Dear Rich: I have a question. I read about an artist who is trying to get paid by the State of California. They’re using his painting of a whale on license plates. I thought all images of animals were in the public domain. I’m interested because I’m a crafts artist and I’d like to replicate certain animal images on jewelry.

But if you’re going beyond an exact replication of an animal — for example, painting an inspiring shot of a whale’s tail as the animal dives into the water, or creating a whimsical bespectacled penguin that also understands IP law, your original expression is protectable and you can stop others from copying.

In regard to the whale license plate, the bigger issue seems to be that the artist made a handshake deal with the State of California. (Who knew states had hands?) As readers of the Dear Rich blog know, all arrangements transferring intellectual property should be in writing. Lacking any paperwork, the state’s got a weak defense.

BTW, we almost quoted directly from the Associated Press story on the subject. As you’re probably aware, there’s no way the The Dear Rich blog is going to move beyond its current obscurity without being publicly chased by a big-time plaintiff (and the AP is a tempting, though unglamorous target). Alas, we decided to hold out for Mr. Right.

Dear Rich: I have a question. Can a copyrighted or trademarked item be reused or “repurposed,” as they like to say in the recycling circles, into a new product for sale without permission? For example, can someone take a cereal box, cut it up, use the front of the box as a notebook cover and legally sell that notebook? Can someone tear a page from a magazine or calendar, fold that page into an envelope and legally sell that envelope? How about a bottle cap? Can someone fashion a piece of jewelry from a bottle cap that is identifiable in the finished piece? I’m so glad you asked. The short answer: Making jewelry from a bottle cap is probably okay, ripping pages from a magazine and selling envelopes could be fine (but ripping pages from a book or calendar may not), and making notebook covers from cereal boxes may lead to trademark problems.

The long answer (zzzzzz) is a bit more nuanced. Here goes: Copyright law permits the purchaser of a copyrighted work to resell, destroy, or do whatever they want to that work, as long as they don’t step on any of the copyright owner’s exclusive rights. This principle is known as the first sale doctrine, and that’s why people can sell used books, movies, and music on eBay and Amazon. The term “first sale doctrine” comes from the fact that the copyright owner maintains control over a specific copy only until it is first sold. (One exception: If it’s a limited edition artwork or fine art work — for example, signed and numbered photographs created in limited editions of 200 or fewer copies — you can’t destroy it.)

Naturally, things aren’t always so simple. For example, two cases involving the resale of artwork seem to have arrived at different results. In one case, a company purchased a book of prints by the painter Patrick Nagel and cut out the individual images in the book and mounted them in frames for resale. A court of appeals in California held that this practice was an infringement and was not permitted under the first sale doctrine. (Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341 (1988).) (A similar result was reached in Greenwich Workshop Inc. v. Timber Creations, Inc., 932 F.Supp. 1210 (C.D. Cal. 1996).) In a different case, a company purchased note cards, mounted them on tiles, and resold them. A federal court in Illinois determined that this practice was okay. (Lee v. Deck the Walls, Inc., 925 F.Supp. 576 (N.D. Ill. 1996.) (The same result occurred in C.M. Paula Co. v. Logan, 355 F.Supp. 189 (D.C. Texas 1973).) So, under these rulings, a person cannot rip individual images from an art book and resell them, but a person can mount individual note cards and resell those. Another case added further confusion when a federal court ruled that the purchaser of a bundle of software programs could resell the individual components (separate programs on CDs). (Softman Products Co. LLC v. Adobe Systems Inc., 171 F.Supp. 2d 1075 (C.D. Cal. 2001).)

You definitely want to take some care selling repurposed items that contain trademarks. Although you’re free to sell empty cereal boxes, you want to avoid implying that the cereal company is endorsing or is associated with your notebook products. That’s going to be tough to do if the cover of your notebook is identical to the cover of the cereal. Consumers will necessarily confuse the two and likely think the cereal company is selling notebooks (not a major leap, considering they sell to kids). A prominent disclaimer may help — for example, a statement that your business is not affiliated with or endorsed by the trademarked company. But who’s going to want to look at a big disclaimer on the cover? Whatever you do, don’t play up the trademarks you use in your company’s marketing or business name. For example, it’s not a good idea to name your website “Cheerios Notebooks.” Finally, as with all issues like this, the lower you are on a company’s radar — that is, the less you sell — the more likely you are to avoid any hassles.

Dear Rich: I have a question. I am a science journalist and I’ve recorded interviews with many famous scientists. I’ve used this material in books and articles and would now like to use these on a website for free, open-access listening. Someone has suggested that I obtain permissions from all my subjects or their estates. I believe that no permissions are required because the subjects implicitly granted me permission to use the interview material as I saw fit when they sat down with me and my tape recorder and pad.

From the limited case law available, it’s likely that a court will consider an interview to consist of two separate works: one work created by the interviewer’s questions, and the other created by the subject’s responses. These works may be protected under traditional copyright principles (or they may be protected under what’s referred to as common law copyright). Under that ‘two-separate works’ approach, you’d need permission to reproduce the subject’s answers. That permission may be implied by the subject’s consent to the interview. In fact, one court — dealing with an interview with Ernest Hemingway — hinted that Hemingway’s failure to limit usage at the time of the interview implied unlimited use.

Some legal scholars argue that a better approach is that the interviewer and subject jointly create one work. Under that analysis, the interviewer and the subject are joint authors. In that case, either author can use the interview for any purpose provided that the party using the interview accounts to the other for any profits. If this approach were applied to your case, your use should be fine since you are distributing the interviews for free and (assuming you are not making money off the website) no accounting would be necessary. You can read more on these two approaches at the Publaw.com site. Also, as you are probably aware, if you proceed without permission, you would have a strong fair use argument for distributing these interviews based on their historic and scientific value.

The whole thing becomes more complicated if you are making money from the sale or licensing of the recordings — a situation that may trigger a right of publicity claim or (if you and the subject are considered joint authors) an accounting of moneys earned to the interview subject. Finally, there is some question as to whether federal copyright protection extends to a recorded interview, since simultaneous recording of the performance of a work of authorship (that is, not being broadcast) is not considered to be fixed. That means that the interview is not protectable under copyright law (hence the need to use common law copyright, as described above). There’s no guarantee that this will all play out as described. A lawyer would advise you that the only 100% safe course is to obtain permissions. But I think your chances of avoiding hassles are good and I personally look forward to listening to the interviews. There is always so much to learn about our scientific heroes.

Dear Rich: I purchased a web hosting package a few years back that included free website templates. When I created a different website, I used one of the templates, including the top photo. I just got a letter from a major stock photo company asking for $1,300 and to pay for a license or remove the image. I immediately removed the image, but I can’t afford to pay $1,300. I have all the documentation about the free templates. Do I have to pay $1,300 for something I thought was free?

There are a few things that may be going on here. Your original web hosting package may have included a permission to use the photo but that permission did not extend to other web hosting services. Or, perhaps the first web hosting arrangement never really got the proper permission, so wherever you use it, you’ll have a problem. The photo may have some digital watermarking embedded so that the stock photo company can trace all such uses and catch those who use it without permission. If you’re using it under the terms of the original webhosting agreement, you need to look to your agreement and your webhosts for resolution. If not, the stock photo company likely has a legitimate claim for infringement.

How far will they pursue it? It’s possible they could file a lawsuit, but that doesn’t seem practical or likely — they wouldn’t recover the costs of the litigation. Odds are good that if you write and explain your mistake — you mistakenly thought you had a license to use it — the whole thing will go away. They may send some more threatening emails, but the chances of anything going beyond that are unlikely. If I’m wrong (hard to believe, but it happens), let me know and maybe we can trigger a Streisand effect.

 Illustrators and artists are concerned about the bill because it would establish a registry of visual arts works. They’re worried that if a piece of artwork doesn’t show up on a registry search, all rights to that artwork may be lost. First, keep in mind that orphan or not, copyright is always preserved in the work. Second, there’s nothing in the law that says that a failure to appear in the registry automatically creates an orphan. For example, even if the drawing of Suda (above) did not appear in a registry, I would still have a hard time claiming it was an orphan … since the artist and his work are easy to locate on the web (Steve, please don’t sue).

Dear Rich: I have a question. I read recently that Victoria’s Secret stole somebody’s design for a bra. I have a design for something similar — I don’t want to say exactly what it is, because it kind of gives away the idea. How can I stop someone from stealing it?

Can you stop someone from stealing your idea? You can take preemptive steps — one approach is to get a signed evaluation agreement (a modified nondisclosure agreement) before presenting your idea. The problem with that is that many big companies don’t want to sign them because they’re afraid it will prohibit them from developing similar ideas. Another approach is to seek patent protection. A patent — as in this situation with Victoria’s Secret– gives the owner a hunting license to pursue infringers. If you’re not sure about investing time and money in the full patent application, you can reserve your place in line at the Patent Office by filing a provisional patent application for $105. Nolo offers books and software to prepare a provisional application. And remember, whatever you’ve invented, please consider the safety issues.

Dear Rich: I have a question. Why should I care about the Harry Potter case? Isn’t it just another example of a huge megacorp using copyright law to crush the little guy?

The Harry Potter lawsuit — in which a publisher and author are attempting to stop publication of a Harry Potter lexicon — is not an unusual copyright dispute. Maybe you’re too young to remember when J.D. Salinger successfully stopped a biographer from using his unpublished letters, or when ex-president Ford stopped The Nation from printing excerpts from his unpublished memoir. But you must be old enough to remember when the producers of the television show Twin Peaks stopped publication of a Twin Peaks guide, or when the producers of Seinfeld stopped a company from publishing a book of trivia questions about the Seinfeld television series. (Talk about being re-gifted!) In these situations, the courts have done a pretty decent job of separating those cases in which the author is being exploited (not a fair use) from those cases in which the author is being explained (fair use).

As for using copyright law to crush the little guy, that knee-jerk characterization may apply in cases of RIAA smackdowns but misses the boat here. (If anything, the little guy, armed with high-tech copying tricks, has collectively done more to crush copyright than any megacorp — check out the many illegal Potters and the frivolous Muggles-related lawsuit.) The lexicon’s author knew what was at stake when he proceeded and even insisted on an indemnity clause — a provision that saved him from having to pay any attorney fees, damages, or court costs. (Kudos to his attorney.) Time-Warner and Rowling have been reasonable in permitting the free web-based version of the lexicon for years. The lexicon’s publisher understood the realities — the real money is made selling copyrighted units of content.

Although the Heimlich maneuver isn’t patented, medical procedures can be protected under patent law — over 100 of these medical process patents are issued every month. And yes, patent owners can sue when their procedures are used without authorization. (FYI Dept.: A veterinarian won a case last year over his patented process for declawing a cat.) There is one big limitation on these patents. Under a 1996 federal law, the patent owner can’t sue a doctor for infringing a medical process patent. In other words, a surgeon can use a patented process in the operating room without asking for permission beforehand. Still, that hasn’t stopped lawsuits.

Anyway, thanks to Dr. H., many people — for example, Cher, former New York Mayor Ed Koch, Elizabeth Taylor, Goldie Hawn, and Carrie Fisher — are alive today. And since there is no copyright or patent on the method — though there is a trademark* — , let’s all review it for our own selves. Here’s the setup: A choking victim can’t speak or breathe and needs your help immediately. Follow these steps*

• From behind, wrap your arms around the victim’s waist
• Make a fist and place the thumb side of your fist against the victim’s upper abdomen, below the ribcage and above the navel.
• Grasp your fist with your other hand and press into their upper abdomen with a quick upward thrust. Do not squeeze the ribcage; confine the force of the thrust to your hands

P.S. Don’t you love this Heimlich imagery created by “Little Miss” Sunshine?

*Previously I suggested that you avoid backslapping in favor of the HM, but a tip of the hat to Mexican Radio (see comments below) who points out that the HM has been demoted in favor of the back slap. (See Heimlich’s response to back slaps, here.) Although there is no copyright or patent on the procedure, MR points out that the Dr. does have a trademark on the term “Heimlich Maneuver” — which may explain why the American Red Cross now simply refers to the procedure as “abdominal thrusts.”

Dear Rich: I have a question. My school is making me submit my term paper through a company called Turnitin.com. That company checks the paper against other papers for plagarism. That seems illegal. Don’t I have a right to not submit it through Turnitin? Isn’t it just like when people have a right to not take breathalyzer tests?

One question that arises from the company’s use of student papers is whether it’s committing copyright infringement. The company says no, that it’s a fair use because they’re using the papers for a transformative purpose — catching cheaters. When students object to the practice, the lawyers for Turnitin.com respond that their website prevents copying by students — a goal of copyright law. Hmm. As to whether the practice actually is a fair use, we’ll have to wait and see what the courts decide, and at least one such case has been filed. (BTW kids, if you’re copying Dear Rich blog entries into your term papers, you have nothing to worry about; nothing’s been filed at Turnitin… yet.)

As for your right to not take a breathalyzer test, that’s a little bit out of the Dear Rich universe. However, since Rich once was required to edit books on motor vehicle codes, he can assure you that there is a downside to not taking a breathalyzer when requested. Many states have implied consent laws, which means that by getting a license, your consent to take a breathalyzer is implied, and if you don’t, you could be fined, lose your license, or get sentenced to time in jail. So think carefully before refusing a professor’s or police officer’s request.