Wednesday, March 31, 2010
What's best for you? We think the third view is the most realistic and enlightened. Of course, this also depends on any agreements you may have made or releases that you signed. We think the Crimson should either re-think its position or begin using releases if they wish to prevent their subject from reproducing the contents of an interview. Would you improve your position by transcribing the interview and only reproducing your responses? Perhaps, but you can certainly make a good fair use argument for including the questions.
What about the DMCA? The Crimson may also bypass all this and seek to use the DMCA to remove the recording from your site. We think that would be a mistake and not just if they fail to consider the fair use ramifications. It certainly would not fit with the spirit of transparency and freedom of information that the newspaper seems to support. (Like, what would Larry say about all this?)
Posted by The Dear Rich Staff at 9:19 AM
Tuesday, March 30, 2010
Where does that leave you? The Dear Rich Staff believes that if you want to be prudent, you should return to the artist and seek permission. If the artist insists no permission is required, have him provide you with that statement in writing. That's not as good as a permission but it will make it much harder for the artist (or the artist's successors in interest) to later claim you never sought the rights.
Posted by The Dear Rich Staff at 9:20 AM
Monday, March 29, 2010
Dear Rich: I'm a graphic designer and lover of old nostalgic items. I would like to scan in and "clean up" art from items such as luggage stickers, water decals and pinback buttons, to reproduce on t-shirts and other things with intent to sell. Most of the items date anywhere from the 1930's up to the 1960's and have little or no ownership or copyright info on them. Am I going to run into problems doing this? I'm enclosing some examples. The short answer is nay problemo! The Dear Rich Staff is pretty sure you're not going to run into a problem. However, because there's nothing quite as satisfying as hearing our own voices (over and over and over), we shall note some of the applicable rules of copyright and trademark law
Time is on your side. Chances are slim that you will run into a copyright issue if the work is pre-1964 since that would have had to have been renewed at the Copyright Office (and it's very unlikely that luggage stickers and buttons would have been renewed). So most, if not all of your material is public domain. As for trademark law, none of the examples furnished seem like they would trigger a trademark claim but if any of them do refer to current companies, or to products or services now being sold or offered, a conservative approach would be to avoid them. P.S. To learn more about the public domain, see Stephen Fishman's book The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More (Insert FTC disclaimer here).
Posted by The Dear Rich Staff at 9:25 AM
Friday, March 26, 2010
Posted by The Dear Rich Staff at 9:26 AM
Thursday, March 25, 2010
Right, you had a question. The short answer is that your use will probably infringe the camera company trademarks. However, we also think you can probably get away with it.
Why does it infringe? Trademark law prohibits uses that are likely to cause confusion with an existing trademark. There's a good chance that consumers who see hats saying, "I Like Leica" will think those hats originated with Leica. So, the camera companies have the right to challenge your use. (Another way to look at it is to imagine that the hat says "I LIKE THE STEELERS." You can see how the NFL would be all over your business once they learned about it.)
But you're using an everyday phrase ... It's true that you're using a phrase that might be used in everyday conversations. But in this case, you're not using it in a conversation; you're using it on a hat and making some money from it, too. The trademark is what gives your hat its value. Otherwise you would be selling hats that say, "I LIKE _____ CAMERAS." (And we're back to the Richard Hell approach.)
So why do we think you'll get away with it? We can't guarantee this (and we've been known to get it wrong), but the Dear Rich Staff thinks that your use (1) will fly below the radar of most camera companies (assuming you don't try to expand your exploitation beyond the group you describe), and (2) challenging this type of use in which consumers are pledging their support for a product might seem counterproductive to a camera company. After all, the company is getting free advertising every time someone wears the hat.
P.S. (1) Changing the font doesn't make much difference because the companies have registered the names in standard character styles. (2) You're unlikely to get a copyright on a short phrase no matter how fancy the font.
Posted by The Dear Rich Staff at 9:27 AM
Wednesday, March 24, 2010
Posted by The Dear Rich Staff at 9:31 AM
Tuesday, March 23, 2010
Right, you had a question. ITUs are relatively new on the trademark scene--debuting back in the late eighties. Before that you could only file if you were actually using the mark. With an ITU, you can now file if you have a bona fide intention to use the mark within six months of the date the mark is approved for registration by the USPTO. If you are unable to put the mark into use within that period, you can purchase additional six-month extensions, one at a time until three years have passed (provided you are able to convince the USPTO that the reasons for the delays are legitimate).
The advantage of filing an intent-to-use application. Besides the fact that you get to reserve a mark, your filing date will serve as the date of your first use of the mark--assuming you go on to put the mark in actual use and take the other steps necessary to get the mark placed on the federal trademark register. This first-use date can be very important in the event a conflict develops with another mark--in the USPTO or in the marketplace.
Ready to go? Once you decide to file on this basis and you are certain that you intend to use the mark, you should file as quickly as possible, to obtain the earliest possible date of first use. As you mentioned, the intent-to-use approach is more expensive than filing an actual use application--at least $100 more expensive, plus $150 for each additional six-month extension that is needed. Therefore, it is most appropriate to use the intent-to-use application when you have come up with a truly distinctive mark or you plan to spend big bucks "tooling up" to use your mark and you don't want to prepare branding materials, etc., until you know that the mark will be yours.
Don't do ITU if ... The Dear RIch Staff recommends against using the ITU process for a mark that is legally weak--for instance, it uses common words in a common way or is descriptive of the products or services. In those cases, you will have little choice but to wait until you have put the mark into use and can demonstrate that the public associates the mark with your product or service. Keep in mind that the USPTO will only okay an ITU application for a mark that is distinctive. (By the way, the "French Laundry" is inherently distinctive for restaurant services.)
Monday, March 22, 2010
What state do you live in? Even if your employee handbook proscribes rules where to buy your shirt, you should still check your state's labor laws. Many states regulate costs of company uniforms or other dictated dress codes. For example, in California your employer must pay for your uniforms or other required on-the-job dress.
If it comes down to trademarks ... If your employee handbook doesn't address the issue and your state laws don't help, then the question is: "Does it violate your company's trademark rights to create unauthorized T-shirts with the company logo?" We're pretty sure you will run into a problem. We think your unauthorized use of the corporate logo is likely to cause confusion (and if done badly, it may dilute the company mark, assuming the mark is famous). And of course, unlike other types of infringement, the company is very likely to learn about the infringement.
And what about using a fake company logo? Our favorite Busted Tees shirt raises a bonus question. Can you make company T-shirts when the company only exists as a figment of a sitcom character's mind. (Or wait, is it a real company ... or companies?) We hope the answer is yes, but either way, we're not giving our shirt back.
Posted by The Dear Rich Staff at 9:33 AM
Friday, March 19, 2010
Wednesday, March 17, 2010
Tuesday, March 16, 2010
Right, you had a question (or questions). No, you don't need a logo to register at the USPTO. You can register your name (assuming you're aware of the rules for personal names). As for the appropriate class of goods, you would choose whatever goods (or services) you plan to sell using your name. For example, if you're Chuck Norris, that might be exercise equipment and nunchucks. If you're Brigitte Bardot, that might be swimwear and non-fur wearing apparel.
Right of publicity and trademarks. You're mixing trademark protection and the legal protection offered by the right of publicity (ROP). Under the ROP, anybody can stop the unauthorized use of their name to sell products. Trademark protection is used to make sure that a person or entity has exclusive rights to use their name on the products and to take advantage of the predictable and uniform federal trademark laws. (ROP is a patchwork of state laws.) The reason we associate celebrities with the right of publicity is because non-celebrities are not usually used to sell stuff. (There's a reason they call it the George Foreman grill, which by the way is why we have to wind up this answer as we're kind of in a hurry to unpack our new GF indoor/outdoor grill.)
PS: federal trademark registration can be accomplished for $275.
Monday, March 15, 2010
Why did Tiger lose? The Sixth Circuit believed that the first amendment trumped the right of publicity. A similar ruling happened in a case involving a painting of a famous sports scene from Alabama football history. These are great cases for painters and we want all artists to exploit their first amendment rights (no matter how dopey that can sometimes be). But our takeaway points should also include the fact that both cases took almost four years from filing to final gavel. So, like Clint says, you have to ask yourself, 'Do you feel lucky?' We know that's not the answer you were hoping for but like the fair use defense, that's the reality. Any celebrity or trademark owner can drag you through litigation until a court agrees with you that the balance is tipped in favor of free speech. So, please proceed with caution.
Does it matter whether they're buying the work for my artwork or for the celebrity? That's not the way to frame the question exactly (and in any case it's usually a little of both). In these kinds of lawsuits, the inquiry isn't why people are buying the work, it's more about what the artist has done with the work. Or as one California court put it, "Another way of stating the inquiry is whether the celebrity likeness is one of the "raw materials" from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question." Like fair use analyses, courts seem to be looking for something transformative in the work. The same California court looked at Andy Warhol's celebrity imagery and wrote
"Through distortion and the careful manipulation of context, Warhol was able to convey a message that went beyond the commercial exploitation of celebrity images and became a form of ironic social comment on the dehumanization of celebrity itself.... Although the distinction between protected and unprotected expression will sometimes be subtle, it is no more so than other distinctions triers of fact are called on to make in First Amendment jurisprudence."Gee, we're getting a little winded with all this jurisprudential verbiage. Is it okay if we answer one more question and go lie down.
Can I use publicly viewable images from TV? The Dear Rich Staff thinks you're mixing a couple of concepts, here. Generally you don't need a release for a person (or property) that is viewable in the public. An image on TV may be viewable by the TV-viewing public, but it's not the same as 'being in public.' We know it's hard to separate the two these days and we have problems with it as well. Eventually they'll all be one thing and we won't have to wrestle with it anymore.
Posted by The Dear Rich Staff at 9:36 AM
Friday, March 12, 2010
The good and the bad. The great thing about licensed samples is that you have inexpensive access to great sounding audio clips. The downside is that anybody else can also purchase the same rights, and end up sounding like your tracks. (Just like anybody can license the same photo in their blog as the one we licensed from istockphoto.) By the way, if you register your new tracks, the Dear RIch Staff suggests that you state that you are not claiming rights to the samples (in section 4 of Form CO).
Posted by The Dear Rich Staff at 9:37 AM
Wednesday, March 10, 2010
As a general rule, copyright does not protect single words or short phrases, even if those words or short phrases are nonsense.
Tell it to the Hand. There is an odd collection of copyright cases that indicate that nonsense words may be protectable in different contexts. In a case in which a book of meaningless code words was protected (Reiss v. National Quotation Bureau), the great jurist Learned Hand (and odd-couple pal to J.D. Salinger) wrote, "Conceivably there may arise a poet who strings together words without rational sequence-perhaps even coined syllables-through whose beauty, cadence, meter and rhyme he may seek to make poetry." (Hand's logic in that case was later used as the basis for protecting Apple's operating system object code. The protection of inventive words was part of the copyright-software debate in the late 1980s since nonsense words (source code) are essentially what facilitate our 'human-machine' communications.)
The Jabberwock. In another case, the great Justice Jerome Frank also mentioned a phrase from Lewis Carroll's Jabberwocky, "Twas brillig and the slithy toves" as an example of a nonsense phrase with sufficient originality to achieve copyright protection. There's also a case involving the word 'Supercalafragalisticexpialidocious' in which the court held that copying an inventive word could 'conceivably' create liability. And finally, a British court reviewing the word "Exxon' indicated that inventive words might be protected in some contexts. So, it's possible a sufficiently original collection of coined words will be protected.
When inventive words are character names. If you use the inventive word as a character name, you can likely achieve trademark protection without much problem. You may also get some peripeheral copyright protection for the character name as well -- for example, in one case, merchandisers were stopped from using the phrase "E.T. Phone Home" under copyright law.
Alice's House. Yes, the new Tim Burton movie features the Jabberwock as well as the complete version of the Jabberwocky poem.
Posted by The Dear Rich Staff at 9:38 AM
Tuesday, March 9, 2010
Is Apple right? ... Since Apple's email has raised concerns, we reviewed our information. Conclusion: we're standing by our post. The Dear Rich Staff loves its Mac (and by extension that loves goes out to all Apple employees) and we can only assume that the Apple customer service rep who responded to you had a momentary lapse of judgment perhaps triggered by iPad hysteria.
Hassling Nonauthorized Resellers? Apple cannot halt resales of legitimately acquired U.S. versions of its products. But it can enforce its copyright and trademark rights which means that they may go after unauthorized resellers who use the Apple logo or name to imply Apple's endorsement, or who lift advertising copy or images from the Apple site. On that basis, they pursued unauthorized iPod sellers in 2005 and pursued unauthorized Mac resellers back in 1998. They will also apparently pursue unauthorized resellers who induce authorized resellers to breach their reseller agreements whatever that means -- we haven't located a reseller agreement, so we're not sure.
Monday, March 8, 2010
We turn to the experts. So, the Dear Rich Staff asked Greg Aharonian, a professional patent searcher (and author and patent gadfly) what he thought about the patent's validity (and it looks like it would be a tough challenge). Greg reports: "I can observe a few things. First, the applicants submitted a fair amount of prior art, both patents and non-patents, more than most patents, so it looks like the inventors were seriously pursuing the patent. They submitted multiple examples of a close piece of prior art, "Tag Along Tags blankets," and still got the patent issued. And they cite 'Taggly,' a toy that has tags, which they argue doesn't anticipate a blanket, but is otherwise prior art. So a primary examiner issued them the patent - twice (the patent and the reissue). So circa ten years ago, their invention was considered non-obvious enough to be granted a patent."
Would their patent hold up with today's obviousness standard of "what is predictable" from KSR? Applying that newer standard, Greg says, "Is a Taggie blanket a predictable variation of the Taggly taggy toy? Well, if you squish the toy flat, you have a blanket-shaped object with tags - the Taggies patent. Seems a predictable variation to me. Or not? The Court of Appeals of the Federal Circuit (CAFC) has made a mess of things. A few PATNEWS ago, I mentioned a recent CAFC decision where two judges ruled that it is obvious to go from a Marilyn Monroe card with non-memorabilia item attached - to a baseball card with a memorabilia item attached. Yet Judge Rader, the next chief justice of the CAFC, dissented, saying it wasn't obvious, and that his two colleagues were basically .... idiots. I have no idea how these same three judges would rule on the Taggies patent. And no one else could predict their decision as well, because obviousness caselaw is such a mess. So is the Taggies patent obvious in light of the cited art (or anything similar I could find in a search)? I would rather try to achieve world peace." Thanks Greg, and we're sure if you applied the same skillset you use in busting patents to world peace, the world would be a better place.
Posted by The Dear Rich Staff at 9:40 AM
Friday, March 5, 2010
Thursday, March 4, 2010
But we thought up the nick name ... As we've pointed out before, creating a trademark does not give you exclusive trademark rights. You get the rights if the mark qualifies and if you use it in commerce. Your nephew's application may be granted (or maybe not...) but he'll have a hard time using it if he combines it with any insignia or text that identifies the NBA or its players. He'll also have an uphill battle trying to stop others from using the name in connection with Jerebko. If your nephew avoids any mention of the player name or number or other team identifier, he may be able to get away with his use and sale of merchandise ... it's a little bit like the recent situation in New Orleans. But the bigger his operation becomes, the more likely he'll be to run into trouble.
Wednesday, March 3, 2010
You need a release if ... A properly drafted release basically shields you from lawsuits over two things: (1) you're using someone's image to sell or endorse something; or (2) using the image in a way that harms the person -- it invades the person's privacy or defames the person or otherwise gets them so upset that they call a lawyer and go after the publisher of the photo and sometimes the photographer.
You do not need a release if ... You do not need a release to use a person's name or image for informational purposes. An informational (or "editorial") purpose is anything that informs, educates, or expresses opinions protected as freedom of speech. So if you have a section of your website such as "About Our Members" or you include the images in your non-profit newsletter -- for example, "Members Protest Disney World Mouse Exploitation," then you wouldn't need a release.
Finally ... although it doesn't have the full legal punch of a release, you can always prominently post your photo policy at group gatherings -- a statement such as "We'll be taking photos at our event and posting them at our website. If you don't wish to be included, please inform the photographer."
Posted by The Dear Rich Staff at 9:56 AM
Tuesday, March 2, 2010
Dear Rich: You show a lot of odd pictures of the Dear Rich Staff. It seems a little frivolous to dispense legal advice and yet attribute it to fictitious sources. We agree that people who dispense legal advice should not hide behind a veneer of frivolity. However, the Dear Rich Staff does not dispense legal advice (and we are not entering into an attorney-client relationship ... blah blah blah). Instead, we provide information that we hope can guide you in your decision making. Unlike lawyers who bill by the hour, our staff is free to go off on long-winded side discussions about subjects that would have you smashing the meter at the lawyer's office. By way of example, we're not sure why we keep thinking about that Coco Chanel movie. We think it's because the filmmakers did a good job of humanizing the creation of intellectual property -- showing how Coco picked up cues from her environment (cues that others failed to appreciate) and how she confidently persevered to merge them all into her unique style. (Great artists are usually great opportunists.) She earned a living from her artistic vision and her company still thrives even though nothing but her name (and logo) is protected under law. The Dear Rich Staff is impressed.
Right, you had a "question." We've been getting a lot of "questions" that don't have any question marks and we're formulating a policy about that.
Posted by The Dear Rich Staff at 9:57 AM
Monday, March 1, 2010
Good title; bad title. How do you verify that someone owns copyright? You can start by searching Copyright Office records, or you can hire a search company to research the copyright history. Search results, alas, are not always conclusive. The heirs may not yet have registered ownership in their name, may not have filed documentation evidencing the transfer, or they may have filed documents that have not yet been recorded. There is also the possibility that the records reflect that the heirs own copyright ... but don't reflect the fact that they have since transferred rights. Finally, the heirs may have provided incorrect information to the Copyright Office. A registration doesn't verify that the person owns the copyright; it creates a presumption that the person owns it.
Assurances. So, a wise approach may be to research on your own and to also seek assurances in your option agreement. You can include warranties -- guarantees as to representations of fact -- and indemnities -- promises to pay for all damages and costs if a third-party sues over the ownership issue. At the absolute minimum your option agreement must include a warranty from the heirs that they have the power and authority to enter into the option agreement. You can also ask that the heirs provide you with documentation from the Copyright Office evidencing ownership (that may require them to file documents) and you may also seek other proof of the transfer -- a copy of the will, an opinion letter from the attorney, or documentation from the probate court.
Wild card department. Though it's probably not an issue, it may matter whether the work falls under the 1909 Act or the 1976 Act (effective January 1, 1978). This could affect the rights of the heirs to terminate previously existing transfers of ownership. It's confusing stuff and a lawyer's assistance may be required.
Posted by The Dear Rich Staff at 9:59 AM