Gerdes Law assists producers, publishers, writers, website owners, and bloggers with copyright matters, including chain of title review, copyright comparisons, fair use, parody, public domain, termination, and transfer. Ted Gerdes, principal of Gerdes Law, can also negotiate, draft and record any related agreements for the acquisition, transfer, assignment or licensing of a copyright. While registering a work for federal copyright protection through the U.S. Copyright Office is a relatively simple, straightforward process, copyright infringement litigation is expensive, time-consuming, and can be dangerous to the integrity of a project. Ted Gerdes has a wealth of experience clearing films, documentaries, docudramas, literary works, and websites for copyright issues, helping you minimize risk and avoid future litigation wherever possible.
Fair use allows for the use of copyrighted material without permission from the copyright holder in certain specific situations, generally for reporting news, making commentary or criticism, research, teaching, or scholarship. Whether use of copyrighted material constitutes fair use is determined by a four-part analysis based on the facts in a particular situation. Documentaries and historical literary works often fit this description. Despite the specific elements of this analysis, a determination of fair use is often highly subjective, and the outcome can differ based on the person performing the analysis. If you are considering using part of a copyrighted work without asking for permission or obtaining a license, consult with an experienced attorney who can perform a comprehensive fair use analysis. Most E&O Insurance carriers require a legal opinion by an attorney recognized by them before issuing coverage for third party materials used based upon fair use. Ted Gerdes has been pre-selected to meet this requirement by a majority of the carriers who provide insurance to the entertainment industry.
Chain of Title Searches
A few years ago, a large motion picture company produced a big budget film version of a television series it had produced years ago. This film also generated a big budget lawsuit. Why? No one checked the copyright chain of title. It turned out that, while they had the right to produce the television show, the creator of the original project retained the motion picture rights. This was an expensive lesson to learn and one problem that could have been avoided with a thorough Copyright Chain of Title Search.
Like other property, copyrights can be sold, passed through a will, licensed, or otherwise transferred, making it dangerous to assume that it is clear who owns a particular copyright or that a given property is in the public domain. As illustrated by the lawsuit mentioned above, copyrights are divisible and can be sold in parts. As in the example above, one can sell television rights while keeping the motion picture rights. Additionally, purchasers and distributors typically require proof or a warranty that you have acquired the necessary rights before they will agree to acquire a property. For these reasons, before starting production on a project, it is critical to have an experienced attorney perform a thorough chain of title search to prevent future copyright infringement claims, especially in cases where the project is based on a prior work.
If you think the song "Happy Birthday" is in the public domain, you are wrong. If you use it in a film or television show without permission, you are likely to receive a not so happy call from Warner Chappell Music, owner of this 1935 copyright. As this illustrates, what is or is not public domain is a very tricky issue. It involves understanding the Copyright Act of 1909, with all of its intricate legal terms of art such as "publication" and "notice" as well as its two-tiered term of protection. Some works can include both protected and public domain elements. If you are not sure, call Ted, who can help you.
A particular type of a fair use of a copyrighted work is a parody. In certain instances, one can use portions of a copyrighted work to make fun of the work quoted or copied. Parody can apply to Trademarks as well. Whether a particular use falls within the legal definition of parody can be a very subjective analysis but navigating the rules of what may be acceptable and what may or may not be done is possible. Ted Gerdes has experience guiding writers, producers and others through the maze that is parody.
Issues of copyright infringement often hinge on whether the allegedly infringing work is substantially similar to the prior work. Infringement can often be avoided by comparing third party works to yours or reviewing prior or subsequent versions of a work owned, produced or published by others. If you are unsure whether your property is too similar to an existing work, Ted can compare the two and prepare a legal opinion addressing the matter.
Termination of Rights
Under certain circumstances, authors or the heirs of an author, may terminate copyright licenses made previously. It can be a powerful and important right. This issue can surface in many variations. If you are an author or an author's heir, it is important to understand the rules and mechanics of the termination process to know if and when this option is available. If you are the owner of a work, or works, you will need to analyze what you own to determine whether a copyright may be subject to termination and how to plan for it. For someone about to acquire a work, the same caveat applies. Make sure you understand what rights you are purchasing (or not) before you close the deal. Ted Gerdes can help you sort this out.
Transactions and Recording
In addition to, and in conjunction with, copyright clearance issues, Ted Gerdes can assist with the drafting or review of agreements related to copyright works. Whether they are licenses, options, sale or assignments, Ted is available to assist you in this process. Another legal issue particular to copyrighted works is that in order for an assignment, license, or other transfer to be perfected, it must be recorded with the US Copyright Office, another area in which Ted Gerdes' experience will be useful.
Due Diligence and Asset Management
Whether you are buying or selling a film, television, music, publishing, or other work, performing careful due diligence is vital to ensuring that you can maximize the value of your property. After performing an in-depth due diligence analysis, Ted Gerdes then assist clients with clearing any legal issues that will help maximize the value of their assets and prevent the likelihood of a copyright claim from arising in the future.
Likewise, if you own a catalog of copyright assets, it is important to manage this property in order to maximize the proceeds you can earn from it. Asset management can also be useful for celebrities or their estates, which typically include intellectual property assets and publicity rights.
Ted Gerdes' goal is to provide you with the best possible preventative legal representation and secure all of the necessary use rights before you begin your project. You can then create your property without having to worry about the legal complications. Ted will take the time to work with you, learn about your work, and foster a working relationship so that he can continue to protect your ongoing projects. To schedule a consultation, contact Gerdes Law today.