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Emily Bass

Emily Bass’s Answers

261 total


  • Does my original doll violate copyright of another?

    Two years ago I designed /created doll of a specific animal (let's pretend it is monkey), included wire armature so doll could stand and be posed. My dolls just look like any basic "monkey", and are original design, not copy of any other work....

    Emily’s Answer

    It sounds to me as though you might be conflating and/or confusing "copyright" and "trademark" principles. Copyright attaches automatically upon the creation of a design and not upon registration. So, if you created your design for a "toy monkey" two years before the other designer and did so independently and without knowledge of or access to her work, as a logical matter it would not appear that you can be guilty of copyright infringement.

    However, since you have been accused of infringement, apparently, you must take the matter seriously. You must retain competent Intellectual Property counsel to respond to the accusation and to determine several things: (1) whether your design is sufficiently original to be copyrightable; (2) whether the armature or process to create the armature is patentable; (3) whether your work infringes anyone else's copyright-protected work and/or trademarks, etc. Don't wait to begin this process. You need to retain counsel now.

    Disclaimer: This answer does nor itself establish an attorney-client relationship or constittute legal advice. It is for general informational purposes only.

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  • Are audios I produce copyrightable? This is a special case...

    Basically, my audios are "brainwave entrainment" mp3s. These are audios which use very specific sound frequencies to effect the brain, through pitches and tones (which are audible). This is what I am creating. However, the audios have someone else...

    Emily’s Answer

    There are two separate questions, really.

    Ques.# 1: First, is your use of the "music" permitted or infringing?

    Ans.: If you are using someone else's music, you are going to need at least two permissions or licenses - perhaps three, if I understand what you are doing. You are going to have to get permission to use the "musical composition" involved. You are going to have to get permission to use the "sounding recordings" of those compositions. And, you are going to have to get permission to "synch" the music you are getting permission to use with your own compositions or recordings. If you don't get these permissions or licenses, your use of the music will be infringing.

    It is NOT enough to "disclaim" copyright in someone else's work. You must affirmatively get permission to reproduce their work, to create a work that is "derivative" of their work, and to distribute the resulting products.

    Ques. # 2: Can you copyright your audio compositions? Provided there is sufficient originality, yes, and it sounds to me as though there probably is.

    Assuming the work is copyrightable (and you have gotten permission to utilize the accompanying music), the copyright you register will only attach to YOUR OWN original contributions to the works you are creating.

    You should retain a copyright attorney to assist in handling both aspects of your project. This is not an area in which a do-it-yourself approach is advisable.

    Disclaimer: This answer does not establish an attorney-client relationship or constitute legal advice. It is for general informational purposes only.

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  • Is there a federal law stating earned vacation pay be paid on resigning

    The company is based in Georgia, I live in Maine

    Emily’s Answer

    No, the question is one that is governed by state law. (Some states have statutes that define "wages" as including vacation pay; others don't include vacation pay.) You should start by consulting an employment attorney who is licensed to practice law in Georgia, although there may be a "conflicts of law" or "choice of law" question. That means, there may be some question as to whether the law of Georgia or the law of Maine applies to your situation.

    It will depend upon whether there is a written contract between you and the company governing your employment, where it was entered into, and whether it contains a "choice of law" provision. If there is no written employment contract governing the question, the employment lawyer will undoubtedly want to review any correspondence between you and the Company on the question, any employee manual and/or employment policies that were in effect and your paystubs. Sometimes, paystubs will reflect the fact that you have a certain number of hours accrued and owing to you. In that event, I believe that you MIGHT have a legitimate argument to say that the vacation pay is due as a matter of contract. However, the attorney will undoubtedly want to review the facts of the situation, including the circumstances under which you resigned, to make sure that there is no question of waiver.

    Disclaimer: This answer does not establish an attorney-client relationship or constitute legal advice. It is for general informational purposes only.

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  • Photos taken by a freelance photographer, do they belong to him or to a website he uploaded them to?

    Intellectual property question.....if i take photos of a sporting event and give permission for them to be uploaded to a school website, do the photos still belong to me or do they belong to the website? Can they sell copies of those photos witho...

    Emily’s Answer

    Ques. # 1: "If i take photos of a sporting event and give permission for them to be uploaded to a school website, do the photos still belong to me or do they belong to the website?"

    Ans.: Assuming you did not take them as anyone's "employee," the copyright in the photographs continues to belong to you. You have the right to reproduce, distribute, display, and/or create derivative works of the photographs, etc.

    When you agreed to let the school website upload a digital copy of the photos to its site, you exercised your control over the copyright, but did NOT exhaust your rights. You still own all of the "exclusive rights" that make up the copyright in the photographs..

    Question # 2: Can ... [the web site] sell copies of those photos without my permission?

    Ans.: No, in my opinion, it cannot. If you had taken a photo the old-fashioned way - i.e., that you developed in the darkroom - and gave the website a print of the photo, it could probably have sold THAT PARTICULAR "embodiment" of the photo under what is referred to as the "first sale" doctrine.

    What is the "first sale doctrine," you say? Here is a very, very brief explanation:

    Copyright law makes a distinction between the "copyright" in a photograph and the "material object" in which an work of art is embodied. They can each be owned and transferred separately. So, someone who purchases a lawfully-produced copy of a work that is subject to copyright has the right to re-sell THAT PARTICULAR copy. That same person does not have the right, however, to make additional "copies" and sell or give those away.

    The web site here, in my view, does not have any "copies" that it is entitled to sell or give away. (In other words, its actions - in my view - would not be protected by the 'first sale doctrine" at all.)
    If the web site wants to make and sell copies of your photographs it needs to get your permission. If it doesn't get your permission, it is infringing on your copyright.

    If you are interested in working out an arrangement under which the web site sells copies of your photos, you should consult a copyright attorney about negotiating a iicense agreement on your behalf. If you aren't interested in such an arrangement, you should consult a copyright attorney about the propriety of sending the web site a "cease and desist" letter.

    Disclaimer: This answer does not establish an attorney-client relationship or constitute legal advice. It is for general informational purposes only.

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  • Do I need a lawyer

    I was hired by an individual to illustrate a children's book. I drew the pictures and emailed the images for review. I never heard anything back from them. Now I've found out my images are being used without my written permission. I never signed a...

    Emily’s Answer

    Yes. As the author of the illustrations, you own the copyright in the artwork. Since you didn't enter into a written contract, you can't be said to have transferred the copyright to anyone else. (I am assuming you were not an "employee" and, therefore, did not create the illustrations as work-for-hire.)

    You must register your copyrigbt in the illustrations - or, at least apply to register them - before bringing suit. Consult a copyright attorney immediately so that you can protect your rights. And, in future, you should consult copyright counsel at the outset so that you don't find yourself in this position.

    Disclaimer: This answer does not establish an attorney-client relationship or constitute legal advice. It is for general informational purposes only.

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  • Do I need clearance to use footage of NCAA basketball games in an independent film?

    The shots would be very quick cuts and the teams unrecognizable. Basically, I'd be shooting the main characters watching the games, so the focus isn't on the actual games.

    Emily’s Answer

    Interesting question. As a theoretical matter, I don't see how you could be infringing anyone's copyright by doing that. Nor even anyone's trademark, IF in fact - as you suggest - no one would be able to recognize the players, teams and/or even league involved.

    If you are going to be capturing anyone in the audience besides the actors, however, you should be concerned about THEIR "rights of publicity" and/or privacy rights and should get a full-fledged release and/or agreement from anyone who is recognizable, whether they are famous or not.

    You would also probably be wise, from a practical and/or business perspective to get the NCAA's consent, even though its rights really aren't implicated. They are likely to give their consent.

    Disclaimer: This answer does not establish an attorney-client relationship or constitute legal advice. It is for general informational purposes only.

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  • Copyright---Infringement on one, or the collection?

    I had a previous client take proofs that I sent them and post several of them (different ones) online before they paid the license agreement. I had registered my photos, as a specific collection of this specific individual, prior to the infring...

    Emily’s Answer

    I agree entirely with Attorney Ballard that many more facts need to be known before it can be determined whether you have a viable claim for infringement at all.

    IF you do, then I would analyze the damages question as follows:

    In an infringement action, an infringer is liable for EITHER: (1) the copyright owner's actual damages and any additional profits of the infringer; OR (2) statutory damages.

    You can determine actual damages on a per-infringement basis, regardless of how you originally registered the photographs because copyright attached to each photograph individually. (You might find, however, that the licensing fee you agreed to for the entire collection serves as an upper aggregate limit on those damages.)

    You cannot determine statutory damages the same way because 17 U.S.C. Section 504 (c) (1) effectively precludes it. It requires that statutory damages be determined on a PER-WORK, rather than a per-infringement, basis. It states:

    "Except as provided by clause (2) of this subsection [which I assume does not apply here], the copyright owner may elect, at any time before final judgment … to recover, instead of actual damages and profits, AN AWARD OF STATUTORY DAMAGES FOR ALL INFRINGEMENTS INVOLVED IN THE ACTION, WITH RESPECT TO ANY ONE WORK, FOR WHICH ANY ONE INFRINGER IS LIABLE INDIVIDUALLY … For the purposes of this subsection, ALL THE PARTS OF A COMPILATION OR DERIVATIVE WORK CONSTITUTE ONE WORK."

    17 U.S.C. sec. 504 (c)(1) (emphasis added.)

    So, how you determine statutory damages will very much depend upon how you registered the photographs prior to infringement. If you in fact filed your photographs as a single collection or "compilation," as you suggest, then on its face section 504(c) limits you to one statutory award. On the other hand, if you validly registered them as a GROUP, you may be entitled to multiple awards. [Note: My guess would be that you actually made a Group Registration, but as my colleagues note, no one can know until you meet with counsel and bring all of the relevant evidence.]

    Disclaimer: This answer does not establish an attorney-client relationship or constitute legal advice. It is for general informational purposes only.

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  • As an international public performer can I use any image taken of me (or my band) without copyright violation of photographer?

    Basically, is there an "Implied" copyright giving me the ability to use any photo taken of me no matter who was the photographer? This covers primarily "publicity" such as web sites, adverts (print and web), but may also be contained in DVD (a "pr...

    Emily’s Answer

    As is not infrequently the case on this - and probably many other forums - different attorneys interpret the questions that are asked and fact patterns alluded to, differently. That is the case here. I assume that you were asking about photos that you or the band arranged to have taken of it for "publicity," "advert" and "product insert" purposes. (Otherwise, I'm not sure why you referred to those circumstances.) I also assume you paid the photographers something for their work, but did not have any written agreements with the photographers or observe any formalities. Under these circumstances, I believe the law might recognize a limited, but non-exclusive license. Other lawyers appear to have assumed that you were asking an outlandish question and making an outrageous suggestion - that you could simply appropriate photographs taken by John Q Public, i.e., random members of the audience. Only you know which of us has interpreted your question correctly. If you were asking what I understood you to be asking, then you should retain copyright counsel so that you can lay out all the relevant facts and see whether you in fact have rights in the situation.

    As for me, I guess I am going to continue to interpret folks' narratives as asking reasonable rather than unreasonable questions. Otherwise, why would I bother responding?

    On that note, let me point out that many, very very talented attorneys are spending a great deal of time responding to queries on this forum. (I think those responding to questions in the intellectual property field are particularly able and talented.) I urge those of you posting questions to respect their time and efforts.

    Disclaimer: This answer does not establish an attorney-client relationship or constitute legal advice. It is for general informational purposes only.

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  • I am interested in the scope of photographic copyrights. I know the photo images themselves are sacrosanct.

    I enjoy microscope images. Scanning electron microscope images are something the average person never would have access to. I wish to copy (by freehand sketch) an image and then paint it. But I do not wish to get in legal copyright trouble if t...

    Emily’s Answer

    I actually have a science background - indeed, even training in electron microscopy - and both a love and reverence for the work electron microscopists do. My answer, therefore, was in no way intended to demean or belittle electron microscopists' work.

    The fact that their work is deserving of reverence, however, does not mean that it qualifies for protection under the Copyright Act. That question is a matter of statutory interpretation and Congressional intent. In my view, there are serious grounds to believe that their "photos" may not qualify for protection.

    Indeed, it is precisely because the process of electron microscopy reveals bodies and structures NOT perceptible by the human eye that photos resulting from the process qualify as "discoveries," rather than simply a recordation or artistic rendering of an otherwise perceptible tableau. IF they qualify as "discoveries," they would be excluded from copyright protection by 17 U.S.C. 102(b).

    The fact that tremendous skill, care, focus and hard work are needed to produce viable electronic images does not alter the calculus - unless, of course, the United States Supreme Court were to reverse itself and bring the "sweat of the brow" doctrine back into favor.

    The bottom line is this: I agree with my colleague that rather than litigate the matter, it would be much more practicable for the artist to obtain rights in the images. "Work-for-hire" is not the answer, however - unless, of course, the electron microscopist is going to be a genuine employee. If s/he is not going to be a genuine employee, I don't see how a valid "work-for-hire" agreement can be worked out. Rather, the artist will need an assignment or licensing arrangement.

    Disclaimer: This answer does not itself establish an attorney-client relationship or constitute legal advice. It is for general informational purposes only.

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  • I have been diagnosed w/stage 2 breast cancer. fmla does not apply/less than 50 employees. what recourse do i have if fired?

    no more detail

    Emily’s Answer

    You just MIGHT have certain rights and protections under either the Americans with Disabilities Act ("ADA") and/or a state-law analog of that statute. [NOTE: The ADA applies to employers with at least 15 employees in their employ on each working day of 20 or more calendar weeks in the current or preceding calendar year.] Some states also have laws that forbid discrimination against persons with disabilities. (When they exist, these laws are often found under the "Civil Rights" statutes in a state's complied laws.)

    Under the ADA and any analogous state law, an employer is generally required to afford someone with a disability a "reasonable accommodation," provided it would not impose an "undue hardship" on the employer to do so. A "reasonable accommodation" can take any number of forms - e.g., a part-time schedule, intermittent leave, extended unpaid leave, etc. You need to retain a lawyer to see whether anything can be worked out with your employer and, if so, what.

    Do NOT wait until you are fired, however. Consult an employment lawyer in your state NOW to see whether you can avail yourself of some combination of the ADA, EEOC Guidelines and state anti-discrimination laws to work something out. Good luck.

    Disclaimer: This answer does not establish an attorney-client relationship or constitute legal advice. It is for general informational purposes only.

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