Can We Sell Irish Street Art

Dear Rich: The attached photo was taken in Dublin Ireland. Someone had added a little graffiti and the overall look was pretty cool so we took some photos. It was out on the street, no trespassing involved here. I’m wondering if we would be in the clear to publish a series of these photos to sell as open edition print reproductions? We agree; this is some pretty cool street art. As we've discussed before, art (unlike architecture) that's publicly viewable from the street is protected by the same copyright rules as art that is hanging within a museum. The only exception is that there might be a tendency for judges to be more liberal applying fair use rules. For example, reproduction of this image as one element in a Dublin street scene would probably be fine. But featuring the photo and selling individual prints would likely violate the artist's copyright (we assume the graffiti is not by the same artist and in any case, it is not protectible). We're not experts on Irish copyright law but from what we've read, it seems as if the same basic rules apply in Ireland as in the U.S. (We're also not sure whether the copyright holder is Irish (as Dublin attracts foreign street artists). But in any case, most countries including the U.S. are treaty partners meaning that foreign copyright holders can claim certain rights in the U.S. For all these reasons, resale of this artwork could make you an easy target for an infringement claim.

Will NDA With Foreign Company Prevent Theft?

(c) Sasha Stim-Fogel

Dear Rich: I have a patent pending here in the states but I want a Chinese company to manufacture my product. Unfortunately, I don't have any intellectual rights overseas. Will a nondisclosure noncompete agreement keep a foreign company from stealing my idea? Neither a nondisclosure (NDA) or  a noncompete will keep anyone from stealing your idea whether in the U.S. or abroad. Agreements don't prevent wrongdoing, they merely establish the rules in the event wrongdoing occurs. An NDA is no different. For example, your NDA may establish the location of the lawsuit, whether the winner gets attorney fees, whether arbitration is mandatory, or the ease with which you can get an injunction.
Back in the U.S.S.A. NDAs enforced in the U.S. usually have a predictable outcome. But once you leave American jurisdiction, the results of enforcement are not as predictable and the costs of enforcement are far more expensive. That increases the odds that your NDA will be breached and that a foreign manufacturer will duplicate molds, copy packaging and send knockoffs out the backdoor and into countries in which you have no intellectual property rights.
Separating the good from the bad. Most foreign manufacturers rely on their credibility and trustworthiness to keep getting new business. So your first goal is to do your homework and try to figure out which ones are reliable and which ones are opportunists. The resources, below, may help you.
Protecting secret stuff only. Keep in mind that a nondisclosure will only protect against the disclosure of confidential information. Once your patent is published, it is no longer confidential. So the only thing your NDA can actually protect is confidential information regarding manufacture, sales and distribution, and know-how needed to produce and distribute the patented item. A noncompete is typically aimed at preventing ex-workers from competing against you and that's not likely to provide much benefit. However, some provisions, in conjunction with your NDA -- for example, an agreement that the manufacturer will not manufacture or distribute your product without your authorization -- can be crafted to deal with your specific situation. A lawyer's assistance may be required. In summary, get an attorney to make sure the agreement provides the best dispute-resolution procedures.
After you've found the best choice. Your lawyer may include provisions that will help you in a foreign deal. Here are some things to consider.

• Jurisdiction. The only way to get a foreignmanufacturer into a U.S. court—unlessthe company does substantialbusiness in the States—is to include aprovision in the NDA that requiresthe manufacturer consent to U.S.jurisdiction. This may prove difficultto negotiate (and to enforce), as foreign manufacturers areoften hesitant about submitting to theU.S. judicial system. 
• Choice of law. Every country has laws as to howcontracts are interpreted. You would want the NDA to be interpreted according to U.S. law.
• Arbitration. Arbitration is similar to litigationbut with less formality and expense.You’ll usually benefit byagreeing to have disputes arbitrated.Hopefully, the manufacturer will agreeto arbitrate the matter in the UnitedStates. If not, there are three popular(though expensive) spots for international arbitration: London (theLondon Court of International Arbitration),Paris (the International Courtof Arbitration of the InternationalChamber of Commerce), and Stockholm(the Arbitration Institute of theStockholm Chamber of Commerce).Also, if possible, your agreementshould award attorneys’ fees to thevictor in the arbitration.

Resources. These resources may help you sort out manufacturers in foreign countries:

•  U.S. Department of Commerce(DOC) and theU.S. Small Business Administration(SBA) are interestedin helping the sales of U.S. goodsoverseas. If an inventor has a trackrecord and the possibility of actuallyplacing a product in the market (oralready has a product and is seekingto market it overseas), the DOC andSBA offer assistance. 
• Check outthe Department of Commerce site atthe International Trade Association(ITA) or the DOC’sexport information. 
• National Trade Data Bank has the mostextensive and detailed statisticalinformation on trade in specificproducts and countries. It is not free,but you can enroll for a free guestsubscription and try it out. 
• The Federation of International TradeAssociations (FITA) has a website with many links,leads, and statistics that can behelpful for international businesses. 

Wants to Dramatize Works of Persecuted Russian

Dear Rich: I have written a play in which I use the works of a Russian writer (in my translation)named Daniil Kharms (1905-1942). He wrote very short absurdist works, one-paragraph stories and the like, so I actually include several works in their entirety in the playscript. None of these works were published during his lifetime. (During his lifetime he only published two poems, plus many works for children, none of which I'm using.) I want to send the script for the play around to theaters without any questions about permissions hanging over it. I've looked at the Library of Congress website but question the value of ordering a search for so many short works. Kharms lived and died in Russia. (He died in a Leningrad prison during the siege of Leningrad. A friend hid and preserved his manuscripts.) He had no children; his wife died abroad in the late 1990s or early 2000s. There are various collections of his stories in English translation dating from the 1960s to the 1990s (on the copyright page of which, copyright notice is given for the translations; but not for the originals). There were two different Russian collections of Kharms's stories published in Germany in 1974 and 1978. In Russia itself, most or all of these works were not published until the late 1980s under Gorbachev. There is a "Complete Collected Works" in Russian which came out in 1998. Thanks for introducing us to the work of Mr. Kharms. We've reviewed the copyright notices for a few of the Kharms translations and can confirm that the copyright claims are only made to the translations and that there is no mention of a Kharms copyright or a license from anyone claiming to be the Kharms estate. For example, this copyright page from a British collection (Click Search Inside This Book and choose the copyright page) attributes authorship to Kharms, but that's all, apparently. For these reasons, we believe that currently Kharms' work qualifies as an orphan work, technically protected under U.S. Copyright but not enforced because the owner of rights can not be located. (That would explain the freedom with which translations have appeared.)
U.S. Public Domain. Hang on because things can get complex when analyzing the public domain. Here are few things to consider.

• Unpublished works. On January 1, 2013, all unpublished works (whenever or wherever created) by authors who died in 1942 will fall into the public domain in the U.S. So, anything by Kharms that hasn't been published will be PD. 
• Works Published Before January 1, 1978. The Russian collection of work published in Germany in 1974 would be protected for 95 years under U.S. Copyright provided that it had a valid copyright notice. 
• Works Published After January 1, 1978. The Russian collection of work published in Germany in 1978 receives the same term of copyright as if published in the U.S. -- that is, life of the author plus 70 years. So, that also would be public domain in 2013.

Copyright Office Records. It's quite easy to search the Copyright Office Records and we recommend that you do so (choose to search by name and type in "Kharms Daniil"). Our search seems to confirm that there is no copyright claim by Kharms' successors (assuming he has any). By searching the records, you will see that there have been dramatizations and translations, none of which attribute copyright to Kharms, and none of which claim copyright over the original work (only over the translations and modifications).

Can I File Provisional in Foreign Language?

Can I File Provisional in Foreign Language? (click to enlarge)