Multimedia laws in India

Multimedia is a term of complex meanings and divergent definitions within the business community. The computer industry has one definition; the entertainment industry another; and the telecommunications industries yet another. As one author in the field has observed, "the term can mean virtually whatever the user wants it to mean." Definitions of multimedia differ largely because the intended application of multimedia in each industry requires that certain aspects of multimedia are more important to each industry than are others. Despite our reluctance to place a singular definition upon multimedia, most industry groups seem to recognize that significant legal issues arise regarding the rights of ownership and use of pre-existing material for multimedia content.

For our purposes multimedia can be defined as follows:
Interactive software stored and transmitted in digital form which incorporates multiple forms of audio, video, graphics, text, animation, photography and special effects for display and performance on computer controlled video screens and sound systems.

Media (both digital and analogue) can be any of the following:
Text, drawings, graphics, photographs, film, video, wireless, audio, animation, VR, and so on..

In the widest context, multimedia is a form of interpretative system providing a broader range of information. For example, it can place a particular work in more than one context, e.g. timelines. It makes it possible to introduce comparisons or detailed examinations (e.g. microscopic level detail). It also supports innovative learning tools and feedback mechanisms, such as participative spaces on the web.

Particularly in relation to museums, multimedia aids in the interpreting of collections which are not accessible, e.g. storage items, or in the reaching of audiences who are not physically in the Museum, e.g. virtual visitors, geographically excluded.

Multimedia further provides interactivity for a wider scope of audience; e.g different interfaces for different audiences, such as language screens or separate children/adult entry points.

Significantly the growth of media channels has made it possible to support the dissemination of collections in many ways, e.g. online catalogues, kiosks, e-publications, CDs, WAP pages, etc.

This article examines the challenging legal issues which arise from licensing such materials for incorporation into new multimedia products. While multimedia licenses may involve every type of intellectual property right ,most licenses which involve photographs, film, video, audio, graphics, text and animation will consistently raise legal issues regarding copyright and the rights of publicity. These will be of principal importance in this examination. Trademarks, service marks, trade dress, trade secrets, and moral rights issues are also raised in multimedia projects.

In predicting the legal issues that are likely to be presented by the licensing of pre-existing materials for multimedia content, the legal community is generally making an educated guess. Much of the excitement and hyperbole that has been generated in the legal community about multimedia thus far has been spawned by its potential rather than the success of its current application. In predicting the legal issues that are likely to be raised in multimedia development, its developers may also be benefitted by looking at the type of issues that were raised in the evolutionary progress of earlier technologies such as VCR's and compact disks recordings. These technologies were not particularly useful until a significant number of software offerings embodying pre-existing films and sound recordings were available in the new technological format.

Intellectual Property Licensing Rights Commonly Raised By The Use of Pre-Existing Materials

The following table identifies the most common intellectual property issues raised by licensing particular forms of pre-existing materials
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		Text	Still Images, Photos, Drawings, Paintings & Sculptures Etc.	Sound Recordings	Motion Pictures & Audio/Video Works/Animation
Copyrights	1	Copyright in text owned by author or publisher	Copyright in the art or photograph by photographer or publisher or Artists who created the painting, drawing, etc.	Copyright in sound recording by creator of a) music or lyrics b) vocals c) sound effects d) text or spoken word	Copyright in the film, audio/video work or animation
Copyrights	2	Copyright in fictional characters owned by author or publisher	Copyrighted in character that is photographed, painted, drawn, etc.		a) Copyright in the original work from which the Audio Visual work was derived b) Copyright in fictional character
Rights of Publicity	3		Right of publicity held by the subject of the photograph	Right of publicity held by the performer and/or use of a sound-a-like	Right of Publicity held by Actors who did not convey such rights to the film/T.V. or A.V. company
Trademarks And Service Marks	4	Trademark Rights in books, titles or characters	Trademark in items photographed or shown which represent a company's trademark or service mark	Trademarks in songs and album titles & trademarks used as part of lyrics	Trademark Rights in film title or name or appearance of fictional character
Moral Rights	5		Photographic Artist's moral rights under Visual Artist's Rights Act or State Law		Artist's moral rights under Visual Artist's Rights Act or State Law
Contract Claims	6	Guild or Union contract rights a) Writers Guild of America b) Screen Writers Guild	Trade agreements contract rights a) American Society of Media Photographers b) Graphic Artists Guild	Guilds & Unions contract rights a) Songwriting of America b) American Federation of Music c) Performing Arts Guild d) ASCAP, BMI, etc.	Guilds & Unions contract rights a) Screen Actors Guild b) AFTRA c) Actors Equity d) Dramatist Guild
Rights of Privacy	7	Defamation or invasion of privacy by text subject	Defamation by the words spoken/invasion of privacy claims by photograph subject	Defamation by the words spoken & rights of privacy invasion by unauthorized recordation	Defamation by words or visual depiction & rights of privacy invasion by unauthorized recordation

Contract Terms In Multimedia Licenses

A comprehensive list of contract considerations is not possible without knowing the peculiar requirements of each multimedia project. Legal issues are unique to each work and are difficult to predict. Nevertheless, there are issues that may be common to licensing all forms of pre-existing material in multimedia, including the following:

(1) What is the nature and extent of the rights being licensed?

The multimedia developer needs to know the type of rights that are being conveyed and the licensor's authority to grant such rights. Frequently, the licensor will grant rights to use the pre-existing works without specifying which intellectual property rights are being granted. The multimedia developer may thus unknowingly assume that he is receiving a complete grant of every possible intellectual property right, or at least all the rights he needs, without attempting to determine what rights he is really getting in the license grant. The multimedia developer needs to know the nature of these intellectual property rights, but seldom asks specific questions. Does the licensor hold the copyrights in the licensed material? Does the licensor or any third party own the trademarks, service marks or trade dress rights on the materials that will be used? Are these rights transferable and being properly conveyed by the license? Does the licensor possess right of publicity grants or waivers of right of privacy claims from any individual whose image or performance is embodied in the licensed work? Will the multimedia developer's alteration of the work violate any artist's moral rights? Are there Guild or Union collective bargaining agreements that will require the multimedia developer to become a signatory before being granted the full rights to use the materials? These types of questions are easily overlooked in the licensing transaction which may appear deceptively straightforward, especially when the agreement specifies the licensee's intended use.

(2) Is the licensor the creator of the work or an owner by assignment?

The type and nature of the rights which the multimedia developer has received from the licensor may be significantly impacted by the manner in which the licensor makes its claim of ownership. The original creator of pre-existing materials presents fewer problems to the licensee than does a licensor who purchased the materials from some third party. The wise multimedia developer, then, might look into the licensor's prior business transactions to ensure that those business transactions have been properly completed, or he should obtain sufficient warranties and indemnifications as to their completeness, to be certain that he is not simply acquiring materials which will be the subject of litigation at a later date. For example, if the licensor is a copyright owner by assignment, may the original creator take back the copyright ownership under the Copyright Act, 17 U.S.C. § 203, thus terminating the licensee's rights? Have the appropriate copyright transfers been recorded with the copyright office? If not, a third party claiming ownership by transfer, who is first to record his claims, may take priority over the licensor, thus ending the multimedia developer's license to use the materials. Corresponding issues exist with respect to trademarks, service marks, and trade dress relative to transfers which occur by contract without the assignment of the goodwill that is associated with the assigned marks. Trademarks which are purportedly conveyed without the conveyance of goodwill are void and may result in the abandonment of the trademark.

Similarly, if the licensor did not obtain the necessary releases or waivers of rights of publicity from any actor, actress, or performer who appears in the film or video, it may be necessary for a multimedia developer to ensure that all of the heirs of that deceased celebrity have consented to the multimedia developer's use of the film or video materials.

Thus, unless the licensor is the original creator of the pre-existing work, has not previously licensed the work and has obtained the consent, license or waiver from all the original participants, the multimedia developer's risks are substantially increased, since the validity and completeness of the licensor's earlier business transactions will impact the legitimacy of the rights being transferred.

(3) Is the license to be exclusive or non-exclusive?

The exclusiveness of the use will, of course, impact the cost of the license and the multimedia developer's ability to sell or market his product as the exclusive product containing the selected pre-existing material. It would appear that most licensors will prefer to make multimedia licenses non-exclusive in order to increase their opportunity to exploit their library. By making licenses non-exclusive, the licensor has the opportunity to continue to license the product as more clear patterns for pricing pre-existing materials emerge. Thus, the licensor will not have wasted his resources by licensing one user at an extremely low rate when the market trend may be moving toward increased fees.

The multimedia developer, on the other hand, may intentionally be seeking exclusivity in order to provide his product with a marketing advantage. If the licenses are non-exclusive, the multimedia developer may seek assurances from the licensors that the licensing rate which they receive will be on a most-favored-nations basis, i.e., the royalty rate that they pay will be the most favorable rate that the licensor grants any other user.

(4) Are there restrictions on the format and type of media in which the pre-existing materials may be used?

Multimedia developers may find it advantageous to seek the right to use the licensors' materials, not only in the multimedia product, but in all associated, related or tie-in products that may later be developed. For example, if pre-existing materials are licensed for use in a CD/ROM may any portions of those materials also be used in the users' manual that describes the use of the CD? May the same images be used on the exterior packaging for the CD/ROM as part of the trade dress? The multimedia developer of course may be well served by seeking the right to use the licensed materials in any manner imaginable including perhaps even use on toys, clothing, magazines and souvenir products. The licensor will undoubtedly counter by limiting the license to specific categories of use with a separate fee charged for each category. For example, use in the CD/ROM is governed by a first schedule fee, use on the packaging or cover art of the CD/ROM would incur a second fee, and use in a users' manual would yield a third fee.

(5) Will the Licensed Rights be Territorially Restricted?

Most multimedia creators will want to obtain worldwide rights. The entertainment industry frequently uses terms such as "worldwide," "throughout the world," or even in some instances "throughout the universe" to define the broadest geographic right to use possible. The problem of territoriality, however, is frequently not just a question of the scope of the rights which the multimedia developer seeks, but instead, a question of the scope of the rights the licensor of the pre-existing material has to grant. In multimedia as in other businesses, a prospective licensee seeking worldwide use of material can only obtain from the licensor the rights that the licensor possesses. Thus, the multimedia user is restricted to the scope of rights that the licensor originally obtained. This in turn raises the issue of whether a multimedia developer should always ask to see the contracts which purportedly give rise to the rights the licensor seeks to convey.

(6) How Long is the Duration of the License and Each of the Rights Granted?

Intellectual property rights have different protectable lives. For example, until the 1976 Copyright Act the copyright on a film only had a total possible protectable life of just 56 years, while the rights of publicity of a person domiciled in Tennessee who starred in such films is potentially perpetual. Thus, if the multimedia developer wishes to use film clips from Elvis Presley films of the 50's and 60's, it must recognize that the life of the copyright in the film will not necessarily coincide with the Presley estate's right of publicity. If Elvis Presley did not assign his full right of publicity in the films he acted in, the multimedia user will be faced with the task of obtaining separate licenses from both the film companies and the Elvis Presley estate. More importantly, even when the copyrights in the films have ended the estate's right of publicity may continue and require the multimedia developer to be licensed.

(7) What is the Licensor's Control Over Quality of Licensed Products?

One of the most difficult areas presented in licensing considerations involves the licensor's rights to continue to exert some control over the way the licensed rights are used. While this is not frequently an issue relating to copyrights, it is important where the right of publicity is licensed, and in those instances where trademarks or service marks are licensed. The fundamental consideration for such a license is the licensor's right and obligation to assert control over the quality of the products involved. Thus, licensing agreements should address the issue of how the licensor will approve the proposed use, and whether minor variations in the use are acceptable as long as the multimedia licensee ensures that the altered use will be of the same or similar quality to the approved use.

(8) Does the Licensee have any Sublicensing Rights?

To date, it appears most of the multimedia licensing agreements have not contemplated the right to sublicense. Nevertheless, as multimedia finds new avenues of distribution, a licensee's right to sublicense will become increasingly more important. For example, a multimedia developer may want to acquire sufficiently broad rights in CD/ROM products to allow the CD/ROM materials to be presented on cable or pay-per view television. Thus, the licensee's ability to sublicense the broadcaster may become an important consideration in the future development of the industry and thus should be addressed in the present contract.

(9) What is the Licensee's Ability to Obtain Independent Intellectual Property Rights?

Since the multimedia developer is using pre-existing materials to create a new work, of fundamental importance is its right to obtain independent intellectual property rights in the resulting product. In other words, is the resulting multimedia product simply a derivative work, and if so, will the copyright in the resulting multimedia product be impacted when the copyrights on the original works expire? Can the multimedia developer avoid such negative results by ensuring that its multimedia product is entitled to its own copyright registration independent of any original materials from which the multimedia project is derived? It seems reasonable that contract language that specifically provides for such a right should be included in multimedia contracts.

(10) Who is Entitled to Enforce Rights Against Infringers?

The development of the multimedia industry also brings with it many of the same problems that are apparent in the film, television, and record businesses. Pirating of multimedia products will undoubtedly occur. Licensing considerations for enforcing rights against third-party infringers will have growing significance. Will enforcement actions be undertaken by the licensor or the multimedia developers? Who will bear the cost and gain the economic benefit? What is the economic impact on the value of the license when factoring in the cost of enforcement actions?

(11) What are the Licensee's Rights Upon Termination?

While it seems self-evident that the multimedia developer would like all licensed rights to be perpetual in existence, licensors may very well seek to limit the license. Licensors may limit the number of units which a licensee may produce an unlimited number of, (for example, 10 million CD/ROM units), or the licensor may limit the amount of time that the licensee can produce those units, (for example, the licensee may produce as many CD/ROM's as he can in a twelve month period).

(12) What type of Royalty Structure Should be Used?

A variety of royalty mechanisms are used in licensing intellectual property rights. Royalty payments range in nature from one-time flat fees, to royalties based upon gross sales with up-front minimum guarantees. Because multimedia developers may be licensing from many different licensors, licensees will prefer to have some standardization in the fees paid and the methodology by which the calculations for those fees are performed, in order to keep costs within budget.

Licensors, on the other hand, will want to maximize the income potential from the license and, therefore, may very well wish to avoid standardized contracts in order to allow as much negotiation as possible. Because of the potential for diverse ownership in the intellectual property rights multimedia producers may wish to use, content royalty payments could easily escalate to the point that profitability of any multimedia project is eliminated. Accordingly, multimedia developers are likely to be reluctant to agree to any financial arrangements other than a flat-fee license. Content licensors, on the other hand, may very well wish to seek a minimum royalty guarantee, with a participation percentage based upon the product's profitability in the marketplace.

(13) What type of Warranties and Indemnifications Should the Licensee Seek?

Multimedia developers frequently will look to the licensor for warranties and indemnifications concerning the licensed rights. Specifically, the licensee will seek written assurances that the licensor owns or has transferable right in the rights which are being conveyed, and a commitment that in the event the licensee is sued for infringement by virtue of the use of any licensed products, the licensor will defend and indemnify the licensee and hold him harmless.

Licensors, on the other hand, are typically inclined not to indemnify or make warranties to the licensee. Indeed, the licensor frequently seeks to take a simple "consent" approach, conveying whatever rights it possesses without making any representation as to the nature, quality, or the extent of those rights.

The conflict between the licensor's desire to avoid liability and the licensee's need for assurance that the licensed materials will not violate the rights of any third party creates a dramatic tension between the prospective licensor and the multimedia developer which may very well lead to one of the most highly contested issues of multimedia licensing. If the licensor will not or can not warrant the rights it purports to have the right to convey, the multimedia developer must decide whether to use the materials nevertheless and accept the risk and the responsibility for independently clearing those rights.

Clearing Rights In Pre-Existing Works

If the licensor can not or will not make warranties or representations relative to the rights that are being conveyed to the licensee, and the licensee nevertheless, wants to use pre-existing materials in his multimedia work, the developer will be faced with the daunting task of clearing those rights itself. Even when the licensor is willing to make warranties and representations, licensees may yet wish to verify the rights that they are acquiring. Accordingly, multimedia developers or their counsel should know how to clear such rights.

1. Identify Precisely the Extent of Rights Held By The Licensor

The best source of information concerning the licensor's rights, in most cases, will be the licensor. Even licensors who are reluctant to make warranties or to grant indemnification must expect to make certain fundamental representations about the scope and nature of the rights they hold, if they intend to license them. The licensee thus may fairly ask the licensor to specify the precise rights which the licensor claims it may convey. The licensee must then compare the claimed rights to all rights which could possibly be asserted against it by virtue of its intended use. Through comparing all the possible rights that may be asserted in the "work" which the licensee intends to use versus the rights which the licensor claims, the licensee should be able to identify areas of deficiency which need to be addressed.

It might be helpful to examine the steps a multimedia developer would take to obtain a license to use clips from motion pictures. In order to determine what legal issues are going to be raised, the licensee must know the precise portions of the film or video they wish to use.

That material must then be carefully reviewed to determine the following facts:
A) Are the film or audio visual materials works of fiction, a documentary, or news clips? Fictional films generally give rise to a greater number of issues than do documentaries. At the other end of the spectrum, news clips generally represent newsworthy events that fall within the public domain or are of public interest and present the fewest ownership issues.

B) The licensee should ascertain the ownership of the underlying source materials upon which the film is based. The licensee will also want to be assured that the film company obtained a full assignment of the actor's or actress's right of publicity through the talent agreements. This may well prove to be one of the most difficult tasks the licensee faces. Many film companies have been reluctant to provide potential licensees with copies of their stars' contracts.

C) If the particular clip involves filming in public places or extensive use of "extras," the licensee may well need to consult collective bargaining or guild contracts that were in effect at the time the film was made to ascertain the rights, if any, non-principal performers may hold.

D) Additionally, the music that is synchronized with the film images creates the unified audio/visual work. However, if the musical accompaniment is licensed for the film, and is not owned as an original score for the motion picture, the film company's license from the music publisher will determine the extent of rights, if any, the film company has to use of the music outside of the theatrical context.

E) The licensor will want to determine if the clip includes product sponsorship shots that depict trademarks or whether trademarks or service marks of the company are ever visually depicted or audibly reproduced. If so, does the film company's contract or license from the mark owner give the film company the right for subsequent relicensing to third party users?

F) Documentaries and news clips can themselves present unique issues regarding defamation or invasion of the right of privacy. For example, a film clip of the United States Senate's 1950's McCarthy Communist hearings might well prove defamatory if such documentary materials were taken out of context or not properly identified as to date, time, place and purpose. The multimedia developer must of course be concerned that his use of preexisting materials, if not properly presented, might also give rise to defamation claims as well.

In addition to the foregoing, the multimedia developer may also have to be concerned about the chain of title to the intellectual property rights. In recent years, significant corporate mergers, acquisitions, and film library sales have occurred involving both U.S. companies and foreign companies. In some instances, film libraries have been sold with restrictions placed on the film purchaser's rights or with the original seller reserving certain of the rights that flow from the films.

2. Identify Secondary Sources of Information Regarding Ownership Rights

In addition to seeking information regarding the ownership of underlying rights directly from the licensor, certain third parties or institutions may prove valuable sources of information.

A) Copyright Ownership
Copyright ownership and information regarding assignments can frequently be found through Copyright office searches. In addition to producing certificates of registration, the copyright office files and records assignments, transfers, name changes, liens, and judicial orders which affect the ownership of such rights. In addition to searches conducted by the copyright office itself, searches can also be done by private search organizations or firms.

B) Trademarks, Service Marks and Trade Dress
Trademark, service mark and trade dress ownership information may be more complicated in that there is not a single repository of registrations. While federal trademark, service mark and trade dress registrations can be obtained through the United States Patent and Trademark office, each state has its own trademark registration process. In addition to state and federal registrations, trademark rights are acquired through simple adoption and use of a word, mark, symbol or design. Thus, common law rights which may impact the licensee's use may only be found through common law searches conducted by private search companies.

C) Right of Publicity
The right of publicity has developed under common law and become a well defined legal principle in just the last 30 years. Under the bulk of common law cases that have addressed the subject, the right of publicity, like its cousin the right of privacy, does not survive the owner's death. However, in the past decade, almost a dozen states have created post mortem rights through legislative enactment.

of importance to multimedia developers is the fact that rights of publicity are recognized in the four states that have the most significant entertainment industries, California, New York, Nevada, and Tennessee.

Accordingly, pre-existing works which originate or are created out of those jurisdictions are likely to recognize rights of publicity in performers who may appear in the licensed works.

Clearing the right of publicity claims may be the most difficult intellectual property right to clear at present, because of its recent development. Fortunately, several states that have enacted right of publicity statutes have also developed the registration scheme which allows for the registration of rights of publicity.

In those states with registration mechanisms, multimedia developers can search for registered rights. However, since the bulk of all states will rely upon common law rights rather than statutory registrations, the multimedia developer will inevitably have to rely on other clearance techniques. The recently formed Rights of Publicity Clearance [RPC] organization may prove to be the most useful tool available to multimedia developers through its inclusion of common law rights of publicity references which cross-reference celebrity agent, management and public relations firms which represent living as well as deceased celebrities.

D) Registration Organizations
Another valuable source of rights clearances for multimedia developers are existing registration organizations. For example, books, film scripts, plays, tele-plays, television treatments and related writings which often form the basis for later audio/visual works are frequently registered with the Writers Guild or Writers Guild West. Similarly, synchronization rights are frequently licensed through organizations such as the Harry Fox Agency and small performance rights through licensing organizations such as ASCAP, BMI and SESAC.

E) Acknowledgment and Consent Letters
In light of the vast potential number of intellectual property rights which a multimedia developer may need to clear the task might be overwhelming if a separate license were to be negotiated for each right. A wiser strategy may be for the developer simply to attempt to ensure against liability and avoid litigation.

This may be accomplished by the use of simple consent forms which multimedia developers require the licensor to obtain from third parties on the licensee's behalf.

For example, if the licensed work involves a photograph of a baseball park, containing the advertising signs of team's sponsors, should the multimedia developer reproduce those signs without the advertiser's consent? A better alternative undoubtedly is to ask the licensor to obtain the written consent from each of the advertisers to the reproduction of the advertisers' trademarks and sign copy in the context of the new multimedia work. The licensee might condition payment to the licensor upon the licensor obtaining such consents. There is, of course, an additional benefit derived from requiring such consent letters. At the minimum through investigating the extent of the rights which the licensor purports to grant and seeking to identify potential third parties who may have claims, the multimedia developer is demonstrating due diligence. In most areas of intellectual property, innocent infringers are at significantly lower risk of having large damage awards imposed against them.87 Thus, the multimedia developers' attempt to identify potential third party owners and to seek their consent of the multimedia developers use through the licensor would seem to be a wise implementation strategy.

In those instances where the licensor purports to have all of the intellectual property rights that are necessary for the multimedia developers license, the licensee must still determine whether it has sufficient information either in the form of a license agreement or from the disclosures or representations which the licensor has made concerning the origin and ownership of the rights it intends to license to determine if the licensor has that which it claims to convey. Thus, the multimedia developer or its counsel must be sufficiently conversant with the elements of creation and ownership of individual intellectual property rights to determine that they are in fact obtaining the rights that they are paying for.

Intellectual Property Rights Contract Checklist For Licensing Pre-Existing Materials

In order to ensure that multimedia developers are securing all of the intellectual property rights they require to avoid third party liability, it would be helpful for them to ensure that the licensing agreement or the supporting information from the licensor answers basic questions regarding the creation and current status of rights that are being conveyed.

The multimedia developer or its counsel should consider the following questions in each of the separate intellectual property fields:

Copyrights

1. Is the licensed material an original work of authorship?
2. Is it in a tangible form which is capable of being copyrighted?
3. Was the work created by one or multiple authors?
4. Is the author(s) living or deceased?
5. Does the contract convey all author's rights?
6. Were the author's employees working within the scope of their employment when they created the work?
7. Were the authors independent contractors? If so, had they executed work-made-for-hire agreements?
8. Was ownership of the copyright obtained through assignment or transfer?
9. If ownership was obtained by transfer, was the transfer recorded in the Copyright office?
10. Is the material a derivative work?
11. Does the licensor own the copyright on the original work?
12. Does the work bear a copyright notice?
13. Is the copyright notice accurate?
14. Was the work published?
15. Was a copyright registration obtained on the work?
16. Was the registration obtained within five years of the date of first publication?
17. If registrations have been filed before January 1, 1978, has a renewal on the copyright been obtained? Is one available? When must it be filed?
18. Does the copyright registration reflect that the work is a derivative work?
19. Have all pre-existing materials from which the work was derived been listed on the registration application?
20. If the copyright has been transferred, does the registration bear the signature of the author or his appropriate agent or representative?
21. Has a copyright registration been filed in the original or pre-existing materials?
22. Has any transfer been terminated?
23. Has notice of termination been filed in the Copyright office and with the appropriate parties?

Rights of Publicity

24. Does the licensed material contain the name, photograph, likeness, voice or signature of a real person, living or deceased?
25. If the person is a living individual, does the intended use involve a commercial benefit to the multimedia producer?
26. Was the use of the name, photograph, voice, signature, or image ever approved or licensed by the person?
27. Was a general release or a license signed by the person possessing the rights.
28. Is the license or release unrestricted and perpetual in existence?
29. Has the person licensed or authorized other similarly situated third parties to make use of the same or similar rights?
30. If the person is deceased, is he an historic figure?
31. Is he a public figure or a private person?
32. Where was his state of domicile when he died?
33. Does that state have a right of publicity statute?
34. Was a probate or an estate filed?
35. Does the deceased person have living heirs?
36. Has the person been deceased for longer than the state mandated rights of publicity?
37. Has the estate secured an agent or licensing representative?
38. Has the estate or licensing representative licensed third parties to use other aspects to the rights of publicity?
39. Is the anticipated use in the form of a news event, parody or a matter of public interest?
40. Have the estate's heirs filed registrations in the state of domicile or in those states that have statutory rights of publicity statutes?
41. Will the distribution of the multimedia product include states that provide for statutory or common law protection of the right of publicity?

Artist's Moral Rights

42. Will the multimedia product contain visual images, pictorial, photographic, sculptural, or print works?
43. Will the intended use by the multimedia developer distort, abridge, alter, mutilate, or modify the artistic work?
44. Does the distortion, mutilation, or other modification of the work prejudice the artist's honor or reputation?
45. Is the author a living person?
46. Was the work created before or after the 1990 passage of the Visual Artist's Rights Act?

Trademarks, Service Marks and Trade Dress

47. Has the mark been registered?
(a) With the United States Patent & Trademark office on the principal register?
(b) Has the mark been registered on the supplemental register of the United States Patent & Trademark office?
(c) In any state?
48. Is the mark currently used in commerce?
49. When was the first use of the mark in commerce?
50. Has the mark achieved secondary meaning through continuous use in commerce for more than five years after registration on the supplemental register?
51. If the mark has been filed for more than five years, have necessary affidavits of use been filed?
52. Has the mark become incontestible?
53. Has there been a discontinuation or interruption of use of the mark for more than two years?
54. Has there been any overt expression of intent by the licensor to abandon the mark?
55. Has the mark been licensed previously?
56. If the mark has been licensed by writing does the license give the licensor the right to control the quality of the goods or services produced under the mark?
57. Has the licensor exercised quality control over licensee(s) to avoid abandonment of the mark?
58. Have mark searches been conducted for similar marks by the licensor?
59. Are there any other users of similar marks in related fields?
60. If there are other users, are the other marks registered?
61. Have there been any court proceedings testing the validity of any parties' rights in the mark?
62. How vigorously has the licensor defended its mark against unauthorized third party users?
63. Are there multiple third party users of similar marks?

Privacy and Defamation Claims

64. Is the material of an intimate, sexual, or offensive nature?
65. Was the material obtained by clandestine or illegal means?
66. Has there been previous disclosure of intimate, private or offensive facts?
67. Would a disclosure of these materials be offensive to a reasonable person?
68. Is the material a newsworthy item or item of public interest?
69. Has there been publication of this fact from more than one source or are these facts available in the public records?
70. Have the photographic images been altered in an offensive manner?
71. Have items and facts been omitted from the story so as to cause it to be misleading, presenting a person in a false or negative light?
72. Was the image obtained in a public place?

Conclusion:
As multimedia developers begin routinely negotiating licensing agreements in the multimedia field, it should become obvious that licensees will require a significant amount of information about the origin, ownership and protection of the intellectual properties which licensors intend to grant them. In the age of information, information is power, and the more multimedia developers know about the underlying rights in the pre-existing works, the more successfully they will be able to incorporate such materials into their multimedia projects.

Authored by: Sidharth Chopra can be reached at: sidharthchopra@legalserviceindia.com

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