Dear Rich: Let's say I came up with the brilliant slogan "A Penny Saved Is A Penny Earned" instead of Ben Franklin and titled one of my blog entries with this and discussed various ways to be frugal. That day an executive at XYZ bank reads my blog, likes the slogan, and decides to file for a trademark. The next day I determine that I want to file for a trademark to sell T-shirts or whatever. I know the slogan isn't protected by copyright, but does the fact that I was the one who published the slogan first help me to get the trademark even though I filed later? The Dear Rich Staff really doesn't like hypothetical questions but since it's Speed Dating Day, here goes: The only thing that gets you the trademark is if you use it first in commerce (or if you first filed an intent to use application and then used it in commerce). You couldn't get the mark for using it on one blog entry ... you need to use it as the title of your blog or newspaper column or whatever. And in any case, you would only get trademark rights in connection with your blog, whereas the executive may obtain rights for the same mark for banking services. PS. We understand the need for austerity, but does anybody save pennies anymore ... we mean except for collectors?
Dear Rich: I'm putting together a website for my sign business. I'd like to publish photos of some signs I've done. Do I have to get permission from my customers to do that? If there was some copyrightable aspect to the signs like an illustration -- something other than a unique layout or type font -- then you should seek permission. If it's basically words on a sign, no. You might want to add a disclaimer: "Display of signs does not imply endorsement." In the future, add a statement to your invoice that you reserve the right to reproduce signs at your website as an example of your work.
Dear Rich: I wonder, in general, if an older copyright takes precedence over a more recent trademark as it relates to a design and title of the design on knitwear? We're not exactly sure what you mean. If someone has a trademark for the title of knitwear products but does not claim copyright (most likely scenario), you can copy the designs but you can't sell them using a substantially similar trademark. If someone has a copyright on a knitwear design then you can't copy it regardless of the status of the mark. It's unlikely someone has trade dress rights to a knitwear design. If they do, you can't copy that.
Dear Rich: Just as a hypothetical, suppose I write a fantastic song, post a video to YouTube, and it becomes an overnight sensation, racking up tens of millions of views in its first few weeks. Let's say that I then somehow manage to profit from the song's popularity, selling millions of digital downloads through my website. Given the situation, I'm sure majors might come calling, and I'm wondering what kind of a deal I would be able to negotiate. A joint venture where all profits are split? A one-off album deal? Ownership of masters? What points would you recommend shooting for in this instance? We're still not comfortable with hypotheticals but okay, let's say you become a YouTube phenom and a record label comes knocking. Question: why do you need the label? What exactly will they do for you that you couldn't do on your own or with the aid of a savvy manager and/or lawyer? If you're a songwriter, we could see affiliating with a music publisher because that might get you some licensing and other revenue. Really though, we couldn't tell you what kind of leverage you get from being a YouTube phenom, hopefully something nice that will make your parents and your girlfriend proud. DING! We're sad and happy to report that our time is up.
