Monday, December 30, 2013
What's abandonment? Abandonment occurs when the mark is no longer used in commerce and there is sufficient evidence that the owner intends to discontinue use of the mark -- for example, a company stops filling orders and tells vendors that the product is discontinued. Under the Lanham Act, a mark registered with the U.S. Patent and Trademark Office is presumed abandoned if it is not used for a continuous period of three years or more.
What about similarly named games? If other games have appeared with similar names, that could be a hassle. Have any of these other game-makers already registered the mark? (Here's an explanation on how to search trademark records). If someone else registered it, it's going to be a challenge to displace the registered mark, even if you can demonstrate that you were the first user (and have "priority"). At the same time, if you seek a federal registration, it's possible that one of these other users will seek to oppose your registration, or alternatively, will fight back if you seek to stop their use. Because your course may be tricky to navigate, a trademark attorney's advice can help.
Thursday, December 26, 2013
Are you sure the poets haven't consented? We haven't seen your contest solicitation but every writing contest we have seen provides some rules about rights, particularly if a selection is chosen as a winner or runner-up. Did your solicitation contain any statement that could arguably imply permission? Even if not, you may be able to argue that furnishing an entry implied that the winners expected to be published and consented by way of an implied license. We can't guarantee that argument will work in your case but it would succeed, for example, when a letter to the editor is published. (Implied licenses and related permission are discussed in this poetry-related entry.) (Certainly, your future contests should contain a statement that winning entries will be published.)
Should you publish? We can't tell you whether to go ahead without permission. As a general rule we would be more inclined to proceed without permission for an online, electronic anthology than for a print publication. That's because the online entry can be easily taken down if there is a complaint, while the print publication is irreversible. In any case, if you can't find the poets online, it's equally possible that the poets won't find your anthology, in which case, the risk is diminished substantially.
Monday, December 23, 2013
However ... Keep in mind that the real key to a compulsory license is the phrase "under the authority of the copyright owner." If Beck (assuming he is the copyright owner) has authorized someone else to make and distribute recordings, he would trigger the compulsory license right. At least two artists, Amy Regan, and the Portland Cello Project, appear to have released authorized recordings. More importantly, when our staff spoke with Beck's publisher Kobalt Songs, (see screenshot, below), we were told that they grant Song Reader compulsory licenses. That would explain the presence of the Song Reader compositions at Limelight as well. So, a license from Limelight, or Kobalt, should secure your ability to sell your versions at iTunes.
P.S. As noted, Beck has set up a website for musicians to contribute their versions of Song Reader compositions.
|screenshot from ASCAP site|
Wednesday, December 18, 2013
What about the case law? Websites that frame the content of other sites were initially perceived as stealing the other site’s content. One court found framing to be a copyright infringement because the process resulted in an unauthorized modification of the linked site. (Futuredontics Inc. v. Applied Anagramic Inc.) In another case, The Washington Post, CNN, and several other news companies sued a website, TotalNews, which framed their news content. Under the terms of a settlement agreement, TotalNews agreed to stop framing and agreed to use text-only links. Inlining and framing are often used together when displaying thumbnails of search engine results. The Ninth Circuit has ruled that such uses are fair use. There's more on the subject in this article and here's a summary of some international rulings.
Tuesday, December 17, 2013
That Said Dept. What you're seeking -- to have the licensee pay the patent fees -- is not unusual. In some exclusive licensing arrangements, the licensee pays for the patent application processing and fees. These expenses, including attorney fees, are then usually deducted from the inventor's future royalties (although that's a subject of negotiation -- the parties may split the cost, or the licensee may pay it all). Why would the licensee pay the patent costs? Because it's usually in an exclusive licensee's best interest to have patent rights. On the other hand, you want these costs to be reasonable (good luck with soaring patent attorney fees) and sometimes these patent fee provisions include a cap on your total patent expenses.
Confidentiality. It's in your best interest as an inventor to have disclosures about your invention made under the terms of a confidentiality arrangement. Back in the old days (prior to March 16, 2013), you had a year of sales or public disclosures, before you had to file a patent. That one-year window is now closed with one exception for inventor-made disclosures.
Thursday, December 12, 2013
|great dictators cornhole boards from dear rich staff|
Artwork or merchandise? What's the diff? Right of publicity laws prohibit you from commercially exploiting a person's name, image or persona. On the other hand, the first amendment grants you certain freedoms to express yourself with so-called informational or "communicative" uses -- for example, original artwork, articles, books, or documentaries. Although each state has its own laws and rulings, the trend has been to permit limited edition art prints. For example, in an Ohio case, an artist painted Tiger Woods at the Masters Tournament and later sold more than 5000 prints of the image superimposed with other great golfers. (Here are some details on the artwork). A federal court of appeals ruled that the sale did not violate Tiger's right of publicity. A related ruling regarding paintings of the University of Alabama's football team -- though it dealt more with trademarks than the right of publicity -- also was in favor of the artist. A similar result was reached in a case involving the use of football player Jim Brown's name and image in a sports video game (The court considered the game to be art, though "not Anna Karenina or Citizen Kane.") However when the image use is on merchandise, the cases tend to rule in the favor of celebrities. (The term "right of publicity" was first used in a case involving a ball player's image on baseball cards.)
No copyright infringement. Also, we're assuming that the artwork is not derived from copyrighted photographs (or that your artistic abstractions make the source photo unrecognizable). Otherwise, you may be opening yourself up to another set of problems.
Tuesday, December 10, 2013
Friday, December 6, 2013
Renewal information. You're correct that not all renewal information migrated to the online database. As the folks at the Stanford Library explain, some of the renewal information was slow to move from the Copyright Office print card catalog into the searchable database. (You can read more about the card catalog here.) Stanford sought to correct that with its alternative renewal search system for books. Check that out as well as Rutger's database, and the University of Pennsylvania's online attempt to organize copyright renewal records by year. The most thorough (and expensive) way to verify renewal information is to hire someone to perform a copyright search. You can hire the Copyright Office for $165 an hour, or you can hire a private company to perform the card catalogue search.
Thursday, December 5, 2013
Trademarks? As for whether to seek trademark protection, we recently explained the advantages of various types of doll protection, including trademarks. We also wrote about the steps for doll protection in a 2011 entry though you can disregard the info about Copyright Form CO (R.I.P.). Finally, we've written about modifying existing dolls and selling them, in case that's your modus operandi.
How do you get your doll into stores? That depends on the store. If you're dealing with crafty type gift stores that don't require extensive promotion or fancy packaging, you simply need a prototype to convince the store buyer to buy your doll or take it on consignment. (This article explains the differences between retail, wholesale and consignment sales.) We suspect that by "major stores" you mean Toys R Us or Wal Mart. In that case, you've got a long road ahead. You'll need to license your doll design to a major toy company (which likely will require a third party such as a toy agent). You can read about the licensing process online or in our licensing book. If you don't license your doll, your only other option is to manufacture and package the doll, yourself ... a daunting and expensive task.
Wednesday, December 4, 2013
How it's done ... Acquiring permission to sell merchandise that incorporates video game trademarks or copyrighted material requires that you locate the owner of rights, negotiate an agreement, and execute the agreement in writing. However, the agreement used in merchandise licensing is usually more complex than a typical permission agreement and contains additional responsibilities and boilerplate -- for example, each party may seek warranties and indemnity.
Payment. You probably won't have much choice how payments are structured as the licensors usually dictate the terms. Typically, the licensor is paid an advance plus a royalty based on a percentage of income from sales. The company selling the merchandise (you, the licensee) must meet certain obligations including payments, quality control, and enforcement of rights. If you fail to do so, the license can be terminated.
For more information. This licensing article explains some of the legal basics, and this article explains some of the business basics. And this is what could happen if you sell merch without authorization.