Copyright Issues

Intellectual Property Copyright
Copyright is a form of protection provided by federal law that gives authors of “original works of authorship” certain exclusive rights in those works. Congress derives its power to regulate copyrights from Article I, Section 8 of the US Constitution. Copyrights in the United States are generally governed by Title 17 of the United States Code, also referred to as the 1976 Copyright Act. To view the 1976 Copyright Act and its many amendments, click on the following link: US copyright protection is available to both published and unpublished works and gives the copyright owner exclusive rights to (and the ability to authorize others to):

  • Reproduce the work;
  • Make derivative works;
  • Distribute copies of the work;
  • Perform or display the work publicly; and
  • Transmit sound recordings of the work in digital audio.

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Copyright Notice and Protection
U.S. copyright laws give protection to authors and artists for “original works of authorship.” Such works include literary and dramatic works, music, choreography, paintings, sculpture, sound recordings, and movies. The copyright holder has the exclusive right to take certain actions related to commercial exploitation of the work, or to authorize others do so.

As copyright laws have been amended over the years, obtaining and protecting a copyright has become simpler in some ways. For example, registration of the copyright is no longer required. A copyright is deemed to exist in any original work at the time it is created and “fixed” in a tangible medium of expression from which it can be perceived, reproduced or otherwise communicated, directly or indirectly, with the aid of a machine or device. Registration with the U.S. Copyright Office (USCO) may, however, be necessary to protect the copyright in court.

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Fair Use and Other Exceptions to the Enforcement of Copyright Law
Copyright protection in the U.S. has existed since the formation of the Constitution, and coverage has continually been expanded to keep pace with new technology and other developments, such as copyrights for sound recordings, computer programs, choreography, etc. Creators of original works that are permanently fixed in a tangible medium may obtain certain exclusive rights to exploit their works, including the right to:

  • Reproduce (copy) the work
  • Create a “derivative work”- a new work based on the original.
  • Publish or distribute the work.
  • Publicly perform the work, such as performances of musical compositions.
  • Publicly display the work, such as displays of artwork.

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The Changing Face of Fair Use
Fair use is a principle of copyright grounded in the idea that the public is entitled to use excerpts of copyrighted materials without permission in the publishing of commentary and criticism. Absent such permission, copyright owners would be completely immune to any negative response to their work. The difficulty for intellectual property law is, of course, the interpretation of fair use, which most often becomes subjective and a matter of degree. If a copyright owner doesn’t agree with your interpretation of what or how much use is fair then you risk being challenged for copyright infringement. And one of the tests in such a dispute will hinge on whether your use of the material could deprive the copyright owner of income.

As a world community we communicate more and more in a language that is audio-visual and internet-based. Fair use laws attempt to keep the lines of communication and artistry open to allow culture and language to flourish.

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Publicity Rights

Rosa Parks Sues OutKast Over Song Title
In December 2003, the U.S. Supreme Court refused to hear an appeal by the hip-hop duo OutKast and their record label affiliates. By denying OutKast’s petition for review, the justices let stand an appellate court ruling that reinstated portions of Rosa Parks’ lawsuit against the musicians. In effect, the Supreme Court’s refusal to hear the case allowed Parks to proceed with her lawsuit in a lower federal court.

In December 1955, Rosa Parks attained national notoriety by refusing to relinquish her seat to a white passenger and move to the back of a segregated bus. Her subsequent arrest sparked a 381-day bus boycott in Montgomery, Alabama, led by the Reverend Martin Luther King, Jr. The boycott, a significant event in the civil rights movement, ultimately led to court rulings that desegregated public transportation nationwide.

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Controlling the Commercial Use of a Celebrity’s Identity
Generally, copyright and trademark laws protect the exclusive rights of an original author in the commercial value of their work. Ancillary to the intellectual property rights of original authors, however, is a celebrity’s right to control the commercial use of identity under the “right of publicity.”

Originating from state law, the right of publicity governs the exploitation of a celebrity’s name, likeness or characteristics. Accordingly, the right of publicity can be defined as the inherent right of every human being to control the commercial use of his or her identity.

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The Abercrombie Formulation: Generic, Descriptive, Suggestive, Arbitrary and Fanciful Marks
The Lanham Act, the federal trademark statute, protects marks that perform sourceidentifying functions. Specifically, under the Lanham Act, a person must use or intend to use a mark to “identify and distinguish [his or her goods]…from those manufactured or sold by others and to indicate the source [of the goods].” In essence, trademark law places a premium on marks that are distinctive.

Following the “classic formulation” set forth by a federal appeals court in Abercrombie & Fitch Co. vs. Hunting World, Inc., courts frequently classify marks into five different categories. In order of generally increasing distinctiveness, these categories of marks are: (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; and (5) fanciful.

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Aqua and Mattel’s Lawsuit Regarding “Barbie Girl” Song
Mattel, the manufacturer of the “Barbie” doll, sued a Danish band, Aqua, over their song “Barbie Girl.” The song, among other things, contained lines that portrayed Barbie in a negative light.

In 1997, Aqua released the album Aquarium, which features the song “Barbie Girl.” In the song, a female band member, who calls herself “Barbie,” sings the lyrics in a high- pitched voice: “I’m a Barbie girl, in my Barbie world / Life in plastic, it’s fantastic / You can brush my hair, undress me everywhere / Imagination, life is your creation.” In response, another band member (“Ken”) requests of her: “Come on Barbie, let’s go party.” The song ultimately made it onto the Top 40 music charts.

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Arbitration of International Commercial Disputes
The general strength and momentum of the international marketplace accentuates the need to have clear rules for the resolution of international business disputes. Fortunately, since the challenges that face companies engaged in international business are not new, laws addressing the adjudication of the associated disputes have been created and continue to evolve.

Federal Arbitration Act
In 1925, President Coolidge signed into law the Federal Arbitration Act (FAA) which ensured the validity of arbitration agreements evidencing a “transaction involving commerce.” In addition, the FAA precluded states from requiring disputants to litigate claims that the parties had previously agreed to arbitrate. As a result of this federal policy favoring arbitration, many states enacted their own arbitration statutes. In its early days, the FAA’s coverage of international business disputes was deemed
perfunctory and inadequate.

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Copyright Protection for Your Websites and Blogs
For creators of original content on the internet protection under law can feel inadequate for their electronic intellectual property. Because the web is open, pervasive, and information is so easily copied, plagiarism, copyright infringement and unauthorized reproduction are rife.

Copyright Registration, a process I outline elsewhere on this site [Link to Page] is a process that gives the best protection. Although you obtain copyright in your website the moment it is electronically published, I recommend that my clients take the following steps to give notice to would-be copyright infringers, to strengthen a court case and to help with evaluating damages if a lawsuit is

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Your Websites Terms and Conditions
If you have established a web presence with your own site you face the issue of posting Terms and Conditions appropriate to your content. You will need some kind of protective language, but what kind of language and how much? If you are not Google or Groupon, and you’ve created an informational, self-promotional or small business website, you probably need only a few pages of protections.

To create that language you have options. You could have a lawyer draft a simple Terms and Conditions approval clause for your website visitors. Or draft one our self and have a lawyer review it prior to posting.

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Life Rights

Legal Consideration For Option/Purchase Of Life Rights
No one owns their life story. Personal facts, historical events, names, ideas and themes cannot be copyrighted. So, for a produce wanting to tell the story, in any medium, of someone either living or dead, it is not necessary to acquire life rights to their story in order to tell it.

That being said, there are some reasons to acquire life rights prior to developing a personal story, and to briefly list relevant and necessary considerations that need to be made prior to executing a life rights contract.

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Thinking About Contracts

Why Attorneys Want You To Have Contracts
All attorneys want clients —- and all attorney want their clients to have contracts. While the good contract sets out the who, what, where, how, and how long, it also provides for what do you do if the what, why, how and how long are not fulfilled. As much as the actual piece of paper is important, the thinking that goes into getting to the paper is even more important. If you are going to create a contract AND EVEN IF YOU ARE NOT, you need to work through the points that are usually included in a contract.

For example, you are a burgeoning theatre group and you want to rent a theatre space for a month long series of weekend performances. You approach someone in the office of the theatre. They take you on a tour of a large theatre, a small theatre and some rehearsal space. You make a deal to rent the small theatre for $200. You are enough of a negotiator to only pay $100 now and $100 on the last day of performance. (You need the box office!) You feel like you have covered your bases, but what kind of contractual thinking haven’t you done?

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You Don’t Get Something For Nothing
“You get what you paid for,” “there’s no free lunch,” “free advice is worth exactly what you paid for it.” At some point, some friend or family member has said each of these things to you, or you have said it to them. And, they’re times and situations when each of the statements above are true. At no time is the concept that “you don’t get something for nothing” more true than when putting together a contract.

If you are the producer, director, project manager or organizer of a creative project with a limited budget, I’m sure you feel there is nothing better than working out a deal where someone will work on your project for free. The offer of free editing, or props, or space, or set design work is music to your ears when you’re trying to find enough in the budget to get everything done. So, when someone volunteers to do something for free, you jump at the chance and write an agreement that goes something like this: “Mary will edit Joe’s Fabulous Project. Mary will provide 25 hours of editing using her own editing equipment (the “Services”). The Services will be complete and a finished master will be delivered to Joe no later than April 15, 2012. The fee for the Services will be $0.”

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Deferred Compensation
For those of you who grew up watching Popeye cartoons, you will remember a character named Wimpy. Wimpy’s favorite line was “I’d gladly pay you Tuesday for a hamburger today.” The idea of eating your hamburger today and paying on Tuesday is the essence of deferred compensation. In the Popeye cartoons it looked like Wimpy was a master of deferred compensation. Unfortunately, all of the things you need to think about when setting up a deferred compensation agreement are not present in the simple statement “I’d gladly pay you Tuesday for a hamburger today.” But, let’s first look at the ones that are.

First there is the Who. Every contract for deferred compensation should set out the parties. Here the parties are Wimpy and you. Then, there is the hamburger, and the hamburger represents product or a service that someone is willing to give now in consideration of payment at another time. So we have the What. But could the What be more clear. Is the hamburger – with cheese, without cheese, with extra pickle, how about bacon?

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The New York City Bar Association,
October 17, 2012
“Mediation Settlement Day, Kick-off Event”

Alliance of Resident Theaters,
July 25, 2011
“Contracts, Insurance and Avoiding Lawsuits”

March 18, 2010
“Ethnic Diversity Steering Committee”

American Arbitration Association, mock mediation/discussion,
October 21, 2005
“Ms. Lotta Talent v. Starstruck Management Associates”

Entertainment, Arts and Sports Law Section of the NYS Bar Association, Fall Meeting,
October 30, 2004
“Legal Issues in Producing and Distributing Television Programming”

Hamptons International Film Festival,
October 21, 2004
“Copyright Laws: How Do You Know It’s Yours?”

New York City Bar,
April 24, 2003
“ADR in the Entertainment Industry”

Entertainment ADR Committee of the ABA Section on Dispute Resolution, Offices of Kaye, Scholer,
July 11, 2002
“Alternative Dispute Resolution in the Entertainment Industry”

New York Women in Film & Television,
October 12, 2011
“Breaking Up is Hard to Do”

August 30, 2010
“Web Series Summer Camp Workshop”

February 18-21, 2009
“Arbitration Training Conference”

Law Offices of Herzfeld & Rubin, New York, NY,
January 18, 2005
“Ethical Considerations for Advocates in B2B Mediation”

American Arbitration Association, New York, NY,
October 27, 2004
“Optimizing the Hearing in Arbitration”

New York Women in Film,
April 15, 2004
“Digital Dilemma: Legal Issues in the Digital World”

Volunteer Lawyers for the Arts, ADR in the Entertainment Industry Symposium, Benjamin Cardozo School of Law, 2002
February 26, 2003
“Introduction of Mediation for the Entertainment Industry”

Law Offices of Loeb & Loeb and Moses & Singer,
“Introduction to Alternative Dispute Resolution for Entertainment”

New York Women in Film & Television, the Independent Feature Project and the Entertainment, Arts and Sports Law Section of the NYS Bar Association, Fordham Law School,
January 14 and 15, 2000
“From Development to Distribution: The Business and Legal Affairs of Independent Feature Film Production”

New York Women in Film and Television and the American Arbitration Association,
February 29, 1999
“Mediation for the Entertainment Industry: A Discussion & Mock Mediation”