On Friday, the U.S. Court of Appeals for the Eleventh Circuit held that the Official Code of Georgia Annotated (O.C.G.A.) cannot be copyrighted, reversing a decision by the district court in the case of Code Revision Comm’n v. Public.Resource.org.

The court held that the Official Code, including editorial catchlines and annotations written by LexisNexis, is constructively authored by the people of the State of Georgia, through its representatives in the legislature and their contractors. As such, the court reasoned, Georgia’s single official version of its statutes, the Official Code of Georgia Annotated, is in the public domain.

The case was brought when nonprofit Public.Resource.org scanned the O.C.G.A., distributed the scanned version to state legislators and published it online.  The state Code Commission sued Public.Resource.org in federal district court for copyright infringement, and Public.Resource.org countersued for a declaratory judgment holding that state statutes are in the public domain and therefore uncopyrightable.  The district court ruled for the state and issued a preliminary injunction, requiring Public.Resource.org to take all copies offline.

The Eleventh Circuit’s opinion reversed, holding that the statutes themselves were clearly in the public domain under centuries of copyright precedents.  In analyzing whether editorial annotations written by private publisher LexisNexis were copyrightable, the court held that the Code Commission had supervisory control over the work of LexisNexis, and that its annotations were merged with the statutory Code to produce the single, official, authoritative version of Georgia’s statutes.

Therefore, the court held, the complete O.C.G.A., including editorial annotations written by a private publisher on behalf of the Georgia Legislature, is constructively authored by the people of the State of Georgia.  The court held that the entire O.C.G.A. was therefore uncopyrightable and in the public domain.  As the court concluded:

[T]he annotations in the OCGA are attributable to the constructive authorship of the People. To advance the interests and effect the will of the People, their agents in the General Assembly have chosen to create an official exposition on the meaning of the laws of Georgia. In creating the annotations, the legislators have acted as draftsmen giving voice to the sovereign’s will. The resulting work is intrinsically public domain material, belonging to the People, and, as such, must be free for publication by all.

Code Revision Comm’n v. Public.Resource.org, No. 17-11589 (11th Cir., Oct. 19, 2018). The opinion is considered an important win for entrepreneurs, innovators, and members of the public who wish to use public law.

Law Street Media Staff

Law Street Media Staff posts are written by the team at Fastcase and Law Street Media

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A Chinese court just found in favor of New Balance in a trademark case. This is a big win for the American sneaker manufacturer. After all, it has been traditionally very difficult for companies to win IP suits in a country that has many times been accused of turning a blind eye to counterfeits.

The Chinese court ruled that three companies in China–New Boom, New Barlun, and New Bunren–all infringed upon New Balance’s logo, a distinctive N. The three companies owe a combined $1.5 million to New Balance. But while that sum may not seem like much, it’s more than American companies usually get. And it may pave the way for other American companies to be successful in IP disputes in China.

In the past, American companies usually ended up as losers when contesting trademarks. In 2016, Apple lost a lawsuit against a Chinese company using the “iPhone” trademark. Pfizer has lost multiple fights over its Viagra trademark. And Michael Jordan went through a protracted battle over the use of his own name. Most of these losses were based on the fact that Chinese law grants a trademark to whoever filed for it first, and most big American companies were just not quick enough.

But, that may be changing. The U.S. has put pressure on China to tighten its IP laws. China revamped its trademark law in 2014, allowing courts to award higher damages. Scott Palmer, a New York-based IP lawyer told the New York Times:

I don’t think this is a one-off. This is a fairly high-profile case, but I think that it falls squarely within a trend, in which the direction is more toward more significant damage awards when indeed it is warranted.

It doesn’t seem likely that American companies will necessarily start winning IP cases in China left and right. But for companies frustrated with their treatment in one of the world’s largest markets, this could be a good sign for the future.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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The selfie queen herself, Kim Kardashian West, is being sued for $100 million for copyright infringement relating to her signature light up smartphone case. A man by the name of Hooshmand Harooni filed suit against West’s company Kimisaprincess Inc., claiming the LuMee case she endorses is a rip off his own light up case.

The LuMee cases act like portable ring lights, providing continuous lighting around the phone’s perimeter, and typically retail for around $55-$70.

According to the lawsuit, Harooni obtained a patent in 2013 for an “integrated lighting accessory and case for a mobile phone device” and licensed it exclusively to Snap Light LLC.

West has frequently promoted the LuMee case on her social media accounts, and even used it when taking her now infamous selfie with then-Democratic presidential candidate Hillary Clinton.

On the Ellen Show today Hilary Clinton talks about how she never looked better in our perfectly lit selfie! #LUMEE pic.twitter.com/6svy37T46u

— Kim Kardashian West (@KimKardashian) January 11, 2016

Aside from stealing his product, Harooni also claims that West’s promotion of the case awarded LuMee an unfair competitive advantage due to her trendsetter status.

“Despite having superior, patented products, it has been extremely difficult for Snaplight to compete in the selfie case market against Ms. West’s product influence and Defendants’ ongoing infringement,” Harooni claims. He is also suing Urban Outfitters for distributing LuMee. “Snaplight and Mr. Harooni have suffered financially as a result.”

Harooni is suing for $100 million to recoup his lost profits, and is also asking that West stop promoting the LuMee cases.

In a statement to TMZ, a rep for the Kardashians  called the lawsuit another “attempted shakedown.”

“The patent lawsuit filed by Snap Light has no merit and is just another attempted shakedown,” the statement reads. “Kim has done absolutely nothing wrong.”

LuMee echoed that sentiment in a statement of its own:

LuMee is an innovator of illuminated cell phone cases and was the first to market. Between its patents, copyrights and trademarks, LuMee has developed substantial intellectual property rights surrounding its product line. LuMee is currently asserting patent infringement against Snaplight.

For those of you “keeping up” with the Kardashian/Jenner family’s intellectual property lawsuits, July was a rough month for the reality stars. Both Kylie Jenner and her sister Kendall were sued for misappropriating and exploiting images of Tupac Shakur with their controversial vintage tees, and last week, Kylie was also accused of copying a British artist’s work with her lip bite logo for her new television series “Life of Kylie.”

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

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Disney is being sued over the ownership rights to a visual effects technology it used in this year’s “Beauty and the Beast,” 2015’s “Avengers: Age of Ultron,” and 2014’s “Guardians of the Galaxy.”

Rearden, a company founded by Silicon Valley entrepreneur Steve Perlman, filed a lawsuit against Disney Monday in a U.S. district court in San Francisco, alleging copyright, patent, and trademark infringement stemming from the use of a facial-capture technology called MOVA Contour.

MOVA, which was used in “Beauty and the Beast” to convert actor Dan Stevens’ facial movements into those of the Beast character, was developed by Perlman and his associates in the late 1990s. To use MOVA, actors’ faces are airbrushed with glow-in-the-dark paint that is only visible under a black light. A light strobes rapidly–unseen to the human eye–allowing a camera to capture those movements for animators to then use as the foundation for the animated character.

According to the lawsuit, “Disney used the stolen MOVA Contour systems and methods, made derivative works, and reproduced, distributed, performed, and displayed at least ‘Guardians of the Galaxy,’ ‘Avengers: Age of Ultron,’ and ‘Beauty and the Beast,’ in knowing or willfully blind violation of Rearden Mova LLC’s intellectual property rights.”

The lawsuit arose from another ongoing dispute between Rearden and Chinese-based company Shenzhenshi Haitiecheng Science and Technology (SHST). According to court documents from a lawsuit between SHST and Rearden, Greg LaSalle, a former associate of Perlman, helped develop MOVA while employed by Perlman’s companies, Rearden and OnLive.

OnLive went out of business in 2012 and the MOVA Assets were transferred to a company called OL2. When LaSalle transferred from OnLive to Rearden he signed an employee contract containing a Proprietary Information and Inventions Agreement (PIIA), in which he agreed to assign all proprietary information that he acquired during his employment to Rearden.

Following Rearden unsuccessful attempts to launch MOVA commercially, Perlman transferred the MOVA Assets to LaSalle. Perlman later claimed that LaSalle’s PIIA gave Rearden sole ownership rights to the MOVA Assets. Despite those claims, LaSalle sold the technology to SHST in May 2013, according to court documents from the SHST lawsuit.

However, Rearden claims that SHST should not have even been able to buy MOVA, because MOVA Assets–along with their ownership rights–were transferred to a Rearden subsidiary in April 2013. The complaint also notes that LaSalle was not a Rearden employee at the time of the sale, and therefore did not have the authority to sell the technology.

As part of the complaint, Rearden requested an injunction to prohibit Disney from “reproducing, distributing, performing, or displaying” the three movies that used MOVA.

The lawsuits that Rearden and Disney are entangled in are complicated to say the least. But these cases demonstrate the complex nature of intellectual property law, a field that has only become more complex in our increasingly globalized world.

Marcus Dieterle

Marcus is an editorial intern at Law Street. He is a rising senior at Towson University where he is double majoring in mass communication (with a concentration in journalism and new media) and political science. When he isn’t in the newsroom, you can probably find him reading on the train, practicing his Portuguese, or eating too much pasta. Contact Marcus at Staff@LawStreetMedia.com.

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YouTube is facing renewed pressure from musicians and their lawyers over the share of revenue that artists receive from the site compared to other music platforms.

The issue stems from the fact that artists receive $1 per 1,000 plays on YouTube, but $7 per 1,000 plays from companies like Spotify or Apple Music, according to the Recording Industry Association of America (RIAA).

Earlier this Spring the RIAA claimed that YouTube, which is owned by Google, “wrongly exploits legal loopholes” to minimally pay musicians, according to NBC News. It is able to do this because of its standing as a third-party resource, which is protected by federal laws that distance the company from what its users post on the site.

YouTube is not liable due to the “safe harbor” rules, which state that platform sites are not liable if someone uploads a copyrighted song until the copyright holder files a complaint.

“It isn’t a level playing field,” said one music executive who spoke with Washington Post on the condition of anonymity. “Because ultimately you’re negotiating with a party who is going to have your content no matter what.”

The issue has become particularly relevant since the European Union decided to crack down on the issue within its territory. Noting the “value gap” between music services, the E.U. plans to release new regulations that can close the gap and provide artists the royalties that they want. So, the battle against YouTube is heating up.

YouTube’s main argument against these claims is that it provides exposure to musicians who wouldn’t normally get that publicity. The company also notes that it already spends $1 billion in royalties each year. The company claims that if it removed music from its website 85 percent of people would flock to services that offer even lower, or no, royalties. One issue with the validity of this claim is that it is based on a study that was commissioned by YouTube.

YouTube mainly generates its revenue from advertisements and sponsored content, but that money stream has dried up to some degree in recent months. Mega corporations such as Verizon, AT&T, and Enterprise recently pulled ads from YouTube after being displeased with their ads coinciding with videos they didn’t approve, according to Recode. So even though the company has had the money in the past to pay for expensive royalties, they may not have that much extra cash in the coming years.

Artists and those representing them have ample evidence that they are being ripped off by YouTube. Irving Azoff, who has represented musicians like Christina Aguilera, told the Washington Post that one of his other clients gets 33 percent of her streams from YouTube but that yields only 10 percent of her streaming revenue.

Another example: Cello player Zoe Keating showed the Washington Post that she earned $940 from 230,000 streams on Spotify and only $261 from 1.42 million views on YouTube. She said that the YouTube money is so negligible she barely pays attention.

Another issue is that even when YouTube signs licensing agreements with music labels they are signed begrudgingly. When Warner Music Group signed a new deal with YouTube, a memo from chief executive Steve Cooper leaked out revealing his feelings on the “very difficult circumstances”–his company caved instead of continuing to pay $2 million to remove its music from the site.

“There’s no getting around the fact that, even if YouTube doesn’t have licenses, our music will still be available but not monetized at all,” the memo said.

Just as the music industry struggled to adapt to emerging software in the 1990s with the emergence of Napster and Limewire, artists are once again trying to navigate a murky situation with music and video streaming services. Whatever the European Union chooses to do going forward could pave the way for what the American industry will do.

For now, you can still enjoy your favorite music on YouTube, Spotify, Apple Music, or any number of other services, but it’s worth noting how the service you choose affects the money going into the pockets of your favorite musicians. It may not make a difference for well-known artists like Pharrell or Arcade Fire, who have both complained, but it certainly matters for less popular artists like Keating.

Read More: Streaming Music: Good Business or an Attack on Artists?

Josh Schmidt

Josh Schmidt is an editorial intern and is a native of the Washington D.C Metropolitan area. He is working towards a degree in multi-platform journalism with a minor in history at nearby University of Maryland. Contact Josh at staff@LawStreetMedia.com.

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Throughout the western world, indigenous cultures have been fetishized by the ancestors of their past colonizers for their costumes and fashion. As a result, some groups have decided to take legal action to protect their life’s work from corporate mass-production–or at least find a way to earn profits stolen from them. The most recent development has come from Guatemala, where Maya women have made significant strides in their attempt to receive trademark protection for their textile designs–known as huipiles–so that they are not undercut by government-supported industrial fabric production meant to increase the country’s tourism appeal.

The fight began in May 2016 when the Asociación Femenina para el Desarrollo de Sacatépquez (AFEDES)–an indigenous grassroots organization that supports Guatemalan women and their families–brought a motion to the Constitutional Court asking for constitutional protection for their indigenous textiles. Under Guatemala’s constitution, the government guarantees it will “recognize, respect, and promote [indigenous] forms of life, customs, traditions.” AFEDES also cited the International Labor Organization’s Convention 169–which says that governments and companies must consult indigenous people prior to any projects that impact their culture or territory.

“Although from a Western perspective the act of producing our own clothes … is synonymous to backwardness or poverty, for us it constitutes the road to free self-determination of our communities,” said Angelina Aspuac, an AFEDES organizer, during a Constitutional Court hearing.

Prior to the lawsuit, not much had been done to uphold that portion of the country’s governing document. Guatemalan designers had been getting away with utilizing indigenous designs and clothing in their catalogs for years. In 2011, the traditional clothing of the male spiritual leaders of the K’iche’ Maya highland town of Chichicastenango was used for Miss Guatemala in the Miss Universe beauty pageant.

“We are appalled and outraged, because of the misuse of our cultural possessions that follow and are sacred and bequeathed by our ancestors, therefore they are not objects for display and contamination,” wrote representatives of indigenous authorities in a statement.

María’s Bags–a high-end designer handbag company–currently uses indigenous weavings in its products sold for hundreds of dollars in the United States, Europe, and Guatemala. To add insult to the appropriation, María is a commonly-used derogatory word to refer to all Mayan women, though the name was created before the bag designs were approved.

Even with all of this supporting evidence, AFEDES members began to wonder if they would receive the support they so desperately needed in court. They decided that the best course of action would be to make changes to the laws in place. In November 2016, the grassroots organization proposed legislation that would recognize the notion of collective intellectual property and acknowledge indigenous peoples as collective authors of their cultural heritage. If passed, the law would protect Maya weavers from plagiarism and allow them to receive royalties for the commercial use of their designs. The bill was officially accepted for debate on July 3 and currently awaits Congress’ consideration

The progress this legislation has made is unprecedented because history has shown that treatment of indigenous populations domestically–and internationally–has ranged anywhere from purposefully ignorant to downright horrific. In Guatemala, the country has refused to recognize collective intellectual property, even though an estimated 51 percent of the country’s population belongs to the Maya group. The Mayan population also suffered the most during the country’s civil war when over 80 percent of the 200,000 people killed were indigenous.

Around the world, indigenous communities have organized to challenge the use of sacred designs for the sake of fashion. In 2011, for example, the Navajo Nation sued Urban Outfitters for millions of dollars for the appropriation of its name for a clothing line. The tribe lost the two lawsuits, with the court claiming that the tribe’s trademark was used as a style description, and not as a reference to the tribe. In 2016, Canadian design collective Dsquared2 released a line of stereotypical aboriginal outfits called #Dsquaw–a name based on the term “squaw” which is used as a derogatory word toward indigenous women. While the company did issue an apology, it was still awarded with the Team Canada Rio 2016 clothing contract.

Gabe Fernandez

Gabe is an editorial intern at Law Street. He is a Peruvian-American Senior at the University of Maryland pursuing a double degree in Multiplatform Journalism and Marketing. In his free time, he can be found photographing concerts, running around the city, and supporting Manchester United. Contact Gabe at Staff@LawStreetMedia.com.

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In 2014, Facebook CEO Mark Zuckerberg announced that the social networking giant was making a transformative new acquisition: Oculus VR. Oculus is a virtual reality company that aims to redefine digital entertainment by taking its users into a completely virtual world. However, the VR company may have to completely redesign its coding platform and remove some VR headsets from the market due to a lawsuit from prominent video game maker ZeniMax.

A jury Awarded ZeniMax $500 million in February, but now the company is seeking an injunction to block Facebook from selling the Oculus Rift headset on account of alleged copyright violations. According to the February ruling, former employee and Oculus co-founder Palmer Luckey, violated his non-disclosure agreement and committed copyright infringement and false designation when he took code from ZeniMax to develop the Oculus VR technology. If ZeniMax does not receive a permanent injunction from the judge, the company wants a 20 percent cut of all Oculus sales over the next 10 years.

According to Bloomberg, the likelihood that the product will be pulled from the market is not very high, even though the two companies are competitors. Historically, judges have preferred financial compensation over ordering companies to take products off the shelves. The judge in this case–Ed Kinkeade, a district court judge in Northern Texas–encouraged both sides to reach a settlement and avoid a trial when they presented their cases on Tuesday.

Facebook is strongly resisting efforts to stop Oculus sales. The company’s lawyers argue that placing a ban on the products would put unfair hardship on Oculus, only benefit ZeniMax, and “detract from the public’s enjoyment” of virtual reality technology. Furthermore, in a court filing on June 15, Facebook argued that the required payout was unfair and said that $50 million would be more than reasonable.

Facebook has a lot at stake with this decision. Not only did the company spend $2 billion to purchase Oculus in 2014, but according to Bloomberg, the virtual reality and augmented reality industry may be worth an estimated $40 billion in 2020.

Virtual reality and augmented reality technologies are continuing to grow within the tech world. For example, in Apple’s upcoming iOS 11 update includes an ARkit for developers to incorporate AR into their apps. Apple forged a partnership with Ikea to use ARkit, which will let users see how the company’s furniture would look in their homes. The possibilities in VR and AR are seemingly endless and Facebook does not want to miss out.

James Levinson

James Levinson is an Editorial intern at Law Street Media and a native of the greater New York City Region. He is currently a rising junior at George Washington University where he is pursuing a B.A in Political Communications and Economics. Contact James at staff@LawStreetMedia.com

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On Monday, the Supreme Court ruled that a law banning the registration of offensive trademarks was unconstitutional. The decision was a victory for the Asian-American dance rock band The Slants–and potentially the Washington Redskins.

Simon Tam, the band’s frontman, filed a lawsuit after the U.S. Patent and Trademark Office (USPTO) denied his application for a trademark for the name “The Slants.” The agency cited the Lanham Act, which prohibits trademarks “which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

The court ruled in an 8-0 decision that the “disparagement clause” of the Lanham Act violates the First Amendment’s free speech clause. Justice Samuel Alito, who delivered the majority opinion of the court, said Tam chose the name of the band “to ‘reclaim’ the term and drain its denigrating force.” According to Alito, the ban on offensive trademarks “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

The federal government had argued that trademarks are government speech, but Alito wrote to the contrary, saying “trademarks are private, not government speech.” Chief Justice John Roberts as well as Justices Clarence Thomas and Stephen Breyer were in agreement on the majority opinion.

While the justices reached a unanimous judgement, they were split on why they believed it violated the first amendment. In a concurring opinion, Justice Anthony M. Kennedy, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, wrote that the measure in question constitutes “viewpoint discrimination.”

Justice Neil Gorsuch did not contribute because he had not yet been confirmed as a justice in January when the court heard the case.

The Slants celebrated the victory with a lengthy statement following the ruling. “The Supreme Court has vindicated First Amendment rights not only for our The Slants, but all Americans who are fighting against paternal government policies that ultimately lead to viewpoint discrimination,” wrote Tam.

Tam said the band never considered itself a political group, but that “the establishment of an Asian American band was a political act in of itself.” As a result, the band has integrated activism into their work by raising awareness and funds for issues affecting Asian Americans.

“Music is the best way we know how to drive social change: it overcomes social barriers in  a way that mob-mentality and fear-based political rhetoric never can,” Tam said.

The Slants’ trademark case could also impact other controversially named groups like the Washington Redskins, which has been in jeopardy of losing its team name for being racially offensive.

In 2014, the Patent and Trademark Office canceled the team’s trademark because the team’s name is a derogatory term for Native Americans. The Redskins appealed the case, but the federal appeals court had delayed hearing it until the Supreme Court ruled in Tam’s case.

Redskins attorney Lisa Blatt said the Supreme Court’s decision “resolves the Redskins’ long-standing dispute with the government.”

“The Supreme Court vindicated the team’s position that the First Amendment blocks the government from denying or cancelling a trademark registration based on the government’s opinion,” said Blatt.

Marcus Dieterle

Marcus is an editorial intern at Law Street. He is a rising senior at Towson University where he is double majoring in mass communication (with a concentration in journalism and new media) and political science. When he isn’t in the newsroom, you can probably find him reading on the train, practicing his Portuguese, or eating too much pasta. Contact Marcus at Staff@LawStreetMedia.com.

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Colloquially speaking, the term “unicorn” is often used to describe something that’s pretty unique. Well, that definitely wasn’t the case with Starbucks’ now-extinct “Unicorn Frappuccino,” according to a new lawsuit filed against the company.

Williamsburg coffee shop The End Brooklyn is suing the green-strawed giant, claiming it ripped off its popular “Unicorn Latte” and created an unfair competitive advantage.

!! RG: @lorensaidwhat

A post shared by The End Brooklyn (@thendbrooklyn) on Feb 4, 2017 at 1:35pm PST

The End introduced its $9 Unicorn Latte in December and applied to register the name with the United States Patent and Trademark Office in January. The application is still pending.

But even though “latte” is in the drink’s name, it actually doesn’t contain coffee or milk. Instead, it’s made up of a latte blended fresh ingredients such as cold-pressed ginger, lemon juice, cashews, and maca root–while Starbucks’ drink is made up of a whole lot of sugar and food coloring.

“The Unicorn Latte has been the most popular product we’ve created to date, so we were shocked and disappointed when Starbucks came out with the Unicorn Frappuccino, which is similar to our product in name and appearance, but has none of its healthy ingredients,” The End co-owner Bret Caretsky said in a statement.

The Unicorn Frappuccino was available in stores from April 19-23. The pink-and-blue drink quickly boosted Starbuck’s third-quarter earnings, inspiring the brand to announce more “Instagramable” drinks to come.

Missed out on the Starbucks Unicorn Frappuccino? Fear not, there’s a new DRAGON version out now https://t.co/Fo7lTVwKmg pic.twitter.com/0spOv7nstw

— Daily Mirror (@DailyMirror) April 26, 2017

The End claims Starbucks’ Unicorn Frappuccino is “deceptively similar” to its Unicorn Latte, to the point where it “caused consumer confusion whereby customers began referring to Starbucks’ product as a ‘Unicorn Latte,’ ” and “began asking employees at The End to serve them a ‘Unicorn Frappuccino,'”according to the lawsuit.

Starbucks fired back with its own official statement:

We are aware of the claims and believe they are without merit. The Starbucks Unicorn Frappuccino blended beverage was inspired by the fun, spirited and colorful unicorn-themed food and drinks that have been trending in social media. The beverage was offered for a limited time in April and is no longer available in our stores.

The End is seeking an undisclosed amount of money for damages–although some reports place the number at $10 million–and a public apology, according to the lawsuit. However, it’s unlikely that it will ever see a dime since it technically holds no copyright for the latte name and Starbucks no longer sells the drink.

Check out the full lawsuit below.

Unicorn Complaint by Eater.com on Scribd

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post Unicorn v. Unicorn: Starbucks Sued Over Mystical Frap appeared first on Law Street.

On the eve of International Women’s Day, under the cloak of darkness, a 4 foot 2 inch bronze girl appeared in front of the iconic “Charging Bull” statue in New York City’s Financial District. People quickly took note of the “Fearless Girl,” praising the statue for its symbolism of gender equality in the workplace; however, one man notably took offense. Sculptor Arturo Di Modica, the bull’s creator, says the pint-sized statue violated his rights and distorted the meaning of his sculpture. Now he’s threatening to sue.

Di Modica argues that the clever placement of the Fearless Girl statue was copyright infringement and distorted the meaning of his sculpture. Instead of consulting with Di Modica first, State Street Global Advisors placed the statue created by Detroit-based artist Kristen Visbal there without his permission.

“The statue of the young girl becomes the ‘Fearless Girl’ only because of the Charging Bull: the work is incomplete without Mr. Di Modica’s Charging Bull, and as such it constitutes a derivative work,” wrote Di Modica’s attorneys in a letter Tuesday to Ronald O’Hanley, president and CEO of the investment firm.

State Street Global Advisors commissioned the statue for the anniversary of its Gender Diversity Index SHE, which tracks companies that are gender diverse.

Similar letters were also sent to New York City Mayor Bill de Blasio and McCann Worldwide, which Di Modica’s lawyers’ said developed an ad campaign for the statue. But based on Mayor de Blasio’s Twitter Wednesday, he appears to have sided with the girl statue’s creator.

Men who don’t like women taking up space are exactly why we need the Fearless Girl. https://t.co/D2OZl4ituJ

— Bill de Blasio (@NYCMayor) April 12, 2017

The Charging Bull first appeared in front of the New York Stock Exchange in 1989 as a guerrilla art installation. The bronzed bull, which took two years to complete, was designed to symbolize the American people’s resilience following the stock market crash of 1987. The city eventually removed the permitless art piece, but it was later reinstalled permanently in Bowling Green Park.

“The bull represents strength,” said Di Modica. “The strength of America, the strength of the market.”

Now, pitted against the independent little girl, Di Modica’s bull looks aggressive and menacing. Instead of being a symbol of American economic strength, it’s become a symbol of gender oppression thanks to Visbal’s pigtailed girl fearlessly staring down the bull with her hands defiantly on her hips. Without the bull, one could argue that the girl–which has become a tourist sensation–wouldn’t have been nearly as popular.

In March, de Blasio announced that the temporary month-long installation would be extended until February 2018 thanks to its overwhelming popularity. But Di Modica wants the statue moved to somewhere else in the city, and is requesting unspecified monetary damages.

Since Di Modica intended for his bull to stand alone, his attorney, Norman Siegel, could argue that the statue violates the Visual Artists Rights Act of 1990. This act grants visual artists the right “to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right.”

Slate’s Christina Cauterucci noted that this law doesn’t apply to artworks created before the law’s enactment. So in other words, Di Modica will need to find another legal basis for his lawsuit against the city if he chooses to file one. Although, a more optimal solution would be for the city to simply relocate the statue and put the issue to bed.

While Visbal’s statue appears to have been well-intended, it clearly derives its meaning from the Charging Bull, distorting its legacy.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

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When life hands Beyoncé lemons, she makes “Lemonade.” So how will she handle a $20 million lawsuit?

The singer is being sued by the family of a late rapper, comedian, and Youtube personality for allegedly sampling him without permission in “Formation,” a chart-topping single from her most recent album, “Lemonade.”

The song features the voice of Anthony Barré, better known by his stage name Messy Mya. Barré’s humor made him a local celebrity in New Orleans, where he lived, but he would also use his platform to discuss the short life expectancies of young black men in the city. In 2010, at 22 years old, he was shot and killed.

Recordings of his voice, pulled from a handful of his videos, can be heard at the beginning of “Formation” and in between verses. Some saw Beyoncé’s inclusion of Barré on the track as a both a tribute to New Orleans culture and commentary on the city’s violence.

But the internet sensation’s sister, Angel Barré, is seeking royalties as well as proper attribution to her brother, who is allegedly not listed in the song’s credits. Anthony Barré’s estate said they had reached out to Beyoncé before filing the suit, but she was unresponsive.

The copyright case, which was filed in Louisiana District Court, also names Sony Music and Beyoncé’s company Parkwood Entertainment as defendants. According to MTV News, the lawyers representing Barré’s estate wrote in a statement:

The Estate of Anthony Barré alleges that Beyoncé Knowles Carter, Parkwood Entertainment, LLC, Sony Music Entertainment and others produced, distributed, publicly performed, used and otherwise exploited the voice, words and performance of the late Anthony Barré, also known as Messy Mya, without authorization in the extremely popular ‘Formation’ recording. Barré was a well-known performance comedian, music artist and MC in New Orleans. He is very closely associated with the Bounce music phenomenon in New Orleans. There are more than a hundred videos documenting his performance, statements, comedic routines, etc.

According to Forbes, the popstar could potentially use the fair use doctrine, which allows certain uses of copyrighted material without permission from the owners, as a defense, because of the political statements included in “Formation.” Under the 1976 Copyright Act, reproducing work “for purposes such as criticism, comment, news reporting, teaching…scholarship, or research, is not an infringement of copyright.” This argument, however, may not hold up given how much she has profited from the song.

In September, a New York judge dismissed a separate copyright suit regarding “Lemonade,” in which a filmmaker claimed that Beyoncé had replicated scenes from one of his films in the album’s trailer and music videos.

Victoria Sheridan

Victoria is an editorial intern at Law Street. She is a senior journalism major and French minor at George Washington University. She’s also an editor at GW’s student newspaper, The Hatchet. In her free time, she is either traveling or planning her next trip abroad. Contact Victoria at VSheridan@LawStreetMedia.com.

The post Why is Beyoncé Being Sued for $20 Million? appeared first on Law Street.

A two-year legal battle between the world’s two most well-known Kylies seems to be settled…for now. In 2015, Kylie Jenner, who became famous thanks to the reality show “Keeping Up With The Kardashians,” attempted to trademark her first name. She filed a request with the U.S. Patent and Trademark Office (USPTO) so that she could use it for advertising purposes in the U.S.

But Australian pop legend Kylie Minogue wouldn’t have it. Her team filed a notice of opposition in February 2016, claiming that Jenner trademarking their shared first name would damage the pop diva’s brand.  Minogue has sold perfume, make up, skincare products, jewelry, and other items under her own name. The opposition notice describes her as an “internationally renowned performing artist, humanitarian and breast cancer activist” who is widely known by her first name.

Kylie Minogue wins a legal battle against Kylie Jenner over the “Kylie” name trademark: https://t.co/RX0gIIlVs9 pic.twitter.com/0hJROzAGuq

— Entertainment Weekly (@EW) February 7, 2017

Even though most young Americans now associate “Kylie” with the Kardashian-Jenner clan’s youngest, Minogue has been a globally-known pop star since 1979. And her lawyers didn’t have very nice words for then-19-year-old Jenner when she filed the lawsuit: “Ms. Jenner is a secondary reality television personality,” whose “photographic exhibitionism and controversial posts have drawn criticism from, e.g., the Disability Rights and African-American communities,” the notice of opposition read.

Minogue already has very similar trademarks such as “Kylie Minogue Darling,” “Lucky–the Kylie Minogue musical” and “Kylie Minogue,” as well as her website kylie.com. The musical doesn’t exist yet, but she has plans to produce one some day. Shortly after filing the documents, Minogue tweeted:

Hello….. My name is KYLIE #lightyears

— kylie minogue (@kylieminogue) February 28, 2016

The case has been suspended at least twice in the past year due to settlement negotiations. On January 19, Minogue withdrew her opposition. Jenner’s application for the trademark may proceed, and the case was listed as “terminated” on January 26, so it’s possible that there was a quiet agreement reached.

In the midst of all this, Jenner released her cosmetic line “Kylie Cosmetics” last summer. She also lost a separate battle in which she aimed to trademark her full name in November 2015. She planned to use “KYLIE JENNER” to sell a very long list of clothing and accessories–“Belts; Bottoms; Coats; Dresses; Footwear; Gloves; Headbands”–and so on. But the USPTO denied the request, as the name is “confusingly similar” to other trademarks such as totally unrelated clothing brand “Kylee,” and Jenner’s brand with her sister, “Kendall and Kylie.” But Jenner filed an appeal on January 23, so the process is likely not over yet. Seems like Jenner’s lawyers have been pretty busy!

Emma Von Zeipel

Emma Von Zeipel is a staff writer at Law Street Media. She is originally from one of the islands of Stockholm, Sweden. After working for Democratic Voice of Burma in Thailand, she ended up in New York City. She has a BA in journalism from Stockholm University and is passionate about human rights, good books, horses, and European chocolate. Contact Emma at EVonZeipel@LawStreetMedia.com.

The post What Happened in the Kylie vs. Kylie Legal Battle? appeared first on Law Street.

If you’ve ever been on a road trip in the Mid-Atlantic or Florida, you’ve likely stopped at a Wawa for gas, snacks, or made-to-order fast food. In certain states, love for Wawa is even cult-like. But now, Wawa devotees are seeing their favorite rest stop destination in the news, as the chain has filed a trademark infringement lawsuit in federal court against a Paterson, New Jersey food store called DaWa.

According to DaWa’s owner, Mike Han, the name is based on the Korean phrase “everyone is welcome.” He has owned the store for a few years, and was shocked by the lawsuit. He told NJ.com “I was laughing when I saw the lawsuit. The issue makes no sense at all.”

The lawsuit claims that customers will be confused by the names, and mistake DaWa for Wawa, and Wawa has put a lot of work into its reputation. The lawsuit reads:

The WAWA mark receives significant unsolicited media coverage and has been seen and heard in movies and television shows, such as the popular sitcom The Goldbergs, as well as periodicals such as Harvard Business Review, where a case study featured Wawa as a strong brand with a noted and devoted following.

The fonts on the logos do look similar. And DaWa’s sign has a leaf over its name, while Wawa has a goose. The goose symbolizes the fact that the convenience store chain was named after a Native American word for Canadian Geese.

Wawa vs. Dawa: Convenience store chain sues store over name
??? https://t.co/ECet6kAzUz

— thaiparampil (@thaiparampil) February 4, 2017

Wawa has gone after companies that had similar names to it before. According to Philly.com writer Michael Boran:

In the late 1990s in Lehigh County, a judge ordered a store named ‘Haha’ to change its name after Wawa filed a suit. Haha’s owner relented, but said after the ruling: ‘We only lost the court battle. We won the war. Everybody knows we’re here.’

In Florida, Wawa also sued in 2014 to order a restaurant called ‘Wawa Curry Taste of India’ to change its name. A judge sided with Wawa, and the restaurant changed its name to ‘Wava Taste of India.’

We’ll have to see if Wawa is as successful this time.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Wawa Sues Convenience Store Named DaWa appeared first on Law Street.

An Asian-American dance rock band known as The Slants is one step closer to securing a trademark for its name. But a victory for them could have some unintended consequences. The group recently argued its case to the Supreme Court after a years-long legal battle that began when the U.S. Patent and Trademark Office (PTO) denied the band’s application to trademark its name, which is intended to reclaim an anti-Asian slur.

According to the PTO, granting the trademark would be prohibited by the 1946 Lanham Act, which forbids the “registration of marks considered scandalous or immoral” or language that may “disparage” a group of people, like Asian-Americans.

But the Washington Post reported that during an oral argument on Wednesday, the majority of justices seemed to come down on the side of The Slants, who argued that blocking the trademark would violate the First Amendment. Justice Elena Kagan pointed out that the PTO refusing to trademark speech it viewed as negative would be “viewpoint discrimination.”

On the other hand, Justice Sonia Sotomayor said that “no one is stopping” the band from calling itself The Slants, and that pushing for a trademark would be “asking the government to endorse” the name. But approving a trademark for The Slants might open the door for the PTO to grant trademarks for other offensive terms (although Justice Ruth Bader Ginsburg noted during the arguments that the band’s intent was not to be disparaging).

A win for The Slants in Lee v. Tam could also mean a win for the Washington Redskins, which was denied a trademark in 2014 for the same reason. The football team filed an amicus brief–a document submitted by a party that is not involved, but has a strong interest in the case–to support the band.

The support from the Redskins is ironic, considering the fact that the team has come under fire for spreading Native American stereotypes, while The Slants prioritize combating racism. The band’s front man Simon Tam has explicitly tried to distance himself from the Redskins’ case and its owner Dan Snyder. “I don’t want to be associated with Dan Snyder,” Tam told the Washington Post.

Victoria Sheridan

Victoria is an editorial intern at Law Street. She is a senior journalism major and French minor at George Washington University. She’s also an editor at GW’s student newspaper, The Hatchet. In her free time, she is either traveling or planning her next trip abroad. Contact Victoria at VSheridan@LawStreetMedia.com.

The post Rock Band The Slants Takes Trademark Case to the Supreme Court appeared first on Law Street.

Grab your aux cord, because there’s a possibility that your favorite radio station is about to lose the rights to a lot of music.

A legal dispute between music rights organization Global Music Rights (GMR), which represents songwriters for artists such as Pharrell, Drake, and The Beatles, and the Radio Music Licensing Committee (RMLC), a group that represents commercial radio stations in music licensing matters, could pull a lot of songs by major artists off of radio stations nationwide.

GMR, a performing rights organization founded by former entertainment executive Irving Azoff, claims in its lawsuit that current licensing fees are too low, causing songwriters to be under-compensated. GMR’s suit against RMLC reportedly accuses radio stations of acting as a “cartel” that works to keep payments to songwriters low. The lawsuit demands that these fees be raised.

In its dueling lawsuit against GMR, RMLC accuses the organization of trying to “force the radio industry into paying exorbitant prices for a license to the musical works it claims are covered by its repertory, with a credible threat of financially ruinous copyright infringement litigation.” Calling GMR’s objectives “unlawful,” the lawsuit claims that GMR has been luring away songwriters from other performance-rights organizations ASCAP and BMI with promises of higher compensation. This would force radio stations to give in to demands of higher licensing fees, or else risk losing a whole roster of songs.

ASCAP and BMI have agreed to pay royalty rates to artists at rate of 4 percent of stations’ revenues, according to Rolling Stone.

If the dispute is not resolved, it could mean that many stations would be unable to afford the licensing fees for songs written by many of the top songwriters of today. Songwriters represented by GMR are reportedly responsible for 7.5 percent of all songs on the radio.

In the midst of RMLC’s legal battle with GMR, the organization also just signed an agreement with ASCAP to increase royalties for ASCAP members. The agreement seemed to be reached amicably, and the RMLC chairman seemed to aim a subtle jab at GMR in a statement to Billboard: “This agreement demonstrates how the creative and music user communities can work together in good faith to produce an outcome that is positive for both sides.”

This legal battle could potentially turn out to be a big one for the radio industry, as it struggles to survive in the era of digital music.

Editor’s Note: This article has been modified to make a correction to the names of artists with songs written by GMR-represented songwriters.

Mariam Jaffery

Mariam was an Executive Assistant at Law Street Media and a native of Northern Virginia. She has a B.A. in International Affairs with a minor in Business Administration from George Washington University. Contact Mariam at mjaffery@lawstreetmedia.com.

The post Radio Stations vs. Songwriters: Will Your Favorite Music Be Affected? appeared first on Law Street.

Anyone who has seen the HBO hit show “Game of Thrones,” (or read the books on which the series is based) would recognize the phrase “Winter is Coming.” A popular catchphrase for the show, “Winter is Coming” has been used on multiple advertisements and pieces of merchandise. And it has certainly made its way into fans’ vernacular–so much so that a 13-year-old British girl used the phrase in a piece of art, and then uploaded it to a few different artist sites. One is called Redbubble, and can be a venue for artists to sell their work. At that point, HBO, which owns the trademark to the phrase issued a takedown notice, and she had to take the art down. Her family is now upset, and many are outraged that the company took such a harsh action against a young girl’s work.

The girl’s father, Jeffrey Wilcox, told the Register:

My daughter, who happens to be autistic, was doing an art challenge called Huevember which consisted of doing a piece of art based on a different [color] as you worked your way round a [color] wheel.  She was uploading her pictures to a variety of sites and sharing them on Facebook. For this particular piece, she decided to title it ‘winter is coming.’ I do not believe she uploaded the picture to RedBubble to make any particular financial gain, she just thought it a sensible place to put it.

Wilcox also had some angry words for HBO:

My first reaction to the letter was FFS. HBO should get a life or stick something where the sun doesn’t shine. On further investigation, it appears HBO are doing this all over the place regarding this phrase. It seems to have upset a lot of people on Etsy and elsewhere who have had the same or similar letter.

The Register also uploaded a copy of the art to its site, with the caption, “the teen’s digital painting targeted by HBO … Come at us, bro.” See it here. 

Takedown notices based on trademarked phrases aren’t unheard of. Taylor Swift went after vendors on Etsy for the exact same thing. But HBO’s attacks on a young girl’s art may have crossed the line.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post HBO Demands Takedown of Girl’s Art that Uses “Winter is Coming” appeared first on Law Street.

His unmistakeable bald-headed silhouette, arm outstretched and palming a basketball, adorns a Chinese sports company’s products and its nearly 6,000 storefronts. His transliterated name in Mandarin is Qiaodan (pronounced “chee-ow dahn”), which doubles as the company name, Qiaodan Sports Company. But on Thursday, China’s highest court ruled that Michael Jordan, whose name is recognized and monetized from Brooklyn to Beijing, owns the legal rights to the Chinese equivalent of his name.

Jordan initially filed the trademark lawsuit in 2012. As recently as last July China’s Supreme People’s Court ruled in favor of Qiaodan; lower courts ruled the same. But the highest court reversed those decisions on Thursday, giving Jordan a potentially precedent-setting victory. “Nothing is more important than protecting your own name, and today’s decision shows the importance of that principle,” Jordan said in a statement. Qiaodan officials, in a statement through their Weibo account, said they respected the ruling.

Trademark lawsuits in China, a country rife with cheaply made ripoffs, usually favor the first party to file the trademark. This ruling is unusual and, some legal analysts say, can set a new standard for Chinese companies that push the limits of trademark infringement and questionable branding practices. It is also not the first time a major U.S. brand has fought companies in Chinese courts. In May, Apple lost a lawsuit involving a Chinese company that sold leather products stamped with the iPhone trademark.

Michael Jordan beat Qiaodan in China’s Supreme People’s Court. He really is the GOAT: https://t.co/bohQBWrIIv pic.twitter.com/SA0BP726iO

— SoleCollector.com (@SoleCollector) December 8, 2016

The U.S. Chamber of Commerce welcomed the ruling, saying in a statement: “The Court has called an intentional foul and sent a clear message of deterrence to those who file trademarks in bad faith.” The statement continued, saying that the court’s decision is “about creating a legitimate marketplace where consumers can trust the products they buy.”

A family-owned business based in the southern Fujian province, Qiaodan first registered the “Qiaodan” trademark over a decade ago. Jordan sued in 2012. “It is deeply disappointing to see a company build a business off my Chinese name without my permission, use the number 23 and even attempt to use the names of my children,” he said in a statement at the time.

Jordan’s Chinese name will return to China’s State Administration for Industry and Commerce. And while the Chinese sportswear company will be forced to re-brand, the court did not grant Jordan full ownership of his Chinese name. The court said the pinyin, or romanized version of the name “Qiaodan” is a fairly common name that is not exclusively linked to the basketball legend.

Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

The post Michael Jordan Wins Four-Year-Old Trademark Lawsuit in China appeared first on Law Street.

A group of 11th graders in Sydney, Australia have recreated Daraprim, the anti-parasite drug that Martin Shkreli bought and price gouged last September, making him one of the most despised figures in the U.S. The pharmaceutical experiment was the result of a collaboration between Sydney Grammar School, and the University of Sydney’s Open Source Malaria Consortium, which has conducted joint projects with the school for the past two years.

Working for an hour before and after school, the boys involved in the project “shared the outrage of the general public” for what Shkreli did, which helped shape the focus of their work, said the University of Sydney chemist Alice Williamson, who helped the boys remake the life-saving drug.

Last fall, Shkreli attracted the chagrin of many people in the U.S., if not the world, when his company Turing Pharmaceuticals bought Daraprim, and changed the price from $13.50 to $750 per dose. Daraprim is the brand name of the chemical pyrimethamine, which is used to treat HIV and AIDS patients, and protect people with vulnerable immune systems from diseases like malaria and toxoplasmosis. Shkreli responded to the news on Twitter, saying “learning synthesis isn’t innovation,” and “almost any drug can be made at a small scale for a low price.”

Martin Shkreli meets his match in group of Australian schoolboys who recreated lifesaving drug for just $20 a pill https://t.co/QCJjs2cuWN

— CNN (@CNN) December 1, 2016

The young chemists began their mission in February, intermittently posting their results on the Open Source Malaria Consortium, where other researchers could comment on and suggest changes for their work. Last week, the boys finished, and Williamson took their results to a lab at the university to test for authenticity. “They’ve really gone and done it,” Williamson told The Washington Post. “They’ve made a very pure sample of the medicine too, which is a challenge.”

After months of work, the students produced 3.7 grams of pyrimethamine, or about $110,000 worth, according to what Shkreli’s drug costs on the U.S. market. In Australia, patients can purchase 50 tablets of the drug for $12.99. The boys do not plan on bringing their version to the market, however.

“We’re not thinking of starting a business out of this. That’s not the aim,” Williamson said. In addition, because Turing Pharmaceuticals operates through a “closed distribution model” of Daraprim, which restricts its access to patients, doctors, distributors, and pharmacies, the boys’ version could not enter the U.S. market as a generic drug either.

“To take the drug to market as a generic, you need to compare it to Turing’s product. If Turing won’t allow the comparisons to take place, you’d need to fund a whole new trial,” said Open Source Malaria Consortium founder Matthew Todd.

To one of the students, James Wood, the project was not at all about profiting off of their work, or as a personal rebuke to Shkreli. In an interview with The Sydney Morning Herald, he said: “we really hope this just makes a point about the nature of the pharmaceutical industry and the way drugs are patented and sold for absurdly high prices, when they should be being used to treat life-threatening illnesses.”

Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

The post High Schoolers Cheaply Reproduce the Martin Shkreli Price-Hike Drug appeared first on Law Street.

It appears that Stephen Colbert doesn’t own “Stephen Colbert.” Rather, Colbert, the host of CBS’s “The Late Show,” doesn’t own the rights to the character he developed and played for almost 20 years on Comedy Central.

On Wednesday, Colbert announced on his show that the “Stephen Colbert” character from “The Colbert Report” is the intellectual property of Viacom, Comedy Central’s parent company, and would “never be seen again.” In response to disappointed “boos” by the audience, he responded, “I understand, but what can I do? The lawyers have spoken. I cannot reasonably argue I own my face or name.”

Last week, he brought back his former alternate persona in order to make sense of the Trump nomination, using one of his signature bits called “The Word.”

After the show aired, however, “corporate lawyers” from Colbert’s former network allegedly reached out to claim their IP over the character. “Stephen Colbert,” the faux-conservative newsman, was a feature on Comedy Central’s “The Daily Show” before receiving his own show on the network in 2005. Last year, Colbert retired the character after taking over for David Letterman on CBS.

While this may be sad news for the “Colbert Nation,” don’t fret just yet: Colbert may have found a suitable alternative. After announcing the end of “Stephen Colbert,” he introduced “Stephen Colbert’s identical twin, “Stephen Colbert,” who may be a worthy replacement. He also introduced his new segment “WERD,” which bears only a slight resemblance to “The Word.”

So far, there is no news on whether Viacom’s legal team has fired back to challenge the eerie similarities between the new “Colbert” and his retired cousin.

The Hollywood Reporter notes the legal complexities surrounding this case, and explains why “Stephen Colbert’s identical twin cousin” may avoid copyright infringement claims and may actually be able to qualify for its own copyright. However, the article notes that if the new character earns a separate copyright, it would probably be owned by CBS rather than Colbert himself. So, let’s hope that Colbert stays where he is, otherwise, he may need to pull out another extended family member if he wants his satirical alter-ego to live on.

While Colbert himself may have abandoned his Comedy Central show last year, it appears he hasn’t let go of the character that millions have grown to love.

Mariam Jaffery

Mariam was an Executive Assistant at Law Street Media and a native of Northern Virginia. She has a B.A. in International Affairs with a minor in Business Administration from George Washington University. Contact Mariam at mjaffery@lawstreetmedia.com.

The post Stephen Colbert Doesn’t Own His “Colbert Report” Character appeared first on Law Street.

Citigroup, the banking company with over $1.7 trillion dollars in assets, really likes to say “Thank you.” Citigroup’s rewards system is called “Citi Thank You,” and Citigroup is the owner of www.thankyou.com. Because of its frequent use of the words “thank you,” the company has registered the “THANKYOU” trademark.

The trouble is, AT&T launched a promotion for a rewards program connecting its cell service with a Citigroup-backed credit card, called “AT&T Thanks.” Citigroup is suing AT&T, claiming that it has domain over that use of “Thanking.” Because “thank you” is such a common phrase, Citi only has exclusive rights to its usage in very particular contexts. (Unless the reason they’re so wealthy is because they do get a nickel every time someone says thank you!?) Now, AT&T is attempting to trademark “AT&T THANKS.” In this lawsuit, Citigroup is claiming that AT&T’s marketing campaign is “confusingly similar to Citigroup’s ‘THANKYOU Marks,'” and Citigroup is attempting to block AT&T’s trademark.

Take a look at the two programs yourself: the Citigroup Thank You program has scores of gift-cards, vacations, and gadgets you can buy with points awarded through your citi card. The AT&T “Thanks” promotion includes offers like “buy one get one free” movie ticket ‘twosdays,’ along with pre-sale access for LiveNation and exclusive TV content.

If AT&T can prove that it’s unlikely consumers will be confused between the two programs, then it will be able to keep its own usage of “THANKS.” If Citigroup shows that the trademark is being used unfairly, its claim to the words “THANK YOU” is bolstered in other related services. The hearing date has not yet been set in this case, so if you’re waiting to hear what happens, I can only THANK YOU for your patience. And there’s no word yet on whether Alanis Morissette has been served a cease and desist letter from Citigroup.

Sean Simon

Sean Simon is an Editorial News Senior Fellow at Law Street, and a senior at The George Washington University, studying Communications and Psychology. In his spare time, he loves exploring D.C. restaurants, solving crossword puzzles, and watching sad foreign films. Contact Sean at SSimon@LawStreetMedia.com.

The post Citigroup, Owner of “Thank You,” Sues AT&T for Using “Thanks” appeared first on Law Street.

As the Supreme Court declined to hear the Authors Guild challenge of Googles Book’s digitizing program on Monday, a legal battle that lasted for over a decade comes to an end. The court’s denial to hear the case will leave in place an appeals court decision that upheld Google’s book scanning program as a fair use of copyrighted works. In its decision not to take up the case, the Supreme Court also avoided making a sweeping ruling on copyright law in the digital age.

“Today authors suffered a colossal loss,”Authors Guild President Roxana Robinson said in a press release after the Supreme Court’s decision. “We believed then and we believe now that authors should be compensated when their work is copied for commercial purposes,” Robinson said of the longstanding legal dispute. But advocates like the Electronic Frontier Foundation (EFF) have strongly supported Google’s project. The EFF concluded, “All in all, it’s a good day for fair use” after the circuit court ruled in favor of Google–the ruling that the Supreme Court’s decision now leaves in place.

Back in 2004, Google undertook an effort to digitize millions of books in order to create a database to help bolster the company’s dominance in the internet search market. Google also argued that it was providing a public service because it would help people discover existing pieces of writing. The project began as a collaboration with libraries to create searchable versions of works in the public domain, but it also expanded to include works currently under copyright.

At the heart of the issue is the question of whether or not Google’s project falls under the category of fair use, a legal doctrine that allows for copyrighted works to be used when serving certain public interests. The suit began back in 2005 when the Author’s Guild took issue with Google’s digitization project, arguing that the company would illegally take away authors’ profits. The case became a class action effort in 2012 after authors and copyright holders came together to challenge Google.

The Authors Guild’s primary issue with Google’s program is that the company did not seek out permission from the copyright holder before digitizing their work and making the contents searchable online. Although Google did not make the full text of copyrighted works available online, it did allow users to search for text within books as well as see a limited sample of the surrounding text. The Authors Guild also argues that allowing Google to digitize authors’ books without permission for its own profit is a clear violation of copyright law.

Google’s profit from the project was a major issue earlier on because the company initially displayed advertising in search results and on individual book’s pages. Although the two parties reached a sort of compromise to share ad revenue, Google eventually ended the program, noting that it wasn’t a major source of revenue. The two sides nearly settled the entire case back in 2011, but a New York district court judge rejected it, arguing that the arrangement would have given Google a de facto monopoly.

After rejecting the settlement deal, the New York district court ruled in favor of Google, saying that the way Google digitized and uses the books in its search engine constitutes a transformation in the context of fair use. In his opinion, which issued summary judgment to Google dismissing the Authors Guild complaint, Judge Denny Chin ruled in favor of Google, saying that its project

Advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.

After the district court ruling, the Authors Guild appealed to the U.S. Court of Appeals for the Second Circuit, which also ruled in Google’s favor. Ultimately, the Guild appealed to the Supreme Court, but after its decision not to take up the case on Monday, Google Books will now remain intact.

The court’s decision also reflects a reluctance to issue a major ruling on fair use in the age of the internet. The authors involved in the lawsuit claim, “the internet was not anticipated” when modern copyright law was written back in the 1970s and that the court needed to settle the issue. In light of the recent decision, we’ll likely have to wait for another high-profile case to make its way to the Supreme Court before to get a better understanding of the relationship between copyright law and the internet.

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

The post Supreme Court Rejects Authors Guild Challenge Against Google Books appeared first on Law Street.

This week in Live Action Role Play (LARP) news, Jordan Gwyther–priest, father, avid LARPer, and founder of larping.org–is no longer being sued by an Indiana archery company for patent infringement.

Let’s back up and talk about this step by step. For some background knowledge, LARPing is defined as:

A type of role-playing game in which each participant assumes a particular character and acts out various scenarios at events which last for a  predetermined time.

Essentially, people dress up in all kinds of outfits and act as those characters in a group setting. It is common for people to LARP as comic book characters, anime characters, and even medieval characters. Fighting in some form is frequently involved.

In this case, Global Archery sued Jordan Gwyther last October for patent and trademark infringement because he was reselling foam arrows shipped from Germany to people in the LARP community to use in LARP battles. The Indiana-based company was enraged by Gwyther’s competition and filed a complaint against him in an Indiana district court claiming they own the patent on all foam arrows used in LARP.

Part of the drama surrounding this case is the public stir that it has created among LARPers. Global Archery started the suit by bragging about their large legal budget, over $150,000, and filing for a gag order against Gwyther when he attempted to start a GoFundMe campaign to raise money to cover his legal costs. The account, which was started around a month ago, has raised almost $8,000 to help pay for legal fees and features a compelling video from Gwyther about how the very fabric of LARP is being challenged by this lawsuit.

Between the slow build of the dramatic background music and the serious rhetoric about the endangerment of the LARP community, the video makes a compelling argument as to why people should give money to Gwyther’s cause. He also claims he will donate all funds leftover after the lawsuit to a charity of the donors’ choice.

While Global Archery has decided to drop the lawsuit surrounding patent violations, they are still suing Gwyther for infringement of Global Archery’s trademark, Gwyther’s purchase of Google Ads surrounding his business, and for false advertisement. John Jackson, the founder of Global Archery, told Ars Technica the following upon review of the original case:

After the dust has settled and our legal counsel has had time to analyze a translated copy of the German prior art reference provided to Global Archery by Mr. Gwyther’s counsel, Global Archery has decided to voluntarily dismiss the patent counts against Mr. Gwyther with prejudice.

The good news for Gwyther is that, within the past few days, he has received word that Newegg, a tech company supported by Lee Cheng, a famous anti-patent-troll legal expert, has reviewed this case and is going to support him throughout the legal proceedings. Newegg has donated $10,000 to Gwyther’s case and created new t-shirts partially designed by Gwyther to sell in order to raise even more money. Newegg is well known for helping defend against patent trolls and Cheng specifically spoke out about this case claiming that it,

Represents the same type of abuse of intellectual property rights Newegg has stood up to for years. Global Archery’s patents would likely not withstand an invalidity challenge, but they are leveraging them to demand settlement terms that would effectively force this enthusiast and entrepreneur out of business.

So what does this mean for all you LARP fans out there? Well, if Gwyther loses this case, there is a high probability that Global Archery will become one of the only places to get your foam-tipped arrows. But, we can all probably rest easy knowing that some of the best legal counsel when it comes to patent trolling is on Gwyther’s side. And, hey, if you feel so inclined, buy a shirt to help out Gwyther’s cause.

Alexandra Simone

Alex Simone is an Editorial Senior Fellow at Law Street and a student at The George Washington University, studying Political Science. She is passionate about law and government, but also enjoys the finer things in life like watching crime dramas and enjoying a nice DC brunch. Contact Alex at ASimone@LawStreetmedia.com

The post LARPer Goes to Battle in the Courtroom Over Foam-Tipped Arrow Patents appeared first on Law Street.

Nowadays, when you say the name “Kylie” most people assume you’re referring to the the lip-injected youngest sister of the Kardashian/Jenner clan, Kylie Jenner. But have we already forgotten that up until a few years ago, the “Kylie” we all couldn’t get out of our heads was none other than Australian dance-pop singer Kylie Minogue? Well Minogue has no problem stepping in to remind us, as she prepares to stop Jenner from trademarking their shared name.

Hello….. My name is KYLIE #lightyears

— kylie minogue (@kylieminogue) February 28, 2016

Minogue threw shade at the 18-year-old “Keeping Up With The Kardashians” star, calling her a “secondary reality television personality” in a notice of opposition to Jenner’s trademark application filed last week. The singer argued that allowing Jenner to have the trademark would cause confusion for her fans and dilute her brand.  She supported her claims by referencing criticism of Jenner from disability rights groups and African American communities.

Kylie Minogue is NOT happy about Kylie Jenner trademarking their name: https://t.co/038GZtBadK pic.twitter.com/Oqma75BeN4 — Cosmopolitan (@Cosmopolitan) February 29, 2016

According to CNN, Jenner filed an application to trademark her name in May 2015 for “entertainment in the nature of providing information by means of a global computer network in the fields of entertainment, fashion and pop culture.”

To be honest, the move makes sense. From a brand perspective, Jenner is killing the game. She’s one of the most followed people on  social media, and already has a knack for entrepreneurial pursuits. Her newly launched liquid lipstick company, Kylie Cosmetics is so hyped up that it can’t even keep product on its site for longer than 10 minutes. Therefore, trademarking her name would be a good business move that would give her protection in using “Kylie” for advertising purposes.

Still she’ll have to put up a fight if she wants to stop Minogue from snagging the name herself. Minogue is no stranger to trademarks, and already owns the terms “Kylie Minogue,” “Kylie Minogue Darling” (the name of her perfume brand) and “Lucky – the Kylie Minogue Musical,” and the domain name kylie.com.

It’s hard to tell which Kylie, if any, will prevail, but it looks like they’re both in for a fight!

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post Minogue vs. Jenner: Who Will Win the Trademark for the Name “Kylie”? appeared first on Law Street.

This week, in weird (and mostly irrelevant) legal news, Lauren Conrad is being sued for having several photos of surfing dogs on her website, without having any kind of copyright permission to do so–what a tragedy.

The “Laguna Beach” superstar allegedly used these photos without permission from the company that owns them, Incredible Features Inc. (IFI). The company, which claims to provide “unique images for the curious mind,” found these photos in a blog post on Conrad’s site from October of 2014, and decided to file a lawsuit against her for this violation of copyright law.

Pause. Let’s talk about copyright laws for a moment, to better understand what Conrad’s actions actually mean. As far as a basic overview goes, copyright laws are in place to protect intellectual property, which is defined by Merriam Webster as “property (as an idea, invention, or process) that derives from the work of the mind or intellect.” What exactly qualifies as intellectual property then? Pretty much anything you can think of that comes from an idea someone had–images, songs, graphics, designs. The list could go on and on.

Be warned! Just because something isn’t registered with the Library of Congress Copyright Office doesn’t mean it’s fair game, either. People hold the rights to their own intellectual property starting the second they create it, unless they give express permission for others to use and share whatever the item may be–in this case, pictures of surfing dogs. Honestly, this is probably where Conrad went wrong. In the age of easily accessible media it’s so simple to right click, download, and re-upload pictures from almost everywhere. People frequently forget that using other people’s property without their permission is a serious problem–one you can be sued for.

IFI wrote some pretty ironic lines in its request for Conrad to take the pictures down:

In the dog eat dog world of online content … Lauren Conrad, a sophisticated website operator, is cognizant of the value of high-quality photography.

Ah, the classic dog eat dog world pun. In addition to wanting Conrad to take the photos down (which it appears she already has), IFI is asking that she pay whatever money she may have earned thanks to using the photos of the adorable aquatic pups. Conrad’s response to this whole situation are still pretty unclear. TMZ, the original releaser of these lawsuit details, claims it reached out to Conrad for comments, but hasn’t heard back from the star yet.

The moral of the story here is to pay attention to the things you’re putting on the the internet and make sure you are using other people’s material appropriately. If you don’t? You might end up getting sued, and who in the world has the time for that. I mean, come on, it’s not that hard to find fun media of dogs surfing that you can use without getting into trouble!

Alexandra Simone

Alex Simone is an Editorial Senior Fellow at Law Street and a student at The George Washington University, studying Political Science. She is passionate about law and government, but also enjoys the finer things in life like watching crime dramas and enjoying a nice DC brunch. Contact Alex at ASimone@LawStreetmedia.com

The post Surfing Dogs and Stolen Photos have Lauren Conrad in Hot Water appeared first on Law Street.

Youtubers Benny and Rafi Fine, otherwise known as “The Fine Bros,” can attribute much of their internet empire’s success to their React series, in which they record and upload videos of kids, teens, adults, and elders hilariously reacting to different things. The series is so successful in fact, that on January 26, the brothers announced plans to license their version’s format for other video makers. But surprisingly they’ve decided to abandon that plan a week later after coming under fire for attempting to trademark several phrases using the word “react.”

Originally Benny and Rafi’s plan was to launch an initiative entitled “React World” that would act as a licensing umbrella for people looking to create their own videos using the bros’ model and graphics. This was designed to prevent people from illegally copying their popular format. However, the problem came when they tried to take it a step further by submitting several trademark applications using the word “react,” in an attempt to control the brand name.

Below is the original video explaining “React World,” followed by the response video to the controversy.

The reason this angered so many people is that react videos comprise a large video subcategory on Youtube, and many feared that allowing the Fine Bros these trademarks would give the pair unfair power in policing the genre.

Officially unsubscribed from FineBros. Can’t believe the greed and selfishness of them.

— Daz_black (@daz_black) February 2, 2016

Someone: *uploads a video to YouTube titled “my partner reacts to my marriage proposal* TheFineBros: pic.twitter.com/DLzQwehQRl — Common Gay Boy (@CGBPosts) February 1, 2016

But in summary should the fine bros have the trademark “react”?
No. No one should have that kind of power over youtube, especially them.

— Steven Williams (@Boogie2988) February 2, 2016

After acknowledging concerns, the pair released a message on the publishing platform Medium late Monday night apologizing to fans and saying,

We realize we built a system that could easily be used for wrong. We are fixing that. The reality that trademarks like these could be used to theoretically give companies (including ours) the power to police and control online video is a valid concern, and though we can assert our intentions are pure, there’s no way to prove them.

As a result, they’ve decided to rescind all “React” trademarks and applications, discontinue the React World program, and release all past Content ID claims. Still, that hasn’t stopped hundreds of thousands of subscribers from unsubscribing. Before the controversy the Fine Bros main account had 14.3 million subscribers, but now that number is down to just over 13.7 million. These huge losses have been widely mocked by critics of the proposal, with some even going as far as livestreaming the channel’s subscriber losses.

The Fine Bros have lot more subscribers in the last 2 days than most YouTubers gain in 2 years. They really messed up. — SullyPwnz (@SullyPwnz) February 1, 2016

It’s pretty clear that the Fine Bros made a huge mistake attempting a T-Swift styled trademark takeover, but they’re not entirely wrong for wanting to license their popular content. Copyright infringement is serious problem in creative fields, but there is a difference between copying someone’s entire format and partaking in the genre. Perhaps, with a better explanation this scandal could have been avoided, but then again, attempting to trademark common phrases is generally met with difficulty.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post The Fine Bros Abandon “React” Trademark Attempt After Backlash appeared first on Law Street.

This 2016, Spotify should make a New Year’s resolution to not get slammed with any more lawsuits. The digital streaming network finished off 2015 with 75 millions users worldwide, over 25 million who pay for premium services, and a $150 million dollar lawsuit. David Lowery of the bands Cracker and Camper van Beethoven recently issued a class action lawsuit against Spotify for failure to properly pay royalties to its artists.

NPR posted the court filing from Lowery, which states,

Spotify’s egregious and willful violations of Plaintiff’s and the Class Members’ rights are highlighted in Spotify’s recent admissions regarding its failure to: (1) obtain licenses for the musical works it distributes and reproduces (thereby infringing multiple copyrighted works); and (2) compensate copyright owners for its use of their Works.

This lawsuit is just one battle in an ongoing debate between music publishers and streaming services., and the digital age may be transforming our music consumption too quickly for the law to keep up. There are usually two different types of copyright owners for every song streamed. The owner of the song is one, so usually the artist or the record company, and the other is the person who wrote the song or has rights as the publisher of the song. Undeniably, streaming services lack transparency as royalties get passed along to several middleman, then hopefully find their way into the hands of these different owners. Streaming services continue to strive for transparency however, citing most of their issues as the difficulties of obtaining rights.

David Lowery. Image courtesy of [Zopheus via Wikimedia]

Spotify openly admits to potential challenges in its royalty payment system. The company sets aside royalty funds for when a user streams a song and Spotify cannot immediately identify the rights holder. The suit argues that the retroactive compensation from the fund clearly shows Spotify’s negligence in obtaining proper license agreement and authorization prior to streaming songs. However, Spotify does make the claim that in the United States, “the data necessary to confirm the appropriate rightsholder is often missing, wrong, or incomplete” for songwriters.

In the U.S, the legal framework for songwriters has been around since 1941. Songwriters license their work to Performance Rights Organizations (BMI, ASCAP, and SESAC), who collect and negotiate songwriting royalties under a consent decree in a special rate court. Spotify seemingly does not have to negotiate with songwriters because the government sets the rates, but the framework is still admittedly complicated.

Lowery isn’t the first to have an issue with Spotify–in previous years, artists like Taylor Swift have taken the measure to remove their work from Spotify in protest of royalties. On Spoitfy’s Artists website, the streaming service explains its artist payout formula, which includes Spotify’s monthly revenue, artist and total Spotify streams, publishing owners, and royalty rate. The artists still have other deals they’ve agreed to with the record label, so they’re ok taking down their music from Spotify.

The payment of royalties admittedly is complicated. Maybe it is time for the court to modify the legal framework behind licensing music. The David Lowery case will undoubtedly reveal more about the future of music streaming as the ownership of music continues to change.

Read More: Streaming Music: Good Business or an Attack on Artists

Dorsey Hill

Dorsey is a member of Barnard College’s class of 2016 with a major in Urban Studies and concentration in Political Science. As a native of Chicago and resident of New York City, Dorsey loves to explore the multiple cultural facets of cities. She has a deep interest in social justice issue especially those relevant to urban environments. Contact Dorsey at Staff@LawStreetMedia.com.

The post Spotify Faces a Class Action Lawsuit for Copyright Infringement appeared first on Law Street.

Update

The trademark–and public opinion–war over the Washington Redskins has been waging on for a while. But there’s a new development in the form of a ruling from an appeals court that may impact the Redskins’ ability to keep their offensive name. The U.S. Court of Appeals for the Federal Circuit in Washington, D.C. just struck down a provision of federal law that prevented the copyrighting of offensive names on First Amendment grounds.

The case in front of the appeals court involved a band called “The Slants,” an Asian-American group led by a man named Simon Tam who chose their name in an attempt to “reclaim” the traditionally-derogatory phrase.

The Slants, Asian-American band from PDX, can trademark controversial name, U.S. court rules https://t.co/AjahNdAxAW pic.twitter.com/b8QMi4hWLP

— The Oregonian (@Oregonian) December 22, 2015

The band became embroiled in a legal dispute after it attempted to file for trademarks; the United States Patent and Trademark Office (PTO) refused the filing. Particularly at issue was something called the Lanham Act, which was passed in 1946, and “prohibits registration of marks considered scandalous or immoral.” However, the recent appeals court ruling decided that parts of the applicable section (2a) were unconstitutional, stating:

The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks. It cannot refuse to register marks because it concludes that such marks will be disparaging to others. The government regulation at issue amounts to viewpoint discrimination, and under the strict scrutiny review appropriate for government regulation of message or viewpoint, we conclude that the disparagement proscription of § 2(a) is unconstitutional. Because the government has offered no legitimate interests justifying § 2(a), we conclude that it would also be unconstitutional under the intermediate scrutiny traditionally applied to regulation of the commercial aspects of speech. We therefore vacate the Trademark Trial and Appeal Board’s (“Board”) holding that Mr. Tam’s mark is unregistrable, and remand this case to the Board for further proceedings.

Obviously the case of the Slants and the case of the Washington Redskins are very different–one is a band using a racial slur in an effort to reclaim it, the other is a massive sports franchise using a racial slur despite its implications. Those nuances exist in a socio-political sense, but in a legal sense, the cases are very similar. The appeals court didn’t rule that the Slants could use their name because of the way they were using it, but rather because of First Amendment issues–ones that also could apply to the Redskins.

The Washington Redskins’ case is under review by the 4th Circuit Court of Appeals, and some legal experts have predicted that it may make its way all the way to the Supreme Court. Since the Lanham Act was passed over 60 years ago, a lot has changed, including the inception of Constitutional protection for commercial speech. But given that the Redskins’ case–which is based on very similar grounds–is making its way through the court system, the fact that another appellate court found that the applicable provisions of the Lanham Act were unconstitutional could end up being pretty convincing for the court hearing the appeal. Ultimately, the question of “offensive speech” as it relates to trademarks is far from being answered.

Update

In light of the Redskins’ recent win that garnered the team the NFC East title, the debate over the team’s name remains hot and heavy. I got the chance to talk about the case with Professor Robert Sherwin, who teaches at Texas Tech University School of Law, and is an expert in federal civil procedure and First Amendment Law. He pointed out that while this ruling may not necessarily persuade the federal judges in the Redskins trademark case, the fact that the U.S. Court of Appeals for the Federal Circuit in Washington D.C. accepted that part of the Lanham Act is unconstitutional–and was the first court to do so–is noteworthy. Sherwin also shared that this is likely “a big ticket kind of case” and an issue headed for the Supreme Court, although it’s yet to be seen which case the Supreme Court will decide to take on.

Sherwin also highlighted a similar First Amendment Case, decided by SCOTUS just last summer–Walker v. Texas Division, Sons of Confederate Veterans, Inc., in which the court decided 5-4 that the government wasn’t violating free speech when it rejected a Confederate Flag license plate design. However, in a move that surprised many, it was Justice Clarence Thomas who sided with the more traditionally liberal wing of the court to decide that it was not a First Amendment violation. Sherwin pointed out that both sides could use Walker in their arguments, and that the decision could hinge on Thomas, who is “probably the court’s foremost expert on First Amendment issues” when the case makes it the Supreme Court.

There’s a lot that’s up in the air right now when it comes to the Redskins’ name–the recent decision as it relates to the Slants may have only further muddied the waters. But one thing seems almost inevitable to many of us keeping an eye on these cases–this is something that the Supreme Court will have to weigh in on sooner or later.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Appeals Court Okays Trademarking Offensive Names: How Will it Affect the Redskins? appeared first on Law Street.

Almost everyone recognizes the familiar mug of Grumpy Cat, a.k.a. Tardar Sauce. But what you might not know is that her likeness is actually owned by a company, Grumpy Cat Ltd., a multi-millionaire dollar merchandising brand. Now, Grumpy Cat Ltd. is suing a coffee company, Grenade Beverages, over copyright claims.

The lawsuit was filed in a federal court, the Central District of California. According to its lawsuit, Grumpy Cat Ltd. gave Grenade Beverages permission to use Grumpy Cat’s likeness and photo for a particular beverage: the “Grumpy Cat Grumppuccino.” However, Grumpy Cat Ltd. is claiming that Grenade overstepped that agreement, and used Grumpy Cat’s likeness for other products, including ground coffee beans, despite the fact that Grumpy Cat Ltd. specifically told it not to.

The complaint filed by Grumpy Cat Ltd. goes into Grumpy Cat’s meteoric rise to success in a way that is truly entertaining to discover in legal papers. The complaint states:

After a picture of Grumpy Cat was posted to the internet in 2012, her name and likeness spread like wildfire across the globe garnering worldwide media attention. GrumpyCat has since appeared in numerous major television shows (including Today, Good Morning America, American Idol, and The Bachelorette,) has been featured on the front page of major periodicals such as The Wall Street Journal and New York Magazine, starred in advertisements for Cheerios and McDonalds, starred in her own Lifetime Television Christmas movie, “authored” three (3) books that debuted on the New York Times bestsellers list, and even has her own animatronic waxwork at MadameTussauds in San Francisco.

The lawsuit also accuses Grenade Beverages of something called cybersquatting. According to International Business Times that means “running a website domain that takes advantage of a trademark belonging to someone else. Grenade Beverages’ website is grumpycat.com. Grumpy Cat Ltd.’s website is grumpycats.com.”

Grenade Beverages’ partner Paul Sanford told Eater that “there isn’t a single factual allegation contained in the entire complaint, not one.” It will be interesting to see how this case fares in court, but it seems like Grumpy Cat’s company is in it to win it–the complaint even began: the “Defendants’ despicable misconduct here has actually given Grumpy Cat and her owners something to be grumpy about.”

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post A Strange Tail: Grumpy Cat Sues Coffee Maker for Copyright Infringement appeared first on Law Street.

YouTube is a form of media that’s in many ways built on creativity–from reaction videos to remixes to fan tributes, YouTube is  home to many adaptions of other works. But whether or not those types of videos are legal has long been a hot topic of debate. YouTube itself is now getting involved and backing the principles of Fair Use, which protect adaptions, by offering legal and financial support to some content creators who have been targeted by particularly predatory takedown notices.

Fair Use is the legal doctrine that allows the use of copyrighted material in certain circumstances. As defined by YouTube it includes uses like criticism, commentary, educational purposes, or news reporting. YouTube also lays out other factors that usually go into deciding whether or not something can legally be deemed Fair Use–pointing out, for example, that the use of shorter clips tend to be decided as Fair Use more often than longer clips. Additionally YouTube explains how to determine if a use is “transformative,” usually a big sticking point for courts asked to decide Fair Use questions, stating:

Courts typically focus on whether the use is ‘transformative.’ That is, whether it adds new expression or meaning to the original, or whether it merely copies from the original. Commercial uses are less likely to be considered fair, though it’s possible to monetize a video and still take advantage of the fair use defense.

Despite the fact that this is all a fairly normal and accepted definition of Fair Use (although instances are usually decided on a case-by-case basis) some YouTube users are continually subject to copyright infringement claims under the Digital Millennium Copyright Act (DMCA). While that act was originally created to prevent piracy, it has been used in abusive fashion in some cases. The process for DCMA-based takedowns has become automated, making it harder for content creators who are affected to fight them.

So, YouTube has decided to pay some legal bills and offer legal support up to $1 million in instances where there are “clear fair uses which have been subject to DMCA takedowns.” For example, YouTube will provide support to the Ohio Chapter of Naral Pro-choice, a pro-choice advocacy organization. They were given takedown notices after using a clip of a committee meeting in a video criticizing local law makers in a video posted to YouTube. Another example of a type of video that YouTube will help to protect is a series made by Constantine Guiliotis, who debunks instances of UFO-sightings. While he uses others’ clips, he does so in a way that should be considered Fair Use.

YouTube explained its motivation for helping those who have been targeted by the takedown notices. YouTube’s Copyright Legal Director, Fred von Lohmann, stated: “we’re doing this because we recognize that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it.”

Fair Use certainly is a tricky gray area–and there are certainly many cases in which copyrights need to be protected and plagiarism and piracy run rampant. However, abusing the DMCA also isn’t the answer. By aiding those who deserve it, YouTube draws a fair line between potential abuse on both sides.

Read more: Fair Use: Is it Really Fair?

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post YouTube is Standing up to Copyright Bullies and Protecting Fair Use appeared first on Law Street.

A $42 million lawsuit against Taylor Swift officially failed in court on Tuesday, as a California Central District Court Judge artfully put the case to bed. At the end, what began as multi-million dollar lawsuit ended with a judge quoting Taylor Swift lyrics in her dismissal of the case.

Jessie Graham, whose real name is Jessie Braham, sued Swift for copyright infringement, alleging that her song “Shake it Off” is a rip-off of his song “Haters Gone Hate.” Magistrate Judge Gail J. Standish disagreed, saying in her dismissal, “At least for the moment, Defendants [Swift and her record label] have shaken off this lawsuit.”

Before we get into the details, it’s important to recognize just how ridiculous Graham’s arguments are. He claimed that Taylor Swift copied lyrics from his song “Haters Gone Hate.” You can listen to the song for yourself to see how similar it is:

In her dismissal, Judge Standish says that she could only find two or maybe three similarities between the two songs–the phrase “haters gone/gonna hate,” the phrase “Players/playas gone/gonna play,” and “some lyrics referring to fakers faking people.” But simply having the same words or phrases is not enough to win a copyright claim. More importantly, such a claim requires the plaintiff to actually demonstrate that the work was originally his. In the dismissal, Judge Standish shows how these phrases were used prior to when Braham’s song was written in 2013. I’m not kidding, she actually goes through the history of “haters gonna hate” and “players gonna play”–from 3LW to popular memes, which she also defines.

To sucessfully show that Swift copied his work, Braham would need to somehow prove that “Shake it Off” would not have been created without his song “Haters Gone Hate.” Doing so would entail proving that Swift had access to his song and that her work is “substantially similar” to his–and if you’ve listened to both songs it’s pretty clear that is not the case.

Judge Standish’ true colors, and quiet possibly her Taylor Swift fanhood, come out in the dismissal’s conclusion. She wraps it up saying:

At present, the Court is not saying that Braham can never, ever, ever get his case back in court. But, for now, we have got problems, and the Court is not sure Braham can solve them. As currently drafted, the Complaint has a blank space— one that requires Braham to do more than write his name. And, upon considerationof the Court’s explanation in Part II, Braham may discover that mere pleading Band-Aids will not fix the bullet holes in his case. At least for the moment, Defendants have shaken off this lawsuit.

Well played Judge Standish, well played.

See More: Copyrights, Sampling and Rock ‘n’ Roll: Intellectual Property in the Music Industry

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

The post Judge Shakes Off Suit Against Taylor Swift Using Her Lyrics appeared first on Law Street.

With nearly 13,000,000 likes on Facebook, it comes as no surprise that Batman has a large group of devoted fans who likely relish the idea of traveling in true Dark Knight fashion. Mark Towle, owner of Gotham Garage and manufacturer of functional Batmobile replicas, has made that dream a reality for many loyal fans and avid car collectors. Boasting ticket prices of approximately $90,000, Towle’s vehicles include features such as “custom bat insignias, wheel bats” and a “bat steering wheel.” However, the iconic Batmobile, driven by the comic book hero in his efforts to protect Gotham, is now exclusively available to Batman himself. A court has ruled that the iconic crime fighting vehicle, equipped with onboard weapons systems, has enough distinct character traits to be eligible for copyright protection and holding that Towle’s replicas qualify as infringement.

The U.S. Ninth Circuit Court of Appeals for Central California issued a 28-page opinion, written by Judge Sandra Ikuta, affirming a ruling against Towle, who advertised his vehicles as the “Batmobile” and marketed them on his website batmobilereplicas.com.

DC Comics, who initiated an infringement lawsuit against Towle in May 2011, holds the rights to the Batman character, as well as all of his crime-fighting adventures. Towle argued that the protection of the Batman character does not extend to the car and that The Batmobile, as it appeared in the 1966 television show and 1989 film, is not subject to copyright protection.

However, Ikuta wrote Wednesday that “no matter its specific physical appearance, The Batmobile is a ‘crime-fighting’ car with sleek and powerful characteristics that allow Batman to maneuver quickly while he fights villains.” Therefore the vehicle qualifies as a comic book character, identifiably distinct by its features and protectable by copyright.

In its decision, the court engaged in some serious (and bad-ass) legal analysis, examining the car’s history of tearing up “the street like a cyclone,” making specific reference to its “jet engine” and referring to the vehicle as a “sidekick.” Careful consideration was given to the “emergency bat turn,” the automobile’s “Batmissle mode” and the “flame-shooting tubes that undoubtedly give the Batmobile far more power than an ordinary car.”

“As Batman so sagely told Robin,” Ikuta concluded, “In our well-ordered society, protection of private property is essential.”

The post One More (Legal) Reason You Can’t Be Batman appeared first on Law Street.

The “Happy Birthday” song has become a ubiquitous part of American life. But, it’s also a song that has a long history of legal copyright strife. However, thanks a recent ruling by a federal judge, the song has been set free–the “Happy Birthday” lyrics are no longer copyrighted, and will not require royalties to be paid for their use.

The history of the song is as long as it is complicated. It was written in Kentucky by two sisters, Mildred and Patty Hill, in 1893. The song has since evolved from the sisters’ original lyrics, but they’re credited with its inception. The song was copyrighted in 1935, by the Clayton F. Summy Co., which was succeeded by a company called the Birch Tree Group. Then, Warner/Chappell purchased the Birch Tree Group in 1988, inheriting the copyright to a song which at that point was almost a century old.

Warner/Chappell has collected royalties on the use of the song anytime it’s used “as part of a profit-making enterprise.” This can include TV shows, movies, or commercials. But Warner/Chappell has also gone after incidences that aren’t expressly for profit, like if a restaurant wants to sing the song while giving a customer a free birthday dessert. A desire to avoid paying those royalties inspired the often odd birthday traditions at many restaurants. George Washington University School of Law professor Robert Brauneis explained to ABC News:

If you want to sing it at your home at a birthday party you don’t have to pay anything, because that is a private performance. But if you want to use it in a television show, a movie, or a television commercial, you’ll pay anywhere from $5,000 to $30,000 for those rights.

It’s estimated that Warner/Chappell has collected approximately $2 million in royalties each year from the “Happy Birthday” song.

But, according to U.S. District Judge George H. King, who ruled in a case brought by filmmakers challenging Warner/Chappell’s claim to the song, that copyright claim doesn’t hold. According to King, the issue with Warner/Chappell’s copyright is that there’s no evidence that Summy Co. ever had a legal copyright on the lyrics in the first place. King wrote:

Defendants ask us to find that the Hill sisters eventually gave Summy Co. the rights in the lyrics to exploit and protect, but this assertion has no support in the record. The Hill sisters gave Summy Co. the rights to the melody, and the rights to piano arrangements based on the melody, but never any rights to the lyrics.

So, the issue isn’t completely decided–there will probably be appeals. But for now, “Happy Birthday” appears to be, quite happily, in the public domain.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Sing Away: Judge Rules “Happy Birthday” Lyrics No Longer Copyrighted appeared first on Law Street.

There has been quite a bit circulating in the news recently about a certain Kentucky clerk who refused to give marriage licenses to gay couples. The clerk in question, Kim Davis, ended up in jail for contempt of court and was released a few days later. She emerged from prison to a crowd of supporters and did a victory march to a song some of you may have heard of:

“Eye of the Tiger” is the most recognizable song written and performed by band Survivor, who, needless to say, was not happy.

I have not authorized the use of Eye of the Tiger for use by Kim Davis and my publisher will issue a C&D. This does not reflect my views.

— Jim Peterik (@jimpeterik) September 9, 2015

Peterik co-wrote the song, and after the band’s intention to serve a cease and desist order was publicly shared, a rumor began circulating that Davis would soon find herself sued for $1.2 million dollars.

But as much as we would all enjoy seeing this display of homophobia punished with such a hefty price tag, unfortunately, there is no evidence that it will happen.

The rumor seems to have spread from this article posted on NBC.com.co–a blog site with no actual affiliation to the National Broadcasting Company and a reputation for fake stories. Fake news tends to travel fast.

But, while it may have been untrue, it is just an exaggeration of Survivor’s outrage and legal intent. In a comment to CNN, Peterik said “I was gobsmacked. We were not asked about this at all. The first time we saw it was on national TV.”

Davis has not commented on the cease and desist order, but it looks like she will be “rising up to the challenge” of finding a new theme song.

The use of the motivational song “Eye of the Tiger” for Kim Davis’ purposes is disturbing for several reasons, not the least of which being that her actions are not inspirational. At all. And while we do enjoy freedom of religion in this country, what Davis did was not a reflection of that freedom. We are given the right to practice–or not practice–any religion. We are not, however, given the freedom to deny someone else’s rights, or to force our beliefs on other people. Especially when doing so would go against the commitment made to a job with the United States government.

The United States is a country that has a diverse mix of cultures, religions included. So, Kim Davis, while you may not agree with U.S. law, not everyone shares your viewpoints. If you cannot perform the job you agreed to perform, then quit. Problem solved.

Morgan McMurray

Morgan McMurray is an editor and gender equality blogger based in Seattle, Washington. A 2013 graduate of Iowa State University, she has a Bachelor of Arts in English, Journalism, and International Studies. She spends her free time writing, reading, teaching dance classes, and binge-watching Netflix. Contact Morgan at staff@LawStreetMedia.com.

The post No, Survivor Isn’t Suing Kim Davis–But They Aren’t Happy With Her appeared first on Law Street.

What is the hottest “it” accessory? Coach wristlets? Plastic choker necklaces? Michael Kors watches? Nope—fitness trackers are the newest arm-candy craze. The wearable devices have slid into mainstream usage. Bottom line—they’re not just for health nuts anymore.

Around 2.7 million fitness trackers were shipped worldwide during the first quarter of 2014, about 50 percent of which were Fitbit devices. Fitbit is the brand name of sorts for wearable trackers in the same way the name Kleenex is synonymous with tissues.

Fitbit has been riding out its successful wave; this month the company even filed to offer public stock options. However, that wave is about to crash. One of Fitbit’s competitors, a company called Jawbone, is suing Fitbit for “plundering” confidential information. (Argh, matey, there be pirates afoot.)

How did Fitbit allegedly steal information? By employing Jawbone employees who were, ahem, not exactly loyal to their anatomically named former employer.

Mutiny on the cyber seas?

Jawbone’s lawsuit has two parts. Firstly, it wants financial compensation from Fitbit. Secondly, it wants the court’s assistance to prevent former employees from using any information they may have taken/gained while at Jawbone.

While Jawbone and Fitbit are fighting in open water, Apple is keeping watch on dry land…literally. There is a very real possibility that Fitbit’s profits will be significantly less than anticipated due to the fitness capabilities of the Apple Watch. Factor brand loyalty into the mix, and Apple becomes Jawbone and Fitbit’s most formidable competitor.

Corinne Fitamant

Corinne Fitamant is a graduate of Fordham College at Lincoln Center where she received a Bachelors degree in Communications and a minor in Theatre Arts. When she isn’t pondering issues of social justice and/or celebrity culture, she can be found playing the guitar and eating chocolate. Contact Corinne at staff@LawStreetMedia.com.

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Pharrell isn’t happy. Last month the hit song “Blurred Lines,” created by Pharrell Williams and singer Robin Thicke, was officially found to be in violation of copyright law. A California judge ruled that the track was too similar to Marvin Gaye’s well-known song, “Got to Give It Up.” Williams and Thicke were ordered to pay $7.4 million to Gaye’s family. Was the judge’s ruling too harsh? Not harsh enough? Have a listen for yourself.

Marvin Gaye’s sister, Zeola Gaye, was also featured on the song “Got to Give It Up.” Amid controversy surrounding the lawsuit, Zeola Gaye clarified that she did not receive any of the $7.4 million reward. In fact, she never desired or requested any of the money from the case; compensation was always meant to go solely to Marvin Gaye’s heirs.

You may have heard “Blurred Lines” played ad nauseum on radio stations during the summer of 2013. You’ve probably also heard about (or seen) the song’s controversial music video featuring a few scantily clad ladies. I’d wager you probably haven’t heard the opening arguments of the lawyer who defended Williams and Thicke in court. Howard King began his case by telling the jury that creativity could not be owned:

We’re going to show you what you already know: that no one owns a genre or a style or a groove. To be inspired by Marvin Gaye is an honorable thing.

Although the judge’s final ruling ultimately disregarded King’s premise, Williams has echoed King’s sentiments regarding the ownership of ideas. The Grammy winner claims that the outcome of his case has implications for the music industry and creativity at large:

The verdict handicaps any creator out there who is making something that might be inspired by something else.

Harsh judicial penalties may cause confusion as to what materials artists can and can not use, leaving them in creative limbo.

Courtesy of Giphy.com.

Artists who have creative discrepancies do not always head straight to the courtroom—soulful crooner Sam Smith recently settled a lawsuit with Tom Petty out of court. Musicians and artists who side with Williams fear that the litigation blitz surrounding “Blurred Lines” will start a wave of similar cases wherein artists are unduly penalized for emulating their idols.

Corinne Fitamant

Corinne Fitamant is a graduate of Fordham College at Lincoln Center where she received a Bachelors degree in Communications and a minor in Theatre Arts. When she isn’t pondering issues of social justice and/or celebrity culture, she can be found playing the guitar and eating chocolate. Contact Corinne at staff@LawStreetMedia.com.

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The legal side of book and magazine publishing has been off to a fast start in 2015. Check out updates below on three of the most recent cases.

Cosmopolitan Magazine

Andrew Cerett, a former Temple University football player, filed a lawsuit against his ex-girlfriend, Emily Frazer, and Cosmopolitan magazine for defamation, claiming that the magazine ruined his reputation and his potential NFL career after publishing an article entitled, “My Ex Threatened to Kill Me. Why Wasn’t He Expelled,” which appeared in the October 2014 issue.

Cerett and Frazer met each other at Temple University where Cerett was a punter on the school’s football team and Frazer played on the volleyball team. Cerett’s complaint, however, centers on the end of their relationship. Cerett states that Frazer wrote the article with freelance writer Roxanne Patel Shepleavy, which included a photo of Cerett as well as a fictionalized story of how they ended their relationship “at an alcohol-fueled weekend dorm party on or about January 21, 2011,” according to the complaint.

In his own story, however, Cerett claims that both parties became angry with each other, and although Cerett slammed his fist on a kitchen table, he never harmed Frazer. Campus officials arrested Cerrett, but they did not press charges against him. The campus board found Cerett guilty of intimidation and disorderly conduct but did not charge him with stalking or harassment.

Frazer’s article contends that after the breakup, Cerett had a mission to destroy Frazer, and the complaint states that the article portrayed Cerett as a violent thug. In light of the recent domestic violence cases against several NFL players, most notably Ray Rice and Adrian Peterson, Cerett believes that the Cosmo article may prevent him from pursuing his lifelong dream of becoming an NFL player because NFL teams would not want to draft him or sign him as a free agent.

HathiTrust

Last week, the Authors Guild dropped its lawsuit against HathiTrust. In 2011, the Authors Guild sued HathiTrust because it believe it created a database that included millions of unauthorized scans created by Google. The federal district court, however, sided with HathiTrust, and the United States Second Circuit Court of Appeals soon reaffirmed the district court’s decision.  Publishers Weekly noted that HathiTrust would notify the Authors Guild if it decides to change its practices in the next five years.

Georgia State University

In a related case that publishers have been keenly watching in Cambridge University Press et al. v. Patton et al., the Eleventh Circuit Court of Appeals rejected the plaintiff publishers’ request to hear the case en banc by every judge in the Eleventh Circuit. The Eleventh Circuit originally only had a panel of three judges hear the case. The request was unusual because the three-judge panel held in favor of the publishers after reversing the federal district court’s decision. The suit originally commenced when three academic publishers, Cambridge University Press, Oxford University Press, and SAGE Publications, sued Georgia State University for allegedly engaging in authorized copying and distribution of copyrighted works by the publishers through GSU’s e-reserve system.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post 2015 Is Off To A Fast Start for the Legal Side of Publishing appeared first on Law Street.

The book publishing industry has had its fair share of legal disputes this year, from the consumer class-action lawsuits against the big-6 publishers to the HathiTrust case, which dealt with new fair use parameters in the digital book world.

To round out a busy year, it’s fitting that the past week was one of the busiest weeks of the year for the legal side of book publishing.

On Monday, the book publishing industry had its most important court date of the year. The Second Circuit listened to oral arguments regarding Apple’s appeal of a district court’s decision that found Apple guilty of fixing e-book prices with the big-5 publishers.

According to Publishers Weekly, Apple’s attorney, Theodore Boutros, argued that the district court erred in deciding that Apple was liable in its role in a “per se” case of price fixing in the e-book market. In antitrust law, “per se” means a violation that prevents further scrutiny of the conspiracy’s intent on the market (i.e., the effect on the market). Boutros argued that the district court should have applied a “rule by reason” framework in deciding its case, which would have taken into consideration Apple’s pro-competitive involvement in the e-book market.

The appeal also involved the big-5 publishers–Penguin and Random House merged earlier this year. Simon and Schuster’s and Macmillan’s attorneys argued that the district court’s final order should be reversed because the order extended Simon and Schuster’s and Macmillan’s original two-year “cooling off” period to four years, and the extension would hinder the publishers’ negotiations with other retailers.

The Second Circuit’s decision should be announced anywhere from a few weeks to a few months from now.

In other big year-end news, on Tuesday, Jesse Ventura continues his fight in his defamation lawsuit. Last summer, Ventura sued the estate of the late Chris Kyle for writing defamatory words about Ventura in Kyle’s book, “American Sniper: The Autobiography of the Most Lethal Sniper in U.S. Military History.” Ventura claimed that Kyle wrote that Ventura, who is a former Navy SEAL, said that the Navy SEALs “deserved to lose a few.” Kyle also alleged that he had a fistfight with Ventura. Ventura denied both allegations, and Ventura later won $1.8 million in damages, consisting of $1.3 million for unjust enrichment and $500,000 in damages.

In the latest turn of events, Ventura has set his sights on Kyle’s publisher, HarperCollins. According to the Washington Post, Ventura has claimed that Kyle’s tale of the bar fight incident increased sales of his book, which generated millions of dollars for HarperCollins. The Los Angeles Times reports that Ventura seeks $150,000 in damages, though he will likely ask for more in settlement negotiations with HarperCollins.

Ventura received criticism for continuing with his lawsuit after Kyle passed away, but Ventura claims according to CBS News, “All I wanted to do was clear my name…It has nothing to do with a widow or anything like that.” Ventura added “I would have been a big-time loser had I not pursued the lawsuit, because…the whole story was fabricated…I was accused of treason, which in the military is the death penalty.”

With all the current activity currently before the courts, 2015 seems to be an eventful year for book publishing.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post The Year in Review: The Legal Side of Book Publishing appeared first on Law Street.

For bubbly blonde girls like myself, YouTube is an amazing tool. Within it lie countless videos of wondrous hair curling, and cat eye and contouring tutorial videos. As I watch the Carli Bybels of the world teach me how to enhance my cheekbone structure, there’s always a little music in the background to keep it interesting.

YouTube knows the importance of music inclusion in these online masterpieces. This week the social video platform launched a new feature in the YouTube Audio Library that detects and reacts to the music uploaded in these videos.

Before this feature, when a YouTube guru (or any video uploader, for that matter) created and uploaded content, the Content ID system would attempt to detect whether copyrighted music was being used. If copyrighted music was indeed found, the artists would decide whether the piece should be blocked from sharing, the audio should be muted, or in the cases where there was money to be made, whether advertisements would be attached to the video.

With this new feature, uploaders are given a heads up. They can see what will happen to their video with any given song. Though they still have little control of the outcome, having the information beforehand means quicker uploads and hopefully even more content for the more than 1 billion users who visit YouTube each month.

For anyone wanting to upload some clips without the hassle of any of this, YouTube offers many 320kbps tracks and sound effects, royalty-free.

But what does this move tell us (besides that there may be more makeup how-tos)?

Every day, more and more average users share content. These are children, adults, tech nerds, and technologically challenged people. They go on Facebook, YouTube, Twitter, Instagram, Vine, Tumblr and Flickr. They have intellectual property at the tips of their fingers, probably every hour.

Companies, as we saw last week with Facebook, need to be clearer about the legal aspects of sharing content and provide services that make it easier for everyday users to enjoy, share, and interact with copyrighted material. Instead of merely listing a bunch of rules and instructions in the legal section of its Terms of Policy, YouTube is being proactive and providing an online infrastructure that does the work for us.

More companies should look to YouTube as an example of how to play IP offense instead of defense. The results are inarguably win-win: user experience is enhanced, artists are protected, and the entire process is streamlined. As users, it’s important for us to take note of subtle changes like this one as they not only alter our navigation of these sites, but provide us with a signal in this Information Age: IP knowledge is power, people!

The post YouTube Simplifies Copyright With New Feature appeared first on Law Street.

The United States Court of Appeals for the Second Circuit recently heard oral arguments about the long-fought Google Books case between Google and the Authors Guild.

This case has been trudging through the courts for nearly a decade. In 2005, the Authors Guild and the Association of American Publishers (AAP) separately sued Google on claims that it violated their respective copyrights on the Google Books database. Google claimed, however, that its database was a fair use.

The lawsuits were then consolidated, but AAP eventually settled out of court with Google. The Authors Guild continued its lawsuit against Google but later agreed to settle for $125 million. The Authors Guild and Google tried to amend their settlement, but the settlement was rejected.

Around this time, the Authors Guild filed a similar lawsuit against HathiTrust but lost on summary judgment.

Nevertheless, the Authors Guild/Google lawsuit carried on into federal court, but the Authors Guild met a similar fate as it did against HathiTrust and lost to Google via summary judgment last year.

According to Publishers Weekly, Google won its summary judgment motion partly because of its fair use argument. The court favored Google in three out of the four fair use factors. The four fair use factors are 1) the purpose and character of the use; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion taken; and 4) the effect of the use on the potential market. Google won on the first, second, and fourth factors because its scanning was a transformative use, 93 percent of the scanned works were nonfiction, and Google didn’t sell the books it scanned although it benefited financially from the web traffic caused by Google Books.

The Authors Guild then appealed to the Second Circuit.

Oral Argument

Andrew Albanese writes that the Authors Guild tried to differentiate the Google Books lawsuit from the HathiTrust lawsuit by arguing that Google Books was a commercial use, but the Second Circuit shot that argument down. Judge Pierre Leval said that transformative use was what mattered the most–the first factor. The Authors Guild also argued that Google should not be allowed to profit from its database of unlicensed works, and that Google Books differed from HathiTrust because Google Books offered snippets of the works, whereas HathiTrust did not display the works made available via searching.

Google argued for fair use and asserted that Google Books progressed the arts and sciences. Moreover, Google argued that Google Books created no market harm. Although users flock to Google because of Google Books, Google Books serves an educational purpose.

The Second Circuit did not mention when it would render a decision.

Analysis

Considering the court dismissed the Authors’ Guild argument that Google and HathiTrust could be distinguished via the first fair use factor, the Authors Guild has a tough challenge in attempting to reverse the district court’s decision in favor of Google. I have not listened to the oral argument, but by reading Albanese’s aforementioned article, it does not look good for the Authors Guild.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post Second Circuit Hears Oral Arguments in Google Books Case appeared first on Law Street.

In today’s world of multiple social media platforms and just too much to do, you may not remember the June 2012 and November 2012 Facebook copyright panics. In case you missed them, here’s how they went: Status updates surfaced from users who unnecessarily “formally declared” their posted material as off limits to Facebook. The hype threw photographers and artists on the social media platform into a frenzy, and those not employed by their intellectual property still worried about the protections over their personal pictures and videos.

This week, another wave of frantic Facebook users fell for the same hoax and hurried to their computers to copy and paste declarations against potential infringement. Among the most recent status updates was the following:

Due to the fact that Facebook has chosen to involve software that will allow the theft of my personal information, I do declare the following: on this day, November 29, 2014, in response to the new Facebook guidelines and under articles L.111, 112 and 113 of the code of intellectual property, We declare that our rights are attached to all our personal data, drawings, paintings, photos, texts, etc. published on our profile.

For commercial use of the foregoing my written consent is required at all times.

The problem lies in the fact that this simply doesn’t work. It’s useless. It’s a waste of time (and finger dexterity). According to Facebook’s Terms of Service, the minute you upload content to the site you grant the company “license to use and display” that content. But it’s irreversible, despite a status update.

The recent flare up in concern stems from Facebook’s plan to largely update its privacy controls over the coming weeks. The plan, scheduled to take effect January 1, 2015, is titled “Privacy Basics” and attempts to make clearer who can see what on your profile. To explain, Facebook is sending this email out to all of its users:

We wanted to let you know we’re updating our terms and policies on January 1, 2015 and introducing Privacy Basics. You can check out the details below or on Facebook.

Over the past year, we’ve introduced new features and controls to help you get more out of Facebook, and listened to people who have asked us to better explain how we get and use information.

Now, with Privacy Basics, you’ll get tips and a how-to guide for taking charge of your experience on Facebook. We’re also updating our terms, data policy and cookies policy to reflect new features we’ve been working on and to make them easy to understand. And we’re continuing to improve ads based on the apps and sites you use off Facebook and expanding your control over the ads you see.

We hope these updates improve your experience. Protecting people’s information and providing meaningful privacy controls are at the core of everything we do, and we believe today’s announcement is an important step.

Sincerely,

Erin Egan Global Chief Privacy Officer

So, to debunk the current myth…

Here’s the Facebook IP Breakdown

“For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License).

This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.”

Here’s the Translation

You essentially license to Facebook any photo or video that you upload the minute you upload it. Facebook can use it and owe you nothing. In fact, you agreed to that the minute you set up your account, according to the Statement of Rights and Responsibilities. You still own the copyright but it’s not exclusive. Facebook doesn’t need your written consent to use the content.

The only way to avoid this is to delete whatever you uploaded, assuming nobody shared it. When you upload something with no privacy settings (visible to the Public via Facebook settings), everyone–even people without a Facebook account–can access it, use it, and link it back to you.

My apologies if that’s not what you wanted to hear, but a stern letter to Facebook via your status update will do nothing. It’s like those chain letters that threaten you to repost or die in three days—a garbage byproduct of the Internet. Lesson of the day: Be careful what you post or don’t maintain a Facebook Account.

The post Facebook Copyright Myth Debunked appeared first on Law Street.

Last week, Federal Judge Denise Cote approved a class action settlement agreement in which Apple may begin paying $400 million dollars to as many as 23 million consumers. The suit regarded antitrust law violations that it committed when it conspired to raise e-book prices with book publishers.

According to Publishers Weekly, the settlement terms are as follows:

Apple will pay $400 million to consumers only if the liability finding survives the appeal process; it will pay $50 million if the liability question is vacated or remanded for further proceedings. If the liability finding is reversed on appeal, Apple will pay nothing.

The actions that precipitated the lawsuit started a few years ago. Before 2010, the big-6 publishers (now the big-5 publishers since the Penguin-Random House merger) used the wholesale model to sell e-books. Under the wholesale model, publishers recommended a retail price to a wholesaler and sold the book to the wholesaler for a certain percentage off the publisher’s recommended retail price. The wholesaler then sold the book to the retailer, who set its own e-book prices. For example, a publisher could set a recommended retail price for a book of $15.99, sell the book to the wholesaler for a fifty percent discount of $7.99, and the retailer could then sell the book at $10.99.

Amazon then began selling e-books at $9.99, and publishers initially had trouble competing. In 2010, Apple convinced the big-6 publishers to change business models, and the publishers entered into the agency model. Under the agency model, publishers set the retail price  of an e-book and use retailers as agents to sell the e-book. The retailer then receives thirty percent of the sales price of the e-book, and the publisher receives the remaining seventy percent. For example, a publisher can set a retail e-book price at $15.99, and the retailer must sell the e-book at $15.99; however, the retailer receives thirty percent of the sales price, and the publisher receives the remaining seventy percent.

The Department of Justice soon accused five of the big-6 publishers and Apple of fixing e-book prices to thwart Amazon’s $9.99 e-book price, and the publishers and Apple were later found guilty of violating the Sherman Act. Penguin, Hachette Book Group, Macmillan, HarperCollins, and Simon and Schuster paid $75 million, $31 million, $25 million, $19 million, and $17 million in damages respectively to e-book consumers, for a grand total of roughly $167 million in damages.

The potential $400 million class action settlement with Apple is in addition to the $167 million paid in damages by the publishers, so all eyes in the publishing industry will be focused on the Second Circuit on when it hears Apple’s appeal on December 15..

This class action settlement comes at an interesting time in the book publishing industry.  As part of the original DOJ antitrust settlement, Hachette, HarperCollins, and Simon Schuster ended their contracts with e-book retailers like Amazon and allowed retailers to renegotiate the contracts. Moreover, the settlement allowed retailers to return to the wholesale model, and the three publishers also agreed to not interfere with price discounts for two years. Now, Hachette and Simon and Schuster have entered into separate agreements with Amazon concerning e-book prices.

Apple and the publishers are undoubtedly hoping for a reversal, but I don’t think that is likely.  We will just have to see what happens.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post Federal Judge Approves Apple E-Book Settlement appeared first on Law Street.

I am wearing all black as I write this because it might as well be a funeral.

Sadly, Aereo is dead. The startup–which I had once believed to be a potential comeback kid has reached the end of its long and arduous battle; however, in a desperate attempt to retain hope, I am consoled by the revolutionary impact the small company seems to have made on the television industry. Aereo, a service provider that utilized small antennas to transmit broadcast signals to individual subscribers, filed for bankruptcy protection last week. Founder and CEO Chet Kanojia wrote in a letter to consumers:

We have traveled a long and challenging road. We stayed true to our mission and we believe that we have played a significant part in pushing the conversation forward, helping force positive change in the industry for consumers.

Despite valiant efforts, Aereo just could not overcome the legal and regulatory opposition that came after the Supreme Court decided Aereo’s business model was illegally violating copyright.

Shortly after the decision was released, Aereofiled for a cable license necessary for continued operation; however, the “Plan B” approach did not prove to be lucrative as the recent bankruptcy decision is Aereo’s best hope for maximizing its remaining value. With the filing for Chapter 11 reorganization proceedings, Aereo can put its legal woes behind it and sell any remaining assets that exist in the company. Lawton Bloom of Argus was appointed to serve as Chief Restructuring Officer.

William Baldiga, Aereo’s lawyer, announced that an auction of assets should occur on February 17, 2015, pending an approval hearing. “The company is now highly focused on devoting all its energy and limited resources to a transaction that will produce the highest and best return for our creditors and shareholders.”

U.S. Bankruptcy Judge Sean Lane granted various requests submitted by Aereo to allow what is left of the company to remain active during the liquidation period. Aereo has fired 75 of its 88 employees and greatly decreased remaining employee pay. Kanojia’s salary was cut in half.

While Aereo barely gained footing before its huge legal battle, the service forced major broadcasters to play offense instead of defense, recognizing a definitive hole in the cable market. Cord-cutters need programming too and Aereo may be the catalyst for a new business trend. Current broadcsting companies have already begun recognizing the internet television demand. CBS recently announced CBS All Access, a streaming service available by subscription for a $5.99 monthly fee. HBO also recently announced a streaming service independent of a cable subscription.

Although only existing content companies are dominating internet television by way of new services, it’s only a matter of time before new startups, supported by cloud technology, appear. The FCC is bracing itself for such an occurance. Last month, FCC chairman Tom Wheeler proposed a new rule that would allow internet television providers to license programming in an identical way to current cable and satellite companies. In an official FCC Blog post, Wheeler wrote:

Aereo recently visited the Commission to make exactly this point – that updating the definition of an MVPD [multichannel video programming distributor] will provide consumers with new choices. And perhaps consumers will not be forced to pay for channels they never watch.

So, although we are in a state of bereavement, heartbroken to see Aereo go, it will forever be the internet TV martyr that paved the way for the future of subscription streaming services.

Thank you, Aereo, for such innovation. You will be missed.

The post Aereo: The Martyr Files for Bankruptcy appeared first on Law Street.

Earlier this month, book publishers appealed their Eleventh Circuit Court of Appeals win against Georgia State University in a closely watched copyright case. In a surprise to many, the publishers have requested that their case be heard en banc, which means that a case is heard before all the judges of a particular court–in this case the Eleventh Circuit.

The publishers have asked for an en banc hearing based on what they argue was the Eleventh Circuit’s faulty analysis and alleged errors. According to Publishers Weekly, “two of the three judges in the unanimous opinion ‘contradicted Supreme Court and Eleventh Circuit precedent.'” Tom Allen, President and CEO of the Association of American Publishers, added that the request is pivotal because of “the vibrant educational publishing market that develops and provides quality content for students and teachers is at stake.”

The events that facilitated the lawsuit against Georgia State University date back to 2008. Three publishers–Cambridge University Press, SAGE Publications, and Oxford University Press–claimed that Georgia State University made thousands of their works available online through Georgia State University’s e-reserves, where students could print and download the works for free without seeking the copyright holder’s permission. The three publishers then sued four university officials of Georgia State University for direct, vicarious, and indirect copyright infringement.

In 2009, Georgia State University changed its copyright policy, where each professor who wanted to post a copyrighted material or excerpt of copyrighted material on its e-reserves would have to complete a fair use checklist to see if the professor’s proposed use qualified.

In 2010, a federal Georgia court held in favor of Georgia State University because there was not enough evidence to prove that the defendants engaged in copyright infringement. In particular, the four fair use factors–the purpose and character of the work; the nature of the copyrighted work; the amount and substantiality taken of the work; and the effect of the use on the potential market–favored Georgia State University because the purpose of the excerpted works was educational and non-commercial, the nature of the works was scholarly, a small amount of each excerpted work was taken, and there was little effect on the potential market of the excepted works.

Last month, however, the Eleventh Circuit reversed and ruled in favor of the publishers.  Although the publishers won, insiders noted that the Eleventh Circuit rejected the publishers’ main arguments and remanded the case to the district court.

You may have wondered in the past how professors and teachers were able to print and distribute excerpts of copyrighted works in their classrooms without a license. The answer is fair use. To claim fair use, a particular use has to pass the aforementioned four-factor test. No factor carries considerably more weight than the other.

However, not every use is a fair use, and thus, not every excerpt that a teacher or professor uses counts as fair use (for instance, it would likely not be fair use if a professor or teacher printed and distributed packets to students that contained 3/4 of “To Kill a Mockingbird” because the amount taken of the work would likely be too much, despite the non-commercial purpose and scholarly nature of the excerpted work).

This case is extremely important because it will immediately impact the classroom and determine what teaching tools and materials can be freely used. Moreover, according to The Chronicle of Higher Education, there is also a similar case pending against the University of California, Los Angeles.

These two cases have the ability to determine the future of higher education.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post Publishers Appeal Win in Georgia State University Copyright Law Case appeared first on Law Street.

As a future law student who plans to focus my studies on Intellectual Property, I navigate news aggregation sites thirsty for some juicy copyright and trademark infringement stories. Protecting and recovering property is what I’m about. After all, there’s ingenuity, labor, and profit to protect!

Therefore, when Getty Images turned over a new legal leaf this week, I found myself confused, annoyed, and relying on my inherent sarcasm to get me through this bit of tough IP news.

Getty Images, a large and well-known image licensing company, is seeking to make less aggressive copyright enforcement a priority. Aww, so endearing, isn’t it? *Cue eye roll*

For years, Getty has been equipped with (and fully utilized) software that flags illegal reproductions of its images on the Internet. Once flagged, Getty would send a rather stern note to the party that is allegedly infringing its content. Threats in the letter include costly litigation avoidable by settlement penalty payments and licensing and enforcement fees.

Recently, the leader of Getty Images’ global legal team, John Lapham, explained to GigaOm how Getty’s “enforcement policies are being ramped down…We’ve changed the program quite a bit to remove penalty and fees.”

Retrospectively, there were hints along the way. In March, Getty allowed free embedding of a majority of its images. For Getty, the move allowed access to more user data, advertisement insertions, and metered payments to Getty photographers. For users, the watermark was removed from this group of images, but critics still say “the implementation is hideous.” Ouch.

A Getty spokesperson extended Lapham’s explanation, stating in an email:

Our aim is to approach infringers as customers and to educate them—and anyone else who is new to licensing—about how to license imagery properly. To this end, at the beginning of this year we changed our approach to remove additional fees—“fees” being a percentage of the costs we incur in detecting unauthorized use and recovering the cost of the license. We now endeavor to recover the cost of the license fee only—there is no additional fee or penalty—and we only seek payment from registered businesses that are using an artist’s exclusive content to promote their own business.

So, Getty wants to treat infringement as just a customer mistake. A far cry from the intense lawsuit spree it executed earlier this year.

I appreciate the little licensing lesson that Getty is offering. But I disagree. A photographer worked hard for that photo, positioning the subjects, adjusting the lighting, staging the background. As Getty tries to promote its new tactic as one that helps the creative community, my years of studying communication and media make that hard for me to believe. The credibility associated with Getty is built upon the corporate and legal muscle it provides for artists. By diluting that practice, I worry and feel for the artists who license their work through the company.

The post Getty Images’ New Approach to Copyright is Bad For Artists appeared first on Law Street.

Previous fun facts about French life have let us in on a little secret: French people are picky. Each French city’s mayor or maire possesses the authority to establish policies that maintain public order. In Paris, rules vary according to arrondissement, or district.

So, the French are detail oriented. They like their rules and that’s okay.

However, their latest regulation—on copyright—is so strict that it’s funny. La Tour Eiffel, the Eiffel Tower’s official website states that although snapping some photos of the famous landmark is alright in the daylight, pictures are off limits when the sun goes down. My deepest condolences to anyone who ever dreamed of having a nighttime Parisian wedding photo shoot. The website explains, “its various illuminations are subject to author’s rights as well as brand rights. Usage of these images is subject to prior request from the “Société d’Exploitation de la Tour Eiffel.”

The structure of the Eiffel Tower itself is in the public domain. What isn’t in the public domain is the show put on at night during which different color lights are projected onto the landmark. That, instead, belongs to an artist who takes liberties and utilizes style to determine which lights, colors, speed the illuminations take place. Therefore, a reproduction of the work would require permission—and perhaps compensation—of said artist.

Essentially, it’s a time issue. The Eiffel Tower was built long before pretty lights were shone on it. This EU Information Society Directive includes a clause asserting that buildings in public spaces are to be in the public domain. However, France is one of the countries that refrained from adopting the directive into its law.  Italy and Belgium also refused the directive and retained their stricter policies. Belgium experiences the same issues with its Atomium, delineating on its website that “the image of the Atomium is protected and can only be used under certain conditions…Prices depend on whether it is to be used for a cultural, educational or commercial purpose.”

One must ask: when copyright law restricts something so large, so famous, and so iconic, how can it truly be enforced?

Wikipedia pages are being careful about it. Atomium pages include censored images or photographs of Atomium models. Poor Instagram will probably never see the legal light show. Illegal, however, can be found by a simple search of #eiffeltower. Google Images is chock-full o’ examples.

Ultimately, the regulation probably isn’t causing any tourists severe angst. That doesn’t, however, detract from the fact that it is copyrighted and nighttime Eiffel Tower pictures constitute infringement. We may take for granted our ability to legally Instagram post Lady Liberty at 3:00am with abandon.

The post Your Nighttime Eiffel Tower Pictures Are Illegal appeared first on Law Street.

Author Eric Dahl claims that Toyota stole a story from his book and used it in a recent Toyota Camry commercial.

According to Dahl’s complaint, his book, “B.B. King’s Lucille and the Loves Before Her,” contains a story that is similar to the story that occurs in a Toyota Camry Commercial.  In particular, Dahl alleges that he visited a pawn shop in Las Vegas and purchased a Gibson Lucille guitar.  He researched the guitar’s origin and discovered that the Gibson Lucille—the Prototype 1—was the same guitar that Gibson gave B.B. King on his eightieth birthday that was later stolen from his home. Dahl stated that he agreed to give King the Gibson guitar without compensation, and King arranged a meeting where King autographed another Gibson Lucille and gave it to Dahl in appreciation for his generosity.

If you have watched television in the last few weeks then you may have seen a Toyota Camry commercial where a girl finds a guitar, tracks down the previous owner — who happens to be B.B. King — gives him the guitar, and is given an autographed guitar in return. Take a look at the commercial below.

Dahl claims that Toyota’s commercial is a derivative work and is suing for copyright infringement.

Section 101 of the Copyright Act defines a derivative work as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work.’”

Under United States Copyright Law, derivative works give authors exclusive rights to license new works based on the author’s work. For example, motion pictures based on novels are considered derivative works because they are works based on the author’s work (i.e., the novel). In this case, the Toyota Camry commercial may be a derivative work because it is based on Dahl’s work, and Dahl never licensed use of his book to Toyota.

In order for Dahl to have a claim for copyright infringement, he must prove two elements: that Dahl has a valid copyright in his work, and that Toyota copied constituent elements of his book.  In other words, the second element means that Dahl has to prove that Toyota actually copied Dahl’s work, and Toyota improperly appropriated Dahl’s work.

Proving copying is a factual question, which can be proven by direct evidence like testimony; however, copying is usually proven through circumstantial evidence like proving that Toyota had access to Dahl’s work, and there is a substantial similarity between Dahl’s book and the Toyota Camry commercial.

Dahl claims that Toyota had access to his book. The Entertainment Law Digest states that “members of Gibson Guitar who were aware of his book and the story of the returned Gibson Lucille prototype were consulted by Toyota and the advertising production crew and confirmed the ad is based on the account in Dahl’s book.”

Thus because Dahl owns a valid copyright of his work, and Toyota may have had access to Dahl’s book, there might be circumstantial evidence that Toyota committed copyright infringement. However, we will have to wait and see Toyota’s answer.  My guess is that Toyota will claim fair use in defense of its commercial.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post Author Sues Toyota Over B.B. King Commercial appeared first on Law Street.

“Siri, I’m upset.”

“All shall be well, and all shall be well, and all manner of thing shall be well.”

Okay — so she’s not the deepest or most prophetic robot that ever tried to cheer me up, but we have all come to simultaneously know, love, and hate Siri. She saves us time by writing out our grocery lists (despite her confusion of homophones), keeps us from getting lost (although she tends to take the long way) and sometimes, on a Monday, simply provides just enough sass to keep us drudging until 5:00p.m. Apple is very proud of its little lady. Referring to the robotic personal assistant, the company advertises, “Your wish is its command.”

So, when the U.S. Trademark Office turned down Apple’s 2012 application for protecting Siri’s trademark as a “social network,” Apple stood up for its loyal virtual assistant. This week, the company filed an appeal with the Trademark Office, claiming that the examiner was not correct in his conclusion and that Siri deserves another chance.

Initially, it was determined by the examiner that Apple is not currently using Siri as part of any social networking business. Therefore, Siri cannot be protected by a social network mark. However, Apple argues that in many ways Siri accompanies social network websites such as Facebook and Twitter. For example, Siri can post and update statuses to both sites via a user’s voice command, allowing Siri to serve as a direct tool for online social interaction.

Some wonder whether this move from Apple’s legal team means that Siri’s social media future is bright, with more innovative, multi-platform media capabilities to come. This is somewhat expected, as our society inches closer and closer to artificial, technological assistance. We already have Siri and the Roomba robot vacuum. It’s only a matter of time before we’re able to fill our cubicles with a bunch of Wall-Es, right?

Others write this legal move off to be merely proactive. After all, Apple’s fierce legal team loves intellectual property and has been accused many times of creating a litigation bubble around its products, making it exponentially more difficult for competitors to enter the market with rival products. Apple is known to get crafty with its legal practices. In the past, the company has cited design patents when questioning the originality of Samsung technology (Apple Inc. v. Samsung Electronics Co. Ltd. et al.), protected its products with utility patents, trade secrets and copyright, and even obtained trade dress to uphold certain shapes, colors, or materials of a product as its own (the sneakiest of all the IP tactics).

The word “Siri” has definitively been Apple’s for two years. Apple holds the trademark for Siri as voice recognition software; however, Siri’s primary function seems to be unclear across the board.

I wondered if Siri was worried, so I asked her if she was upset. It turns out, she’s quite the optimist, answering, “Everything is fine. All of my circuits are operational.”

Only time will tell whether Siri’s purpose can be legally defined. In the meantime, we can still appreciate her as our trendy, ditzy assistant whom we resent but would never dare fire.

The post Apple Appeals to Trademark Office on Behalf of Siri appeared first on Law Street.

A California federal court dismissed a trademark lawsuit last week that John Wayne Enterprises brought against Duke University. The case was dismissed based on lack of jurisdiction and improper venue.

Actor John Wayne, born Marion Robert Morrison, had several nicknames that contained the word “Duke,” such as Duke Morrison, Duke Wayne, and The Duke. John Wayne Enterprises was created to “preserve and protect the name, image, and likeness of John Wayne by associating the John Wayne brand with quality and timeless products and experiences that embody the spirit of John Wayne and give back to the community.” In July 2013, the organization filed a trademark application with the Patent and Trademark Office to use the trademarks “Duke” and “Duke John Wayne” on all alcoholic beverages except beer. Last July, the organization sued Duke University for infringing its Duke trademark on alcoholic bottles.

John Wayne Enterprises argued that Duke University does not own the word “Duke” for use for all purposes’ however, the university argued that John Wayne Enterprises’ use of “Duke” on alcohol beverages caused consumer confusion, which trademark law is designed to prevent. According to the Los Angeles Times, John Wayne Enterprises’ “Duke” trademark is “a label on a bottle of bourbon stamped with a silhouette of the movie star in a cowboy hat, clutching a gun. The name ‘DUKE’ is stamped over his thighs, and John Wayne’s signature is reproduced near his feet.”  The John Wayne Enterprises logo can be seen here.

John Wayne Enterprises tried to gain personal jurisdiction over Duke University in a California federal court because “the school actively recruits students there, raises money there, maintains alumni associations there and sells university-related products there.” However, U.S. District Judge David Carter dismissed the Wayne estate’s lawsuit for lack of jurisdiction and said the case belonged in front of the Patent and Trademark Office Trademark Appeal Board in Alexandria, Virginia.

The court believed that “Duke was aware of John Wayne Enterprises’s presence in the state, but that there was no showing how Duke [University] purposefully directed its conduct at California by filing an opposition to trademarks in Virginia [the location of the Patent and Trademark Office.]”

John Wayne Enterprises and Duke University have battled over the use of the “Duke” trademark before. A July article in the Hollywood Reporter cites conflicts over using the name “Duke” in restaurant services, gaming machines, and celebrity licensing services. Thus, Judge Carter’s dismissal is likely not the end of this case. John Wayne Enterprises can always bring a suit against Duke University on the East Coast.

It’s rare to see John Wayne on the losing-end of a battle, but I am sure that John Wayne Enterprises is already preparing its next move to prevail in the end.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post The Duke’s Trademark Suit Against Duke University is Dismissed appeared first on Law Street.

If you love a good IPA, own a computer, and have an extra $30 per year lying around, then you might want to consider heeding the advice of the Colorado-based Brewers Association. The not-for-profit trade organization advised brewers of all sizes to register a new .beer web address, which was made available to the general public earlier this week.

In an online world saturated by .com domain names, .beer has been referred to as “top level” by the U.S. trade body. The Brewers Association already registered its own .beer address, as have many traditional brewing companies. Basic names have already been claimed, including craft.beer and oktoberfest.beer, according to Minds + Machines, which operates the domain registry.

This new naming structure makes it easier for independent brewers to establish a presence online. In fact, .beer is not the only popular item on the menu. Around 1,000 new domains are expected to be released by the Internet Corporation for Assigned Names and Numbers (ICANN) over the course of the next 18 months. ICANN is a non-profit corporation created in 1998 to assume responsibility of namespaces on the Internet. A list of web domain name applications released by ICANN in 2012 revealed requests for .pizza, .movie, and .life. On that list, Google alone applied for more than 100 domains, including .mom, .dad, and .fun.

Back in 2011 in a hearing before the Subcommittee on Intellectual Property, Competition and the Internet, members explained, “The gTLD [Generic Top-Level Domain] proposal is designed to dramatically expand the number of top-level domains available. This expansion will raise significant revenue for ICANN, possibly launch new businesses to manage the new gTLDs and create more options for registrars to sell domain names to consumers.”

Although the online conversation about this dot-beer revolution is relatively quiet as of yet, those in the industry are hopeful that ad campaigns and inclusion of the new sites on labels will foster growth in business.

The domain name is appreciated as an inexpensive establishment of intellectual property. Although a domain name is not an intellectual property right, it is an asset to a company or individual’s IP portfolio of trademarks and patents.

This specific domain name comes at a great time for beer brewing across the country. The Brewers Association released the America brewery count in June at 3,040, marking the first time the United States has reached a number in the 3,000s. This figure signifies a new localization of beer production, with 99 percent of the 3,040 breweries being considered small and independent — the very breweries thirsty for .beer!

So, whether you’re brewing in your garage for your own enjoyment, mulling over a craft-beer startup, or merely drowning your ails in a glass of ale, you now have a new place to share the word about beer.

—

Alexandra Badalamenti (@AlexBadalamenti) is a Jersey girl and soon-to-be graduate of Fordham University in Lincoln Center. She plans to enroll in law school next year to study Entertainment Law. On any given day, you’ll find her with big blonde hair, high heels, tall Nashville dreams, and holding a newspaper or venti latte.

Feature image courtesy of [Quinn Dombrowski via Flickr]

The post Calling All Brewers and Connoisseurs: .Beer is Open appeared first on Law Street.

In an ironic twist of punny fate, the University of Pittsburgh, endearingly nicknamed “Pitt,” is beginning to gain a reputation that is now (you got it)…the pits. As is common at institutions of higher education, the University of Pittsburgh possesses significant resources, allowing for in-depth research in various fields. All of that sounds wonderfully intellectual and peachy…until the bill comes. Research is expensive and so, as one might have guessed, grants and other federal support pick up the tab.

Now, this may sound like a lot more accounting than law: How much money will it cost in grants to develop IP that will make more money? Pitt claimed earlier this month though, that in order to ensure the receipt of federal research funding, all faculty members must offer their signatures in accord with school policies—including signing away their intellectual property rights.

The university advised faculty and nonclerical employees to sign documents upholding that they “irrevocably assign and transfer to the university my rights, title and interest to all intellectual property” they develop while employed at the educational institution. With so much research happening at this school, signing this document may mean signing away rights to a medical cure, a scientific discovery or any other intangible yet valuable IP treasure.

Pitt stands behind its presentation of these agreements to faculty, explaining that these arrangements are consistent with its standard intellectual property policies. The school’s administration also says that their request for signatures simply stems from a 2011 Supreme Court case (Stanford v. Roche) affirming that schools must implement IP policies and ensure compliance with said policies.

The signatures are not actually required to secure grant funding, however. Therefore, many are opposed to this idea, including former president of the American Association of University Professors, Cary Nelson, who expressed his sentiments to  the Pittsburgh Post-Gazette. “Everyone says your academic freedom gives you the right to decide which kind of research you do”, Nelson says. “Your academic freedom doesn’t end when you create something valuable. It extends to how that [research] enters the world.”

Others who support the school argue that the relinquishment of personal intellectual property rights is appropriate as it qualifies as a term of employment. In addition, some maintain that Pitt deserves the profit because it grants access to the research resources, crediting Pitt with creating an environment that fosters the IP.

In its own defense, the University of Pittsburgh has cited numerous other colleges with similar agreements in place.

The University of Pittsburgh is no stranger to IP drama. In January, a research team sued the school over intellectual property rights to research that shows promise for a  new lung disease vaccine.

At Pitt’s faculty assembly meeting, the deadline for collected signatures was postponed from its original deadline of September 16, allowing for more time to examine the agreements. A panel was asked to recommend new policies by September 30. The decision to reexamine this procedure came after the University was met with complaints by faculty members who were upset to learn that failure to turn in a signed document by the original deadline would result in the school’s “inability” (or seemingly, unwillingness) to process their federal grant proposals.

Pitt’s existing IP policy states that the inventor “will normally receive 30 percent and the university 70 percent of the net financial returns from the licensing or other transfer of patent rights or other intellectual property rights.” Although the idea of a ratio seems archaic in a world where various forms of IP are everywhere, assessment for compensation on a case-by-case basis drains university resources, as well.

With exactly one week left until the reform deadline, we’ll just have to wait and see who fares better in this IP policy pitfall.

The post New University of Pittsburgh Policies Require Faculty to Sign Away IP Rights appeared first on Law Street.

Fall is officially here. The weather is changing, sweaters are back, and the infamous Pumpkin Spice Latte is in the hands of every bubbly blonde girl on the East Coast. So, in honor of this exciting time, here is a profile of the most amusing Halloween patent that was ever filed with the US Patent & Trademark Office.

First, let me set the scene and take you back to your Trick-or-Treating days. Super excited about your cheap, plastic costume, you traveled door to door in your neighborhood hoping not to get those lame pumpkin-shaped pretzels and, instead, eyeing up some Jumbo Reese’s. As you got older, you ditched the candy and scoped out all the spooky festivities in your town. If you’re a boy and you were lucky, your crush got so scared on that haunted trail that she ran right into your skinny, prepubescent arms.

For a serendipitous moment like that one, you have patents like this one to thank.

The ‘Haunting Aid’ (Patent #: US 6776687) is an invention designed specifically for haunting purposes. Filed October 11, 2002, the device uses LED lights and comes together to form a face with glowing eyes that will stare and blink right back at you. It seems pretty simple until you read the patent and realize that the creator of this gadget takes his Halloween haunting to a whole other level.

Inventor Frank Becking, hailing from California, writes, “This relates to components for spooky entertainment, particularly those suited for haunting mortals, for example, on hallows eve” and “may even be useful in producing mass-hysteria.” He’s quite the economic thinker as well, citing that the “main cost to consumers comes in terms of lost sleep.”

Becking even slips some formal Halloween theory into the mix, exploring why “for some reason, red eyes make werewolves howl, while green eyes make ghosts positively haunting.” He also admits that the lighted eyes in his invention are an “effort to produce a macabre appearance.”

Although the inspiration for this patent is not apparent, the nature of the text serves as a reminder of two things:

You are never too old for Halloween and yes, patent law can actually be fun.

The post You Can Thank This Patent For Your Best Halloween Memories appeared first on Law Street.

I don’t know about you, but I had a great Labor Day. My sister Ariel flew up for the weekend, and we stuffed our days full of fun activities like seeing Book of Mormon on Broadway and going to a Yankees vs. Red Sox Game. We laughed, cheered, and created the “Adventures of Stick Figure Amber” – where I drew our annoyingly absentee sister into every single picture and gave her some wacky adventures of her own in an effort to pretend she was there.

Perhaps the highlight of this trip was what we did on Saturday and Sunday: attend Jay Z’s “Made in America” music festival in Philadelphia. We saw tons of great acts – one being Kanye West. (We also saw that in our advanced old age of early-to-late twenties, we were perhaps already too old for this type of event. I’ve never wanted to say “Do your parents know you are here?” more than when I saw all those pre-teens dressed in practically nothing openly drinking and doing drugs. Kids today! But that is straying from the point…)

As Ariel and I danced (rather I jumped up and down like an idiot while Ariel stood still glaring at me with disdain) and people-watched, we had no idea what shameful secrets were brewing just underneath the surface. (That might be an overly dramatic opening to what I am about to write.)

The lawsuit about which I am going to tell you is not really all that funny or even out of the ordinary; however, it is really exciting because it kind of, sort of, on a tangent, not really but I’m counting it deals with an event that I was attending. And that makes it interesting to me if to no one else.

Courtesy of gifsoup.

Did you know that “Made in America” the music festival was named after a Jay Z and Kanye song with the same name? Brooklyn rapper Joel McDonald didn’t. Or rather, he knew it was named after a song with the same title, but he was under the impression that it was his song, not the rap legend duo’s. He came to this conclusion based on the fact that he sang and sold on iTunes this song in 2009, but it was done by Jay Z and West in 2011 — with no mention of McDonald there.

Let’s compare…

McDonald’s song:

Jay Z and Kanye’s song:

Are they the same? McDonald hopes people will think they are close enough, because to celebrate the third annual “Made in America” festival, now located in Los Angeles as well, McDonald sued for $3 million for copyright infringement in Manhattan Supreme Court.

What do you think: Will Jay Z soon be in a little less of an empire state of mind or will McDonald find out that New York isn’t the concrete jungle were dreams are made for everyone? Was Kanye acting more stupidly or did McDonald say something when he gon’ end up apologin’? Will Jay Z…I could go on with these all day.

Ashley Shaw

Ashley Shaw is an Alabama native and current New Jersey resident. A graduate of both Kennesaw State University and Thomas Goode Jones School of Law, she spends her free time reading, writing, boxing, horseback riding, playing trivia, flying helicopters, playing sports, and a whole lot else. So maybe she has too much spare time. Contact Ashley at staff@LawStreetMedia.com.

The post Lawsuits and Copyright Infringement Made in America appeared first on Law Street.

Introducing first, in one corner, weighing the equivalent of nine justices, hailing from Washington D.C., backed by broadcasters, the well educated, ever respected SUPREEEEME COURT!

In the other corner, less than one pound and the size of a dime, young and feisty, hailing from New York, the crowd favorite, the underdog, the AEREO ANTENNAAAA!

Well, folks… we all know how this fight ended. The Supreme Court, in a 6-3 decision, beat Aereo’s butt on the grounds of copyright infringement.

Nobody thought that Aereo, bruised and beaten from being on the ropes, would ever return to the ring. But have we found our comeback kid? It seems Aereo wants to brawl after broadcasters requested that a New York court order Aereo to cease business across the country. In new court papers, Aereo demands another chance. The Internet television provider insists it be given the necessary cable license for operation, legally allowing it to transmit broadcast TV shows.

“It would be illogical and fundamentally unfair to find that Aereo’s ‘Watch Now’ functionality is a ‘cable system’ …for the public performance analysis, but is not entitled to a compulsory license under the same,” Aereo asserts.

Odds are up in the air for this aggressive little company. A competitor of similar build, ivi TV was recently shot down after also requesting the same compulsory license in New York. So, why is the crowd still cheering for Aereo? Its individual attention to its fans! ivi TV’s transmissions were nationwide while Aereo only offered shows to those who subscribed to its service. This slight difference in technique can be just enough to bring victory to Aereo in this rematch with the judicial system.

Aereo enters this match insisting it’s a clean fighter, reminding the courts that it has “failed to show any imminent irreparable harm.” The company asks, “What better proof could there be that claimed harms are not imminent…than what actually happened when the complained-of actions went on for years?” Hope for this underdog comes from statements like that of Supreme Court Justice Stephen Breyer who has said that there are no “behind the scenes technological differences” that discern Aereo from actual cable companies.

Meanwhile, more fighters are gearing up to enter the competition. In an attempt to fill the Aereo void, TiVo has come forward with its new ‘OTA’ device, and Roku has plans for smart televisions with Aereo-like technology already integrated into the devices.

Let’s not forget about the common theme in all of this, however: that damn cloud. Problems surrounding Cloud service have not specifically been addressed, even in the Supreme Court opinion of Aereo’s ruling. Not wanting to overreach, the Justices cited that they could not “answer more precisely how the Transmit Clause or other provisions of the Copyright Act will apply to technologies not before us… Questions involving cloud computing (remote storage) DVRs and other novel issues not before the Court… should await a case in which they are squarely presented.”

So, much like a cloud, the fate of this new technology is still up in the air. For now, all we can do is follow the IP scuffles that occur on the ground and in the courtroom.

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Alexandra Badalamenti (@AlexBadalamenti) is a Jersey girl and soon-to-be graduate of Fordham University in Lincoln Center. She plans to enroll in law school next year to study Entertainment Law. On any given day, you’ll find her with big blonde hair, high heels, tall Nashville dreams, and holding a newspaper or venti latte.

Featured image courtesy of [Kristin Wall via Flickr]

The post Aereo: The Comeback Kid? appeared first on Law Street.

Every country music fan knows Brad Paisley to be the funny guy. A naked baby photograph serves as his Twitter profile picture and his tweets are often witty wise cracks at fellow country celebs (with Carrie Underwood seemingly a favorite to tease). Paisley’s work is creative and, at times, just plain comical. His song “Online” details the life of a “sci-fi fanatic, mild asthmatic,” Pizza Pit employee who still resides with his parents. You can’t help but chuckle as you sing along to that one.

Paisley’s free spirit didn’t have everyone at Sony Music laughing this month, however. Paisley employed various characters and personalities to help him leak his new album Moonshine in the Trunk. One song at a time, the artist leaked the music with help from people like Ellen DeGeneres, the web-famous Annoying Orange, and a NASA astronaut. Paisley originally announced his intentions over Twitter.

I’m going rogue. The label doesn’t know I’m doing this. Seriously. But I made a Moonshine Preview teaser. Don’t tell. http://t.co/8zZ4obKG4n

— Brad Paisley (@BradPaisley) July 26, 2014

Sony Music Nashville, Paisley’s record label, then sent disconcerted emails to the artist. Paisley promptly took screenshots of those emails and posted them online. Label executives and managers warned that there was a lack of permission for leaks of this sort.

Paisley tweeted this email that he sent to the reps:

I really do love my record label.Especially for puttin’up with my $h@t. But I love ya’ll even more. Ha! Priorities. pic.twitter.com/n8FFzuRNQ1

— Brad Paisley (@BradPaisley) July 26, 2014

Here’s one exchange between Sony and the Grammy Award winning artist:

Let me say: I love recording at Sony. I love my manager, my publicist, my agent. But yes, I’m doing this largely on my own. — Brad Paisley (@BradPaisley) July 30, 2014

Got this from the head of the label.. Seems pretty clear to me. pic.twitter.com/FmwPWRkFj4 — Brad Paisley (@BradPaisley) July 30, 2014

So you heard the man. Promote the song “Moonshine”. Here we go. Buckle up. http://t.co/MG9KUGFIbm

— Brad Paisley (@BradPaisley) July 30, 2014

And then when the label pulled the song off the Internet, Paisley tweeted:

Darn darn darn darn Darny darn darn!!!!!!! — Brad Paisley (@BradPaisley) July 30, 2014

It seems Sony Music Nashville was a good sport about the whole thing, in the end. The label retaliated in good fun, leaking Paisley’s personal email address. Overton admits, “Working with Brad is like riding a roller coaster: you know you’re going to scream, smile and have a wild ride… and it’s generally safe.”

However, in a time when record labels are fighting back against intellectual property theft, are intentional leaks like Paisley’s a sign that a new business model is in order?

For decades, the music industry operated with one business model: it sold enormous numbers of albums. With the profits it produced, released, and promoted projects. In fact, record companies would be able to negotiate contracts with artists through their access to radio time and studios.

Today, with the Internet as the most valuable tool in the music business, production and release costs are dramatically altered. Single songs are available for purchase, independent of the entire album, and music streaming subscription services allow consumers to listen without purchasing any content at all. Illegal downloads and digital piracy thrive all over the globe and the music marketplace is unrecognizable as compared to decades ago.

Artists like Brad Paisley just get it. His audience can most likely torrent his music for free; however, he undoubtedly won brownie points with fans, allowing for heightened audience interaction and valuable hype. This kind of communication with a fan base that must be convinced to purchase music as opposed to stealing it is just plain smart.

In a video posted to his Facebook account, Paisley explains his reasons for releasing his album early. “It really came down to me wanting to present these songs to the world in the best way possible,” he explained. “It’s all about connecting dots and letting you hear this record the way I intended.”

The new album was officially released on Tuesday, August 26 by Sony Music Nashville. We already knew all the words to almost every song but that’s what makes the moonshine taste so much sweeter.

The post Brad Paisley is a Rebel With Some Moonshine in His Trunk appeared first on Law Street.

Early last month, the Seventh Circuit of Appeals held that the Sir Arthur Conan Doyle Estate must pay attorney’s fees to plaintiff, Leslie Klinger. The payment of attorney’s fees is the latest setback for the Conan Doyle Estate in its attempt to block the publication of Klinger’s two Sherlock Holmes anthologies without first obtaining a licensing fee. In mid-July, Justice Elana Kagan denied the Conan Doyle Estate’s stay (i.e., blocking the Seventh Circuit Court of Appeals ruling).

For the readers who don’t know the background preceding the lawsuit, let me summarize it for you: Klinger, who is a Sherlock Holmes scholar, co-edited two Sherlock Holmes anthologies, A Study in Sherlock and In the Company of Sherlock Holmes, which contained new and original short stories about Sherlock Holmes by contemporary authors. The Conan Doyle Estate claimed that Klinger needed to obtain a license from the Conan Doyle Estate to publish A Study in Sherlock with Random House and a second license to publish In the Company of Sherlock Holmes with Pegasus Books. Klinger believed he did not need a license to publish the anthologies because he believed the Holmes and Watson characters were in the public domain. Although Random House acquiesced and purchased a license, Pegasus Books refused to finalize its author agreement with Klinger if he did not seek a license. Thus, stuck without a book contract with Pegasus, Klinger sued the Conan Doyle Estate in 2013 and sought a declaratory judgment (i.e., a legal determination by a court about a particular uncertainty between the parties) on pre-1923 and post-1923 story elements in the Sherlock Holmes canon, including but not limited to, characters, character traits, dialogue, etc., in order to determine whether or not Klinger needed a license from the Conan Doyle Estate.

In December 2013, a federal district court in Illinois ruled in favor of Klinger by stating that he needed to obtain a license from the Conan Doyle Estate for post-1923 story elements but did not need a license for pre-1923 story elements. In June, the Seventh Circuit of Appeals affirmed the Illinois district court’s decision and stated that Klinger did not need to obtain a license for his anthologies because the Holmes and Watson characters were in the public domain.

Justice Kagan’s denial of the Conan Doyle Estate’s stay likely signifies that the lawsuit has finally come to a close. Klinger’s win is advantageous to book publishers because publishers likely do not need to obtain a license from the Conan Doyle Estate to publish anthologies or other literary works. Moreover, Klinger’s victory affects the movie and television industries, which seem to almost always have a Sherlock Holmes television show or motion picture airing or in post-production.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post Sherlock Holmes: A Winner for Book Publishers appeared first on Law Street.

Various companies with recent intellectual property disputes are taking us back for a nostalgic look at our 90s childhoods. Chances are that at least once in your life you witnessed a jungle gym proposal involving the iconic Ring Pop.

Topps Co., the distributor of the Ring Pop, filed suit on August 21 in New York against the Ohio-based Primary Colors Design Corp. claiming trademark infringement. Topps asserts that three months ago Primary Colors revealed a product too similar to the Ring Pop at the National Confectioners Association’s Candy and Snack Show. According to Topps, Primary Colors showcased the Valentine Ring Lollipop — a sugary candy gem mounted on a plastic base in the design of a ring.

Topps requests a court order that would ban Primary Colors from producing and selling the candy item, in addition to financial damages.

It looks like there may only be room for one candy jeweler on the playground. But in case you weren’t the romantic type but more of a young businessman, you may have found yourself trading Pokémon cards in the sand box.

Courtesy of Kate Haskell via Flickr

Last week, Pokémon Co. International sent a cease and desist notice to Shapeways Inc. demanding it halt sales of its 3-D printed planter, which resembles the Pokémon character Bulbasaur. Although Shapeways did not officially label the planter as a Pokémon character, calling it a “succulent monster” instead, more than one reference to the Pokémon franchise was included in the listing.

After receiving the notice, Shapeways removed the listing from its website, but Pokémon International  is “asking for all the money associated with this model.”

So as children, after summers of Ring Pop proposals and Pokémon transactions, when winter rolled around, Disney movies were the go-to form of entertainment.

Last month, Disney found itself in its own winter nightmare when it was unsuccessful in convincing a court in San Francisco to dismiss a copyright infringement lawsuit. Kelly Wilson, a California filmmaker, sued The Walt Disney Co. over a trailer for the popular new Disney movie Frozen. Wilson claimed that in the trailer, the snowman character Olaf too closely resembles a character in his film The Snowman.

Courtesy of HarshLight via Flickr

A federal judge denied Disney’s motion to dismiss this case, writing, “the sequence of events in both works, from start to finish, is too parallel to conclude that no reasonable juror could find the works substantially similar.”

Although Disney’s Frozen features the famous song “Let it Go” with the lyric, “No right, no wrong, no rules for me I’m free!” the lawsuit is likely to go to trial.

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Alexandra Badalamenti (@AlexBadalamenti) is a Jersey girl and soon-to-be graduate of Fordham University in Lincoln Center. She plans to enroll in law school next year to study Entertainment Law. On any given day, you’ll find her with big blonde hair, high heels, tall Nashville dreams, and holding a newspaper or venti latte.

Featured Image Courtesy of [Elizabeth Albert via Flickr] 

The post The 90s Called: They Want Their Courtroom Back appeared first on Law Street.

Hey girl.

Hi there.

That’s a great color on you.  Fuchsia really brings out your eyes.

Didn’t know my eyes looked pink in this light, but sure.

Here, let me buy you a drink.  Can I get a Date Grape Koolaid for the lady?

If a man ever attempts to buy me a Date Grape Koolaid, I’m sure I’ll either move to the farthest bar stool or start a conversation over the downplay of rape in the dating environment and why he believes this should be perpetuated in the moniker for this beverage. Well, the first option is quicker.

This week in the trademark world, Kraft Foods Group, the maker of Kool-Aid, has threatened to sue a bar in Spokane, Wash. over the name of one of its drinks –- the Date Grape Koolaid.  Daquiri Factory, the recently opened Bar & Grill in Downtown Spokane, has been subject to outrage and significant criticism from rape survivors and the media. A spokesperson for Kraft has said the company is “appalled” at Daiquiri Factory’s unauthorized use of the “Kool-Aid” trademark and is preparing to bring legal action against the bar.

Though I couldn’t find the drink on the bar’s online drink menu, the owner thought he would send a  message to all of the drink’s protesters via Facebook (though the account was deleted as of last night):

We are going to Grape The Entire City of Spokane Tonight! One Grape a a time.. We will Grape your sister.. We will Grape your mother, your brother, your cousin! Then we are going to grape the Spokane River… and that will make enough grape for everyone from here to CDA to Seattle! The Grape will go on and on.. until we Grape The Entire United Grapes of America.. with the Y2KGRAPE VIRUS…. AND THHHHEENNNNNN… WINTER THE EPIDEMIC THE DELICIOUS GRAPE DATE HAS CAUSED TONIGHT STARTING AT 4PM!

In response to angered Facebook readers, the bar commented that “It’s A Daiquiri Bar, not a CANDY STORE! 21 & UP WELCOME!”

How insensitive and tactless can you be? The name is ruthlessly offensive and undoubtedly similar to the registered “Kool-Aid” trademark. So, a) good luck trying to get that legally protected, and b) even if that’s not your intention start thinking of an equally provocative name to get the drink consumed BECAUSE KRAFT WILL EAT YOU ALIVE IN COURT.

Not only does the name trivialize date rape but it demeans survivors with punchlines and gimmicks — and we see where that got Rick Ross. My message to Daiquiri Factory: issue a public apology, change the name, and act before your business starts to suffer. Today it’s covered in Time and Law Street, tomorrow…U.O.E.N.O.

Gena.

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Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Get in touch with Gena via email here.

Featured image courtesy of [Lars Plougmann via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post How to End Your Date Before It Even Starts: the Date Grape Koolaid appeared first on Law Street.

What’s unacceptable for pork is OK for people these days? At first glance of the Patent and Trademark Office’s decision to reject a mark for “Redskins Hog Rinds,” I felt of tinge of angst rise within me due to the controversy surrounding the Washington Redskins’ use of the trade name for their team. Seriously? You’ve got to be fucking kidding me.

But after taking a step back and assessing the bigger picture, I realize that what the PTO is actually doing here is setting precedence!

Here’s the story: back in 2009 when the Washington Redskins’ trademark was up for appeal before the Trademark Trial and Appeal Board (TTAB), the PTO failed to terminate the Redskins’ trademark protection on the grounds that the plaintiffs’ claim had surpassed the statute of limitations. The case was never dismissed on its merits.

However, recently the Washington Redskins’ trademark has been under heavy scrutiny — warranting opinions by members of congress, Native American tribes, civil rights groups, and even the president himself. The suit, invoked by a Native American collective, is before the TTAB where the PTO is considering whether the Redskins’ moniker and logo should lose their federal registration status. I’m feeling like… the PTO is foreshadowing a decision in favor of Washington’s NFL team losing its trademark.

On December 29 in a rejection letter for the “Redskins Hog Rinds” mark, the PTO stated that the term phrase may contain “offensive slang” or “disparage or bring into contempt or disrepute persons, institutions, beliefs, or national symbols.” Oh word? The letter went on to point out that definitions of the ‘redskins’ word indicate derogatory connotations, in addition to the word being cited as offensive by many Native American groups, including the National Congress of American Indians.

So what would this mean for the team? Well, losing federal registration of the mark wouldn’t necessarily force the team to change its name. In fact, they could choose to ignore the decision altogether and keep operating their business as usual. However, because they would no longer have protection over the name, if I wanted to create Redskins t-shirts and sell them in my boutique (this is all hypothetical), neither Dan Snyder nor the NFL could do anything about it. I also recently learned that the NFL divides merchandise sales across the league, meaning that if the Redskins lost their trademark, the entire league could be out of pocket.

I’m interested to know where some of you stand on this dispute. Is the PTO overreaching by deeming the mark as derogatory? Are they opening the doors to hyper-sensitivity and prudently narrowing the pool of phrases available for registration? Or are they proper in determining that this mark shouldn’t be granted protection in light of evidence indicating that the term ‘redskin’ is racially offensive?

Perhaps that last question is leading, but that’s only because I personally don’t see how this is even an issue that could be contested. The Lanham Act states that a mark is not to be granted trademark protection if it is found to be disparaging or offensive, which it so clearly has been. It’s against the law people! At this juncture, perhaps the Redskins should direct their focus on winning more games or creating a captivating new mark, because I’m pretty sure this is a wrap.

Gena

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Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Get in touch with Gena via email here.

Featured image courtesy of [Keith Allison via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post Why the Redskins Should Prepare for Trademark Loss appeared first on Law Street.

The road to the Google Books Library Project was paved with good intentions. Equalize the reach of books to anyone with Internet access. Oh, and make the books free. Knowledge for the people.

But somewhere beneath this pavement there was a hitch — copyright law.  A lot of the books that were digitized for public access were under copyright. However, I must note that the scanned books were only available in snippets and wholly scanned so that they could be researched through the Project’s online card catalogue. Is this a violation of copyright law or is it fair use?  At first glance, I thought this was quite clearly copyright infringement, but upon deeper exploration I had to agree that the Google Books Project could be interpreted as transformative. But here’s how I really feel: it’s a stretch and I don’t respect it.

Let’s explore how the suit against Google has been unfolding.

On December 23, the Authors Guild, a coalition that aims to promote the copyright protection of written works, announced their intention to appeal the dismissal of their lawsuit against Google.  The suit centered on the notion that Google was infringing on the copyrights of numerous authors by scanning more than 20 million books for the Google Books Project without the authors’ permission. Though the Project’s stated purpose is to “make it easier for people to find relevant books while [also] respecting authors’ and publishers’ copyrights,” the contested point here is this: when does fair use cross the boundary into infringement?

Because I thought that blatantly copying another’s entire work without their permission would be an obvious case of infringement.

The suit was initially filed more than eight years ago and was abruptly dismissed by a New York Circuit judge on the basis that the Project doesn’t actually harm the creators of these written works. Granting a summary judgment motion in Google’s favor, the judge referenced the defenses of fair use and transformation. He made a point to factor in the educational purposes fulfilled by the Project in his determination that the Project was transformative. Ok. Sure.

I guess you could say that taking anothers’ works and printing them verbatim for your own use hidden by the pretext of ‘education for all’ would transform your creation into something new. Sure. Like I said, there are definitely some good intentions here, and I’m all for wider dissemination of book content. But I’m just not buying why these authors shouldn’t be compensated or why their permission isn’t needed.

Does anyone remember the Harry Potter case? Five years ago, someone attempted to create a Harry Potter encyclopedia for pretty much the same purpose as Google Books – to make information easier to find. However, in that case, the judge ruled that while the online guide was slightly transformative because it put all of the terms into one source, it still didn’t satisfy the defense of fair use because of the amount of verbatim text taken from the Harry Potter books. Is Google not doing the exact same thing?  Are they not copying the books verbatim and offering them to the public without author compensation or permission? Who is Google to determine the appropriate amount of content to freely display to the public?

Which brings me to my next question — does Google win merely because they are Google?  These books were created to entertain, to educate, and to bring forth whatever purpose the author may have fathomed. So in my opinion, the only new purpose that Google is adding is dissemination. I guess now we can take entire books and create our own educational or research-related excuse for stealing them and have the courts deem it a “transformation.” Google shouldn’t be allowed to decide the amount of content that can be utilized in creating this reference bank — the authors should. And the authors should’ve been given a voice throughout the Project’s entire creation.

I truly appreciate what Google Books stands for as far as enlarging the audience for these books and making intellectual power more easily obtainable. I just don’t understand why Google, with their absurd amount of wealth, couldn’t settle with the authors who created the information they wish to share — even after eight years! This case is nothing more than a power play by Google to remind us who’s in charge.

The Google Books Project should exist, but not without compensation to those who built it. Compiling information is not the same as creating it.

Gena.

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Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Get in touch with Gena via email here.

Featured image courtesy of [Aray Chen via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post Copyright Law: Why Google Doesn’t Have Time for That appeared first on Law Street.

So…I hate Sprint. The service is unreliable, slow, and (appropriately) the laughing stock of networks — unless you’re in a room with a Cricket or T-Mobile user. But it’s cheap and I’m a recent graduate so I take what I can afford. I’ve thought about switching from Sprint to Verizon quite a few times and lucky for #TeamiPhone, I can do this with a simple phone call (plus maybe a shitty termination fee) and voila!

But what if you have a phone that isn’t carried by the network you wish to join? Well, then you’re screwed. But even if you have a tech-savvy friend who can ‘hook it up’ by unlocking your phone — even if your contract has ended — he or she can face criminal penalties.  Last year, the Library of Congress announced that utilizing software to bypass a carrier’s network limitations is a copyright violation. This ruling centered on the notion that “unlocking” a cellphone requires the alteration of software so that it may be accessible to other wireless companies. The cellular providers asserted that locking cell phones is part of its business practices. CTIA, the Wireless Association that includes cellular networks such as AT&T, Sprint, and Verizon, contended that phones have been traditionally locked as an integral aspect of the carriers’ business models.  So, essentially, the carrier pays a fee to the cell phone’s creator (think Apple and Nokia) and the carrier receives a promise from the creator to utilize that particular carrier as its premier network. But who pays for these wireless barriers in the end? We do.

If we can use our cellphones on any network, then service providers would be forced to lower their prices because of an increase in competition. But in all fairness, there is a possibility that switching from one network to another could produce technical difficulties. A phone may be only partially functional on certain networks because not all carriers’ technology is compatible with that of another. However, if carriers are forced to allow the unlocking of phones, the barriers between each entity will undoubtedly be lowered because they’ll have to adapt to the change in law.

This new agreement requires mobile carriers to notify consumers that they may legally unlock phones once their contracts are up. Let’s throw one back for the increase in transparency among these mobile carriers. And honestly, can’t you use the money? Not only will we be exposed to cheaper service rates but we’ll also able to resell our old phones more easily because there will be less concern with network compatibility.

So start digging up those old Blackberrys and Razors — we’ve got a bigger market and more ways to bustle the hustle in 2014.

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Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Get in touch with Gena via email here.

Featured image courtesy of [Tiz via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post The Cellphone Come Up: How Selling Your Cell Can Pay Your Rent appeared first on Law Street.

The Supreme Court has granted certiorari to adjudicate the highly contested issue of which software innovations may be eligible for patent protection. The impact of this case will be decisive in determining the extent that a technology company can utilize an aspect of another’s software without being subjected to a patent infringement suit. At the same time, the decision may make it easier to challenge a patent for want of validity without having to sort through the particulars the patent includes.

Alice Corporation vs. CLS Bank is the case that has motivated the Supreme Court to sift through this heavily-weighted issue. Briefly, the case involves a company that held software patents covering methods of conducting online financial dealings. CLS Bank contended that the patent was invalid for lack of patentable subject matter, and the Court of Appeals for the Federal Circuit agreed. But why? Well that was the issue — they didn’t exactly know, releasing six different opinions, none of which was supported by the majority. In fact, another recent case involving the same question of patentable software was determined on a basis that was unclear as well.

Pushed by companies such as Google, JP Morgan, and Netflix that contend that patent standards are too lenient and vague, the courts are faced with a question that will decide the future of technological innovation. To be eligible for patent protection, an invention cannot be obvious or merely an abstract idea. The policy behind this is to preclude a patent holder from claiming an entire innovative field. Instead the application of an abstract idea to a certain process or structure may be patent eligible.

Stick with me. The crux of this issue is determining guidelines for what types of methods meet the patent eligibility standard, right? But what I’m confused about is why it makes any difference if a method is embodied in a machine or tangible article versus being written on computer software. A computer is indeed a structure (as required by the seminal case, Bilksi) and the software is intended to carry out the novel process. Whether a method is carried out by software should not be decisive in determining whether it is patent eligible. It shouldn’t be a factor for consideration. Software can most certainly envelope novel processes without monopolizing an entire concept, as seems to be the concern of anti-patentable-software advocates. For example, a software that writes a method for connecting Garage Band data to Guitar Hero by utilizing the music data created in Garage Band to formulate different levels in the Guitar Hero video game should be allowed to gain patent protection even though it may involve computer algorithms. For argument’s sake, it’s a non-obvious process that was executed through a machine — a computer. Why should it matter if the process was made to occur through some tangible box connecting your computer to your PlayStation? Why should this factor grant one innovator patent protection and not another?

The other side of this coin is no less convoluted. Arguing that software may simply cover a thought process or computation, companies such as Microsoft are asserting that software patents may stifle innovation. They claim that the patentability of these computer-executed methods may open the gateway for patent applicants claiming the rights to innovative tools that may be useful to a category of inventions. I disagree with this notion for the reasons stated above. Furthermore, the Patent and Trademark office considers whether a process transforms the thing through which it is employed to determine patent eligibility of a method as well. Wouldn’t employing a software on a computer undoubtedly transform it? A computer with iOS is vastly different from one with Windows, and, thus, a computer with any software added to it has been transformed because it is then a different piece of machinery facilitating different tasks.

The Supreme Court will hear arguments in March or April and release a decision by July of 2014.

Gena.

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Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts.

Featured image courtesy of [Mike Licht, NotionsCapital.com via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post Computer Software Patents: To Be or Not to Be Eligible for Protection? appeared first on Law Street.

On November 13, WikiLeaks, a nonprofit media organization that prides itself on divulging imperative information to the public, leaked a draft of the Trans-Pacific Partnership (TPP) agreement. The agreement was being secretly negotiated among our government’s policymakers in order to avoid public uproar and backlash that may result in the watering down of some of the agreement’s regulations. If there is a need to smuggle proposed legislation into enactment in a democratic society for fear of being met with opposition, then maybe the law isn’t representative of the majority’s voice.

This law is far worse than SOPA and PIPA combined. It’s a “free trade” pact between 12 countries, including the U.S., Canada, and Mexico. What it really is is an agenda effectuated by corporate powerhouses that want greater intellectual property protection at the cost of freedom of expression and creation.

Three key provisions of the TPP that will affect you and should elicit your interest:

Our internet service providers will become the copyright coalition. The Digital Millenium Copyright Act’s (DMCA) takedown notice procedures provide Internet Service Providers (ISPs) with safeguards against suit for copyright infringement committed by its users. If a user is accused of infringement, the ISP, upon receiving the takedown notice, must immediately delete the infringing content pending a determination of infringement in order to avoid liability for the posted material.  If you think this is unfair, the TPP takes it a step further. The TPP grants legal incentives to these internet middlemen in exchange for their participation as copyright police (essentially). Why does this matter? Well these provisions could potentially result in the filtering of user content for possibly infringing material. Websites that may contain infringing material, including social media hangouts, have a chance of being blocked by these ISPs so that the provider can circumvent liability for infringing material transferred through the internet. And think about it from an economic standpoint. How much would it cost for ISPs to comb through every bit of user-generated content to determine if there are copyright concerns? It’s definitely a lot more than simply running a prudent internet service that limits access to certain sites and web platforms.

Patent powers will be used for evil.  The TPP makes patents more easily accessible for the pharmaceutical industry by including an entire section in the agreement devoted to opening the pathways to patent protection for specifically this industry.  Additionally, patent applicants in this industry will be able to limit the availability of the scientific info that was utilized to create the medicine, which operates to give the pharm moguls a huge amount of leverage against other creators. The price of medicine will undoubtedly increase, and I think that was the whole purpose of this particular law to begin with.

Protection will infringe on constitutional rights. Our constitution aims to encourage invention and the arts by limiting the time period for which a holder of intellectual property can assert his or her rights. This law proposes to extend the years of copyright protection by 20 years and thus further minimize the amount of information available in the public domain from which new works can be created.

And that’s only just the tip! For the full leaked version of the Trans-Pacific Partnership agreement, click here.  I strongly advise you to look it over or read a few summaries on it when you get the chance. The availability of knowledge and legal space for innovation will be dramatically decreased by the TPP.  And should our democratic values be neglected in the interest of corporate wealth? NO! So do something.

Please take a few seconds to sign this petition to stop the TPP here.

Gena.

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Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts.

Featured image courtesy of [hdzimmermann via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post End of the Internet as We Know It: Trans-Pacific Partnership Agreement appeared first on Law Street.

Let’s talk toys. In the trade dress community, there appears to be some naughtiness afoot. Here’s the nitty-gritty on trade dress: it’s the law covering a product’s shape, color, design, texture, and even how it’s packaged and presented. If a competitor makes a product that is sufficiently similar to these attributes of another product so as to cause consumer confusion — BAM! Trade dress infringement.

Fuhu Inc., a company that specializes in child technology, is bringing suit against IdeaUSA for infringing on the trade dress of its tablets. The California-based company claims that IdeaUSA mimicked the “butterfly shape” of Fuhu’s “Nabi” tablet for their similar product, IdeaPlay. As further indication of the butterfly theme, Fuhu named their tablet Nabi because it means butterfly in Korean. So clearly, the butterfly-idea-shape-thing was taken, but did that stop IdeaUSA?

Due to licensing formalities, I can’t reproduce images of the two tablets, but click these two links for the visual –> the Nabi tablet and the IdeaPlay.  By utilizing soft edges and elongated corners, Fuhu created a product that contains the technology to which our generation’s children should be exposed, with their trademarked “Drop Safe” bumper to protect the tablet from realistic experiences. The design is brilliant. Easy to grasp. Resistant to shatter. However, this brilliance gave the infringing version equal shine because they are the SAME physical product.

Fuhu claims that consumers will likely be confused as to the source of IdeaPlay because of the very apparent similarities between the two products. Well, of course. YES. The IdeaPlay is nothing short of a knockoff. It isn’t difficult to grasp why IdeaUSA would want to copy (notwithstanding the fact that it’s illegal) the exact makeup of Fuhu’s kiddie tablet. The Nabi has nabbed more than $118 million in revenue, amounting to a glorious growth of 42,148% in just three years. (WHY DIDN’T I CREATE THIS?!) I say all of this to make the following point: to win a trade dress case, the makeup of your product needs to be distinct or well known by the public. The cute round edges of this children’s tablet are what make it work, and this design is clearly favored by consumers.

While the Nabi tablet ranges from $100 for the kindergarten version to $290 for the preteens-early-adolescents rendition, IdeaPlay is currently selling on Amazon for a solid $129. Welp. I know which gift would be bought in my household this Christmas season. And for a product that looks almost identical to its legitimate, though more pricey, counterpart? Why not? From an intellectual property standpoint, this is deliberate theft. Fuhu is rightfully seeking punitive damages here. IdeaUSA intentionally sought to capitalize off of the financial gain generated by the Nabi. Fuhu’s design was placed on the market first. The only visible difference between the two products is that the IdeaPlay has its camera placed on the boundary of the tablet, as opposed to being affixed to the touch screen like the Nabi.

This brings me back to the Victoria’s Secret case I covered a few weeks ago. There is the same blatant intellectual property theft occurring in both cases. Which brings me to my next question -why are businesses disregarding trademark law? Definitely a topic worthy of some coverage. It’s starting to seem as though the Lanham Act carries no weight, or at least not enough to deter competitors from swiping phrases and designs every week.

Gena.

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Featured image courtesy of [LadyDragonflyCC – >;< via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post Trade Dress Naughtiness: Why Some of Santa’s Elves May Not Make ‘The List’ appeared first on Law Street.

Happy Thanksgiving!! I hope everyone takes at least three trips to the dinner table, two naps in your bed, and one family outing — whether it be to see Hunger Games, look at Christmas lights, or pick up more beer for your uncles. Do it. And if you run out of topics to discuss or if you’re one of those people who just remember things better when they’re in list form then this is for you!

Here are 7 things that I think you should know about intellectual property. Before you take that first nap of the day, think about it. Think about your thoughts — how you express them and how you can protect that expression. What about that business you wanted to start — what did you want to call it again? How would you like it if someone tried to capitalize off of the goodwill you built behind that name?

That’s what I thought.

1. You don’t need to register your creation with the US Copyright Office to have copyright protection. The moment you place your expression on paper (or in some tangible form) it’s protected by copyright. But here’s the catch: if someone infringes on your copyrighted material, you will have to register to bring suit.

2. Federal registration of a trademark isn’t necessary either! You have trademark rights in the name or slogan that you create the moment you place it into commerce. (Commerce = in the market.) Also, you don’t need federal registration to use the TM symbol either. The ® is off limits unless you’re registered though.

3. There are two types of patents. Design patents are for, well, novel designs. For example, the sleek makeup of iphone display stands is covered by a design patent. Utility patents protect new inventions and processes, i.e the detection of your headphones in your phone or the analysis of your face to unlock an Android. Clearly, I have phones on the brain today.

4. Applications filed with the Copyright Office are public records and only $35. Why not register your art with the Copyright Office? Shine bright like a diamond, Riri.  But keep in mind that this is not the avenue you want to take if you’re trying to protect your family’s mac-and-cheese recipe.

5.  Registration of a mark is not guaranteed upon filing. Your potential mark may cause confusion with another owner’s mark, among other issues. It’s $325 to file a trademark application online and $375 to file for federal registration on paper. Your money may not be refunded so it’s a good idea to conduct a preliminary search (or hire an attorney to do so) before you file.

6. Copyright Law doesn’t protect ideas, only the expression of those ideas. Don’t rely on Copyright Law for that great business idea you have brewing. I would recommend nondisclosure agreements. If you’re meeting with investors to build your capital, get them to sign nondisclosure agreements so that if they share or utilize your idea beyond the bounds you establish you’ll be able to bring a breach of contract suit.

7. Timing. Copyright protection (for works created after ’78) lasts from the moment of creation until the end of the author’s life plus 70 years. Trademark registration can last indefinitely as long as you file the requested paperwork the years you are told. Utility patents filed after June 8, 1995 are granted protection for 20 years from the date of the application. Design patents have protection for 14 years from the date the patent is granted.

Learn more at these sites:

On Copyrights

On Trademarks

On Patents

Gena.

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Featured image courtesy of [Lynn Friedman via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post 7 Things to Place In Your Back Pocket appeared first on Law Street.

Happy Holidays Law Street readers!!!

Have you missed me?  It’s only been two weeks, but it feels like a month has gone by since I’ve checked in.  No need to DTR –I know in my heart we’re exclusive.

As I was exploring the crevices of my bag of emotions, I came across a bit of news about the platform that I use to communicate on here, WordPress. WordPress is the conduit through which material is posted to the site you see before you. Side note: I know that I don’t give copyright law a lot of my love so this one is for you, girl.

The company that owns WordPress, Automattic, has proclaimed its intentions to sue Straight Pride UK, an anti-homosexual group for “knowingly materially misrepresenting” a copyright infringement claim. Yep, that’s a crime. It all began in August, when Straight Pride utilized the Digital Millennium Copyright Act (DMCA) to issue a takedown notice to Automattic for material that was posted on the blogging site. The material consisted of an interview given by the anti-gay collective to a student journalist, Oliver Hotham. Hotham then posted the interview to his blog, which had been delivered to him via Straight Pride’s press representative in an attachment titled “Press Release.” Straight Pride claims that the interview was instead intended to be a private release and included a notice that the content was not permitted to be reproduced without consent. Automattic originally complied with Straight Pride’s takedown notice (the DMCA mandates such action to avoid further suit), but announced this past Thursday that enough is enough. In a recent blog post, Paul Sieminski, general counsel for Automattic, noted that these censorship actions have become “increasingly common” and are especially “infuriating.” Thank you, Paul.

Here’s what I think. Blog sites, such as these, need to put those cojones on display every so often.  The DMCA serves to protect copyrightable material, not to stifle unbecoming content so that it never sees the light of day. It wasn’t meant to chill speech but rather to provide incentive for authors to share their expressions with the public. It seems to me that this material was given to Hotham willingly and that it also falls under the fair use provision of the Copyright Act allowing for the reproduction of content for comment or criticism.  The DMCA shouldn’t be used as a vehicle to trample over our First Amendment rights! If bloggers have to post in fear of legal action, the purpose of blogging – sharing reviews on material that’s usually already public – will be muted. Of course, certain legal parameters must be in place to maintain a sense of order just as we have in our physical lives, but where is the line drawn? When does protection morph into suppression?

My only issue with this is that I wish the notion of ceasing internet censorship would have been brought up on a less politically polarizing matter. I fear that the issue of censorship will get lost among the gay rights activists’ amicus briefs. I’m not at all implying that gay rights is not paramount to censorship (because I honestly believe it is) but even now I’m finding myself getting lost in between the rock and hard place that these two issues present. They should be flushed out in turn and on their own merits.

Read the entire complaint against Straight Pride here.

Gena.

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Featured image courtesy of [Armando Torrealba via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post WordPress Takes Action Against Censorship appeared first on Law Street.

Technology is becoming increasingly invasive awesome-sauce with developments such as Android allowing you to scan your face and Apple requesting that you use your fingerprint just to unlock your phone. I don’t know how the possibility of a tattooed tracking device could have evaded my imagination. Enter Google’s Motorola Mobility neck tattoo: a mini microphone and lie detector that can be embedded in your skin with a tattooing device.

Last week, Motorola Mobility filed a patent application with the Patent and Trademark Office for this new technological advent. Let’s call it the ‘G-too.’ (Call me if you’re interested in this name, Google. It would only cost you the accumulation of my student loans. You’re welcome.) The primary purpose of the G-too is to produce higher sound quality in mobile phone calls by giving consumers the option of activating the neck tattoo as a microphone. The mic could also be used to command the phone with one’s voice. Sure. There’s no doubt in my mind that the amount of background noise and disruptions during calls could dramatically be reduced, but when has technology surpassed personal boundaries? Maybe a better question is, do people even have personal boundaries anymore?

The actual name of the patent is “Coupling an Electronic Skin Tattoo to a Mobile Communication Device.” The next logical question here is, how would you charge the batteries? Well, fret no more. The patent application explains that the device may “employ solar panel technology, capacitive technology, nanotechnology or electro-mechanical technology.” Yea, I have no idea what “capacitive technology” is either, but it sure does sound a lot better than watching people lean up against outlets trying to juice up their G-toos. Or does it? The visual alone has given me the utmost joy.

Back to this lie detector feature. The tattoo would also be able to identify fluctuations in skin responses to determine if someone is lying based on their level of nervousness/confidence. Why on Earth would anyone want a tattooed indicator of their dishonest mishaps? I’m guilty of telling a few white lies here and there, and I’m positive I don’t need a spotlight and siren to tell the world.

The patent applicant also offers a collar that could be worn around your neck if you don’t feel comfortable with the idea of the tattoo. But I mean…if you want to be tech-savvy badly enough to wear a collar, you really might as well ‘be cool’ about it and go balls-to-the-wall with the tattoo.

No one likes someone who does something half-assed.

 Gena.

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Featured image courtesy of [flyingpurplemonkeys via Wikipedia]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post Google’s Neck Tattoo: The Ink That Makes You Think appeared first on Law Street.

Counterfeit products: the items that your empty wallet hates to love. Well, it seems as though the number of counterfeit products rotating the black market is dropping this season. A couple of weeks ago, six New Yorkers were charged with trademark counterfeit and conspiracy. They have allegedly sold more than $13 million worth of Lacoste, True Religion, and Ralph Lauren’s Polo clothing to distributors throughout the nation. Those are some serious allegations, Artful Dodger.

The NYPD found more than 2,000 boxes of the counterfeit trademarked clothing in Queens last summer. In addition to these dubious activities, the criminal group has caught the eye of the NYPD Intelligence Bureau. Ray Kelly, the NYPD Commissioner, stated that the covert operations were particularly concerning because of “indications that proceeds were sent to areas in southern Lebanon.”

Well, there isn’t much left to interpretation here. Trademark counterfeiting is a crime under the Lanham Act, and people should face penalties for engaging in such activities. A little bit of background: trademark counterfeiting is the creation of an identical or discernibly the same image as a federally registered mark. Counterfeiting is a crime under Lanham, while infringing a mark is a civil suit. Counterfeit is a form of infringement, but infringement does not equate to counterfeit.

Enough of that — what I’m more concerned with is the composition of the counterfeit marks. I’ve seen a fake Fendi or Gucci bag in my day, but I’ve never been exposed to a fake Lacoste logo, for example. Is the crocodile turned to the right instead of the left? Is the tongue pink instead of red? Is the fake mark visually indistinguishable? And unfortunately, I couldn’t find a picture.  BUT, I wanted to compose some visuals and brief background information of a few trademark counterfeit cases throughout IP history.

In 2008, Nike alleged that two defendants manufactured and sold counterfeit footwear bearing the Nike trademarks over the internet. Read more here. Courtesy of Richard IJzermans via Flickr.

Last September, Several Atlanta residents were accused of “promoting and otherwise advertising, distributing, selling and/or offering for sale counterfeit products, including at least handbags and wallets, bearing trademarks that are exact copies of the Chanel Mark” for goods of a lesser quality. Read more here. Courtesy of Wen-Cheng Liu via Flickr.

In May 2006, Rolex Watch USA, Inc. discovered the watchreps.com website and shut it down through the website’s Internet Service Provider. However, the company discovered that the site had been reactivated three years later and was redistributing counterfeit Rolex watches. Read more here. Courtesy of Charlie J via Flickr.

For more information on trademark counterfeiting, see the International Trademark Association’s website.

Gena.

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Featured image courtesy of [Eric Skiff via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post Trademark Counterfeiting: The Crime Explored appeared first on Law Street.

Victoria’s Secret — can I call you Victoria? — has been a naughty, naughty girl.  As a dedicated brand minion for Victoria, I felt like a bit of a sleazeball when I decided to spill the specifics on her latest antics.  I really hate to break it to all my lovers out there, but the largest American retailer of lingerie has been accused of — wait for it — infringement.  Mmmmhmm.  And this isn’t the first time.

Unfortunately, I have to stand my ground on the opposite bedpost here, Victoria.  Hanky Panky Ltd., a Manhattan-based lingerie company, is suing Victoria’s Secret for trademark infringement of its registered marks “Indulge Your Inner Flirt” and “After Midnight.” First off, can anyone tell me why we’re automatically in the red zone?  “The Dupont Factors!,” shouted James Franco (cited merely because he’s an all-time overachiever and not because of the subject matter). Why yes, we have two lingerie companies. This means we’re already dealing with similar products that should be tossed in the indicative-of-infringement basket. Not that this should have been glaringly evident to Limited Brands, the parent company of Victoria’s Secret. No no no. Let’s dig deeper.

The “After Midnight” Infringement Claim

Hanky Panky registered the “After Midnight” mark to cover its 2010 collection of *ehem* “crotchless panties, sensual peek-a-boo bralettes, daring teddies and babydolls.” The complaint claims that this raunchy collection also features “sexual accessories such as lubricants and candles.”  Sounds good to me.  Problem is, it sounded pretty good to Victoria’s Secret, too. So good that they decided to slap the name on their own “aphrodisiac mood candle.”  Well, why stop there? Let’s also put the stolen mark on a few products in literally the same category, erotic unmentionables, that the mark represents for another company.

I don’t understand. Did Victoria’s Secret just think Hanky Panky was going to look the other way as they deliberately trampled on and sucked all of the commercial juice out of the mark?  Hanky Panky has a valid trademark. Sure the mark is suggestive, but it’s valid nonetheless. Victoria’s Secret took the exact mark of a competitor, with the knowledge that consumers would be confused, and placed it on extremely similar goods. It comes as no surprise that Hanky Panky is also asking for punitive damages under state law.  I see some much-needed discipline in your future, Victoria.

The “Indulge Your Inner Flirt” Infringement Claim

Hanky Panky trademarked the catchphrase, “Indulge your inner flirt,” in 2007, and has been using the slogan in its ads ever since. Yet Victoria’s Secret still thought they were entitled to thrust a strong middle finger to trademark law and appropriate the phrase in the ads for its own sexy PJs. This can’t be real life. Why should companies even utilize our trademark laws if they have no tenacity?

Soo…are you just running low in your fresh ideas bucket, Victoria? You knew better and chose not to do better. Sigh.

Still looking forward to the next semi-annual sale, though.

Gena.

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Featured image courtesy of [thinkretail via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post After Midnight: Victoria’s Secret Indecent Behavior appeared first on Law Street.

Last Thursday, Aereo requested that a federal court in Manhattan rule that its business offers legal services. The gist of Aereo, founded in New York, is to transmit local TV broadcasting to pai subscribers of the service over the internet. As a Comcast customer who’s consistently unsatisfied with my service features to monthly payment ratio, I can envision the untapped market that Aereo is attempting to reach. Consumers still want their daily intake of local news, and occasionally some Grey’s Anatomy and Scandal, but don’t want to be obligated to pay $80 a month for additional channels that their schedule doesn’t permit them to enjoy.

The service is $8 per month and enables customers who don’t want to pay ridiculous amounts for cable television to access local broadcasting.  Broadcasters have asked the U.S. Supreme Court to chime in and voice their perspective on Aereo’s services. This is long overdue as Aereo has already been subjected to suits in New York, Boston, and now Utah by major broadcasters such as ABC, NBC, and CBS. Broadcasters argue that their copyrights are being violated because Aereo is taking their signals without their permission and showcasing them to online viewers. Conversely, Aereo points out that it is already legal for viewers to use their own antennas and pick up local tv broadcasts. Additionally, viewers can legally record these broadcasts and replay them at a later time. The Aereo method is to rent out tiny antennas, capture free content in the public airwaves, and stream the content to your internet-enabled devices. So essentially, Aereo only utilizes tools that are legal, making broadcasters throughout the nation cause an uproar in our judicial system because the service has found a way to circumvent their licensing fees.

Federal courts in New York and Boston have allowed Aereo to continue to operate throughout the pending lawsuits, noting that broadcasters have not shown a high probability of winning their cases to warrant an injunction. The service launched a year ago, and there are already (approximately) 90,000-135,000 subscribers of the Aereo service in New York alone.

There is no copyright infringement here, ABC. That’s why injunctions have been denied, and the service has been upheld in different locales for over a year now. The real reason that the broadcasters are experiencing mood-changing-panty-bunching is because Aereo is threatening to interrupt the television system that brings them billions of dollars each year. Cable companies, such as Comcast  (I HATE YOU, COMCAST!), charge us a shit-ton to view local broadcasting, such as NBC and ABC, because they pay these broadcasters billions in retransmission fees to include their shows in subscriptions. And what does Aereo pay? Nothing.

Perhaps this is why Comcast was so eager to haggle with me when I threatened to cancel my service a few weeks ago. Makes sense.  If cable companies don’t begin offering better prices, sooner rather than later Netflix, Apple TV, and now Aereo will replace them faster than DVD players won over VCR owners. And I’ll be the first to go.

I either need to cancel my service, get a hanger and try to reel in some news stations for myself or practice what I preach and join Aereo when it arrives in D.C.

Gena.

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Featured image courtesy of [Pablo Menezo via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post Kicking Broadcast and Taking Names: The Aereo Method appeared first on Law Street.

Now that you’ve come of with a story, done the illustrations, and become an expert at protecting your comics, the hard part is over,  right? Well, actually getting your work published often takes even more effort. Many comic book creators find that they are out of their element when it comes to meeting and negotiating with publishers (especially some of the bigger names as seen below). Well, the panelists at Comic Con have some tips and tricks to help get you started.

Meeting and Negotiating with Publishers

Alan Robert and David Gallaher took the lead on this topic, which was only fair since they have first-hand experience of what it is like meeting and negotiating with publishers as comic book creators.

First off, it’s essential to understand the three types of comic ownership:

1. Publisher Owned – Such as Marvel or DC Comics
2. Creator Owned – You own and distribute yourself
3. Creator Driven – You and the Publisher share ownership

The type of ownership you have is determined by the publishing deal you develop, including licensing and which specific rights you wish to retain, and can differ depending on the type of media used (such as comics versus television or movies). The publishing deal will also determine the expected delivery date and expected deliverables (cover art, first draft, final draft, etc.). Finally, and perhaps most importantly, the deal will hammer out the copyright ownership  and the royalty rates in each media form.

Generally, in a royalty pool, a comic’s royalties are shared as follows:

• 35% – Plotters/Scriptwriters
• 35% – Artists/Pencillers
• 15% – Colorists
• 15% – Inkers

However, in creator-driven projects, the royalties are paid to the creators and collaborators only after the publishing company recoups all the money it expended for the project. These recoupable expenses may include:

• Production, printing and advertising
• Agency fees
• Taxes and bad debts
• Returns for credit
• Lawyer fees (Yes, even lawyer fees for negotiating the publishing deal)

One of the biggest points the panelists emphasized is the need for promotion. Comic book entrepreneur Alan Robert shared with the audience his tips and tricks to getting your work published and highlighted three aspects of promotion:

Creating the Pitch – The pitch is a crucial part of any campaign. According to Mr. Robert, your pitch should include a logline, which lays out the summary of and realistic aspirations for your concept.

Using Social Media – Mr. Roberts testified to the use of social media to build relationships from first-hand experience. He received his first publishing deal through Twitter. This part of promotion includes following the leaders (people you like and admire), partnering with peers (building relationships with like-minded creators), and using marketing tips from companies like Issuu and Animoto. He also mentioned to get reviews of your work by hiring publicists and reaching out to journalists. Finally, he stressed the need to stay positive, expressing that this business requires persistence and thick skin.

Networking – Mr. Roberts compared this to “Working the Long Con” (as in Comic Con). Comic book creators look at Comic Con as a business convention above all else. The goal is to identify, contact, and meet and greet publishers who attend the convention. He stressed the importance of setting up meetings with publishers before the show even begins.

Preparing for Your Meetings – Once you’ve scored your big meeting you still need to do your homework.

• Have an agenda and move forward with it – Know what you are going to speak about with the publishers and execute that agenda the best you can.
• Dress nicely – This is a job interview. Remember, Comic Con is a business convention and you are a comic book creator.
• Bring business cards – This makes you look professional.
• Only bring published material – Mr. Roberts emphasized that is his most important tip. Don’t bring any ideas, spec scripts, or anything similar to meetings with these publishers. If you have previously published something then that is what you should show them.
• Follow up in a timely fashion – You want to remind the publishers of who you are, what you discussed, and maintain contact with them.

Not everyone may be able to get their first publishing deal via Twitter like Alan Robert, but some publishers accept online submissions of material. Marvel Comics does not accept any online submissions, however, its counterpart, DC Comics, accepts submissions via its Entertainment Talent Search program. IDW Publishing accepts online submissions from artists and colorists only. Dark Horse Comics accepts all types of online submissions.

Finally, Mr. Roberts gave us his tips and tricks specifically for working with publishers:

1. Hit you deadlines – Don’t bite off more than you can chew.
2. Plan ahead – Have solicitation materials ready early.
3. Be flexible – Publishers may have marketing ideas about your project to attract wider audiences.
4. Expectations – Know that publishers have priorities other than just you.
5. Plan your next idea – Stay in the game. Continue creating comic books and staying involved in the industry.

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Rob Anthony is a founding member of Law Street Media. He is a New Yorker, born and raised, and a graduate of New York Law School. In the words of Supreme Court Justice William O. Douglas, “We need to be bold and adventurous in our thinking in order to survive.” Contact Rob at staff@LawStreetMedia.com.

Featured image courtesy of [numb – Hey Man Nice Shot via Flickr]

Robbin Antony

Rob Antony is a founding member of Law Street Media. He is a New Yorker, born and raised, and a graduate of New York Law School. Contact Rob at staff@LawStreetMedia.com.

The post NYC Comic Con: You’ve Protected it, Now it’s Time to Publish appeared first on Law Street.

As thousands flocked to the Jacob K. Javits Convention Center for the 2013 New York City Comic Con, Law Street Media was there to capture all the fandom, releases, and professional panels. But the most important part, of course, were the costumes.

From infamous duos…

To beautiful women dressed to impress the inner-geek in all of us.

Day one of Comic Con featured a professional panel designed to help up-and-coming comic book artists and writers protect and publish their work. So today’s blog is a step-by-step tutorial for all of you artists and copyright enthusiasts out there to protect your creations.

Creating and Protecting Your Comic Book Property

Part one of the panel focused on protecting the intellectual property of comic book creators, with particular emphasis on different copyright objectives that comic book creators need to take into consideration when taking on new projects. For example, the difference between an independent work and work-for-hire and various types of authorships.

First and foremost, comic book creators need to take into consideration whether or not their work is of sole authorship or a collaboration. Panelists warned against the dangers of working with your friend and what they called “collaboration sabotage,” or one person doing all the work.

Copyright law does not favor the person who does the most work or the person who comes up with the idea; therefore, a written contract ensures that working with your friends doesn’t turn them into your enemies. By default, copyright law will see any collaboration as a joint authorship, which means everything is 50/50, unless there is a collaboration agreement. This means equal pay, equal shares, and equal licensing rights since most publishers often want the exclusive rights to works that they purchase.

Collaboration agreements, as the panelists suggested, should be created at the very beginning before work begins on the project. This way you can agree with your collaborator on things like:

1. Business Formation – Partnership or Limited Liability Company (must be filed with the state).
2. Intellectual Property Ownership – Who owns the art, the story?
3. How are expenses paid?
4. How are the profits split?
5. Who has licensing rights and are they limited?
6. What is the work schedule and division of duties?
7. Can collaborators create derivative works (works based off of the original project)?
8. If things do not work out with the collaborators, how do you dissolve and continue the project?
9. How do you decide when a breach of the collaboration occurs and what viable remedies should be sought?

In addition to collaborating on a single project, there may come a time when you and your collaborator need to hire extra help, perhaps in the form of hiring more artists, inkers, or pencillers. Panelist Thomas Crowell suggested knowing specifics of service contracts and the difference between work-for-hire and independent contractors.

When hiring artists, the first consideration is whether you are hiring them as employees or independent contractors. This specific job description is important in order to determine work ownership. Work-for-hire is defined in Section 101 of the Copyright Act (found in Title 17 of the U.S. Code) as work by an employee under the scope of employment. If a work is made for hire, the copyright is owned by the hiring party. A work-for-hire hinges on who has more control over the creation of the work (i.e: hiring practices, type of compensation, work schedule, etc.).

If the artist you are hiring insists on working as an independent contractor, Crowell suggests that you ensure a services contract is signed, securing your ownership in the copyright of the work. A services contract may dictate how the intellectual property ownership is decided, how royalties are paid, the page rates, and a potential kill fee (the price you pay for artwork even if you choose to not use it). The panelists suggested that you have the independent contractor sign this contract before work begins (otherwise you’re bound to run into a major headache regarding IP ownership). Finally, it is important to include language in the contract that specifically dictates, despite the artist’s independent contractor role, that the work they create for you is a work made for hire.

Here are some of the panelists’ rules of thumb when it comes to creating and protecting your comic book property:

1. Register your work.

2. Establish your copyright — it’s the foundation of your legal power, so exercise it.

3. Put everything on paper — there’s no protection of ideas.

4. If you have collaborators create a collaboration agreement.

5. If you have a trademark, don’t just register it with the US Patent and Trademark Office, but actually use it.

And so we have covered the “protect it” part of the panel. Stay tuned for part two of our Comic Con coverage in order to learn how to “publish it.”

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Rob Anthony is a founding member of Law Street Media. He is a New Yorker, born and raised, and a graduate of New York Law School. In the words of Supreme Court Justice William O. Douglas, “We need to be bold and adventurous in our thinking in order to survive.” Contact Rob at staff@LawStreetMedia.com.

Featured image courtesy of [DowntownTraveler.com via Flickr]

Robbin Antony

Rob Antony is a founding member of Law Street Media. He is a New Yorker, born and raised, and a graduate of New York Law School. Contact Rob at staff@LawStreetMedia.com.

The post NYC Comic Con: Protect It and Publish It appeared first on Law Street.

As I’m sure you are all aware, Twitter is planning to go public and aspiring to make $1 billion, despite profits that have come up short. Sure, nearly 500 million tweets circulate throughout the service daily, but Twitter has a dirty, dark secret that may hold it back from the greatness it envisions for its IPO.

Twitter only holds nine U.S. patents.  Nope, not 90, but nine.  [You can check for yourself.] This is child’s play when compared to the nearly eight hundred patents owned by the formidable Facebook when it was gearing up for its initial public offering in May 2012.  But this is actually commendable when we look into Twitter’s reasoning for owning so few patents. They want to allow their engineers and web designers to maintain ownership of their own creations.  Well look at that – a company using our intellectual property laws as a spearhead to invite more innovation.

This past May, Twitter effectuated the Innovator’s Patent Agreement, which puts the choice in the inventors’ hands as to whether they want their patents to be used offensively.  YES! I must say my heart twerked for proprietary joy when I learned that Twitter was implementing such measures.  Shouldn’t an inventor be allowed to determine if she wants her patent(s) to potentially be a weapon for patent trolling? Licensing your patent to a major company shouldn’t carry the consequence of possibly creating barriers to creation by others.

Although the benevolent intentions behind Twitter’s actions should be applauded, it may prove to be detrimental for their upcoming IPO.  Patent ownership allows investors to place a value on the technological innovations created by a company. And unfortunately, this makes plenty of sense. For instance, if Twitter were to be faced with a patent infringement suit, their minimalistic approach to patents doesn’t give them much foundation to file a counter suit.  Also, investors are cognizant that innovators who own their own inventions may very well pack up their bag of tricks and take them to a competitor willing to pay a higher licensing fee.

So what’s a lady to do when her pleasantries cause her skirt to bunch up? Well for one, there’s always the argument that the scarcity of patents doesn’t equate to an empty barrel of IP ownership. The San Francisco based company can still litigate on the basis of copyright law, which may not carry the same financial momentum as patent suits, but can still pack a mean punch when used against the right defendant. Also, the naysayers mustn’t forget about Twitter’s recent acquisition of Bluefin, a company that merges tv and twitter events into a service that can be used to boost ad sales.  And finally, our nation should want to support a company that encourages the minds of our engineers and voices of our innovators.

Here’s to hoping patents will one day be restored as the deputies of novelty:

Gena.

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Featured image courtesy of [Andreas Eldh via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post Twitter: When Being the Nice Guy Bites You in the Offering appeared first on Law Street.

Right of publicity, the newer and increasingly more significant area of intellectual property law, has something stimulating for us this week. Former college athletes have alleged that the National Collegiate Athletics Association (NCAA) conspired to keep them from capitalizing off of their images, names, and likenesses. The NCAA attempted to dismiss these antitrust claims, covering the use of the athletes’ overall likenesses in video games and television. However, the four-year-old suit was denied dismissal in a California district court on October 25.

So what are the arguments here? Well, the NCAA subscribes to the traditional school of thought that college athletes are amateurs and as such aren’t entitled to compensation for the use of their images, which I think is completely ludicrous. Ed O’ Brannon, the UCLA basketball forward who brought the suit, contends that amateurism doesn’t justify the notion that student-athletes have no rights to commercial gain from the use of their own images. This as an obvious assertion. Honestly, as I’m reading through all of the NCAA’s contentions on this matter, all I’m hearing is ‘you can’t eat the apple you picked because you’re too young to appreciate it.‘

Among the conspiracy allegations is a claim that the NCAA conspired with Electronic Arts (EA), the well-known video game production company, to bar student-athletes from being monetarily rewarded for the use of their likenesses. EA has agreed to settle the claims against it and pay athletes $40 million.  As they should. After all, it’s the players who put in the hours during practice to create an image that generates income in the first place.

But here’s the thing, the Supreme Court has already upheld the proposition that college athletes shouldn’t be paid for the use of their images, names, and likenesses in order to “preserve the quality and character of college sports.” Well, compensating athletes while in college could beget a subculture of pompous attitudes and ostentatious presence on the court. Oh wait – that’s already happening. But a decline in quality and character of the sports? I’d like to see the facts, counsel.

Hear me out. The amount of money that colleges bring in for winning championships — or even just being invited to one — is ridiculously absurd. Not to mention money produced from ticket sales and paraphernalia.  Consumers pay to watch college athletes who subject themselves to injury and exhaustion for the betterment of their colleges‘ reputations. So how are they not laboring? Oh wait, they are.  Many colleges give athletes scholarships for tuition in exchange for a commitment for a player to join their team. Not to mention that they aren’t recruited as students – they’re recruited as athletes. Is the NCAA saying that they’ll pay for the labor but not allow for all the fruits of such labor? Why should compensating an athlete for the use of his likeness, formed from his goodwill, suddenly deviate from the proposed “quality and character of college sports?”

I understand that the NCAA wants all of the players to operate as a team, and not to be concerned that one student-athlete is “bringing home” more than another. However, players are already competing against each other to be spotlighted! It’s the nature of being a competitive athlete. Compensating them for using an image they’ve worked so hard to create for themselves wouldn’t change that.

Gena.

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Featured image courtesy of [Acid Pix via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post Hoop Dreams: Why the NCAA Doesn’t Care Who Was Shooting in the Gym appeared first on Law Street.

Cody Romano, creator of BreakYourFacebook, has been threatened with a lawsuit by the social media powerhouse that I love to hate: Facebook. (And no, I don’t have an account.) BreakYourFacebook is a webapp that allows Facebook users to regulate how much time they spend on the site.  Users indicate how long of a hiatus they’d like to take from Facebook, and then the app generates a new password (not to be memorized) and sends a reminder on the scheduled date. Now that’s a new concept for the younger members of society — a technological tool to schedule your detachment from technology. It helps reduce time wasted on Facebook so people can actually live the lives that they simulate on the site.  I like it. Facebook? Eh. Not so much.

Romano, a software engineer from Cambridge, said that he was  “rudely” told in an email that he would face fines and a possible lawsuit if he did not immediately obliterate his webapp.  The cease-and-desist letter was sent to him on Monday, and included brief discussions of why his registration and use of BreakYourFacebook.com violated the Lanham Act and infringed on the ‘Facebook’ trademark. Facebook doesn’t seem to be attacking the application itself, but rather the domain name BreakYourFacebook.com.

When I read the email for myself, I didn’t think that it came across as crass or tactless. Honestly, it was much more amicable than the cease-and-desist letter I formulated in Trademarks Law last year, but I did want to delve into their claim of infringement under the Lanham Act. That’s right -proooo bonoooo. [Disclaimer: this is a legal opinion from a J.D. awaiting bar results. I am not licensed, and my remarks should not be used to incite any action. Analysis is provided to inspire discussion only.]

To show infringement of a mark under the Lanham Act (for a mark that has already been federally registered, like Facebook) the plaintiff would have to show:

1. That they own a valid mark;

Not an issue here. Facebook is a distinctive service-mark used in commerce to identify and distinguish its social media services from other social media platforms.

2. That another party has used the mark in commerce without their permission;

BreakYourFacebook has arguably been used in commerce because it was, presumably, used in the advertising of the site’s services — the ability to schedule time away from Facebook. Offering services through the internet has already been held to be “commerce” under the Lanham Act.

3.  That the other party’s use of the mark causes a likelihood of confusion between plaintiff’s mark and the mark at issue;

Now, this is the sticky part. In the interest of time, I’ll summarize a few arguments on both ends. There are numerous factors the court considers in determining likelihood of confusion. As far as appearance, Romano could say that the marks are not visually similar because “Break” and “Your” precede the mark “Facebook.” He may win this one. Also, the marks differ on a phonetic basis as well. However, Facebook could argue that its fame makes it more susceptible to infringement. (Yes, that’s a factor to consider.) Also, the marks both concern social media services, though one is attempting to decrease the usage of social media, this could still be a factor found in favor of Facebook. Also, if Facebook’s lawyers can ascertain any evidence of actual confusion by its users, which they have the deep pockets to search for, the needle would lean significantly towards Facebook’s end of the spectrum. There’s much, much more to this, but you can see where it’s going.

4. There are damages.

Facebook could easily quantify some form of economic harm because BreakYourFacebook endeavors to limit the amount of time spent on their site.  They could claim that they’ve lost consumers, that Romano somehow benefited from his unlawful conduct, etc etc.

I decided to take the time to sift through Facebook’s claim because, although I took no issue with the general tone of the letter, I did find Facebook’s use of their winning court record to be akin to bullying.  Why is it acceptable for a company to say  “all domain names [that have previously been] at issue were ordered to be transferred to [us]” to instill fear in potential infringers? It waives a proverbial index finger at opponents instead of simply laying out the options that a defendant may choose to invoke.

If you go to BreakYourFacebook.com, your browser will redirect you to a posting written by Romano entitled “Facebook Threatened to Sue Me.” In the note, you see that Romano has surrendered his site because he doesn’t “want to contend with Facebook’s endless legal resources.”

Well, Romano, I’m no licensed attorney, but I thought you deserved to get a glimpse of what you’re up against from an analytical standpoint versus a financial one.

Gena.

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Featured image courtesy of [Boxring Atlas Leipzig via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post Free-Per-View: Facebook vs. BreakYourFacebook appeared first on Law Street.

This is a fun one.  Mattel, parent company of the makers of the popular board game Scrabble, has attempted to assert their U.K. trademark rights to the letter tiles used in the game. The California company sued Zynga, Inc., creators of “Scramble with Friends,” for allegedly infringing on their tile trademark. I’m sorry…what?

Mattel acquired trademark rights to the tile trademark in 2000. However, last November, Zynga obtained a summary judgment against Mattel on the grounds that the mark was not entitled to registration. Rightfully so. If Mattel were able to preclude the creation of any tile with a letter on it, wouldn’t that only increase the number of corporations attempting to monopolize trademarks? Earlier this month the decision was upheld because the trademark covering a tile, accompanied by its alphabetic and numeric markings, had the potential to be extremely large in breadth.

*gasp* You don’t say?

Needless to say, I’m pleased with the outcome of this case. Trademarks are to be used to protect the goodwill of your business. They are a vehicle for promotion and maintaining distinctiveness in the marketplace so as not to confuse consumers. However, here, Mattel was utilizing their mark to gain unfair competitive advantage. The mark the company wanted to enforce could allow them to keep competitors from creating variations of square blocks with numbers, letters, and combinations thereof.

Here’s the thing: I’m all for protecting the likeness of your brand.  I can see how viewers of Zynga’s game may associate it with Scrabble. We have a word game: check. Tiles with letters on them: check. But that’s really as far as the comparison train takes us.

There are stark differences to be noted. First, Zynga’s placement of a number on the tile is in the top right versus the bottom right number placement by Mattel. Soooo…if I wanted to create a word game and indicate the value of each letter, even if I placed the number in the center, I would be subject to a trademark infringement suit? Second, even though the two games have the same objective of creating words with the letters you are given, the rules aren’t the same. One is timed and the other isn’t. One only allows you to connect letters that are adjacent to each other and the other doesn’t. Not to infer that there needs to be a long list of similarities for a judgment of infringement, but I’d say there is enough difference between the two that Mattel can’t unequivocally claim harm.

In my humble and personal opinion, this is just a matter of gluttony.

Gena.

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Featured image courtesy of [torbakhopper via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post Is “Mattelalistic” a word? appeared first on Law Street.

What is really going on in the patent world these days?  Last week I told you about the allowance of Apple’s ban on Samsung’s imports of infringing products. The Obama administration proclaimed Samsung ban bad, Apple ban good. And the American Gods were pleased. But this week, there seems to be a different narrative in the loop.

Nokia, the maker of my first flirtation device, doesn’t seem to be having the same luck as Apple these days. InterDigital, a company that states they are in the market of developing and licensing wireless technology, brought a patent infringement suit against Nokia for the use of certain mobile phone technology. The International Trade Commission (ITC) ruled in Interdigital’s favor, and Nokia appealed this decision to the U.S. Supreme Court. And here’s where it gets juicy: among the arguments presented, Nokia asserts that the ITC shouldn’t even have jurisdiction in this case.

Nokia contends that the ITC should not hear a case if the company’s business is solely to patent troll. I agree! The ITC can prevent the import of products that infringe on a patent to the detriment of a U.S. business. But is patent trolling conducting business in the US?  I think not. The ITC is allowing itself to become a shopping mall for these patent mongrels that just acquire patents with the sole purpose of litigation them and collecting royalties. Of course, InterDigital contested this label by stating that they actually research and develop patents versus just buying them to defend or sell the rights. Some of our favorite companies – Amazon, Hewlett Packard, and Red Hat – filed briefs against InterDigital with supporting evidence to the contrary. But ultimately, the whole discussion proved to be futile as the ITC determined that a business with the purpose of patent collection is still a “US business” and, thus, may be protected by import bans imposed by the ITC.

Here’s what really chaps my cheeks: the purpose of the ITC is to “treat information quality as integral to its development, including creation.”  How are they furthering this purpose when they’re hindering innovation and promoting the procurement of patents, not as a means to protect creation but as a way to obtain licensing fees?  Why should InterDigital be able to stop the import of certain 3G devices when they aren’t even making any themselves?

Given our current economic deficit, you’d think we would refrain from sustaining unfair trade practices against our own businesses.  I’m not following the logic behind the rejection of this case when it’s an issue that so conspicuously needs further discussion.

Gena.

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Featured image courtesy of [ngader via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post Patent Trolls: Monsters vs. America appeared first on Law Street.

During a recent interview with the Associated Press, President Obama opined that the Redskins should consider changing the name of their $1.5 billion franchise to one that does not offend a “sizeable group of people.” He went on to state: “I don’t know whether our attachment to a particular name should override the real, legitimate concerns that people have about these things.” I agree, wholeheartedly.  If the team name is offensive to any group of people, it should not be in existence.  I equate “redskin” to “blackface,” each being offensive monikers used to identify Native Americans and African Americans, respectively. If you look up the term “redskin” in Merriam Webster, the first words you will find are “usually offensive.”

Lanny Davis, counsel for the Redskins, responded to Obama’s remarks by pointing to a 2004 poll taken by the Annenberg Institute in which 9 out of 10 Native Americans indicated that they were not offended by the “Washington Redskins” trademark.  The Annenberg Institute polls are highly respected and considered reliable based their trade name alone. However, should we discredit the 9% of Native Americans who consider the name to be a racial slur? I doubt that the Trademark Trial and Appeal Board, in 1999, would have ruled to revoke the Redskins’ trademark without good reason (although the decision was ultimately reversed on account of the suit not being filed within certain time parameters). At the Unity Journalists of Color convention, Roxanne Jones, an editor for ESPN Magazine, stated that in a debate over the Redskins’ name, “our Native American peers yelled back, a few of them in tears, that we were being insensitive and ignorant for not understanding that the Redskin name was hurtful and damaging to their community.”  I’m confused, did they not participate in this poll cited by Davis?

Davis drew attention to the fact that, similar to the Chicago Blackhawks, which are located in Obama’s home state, the Redskins “do not intend to disparage or disrespect a racial or ethnic group.”  Daniel Snyder, owner of the Redskins team, is likely hesitant to change the mark because of the financial risk he may run of losing brand loyalty. And, of course, we can’t neglect the glaring reality that the team has not been performing well in the playoffs for years.  I don’t watch much football, but my Dad is a diehard Redskins’ fan – even going so far as draping himself in the gold and burgundy fleece blanket I got him for his birthday. So I’m aware that we’ve (being a Washingtonian, I feel affiliated by geography) only won one out of our last four games this season, with a win record of 42% of regular season games in the past decade. My point here is this: the value of the team is largely due to the fan base. So if the mark were changed, there is a high risk of economic damage. Yet, in a society where a team name of “Washington Honkies” would not have been given second consideration due to its disparaging effect, I cannot say I’m in any way surprised.

So is it non-offensive intent or reckless disregard of disparagement in favor of financial gain? Just because a group has lesser representation in our nation should not mean they aren’t owed the same degree of respect.

All Hail the R-words.

Gena.

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Featured image courtesy of [Keith Allison via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post Hail to the Coldskins appeared first on Law Street.

Apple recently requested an import ban against a few of Samsung’s products, including their smartphones and tablets. I doubt that this would come as a surprise to anyone familiar with Apple’s growing monopoly on mobile devices. But coming from a true Apple junkie, I cannot say that I stand by their grand scheme to overtake the technology market based on their keen ability to appeal to aesthetics.

The International Trade Commission had determined that Samsung violated two of Apple’s patents: one pertaining to the functionality of touch screen capability and another relating to headphone recognition.  The Korean company requested the ban be overturned on public policy grounds, which I agree is a suitable argument to make judging by the tit-for-tat activity that has been arisen between the two companies. But the kicker is, the Obama administration has decided that they will uphold this ban, resulting in a huge win for Apple.

Now, at first look, you may think ‘OK, what’s the problem?’ It is abnormal for the President to overturn the ITC’s decisions. And it’s worth noting that the ban will largely affect Samsung’s older products, and thus, will not result in a significant impact on the availability of Samsung’s current products.  So then why is Samsung arching its back over this decision if its newer products aren’t to be dramatically affected?

Well…

In August, the Obama Administration vetoed the ITC’s decision to ban certain Apple products, reasoning that the ban was incorrectly restricting the importation of products that were the result of standard essential patents — patents that cover inventions that must be utilized to meet technical standards. This is rarely done. It’s bad enough for Apple to be continuously rewarded for their litigious behavior, but to reverse a decision in favor of them? It almost screams political nepotism. Following this decision, the South Korean government voiced that it was “disappointed” by this ruling.  Needless to say, this determination furthers Apple’s powerful stance in the ongoing patent battles across the tech industry.

Amongst the accusations against Samsung that were not decided in Apple’s favor was an alleged violation of a design patent regarding the overall look of the iPhone. US Trade Representative Michael Froman has explained that the decision to uphold the ban is based on “policy considerations, including the impact on consumers and competition, advice from agencies, and information from interested parties.” Oh, that doesn’t leave a generic impression on me at all. -__- If anything, policy and competition considerations should instruct fairness in the industry so that one company isn’t granted extraordinary favors on account of their economic girth and geographic residence.

The juxtaposition of the two rulings may have given rise to trade implications, such as the favoring of a company’s national origin. These assertions were even raised by Samsung in their request to overturn the ban. However, Froman has stood firm in his position that the two scenarios were factually different and that nationality was not considered in the determination. Ehhh.

Again, even as the owner of an iPhone, iPad, iTouch, and Macbook (don’t judge me, you shouldn’t judge people with addictions), I can’t support the government’s efforts to thwart competition in any industry. While Apple showcases the “cool” status symbol our subcultures so anxiously desire, no one can negate the innovative choices that Samsung has brought to the table for consumers.

Hasn’t anyone had a discussion with a techie eager to explain why Droid is better than iOS? At this rate, we may be on our way to having more limited debates if manufacturers that license Droid are having the rug yanked from beneath them.

Gena.

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Featured image courtesy of [renatomitra via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post Samsung Ban Upheld: Why Apple Can’t Stop Won’t Stop appeared first on Law Street.

One of my career aspirations is to be a Trademarks Examiner at the Patent and Trademark Office.  So I guess you could say I’m trying to make trademarks my niche, the best dish in my food truck of legal knowledge, if you will. You have to love the aesthetic nature of it all, the analytical maze that you navigate to determine if a mark is eligible to be trademarked.  Although I see the arena of Trademark Law like a freshman Longhorn sees Darrell K. Royal, the subject may actually still be a bit lackluster…much like my perspective on Constitutional Law.

Instead of catching you up on new developments in the field this week, I thought we should ease up on the information overload and have a good time!

Here are just a few reasons why I love Trademark Law so much and why I think you should too:

1. Who doesn’t like to draw? Even if you’re on the stick-figure-with-balloon-shaped-heads level like I am, you still doodle once in awhile. Trademarks are much like doodles.  Someone had a business idea and was thinking of a name, symbol, or logo to represent that business. They started jotting down some ideas that were floating around until the cliché ‘AHA!’ moment finally hit, and now you get to use your 6-figure degree to analyze whether the business owner’s creation can be protected by trademark laws! (Note: if you’re interested in working with actual bodies of art, the Picassos and Rowlings, that’s copyrights –we largely stick to marks around these parts.)
2. What other field involves this degree of creativity? Labor Law? ‘Not I’, said the EEOC. Copyrights? Ok, yeah. Copyrights is cool, but Trademarks is so much more unique. You’re going to look at marks that may differ only in font or only in phonetics, inter alia. It forces you to be meticulous and determine if that wavy S on the end of Bobby Joe’s mark, that just so happens to be on the end of Wanda Roy’s mark, is enough to make the two confusingly similar. What types of businesses are being represented? How do the marks sound? How different are they in appearance? Ultimately, your concern as a trademarks attorney is to protect consumers from being exposed to a variety of similar marks that may cause confusion in the marketplace or capitalization off of another business owner’s good will.
3. There’s something for everyone. Trademarks Law covers nuances in the composition of body styles for vehicles to the design of dresses and shoes. (YES! THE YSL case!!) For example, Bentley sued the manufacturers of a “Bentley Body Kit” for imitating the inherently distinctive shape of Bentley vehicles under Trade Dress laws, which is a segment of Trademarks Law.
4. Trademarks attorneys are just so frikkin’ nice. Seriously. What pleasant-natured people we are.

On a completely separate note, if you’re ever in the DMV area in September, look into DC Art All Night. The talent in the Wonderbread Warehouse this year was nothing less than palpable. If this intrigues you, you probably enjoy art to some degree.  And if you’re on this site, then you have some interest in the law.  So why not combine the two and pursue a career in trademarks? (heh heh see what I did there?) Sure, there’s this large amount of standard character format (non-stylized text) marks that you analyze as well, but those are pretty neat too!

For more information about trademarks and possibly registering your own mark, visit the USPTO’s website.

Gena.

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Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts.

Featured image courtesy of [opensource.com via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post Trademarks Law – A Field For Your Consideration appeared first on Law Street.