Do I Lose All Rights When I Blog?

Dear Rich, I was recently accepted as a writer for a major national syndicate of blogs covering sports teams. This company does not have a physically-signed document per article as is traditional with journals, to clearly state a work/submission is considered "work-for-hire", (where full copyright is given to the publisher from author). Instead, there is a blanket document called, "Content Standards for Contributors" that all writers must click-sign prior to writing for one of the blogs. In this is the following line: "You hereby irrevocably grant to us the right, but not the obligation, to reproduce, modify, adapt, publish, broadcast, license, perform, post, sell, translate, incorporate, create derivative works from, distribute and otherwise use the submission in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, without according you any compensation[...] All submissions made by you shall be the sole property of ***** and will not be acknowledged or returned. " My question: Almost all writers, including myself, for these blogs are not paid, are not contracted, nor are they employees, but according to their "content standards" the act of publishing on their site results in the transfer of the copyright of the article. Is this "agreement" legally binding, and considered ethical?  
A click-to-agree contract is legally binding in the U.S. and the fact that you don't receive any payment does not prevent it from being enforceable (as long as the arrangement provides some benefit to you-- for example, increased exposure versus obscurity).
Who owns what? We think a blogger entering into this agreement retains copyright. We don't think the statement, "All submissions made by you shall be the sole property of [company] and will not be acknowledged or returned," transfers copyright ownership (It seems more like a vestige from publishing agreements relieving the company from having to keep track of email or paper submissions.) We believe a court would require more explicit language affecting a transfer -- for example, using words such as "assign," or "transfer," and "copyright" and "ownership."
What type of copyright? What you retain, after entering into this agreement, is a partially-gutted copyright. That's because you give up a lot of rights on a nonexclusive basis, effectively preventing you from selling those rights to someone else on an exclusive basis -- for example,  entering into publishing agreement for a collection of blog entries as a book. But, of course, that may be "old school" thinking, ignoring the benefits of your personal brand exposure and the temporal quality of sports blogging.

Will an LLC Shield Me From Copyright and Trademark Lawsuit?

Dear Rich: I'm attempting to get licensing from several professional and collegiate sports associations, I've received licensing for some but not all and plan to sell, or would like to sell, product before all are in place. The copyright issue falls somewhat in the gray area but nonetheless I feel it's prudent to have personal liability in place. My question is will an LLC give personal legal liability protection from a lawsuit brought by one of these copyright or trademark holders? Or do I need to structure it as a C or S corporation, and if so which is better with regard to this concern?
Forming an LLC or corporation (whether S or C) can limit your personal liability but it won't shield you from negligence or intentional wrongdoing. If a court determines that you intentionally infringed, it can reach through the corporation or LLC and make you personally liable. Alternatively, a lawyer suing your business may try to “pierce the corporate veil” because you set up the LLC or corporation for  fraudulent purposes. Perhaps you can get an attorney's opinion regarding your licensing activities before you start selling your products. In either case, it's probably not best to rely on that "invisible shield."

What Constitutes "Publication" Under Copyright Law?

Dear Rich: I wrote an “In Remembrance” booklet when a family member passed away. About 20 copies of the booklet were given to family, friends and neighbors. The booklet didn’t even have my name on it because everyone I gave it to knew I was the author. It was not used for a memorial service and there was no sale or public display involved. Recently, I found out that one of my friends had faxed the booklet to two people he knew, even though I asked him not to. Because of the response, I’ve decided to lengthen the booklet and turn it into a short story for sale – either to magazines or as a POD book. I’ve since added my name and a copyright notice.  (1) Has the booklet been published? (2) I know that the work is already copyrighted, but should I be worried since there is a period where someone could have stolen my work and submitted a registration for copyright? 
Your booklet would not be considered "published" under the Copyright Act if you distributed it to a limited group of people with restrictions -- for example, you asked people not to copy or distribute it (sometimes referred to as a “limited publication”). In any case, we're not sure it makes much difference. If you're concerned about your rights, you should register your current version (and in your application, indicate the current version is derived from the previous booklet). In the unlikely event someone has registered your booklet as their own, you can claim infringement and also seek to invalidate the registration. You can investigate registrations at the Copyright Office website (but keep in mind that registration takes approximately four to six months so bad actors may not show up right away).

Does TM Registration Provide Priority for All Items Within the Class?

Dear Rich: Does a trademark registration grant the right to use a trademark only for the specific goods  or for any/all goods within the category? For example, does a registration in Class 9 for an app give the trademark owner exclusive rights for everything in Class 9? No, registration in a  trademark class doesn't guarantee exclusive rights for all the goods and services in that class. For example, we counted over a dozen different companies who had registered the mark "EAGLE" in Class 9 for products ranging from fatigue monitoring devices to business software for inventory management. The principal issue for a trademark examiner is whether consumers are likely to be confused between the two similar marks. As the USPTO advises examiners, "[I]f the goods or services in question are not related or marketed in such a way that they would be encountered by the same persons in situations that would create the incorrect assumption that they originate from the same source, then, even if the marks are identical, confusion is not likely."

If You Write It, They Will Sue

Dear Rich: I wrote a novel that is set on the city street I used to live on. The year is 1968. It follows the interaction of a dozen kids, ranging in age. At some points the teasing between the kids gets very intense: “Your mom’s a tramp. Your dad left two years ago and you don’t even know where he is,” etc. The book is essentially a comedy and all of the characters, including the one drawn from me, are presented in a broad amusing fashion. The book will include the standard fiction disclaimer on the copyright page. I have set the novel in a different city, changed all the characters names, physical descriptions, parents jobs, etc. No one would ever read my book and guess that these people were the inspiration for the characters in the book. However, there are about forty of us from that original street who still keep in touch through Facebook and my problem is that if any of those forty people ever read the book they would immediately recognize the street, and they would know who wrote the book.  Although most of them would enjoy the book, I am afraid that over time a few people might feel that they are literally portrayed and might take offense. In short, if I self publish this book, am I setting myself up for a defamation or invasion of privacy lawsuit? 
Most courts tend to provide authors with some leeway when depicting characters derived from real life. Although this freedom is sometimes framed as a first amendment defense, it more likely results from the complaining person's failure to prove his or her case. For example, if an unhappy childhood friend sued you (known as the plaintiff in legal jargon) your friend would have two substantial hurdles. First, the plaintiff must prove that the character actually depicts the plaintiff (an analysis that needs to include the dissimilarities as well as the similarities). Second the court must be convinced that you made a damaging false statement or portrayed the plaintiff in a false light. Some courts have ruled against novelists (blame it on this 25 year old case), but if you haven't completed your novel, there are simple ways to avoid the sound of the judge's gavel.
BTW Dept. (1) The right of publicity -- another claim sometimes made in these situations -- is a hard  argument to win against a novelist. (2) You cannot defame or invade the privacy of someone who has passed on.

The British Library Has Lost its Charm

British Library London" by Jack1956

Dear Rich: I ordered some public domain works from the British Library (assume they are absolutely, without question public domain--written in 1800s), and the British Library people say: "Here are your copies, but you can't copy them further, because, by copying them we, British Library, acquired a new copyright on them." Is this right? Can they have a copyright on photocopies of public domain works?
We're not familiar with British copyright law but, under U.S. law, creating a "slavish reproduction" of a public domain work doesn't create a new copyright. So, under U.S. copyright law, you're free to copy the public domain work. There may be a contractual prohibition on you copying the materials if you signed a license agreement with the British Library. That's a murky area and courts have sometimes ruled that the license trumps copyright.We wrote more about these issues in a previous post. In any case, this seems like a tough one for the library to enforce.

Should I Quote Hemingway or Dickens in Stage Play?

Dear Rich: I'm working on a stage play. In my play, I wanted to have a character quote two separate passages from Hemingway's "A Farewell to Arms." The first is the first two paragraphs of the novel and the second is a short dialogue exchange (four lines). In both cases, the work is sourced. Would I be able to include these passages under fair use? If not, would older work, such as Dickens be usable?
"A Farewell to Arms," first published in 1929, is protected under copyright in the U.S. until 2034 (95 years after publication date). According to the Hemingway Society permission to use excerpts from the book would come from the publisher, Simon and Schuster.
What about fair use? The first two paragraphs of "A Farewell to Arms" contain less than 200 words. That level of borrowing (plus four lines of dialogue) combined with a transformative purpose (a fictional character's quoting of Hemingway) makes your stage play a good candidate for fair use. The trouble with our analysis is that only a court can substantiate a fair use claim and we doubt whether you want to be dragged into a legal battle. In addition, if you are hoping to have your play produced, there is a strong possibility you will have to indemnify the play against infringement ... which means you'll probably want to obtain permission, anyway.
What about Dickens? All of the works of Charles Dickens are in the public domain and free for you to use without permission.
By the way dept. You could stage your play in Canada without much problem as "A Farewell to Arms" is in the public domain up north. You could also include clips of the 1932 movie, "A Farewell to Arms," which is PD in the U.S.

Same Sex Marriage and Copyright Redux

Back in 2013 when the Supreme Court made its DOMA decision, we reviewed the effect it would have on copyright law. At that time we indicated that the primary effect would be that in states where same-sex marriage is legal, the surviving spouse would acquire copyright renewal rights and termination rights. Now that the Supreme Court has held that same-sex marriage, is legal in all states the rule applies across the country. In other words, a surviving spouse will acquire the right to recapture copyright for pre-1978 transfers as well as the right to send and benefit from Notices of Termination.
The effect on copyright contracts. Other than the ability to terminate a transfer after 35 years, the Supreme Court decision should have little effect on contracts signed regarding copyright transfers. In the nine states that have community property laws --Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin -- spouses automatically become joint owners of most types of property acquired during the marriage. California, for example, has held that a copyright acquired by one spouse during marriage is community property—that is, is jointly owned by both spouses. (Marriage of Worth, 195 Cal.App.3d 768, 241 Cal. Rptr. 135 (1987).) This means that if you are married and reside in California (or later move there), any work you have created or will create automatically would be owned jointly by you and your spouse unless you agree otherwise. Therefore, lawyers consider it prudent for both spouses to sign any assignments or exclusive transfers of copyright. (Note a court in Louisiana has held copyrights are not community property in that state. (Rodrigue v. Rodrigue, 50 U.S.P.Q.2d 1278 (E.D. La. 1999).)