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Robert McEwen, Esq.
Robert McEwen, Esq., Lawyer
Category: Intellectual Property Law
Satisfied Customers: 11557
Experience:  Licensed Texas General Practice Attorney
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I have a nearly completed project (almost ready to seek publication)

Resolved Question:

I have a nearly completed project (almost ready to seek publication) where I provided song titles from one country-western singer (she did not write the songs) to a prisoner (I have taught Creative Writing in prisons for many years) who then created a one-page story. He never had access to the lyrics - just the song title. I then created a photograph that depicts somewhat the narrative that the prisoner created. 40 pix for 40 stories.

Do I have any copyright or trademark issues, and if so, how would I clear them? Thanks, Dave
Submitted: 10 months ago.
Category: Intellectual Property Law
Expert:  Robert McEwen, Esq. replied 10 months ago.

Robert McEwen, Esq. :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

Robert McEwen, Esq. :

You almost certainly don't have any issues with the song titles (as song titles, short phrases, names, etc...) can't be copyrighted. You should not put these titles in any specific order, as that could lead to an issue of copyright infringement (the order of songs on an album is considered to be creative and thus copyright protected). If at all possible, you should still try to get permission from the singer (or holder of the singer's rights) for this purpose.

Robert McEwen, Esq. :

As to the prisoner, to the extent that you create a photograph that represents the copyright of another, that photograph is your own copyright, although the "content" of it is the copyright of another. For instance, a scriptwriter has a copyright in a script, and if someone makes a movie of it without permission, the movie itself would be the copyright of the movie maker, but the story / action / dialogue, etc.. .would be a copyright violation. The scriptwriter would not own that movie, but would still have rights to sue for the depiction of that story in another medium.

Robert McEwen, Esq. :

Now that being said, if you have a license to do this from the prisoners, and a license to publish their stories in a work, then you should not have any issues there, because you would then have legal permission to do so. But you should still seek permission to use the stories in a published work as well as to create a visual depiction of said stories.

Robert McEwen, Esq. :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

Many thanks. 2 Q's seeking elaboration on statements you made:

Robert McEwen, Esq. :

Okay...

Customer:

(1) "You should still try to get permission from the singer (or holder of the singer's rights)" even though you should not have any copyright infringement issues. Q: The stories from song titles are NOT in any order, such as on an LP, so why should I still try to get permission? The singer did not create the songs, and I don't want to have to track down the creator - that would be tiresome.

Robert McEwen, Esq. :

Understood. If they're not in the same order, it would be almost impossible (if not outright impossible) to prove infringement, as titles are not copyrightable. The reason that it would be a good idea is that it could prevent a nasty cease and desist or demnad letter (which they could still send, even though they would not have a case against you in the first place)

Robert McEwen, Esq. :

*demand letter

Customer:

Q: Since I would like to contact the singer, as she may have contacts that might help market the eventual book, would you suggest I still seek her permission or just say that she was inspirational to me (the teacher) and the prisoner has already written the stories (he will get out soon and is a promising movie script writer), and I have already created my original photos.

Robert McEwen, Esq. :

Using the name of the singer could be trademark or "publicity" infringement, so IF you want to use the name of the singer, you should absolutely get permission.

Robert McEwen, Esq. :

(no doubt about that)

Robert McEwen, Esq. :

The name of the songs would be a different matter, in that it would be preferable (but not necessary) to get permission for those.

Customer:

COMMENT: The prisoner and I have already signed agreements that allow each of us to hold copyright for the work we have done.

Robert McEwen, Esq. :

Good to know.

Robert McEwen, Esq. :

That means that if there's no issue between you and the prisoner regarding permission, then the only concern would be the permission to use the name of the singer.

Customer:

Lastly, I have written agreements from those whom I photographed except for 2 individuals. However, even those 2 knew they were posing for this project and gave verbal agreement. Any issue there? Excellent answers from you, and I will so indicate in my Rating. Dave

Robert McEwen, Esq. :

Thank you. There could be. That is, should this become an issue, verbal agreement, if you can prove it (through witnesses, etc...) would suffice. But that might be an issue if they were to take you to court for unauthorized use of their likeness.

Robert McEwen, Esq. :

So long as you have witnesses that they gave permission, you should be fine.

Robert McEwen, Esq. :

Otherwise, you should strive to get written permission from them.

Robert McEwen, Esq., Lawyer
Satisfied Customers: 11557
Experience: Licensed Texas General Practice Attorney
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