Copyright Rulemaking on Moral Rights

“The U.S. Copyright Office has published a Federal Register notice extending the deadlines for public comment in connection with the Office’s study on the moral rights of attribution and integrity. Public comments are now due no later than 11:59 p.m. Eastern time on March 30, 2017, and reply comments are now due no later than 11:59 p.m. Eastern time on May 15, 2017.

For more information, click here to visit copyright.gov

So … what are “moral rights”?

Moral rights provide an author with the ability to control the eventual fate of their works. In the US, these rights are limited to visual arts (other countries allow other, more general, moral rights). You can find the statute at 17 USC 106A, commonly called the Visual Artists Rights Act of 1990 (VARA). Under VARA, an artist has the right to control the use of his/her name in connection with a work (including NOT using his/her name in connection with works s/he did not create), prevent the use of his/her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation, prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

For an example of how moral rights work, say you bought a painting by a famous artist working today. This artist is known for his/her French landscapes in the style of Monet; very peaceful, very verdant, very proper. Your idiot stepson, whom you never liked, then decides to spray paint graphic obscenities on the work. The artist, although you actually own the work, can now dissociate him/herself from that work; thus, the work can no longer be sold under Artist’s name with the obscene spray painting. You thus no longer own a work by Artist; if Artist’s name adds value to the work, your painting has just plummeted in value even more than it did with the addition of spray paint.

“The [US Copyright] Office is commencing its study to review how existing U.S. law, including provisions found in Title 17 of the U.S. Code and other federal and state laws, protects the moral rights of attribution and integrity and whether any additional protection is advisable in this area. To support this effort and provide thorough assistance to Congress, the Office is seeking public input on a number of questions. “

Winter Weather

The snow is falling thick and fast as I write this. The roads are terrible; accidents abound on the highways and the back roads around Clifton Park, NY.

The net result of this, of course, is that the office is CLOSED on Monday, 13 February 2017.

Stay safe!

A Christmas Copyright

Home Free, an a cappella singing group, put out this beautiful rendition of “Angels We Have Heard On High” a couple of years ago.

The basic song itself, melody and words, is in the public domain. Anyone can perform “Angels We Have Heard On High” anytime without paying any royalties to anybody. Home Free is thus … well, home free as they perform this lovely piece.

However, the melody and words are just one layer of the rights involved here.

  • Someone wrote the harmonies we hear in the video. That person has copyright in the music of the harmonies they composed.
  • The group performed the song. They have copyright in their performance.
  • There was a sound engineer who did some mixing here. That sound engineer has copyright in the sound mixing s/he did to produce this video.
  • There was a videographer who did the camera work for the video. That videographer has copyright in the video s/he did to produce this video.
  • Finally, someone holds copyright in the final production as a whole.

There are lots and lots of layers and stakeholders in a video performance copyright.

Have a joyous holiday season!

Hail and Farewell

The franchisee who developed and named the Big Mac died on Monday night. Jim Delligatti, an early franchisee of Ray Croc’s, ran several McDonald’s in the Pittsburgh area (he ended up with nearly 50 stores). The first Big Mac sold in Mr. Delligatti’s restaurant on McKnight Road in Ross Township for $0.45 … that’s right, the first Big Macs sold for 45 cents.

Ray Croc and his business advisors must have seen the genius of that sandwich and McDonald’s ran with it. All those “two all-beef patties, special sauce, lettuce, cheese, pickles, onions on a sesame seed bun” started in Pittsburgh and went franchise-wide in 1968.

Mr. Delligatti was 98.

Crowdfunding IP

This is a good article about the taxability of crowdfunding.

But who owns the intellectual property in a crowdfunding situation? Does the inventor or author always get to keep the rights to the Big Idea they fund?

Well, as with whether a crowdfunding campaign is taxable or not, that depends.

Intellectual property is transferred by agreement between the owner of the rights (the originator of the work or an assignee) and the assignee of the rights. If the originator of the work assigns the work to another, then that other owns those rights. If s/he does not, then that other does not own those rights.

So what makes a valid transfer of rights?

A signed writing that transfers the rights. This need not be a contract; there need be no consideration.

That writing can be a “work made for hire” agreement, in which the originator of the work agrees that s/he has been hired by another to create, and the results of the creation belong to that other.

That writing can be an assignment of rights, in which the originator of the work assigns the rights to another. This assignment can take the form of a contract (offer, acceptance, consideration), or it can be a simple assignment without the trappings of contract.

Without that signed writing, though, the IP rights remain with the current owner, who may be the originator or an assignee.

If the crowd were to get rights to the intellectual property it funds, the owner of those rights must assign those rights to the crowd. That doesn’t happen very often; in fact, I know of no instance in which the crowdfunders have shared in the IP rights their funds help to develop. The crowd must generally settle for something else. Stock, for instance. Or a sample of the product. Or even just a T-shirt. But IP rights? Possible, but not likely.

Crowdfunding and venture capital are entirely different in this regard. Venture capitalists regularly take ownership interest in the company, including the IP rights, in exchange for funding.

New Patent Fees Coming

The US Patent and Trademark Office issued a proposed fee adjustment today. The large-entity fees are going up.

That, of course, impacts the small- and micro-entity fees, since those fees are expressed as a percentage of the large-entity fees (50% reduction for small entities, 75% reduction for micro entities). The Notice of Proposed Rulemaking won’t be officially published until Monday, 3 October, but the unofficial version is available now. The increases (and, of course, the fee adjustments are mostly increases) aren’t big, but they are there. It’s important for the patent applicant to be aware of them.

USPTO Patent Examination and Procedure Training Coming Up

From the US Patent and Trademark Office:

The USPTO will host a three day training course on examination practice and procedure for members of the public as part of the Stakeholder Training on Examination Practice and Procedure (STEPP) program. The training will be held November 15 – 17 on the USPTO’s Alexandria, Virginia campus.  

This training is intended for those who have recently passed the Patent Bar for the purpose of practicing before the USPTO. The training will make use of statutes, rules, and guidelines relevant to practicing before the USPTO. The course is led by USPTO trainers and is based on material developed for training patent examiners and other employees. More information and a proposed upcoming course schedule is available on the USPTO STEPP program web page

 STEPP falls under the Excellence in Customer Service pillar of the USPTO Enhanced Patent Quality Initiative (EPQI), which ensures that the agency continues to issue high-quality patents well into the future. EPQI is a set of initiatives with goals toward strengthening work products, processes, services, and how the USPTO measures patent quality at all stages of the patent process.

New Visitors at My Office

Pokémon Go came out a couple of weeks ago. The Pokémon are showing up at my office in droves. Apparently they want my help with the legal issues they encounter with battling other Pokémon. They need to set up franchises and businesses, they need to protect their battle rankings, and they certainly need to protect their good names in business.

JynxOnMyComputerOne of my earliest visitors was a Jynx; she arrived and sat on my computer a couple of days ago. She wanted an LLC set up. I of course told her I’d be happy to do that for her.

ParasIsHappyParas came by later and wanted a patent application filed. We got that done for it post haste. Paras is delighted.

 

What Is the DOJ Thinking?????!

The Department of Justice has basically denied songwriters a living wage from their hard work. 

Yuck. There is some light at the end of this tunnel, I don’t see a lot of it.

This is administrative law. Admin rulings like this can be appealed at the District Court level, but not for content per se; only for abuse of power. Since there is 60-year-old precedent in place, and since federal courts are all about precedent, it will (not “would”; “will”) take a really good litigator to convince the judge to rule against the DOJ (that’s not me; I’m a transactionalist). Once it’s in the court system, it can proceed through the appeals process like any other case.

Even though I am not a litigator, it’s always fun to do some backseat driving in cases like this. I’d do a bit of forum shopping before I would take this to the District Court. Whoever brings the admin appeal to the District Court should be sure to bring it in either the US District Court for the Southern District of New York (that court is king of copyright and performing arts) or in the US District Court that covers L.A. and Hollywood (that court is the other king of performing arts). That shouldn’t be a tough one; songwriters live in droves in those places. The lawyer would just need a local client to bring this to the attention of one (or both) of those two courts. If it gets brought in both places (two different plaintiffs), hope to God the rulings disagree with each other. That makes the appeal easier to get through the chinks, especially if they appeal to the 2nd and 9th Circuits and those rulings disagree. That could turn it into a SCOTUS case … if SCOTUS grants certiorari. That’s a big “if.”