Wednesday, May 22, 2013
Design patents. Inventors use design patents to protect the appearance or design of a functional object. Some examples of bird feeder design patents are this one and this one. Read more about design patents.
Utility patents. Inventors use utility patents to protect bird feeders with unique functional features -- for example, this squirrel-repelling feeder or this squirrel-repelling feeder or this squirrel-repelling feeder (whoa that's a lot of repelled squirrels). Read more about utility patents. (Also you can preserve your place in line at that Patent Office without filing a full patent application by filing a provisional patent application.
Trade secret. Some inventors seek to protect their rights when submitting ideas by using nondisclosure agreements (NDAs), thereby preserving trade secrets. The problem for inventors is that often the evaluating company won't sign the NDA because of concerns that they'll be precluded from developing similar ideas. Read more about NDAs and trade secrets.
Tuesday, May 21, 2013
Get in the zone. The purpose of zoning rules is to help maintain the peace and quiet of residential neighborhoods. To find out where your community falls on the issue, read your local zoning ordinance. You can obtain a copy from your city or county clerk’s office or your public library. Zoning ordinances are worded in many different ways to limit businesses in residential areas. Some are extremely vague, allowing “customary home-based occupations.” Others allow homeowners to use their houses for a broad but, unfortunately, not very specific list of business purposes -- for example, “professions and domestic occupations, crafts and services.” Still others contain a detailed list of approved occupations, such as “law, dentistry, medicine, music lessons, photography, cabinetmaking.” Whether inventing falls within one of these categories is usually unclear -- meaning it may be difficult or impossible to know for sure whether your local zoning ordinance bars home inventing businesses. Most ordinances prohibit activities that cause excessive noise, pollution, waste, odors and similar conditions not appropriate in a residential neighborhood. The important factor in zoning disputes is usually not the rules themselves, but maintaining peace with your neighbors so that the rules don't become an issue.
Public nuisance and other law. Keep in mind that even if your community doesn’t have restrictive zoning laws concerning home businesses, it could take legal action against you if you make a nuisance of yourself -- that is, do something that may harm public health or safety; for example, creating excessive noise or offensive odors, or storing hazardous chemicals or waste ... or starting fires. In addition, your invention business may be limited if (1) there are restrictions in a lease (if you're renting), or (2) there are restrictions in your community's CC&R's (if you live in a gated community).
Monday, May 20, 2013
- There's a difference between sharing co-writing copyright credit and sharing revenues. Only someone who has materially contributed to the writing of the composition is entitled to copyright co-ownership. On the other hand, you're free to share your songwriting revenues with anyone.
- A lot depends on how you structure the music publishing. We can't go into the gruesome details here but you can learn more about music publishing (and see examples of royalty splits for a band) in our Music Law book (or check out Randy Wixen's The Plain and Simple Guide to Music Publishing).
- There are no fixed rules for dividing songwriting revenue.
Friday, May 17, 2013
Translations needed. According to the PCT rulebook, a translation of the international application must be furnished if the foreign patent office requires it. (Some countries permit you to choose from more than one language.) What's translated? The translation must include the description (including the title of the invention), the claims, and any text in the drawings. Normally the abstract must also be translated. Most countries don't require that the request itself be translated. Any foreign patent office that requires a translation of the request is obliged to furnish to the applicant–free of charge–a copy of the request form in the foreign language.
Thursday, May 16, 2013
Wednesday, May 15, 2013
Branding. We remember when "to brand" meant to burn the flesh of an animal to indicate ownership. Ouch! Nowadays, of course, it refers to all kinds of marketing stuff typically related to a product or service line. In addition to product branding, there's personal branding, faith branding, nation branding, and employer branding. We're going to assume that branding your documentary means that you want to expand your "product line" to as many happy customers as possible. We couldn't tell you how to do that and if we could, we'd probably be doing something else.
Tuesday, May 14, 2013
Like a lot of things in trademark law, it's complicated. Although proof of actual confusion can be very convincing evidence, it is not always as convincing as it appears. As this article explains, the proof may be vague, anecdotal, and perhaps even untrustworthy. More importantly, it may not reflect how consumers actually interact with the marks in the marketplace. For this reason, proof of actual confusion is only one of the factors weighed in a trademark dispute
Monday, May 13, 2013
As for domain name arbitration ... Your type of case where the two domains sell different products, is a tough case to win in arbitration. That’s because this system is set up to stop cybersquatters – those who acquire domains in bad faith. Typically that’s demonstrated when the domain is held captive or is used to divert customers. It's tougher to prevail when the domain is acquired for a legitimate business purpose that doesn’t compete with the trademark owner. You'll need to argue that the other site is acting in bad faith and deliberately creating confusion. Be warned, the arbitrators are not predictable. Although it's true that trademark owners win about 80% of the time, that’s a little misleading because a large number of these cases are defaults -- the other side doesn’t bother to respond. The fee to file for one-person arbitration is $1500.
Friday, May 10, 2013
Thursday, May 9, 2013
Copyright protection? Hopefully, you have something proprietary. But whether you can claim copyright in your contribution depends on how "separable" and protectable your work is from the board game. If copyright exists in the expansion, then you'll have a basis for proceeding against the owners if your creative work is hijacked. (You can seek to register your claim to copyright but would need to disclaim anything that pertains to the existing game.)
Secrecy? Ideally, you would get the game owners to sign a nondisclosure, or evaluation agreement. But many toy and game makers are hesitant to sign such agreements, or if they do sign, they often seek to exclude any ideas you have that are similar to ideas they are developing. Worse, they toss out secrecy agreements and ask you to sign a waiver agreement, waiving any obligations to maintain secrecy. In that case, you have to proceed with your own personal radar and determine whether the potential risk (losing your idea) is worth the potential reward (an acquisition or licensing payment for your idea). In general, case law about submitting ideas indicates that the best you can do to shore up your position when submitting an idea is:
- maintain it with secrecy (due to the vagaries of trade secret law, the idea may qualify as secret),
- don’t submit it until the company actively solicits the idea and it is clear that the arrangement is for compensation, and
- if possible, as mentioned above, use an evaluation (or option) agreement to maintain secrecy and to demonstrate solicitation.
Wednesday, May 8, 2013
In the PRIOR-ART section don’t mention your invention or suggest any solutions. Never state that any prior art reference doesn’t teach a specific feature of your invention. When you knock the prior art, just state what's generally wrong with it from a novice's standpoint and don’t state that it doesn't have any specific novel feature of your invention. This is because (a) most people would not realize or consider that the lack of a specific feature is a disadvantage, and (b) it can make it seem like the lack of a specific feature was already known in the art and was not discovered by you, the inventor. For example, the right way to indicate this would be to write, "Smith’s system operates slowly." The wrong way would be to state, "Because Smith doesn’t eliminate the reaction waste products, this delays the refining process."
Tuesday, May 7, 2013
Monday, May 6, 2013
Can you afford the fight? Assuming you have a strong claim, you're going to need a patent attorney in order to validate your claim to co-ownership. (You'll need a patent attorney because you will need someone familiar with the the patent process and with claims such as patent fraud.) It's possible (though not likely), that if you have a really strong financial claim, you can find an attorney who will work on contingency. Before you proceed, consider the financial outcome. You don't want to spend more money on lawyers than you'll earn from your patent.
Thursday, May 2, 2013
Wednesday, May 1, 2013
Differences ... As you're aware a music publisher is a company that owns and profits from song copyrights. Some music publishers serve solely as "administrators," making sure you're properly registered with performing right societies and collecting revenue. For these tasks of managing your songwriting business they collect a fee, for example, 5 to 25% of your revenues. A co-publishing deal requires that you give up more, including half of the copyright, in the hopes that you'll get more in return. The co-publisher earns 25% to 50% or more of the songwriting arrangement under a convoluted system that's discussed in more detail in our Music Law book. We talk about the differences in a previous entry.
Tuesday, April 30, 2013
Practically speaking ... If you are only selling the disks locally to members of the community, you can probably forego most of the permissions mentioned above. (It's what often happens when a tree falls in the intellectual property forest.) It may help to have something in writing (emails are fine) between you and the school that indicates you have their permission for your endeavor. If you intend to sell to a broader audience, you will probably need to get the permissions discussed above (and described in detail in the Getting Permission book.)
Monday, April 29, 2013
You hereby agree to grant and assign to Company affiliated publishing company, Mr Publisher (ASCAP) a division of Mr Publisher Media Group LLC a 50% copyright and performing rights interest less collection fees and 100% administration rights in and to each musical composition written, owned or acquired by you during the term of this recording agreement ("Compositions"). In connection therewith, you agree to enter into a separate Exclusive Co-Publishing Agreement with Mr Publisher (ASCAP), the terms of which shall be negotiated in good faith, but which shall include the right of Mr Publisher (ASCAP) to administer the Compositions throughout the world and may elect to charge an administration fee of (ten 10%). Should Company and Sub decide to terminate this agreement all rights of copyright will revert back to Sub unless Company can prove substantial progress in its tenure of administering compositions.Since we are splitting the copyright does that mean they are able to continue selling our music without our permission? Are we able to register our masters with the copyright office on our own given they have a 50% stake? So confused... Whenever the Dear Rich Staff gets a long letter that includes excerpts from a contract, our first thought is usually, "Get thee to an attorney." We think that's the proper course of action in this case. Here's why:
The cure letter. If your basis for claiming breach of contract was a failure to market, book and distribute the band, then by providing the "cure" letter you gave the company 60 days to correct those omissions. If the label failed to market, book and distribute within 60 days of your letter, the agreement is terminated. Putting the music up for digital and physical sale isn't enough to cure. The label needs to demonstrate an effort to market and book the band, too (and correct any other omissions mentioned in your cure letter). If not cured, the label is in breach and your grant (assignment) of publishing rights would be terminated as well. In other words, terminating the record deal for breach would allow you to retain all of your publishing rights and there would be no reason to execute a written publishing agreement.
Get out of it! So, you should stay focused on ending the contract which, by the way, seems a bit lopsided (welcome to the music business). As we understand it, you pay to produce the album and you give up half of your publishing. The label doesn't seem to be taking any risk. After all posting a recording is easy, and creating physical CDs can be done without much of a financial commitment. So, unless the label has an impressive track record with other artists, you'd do best to pool your money, hire a lawyer and make sure the agreement is fully terminated quickly. The annoyingly difficult part is getting the label to take down the music it has posted for sale. In conjunction with getting an attorney, you should also register your music at the Copyright Office and with a performing rights society. And of course, another reason to check with an attorney is that we could be completely wrong about all of this. A second opinion will help.
Hiring a lawyer. If paying for a lawyer is a challenge, find out if there's a volunteer lawyer for the arts service near you.
Friday, April 26, 2013
Is the artwork supplementary or essential? If the artwork is an essential part of the purchasing decision -- as in a home decorating or children's picture book -- that would be more likely to justify a cut of the earnings. If the illustrations simply supplement the writing (as in most nonfiction books), flat fees are more common.
How much time will it take and what is your time worth? Estimate the number of hours per drawing. If you were billing an anonymous client for the same work, what would you charge? This would be your starting point in determining what you want to earn back (though of course there may a steep discount for your friend). The Graphic Artists Guild Handbook provides assistance with pricing.
How likely is it that the book will be distributed by a commercial publisher? If this work will be the subject of a book deal, the typical advance (assuming there is one) for a nonfiction book would be between $3,000 and $10,000 (though others indicate these advances are higher; we don't think that's an accurate reflection of today's marketplace). Royalties would be 5 to 10% of the book's income but would only be paid after the advance has been earned back. Nonfiction books usually have a sales life of 12 to 14 months. If a book deal is in the works, and you feel you are entitled to a cut of the earnings, you should seek to become a party to the publishing contract. Otherwise, you must rely on the writer to receive the income and then forward your payment.
What does your friend want to do? Because you're dealing with a friend -- not an anonymous client -- we'd like to see you work out an arrangement that doesn't jeopardize your personal relationship. You could propose a two-tiered system -- for example a reduced flat fee but an additional payment if a book deal is signed.
What about the rights? Are you transferring copyright ownership? Do you want to retain certain rights so that you can continue to use, sell or display the artwork. Determining rights may affect the price. For example, if you would like the right to sell limited edition prints, or to advertise those prints in the book, you might want to adjust your fees accordingly.
Wednesday, April 24, 2013
- The Second Circuit ruled that it was a fair use to reproduce a series of web essays as supporting evidence.
- A New York district court reached a similar result when copyrighted videos were introduced as evidence.
- A Michigan federal court also reached the same fair use conclusion when construction photos were introduced into evidence.
- The Tenth Circuit excused copying of a copyrighted work for litigation purposes as a fair use in 2007. However, the Tenth Circuit refused, unlike the Ninth and Second Circuits, to establish a fixed rule that such uses, by their nature, are a fair use. Instead, each case should be judged on its merits.
- The Ninth Circuit has stated that the use of copyrighted material as evidence in judicial proceedings is fair use, so long as the users do not reproduce the work for its “intrinsic purpose.”
What's an "intrinsic purpose?" It's a use that is for the same purpose as the copyright holder intended. For example, it was not a fair use when one party copied photos after it refused to pay the $15 per photo fees incurred by a trial evidence firm that had prepared the photos for litigation. In other words, the photos were prepared for the litigation and one party sought to avoid paying for their preparation.
PS. Good luck with your pro se case. (Here's the strategy that the lawyers on the other side will use against you.)