Thursday, May 28, 2015
We suggest you abandon your notary plans. First, a U.S. notary won't notarize a screen shot; notaries identify and screen people who sign important documents. Even if you prepare a document containing the trademark image and a statement about how you created it and you sign it, you'll still be wasting your money. Trademark rights are acquired by being the first to use the mark in commerce, not by being the first to create the mark. In any case, the USPTO makes you sign an oath as to the accuracy of the information in the application.
Tuesday, May 26, 2015
We're not sure whether the notice you received constitutes a DMCA takedown notice but to hedge your bets, we would suggest sending a DMCA counter notice to the seller performance team (even if you don't think it will do anything) and send a copy to email@example.com. At least you will have it on file with them in the event that this is part of a DMCA procedure. You must be sure of what you're claiming in the takedown notice because you're making this statement under penalty of perjury. You can read more about counter-notices, here.
If the counter-notice doesn't work ... If that doesn’t work, and Amazon isn't responding in a meaningful way, you can try moving up the food chain and sending letters and emails to Amazon’s legal department (Amazon.com Legal Department, P.O. Box 81226, Seattle, WA 98108). If that doesn't get a response, you can file for arbitration under Amazon’s participation agreement. This is a last resort, of course, and there are risks because if you lose and the arbitrator determines your claims are frivolous, you will have to pay Amazon's legal fees and costs resulting from arbitration.
Material that was removed: (describe Amazon advertising material taken down)
Location of where the material was located (URL): (list the URL for your Amazon seller page)
This letter is a formal response to a claim of rights infringement against material that I uploaded to Amazon. Please consider it as a DMCA counter notification as defined in 17 USC 512(g)(3).
I believe the claims of rights infringement are inaccurate and should be rejected for the following reasons: I either own all rights in the material posted or I have acquired permission from the rights holder. Further, I do not believe that the complainant has provided any credible claim of rights. All of my attempts to reach the complainant have been futile. In summary, any allegations of rights violation are unsupported.
I declare under penalty of perjury that I have a good faith belief that the complaint of rights infringement is either based on mistaken information or is an intentional misuse of the law (and violation of the Amazon Participation Agreement).
I ask that Amazon restore the material in dispute unless the complainant files suit against me within ten (10) days, pursuant to 17 USC(g)(2)(b). I further consent to the jurisdiction of federal district court for the judicial district in which I reside. I agree to accept service of process from the complainant.
Sincerely [Electronic of actual signature]
Full Name: (provide name)
Address: Phone Number: (provide address and phone number)
Wednesday, May 20, 2015
Copyright is automatic so once your trio creates a song (song copyrights) or records an album (sound recording copyright) the three members are all co-authors and co-owners by default (assuming that all three contributed to each effort). If you filed copyright applications for either the songs or the sound recordings, you would list the three contributors as the "authors."
When you add a fourth member ... You should not revise an existing registration (or file a new one) unless the new member modifies one of your existing songs or recordings -- for example, a bass player helps you modify an existing tune by composing a new chorus and bridge. You can always share revenue from existing copyrights with new members -- for example paying them song royalties for songs written before they joined the band but that doesn't require modifying the copyright information for existing copyrights. We recommend that you create a band partnership agreement to best deal with adding new members (and we explain how do that in our Music Law book).
Monday, May 18, 2015
If you want to post a warning, something similar to the following would be standard:
"© 2015 [Name of Copyright Owner] This work is protected by copyright and you may not copy, distribute, or modify it. Failure to comply exposes you to legal action for copyright infringement."If you want to give your warning a more dramatic vibe, you're also free to download and post the FBI's badge-like warning.
However, don't expect these warning to be much of a deterrent. As the RIAA and MPAA are already aware, copyright warnings have negligible effect on content piracy (just as alcohol and tobacco warnings have little effect on drinking and smoking).
Be Prepared. We think it's more important to be prepared for copyright infringement than to warn against it. For example, registering your work can provide benefits if you must chase an infringer (and the certificate of registration adds some gravitas to your cease and desist letters). You should also learn how to police for infringements -- for example, for free you can create a Google alert or a Google reverse image search. And of course, include your copyright notice (© [Year] [Name]) whenever possible.
Wednesday, May 13, 2015
Digital rights management systems (DRMs) may be used to limit access to Java®, but we don't think they'll work for java. For legal and customer relations reasons, we don't think Keurig will pursue those who circumvent their technology.
Keurig's system. Keurig's coffee machines won't make coffee if a non-authorized coffee-filled pod is inserted (unless consumers jerry-rig a workaround). As a result of declining sales, Keurig is reintroducing its re-useable pods (permitting users to choose their own brew) but it's not clear whether Keurig will ditch its scanner/DRM entirely.
Is Keurig's system a DRM? DRM (or digital rights management) refers to methods for restricting post-sale usage of (or access to) a copyrighted work such as music at the iTunes store or books sold via Kindle. Cracking, reproducing, or tampering with DRM technologies violates the Digital Millennium Copyright Act (DMCA). This all works out well for movie studios seeking to protect copyrightable content but not so well for manufacturers seeking to limit access to non copyrightable works like garage door openers and printers (and we assume coffeemakers). As one commentator put it:
In cases involving manufactured products, where the products are part of an interoperable system, courts have found that DRM controls must be closely linked to the underlying copyright interest in order to have DMCA protection.So, we don't think Keurig will have much luck claiming a DMCA violation. In addition, the DRM-ing of coffee makers may also lead to antitrust problems.
P.S. #1 The Keurig consumer fiasco is part of a growing consumer rebellion (sometimes known as the "right to repair" movement) involving farmers, car customizers and other angry consumers blocked by software from modifying and fixing products.
P.S. We're going to assume the last sentence of your question was either an unintended pun or the product of an over-caffeinated mind.
Monday, May 11, 2015
We preface this by saying that there's a big difference between the uses you describe for corporate purposes than if the characters were used for personal creative purposes -- for example, for a few YouTube episodes. The Lego Group and Disney are more likely to tolerate personal uses than corporate uses because corporate borrowing may imply association or endorsement, and because corporations are solid targets with bigger pockets. In general, we think:
- your internal uses on slide presentations are infringing but may go unnoticed by lawyers for the Lego Group and Disney,
- your national trade show presentation is more likely to be noticed,
- your use of the handbook, if discovered, could add to legal problems for your company, and
- use of non-Stars Wars Lego characters, if discovered by the the Lego Group, would likely lead to the same problems.
You've been warned. If any of the uses are discovered -- for example, a disgruntled employee or a competitor reports you to the Lego Group -- you'll likely be liable for copyright and trademark infringement. As the Lego Group explains succinctly here, and in their downloadable Fair Play Brochure (the link can be found on this page):
Time and again, we see our products and trademarks used in the marketing of totally unrelated products and services, giving the impression that the Lego Group is somehow involved in or associated with such business activities or services, with which we are not actually involved. When used in these unrelated settings, be it in printed material or on the internet, the value of our trademarks may be diminished and the identities of our company, our products and our trademarks can lose their distinctiveness.These statements don't have the force of law but you get the picture. You don't want cease and desist letters showing up in the mailroom. It's best to either obtain permission or find another method of making your point.
P.S. If this seems daunting, keep in mind that even the makers of The Lego Movie had trouble getting permission.
Wednesday, May 6, 2015
What you're planning sounds like "interactive digital streaming" (also known as "on-demand"). That's when a user can listen to a song upon request without having to download a copy. It's the process used at Spotify, Bandcamp, Rhapsody, and any website with a music player that allows you to start and stop the music. If you're permitting interactive streaming of a cover song, the proper legal course of action is to obtain a license from the Harry Fox Agency (HFA). According to HFA's site, the company offers licenses for interactive streams for one cent ($0.01) per stream via its Songfile service. Licenses are available for a minimum of 100 interactive streams up to 10,000 interactive streams per song licensed. These licenses are valid for one year.
Imitating the singing style. We're not sure imitation is always flattery, but we are pretty sure it's not infringement. Copyright doesn't recognize style, vibe, feel, or genre only original content (though that rule has been tested recently). Where you might get into trouble is if you lead people to believe that the recordings are by the original artist. That shouldn't be an issue unless you begin selling the music in a manner that causes people to believe that the artist is involved with your tracks, or if you use the recordings to sell a product or service. You can probably avoid that issue with a prominent disclaimer such as "Mr. Famous Canadian musician is not associated with this recording."
Monday, May 4, 2015
We think you should proceed with your project. Here are some rules to guide the process:
Short phrases are not protected under copyright. That's right, copyright does not protect short phrases. The trouble is that nobody is clear as to how "short" a short phrase can be. We've written about "protectable brevity" before and as we pointed out, it's not the number of words taken, it's the uniqueness and value of the words as well as the way in which you re-use them. The risk meter generally goes up when you take more than about 20 words.
Fair use may work but ... Even if the posts are protected, your project sounds ideal for fair use protection -- that is borrowing short amounts of verbiage for purposes of commentary or transformative purposes. Of course, we must always point out that fair use is a defense that is raised after you're in a dispute.
Just Sayin' Dept. It's unlikely someone will sue over the use of a tweet or a 20-word Facebook entry but one individual who borrowed Tweets for her own artistic purposes suffered backlash in the marketplace. For the same reason you should avoid posting any tweets or posts that identify an individual and reveal personal information. It's unlikely someone can claim privacy concerns over a Facebook or Twitter post, but if you're seeking smooth sailing, you should avoid that sort of activity.
BTW Dept. There's exciting news for copyright geeks: The Copyright Office has unveiled a searchable fair use database. Check it out.
Wednesday, April 29, 2015
Unfortunately the rules are complicated (so complicated we had to write a book about it). Here are a couple of U.S. legal principles to help you avoid the penalty box:
- Ownership of a copyrighted photo doesn't give you the right to reproduce it. So, paying for copies of photos won't shield you from a lawsuit if you use them in your book without permission.
- Any photo that originated after 1970 is likely to be under copyright and use without permission is an infringement (unless excused by a claim of fair use).
- If your book is published by an American publisher, you'll likely have to make a contractual promise that you acquired proper permissions and that your work does not infringe.
- If you're reproducing posters or similar imagery, the smaller the better (for purposes of a U.S. fair use argument).
- Your photos of ticket stubs are fine to use as are any photos containing otherwise uncopyrightable data.
Monday, April 27, 2015
(1) Terms that are generic for the goods or services are not registrable on either the Principal or the Supplemental Register under any circumstances. So, "Soccer Ball" can't be registered as a trademark for soccer balls. But it can be registered as a trademark for other products, for example, bubble gum.
(2) You wouldn't get trademark rights for inventing a sport. You only get rights when the mark is exploited in connection with goods or services. So, if someone invented a sport, or recreational activity, for example, Knockerball, and exclusively exploited the mark in commerce, a trademark registration may be awarded. The challenge for the owner is to avoid having the mark become the generic name for the activity, in which case trademark rights will be lost .
Wednesday, April 22, 2015
The answer depends on what rights you have to license. We reviewed your standard release and it authorizes your nonprofit to "use, reproduce, and/or publish video footage for educational and informative purposes" and to use it in "public affairs releases, or for other related endeavors." That language is suitable for using the material in association with your nonprofit, for example, at your website or perhaps at presentations made by the nonprofit. We're not clear about the meaning of "related endeavors" but, a conservative analysis would not include licensing the material to a third party. (We would feel better if the release specifically granted you the right to license the material to third parties.) If we're correct, you would should contact the subject and seek consent to license to the European museum. That makes sense, considering the personal nature of oral histories.
What should you seek from the museum? Once you have the necessary permissions from your subjects you would enter into a license agreement with the museum. You would need to define and limit reproduction and display/performance rights (how many copies, how many streams, what forms of media), length of license (how long the museum can use the material) and payment, if any. These arrangements are sometimes simple, sometimes complicated. We provide examples of these types of licenses with explanations in our book on permissions. Also, because it could be a challenge to enforce an agreement with a European museum, we'd suggest a little bit of research, if possible, to learn about the museum's past business dealings.
Monday, April 20, 2015
"Periscoping" refers to live streaming via the Periscope app to friends, and we doubt whether transmitting a complete episode of "Game of Thrones" would qualify as a transformative use, even with a live critique. A transformative use occurs when someone alters a copyrighted work and creates something "with new expression, meaning, or message," parody being a good example. Being transformative is only one factor in a fair use victory. However, the more transformative the use, the less important the other fair use factors (nature of work, amount taken, financial impact). In a recent example, a judge ruled that borrowing the characters and settings from "Three's Company"to create "an upside-down, dark" theatrical drama, was a transformative use. (You may also get guidance on transformative uses by checking fair use rulings.)
It's a moot question if ... If the user had agreed to a license — for example a click-to-agree EULA for HBO GO -- that agreement would likely pre-empt fair use arguments.
By the way dept. It's been a long time since a court okayed reproducing a whole TV show as a fair use; 31 years ago the Supreme Court held that "time shifting" a single copy of an over-the-air TV show for personal use was okay.
Monday, April 13, 2015
Your argument -- that there are a limited number of ways to portray a jumping trout silhouette -- is a reasonable defense to copyright infringement and may possibly qualify under the merger doctrine or as "scenes a faire." However, if you obtained the image from a stock photo site and entered into a license agreement, copyright would take a back seat to the contract. If the stock company notices (and cares), they can hassle you over breach of license and your copyright arguments would have little value. Have you considered public domain or Creative Commons imagery? There's a lot of other fish in the sea.*
* and yes, there are saltwater trout!
Wednesday, April 8, 2015
That's a tough call. We talk about licensing at our crafts law website (where we also offer a sample license agreement for purposes of comparison). If you can't make it over there, here's what we suggest: If you’re a savvy, confident businessperson capable of reading contracts -- and this is especially true if the other side provides a concise easy-to-understand agreement -- you can probably negotiate your own license. If legal agreements just make you nervous, and a company wants to license your best-selling or signature work, you might as well secure some backup and retain a knowledgeable licensing attorney.
Watch out for "assignments." One warning flag that you might need an attorney is if you see the word “assign” or "assignment" in the proposed license agreement. An assignment means that you are selling legal rights in a work to someone else which is far different from the “rental” arrangement of a typical license. If you assign all your rights in a work, then that’s it—you can’t reproduce and sell that work any longer. There may be an occasion where an assignment makes sense—for example, sometimes you can assign all rights for the term of the license and they will be assigned back to you after it’s over, or you may receive a large sum of money for an assignment. Nevertheless, if the licensee seems to be angling for an assignment, have an attorney review the draft agreement to guarantee that you’re not permanently giving up all rights.
Monday, April 6, 2015
Dear Rich: Is the song "Does Your Chewing Gum Lose Its Flavour (On the Bedpost Overnight)" in the public domain in Canada?
Although many music fans believe that Does Your Chewing Gum Lose its Flavour originated with Skiffle-master Lonnie Donegan in 1959, the novelty song was originally released in 1924 by the Happiness Boys. It was written by Billy Rose, Ernest Breuer, and Marty Bloom (see label, right) with one difference; their song was titled Does Your Spearmint Lose its Flavour. Donegan changed it because the BBC would not play songs that included trademarks and SPEARMINT was a registered trademark for a brand of chewing gum. (BTW, the same now-outdated policy is why the Kinks' song "Lola" references "cherry cola," instead of Coca-Cola, and why Paul Simon's track Kodachrome ended up as the B-side of a single in the UK.)
Right, you had a question. Neither the original version of this song nor the later arrangement by Lonnie Donegan are in the public domain in Canada. Copyright terms in Canada generally last for the life of the author plus 50 years. In the case of multiple authors, the term is measured from the year the last living author died. Billy Rose died in 1966, Marty Bloom in 1974, and Ernest Breuer in 1981 (according to this article ). Thus, the Canadian copyright term for Does Your Chewing Gum Lose Its Flavour runs through the end of the year 2031. Lonnie Donegan died in 2002, thus the Canadian copyright in his arrangement lasts through 2052. Answered by Stephen Fishman, author of The Public Domain.
Wednesday, April 1, 2015
We don't think you're going to have any copyright concerns because your images are all public domain. So, your only concern is whether the ex-prexys will sue for right of publicity. A few states have a post-mortem right of publicity -- that is the heirs of Richard Nixon might be able to pursue you. Living ex-presidents like Jimmy Carter, Bill Clinton, and George W. Bush also have the legal basis to hassle you. (It's unlikely you'll be hassled by the current president because of public relations issues.) Unfortunately, even though politicians like Spiro Agnew, Arnold Schwarzenegger, and Jesse Ventura have sued over right of publicity claims, these cases settled without any court precedent. So, there are no legal rulings indicating whether a politician's right of publicity trumps commercial free speech rights.
Bottom Line Dept. We think you should proceed with your card set. Other companies have followed a similar path and we assume they did so without contacting the grandchildren of Harry Truman, etc. Should you get hassled, we think you have a strong free speech defense (and the publicity probably won't hurt your sales either).
Monday, March 30, 2015
Dear Rich: I make and sell high heel shoes. What I do is decorate with spikes, studs, feathers, embellishments etc., and sell them. But my biggest sellers which I call my signature design is the peacock feather that I place in certain areas of the shoe. So I wanted to know if I should copyright that design or do the design patent?
Design patents are sometimes granted for high heel designs -- here's one that incorporates a football motif -- but we don't believe your shoes are likely to qualify. One reason might be that you've already been offering the shoes (disclosures by the designer may be excused for one year prior to filing). Another reason might be a lack of novelty (others have made similar use of peacock feathers). And another might be that your designs, creative as they may be, are "separable embellishments." According to the USPTO:
"Design is inseparable from the article to which it is applied, and cannot exist alone merely as a scheme of ornamentation. It must be a definite preconceived thing, capable of reproduction, and not merely the chance result of a method or of a combination of functional elements."Copyright. Copyright does not protect clothing, fashion and similar functional designs. You may be able to protect surface ornamentation for clothing if it is considered "separable" from the shoe itself.
Trade dress and trademarks. Trademark and trade dress law may assist if you can demonstrate that consumers associate the design or some aspect of it with you (an association that usually requires serious sales and advertising). That's the approach taken by the big guns like Gucci, Balenciaga, and Alexander McQueen. Otherwise, trade dress law is not likely to protect you (in light of this decision).
Bottom Line Dept. Sometimes -- and this is often true for custom made-clothing -- there is little legal protection available to stop fashion copycats (though Congress keeps trying). Although big fashion houses can wield trade dress claims, smaller designers with limited sales can't count on IP law, and must rely on the loyalty of customers seeking unique craft skills and vision.
Wednesday, March 18, 2015
If the clips are very short—just a few seconds—they would probably qualify as a fair use because you're using them for purposes of commentary. Of course, claiming the fair use privilege doesn't mean you won't get sued. And if you were sued, you'd still have to prove your claims in court, a stressful and expensive proposition. So, a more important question is whether the footage is recognizable to the copyright owner and whether the owner will learn of your use. In general, we believe that owners of copyrights in Hollywood studio films are among most likely to complain about these kinds of unauthorized uses. However, note also that the use of someone's footage for political purposes, particularly, to espouse a point of view contrary to that of the filmmaker may also trigger infringement lawsuits.
Monday, March 16, 2015
If you register a domain name as a trademark with the USPTO, you won't be able to claim any rights to the ".com" (known as a top level domain or gTLD) by itself. The USPTO considers elements of the domain address such as "http://" and "www." and gTLDs as unprotectable features of the website address. Although they are unprotectable by themselves -- that is, you can't stop others from using .com -- a mark that combines these elements with a protectable term is registrable if it is unique to an Internet business.
More than an address. The main thing to keep in mind is that you should register the .com if it is more than an address, that is if it is a source-indicating trademark use. For example, Zappos.com, an online footwear and clothing company refers to itself as "Zappos.com" at its site. In this way, Zappos.com, like Amazon.com, is more than an address on the web, it's the brand itself. (The USPTO's Trademark Examining Rules for domain names are located here.) The benefit of registering .com depends on the company. Some want a deep trademark portfolio, one that enables the broadest claim to trademark rights. Amazon has registered over a hundred "Amazon" marks and about 25 "amazon.com" marks (12 of which are still live). For smaller businesses, it may not matter much whether you register with or without the .com.
One more quirk. When registering a domain name, an applicant is permitted to furnish a drawing of the term within the address. For example, if registering Amazon.com, the applicant could furnish a drawing of the term "Amazon." (See TMEP Sec. 1215.02(c)))
Thursday, March 12, 2015
the "Blurred Lines" case (in which a jury determined that the song, "Blurred Lines," written by Pharrell Williams and Robin Thicke, infringed Marvin Gaye's song "Got to Give It Up"). The jury awarded Marvin Gaye's heirs $7.4 million, reflecting the profits earned by "Blurred Lines," which (hard as it may be to accept) was the longest running number one single of the entire decade (racking up sales of $14.8 million copies). The case's outcome is dumbfounding, particularly for musicians. Hindsight, affording us excellent vision, reveals five lessons.
- Declaratory actions don't always succeed - The Gaye family didn’t file the lawsuit; it was Thicke and Williams who filed, using a procedure known as a declaratory action (used when a party has been threatened with a lawsuit and seeks a pre-emptive ruling). It's like the reverse Pacman strategy in which the pursued becomes the pursuer. The procedure has its advantages – Thicke and Williams got to pick the location for the case -- but the procedure can also backfire, as some legal experts believe happened here. By initiating the lawsuit, Williams and Thicke may have ruined the chances of a quiet resolution before the song became a super mega hit.
- Don't bother with the "high as hell" defense –Sometimes, one party to a lawsuit is perceived as a villain, and its all downhill from there. Thicke admitted during the trial that he wasn’t present when the song was written and was too high on Vicodin and alcohol to compose anything, anyway. That testimony painted him unfavorably as a lying pop star who wanted credit when the song was a hit but who denied liability when accused of infringement. Character judgment shouldn't be a factor when determining substantial similarity … but any case can get derailed when one party's veracity is put into question.
- Don’t announce you want to copy someone’s song. Thicke told GQ Magazine, “Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye's 'Got to Give it Up.' I was like, 'Damn, we should make something like that, something with that groove.” Similar comments were made to other publications. Later when asked by the Gaye Family lawyers what he meant, Thicke's defense was that his comments couldn't be trusted because he was “high and drunk” when he did interviews.
- Don’t prevent jurors from hearing both versions. Many music listeners don't hear much similarity – aside from the uncopyrightable "live party" elements -- when comparing the recording of "Blurred Lines" with Gaye’s performance of "Got to Give It Up". But the jury never got the chance to make a similar comparison because they never heard Gaye's version. Lawyers for Thicke and Williams argued that Gaye deposited sheet music when he registered his copyright back in 1977 (standard operating procedure for the time) and therefore, the Gaye family’s claim could only be limited to the elements in the sheet music In hindsight, limiting Gaye's claim to the sheet music may have worked against the "Blurred Lines" crew because it allowed the family's lawyers to take a non-holistic approach to the songs. Instead of getting a total feel for each song, the lawyers disassembled the sheet music and focused on eight distinct notated similarities.
- Juries are unpredictable. 'Nuff said.