FOREWORD
ACKNOWLEDGMENTS
GUIDE TO USING THIS BOOK
CHAPTER 1 Introduction: The Subject and the Legal
Issues
1. Defining Multimedia
1.1 What Is It?
1.1.1 Software Plus Content
1.1.2 In Digital Form
1.1.3 Stored and Delivered Via Computer Technology
1.1.4 Interactive and Nonlinear
1.2 What Is It Used For?
2. What Law Applies to Multimedia?
2.1 Legal Issues Relating to Multimedia Content
2.1.1 Copyright Law
2.1.2 Trademark and Unfair Competition Law
2.1.3 Right of Publicity
2.1.4 Right of Privacy
2.1.5 Defamation Law
2.1.6 Guilds and Unions
2.2 Legal Issues Relating to Multimedia Technology
2.2.1 Copyright Law
2.2.2 Trade Secret Law
2.2.3 Patent Law
Endnotes
CHAPTER 2 Roadmap to the Law of Multimedia
1. The Law Applicable to Components of Multimedia
1.1 Text
1.2 Databases
1.3 Characters
1.4 Musical Works
1.5 Sound Recordings
1.6 Pictures and Still Images
1.7 Motion Picture and Other Audiovisual Works
1.8 Software and Other Technology
1.9 Completed Multimedia Products
2. Obtaining the Content
2.1 Copyright
2.2 Trademark and Unfair Competition
2.3 Right of Publicity
2.4 Right of Privacy
2.5 Defamation
2.6 Unions
3. Obtaining the Technology
3.1 Copyright
3.2 Trade Secret
3.3 Patent
PART 1
THE LAW OF MULTIMEDIA
CHAPTER 3 Copyright Law
1. Relationship of Copyright to Multimedia
2. What Works Are Protected by Copyright?
2.1 Multimedia Content
2.2 Multimedia Technology
2.3 Multimedia Products
3. How Do You Get a Copyright?
3.1 Automatic Protection
3.2 Requirements to Qualify
4. What Rights Do Copyright Owners Get?
4.1 Reproduction Right
4.2 Adaptation Right
4.3 Distribution Right
4.4 Public Performance Right
4.5 Public Display Right
4.6 Moral Rights
5. Transferring Rights
5.1 Assignments
5.2 Licenses
6. Separation of Rights
7. The Problem of Overlapping Copyrights
8. What Constitutes Infringement?
8.1 Copying
8.2 Adaptations and Modifications
8.3 Distribution
8.4 Public Performance or Display
8.5 Use of Work in Excess of License Rights
9. Remedies for Infringement
9.1 Injunction
9.2 Impoundment of Infringing Copies
9.3 Destruction of Infringing Copies
9.4 Damages
9.5 Costs and Attorneys' Fees
9.6 Criminal Penalties
Endnotes
CHAPTER 4 Trademarks and Unfair Competition
1. What Is a Trademark?
1.1 Forms of Trademarks
1.2 Trademark Distinctiveness or Strength
1.3 Difference Between Trademarks and Trade Names
1.4 Characters as Trademarks
1.5 Titles as Trademarks
1.6 Designs, Shapes and Symbols
2. Who Owns the Trademark?
3. What Is Trademark Infringement?
3.1 Factors Relating to Likelihood of Confusion
3.2 Remedies for Infringement
3.3 "Fair Use" Concepts in Trademark Law
4. How Do Trademark Issues Arise for Multimedia Developers?
4.1 Use of Trademarks as Incidental Creative Elements
4.2 Use of Trademarks in Connection with Promotion of
Products or Services in a Multimedia Work
4.3 Use of Trademarks to Identify a Multimedia Work
4.4 Use of Trademarks in Connection with Services
5. Trademark Licensing
6. Trade Names
7. Unfair Competition
7.1 False Advertising and Related Issues
7.2 Trade Libel
7.3 Passing Off; False Endorsements
7.4 Trade Dress
7.5 Antidilution Laws
Endnotes
CHAPTER 5 Right of Publicity
1. What Is the Right of Publicity?
2. What Does the Right of Publicity Protect?
2.1 Use of Identity
2.2 Commercial Uses
2.3 First Amendment Exception
3. Who Is Protected by the Right of Publicity?
4. Does the Right of Publicity Continue After Death?
5. How Does the Right of Publicity Arise in Multimedia?
6. The Need to Obtain Consent
Endnotes
CHAPTER 6 Right of Privacy
1. What Is the Right of Privacy?
2. What Does the Right of Privacy Protect?
2.1 False Light
2.2 Misappropriation
2.3 Private Facts
2.4 Intrusion
3. Who Is Protected by the Right of Privacy?
4. Does the Right of Privacy Continue After Death?
5. The Right of Privacy and Multimedia
6. The Need to Obtain Consent
Endnotes
CHAPTER 7 Defamation Law
1. What Is Defamation?
1.1 False and Defamatory Communication
1.2 Of and Concerning Plaintiff
1.3 Publication to a Third Party
1.4 Fault
1.5 Injury and Damages
2. Defenses to Defamation
3. Multimedia: Slander Or Libel?
Endnotes
CHAPTER 8 Trade Secret Law
1. Relationship of Trade Secrets to Multimedia
2. What Is a Trade Secret?
3. When Does Information Qualify as a Trade Secret?
3.1 Secrecy Requirement
3.2 Economic Value Requirement
4. What Is the Scope of Trade Secret Protection?
4.1 Idea and Expression
4.2 Confidential Relationship
5. Bases of Liability for Misappropriation
6. Proving Trade Secret Misappropriation
6.1 Direct Evidence
6.2 Circumstantial Evidence
7. Remedies for Misappropriation
7.1 Injunction
7.2 Damages and Profits
7.3 Criminal Penalties
Endnotes
CHAPTER 9 Patent Law
1. What is a Patent?
2. What Multimedia Technology May Be Patented?
3. Requirements to Obtain a Patent
3.1. First Inventor
3.2. Patentable Subject Matter
3.3. Novelty
3.4. Utility
3.5. Nonobviousness
4. Infringement of Patents
5. Conclusion
Endnotes
PART 2
DEVELOPING MULTIMEDIA PRODUCTS
CHAPTER 10 Creating Your Own Content or Technology
1. Employee or Independent Contractor
2. Using Employees
2.1 Ownership of Proprietary Rights
2.2 Confidentiality
2.3 Rights of Privacy and Publicity
3. Using Independent Contractors
3.1 Ownership of Proprietary Rights
3.2 Confidentiality
3.3 Rights of Privacy and Publicity
4. Using Union Talent
Endnotes
CHAPTER 11 Using Preexisting Content Without Permission
1. Content in the Public Domain
1.1 When Is a Work "Public Domain"?
1.1.1 Copyright Has Expired
1.1.2 Copyright Has Been Abandoned
1.1.3 Work Was Created by the Federal Government
1.2 Risks in Using Public Domain Content
2. Fair Use of Copyrighted Content
2.1 The Purpose and Character of the Use
2.2 The Nature of the Copyrighted Work
2.3 The Amount and Substantiality of the Portion Used
2.4 Effect of the Use upon the Potential Market for the
Copyrighted Work
3. De Minimis Copying of Copyrighted Content
3.1 Musical Works
3.2 Motion Pictures
3.3 Photographs
4. Copying Noncopyrightable Aspects of a Work
Endnotes
CHAPTER 12 Obtaining Permission to Use Preexisting
Content
1. Identifying the Content You Want to Use
2. Identifying the Rights for Which Permission is Required
3. Identifying the Owners of the Rights
3.1 Examining the Work Itself
3.2 Trade and Licensing Organizations
3.3 Copyright Searches
3.4 Trademark Searches
3.5 Rights and Permissions Professionals
3.6 Verifying Ownership
4. Forms of Permission
4.1 Assignment
4.2 License
4.3 Release
4.4 Which Form Should You Obtain?
5. Negotiating for Permission
Endnotes
CHAPTER 13 Licensing Content-Basic Issues
CHECKLIST OF BASIC ISSUES
ANALYSIS OF BASIC ISSUES
1. Subject Matter of License
2. Scope of Rights Granted
2.1 What Activities Are Authorized?
2.1.1 Reproduction Right
2.1.2 Adaptation Right
2.1.3 Distribution Right
2.1.4 Public Performance Right
2.1.5 Public Display Right
2.2 What Limitations are Imposed on the Rights Granted?
2.2.1 Specific Title
2.2.2 Media
2.2.3 Territories
2.2.4 Hardware and Software Platforms
2.2.5 Exclusive or Nonexclusive
2.3 The Problem of New Uses and Old Licenses
3. Term
4. Credits
5. Ownership of Content
6. Rights of Other Parties
7. Delivery
8. License Fees and Royalties
9. Warranties
10. Limitation of Liability
11. Indemnification
12. Default
13. Right to Assign
Endnotes
CHAPTER 14 Licensing Text
1. Rights to Be Cleared
1.1 Copyright
1.2 Trademark and Unfair Competition
1.3 Defamation and Right of Privacy
2. Identifying and Finding the Owners of the Rights
3. Special Licensing Issues
Endnotes
CHAPTER 15 Licensing Databases
1. Rights to Be Cleared
1.1 Copyright
1 .1 .1 Databases of Facts.
1.1.2 Databases of Copyrighted Works
1.2 Trademark and Unfair Competition
1.3 Right of Privacy
2. Identifying and Finding the Owners of the Rights
Endnotes
CHAPTER 16 Licensing Characters
1. Rights to Be Cleared
1.1 Copyright
1.2 Trademark
2. Identifying and Finding the Owners of the Rights
Endnotes
CHAPTER 17 Licensing Musical Works
1. Rights to Be Cleared
1.1 Copyright
1.2 Distinguishing Musical Works from Sound Recordings
2. Music Industry Licenses
2.1 Mechanical Licenses
2.2 Synchronization Licenses
2.3 Videogram Licenses
2.4 Public Performance Licenses
2.5 Multimedia Licenses
3. Identifying and Finding the Owners of the Rights
4. Who Controls the License?
Endnotes
CHAPTER 18 Licensing Sound Recordings
1. Rights to Be Cleared
1.1 Copyright
1.1.1 What Is Copyrightable about a Sound Recording?
1.1.2 Distinguishing a Sound Recording from the Underlying
Work
1.1.3 When Was it Created?
1.1.4 Limits on Sound Recording Copyright
1.2 Right of Publicity
1.3 Third-Party Contract Rights
2. Identifying and Finding the Owners of the Rights
3. Licensing from Libraries of Music and Other Sound Recordings
Endnotes
CHAPTER 19 Licensing Photographs and Still Images
1. Rights to Be Cleared
1.1 Copyright
1.2 Right of Publicity
1.3 Right of Privacy
1.4 Defamation
2. Identifying and Finding the Owners of the Rights
3. Licensing Images from Stock Photo Houses
Endnotes
CHAPTER 20 Licensing Motion Pictures and Other Audiovisual
Works
1. Rights to Be Cleared
1.1 Copyright
1.2 Right of Publicity
1.3 Third-Party Contract Rights
2. Difficulties in Licensing Motion Picture Rights
3. Elements to Be Licensed
3.1 The Script
3.2 Preexisting Literary Works
3.3 Performers' Performances
3.4 Music or Soundtrack
3.5 Animation and Special Effects
3.6 Embedded Works of Art, Film Clips, and Stills
4. Identifying and Finding the Owners of the Rights
4.1 Owners of the Copyrights
4.2 Owners of the Reuse Rights
5. Summary of the Licensing Process
6. Stock Footage_a Possible Alternative
Endnotes
CHAPTER 21 The Impact of the Entertainment Industry
Unions
1. Overview of Union Impact on Multimedia Production
1.1 Using Union Talent to Create Content
1.2 Using Preexisting Content Created by Union Members
2. Writers Guild of America (WGA)
2.1 Using Members to Develop Content
2.2 Licensing Content Created by Members
3. Directors Guild of America (DGA)
3.1 Using Members to Develop Content
3.2 Licensing Content Created by Members
4. Screen Actors Guild (SAG)
4.1 Using Members to Develop Content
4.2 Licensing Content Created by Members
5. American Federation of Television and Radio Artists
(AFTRA)
5.1 Using Members to Develop Content
5.2 Licensing Content Created by Members
6. American Federation of Musicians (AF of M)6.1
Using Members to Develop Content
6.2 Licensing Content Created by Members
Endnotes
CHAPTER 22 Using an Independent Developer to Put It
All Together
1. Allocation of Responsibilities
2. Specifications
3. Deliverables
4. Acceptance
5. Warranties
6. Support
7. Charges
8. Ownership
9. Confidentiality
10. Indemnification
11. Default
12. Source Code Access
PART 3
PROTECTING MULTIMEDIA PRODUCTS
CHAPTER 23 Who Owns the Copyright to Your Multimedia
Product?
1. Who Is the Author?
1 .1 Works Created by an Individual
1.2 The Work-for-Hire Doctrine
1.2.1 Employee or Independent Contractor
1.2.2 Works Created by Employees
1.2.3 Works Created by Independent Contractors
2. What Is the Nature of the Work?
2.1 Joint Works
2.1.1 Definition of a Joint Work
2.1.2 Your Rights in a Joint Work
2.2 Compilations and Collective Works
2.2.1 Definition of Compilation and Collective Work
2.2.2 Your Rights in a Compilation
2.3 Derivative Works
2.3.1 Definition of a Derivative Work
2.3.2 Your Rights in a Derivative Work
2.4 Comparison of All Three
3. Works that Contain Unauthorized Material
Endnotes
CHAPTER 24 Perfecting Your Copyright_Notice and Registration
1. Copyright Notice
1.1 Format of the Notice
1.2 What Is Publication?
1.3 Location of the Notice
2. Copyright Registration in General
2.1 Advantages of Registration
2.2 What Does Registration Cover?
2.3 When Should Your Multimedia Work Be Registered?
2.4 How Long Does the Registration Last?
3. Registration Procedure
3.1 What Is Required for Registration?
3.2 Application Form
3.3 Filing Fee
3.4 Deposit
3.5 When Is My Registration Effective?
3.6 What Does the Copyright Office Do with My Application?
3.7 How Long Does It Take to Get a Certificate of Registration?
4. Instructions for Completing Copyright Registration
Form PA
4.1 Filling Out Section 1
4.2 Filling Out Section 2
4.3 Filling Out Section 3
4.4 Filling Out Section 4
4.5 Filling Out Section 5
4.6 Filling Out Section 6
4.7 Filling Out Section 7
4.8 Filling Out Section 8
4.9 Filling Out Section 9
Endnotes
CHAPTER 25 Protecting Your Trademark
1. Selecting a Trademark
1.1 Trademark Distinctiveness or Strength
1.2 Trademark Search
2. Federal Registration of Trademarks
2.1 Advantages of Registration
2.2 Qualification for Registration
2.3 Trademark Notices
3. State Registration of Trademarks
4. Protecting Your Trademark
5. Loss of Trademark_Abandonment
6. Foreign Trademark Issues
7. Trademark Licensing and Merchandising
Endnotes
CHAPTER 26 Protecting Trade Secrets
1. How Trade Secret Protection Can Be Lost
1 .1 Independent Discovery
1.2 Unrestricted Disclosure
1.3 Failure to Keep It Secret
2. Protecting Your Trade Secrets
2.1 Restrict Access to the Information
2.2 Establish an Obligation of Confidentiality
2.2.1 Confidentiality and Employees
2.2.2 Confidentiality and Others
2.3 Provide Notice of Your Trade Secret Claim
3. Detecting Misappropriation
Endnotes
CHAPTER 27 Protecting Your Patent Rights
1. Who Owns the Patent Rights to Your Inventions?
2. Time Limits for Patent Applications
3. Process of Obtaining a Patent
3.1 Who May Apply for a Patent?
3.2 Form and Content of the Patent Application
3.3 Examination by the Patent Office
3.4 Patent Notice
Endnotes
PART 4
MARKETING MULTIMEDIA PRODUCTS
CHAPTER 28 Licensing Your Multimedia Product for Distribution
1. Goals of the Distribution Process
2. Scope of Rights Granted
2.1. What Activities Are Authorized?
2.2. What Limitations Are Imposed on the Rights Granted?
3. Term of the Agreement
4. Fees, Payments, and Bookkeeping
5. Multimedia Product Warranties
5.1 Express Warranties
5.2 Implied Warranties
5.3 Consumer Product Warranties
6. Limiting Liability for Breach of Warranty
6.1 Limiting the Number and Types of Warranties Made
6.2 Limiting the Scope of Warranties
6.3 Exclusive Remedy in Case of Breach
6.4 Maximum Dollar Limitation on Damages
6.5 Exclusion of Consequential Damages
6.6 "No Liability" Clauses
7. Termination
Endnotes
PART 5
CHECKLISTS AND SAMPLE AGREEMENTS
CHAPTER 29 Assignments of Rights
1. Checklist of Issues
2. Sample Assignment
Endnotes
CHAPTER 30 Licenses to Use Content
1. Checklist of Issues
2. Sample Text License
3. Sample Music License
4. Sample Sound Recording License
5. Sample Photograph License
6. Sample Film Clip License Agreement
Endnotes
CHAPTER 31 Releases
1. Checklist of Issues
2. Sample Release
CHAPTER 32 Multimedia Product Development Agreements
1. Checklist of Issues
2. Sample Multimedia Product Development Agreement
Endnote
CHAPTER 33 Confidentiality and Rights Assignment Agreements
1. Sample Employee Agreement
2. Sample Work-for-Hire Consultant Agreement
3. Sample Third-Party Confidentiality Agreement
Endnotes
CHAPTER 34 Distribution Agreements
1. Checklist of Issues
2. Sample Multimedia Product Replication and Distribution
Agreement
3. Sample Multimedia CD-ROM Product License Agreement
Endnotes
PART 6
APPENDICES
CHAPTER 35 Selected Unions and Professional Associations
1. Writers
2. Producers
3. Directors
4. Musicians
5. Performers
6. Cartoonists/Graphic Artists
7. Songwriters
8. Photographers
CHAPTER 36 Clearance Assistance
1. Rights Clearance Agencies
2. Copyright Search Firms
3. Trademark Search Firms
4. Music Licensing Organizations
CHAPTER 37
Glossary / INDEX ~
The Software Publishers Association Legal Guide To Multimedia
