Wants to Create a Book Using Onstage Banter

Dear Rich: We are working on a book that provides a compilation of stage banter quotes from rock concerts -- onstage quotes of famous singers and songwriters. We do not make commentary about the quotes, but some will certainly come across as flattering while others will likely come across as not-so-flattering. There are approximately 180 quotes at this point. Big note here: some quotes are culled from the Internet, most are transcribed by us (both from YouTube videos and the like and also from CD and DVD live recordings). Regarding the quotes -- are we protected under "fair use" to use these quotes in a publication for commercial gain?  Also, what about libel? And if we got the quotes from CDs and DVDs, is the content copyrighted to the extent that we cannot reproduce it via transcription? We are planning to use photos found on "Creative Commons." (We are only using CC BY and CC BY-SA photos and will credit the copyright holder.) Do we need to get a "Model Release" from each singer/songwriter to cover ourselves? Also, what about "Property Rights" of the venue in which the photo was taken? 
We don't think you have much to worry about. As we've indicated before, short phrases are usually not protected under copyright law. So, copying and reproducing one, two or even three line quotes typically won't cause a problem.
Fair use? Longer quotes --  say four or five lines or more -- may be excused under fair use principles. Even though you are not providing commentary, we think the act of curating these quotes may be transformative (and it's hard to imagine that you are depriving the musician of any income by reproducing onstage banter). By the way, when you pull quotes from recordings, you are not infringing the sound recording copyright (unless you copied the recording, not the text) and you're not infringing the song copyright either.
What about libel? It's unlikely you're libeling anyone by reproducing onstage banter. You certainly wouldn't be libeling the musician who made the statement (there's no such thing as "self-libeling"). As for third parties, it's always possible that a musician's blathering may libel a third party but we imagine that these statements have already been published somewhere and nobody's objected. So that shouldn't be an issue. Misattribution may be a problem if you are attributing an awful statement to a musician who didn't make it. But that's an issue for your fact-checking department.
The photos. You should be fine using Creative Commons licensed photos assuming you abide by license conditions. You don't need a model release (or property rights permission from the venue) as your uses within your book are for editorial purposes. To sidestep all right of publicity issues, avoid using photos of celebrities in the advertising and packaging (the cover) for your book.
P.S. Hope you included Lou Reed!

Wants to Copy Website's Terms of Service

Dear Rich: I run a a health and fitness blog. It has come to my attention that a medical disclaimer should be included on my website. These disclaimer appear lengthy and go into a great degree of legal jargon. I would not like to craft my own. Anyhow, if I use the medical disclaimer of another health and fitness blog, verbatim, would this be infringement? In other words, does plagiarizing a medical disclaimer (or any privacy policy, FTC disclaimer, website TOS etc.) constitute infringement? 
Yes, copying terms of service (TOS) without permission is infringement. However, you don't hear of many lawsuits over TOS theft possibly because the copyrights are so "thin" and the origins of so many are murky. That is, it may be difficult for a copyright owner to claim the TOS as an original work of authorship. (There's something strange -- we almost said "ironic" -- about the fact that TOS's prohibit copying yet they are so often, pilfered or cobbled together from various sites, often by lawyers). Another obstacle for someone coming after you is the "merger doctrine," a copyright principle that excuses copying if there are a limited number of ways to express an idea.
Bigger concerns. Even if the threat of infringement does not loom over your website, there's a bigger issue --  your ability to enforce your TOS against an errant user. If you sue someone over a TOS violation, the opposing attorney will want to know the origins of your TOS ... and that's when you have to reveal you nicked it from a competitor's website. It may still be enforceable but a legal shadow hangs over your TOS especially if you copied irrelevant sections or failed to remove names not applicable to your business.  If you want to avoid these potential hassles, there are online TOS generators and some sites such as WordPress and Automattic have made their TOS available for others to use under Creative Commons (CC) licenses. Also, the CC folks have tried to simplify the business of creating a TOS. And of course there are always attorneys prepared to create or customize TOS for your company (or copy them from treatises).
P.S. Dept. Keep in mind that a court is more likely to enforce your TOS if the user has to click to agree.

What is the Time Limit for Filing Sampling Infringement Lawsuit?

Dear Rich: I manage a band that made several songs, one in particular that has been sampled 153 times by various artists from 1988 to 2013. Except for half a dozen artists who made deals and paid (and this was negotiated and hidden from the rest of the band by one member who has since been thrown out) they have not been compensated. One of the richest men in hip hop used the song three times and never paid a dime. Of course they did not know the law and by the time they discovered it most had been sampled years earlier. Now several lawyers tell us there is a 2-3 year statute of limitation! Is that true? So there is no way to get justice for their performance being ripped off. I am not talking a couple of seconds. The drummer plays throughout the entire track on some of these recordings. 
For copyright infringements, the statute of limitations -- the legal time limit by which you must file a civil lawsuit -- is three years from when you discovered the infringement (or when it reasonably should have been discovered). In 2013, however, the Supreme Court permitted an author/screenwriter's heirs to wait 18 years before filing a copyright infringement lawsuit against the owners of the film, Raging Bull. Copyright law provides that when there are ongoing successive infringements—for example, as in this case, where copies of Raging Bull continue to be sold—the copyright owner may bring the lawsuit within three years of any infringement (and can collect damages for only the preceding three years).
Laches. Prior to the Supreme Court ruling, lower court decisions had prevented the heir's’ lawsuit under an equitable principle known as laches (it is unfair to proceed with a lawsuit when one party has waited an unreasonable amount of time to bring the claim). In light of the federal statute of limitations, however, the Supreme Court ruled that it was inappropriate to apply laches. Check with your attorney to see if this case may benefit your situation.

Wants to Oppose Mark for Genericness

Lockheed-Martin Paveway II Dual Mode Laser Guided Bomb 

Dear Rich: I have a question about opposing a trademark registration. The trademark was recently published for opposition at the USPTO and I have a few reasons to oppose the registration. One of them is genericness. What does it take to oppose a registration? In order to succeed with a genericness opposition, you'll need to show that the public associates the term with an entire genus of goods or service. For example Outdoor Products could not serve as a trademark for backpacks. The Trademark Trial and Appeal Board (TTAB) adjudicates opposition hearings. Here's a sampling of TTAB rulings from recent years:

• ESERVER generic for computer network products, 
• STORAGE OUTLET generic for self-service storage facilities,  
• LENS generic for Internet sale of contact lenses, and 
• PAVEWAY generic for laser-guided bombs (who knew?)

A term that's generic for some goods is not generic for all -- a term like MOTELS might be generic for hospitality services but not for entertainment services.
What did the examiner do?  A mark that's been published for opposition has been examined and approved by an examining attorney at the USPTO. All legal objections have been resolved. For that reason, it may help to review the history of the application before filing an opposition. You can do this by searching for the mark in the USPTO database and then (once you've located it), clicking the "TSDR" button. That way you can see if the examiner raised genericness as an objection. (The USPTO uses "merely descriptive" to refer to generic terms). We checked the trademark you're opposing and the issue was not raised (not a good sign.)
The opposition procedure. An opposition can be filed by “any person who believes that he or she would be damaged by the registration of a mark.” Unless an extension is granted, the opposition should be filed within 30 days of publication. Unfortunately, it's not as simple as sending in a statement of opposition. Because you are initiating a proceeding at the TTAB, the opposer is required to submit a document that corresponds to a complaint filed in a lawsuit. You can oppose a mark for any reason that registration would be refused. Three helpful resources are the  rules and procedures for TTAB filing, the TTAB's case searching page at the USPTO website and the TTABlog where you can search for TTAB cases. If all of this seems like too much work, you can try a more informal Letter of Protest.

What's the Down Side To Using a Stage Name for Business?

Dear Rich: I am in the process of making marketing videos on youtube, webinars, public speaking seminars and authoring informational books. For privacy reasons and because of my unusual and hard to spell name, I would like to use a first and last name that is different than mine in these situations. I do not plan on changing my name legally, like on my drivers license, but to feature it in these works that I publish myself. Is there any issues from a legal standpoint, that is, not holding myself properly to my clients/ customers. The main jurisdiction that I plan on doing business is Canada and the USA if that helps.
We can't comment on Canadian law but in the U.S., probably the only issues you will face are getting paid, entering into contracts, and registering copyrights. Because you are doing business under another name (DBA), you should indicate that fact when entering into agreements -- for example, "Robert Smith DBA Harry the Heretic." Ditto for filling out W-9s and W-4s for hiring parties -- use your real name for tax purposes. If you're publishing copyrightable materials under a pseudonym, you have the option to indicate that when preparing your copyright application. As for getting paid, try to set up direct deposits. Otherwise, you'll want your real name on any checks to avoid bank teller hassles (i.e., "Excuse me while I get my manager!").
P.S. Have you checked to make sure your pseudonym is not already in use for similar goods and services?

Now, Can I Use "Happy Birthday" in My Movie?

Dear Rich: I made a mini-doc and there's a segment where people sing "Happy Birthday" at a retirement home. Based on what I read the song is in the public domain. Can you verify?

No court has yet ruled that "Happy Birthday" is in the public domain but that may change. The song is the subject of a  legal challenge brought by a filmmaker who last week reported discovering the smoking gun in the case -- publication of the lyrics in the 1920s without a copyright notice. 

Backstory. Prior to March, 1989, a failure to include notice on published copies could result in loss of copyright. (The U.S. was the only country following this rule and it was one of the things preventing us from joining the Berne Convention.) The law was criticized because it punished inexperienced artists like cartoonist Robert Crumb and the troll company, and rewarded defendants who dug up published copies of the work without notice (even if those works had not misled them). 

Can Happy Birthday survive attack? To prevail, the owners of "Happy Birthday"will have to show that the 1920s distribution was a limited publication (to a limited group of people with restrictions); that the publication was not authorized; or that a reasonable attempt was made by the copyright owner to correct the error. In any case, there's some irony in the fact that this strange near-forgotten rule is being exploited by an indy filmmaker against a mega-corporation.