Questions Answered by Mark A. Baker

Q: An illustrator is interested in purchasing a license to my photograph for reference purposes, how does this work?

1 Answer | Asked in Contracts, Copyright and Intellectual Property for North Carolina on
Answered on Mar 27, 2018
Mark A. Baker's answer
As the creator of the work, and therefore the owner of the copyright (assuming you have not otherwise transferred the copyright or made the work as a work-for-hire), you have the exclusive right, among other rights, to create derivative works. An illustrator who creates illustrations from your original (copyrighted) work is creating a derivative work (subject to issues regarding "fair use," which I will not discuss here), and it's up to you whether, and under what terms, to permit this use....

Q: copyright a song - to record the song on a cassette, mail it to yourself, make sure it's never opened or seal broken.

1 Answer | Asked in Copyright for Tennessee on
Answered on Mar 13, 2018
Mark A. Baker's answer
You have described a "poor man's copyright." It's worth about as much as the piece of paper it's written on, but not after you add postage. Under U.S. law, a copyright comes into existence the moment the original idea is "fixed in a tangible medium" - when you record the original song on a cassette tape, you have fixed it in a tangible medium. However, under U.S. law, the only way to enforce the copyright is through the federal courts, and that requires registration of the copyright with the...

Q: I filed for Ch. 7 in the middle of a month. At the beginning of that month, I got a $2000/year raise, but filed

2 Answers | Asked in Bankruptcy for Alabama on
Answered on Feb 7, 2018
Mark A. Baker's answer
I agree with your attorney's assessment, assuming, of course, that you make this disclosure at the 341 meeting. Following the meeting, there may be other matters to address by amendment, so it makes sense to address them all in a single amendment.

Q: I live in Alabama and I was wondering if you can file on a car only and not other things.

2 Answers | Asked in Bankruptcy for Alabama on
Answered on Feb 7, 2018
Mark A. Baker's answer
The answer to your question requires analysis of a number of variables that you haven't addressed, to determine whether you are eligible for chapter 7 relief (a so-called "fresh start," with discharge of all eligible debts) or would otherwise be required to file a chapter 13 case (which allows you to cure your contractual defaults and repay your creditors over 3-5 years).

Regardless of the type bankruptcy for which you are eligible, you must schedule ALL of your debts, assets and...

Q: Does anyone know if the skit "Who on First" by Abbott & Costello is public domain or owned by their relatives.

1 Answer | Asked in Copyright for Florida on
Answered on Feb 5, 2018
Mark A. Baker's answer
The copyright has PROBABLY fallen into the public domain, based upon case law. In a recent lawsuit decided by the Second Circuit Court of Appeals, a playwright had used about 30 seconds of the "Who's On First?" skit in a Broadway show, "Hand of God." The heirs of Bud Abbott and Lou Costello, together with the movie studio, TCA, which claimed copyright to the film, filed suit claiming copyright infringement.

The Second Circuit found that the usage was a not "fair use," but that the...

Q: Is it illegal to use a picture of bamm bamm from the Flintstones as part of a logo for a music recording label?

1 Answer | Asked in Copyright on
Answered on Jan 19, 2018
Mark A. Baker's answer
Unless you have permission or a license to use a picture of Bamm-Bamm as part of your logo, it is likely that your unauthorized use will infringe upon the owner's (probably Hanna-Barbera or ABC) trademark or other rights and expose you to legal liability.

Q: Can I legally sell a resource to accompany a novel study on an online store and refer to the actual title of the book?

1 Answer | Asked in Copyright and Intellectual Property for Alabama on
Answered on Jan 11, 2018
Mark A. Baker's answer
I'm not sure I understand your question. Please explain a little more. Thanks,

Mark A. Baker

Q: Can a brand name be trademarked by someone else if it has been registered as a legal entity in the State of Alabama?

1 Answer | Asked in Trademark for Alabama on
Answered on Jan 10, 2018
Mark A. Baker's answer
If the other party's use of the name has been trademarked through the USPTO, you may have an uphill battle. Much would depend upon the timing, although if your usage of the name commenced before the other party's use, and you can document this use, then there may be an avenue to proceed. Without all the relevant information, though, I cannot make a determination of whether you may have a way to challenge the other party's use of the name.

Q: What is a derivative art work? If I do some additions to an existing art work of some artist and make a derivative.?

1 Answer | Asked in Copyright on
Answered on Nov 22, 2017
Mark A. Baker's answer
Among other rights, the Copyright Act of 1976 (17 U.S. Code § 106) provides the copyright owner the exclusive right . . . “(2) to prepare derivative works based upon the copyrighted work * * *.” Derivative works are based on or derived from one or more already existing works. Copyright Office Circular 14 (https://www.copyright.gov/circs/circ14.pdf) is helpful in understanding the nature of a derivative work. It is critical to understand that the rights to make derivative works belong to...

Q: My husband and I personal guaranteed (up to $25,000) on our daughters personal residence mortgage. The bank foreclosed

1 Answer | Asked in Bankruptcy and Foreclosure for Alabama on
Answered on Oct 20, 2017
Mark A. Baker's answer
Assuming that you have signed a personally guaranty of your daughter's mortgage loan, then it is likely that you have potential legal liability for the remaining deficiency following the foreclosure sale. However, in order for the mortgage lender to have the legal right to pursue you for that deficiency, it will have to file a lawsuit in the county where the property sits, or where one of the guarantors lives, and get a judgment against you for the remaining sums owed. Unless and until the...

Q: If I purchased music, can I sell a DVD with that music in the background?

1 Answer | Asked in Copyright for Illinois on
Answered on Aug 25, 2017
Mark A. Baker's answer
Your use of others' music as you describe would be considered copyright infringement. When you purchase and download a song from iTunes, you only have the right to personal use of the song, and not the right to "copy" of otherwise "distribute" it, which is what you're doing if you're adding music to video. Your intended use requires a master use license (to use the master recording) and a synchronization license (to sync the master recording to video) from the copyright holder, which may be...

Q: I would like to self-publish a book-length criticism. Would my use of other sources fall under the terms of "Fair Use"?

1 Answer | Asked in Copyright for Alabama on
Answered on Jul 19, 2017
Mark A. Baker's answer
As you probably know, the fair use doctrine is not a black and white formula and its application involves a number of considerations. In general, though, it is an available defense against an infringement claim in works of criticism, as you have described your work.

A court will look at four factors in analyzing whether the use is 'fair use': (1) the purpose and character of the use; (2) the nature of the work copyrighted; (3) the amount and substantiality of the portion used; and (4)...

Q: I'm a singer I want to apply for a trademark. I put upcoming local gigs on website is that interstate commerce?

3 Answers | Asked in Trademark for California on
Answered on Jul 11, 2017
Mark A. Baker's answer
Among other things, in order for a 'mark' to be trademark-able (or service mark-able), it must be in current use in interstate commerce. Anything on your website that promotes your 'mark' - whether or not your performances are in another state - is being used in interstate commerce, because the web is international in scope, not just throughout the U.S.

Hope this helps.

Q: Copyright Music: Can I register songs once as a "work of the performing arts" and then again as a "sound recording"?

1 Answer | Asked in Copyright and Intellectual Property on
Answered on Jul 11, 2017
Mark A. Baker's answer
I advise songwriters to register their underlying compositions (on form PA) as soon as they are in a solid form, that is, with lyrics, chord changes and melodies. These songs may have been recorded as 'demo' versions. This way, you can circulate your music to others before you're ready to commercially release, for feedback, to seek others to cover your songs, etc., and you have the protections of the Copyright Act in the event someone steals them.

After the songs have been recorded in...

Q: Do I need to have a company to create a trademark in order to own it or can I do it just... myself?

1 Answer | Asked in Trademark on
Answered on Jun 6, 2017
Mark A. Baker's answer
I assume you're referring to a record "label" and the productions that label produces. Here's the definition of trademark and service mark found at the Trademark Office: A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods. Some examples include: brand names, slogans, and...

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