Wednesday, April 16, 2014
Can we obtain patents on the sport? It's possible to patent sports and sport methods. So, if your game is new and not obvious to others, you may be able to get a patent. But patents are expensive, and it takes more than a year for the PTO to grant one (during which time you have no patent protection). By the time you do get a patent, you will need enough funding to hire a lawyer to enforce it.
Can we get copyright protection for the sport? You won't be able to obtain a copyright on the idea of the game though you can get protection for rule books, images, theme music, etc. Professional sports owners also retain tight ownership over the right to record and broadcast games.
Can we obtain trademarks for the sport? Trademarks helped to generate $470 billion in sports revenue yearly. If you're intending to sell merchandise, you should seek a federal registration. But, here's the catch: you can't obtain a federal registration until you use your sports trademarks in commerce.
Bottom line: IP protection can help protect your turf ... but there won't be any turf to protect without a marketing budget and fan loyalty.
Tuesday, April 15, 2014
Making them mad. We don't know if claiming fair use will make the owner angry. But if you're using fair use as a negotiating tool, be prepared to defend your position with a reasonable argument based on caselaw. Seeking permission does not preclude you from later claiming fair use -- that's what happened in this case.
BTW Dept. We don't think an attorney would advise "fair-using" something. ("Fair use" is not a verb.)
Monday, April 14, 2014
That said dept. As a practical matter, it's very possible that the copyright owners will look the other way if you reproduce their works as part of a website, resume, or portfolio. They may consider it a tradeoff for your cooperation, or they may believe you have a reasonable fair use claim, or they may simply feel that the hassle of pursuing you is greater than the potential rewards of a lawsuit. If you plan on attempting this route, it's best to keep all the material within context -- for example, if a photo accompanied an article, post them together, not on separate web pages -- and avoid any implication that the publication is endorsing you or associated with your website or business. If you are concerned about getting hassled, contact the publisher and seek permission -- a simple email confirmation will protect you.
Friday, April 11, 2014
(1) It takes three to five months for an electronic copyright application to be processed. It can be expedited if you are suing someone.
(2) Yes, anyone can receive copyright protection by creating lyrics for a public domain melody (ask Elvis).
(3) Copyrights no longer have to be renewed. Renewal obligations ended for works created after 1963.
(4) Music is either in the public domain or not. If you need help determining public domain status, consult this website or use this book. A disclaimer may have some effect in a trademark infringement case but a copyright disclaimer -- especially the meaningless and confusing use of "No copyright intended" -- has little to no effect mitigating copyright infringement.
(5) You can't acquire copyright protection over a public domain melody. You can only acquire protection for original material that you add to the melody, or for the manner in which you creatively re-construct the melody.
Thursday, April 10, 2014
Why do employers use NDAs? Employers use NDAs -- in addition to state laws that protect them -- because it's possible to obtain extra benefits when suing, including increased damages, payment of attorney fees and a guarantee as to where or how the dispute will be resolved.
Not to put to fine a point on it ... The Dear Rich Staff answers many trade secret questions (over 20 so far). Use the search box on the right to find them. We also have a thorough trade secret site with lots of free NDAs!
Friday, April 4, 2014
Is seven seconds a fair use? There are no size, shape, or time limitations that excuse an infringement, although the shorter the segment and the more transformative it is, the more likely it will be excused as a fair use. Your proposed music criticism blog (with seven second snippets) also sounds like a fair use. And if you have a strong fair use position, you can always push back against a DMCA notice. But, if threatened with a lawsuit, speak with an attorney before throwing down the gauntlet.
Thursday, April 3, 2014
Wednesday, April 2, 2014
Tuesday, April 1, 2014
Are these parodies or fair use? We doubt whether the changed lyrics qualify as fair use/parody. Most judges believe that a parody of a song makes fun of the underlying subject matter (although one judge claimed a parody doesn't even have to involve humor). In any case, if the use is commercial, and the company is recording or performing the complete song, this would be a hard sell as a fair use defense. In addition, the Fortune 50 classification and the accompanying deep pockets also make the company an appealing target ... should the song owners learn of the infringement.
By the way Dept. Permission is not required from the original artists; it's required from the owners of the song copyright (usually a music publisher).
Friday, March 28, 2014
Thursday, March 27, 2014
Co-authors. If someone else made material contributions -- coauthored the choreography -- then that coauthor could modify the work without your permission as long as you are paid for a proportional share of the revenue. By the way, the protection for choreography copyright extends beyond the performance on stage; it includes other media -- for example, a series of still photos of the dance pattern. There is very little precedent for choreography copyrights and if you are considering pursuing the producer, we'd suggest you consult with an attorney.
Wednesday, March 26, 2014
Should you register? That's up to you. You get copyright automatically without registration and probably only need it if you're expecting to sue someone.
Tuesday, March 25, 2014
- Patent exhaustion. Once a patent owner sells a product, the patent owner cannot seek further patent payments for that particular product.
- First sale. You can also resell copies of works protected under copyright law. However, this rule may be "over-ridden" in some states where courts have held that software isn't sold; it's licensed and can only be 'resold' under the terms of an end-user license agreement.
Trademark law should not be an issue as long as you don't imply that Apple is affiliated with, supports, or endorses your endeavor.
Friday, March 21, 2014
Who are the WOT owners? Your daughter would want to avoid upsetting the Bandersnatch Group (who appears to be the official licensor of rights) and which has a variety of live applications and registrations for Wheel of Time at the trademark office.
Thursday, March 20, 2014
PS Dept. Speaking of getting rid of stuff, we just finished reading this amazing book about our throwaway culture.
Wednesday, March 19, 2014
Dear Rich: I'm making a short documentary about a guy who invented a machine that plays a real life violin. It's a kinetic sculpture and it can play anything that you can send to a midi file. I want to make the film appealing to all generations and I was hoping I could have the violin play Billie Jean or Livin' on a Prayer. The kinetic sculpture can only play one note at a time. I plan on selling the film to TV or news websites. My questions: 1. Would having the violin play a short (10 second) section of the melody be considered copyright infringement? 2. What about having the violin play different parts of a song (bass, harmony, melody) and editing them together to make the song sound more full. Would that also violate copyright? I ask because the film could be seen as educational because the inventor explains some of the engineering that it took to build the kinetic sculpture. I also wonder if this is falls under the "transformative" clause. We're fans of mechanical music and used to love listening to it at the Museum Mechanique until it moved from its "cramped, noisy, damp and dingy" Cliff House basement location to Fisherman's Wharf. (BTW, the compulsory music license owes its existence to mechanical music.)
Right, you had a question. Your use of Billie Jean or Livin' on a Prayer by a mechanical violin, is likely to be considered a fair use because you are using such a short segment (10 seconds). Here are other examples of music fair use cases. We're not sure your use is transformative. Are you commenting on, or offering new insight into the songs? If you are, that would help your argument. But we must we reiterate our mantra - fair use is a defense and is a matter ultimately determined by the courts. Also, it should not make much difference whether you use just the melody or the full arrangement.
Tuesday, March 18, 2014
Embodiments? It is likely in your best interest to include as many embodiments as possible in your regular patent application (keeping in mind that you cannot rely on your provisional application's date, if you have modified what you are claiming in the regular application). According to Patent It Yourself author, David Pressman, the more ramifications and embodiments you can think of, the broader your patent claims will be interpreted, and the more you’ll be able to block others from obtaining patents either on devices similar to your invention or on improvements to it. Also, you may have something to fall back on if your main or basic embodiment is “knocked out” by prior art that your search didn’t uncover or that surfaced after your search.
Friday, March 14, 2014
Nominative trademark fair use. As you may be aware, editorial (or "informational") trademark uses that inform, educate, or express opinions, are protected under free speech principles (sometimes referred to as "nominative trademark fair use"). But not all informational uses qualify -- for example, baseball cards provide information but baseball card manufacturers license rights from the MLB.
What are the standards? When determining nominative fair use, a judge may ask: Is there likelihood of confusion -- that is, are consumers likely to believe the colleges endorse or are associated with your site? If so, was the use of the college logos necessary to identify the schools? Did you make minimum use of the logos? Did you do anything to imply sponsorship or endorsement by the colleges? Here's more on how these decisions are made.
Thursday, March 13, 2014
Dear Rich: My friend wants to upload a Hollywood movie in four parts so that his family can watch it on Facebook, one-fourth of the movie at a time. I told him that will be seriously illegal based on my limited (lay person) understanding of copyright laws. I cannot find the exact answer to the question. Considering that you and your friend have probably spent a disproportionate amount of time in front of warnings like the one shown here, these PSAs must be classified as epic fail. Yes, copying movies without authorization is an infringement. The punishment for Facebook users fits the crime -- if you're caught, you'll be blocked from uploading videos (usually for about six months). Facebook's user agreement also permits the company to terminate your account (horrors!!) and movie studios can also pursue you if they wish (unlikely). So, if Facebook membership is crucial for your existence, it's best not to risk your online presence for the sake of an illegal download.
Wednesday, March 12, 2014
Video game standards. When a video game maker uses an unauthorized trademark within a game, a court weighs free speech and trademark rights by asking two questions: (1) Is the trademark artistically relevant to the video game? and (2) Would consumers find the use to be explicitly misleading as to the source of the game? In a recent case, two video game makers battled over the use of "Delta Force." A court applied the test and ruled that free speech permitted the use because the military use of the term "Delta Force" preceded the use by the trademark owner. In another case, the makers of Grand Theft Auto were permitted to use the trade dress and similar trademark of a Los Angeles tavern on first amendment grounds. In a third case involving the Bell helicopter trademark, a court would not permit the use in a video game under free speech rules, claiming that consumers might be misled as to Bell's involvement with the game. This article explains the rules and cases.
What about your use? The primary difference -- and what makes your case hard to call -- is that your client is using the trademark of a company that distributes video games (Facebook) and another company that provides video game feeds. (The other cases mentioned above don't involve the names of game-making companies -- they involve third party trademarks for a bar, military battalion, and helicopter company.) It is a little bit as if an Xbox game were to include a fictitious character using a Playstation. Would Nintendo object? On the other hand, if we analogize to movies, we don't see any problem using fictitious Twitter or Facebook accounts in a feature film. In summary, (1) we think your lawsuit meter will go up if you create an iPhone game that incorporates prominent app trademarks, and (2) the law is not clear on whether your client's use is misleading. Don't Forget Apple. Also, be aware that Apple and other App store administrators have the right under their upload/license arrangements to remove apps that violate their intellectual policy rules. Apple's rules state your game cannot "violate, misappropriate, or infringe any Apple or third party copyrights, trademarks ..." So a complaint from Facebook may result in the temporary removal of the game.
What about the disclaimer?A disclaimer by itself is unlikely to shield you from a lawsuit (although it may mitigate your damages and demonstrate you were acting in good faith). To be effective, it must be prominent, distinguishable from other explanatory or merchandising copy, and appear near, or in connection with the unauthorized use. For example, in a 1998 case involving the use of Godzilla trademark in connection with a book, a court discounted the publisher's disclaimer as being inappropriate and stated that an appropriate disclaimer would have been: “The publication has not been prepared, approved, or licensed by any entity that created or produced the original Toho Godzilla films,” and the court suggested that the disclaimer would be printed on the front cover and spine of the book in a distinguishing color or typestyle.