Vermont Bar Association

55th

Mid-Year Meeting

Seminar Materials

Intellectual Property: Copyright

Faculty: Kathryn Kent, Esq.

Andrew D. Manitsky, Esq.

Patricia Nelson, Esq.

March 22 & 23, 2012

Hilton Burlington, Vermont

COPYRIGHT, CONSISTENCY, AND THE BORDERLESS

ONLINE MARKET

Kathryn A. Kent, Esq.

Kent Law Practice, PLLC

Vermont Bar Association

Mid-Year Conference

MARCH 23, 2012

COPYRIGHT, CONSISTENCY, AND THE BORDERLESS

ONLINE MARKET

I.Creating Consistency in Copyright Law

A) Legislative Reform and Registration Requirement

1) Split among lower courts regarding registration requirements

2) Proposal to amend Copyright Act

i) Current proposal drafted by IP Section of American Bar Association

(see reference 1.1)

ii) Consistency with treatment of “Foreign Works” registration

requirements

B) Application of First Sale Doctrine to Foreign Works in the Second Circuit

1) First Sale Doctrine: Brief review of Supreme Court’s ruling in Costco case.

2) First Sale Doctrine is not applicable to foreign works

i) John Wiley & Sons, Inc., v. Supap Kirtsaeng/dba BLUECHRISTINE99

(2011) (see reference 1.2)

ii) Murtha’s Dissent (see reference 1.3)

C) Note on Second Circuit and Situs of Injury in Copyright Infringement (see

reference 1.4)

D) UPDATE ON RECENT INTERNATIONAL COPYRIGHT ISSUES

VBA Mid-Year Conference Kent Law Practice, PLLC March 23, 2012

II.Distinctions in Copyright Law – Fair Use vs Fair Dealing

A) International efforts towards fair use. UK and Canada

B) Closer look at Canada and Fair Dealing

i) Fair Dealing currently (see reference 2.1)

ii) Proposed C-32/Fair Dealing and Piracy

iii) Pressure from U.S. and movie industry

III.Moral Rights and the Berne Convention

A) History of Moral Rights

1) Basis for Doctrine

2) U.S. Approach to Moral Rights

i) Case law prior to VARA

ii) Current status of Moral Rights in U.S.

B) Berne Convention and Moral Rights

1) Provisions of treaty addressing moral rights (see reference 3.1)

2) Is VARA enough to fulfill requirements of treaty?

IV.References

Ref 1.1

VBA Mid-Year Conference Kent Law Practice, PLLC March 23, 2012

A PROPSAL TO AMEND SECTION 411 (a) of TITLE 17 U.S. CODE

RESOLVED, that 17 U.S.C. 411 (a) be amended to read as follows (insertions are

underlined, deletions are lined out):

(a) Except for an action brought for a violation of the rights of the author under section

106 A(a) and subject to the provisions of subsection (b), no action for infringement of

the copyright in any United States work shall be instituted until preregistration or

registration of the copyright claim has been made in accordance with this title or the

deposit, application, and fee required for registration have been delivered to the

Copyright Office in proper form. In any case, however, where the deposit, application,

and fee required for registration have been delivered to the Copyright Office in proper

form and If registration is refused after an action for infringement has been instituted, the

applicant is entitled to institute maintain the an action for infringement if notice thereof,

with a copy of the complaint, is served on the Register of Copyrights within 60 days after

registration has been refused. If registration has been refused before an action for

infringement has been instituted, the applicant must serve on the Register of Copyrights

notice of the action, with a copy of the complaint, before the later of 60 days after

registration has been refused and 30 days after the action has been instituted. The

Register may, at his or her option, become a party of the action with respect to the issue

of registrability of the copyright claim by entering an appearance within sixty days after

such service, but the Register’s failure to become a party shall not deprive the court of

jurisdiction to determine that issue.

Ref 1.2

John Wiley & Sons, Inc., v. Supap Kirtsaeng/dba BLUECHRISTINE99 (2011)

VBA Mid-Year Conference Kent Law Practice, PLLC March 23, 2012

“To summarize, we hold that (1) the first sale doctrine does not apply to works

manufactured outside the United States; (2) the District Court did not err in declining to

instruct the jury regarding the unsettled state of the first sale doctrine; (3) the District

Court did not err in admitting evidence of Kirtsaeng’s gross revenues.

Accordingly, the judgment of the District Court is AFFIRMED.”

Ref 1.3

J. Garvan Murtha, District Judge, dissenting:

As noted by the majority, the application of the first sale doctrine when a copy is

manufactured outside on the United States is an issue of first impression in this Circuit. The

Supreme Court has recently considered the issue but unfortunately provided no specific

guidance. See Costco Wholesale Corp. v. Omega, S.A., 131 S. Ct. 565 (2010), aff’g by an

equally divided court 541 F.3d 982 (9 Cir. 2008) (holding the first sale doctrine does not applyth

to foreign manufactured copies unless previously imported and sold with the copyright holder’s

authorization). Unlike the majority, I conclude the first sale defense should apply to a copy of a

work that enjoys United States copyright protection wherever manufactured. Accordingly, I

respectfully dissent. (John Wiley & Sons, Inc., v. Supap Kirtsaeng/dba BLUECHRISTINE99

(2011)).

Ref 1.4

SECOND CIRCUIT

Personal Jurisdiction

PENGUIN GROUP (USA), Plaint/appellant v. AMERICAN BUDDHA, Def/Appellee

The court concluded that “[i]n copyright infringement cases involving the

uploading of a copyrighted printed literary work onto the Internet,… the situs of injury

for the purposes of determining long-arm jurisdiction under [the relevant section of New

York’s long-arm-jurisdiction statute is]… the location of the copyright holder,” Penguin

Grp. (USA) Inc. v. Am. Buddha, 16 N.Y.3d 295, 301-2,___ N.E.2d___,___,___

N.Y.S.2d___,___ (2011). In light of this response by the Court of Appeals, the judgement

of the district court is now: Vacated and Remanded. 609 F.3 30, 42 (2 Cir. 2010).rd nd

VBA Mid-Year Conference Kent Law Practice, PLLC March 23, 2012

Ref 2.1

Fair Dealing Factors

The Purpose of the dealing Was the dealing for the research, private study,

criticism, review, or news reporting?The character of the dealing What did the user do with the work?

Was this a one-time use or repeated use of the

work?

Was the work widely distributed?

The Judges concluded that the wide

distribution of multiple copies would not be

considered Fair Dealing.The amount of the dealing How much of the work was copied?

What was the importance of the copied work?Alternatives to the dealing Was it necessary to use this specific work?

Was a “non copyrighted equivalent” available? The nature of the work Was the work confidential?

Is there a public benefit in its distribution?The effect of the dealing on the work Did the use compete with the market of the

original work?

Ref 3.1

The Berne Convention

The Berne Convention (Article 6bis) requires Member countries to grant authors:

(i) the right to claim authorship of the work (sometimes called the right of paternity);

and

(ii) the right to object to any distortion or modification of the work, or other derogatory

action in relation to the work, which would be prejudicial to the author’s honor or

reputation (sometimes called the right to integrity).

These rights are generally known as moral rights of authors. The Convention requires

them to be independent of the author’s economic rights, and to remain with the author

VBA Mid-Year Conference Kent Law Practice, PLLC March 23, 2012

even after he has transferred his economic rights. It is worth noting that moral rights are

only accorded to individual authors. Thus even when, for example, a film producer or a

publisher owns the economic rights in a work, it is only the individual creator who has

moral interests at stake.

VBA Mid-Year Conference Kent Law Practice, PLLC March 23, 2012

COPYRIGHT LICENSE AGREEMENT

Agreement dated 2011, by and between (the “Licensor”) with

an address of , and (the “Licensee”), with an address of

, concerning owned by the Licensor (the “Work”). The parties hereby agree as

follows:

1. GRANT OF RIGHTS

The Licensor grant to the Licensee the exclusive right and license to reproduce, modify,

use, create derivative works based upon, publish, publicly perform, publicly display, transmit,

broadcast, serve, market, distribute, sell, sublicense, and/or otherwise exploit or license the

Work, on, as part of, and throughout all platforms and channels of distribution, by means of any

technology now known or hereafter developed, including without limitation, the Internet, and to

combine the Work with other materials of any kind in all languages throughout the world. The

Licensor agrees to execute such documents as the Licensee may require to perfect such grant of

rights in the Work to the Licensee. All of these grants shall continue for the full term of

copyright in the Work and any renewals or extensions of copyright that may exist now or in the

future. The Licensee may license the Work at its sole expense in the manner and style and at the

price(s) it believes appropriate.

2. ADVANCE

The Licensee shall pay to the Licensor as an advance against royalties under this

Agreement of Dollars ($ ), payable upon the signing of this Agreement by

the parties.

3. ROYALTIES

The Licensee shall pay the Licensor a royalty of Percent ( %) of all Net

Proceeds it derives from the licensing of the Work. Net Proceeds shall be defined as all gross

revenues received by the Licensee less expenses incurred by the Licensee related to the licensing

of the Work and any agents’ fees or commissions payable by the Licensee.

4. ACCOUNTING

A. The Licensee shall send the Licensor statements of account annually, within thirty

(30) days of the end of the calendar year. Each statement of account shall include information on

income received from the licensing of the Work, and royalties owed the Licensor, and each

statement shall be accompanied by payment of any sums due, less any overpayments, or

unearned advances. No statement need be sent by the Licensee to the Licensor for the particular

accounting period if less than two hundred dollars ($200.00) is due the Licensor in such

accounting period.

B. Once during each calendar year, upon written request to the Licensee, the

Licensor or the Licensor’s representative may examine the accounts of the Licensee to the extent

that they relate to the sale or licensing of the Work and for the period beginning two (2) years

prior to the end of the most recent royalty period. If the examination discloses an error in the

Licensor’s favor of more than five percent (5%), the Licensee shall reimburse the Licensor for

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the costs of the examination. Except for any objection(s) specified in a written notice to the

Licensee within two (2) years after a statement of account is rendered, each statement shall be

deemed final and conclusive on the expiration of that two (2) year period, and the Licensee shall

have no further obligation to retain any records or documents relating to that statement.

5. COPYRIGHT

A. The Licensee shall require that its sublicensees place an appropriate copyright

notice in the Licensor’s name, in accordance with the United States Copyright Act and the

Universal Copyright Convention, in all uses of the Work. The Licensee shall have the right, but

not the obligation, to secure copyright protection for the Work outside the United States and to

secure any renewal terms or extensions of copyright under the present or future law of any

country. If the Licensee provides any artwork or other material for the Work or a translation of

the Works, the copyright and all other rights in that material shall belong to the Licensee.

B. In order to assist the Licensee in registering the Work, the Licensor shall provide

such information and assistance in effecting registration as the Licensee may reasonably request.

If the Licensee wishes to record in the Copyright Office a memorandum confirming the

Licensor’s grant under this Agreement, the Licensor shall execute such a memorandum. If the

Licensor fails to do so the Licensee is authorized to execute such a memorandum in the

Licensor’s name as the Licensor’s attorney-in-fact.

C. If the copyright in the Work is infringed, the Licensor and the Licensee may

proceed jointly, subject to the control of Licensee, against the infringer, sharing the expenses and

any recovery equally. Alternatively, either the Licensor or the Licensee may proceed separately,

bearing all the expenses and retaining all of any recovery; if the Licensee proceeds separately,

the Licensor, as the copyright owner, consents to having the action brought in its name. If the

Licensor proceeds separately, the Licensee shall have control and approval of all legal actions

and/or settlements concerning the Licensee. Neither party shall be liable to the other for failing

to proceed against an infringer.

6. WARRANTY

The Licensor represents and warrants as follows: (i) the Licensor has full authority to

make this Agreement and perform the Licensor’s obligations set forth in this Agreement; (ii) the

Licensor is the sole Licensor and proprietor of the Work and the owner of all copyrights in the

Work granted to the Licensee free of liens, encumbrances, and other limitations; (iii) the

publication of the Work will not breach any oral or written agreement or undertaking by the

Licensor; and (iv) except as the Licensor has previously informed the Licensee in writing, the

Licensor is not aware of any actual or threatened claim, demand, action, or proceeding

inconsistent with any of the foregoing representations and warranties.

7. INDEMNITY

Each party shall indemnify and hold the other (including its directors, trustees, officers,

employees and agents, and any assignees or licensees of the Work or any rights in the Work),

harmless from any loss, expense (including reasonable attorneys’ fees), liability, or damage

arising out of a breach of any of that party’s representations and warranties under this

Agreement.

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8. GENERAL PROVISIONS

This Agreement is binding upon and inures to the benefit of the executors, administrators,

heirs, and assigns of the Licensor and upon and to the successors and assigns of the Licensee.

Any notices permitted or required under this Agreement shall be deemed sufficient if sent by

facsimile, registered or certified mail, return receipt requested, postage prepaid, to the addresses

written above or to any address the Licensor or the Licensee subsequently specifies by like

notice. This Agreement represents the entire agreement between the Licensor and the Licensee,

and may not be modified or terminated other than by a writing executed by both the Licensor and

Licensee. If one or more of the provisions contained in this Agreement is held invalid, illegal, or

unenforceable in any respect, the validity, legality, and enforceability of the remaining

provisions shall not in any way be affected or impaired. The waiver of any breach of any

provision of this Agreement, regardless of the number or extent of such waivers, shall not be

construed as a modification of this Agreement or as a waiver of any other breach of that

provision or of any other provision of this Agreement. If, in the opinion of the Licensor, the

Licensee has breached this Agreement, the Licensor shall notify the Licensee in writing of that

breach, which shall not be a ground for any action, claim, or proceeding unless the Licensee has

not substantially cured that breach within sixty (60) days after it receives notice. This

Agreement shall be interpreted according to the laws and in the state and federal courts of the

State of Vermont, and both parties consent to the exclusive personal jurisdiction, and waive any

objections to the venue, of such courts.

IN WITNESS WHEREOF the parties have duly executed this agreement the day and

year first above written.

AGREED:

By: By:

Title: Title:

Date Signed: Date Signed:

CONSULTANT LETTER AGREEMENT

DATE

[Address]

Dear:

Company, Inc. (“Company”), looks forward to working with you on the

project (the “Project”). For good and valuable consideration, the receipt and sufficiency of which

are hereby acknowledged, we agree as follows:

1. Services: You will provide various programming services to Company, including but not

limited to programming code to develop interactive elements for the client’s touchscreen and website

(the “Services”). You and Company shall consult on the various tasks to be accomplished, with

all final decisions to be made by Company.

2. Compensation: In consideration of your satisfactory performance of the Services, Company

shall pay you a fee of . Payment shall be made to you on a bi-weekly

basis upon submission by you of a detailed invoice specifying the Services performed and the time spent

on the Services for the prior two-week period.

3. Term: The term of this Agreement shall remain in effect for (the

“Term”). Company may terminate this Agreement immediately upon notice to you that it no longer

requires you to perform the Services, and Company’s only obligation to you upon such termination, or

termination of this Agreement (or its expiration) for any other reason, is payment for Services that have

been satisfactorily performed up to the date of termination or expiration.

4. Ownership of Work Product.

(a) Regarding any materials delivered to Company, or any contributions made by you, or any

material prepared by you in connection with this Agreement including without limitation any inventions,

and/or original works of authorship whether in text, video, film and/or digital form, including computer

programs, and source code (collectively the “Materials”), it is understood that all such Materials have

been specifically commissioned by Company and that all such Materials shall be considered “work-made-

for-hire” as defined by the United States Copyright Law. Company shall be considered the author of the

Materials for purposes of copyright and shall own all of the rights in and to the Materials and any works

in which they are incorporated. In the event any Materials provided by you are not considered work-

made-for-hire for any reason, you hereby grant, assign, and transfer to Company all right, title and interest

(including, but not limited to, copyright) in and to the Materials, throughout the world in all languages

and in perpetuity to use and exploit all or any part of the Materials in any form or version, by any means

and in any media, whether now known or hereafter developed. If requested by Company, you shall

perform all such acts and sign all documents and certificates which Company may reasonably request in

order to carry out the intent and purposes of this paragraph. You hereby irrevocably waive any and all

“moral rights” that you may have in any of the Materials, including but not limited to any rights to claim

authorship in relation to any of the Materials, or in any works in which they are incorporated. Company

and/or its client shall have the right, but not the obligation, to use your name and likeness in connection

with the advertising, marketing, and promotion of the Materials, or in any works in which they are

incorporated, as applicable.

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(b) Company grants you a non-exclusive, revocable, royalty-free license to reproduce and use

source code developed by you hereunder for other projects, provided, however, that no Confidential

Information (as defined below) of Company and/or its clients is disclosed as a result of such use, and no

features unique to the Project shall be reproduced for any third party.

5. Representations and Warranties. You warrant and represent that you have the right to enter

into this Agreement, and that neither the performance of your Services under this Agreement, nor any

Materials to be furnished under this Agreement, will infringe, misappropriate, or violate any personal or

proprietary right of any third party. You agree to indemnify, defend, and hold harmless Company and its

client, and their respective officers, directors, employees, distributors, agents, customers, and licensees

from and against any liability, damage, or expenses (including without limitation attorneys’ reasonable

fees) based on the breach of any representation, warranty, or obligation contained in this Agreement.

6. Non-Competition. You agree that during the Term, and for a period of one (1) year after the

termination or expiration of this Agreement, you shall not, without Company’s prior written consent,

directly or indirectly, as a principal, employee, consultant, partner, contractor, or stockholder of, or in any

other capacity with, any individual, entity, or business enterprise, (a) engage in direct or indirect

competition with Company, (b) solicit any employee and/or client or customer of Company, (c) consult

for, become employed by, or work with any customer or client of Company, or (d) develop any projects,

products, or services competitive with those of Company.

7. Confidentiality. You agree not to use or disclose (except as required by law) to any third party any of

Company’s Confidential Information. “Confidential Information” means any and all information

received by you at any time about the business or finances of Company and/or its client, including but not

limited to all information about Company’s products or services, business plans, client names, supplier

names, projections, existing and proposed projects or investments, marketing, and trade secrets, but

excluding information that Company deliberately and voluntarily make publicly available.

8. Independent Contractor; Payment of Taxes. You shall be deemed an independent contractor,

and are solely responsible for, and will pay when due, any fees and/or dues, or contributions due to any

unions or guilds, all estimated tax, withholding, social security, disability, unemployment, self

employment, and other taxes imposed on you or your employees or subcontractors (if any) by the U.S.

government, or any state or local tax jurisdiction. You shall be solely responsible for payment of

compensation and other costs related to the employment of its employees and subcontractors, if any.

9. Severability. If any provision of this Agreement is deemed by any tribunal of competent

jurisdiction to be overly broad in any respect or otherwise unenforceable, it shall be modified as necessary

to make it enforceable, and shall be enforced accordingly. In the event that, notwithstanding the

foregoing, a tribunal of competent jurisdiction refuses to enforce any of the provisions contained in this

Agreement, then the unenforceable provision shall be deemed eliminated from this Agreement for the

purpose of such enforcement to the extent necessary to permit the remaining provisions hereof to be

enforced.

10. Specific Performance. You recognize that any breach of the terms of this Agreement may give

rise to irreparable harm for which money damages would not be an adequate remedy, and accordingly, we

agree that, in addition to all other remedies available to it, Company shall be entitled to enforce the terms

of this Agreement by an injunction or a decree of specific performance, without posting bond therefor.

11. General Provisions. All notices required or permitted hereunder shall be in writing and delivered

by hand or sent by facsimile transmission confirmed by first class mail to the addresses set forth above;

shall be deemed effective upon hand delivery or the earlier of receipt of the facsimile copy or the

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confirmation copy thereof. This Agreement may not be assigned or delegated by you without Company’s

prior written consent. You and Company shall be independent contractors, and shall not be partners or

joint venturers of each other nor shall you be an agent, officer or employee of Company. Neither party

has the right, power or authority, express or implied, to bind the other party or otherwise create any duty

or obligation on the part of the other party, express or implied, nor shall either party hold you out as

having any such status, right, power or authority. This Agreement shall be governed by the laws and the

state and federal courts of the State of Vermont. You and Company each hereby consent to the exclusive

personal jurisdiction of, and irrevocably waive any objections to the venue, of such courts. No delay or

omission by Company in exercising any right under this Agreement shall operate as a waiver of that, or

any other right. A waiver or consent given by Company on any one occasion shall be effective only in

that instance and shall not be construed as a bar or waiver of any right on any other occasion. This

Agreement sets forth our entire agreement, and supersedes all prior negotiations, understandings, and

agreements, oral or written. This Agreement may be modified only by an instrument in writing signed by

the party sought to be bound by such modification. Paragraphs 4, 5, 6, 7, 8, 9, 10, and 11 shall survive

the expiration or termination of this Agreement.

If the foregoing correctly sets forth our understanding, please so indicate by signing the Agreement where

indicated below. I look forward to working with you.

Sincerely,

AGREED TO AND ACCEPTED: AGREED TO AND ACCEPTED:

__________________________ ___________________________________

.

By:

Date Signed: Date Signed:

SSN/Tax Identification Number

ARTWORK LICENSE

Agreement dated , 2011, by and between (“Artist”), and

(“Company”), with respect to artwork created by Artist as set forth on Exhibit A attached (the

“Artwork”), for use in a work to be published by Company, tentatively entitled (the

“Work”). For good and valuable considerations, the receipt and sufficiency of which are hereby

acknowledged, the parties agree as follows:

1. Grant Of Rights. Artist grants Company the non-exclusive, irrevocable, right and license to use,

reproduce, print, publish, publicly display, transmit, market, sell, distribute, and sublicense the Artwork,

in connection with the Work, and related promotion, marketing, and advertising of the Work, by means of

any technology now known or hereafter developed, in all languages throughout the world. All of these

grants shall continue for the full term of copyright in the Work and any renewals or extensions of

copyright that may exist now or in the future.

2. Compensation. Company shall pay Artist a fee in the amount of Dollars ($_

), payable upon delivery of the Artwork in form acceptable to Company in its sole discretion.

3. Credit. Company shall provide Artist with appropriate credit in the Work, at Company’s

discretion.

4. Warranty and Indemnity. Artist represents and warrants that he has the right to enter into this

Agreement, and that the Artwork shall not infringe upon or violate any copyright, or any other personal or

proprietary right of any kind of any third party. Artist indemnifies Company against any and all losses,

expenses (including attorney’s reasonable fees), or damages arising out of any proceeding alleging a

violation of Artist’s warranties and representations hereunder.

5. General Provisions. This Agreement is binding upon and inures to the benefit of the executors,

administrators, heirs, and assigns of the Artist and upon and to the successors and assigns of the

Company. Any notices permitted or required under this Agreement shall be deemed sufficient if sent by

facsimile, registered or certified mail, return receipt requested, postage prepaid, to the addresses written

above or to any address the parties subsequently specify by like notice. This Agreement represents the

entire agreement between parties, and may not be modified or terminated other than by a writing executed

by both parties. If one or more of the provisions contained in this Agreement is held invalid, illegal, or

unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions shall

not in any way be affected or impaired. The waiver of any breach of any provision of this Agreement,

regardless of the number or extent of such waivers, shall not be construed as a modification of this

Agreement or as a waiver of any other breach of that provision or of any other provision of this

Agreement. If, in the opinion of either party, the other has breached this Agreement, the such party shall

notify the other in writing of that breach, which shall not be a ground for any action, claim, or proceeding

unless the alleged breach has not been substantially cured within sixty (60) days after receipt of notice.

This Agreement shall be interpreted according to the laws and in the state and federal courts of the State

of Vermont, and both parties consent to the exclusive personal jurisdiction, and waive any objections to

the venue, of such courts.

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IN WITNESS WHEREOF the parties have duly executed this Agreement the day and year first

above written.

[COMPANY]

By:

Title: SSN:

Date Signed: Date Signed:

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EXHIBIT A

ARTWORK DESCRIPTION

Date: Job Number: Job Description:

Campaign Photographer:

RELEASE FOR PHOTOGRAPHERS In consideration for sessions fees at a rate of $ , I the photographer listed above, hereby authorize Company, Inc., its nominees (including its affiliates, authorized licensees and authorized users) and its and their successors and assigns (“Company”) and those acting with its authority and those for whom it is acting (all hereinafter referred to as the “authorized”), without restriction, to publish and use exclusively for all purposes whatsoever, at the authorized’s sole discretion, during the Usage Term (as defined below), including but not limited to advertising, sales promotion and packaging (including point of purchase materials and promotional merchandise for sale) the work product (the “Photographs”) resulting from these sessions, in whole or in part, whether in original or modified form and whether alone or in conjunction with other photographs, sketches, artwork of any sort, text matter, films, video, outdoor advertising and other forms of media, all forms of digital communications and on-line services (including Internet and work wide web) as the authorized may determine without limitation as to frequency or territory. I acknowledge that Company will have the right to register the copyrights for, as well as to affix a copyright notice in its name, to any advertisement, film or permitted use hereunder, including collateral, in or within which any of the Photographs appear. Notwithstanding the foregoing, during the Usage Term and thereafter, I may only utilize the Photographs for the purpose of private or public showings of my work. Such showings may be of my work alone or of my work together with other similar work by others. During the Usage Term, I may sell original prints of the Photographs, but only for private, non-commercial use. After the Usage Term expires, I will not otherwise use or authorize use of such Photographs for commercial or non-commercial purposes (defined as, without limitation, posters, bookcovers, t-shirts, calendars, and/or anything to promote other designers or their products.) without Company’s written permission, which will not be unreasonably withheld. I understand that I (and not Company) will be responsible (including any costs) for obtaining any necessary clearances or permissions in connection with my use of the Photographs as permitted herein, including any assignment of copyright, and/or model releases. The period of such use (the “Usage Term”) shall only be for a period of twelve (12) months for all media from the date the work product is first utilized (sometimes referred to as the “insertion date” or the date of first publication) except the Usage Term shall be unlimited for historical, documentary or archival purposes and the Usage Term may be extended for automatic successive twelve (12) month periods by Company (not to exceed a period of three (3) years from the insertion date upon the payment of an additional fee in the amount of $(TBD) for each such twelve (12) month period. From time to time, Company approves the use of advertising materials within and in connection with cinema, film and other similar vehicles and promotions thereof. This release shall also be deemed permission to grant others the right to use the work product which is the subject hereof as indicated above. The term of this authorization shall commence on the date hereof and be without limitation. SIGNED: NAME (PRINT): ADDRESS: CITY AND STATE: DATE:

MUSIC BUY-OUT AGREEMENT

Date:

Producer:

Producer Address:

Contractor:

Contractor Address:

Client:

Master

Recording/Composition:

Territory: Worldwide

Term: In perpetuity

Media: Any and all media as further set forth in Section 1 below

Fee: $

1. GRANT OF RIGHTS Subject to the provisions of this Agreement, Contractor hereby grants and assigns to Producer on

behalf of Client all rights, title and interest in and to the Master Recording/Composition

(including without limitation 100% ownership of all rights of copyright in the Master

Recording/Composition) and all rights to record, rerecord, adapt, alter, remix, transcribe,

broadcast, synchronize, telecast, sub-license, and otherwise use in perpetuity the Master

Recording/Composition in whole or in part in all forms and media now known or hereafter

developed, including without limitation television (including broadcast and cable), the Internet,

electronic media (including, but not limited to, mobile phone marketing and mobile phone

applications) and in all forms of industrial media (including but not limited to, in-store use, trade

and/or sales shows, sponsorship events, internal meetings, conventions, retail dealers, apps,

cinema/theaters, in-flights, on hold music, and other places of public assembly) in the soundtrack

of and in timed-relation with Client’s promotional campaign(s), and for any other purpose, at

Producer and Client’s sole discretion.

2. WARRANTIES AND REPRESENTATIONS Contractor warrants and represents that (i) it has the legal right to enter into the Agreement with

respect to the Master Recording/Composition, (ii) the Master Recording/Composition is an

original work; (iii) Contractor has not heretofore granted, any rights in or to the Master

Recording/Composition which will conflict with the assignment and rights granted herein; (iv)

there shall be no further payments of any kind required of Producer or Client to Contractor

and/or to any third party in connection with the Master Recording/Composition (including

without limitation to any performing rights society such as ASCAP, BMI, or SESAC, or to any

unions or guilds); (v) the exercise by Producer and/or Client of the rights granted hereunder in

connection with the Master Recording/Composition does not and will not infringe upon the

copyright or any other rights of any kind of any third party, including without limitation any

rights of privacy or publicity; and (vi) Contractor’s performance hereunder will not breach or

violate any contractual commitments to any third party, including record labels, or violate any

legal duty to any third party. Contractor will indemnify and hold Producer and/or Client and

their respective parents, subsidiaries, affiliates, officers, directors, employees, dealers,

distributors, successors, assigns, licensees and any and all persons who make use of the Master

Recording/Composition as authorized hereunder with the consent of Producer and/or Client

(collectively “Indemnitees”) harmless from any third party liabilities, damages, costs, charges,

recoveries, judgment, penalties, expenses or losses of whatsoever kind or nature, including

reasonable attorney’s fees and disbursements, which may be obtained against, imposed upon or

suffered by the Indemnitees or any of them by reason of any alleged or actual breach by

Contractor of the foregoing warranties and representations, or any infringement or claim of

infringement of copyright, or violation or claim of violation of any other rights resulting from

any use made by the Indemnitees of the Master Recording/Composition, provided that Producer

and/or Client will provide prompt written notice of any such claim for which indemnification

may be sought and Contractor has the full right to settle or defend such claim.

3. NO WAIVER Failure of either party to exercise rights granted upon the occurrence of any of the contingencies

set forth in this Agreement shall not in any event constitute a waiver of such rights upon the

recurrence of any such contingencies.

4. ENTIRE AGREEMENT This document is a complete and exclusive statement of the terms of this Agreement and

supersedes all prior understandings between parties and may not be changed orally but only in

writing signed by both parties hereto.

5. GOVERNING LAW This Agreement shall be deemed to have been made in the State of Vermont and its validity,

construction and effect shall be governed by the laws of the State of Vermont applicable to

agreements made and wholly performed therein.

Accepted and Agreed:

[CONTRACTOR] [PRODUCER]

By: _________________________ By: _________________________

Printed Name: ________________ Printed Name: _________________

Date: _______________________ Date: ________________________

Consent and Release Form

For good and valuable consideration, receipt of which is acknowledged, I,

__________________________________, grant Company, Inc., and its licensees, agents,

designees, and assigns (collectively “Company”) permission to use, reproduce, edit, exhibit, project,

display, copyright, publish and otherwise exploit in any manner now known or hereafter created

throughout the world in perpetuity, my name and/or likeness and/or photographic images and/or

moving pictures and/or videotaped images and/or written materials of or about me, with or without

my voice or in which I may be included in whole or in part (collectively the “Materials”) provided

by me or others and/or photographed, taped, videotaped and/or recorded in connection with the

project tentatively entitled (the “Project”).

I waive any right that I may have to inspect and/or approve the finished Project or the

editorial, advertising, or printed copy that may be used in connection therewith, and any right that I

may have to control the use of the Project. I understand that I will not receive any compensation for

any publication, use, or broadcast of the Project in any manner.

I hereby release, discharge and agree to save Company and its licensees, agents, designees,

and assigns from any liability by virtue of any blurring, distortion, alteration, optical illusion or use

in composite form, whether intentional or otherwise, that may occur or be produced in the making,

processing, duplication, projecting or displaying of the Materials, and from liability for violation of

any personal or proprietary right including but not limited to copyright, defamation, right of privacy

and right of publicity that I may have in connection with the Materials and with their use in the

Project. I agree to waive any right to seek injunctive or any other equitable relief with respect to the

Project, and any right to terminate any rights granted hereunder.

AGREED AND ACCEPTED this _______ of ____________, 2011.

Signed:____________________________________________________

Address:

Date of Birth:________________________

(If you are under 18 years old parent to complete and sign the following):

I, the undersigned, hereby warrant that I am the parent or legal guardian of ______________, a minor,

and have full authority to authorize and execute the above Consent and Release Agreement which I

have read and approved. I hereby irrevocably release, discharge and hold harmless Company against

any claim which may arise from __________’s attempt to disaffirm or disavow this Consent and

Release Agreement.

________________________ Date: _________________________

Signature of Parent

Print name and address:__________________________ Telephone:_____________________

Copyright and Permissions FAQ Patricia Nelson, Esq. pnelson@batt-tech.com

1. What is protected by copyright?

Copyright protects original works of authorship, such as books and

textual content, music, motion pictures, plays, choreographic works, painting,

sculpture, architectural works, and sound recordings. The categories of work

protected are viewed broadly. For example, computer source code is considered

a “literary work”, and therefore protected under copyright law.

Copyright protection subsists as soon as a work of authorship is created

in a fixed form (such as written on paper, stored on a computer, or recorded on

tape or film). The law does not require the copyright owner to display any

notice of copyright (although there are benefits to doing so). As long as a work

is fixed, therefore, and contains copyrightable expression (it has to contain some

originality – works that are merely alphabetical listings of facts like the

telephone book, for example, are not protected by copyright), it is likely to be

protected, even if a notice of such protection is not displayed. Note that if the

work is not “fixed”, it is not protected. (A speech, for example, which is not

written down or recorded in some manner, is not protected by copyright.)

Copyright law grants the owner of a copyrighted work the exclusive

right to:

- copy the work;

- prepare derivative works based on the copyrighted work;

- distribute copies of the work publicly; and

- perform or display the work publicly.

Note that “intent” to infringe is not a prerequisite for a finding of

copyright infringement. You may be held liable for copying, even if you

believed in good faith that a work was not protected by copyright.

2. How long does copyright endure?

Under the current copyright law, for works created on or after January

1, 1978, copyright lasts for the life of the author plus seventy years. For works

made for hire and anonymous works, the duration is 95 years from publication,

or 120 years from creation, which ever is shorter.

For works created and published prior to January 1, 1978, the law is

somewhat more complicated. Prior to a change in copyright law, a work had a

term of protection of 28 years, and could then be renewed for an additional

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period. Generally, assuming that the copyright was renewed, the copyright on

works published prior to 1978, generally has a duration of 95 years, although

there are exceptions.

3. What is a “work made for hire”?

A work made for hire is a work prepared by an employee as part of the

employee’s official duties, or a work specially ordered or commissioned for use

as one or more of the following:

1. a contribution to a collective work

2. a part of a motion picture or other audiovisual work;

3. a translation;

4. a supplementary work

5. a compilation;

6. an instructional text;

7. a test;

8. answer material for a test;

9. an atlas.

If not prepared within the scope of employment, three prerequisites

must be met:

First, the work must be specially ordered or commissioned.

Second, the work must be ordered or commissioned for use as one of

the nine specifically enumerated categories mentioned above.

Third, the parties must expressly agree in a written instrument signed

by both that the work shall be considered a work made for hire. As an extra

precaution, the agreement should be signed prior to the commencement of the

work.

If a work meets the work made for hire criteria, the organization or

individual commissioning the work is considered the author, and has all the

exclusive rights granted by copyright law.

4. If I contact the owner of a copyrighted work for permission to use

some material from the work, and the person does not respond can I

assume I can use the material?

No. The owner has no obligation to answer you. If the owner chooses

not to respond, that does not mean that anyone can then just take the owner’s

property. It is important to remember that even though the content is

“intellectual property”, it is “property” nonetheless, much in the same way as a

car is someone’s property. If you ask someone to use their car, and they do not

answer, that does not mean you can then just jump in and drive off.

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5. There is an issue of a magazine which contains an article written by

a famous economist, which I’d like to reproduce on my website. Do I just

ask the publisher for permission for this article?

It depends on the rights the magazine has to the article. Magazines,

newspapers, anthologies, and similar works are considered “compilations”. A

compilation is a work that is created by putting together a particular grouping of

other works in a unique way such that it constitutes an original work of

authorship. The creator of the compilation will hold the copyright in the

compilation, but may not have rights to the individual works. Check to see if

there is a copyright notice on the individual article. With anthologies, often the

publisher will have a page listing the various credit information for the chapters,

which indicates that they were used by permission. You will likely need to

obtain permission from the original source.

6. How do I determine if the person granting me permission to use a

copyrighted work is the person who has the rights to that work?

If you are dealing with a trusted source, such as a major publisher, or

reputable stock photo agency, you can generally feel safe. As back-up, the

license agreement between you and the person or organization granting

permission should contain a warranty that the source has the right to grant the

particular license.

7. If there is a picture on a copyrighted site, but the picture itself is

from a public source, can I take the picture from the copyrighted source or

do I have to go back to the original source?

The answer to this question depends on the circumstances, and requires

a case-by case analysis. If the picture or work itself is in the public domain, and

there has been nothing further added to it that is protectible by copyright (such

as additional illustrations, or a new English-language translation of a work that

was written centuries ago in another language), then yes, in general you may

take it from the copyrighted source. The copyrighted source may be a book, a

website, or a report by a research organization containing data provided by the

U.S. Government. For example, if you went to Amazon.com’s website (which

is protected by copyright), and they had posted the complete text of Moby Dick

in its original form (i.e., no added illustrations, annotations, etc.; just exactly as

Melville wrote it), you could print it out and distribute copies. If, however, the

text was html-coded in a special way, and you copied the entire text and

embedded code (which is likely to be protected by copyright) added by

Amazon.com, and placed it on your website, then you could be liable for

infringing the copyright-protected aspects of the work.

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8. If I am going to use quotations, pictures, covers, etc. from

published copyrighted material, what amount can I use under fair use

without obtaining copyright permission?

There is no set rule as to how much copyrighted material one can use

under the doctrine of “fair use”. Fair use is a limitation on the exclusive rights

of the copyright owner. Technically, fair use is a defense against a claim of

copyright infringement. It is not a right or privilege held by the general public

to use copyrighted material without seeking permission from the copyright

holder. The fair use concept was originally developed by the courts to help

balance the rights of the copyright owner, with the public interest of the free

spread of knowledge and information. In determining whether or not use of a

copyrighted work is fair, courts consider various factors, including:

1. The purpose and character of the use, including whether the use is

for commercial or for non-profit, educational purposes;

2. The nature of the copyrighted work. (Is it a highly creative work, or

a factual work?)

3. The amount and substantiality of the portion of the work used in

relation to the work as a whole.

4. The effect of the use upon the potential market for, or value of, the

copyrighted work.

Whether or not a use of a copyrighted work is “fair” really depends on

the circumstances. For example, even if the amount borrowed from a

copyrighted work is relatively small, if this borrowed portion is to become a

prominent feature in the new work, the use may not be fair. Similarly, if the

amount borrowed is relatively small, but constitutes the most important feature

of the copyrighted work, the use is probably not fair. Because “fair use” is so

uncertain, it should be used sparingly, and each case must be analyzed based on

the specific circumstances. Also, even if it is used, the original work should be

attributed as to the source.

9. I have photographs of people from many years ago. Can I assume

that I no longer need releases? Can I use more recent photographs of

people/children without releases if I have rights to the photographs?

Not necessarily, to both questions. You may still need releases for the

photos of people from many years ago because the subjects may still have a

“right of privacy” (which legal scholars have defined as the “right to be let

alone”), or a “right of publicity” (which, if an individual’s name or likeness has

commercial value, protects the individual’s exclusive right to control the

5

exploitation of that name or likeness for commercial purposes). The right of

privacy consists of four categories:

1. public disclosure of private and embarrassing facts (the publication

of material that although true, is offensive and of no legitimate concern

to the public);

2. false light (the publication of material that creates a false and

offensive impression about the individual, even if the material is

technically true);

3. intrusion into seclusion (offensively entering or observing areas, or

acquiring secret or private things by furtive means or actual trespass,

usually for news gathering purposes); and

4. misappropriation of one’s name or likeness for commercial

advantage (the use of an individual’s name or likeness without consent

for advertising or commercial purposes).

If the photographs constitute a matter which is of legitimate public

interest, or if they were taken in a public space (publicizing something that

occurs in public view, such as on a street, at a sporting event, or in an airport

will not generally give rise to liability for invasion of privacy) you may not need

releases for news use. If use of the photographs is primarily for commercial

purposes, such as for advertising, a release is recommended, or statutorily

mandated. The right of privacy does not survive the death of the individual

(although the right of publicity does). If any of the subjects of the photographs

have died, and their name and likeness have no commercial value (e.g, Elvis

Presley or Marilyn Monroe), you may not need to obtain a release.

Even if you have a license to reproduce the photographs you may still

need releases from the individuals portrayed in the photographs. If your license

from the photographer or photo agency states that the licensor warrants that it

obtained releases to use the photographs in any manner and media (and to sub-

license these rights), and indemnifies you against any claims of violation of the

subject’s right to privacy, then you may not need to pursue the matter further.

If, however, there is no such language, and the use of the photographs does not

serve a legitimate public interest, publicize something that occurred in a public

place, and the subject is alive, then releases are likely needed.

10. Corporations and other entities sent me pictures for use in a

particular project. Can I use them again for a new project?

Your ability to use pictures sent by corporations and state agencies

depends on the original understanding between you and the copyright owners

when the pictures were provided. Do you have a written license specifying the

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scope of use? If not, was there an understanding that you could use the pictures

in any way, and for as long as, you wanted? If, when you initially requested the

pictures, you gave the copyright owners the impression that you would only use

the pictures for one particular purpose, then you should contact the copyright

owners again. If, however, they provided them to you with the understanding

that you were free to use them in any manner you chose, including allowing use

by third parties, then there is not a great risk in using them again.

11. Are all works from governmental agencies available for use

without obtaining permission?

Not necessarily. Works created by the U. S. Government are in the

public domain. Works from state agencies are not, and you will need to obtain a

license from these state agencies for any material protected by copyright. Also,

sometimes the U.S. Government licenses works from others, and the licensor

may retain proprietary rights.

12. What kind of document do I have to get from a copyright owner

for permission to use their copyrighted work?

It is advisable to get some form of written license or release. It does

not have to be long or elaborate, but should specify the rights granted, and

contain some warranties by the licensor that it has the rights to the work.

13. If I have obtained rights to use a video clip on my website, can I

create still images from the video?

The answer to this question depends on the scope of the grant of rights

licensed to you by the copyright owner of the video. If you have the right to

create a derivative work, this is likely to be acceptable. (A derivative work is a

work that transforms, or recasts the original work in some way. A motion

picture based on a novel, a colorized version of a black and white motion

picture, and an animated version of a comic strip are examples of derivative

works. Still images created from a video also constitute derivative works.) If

you do not have specific permission from the copyright owner to create

derivative works, then you should obtain permission before creating the still

images from the videos.

14. If I have an agreement with a content provider to provide its

content for distribution on my website, am I liable if its content infringes

someone else’s copyright?

You may be liable as a “vicarious” infringer. Even if not engaging

directly in infringing activities, a person or organization may be liable for

copyright infringement if it has the right and ability to supervise the activities,

combined with a direct financial interest in those activities. Your license

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agreement with the content provider should provide language clearly stating that

it is solely responsible for the content, and should also have language

indemnifying you.

15. Is a photograph/image of non-copyrighted material copyrighted?

For example, given that the Mona Lisa is in the public domain, can I use

any image of the Mona Lisa that I find on the web?

Although one recent case suggested that a photograph of a public

domain work cannot be protected by copyright, the law is still unclear on this

point. To be safe, it is best to obtain the image from a reputable stock photo

agency.

16. If I have been given rights to use a copyrighted work, can I assume

that I can make changes or edit the work any way I wish?

This depends on the scope of the grant of rights. Some licenses will

allow you to edit, modify, or create derivative works; others will strictly prohibit

any modifications. If changes may be required, you should make sure your

license allows you to do so.