Work for Hire

by Kenneth Kunkle Comment Closed
One issue that people often overlook when drafting agreements involving creative works is the copyright concept of “work for hire.” Failing to come to a clear understanding of the parties intention can cause unnecessary conflict that neither party really benefits from.What is Work for HireSimply put, work for hire addresses issues of copyright ownership when the work has been created for the benefit of someone other than the creator. Typically, the owner of a copyrighted work is the person who creates it, however, if a work is deemed to be a Work for Hire then ownership belongs to the hiring party. Work for hire situations occur in two basic ways; 1. works created by employees and 2. works created by independent contractors.Federal law states that Works Made for Hire is:(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for...
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Forum Selection in Creative Commons Licenses

by Kenneth Kunkle Comment Closed
Users of Creative Common's licenses beware!Chang v. Virgin Mobile USA, LLC 2009 WL 111570 (N.D.Tex. January 16, 2009)Texas plaintiffs posted a photo to a popular picture sharing website using a Creative Commons licenses. The photo was then down loaded by an Australian company who used the photo inconsistent with the Creative Commons 2.o license and Plaintiff's wishes. Plaintiff sued Defendant in a Texas court and Defendant moved to dismiss for lack of jurisdiction. While many factors were considered, of particular note is how to court pointed out that the license did not require the license to take place in Texas.In fact, the Creative Commons license used specifically does not contain either a forum selection clause or a choice of law clause that would outline where cases should be heard and under what state law a dispute will be analyzed. T he Creative Commons FAQ specifically notes that the selection of jurisdiction in the...
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An Oldy But Goody: Copyright & Fireworks

by Kenneth Kunkle Comment Closed
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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Copyright Basics

by Kenneth Kunkle Comment Closed
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

by Kenneth Kunkle Comment Closed
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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Morals Clause

by Kenneth Kunkle Comment Closed
What does a "morals clause do?MoralityThe basic idea is simple - if you are in the public eye and you do something stupid and doing that stupid thing makes the purpose of the contract frustrated, then the other party can say I'm canceling the deal. For example, lets say the Queen of England enters into a contract with a department store to endorse its new clothing line "Queen." She might have a clause in her deal that says something likeQueen agrees to conduct herself with due regard to public conventions and morals, and agrees that she will not do or commit any act or thing that will tend to degrade her in society or bring her into public hatred, contempt, scorn or ridicule, or that will tend to shock, insult or offend the community or ridicule public morals or decency.She then gets arrested for soliciting men in a downtown Minneapolis hotel. The Department store has an interest in protecting its...
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Minimum Contacts in A Virtual World

by Kenneth Kunkle Comment Closed
This article was orignally printed in Minnesota Bench & Bar (February 1998) Each month thousands of American businesses create new Internet sites in order to market and distribute products and services nationally or internationally. The ease of using the Internet for global marketing has struck down many of the previous financial and legal hurdles that companies were required to clear. Consequently, many businesses are rushing forward without considering the possibilities that they may be subjected to the jurisdiction of distant states or nations, and courts increasingly are finding that web pages create the minimum contacts necessary to exercise personal jurisdiction over distant defendants. Thus, the challenge for attorneys is to help businesses use this vibrant medium without being subjected to the jurisdiction of foreign states and countries. The rest of this article can be found at kunklelaw.net...
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