Guide Through the Legal Jungle

Free Artomatic Presentation, “Content Clearance for All Content Producers” on Thursday, June 7 at 7 p.m. in Arlington, VA.

Next Thursday, June 7, 2012 at 7:00 p.m., I will offer a presentation on content and rights clearance issues. The presentation is sponsored by the Washington Area Lawyers for the Arts (WALA) and is part of the month-long Artomatic arts festival currently taking place in Crystal City, Arlington, Virginia. The presentation is free and open to the public.

Presentation Description:

Have you ever wondered how and if you can incorporate other people’s materials into your own work? The material you want to use might be an image, quotation, song, real-life event, celebrity name, or other material protected by copyright or similar laws. These are rights clearance questions. In this interactive presentation, attorney and author Joy R. Butler will explain how to identify rights clearance problems and provide guidance on what you need to do before you incorporate other people's material into your artwork, websites, advertisements, books, films, and other creative work.

The Details:

• DATE: Thursday, June 7, 2012


• TIME: 7:00 p.m. – 9:00 p.m. ET


• COST: Free


• LOCATION: 1851 S. Bell St., Arlington, Virginia (1 block from the Crystal City metro stop). For directions (driving, parking, metro, and bike), see http://artomatic.org/plan-your-visit

 

Are Recipes Protected? Part Two.

In Part One of this two-part blog posting, I discussed the various methods one might use to protect a recipe. In this second part, I’ll apply those methods to issues raised by a commenter who has been discussing recipes in an online forum of bed & breakfast owners. The commenter’s questions are in italics. my responses are in regular type.

Commenter: I run a B&B and there’s a discussion in an Innkeeper forum about copyrights and recipes. Many of us use recipes that we’ve found online or through other means that were not developed by us originally. Many also publish their own internal cookbooks that their guests can buy. Here are a few points brought up:

If you list ingredients but change instructions, you’re okay

As noted in Part One, while recipes can be protected by copyright law, many are not because they are a basic list of ingredients and procedures. Nevertheless, it is risky to make and distribute verbatim copies of recipes from a cookbook or recipe-website. Even though the individual recipes themselves may not be copyright-protected, the collection of recipes itself may be copyright-protected as a compilation. I discuss copyrighted compilations in depth in The Cyber Citizen’s Guide Through the Legal Jungle.

Also as noted in Part One, even if a recipe is copyright-protected, you can still extract and share the facts within that recipe. Hence, you can take the list of ingredients from a copyright-protected recipe and explain the process of preparing those ingredients in your own words. However, note you might still encounter a compilation copyright infringement claim if your book includes all or a significant number of recipes from a single source – even if you do express those recipes in your own words.

(Note: This response does not necessarily apply to recipes that might be protected by trade secret, contract, or patent law.)

Commenter: If you attribute the original author you’re okay. Others believe you can still be sued in certain situations, i.e.., a recipe from a subscription-based website)

If there is a legal prohibition against your duplicating the recipe (e.g., copyright protection, contract), attributing the original author will not make duplication legal. Yes, there may be certain situations in which you can be sued for including in your book recipes that are verbatim copies of or substantially similar to recipes you find elsewhere. In the example you provide, a subscription-based website might include in its Terms of Service a provision that contractually obligates you not to publish the recipes elsewhere.

Commenter: If you change a few ingredients, quantities, you’re okay

The ingredients and quantities are some of the “facts” offered within the recipe. Copyright does not protect raw facts. There is no copyright prohibition on taking the same exact ingredients and quantities indicated in a single recipe and explaining how to prepare the dish in your own words.

Commenter: Do the rules for recipes vary by state?

It depends on what method you’re using to protect your recipe. Copyright law and patent law are federal laws so they are the same nationwide - though there may be local variations on how a specific court interprets those federal laws. Contract law and most of trade secret law are based on state law so they do vary from state to state.

Commenter: If the rules for recipes do vary by state, under what rules would you fall if you’re in Florida using a recipe originating in Montana?

The questions of which state’s law applies and in which state you can be sued are complicated. The short version of the answer is - It depends. If you gain access to the recipe via a contract (such as the Terms of Service of a subscription-based website), the contract will probably indicate which state’s law applies to any disputes. In the absence of a contract, if you reside and/or operate a business in Florida, you can definitely be sued in Florida. If you are a Florida resident or business owner who engages in sufficient activities in Montana, it may also be possible to sue you in a Montana court

Are Recipes Protected? Part One.

This two-part blog posting on recipes is inspired by a comment asking me to address some questions that arose during a forum discussion among bed & breakfast owners. In the first part of this blog posting, I discuss the various ways one might protect a recipe. In the second part, I’ll provide general information responding to the commenter’s questions.

It’s not easy to protect a recipe. Legal methods by which one might try to protect a recipe include copyright, trade secret, contract, and patent. Each method has its problems when applied to recipes.

Protecting Recipes via Copyright Law

Copyright is the method people typically turn to first for recipe protection. However, many recipes are not eligible for copyright protection. Copyright law does not protect basic facts and it does not protect procedures and processes. A recipe that simply lists ingredients and basic cooking directions qualifies as a procedure or process and is not protected by copyright law.

In contrast, a recipe that incorporates expressive elements might qualify for copyright protection. These expressive elements might be sug¬gestions for presentation, advice on wines, and information on the origin of the dish. In The Permission Seeker’s Guide Through the Legal Jungle, I provide examples of a basic recipe that does not qualify for copyright protection and a more expressive recipe that might qualify for copyright protection. Even if an individual recipe is not copyrightable, a cookbook or a group of recipes may receive copyright protection as a compilation.

What Does It Mean for a Recipe to be Copyrighted?

If a recipe is protected by copyright, you cannot offer a verbatim or substantially similar copy of the written recipe in your own cookbook or website. The copyright does not prevent you from making and offering a dish based on the same recipes – even if you offer the dish for sale. Likewise, the copyright does not prevent you from extracting the raw information offered by the recipe – such as the list of ingredients and the preparation instructions – and using that information in your own recipes.

Methods Other than Copyright to Protect Recipes

Other potential legal methods to protect a recipe include trade secret, contract, and patent law.

Trade Secret. A trade secret is confidential information that provides a competitive business advantage to the individual or company that owns the confidential information. For example, the recipes for Coca-Cola and for McDonald’s secret sauce might qualify as trade secrets. As the name implies, the information must be a secret in order to be a trade secret. A published recipe is never a trade secret.

Contract. Technology companies often rely on contract when they are uncertain whether other forms of intellectual property law protection apply to their technology. People have tried the same contract approach for recipes. The contract might be in the form of the Terms of Service of a website you visit or a Non-Disclosure and Confidentiality Agreement your employer asks you to sign. Reliance on contract law sometimes requires and almost always works better if the recipe is treated as confidential information or is at least distributed to a limited group of people.

Patent Law. Patents apply to inventions and discoveries. Unlike copyright protection, patent protection is available for procedures and processes. Hence, it is possible for a recipe to obtain patent protection. However, most recipes do not meet all the patententability requirements of novelty, usefulness, and nonobviousness. For an in-depth explanation of how unique a recipe must be in order to receive patent protection, see the article on the IPWatchDog website, “The Law of Recipes: Are Recipes Patentable”. The author’s examples of patentable recipes include fat and egg yolk substitute, nut butter and jelly food slice, and sealed crustless sandwich.

Should Doctors “Friend” Their Patients on Facebook and Other Social Media?

The Federation of State Medical Boards just released guidelines for how doctors should (and shouldn’t) use social media. You can read the Model Policy Guidelines for the Appropriate Use of Social Media and Social Networking in Medical Practice here.

Some Guidelines Reflect Common Sense

Many of the guidelines are reasonable. For example, of course doctors should not divulge patient confidences online, post insulting comments about identifiable patients, or provide specific medical advice (as opposed to general medical information) to people who are not their patients.

Other Guidelines Are More Difficult to Grasp

However, other guidelines seem far too conservative. The guidelines recommend that doctors avoid “friending” or interacting online on a personal level with current or past patients. While that prohibition might be appropriate for some doctor-patient situations (e.g., psychiatrist-patient), making social friending a universal no-no seems overly cautious as well as slightly arrogant.

Many of my doctors send me newsletters – either via email or regular snail mail. Those newsletters contain a combination of the doctors’ medical tips, professional achievements, and personal news such as photos of the doctor at an event or on vacation. As long as the social media interaction does not extend into harassment or other offensive contact, what is the problem with those doctors sharing the same information via social media networks?

Tell me what you think about this topic in the comments below.

Do I Need Permission to Use that Picture?

In addition to being worth a thousand words, a picture can spawn numerous permissions issues. The use of a photo may trigger privacy, publicity, defamation, trademark and other issues – depending upon who appears in the image and how you intend to use it.

Multiple Permissions May Be Required

You may need to obtain permission from more than one person or organization before you can use a particular picture. For example, in addition to getting permission from the photographer who took a photo, you may also need permission from any people depicted in the photo; from the owner of any trademark appearing in the photo; and from the copyright owner of any painting, sculpture, or other artwork depicted in the photo.

Stock Images as an Easier Alternative

An easier option for photo permissions may be licensing stock images. Licensing stock images is becoming easier as more stock houses computerize the process, offer online catalogs, and issue licenses online. A downside to using stock images is that they may have been in many other projects and may have been seen many times before. Stock materials can generate other unexpected consequences. Consider the rather negative experience of Hillary Clinton during the 2008 presidential primary campaign when she used stock footage – a close cousin to stock images – in one of her political ads. Also, using stock images does not always negate the need to obtain additional permissions for people or objects depicted in the image.

The Permission Seeker’s Guide Through the Legal Jungle includes an extensive discussion on using materials from stock houses and getting permissions for images.

Using Creative Commons Materials

What Are Creative Commons Materials?

Some copyright owners may deliberately place their work into the public domain prior to the expiration of copyright protection. There are also hybrid situations in which a copyright owner may place her work somewhere in between the public domain and full copyright protection. This is where Creative Commons comes in.

Creative Commons is a non-profit organization that offers free license documentation copyright owners can implement to make their works more available for use by others. You can locate music, images, text, and video on the internet that comes with a Creative Commons license. There are different variations of Creative Commons licenses. Hence, if the material you want to use falls under a Creative Commons license or other open license, read the licensing information to determine which rights you may freely exercise and whether there are any conditions with which you must comply.

Should You Use Creative Commons Materials?

Use of Creative Commons materials is not risk free. The Creative Commons License waives only copyright restrictions. There may be other legal issues to consider before using the Creative Commons materials. These considerations include right of publicity, right of privacy and defamation concerns.

Creative Commons licenses often come with no representations, warranties, or indemnifications. Those are the guaranties from the rights owner that it is authorized to give you permission to use the material and that the material has no permissions problems. Without representations, warranties, and indemnification, you are taking the Creative Commons material as is and essentially using it at your own risk.

Less Risky Methods

Less risky methods I recommend for minimizing costs while expanding your universe of available materials include licensing works from smaller stock houses and from local, independent and upcoming artists.

Court Decision about Songs Based on Pi Illustrates What Is and Isn’t Copyrightable

Copyright Does Not Protect Everything

For example, copyright law does not protect raw ideas. It only protects the way in which those ideas are expressed or developed. Unfortunately, separating the “idea” from the “expression of the idea” is often subjective and not necessarily intuitive. That’s why it’s helpful to have real life examples like the recent decision in the PI music copyright infringement lawsuit.

Musicians Slinging Pi

Pi is a mathematical constant that is the ratio of a circle’s circumference to its diameter. The first six numbers of pi are 3.14159. Composers Michael Blake and Lars Erickson independently assigned a number to each note of a musical scale and then constructed a melody by playing the notes in the order of the digits of pi.

Composer Michael Blake published on YouTube and elsewhere a recorded composition entitled “What Pi Sounds Like”. Erikson, who had previously created a composition entitled “Pi Symphony”, sued Blake for copyright infringement.

The Court Finds No Infringement

The court dismissed the lawsuit finding that both composers had simply created a composition based on the same idea. The idea was transcripting pi to music. There is no copyright infringement just because one composer uses the ideas of another composer. Infringement exists only if one composer copies the manner in which another composer expresses the idea and the two compositions end up being identical or substantially similar. For Blake and Erikson, the court found that the two pi compositions differed distinctly in areas such as rhythm, tempo, musical phrasing, and harmony.

Copyright also recognizes that for some ideas – such as the idea of putting pi to music – there are a limited number of ways in which to implement or express that idea. As a result, expressions of that particular idea – even if created completely independently from one another – may share some basic similarities.

Listen for Yourself

You can listen to both pi compositions yourself to determine how similar and distinct they are. Michael Blake’s “What Pi Sounds Like” is here. You can listen to movements from Lars Erikson’s “Pi Symphony” here and here.

Should Attorneys Get Copyright Protection for Documents Filed in Lawsuits?

Two attorneys have filed a copyright infringement lawsuit against Westlaw and LexisNexis for selling copies of the pleadings and other documents attorneys submit during court proceedings. The case is White v. West Publishing Corp. (S.D.N.Y., filed Feb. 22, 2012). You can read the complaint here.

Curious but Little-Discussed Aspect of This Case

What I find most curious about this lawsuit which seeks class action status is its inclusion of works that have no copyright registration. According to the complaint, Subclass R consists of those attorneys who have registered the copyright in their pleadings and Subclass NR consists of those attorneys who have not registered the copyright in their pleadings. The overwhelming majority of attorneys do NOT register the copyright in documents they file with a court.

The lack of copyright registrations is a problem. Under current law, you have a valid copyright as soon as your work is “fixed in a tangible medium of expression”. That’s copyright law speak meaning you have a valid copyright as soon as you write or record your work. Hence, copyright registration is not necessary to have rights in your work. However, copyright registration is required before you can file a copyright infringement lawsuit. That seems to mean that the claims for any attorneys in Subclass NR can be easily dismissed. If there is any exception to the registration-before-lawsuit requirement for class action cases, I am not aware of it.

Other Commentary about Copyright Protection for Lawyers’ Briefs

There has already been much discussion about the attorneys’ chances in the White v. West Publishing Corp. Some commentators believe the lawsuit to be frivolous and predict the attorneys will be laughed out of court. The Voloch Conspiracy blog offers a more even-handed analysis of whether Westlaw and LexisNexis’ use of the brief qualifies as copyright infringement.

Did Food Network’s Anne Thornton Plagiarize Recipes?

According to recent news reports, the Food Network says Anne Thornton plagiarized recipes from the likes of Martha Stewart and Ina Garten (the Barefoot Contessa). That’s the reason her show, Dessert First, has not been renewed for another season.

Plagiarizing recipes sounds like an odd reason for a firing. First, plagiarism is a term commonly reserved for academic works. Copyright might be the term one might use for snatching a recipe – except there generally is no copyright protection for recipes. Recent illustrations of the extent to which recipes cannot be copyrighted include the copyright infringement lawsuit over Jessica Seinfeld’s cookbook and its resolution.

The last quote from Anne Thornton in the news video is apt. There are only so many ways one can make a cupcake or chocolate frosting.

 

Gingrich and Romney's Copyright Troubles

I have previously blogged about How Copyright Blunders Push Political Campaigns Off-Course. The election cycle is providing new – but not necessarily fresh – examples of those blunders.

Newt Gingrich’s Use of “Eye of the Tiger”

Frank Sullivan, a founding member of the Survivor, has sued Gingrich for use of one of the musical group’s signature songs, “Eye of the Tiger”. Sullivan complains that “Gingrich took the stage at political conferences and similar public events as a recording of ‘Eye of the Tiger’ was played over the public address system”. Sullivan’s complaint is legally weak. As long as the campaign or the venue for the rallies had a public performance license, performing "Eye of the Tiger" at a public rally is just fine. In the United States, ASCAP, BMI, and SESAC issue most public performance licenses in the form of blanket l icenses covering all the songs in the organization’s catalog.

Sullivan also complains that a political group working with Gingrich posted online video recordings of the rallies with “Eye of the Tiger” playing in the background. The rules for using music at a political rally do differ from the rules for using music in a political ad or video. While one does need a synchronization license to use a song in a video, the circumstances described in Sullivan’s complaint sound more like the song was captured on video as background during the recording of a newsworthy event. Whether licenses are required for such incidental use of music is a question that often tortures documentary filmmakers. Many media industry professionals argue that such an incidental use is a fair use. However, the few court opinions indirectly addressing the question do not provide a clear, universal answer.

Mitt Romney’s Ad Featuring Tom Brokaw

A recent anti-Gingrich 30-second political ad posted by Mitt Romney consists only of a 1997 clip from NBC’s “Nightly News”. In the clip, Tom Brokaw reports that Congressional members have found Gingrich guilty of ethics violations. NBC has already sent a cease and desist letter asking that Romney stop using the ad. Romney’s campaign characterizes the use as a fair use. Even though Romney uses the clip within the context of political commentary, fair use may be difficult to show since the ad includes no added voice-over or other original material. I’m surprised that Romney’s campaign learned no lessons from Robin Carnahan, the 2010 unsuccessful Missouri candidate for the U.S. Senate. Fox News sued Carnahan after she released a political ad containing 30 seconds of Fox News Network footage.