In the last post, we told how our friend Sheri Fenley had been approached by a publisher who asked permission to use a photograph of her grandmother which had appeared on Sheri’s blog.  The publisher apparently had no intent to compensate Sheri although the publisher stood to make a fine sum of money from the publication on the cover of which the photograph would appear.  Sheri made a very generous offer and never heard from the publisher again.

What should a genea-blogger do when approached by a commercial enterprise which wants to  use some of the blogger’s content?  Each individual will come to a different conclusion as each situation will differ from others.  But here are some things to think about:

• Is the potential user a non-profit whose cause you can support?

If so, you may feel perfectly comfortable lending your content for the greater good.  Even in this event, there are some precautions, you may want to take, which we’ll discuss below.

• Is the potential  user a commercial enterprise that intends to make a profit from the item(s) that would include your content?

If so, you may want to consider asking for compensation for the use of your content.  To be in the best negotiating position, remembered the adage that “knowledge is power.”  You need to research the enterprise and its industry, to understand what the likelihood of a profit is, and the potential magnitude of that profit.  You need a clear understanding of how your content is likely to be used.

You also need to know what alternatives to the potential user has, because that will affect the price that the commercial enterprise is willing to pay to use your content.

To maximize your potential return, you need to have clear title and exclusive rights to the content that you might permit someone to use. So we need to consider copyright, among other things.

We have discussed copyright at length in this particular space.  I suggest a review of those posts to get up to speed on copyright.  (Just type “copyright” into the search box on this page). Remember some basics: (1) ideas cannot be copyrighted;  (2) facts cannot be copyrighted;  (3) titles cannot be copyright.  On the other hand, forms, formats, and templates can be copyrighted. A particular arrangement of factual material can be protected by copyright law.

What about photographs of people on your blog?  We’ve talked about how tricky copyright for photographs can be.  Go back and review some of those posts as well.  But keep in mind that apart from copyright, people have a privacy right in protecting the use of their likeness for commercial purposes.

In many states, the law protects a “right of publicity.” This right of publicity is simply the right of a person to control the commercial use of his or her identity. The right of publicity is a valuable property right, protecting the commercial value of a person’s identity or likeness. A person desiring to make commercial use of a celebrity’s name, voice, signature, photograph, or
likeness thus must get the consent of the celebrity. Note this applies to commercial use, and not to use in a news story, for example.

In 1979, the California Supreme Court considered two cases, Lugosi v. Universal Pictures, 25 Cal.3d 813, and Guglielmi v. Spelling-Goldberg Productions, 25 Cal.3d 860, raising the issue of whether this right of publicity survived the death of the holder of the right. [Everyone knows that Bela Lugosi (nee Béla Ferenc Dezso Blaskó) played "Dracula" in the 1931 film of the same name; congratulations to those who knew that Rodolfo Alfonso Raffaello Piero Filiberto Guglielmi (1895-1926) was also known as Rudolph Valentino!]

In the Guglielmi case, the studio had exhibited on television a “fictionalized version” of Valentino’s life, depicting the actor’s name, likeness and personality without obtaining the prior consent of either Valentino or his legal heir. The heir sought damages and injunctive relief on the theory that the studio had misappropriated Valentino’s “right of publicity,” and that Valentino’s legal heir was the present owner of that right. In the Lugosi case, the actor’s heirs sought an injunction against and an accounting for profits from the studio which had licensed the use of the image of the actor as Dracula on a variety of commercial products.

In both cases, the California Supreme Court held that the right is not descendible and expires upon the death of the person so protected. In 1984, responding to those cases and several other similar cases, the California Legislature enacted a statute that gave to the heirs of a deceased personality the commercial rights in that deceased personality’s name, voice, signature, photograph, or likeness. As a result, if one desires to use the name, voice, signature, photograph, or likeness of, say, Elvis Presley, in a commercial context in California, one must have the permission of the Presley Estate. The heir’s rights are valid for seventy years after the death of the celebrity. A person who violates the heirs’ right may be liable for damages, including punitive damages.

Although we have discussed this in terms of “celebrities,” the right of publicity could belong to any person. Under statutory law, that right may be passed that person’s heirs.  Thus, in Sheri’s case, she controlled the right of commercial use of her grandmother’s likeness.  The publisher r understood that and that’s why they asked for permission.  Now, here’s what you need to consider:

(1) What purpose is the material going to be put to?  Is the purpose legal or morally objectionable?  Would the use place your ancestor in a false light?  Or would the use be favorable to your ancestor?
(2) Will the use serve some important artistic, scientific, literary or political merit?
(3) What’s the use worth?

Answering question number three is the toughest one of all.  Yet it’s the key to what approach you will take.  Does the potential buyer want to make a one-time use of the material?  For how long does the potential buyer want to use the material?  How many copies of the material would be may?  For how much would a copy of the materials sell?  Would distribution be limited to the United States, or would it be worldwide?  Could the potential buyer authorize others to use the material and receive royalty payments from those others?

To sell your ancestor for too little would be an insult to your ancestor; on the other hand, if you receive a tremendous amount of compensation, you  may be regarded as a callous gold-digger enriching yourself on the bones of your forebears.

In the typical case, you will want to give a license to the potential user of the material.  A license is a limited right to use the material.  You will include in the license the price for the license; the term of the license (i.e., how long it lasts); the scope of use of the material (how often they may use it, what it may be used for, where geographically it may be used).  And you will want to spell out what it cannot be used for, e.g., any used that is illegal in in the jurisdiction where it is to be used, any use that would place the subject of the material in a false light, any used that violates contemporary community standards in any community where the material might be used.  You may think of others.

The license should state whether or not the material can be used to advertise products other than the material to which it may be adhered.  The license will spell out the type of advertising that  can be used with the material.

The license should state whether it includes digital rights,  international rights, and believe it or not, some lawyers are now advising that licenses  include “galactic rights.”  The license should also state whether it is assignable or transferable to other parties.

Here’s an outline of a potential license agreement:

I.  Grant of license.
A.  license granted on condition of payment
B.   amount of payment (one-time fee and/or royalties)
C.  general term (in time) of agreement
D.  general terms of use.

II.  Rights granted
A.  permissible uses.
B.   prohibited uses.
C.  geographical scope of use.
D.  technological scope of use (i.e. digital, digital storage)

III.  Specific terms of payment (when due; where and to whom to be sent)    `

III.  Transfer and assignment

IV.  Indemnification (licensee agrees to indemnify you for any liability arising from unauthorized or other breach of the license agreement).

V.  Termination or revocation (circumstances under which the license may be terminated or revoked prior to the expiration of the term of the line of the license).

I might also put in some recital about the uniqueness and value of the material that is going to be used.  The things I’ve listed above are sort of the minimums that I would put any agreement  with a commercial enterprise who wanted to use something from your blog.

Pricing is a matter of negotiation, and here’s where having good information will help you out tremendously.  Know whether or not there are other sources of similar material that may be in the public domain or may be available at a lesser price than you would want to license for.

You can negotiate these licenses yourself; there are a number of excellent self-help web sites and books available. These include Nolo.com, Lawyers.com (which has licensing templates by state), and Allbusiness.com.  But if it seems like it’s getting too complicated,  you may want to go to a site like Rocket Lawyer.com or LegalZoom.com. In some circumstances, you may need to consult a lawyer, especially if there’s a lawyer on the other side.  Keep in mind that regardless of what the books say or what I suggest, you can put anything you want in your licensing agreement.  It’s entirely up to you.