An Oldy But Goody: Copyright & Fireworks

The following is from a response I made to a listserv (remember those?) over ten years ago. I got to thinking about the subject again yesterday after The Colbert Report made a reference to a fireworks display I worked on a long time ago. From: Kenneth L. Kunkle XXXXXXXXXXXXXXXXXXXXXXXXXX Date: Tue, 06 Oct 1998 22:59:52 -0500 I regret that I have not been looking at the list for a few days, as this is a topic I may be able to shed some light on. For background, prior to entering law school I was employed by a firework display firm with my primary responsibility being in the area of... you guessed it... choreography and design of large scale displays set to music (referred to as pyromusicals). It was standard for all of our work to be submitted to the copyright office for registration and to my knowledge they were always accepted. There is a great deal of work that goes into choreographed displays, timing colors,...
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Barbie v. Bratz: Scope of employment and tainted copyrights

Think that idea that you put together in your free time is free for you to use? Think again. While not binding in any court here in Minnesota, the legal battles between Barbara Millicent Roberts (Yes, that's her full name) and Cloe, Sasha, Yasmin, and Jade recently took a turn for the worse for Bratz manufacturer MGA Entertainment Inc. and are a good example of why creative professionals need to understand what their employers view as their work responsibilities, and why companies hiring creatives need to make sure they know the origins of those great ideas coming from new employees.After a large number of Mattel employees, including Bratz designer Carter Bryant, defected and came to work at MGA and MGA launched its Bratz line, Mattel filed suit claiming the Bratz dolls were designed on their dime and therefore they held the copyright for their design. After a jury trial that resulted in a jury finding...
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SPNN Presentation

I had the opportunity the other night to cover for another attorney in a presentation at the Saint Paul Neighborhood Network (SPNN) regarding copyright law, release forms, and fair use in video production. I typically enjoy these programs, as I always learn new things based on the questions I receive. As I experienced when I conducted a similar presentation last year to a national association of public media, the questions were well thought-out and addressed the many of central legal issues that new comers and old hands alike run into when creating video productions. Unfortunately, many of the questions necessitated the maddeningly frustrating answer of "it depends." This a problem that aggravates many clients, because obviously if they are paying for your expertise, they expect concrete, text book response. Unfortunately, to fully resolve most people’s questions related to fair use and privacy rights requires a fuzzy answer, as various criteria must be weighed against one another and more than...
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Jacobsen v. Katzer – Open Source infringment

In August, the Court of Appeals for the Federal Circuit issued a ruling (Jacobsen v. Katzer) that has been widely discussed as acknowledging the rights of developers of open source software. This opinion, while not necessarily binding in Minnesota, is helpful in illustrating important issues that relate not only to open-source software licensing and development but to general contracts that apply to everyone.The dispute involved an open-source developer and a company that used the open-source code as a part of their own software. Despite a license that required that the open-source developer be credited and copyright information retained in subsequent use of the code, the defendant stripped out this information. The issue was whether failing to provide this information caused the subsequent software to be an infringement of the plaintiff’s copyright, or whether it was simply a breach of contract - the difference meaning considerably different remedies.The opinion contained an extensive discussion on the importance of “conditions” verses...
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Copyright Basics

Every once and a while it is good to go back to basics.What is a copyright?A copyright is a set of rights (often referred to as a "bundle of rights") afforded to the owner of original works. Under federal law these rights include the right to reproduce the work, prepare derivatives of the original, and the right to perform the work publicly. By controlling these rights the owner may receive income from licenses in the form of royalties or directly from the sale of these rights.How do I get a copyright?Under current U.S. law all that is required to get a copyright is that the original work be "fixed" in a "tangible form." For example, if you are a writer, once the words appear on the page (or on computer disk) you have a copyright. There are no registration requirements to obtain the copyright, however, in order to enforce the copyright the work must be registered with the Copyright Office...
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Poor Man’s Copyright

A frequent comment I hear when talking with musicians is that they think mailing a copy of their music to themselves will work just like a copyright registration, but cheaper. This is sometimes known as a "Poor Man's copyright." While this might (and I use the term loosely" be helpful from an evidence standpoint, it doesn't really help with who created it and it will likely run into all kinds of evidentiary problems. Writers are much better off going ahead and filling out the copyright application. By filing a registration you set yourself up to collect attorney's fees and potentially higher damages if you have to file a lawsuit. By the way, in order to even get into a court on a claim of copyright infringement you have to file a registration, but if you wait to long to register you may lose out on some forms of damages.The better advice is to always put together a...
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Fart Dolls and Opinions

While you would think the first posting of a new blog would take the high road and post on something impressive in order to flex a little muscle, I can't resist making this the first post.In what is one of the more amusing topics for a case that I've seen lately, the U.S. 7th Circuit Court of Appeals recently issued an opinion in a copyright case involving "fart Dolls." The dolls name you ask? - "Pull my Finger Fred." An interesting opinion, however I suspect the judge enjoyed the opportunity to be a little juvenile - I mean how often is he going to have the opportunity to use some version of the word "fart" over 40 times in a single opinion, or my favorite "silent but deadly." Let's face it, this is a rare opportunity for you as a judge and I'm frankly a little disappointed he didn't take it further. As an attorneythe thing I find fascinating is...
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