late 2006, Grateful Dead Productions leased the films to Rhino Entertainment for 10 years. Rhino never credited Dell’Amico for producing and directing the films, nor paid him the promised back-end compensation (“royalties”). The lawsuit was on.

Failure to Register Copyrights Creates a Problem

But here’s the rub: Dell’Amico never applied to register any copyrights to the films until recently. The registrations are currently pending at the U.S. Copyright Office. Dell’Amico lacks definitive proof that he actually owns the right to the films. And this is exactly what the band is arguing. The Grateful Dead recall things differently from Dell’Amico and claim he was only a hired gun to produce and direct their films. The band owns all rights to the films because Dell’Amico was compensated for his work and their arrangement kept copyright ownership with the band. As it stands, without the clear proof of copyright registration, it’s a he said, they said matter.

Copyright Ownership Can Still be Proven in Other Ways

This doesn’t mean that Dell’Amico’s lawsuit is busted down on Bourbon Street. A 2002 agreement for a Grateful Dead documentary “So Far” gives Dell’Amico a 50 percent cut of the film’s revenue up to $25,000 and 15 percent of gross income over $750,000. This agreement does provide some proof that Dell’Amico created and owns the rights to the films that are the subject of his lawsuit. That agreement clearly came about because there was a belief Dell’Amico owned the copyright to the film. It may also show that he owns the copyright to the films that are the subject of his lawsuit.

Two Important Lessons from this Copyright Infringement Lawsuit

However the lawsuit plays out, the dispute highlights two important principles. The first is an overwhelming reason to register your copyrights. Dell’Amico likely would have a much easier time proving his allegations if he had taken the time to register any copyrights two decades ago. This lack of foresight could cost him big time. The second is over the issue of copyright ownership. If you are hired to create works that are covered by copyright law (music, film, television, dance, etc.), an important part of that arrangement is who keeps ownership of the copyright to the works.

Add a comment to share your own story or your thoughts on these issues.

For a free and confidential consultation to discuss your legal rights, contact Ari of Good Attorneys at Law, P.A., in Miami-Dade County at (239) 216-4106 or toll free at (877) 771-1131 or by email to info@goodattorneysatlaw.com.

Image by Gazerocker

Top 10 Reasons To Register Your Copyright

Posted by Ari Good, JD LLM on April 4, 2013

The sheer act of creating an original piece of art makes it yours and yours alone. That unique beat, the words to a song, steps to a dance, or outline to a TV pilot: It’s your intellectual property. This property, like real estate or a bank account, holds value and you should protect it. Certainly, if someone is to become famous from your musical ideas or reap vast profits from their sale, it should be you and not the person who ripped your ideas off.

In an ideal world, no one would steal intellectual property and claim it as theirs. Even in a perfect world people can still innocently and independently create works of art that are functionally identical. Proving that you created the work of art first would be a difficult task at best. Nevertheless, just like there are vaults to protect your money and deeds to prove you own land, the law provides a simple way to protect your intellectual property: registering a copyright. With due apologies to David Letterman, and in no specific order, here are the 10 Ten Reasons to Register a Copyright:

A registered copyright puts the rest of the world on notice. It’s your legal proclamation to the world that you own certain intellectual property and unauthorized copies are illegal. Registration warns would be thieves that any larceny of your ideas is at their own risk.
A registered copyright protects your intellectual property from innocent, but unauthorized, reproduction. A famous example of this occurred when David Bowie sued Vanilla Ice for copyright violation over the hook to “Ice, Ice Baby.” Even though Vanilla Ice claimed he innocently copied the beat (later retracted), he still owed David Bowie compensation for its use without permission.
A registered copyright gives credit where credit is due. This is a legal, public record that you are the author of a work of art, not someone else. Registration vindicates a very important principle beyond issues of money.
A registered copyright let’s you sue for ‘statutory damages’ and attorney fees. In simple terms, suing for statutory damages means you don’t have to prove that you actually suffered harm from a copyright violation. A typical lawsuit requires proving harm. You can sue for up to $150,000 for an intentional violation and up to $30,000 for an unintentional violation. CAUTION: you must register your copyright within 3 months of making it public to be able to sue for statutory damages.
A registered copyright, in a copyright infringement lawsuit, provides clear evidence that you own certain intellectual property. This means that the defendant in the lawsuit has the burden of proving that no violation occurred or they lose.
A registered copyright allows you to record the copyright with U.S. Customs. U.S. Customs in turn will protect you against the importation of illegal copies from other countries.
A registered copyright let’s you stop someone from making illegal copies. You can obtain a court order that forces an infringing party to cease and desist from their infringement. This is what occurred when record labels sued Napster.
A registered copyright is necessary to sue for copyright infringement. In order to take advantage of the system, you need to be a player. You gain significant legal protection by registering your copyright under the laws of copyright.
A registered copyright provides legal protection beyond death. U.S. Copyright laws often create a situation where your copyright can still be enforced after you’re long gone. Although you can’t take riches to heaven, this would be important for someone who wants to provide for loved ones after they’re gone.
A registered copyright saves time and money. It’s certainly possibly to sue someone for stealing your intellectual property even without a registered copyright, it’s just not a good idea. For some reason, waving a certificate of copyright, rather than lyrics scribbled on a napkin, just seems to go over better in court. Registering a copyright makes this legal process much more simple and cost effective when an attorney is necessary.

This is my list of the top 10 reasons to register a copyright. It doesn’t mean that there are only 10 reasons, though, or that we can agree these are the 10 most important reasons. What other reasons are there to register a copyright or why do you think one reason is more important than another?

– Ari Good, Esq.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A. Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993. He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida. Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.