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.

The post New Balance Wins Huge Trademark Case in China appeared first on Law Street.

Athleisure–active wear as wear-anywhere clothing–has hit peak trendiness. And producers of athletic clothes have been making big bucks as a result. But two of the leading athletic wear companies aren’t feeling particularly zen at the moment. Lululemon is suing Under Armour for patent and trademark infringements over the design of some of the brand’s sports bras.

Lululemon’s claim centers around the design of its Energy Bra (which retails for $52). The activewear producer claims that four of Under Armour’s sports bras violate its intellectual property. The Under Armour bras in question include the Armour Eclipse Low, the Armour  Shape Low, the UA On the Move Bra, and the UA Printed Strappy Bra. In the filing, Lululemon presents patents that include four overlapping straps in the back of the bras–it’s that particular design feature that’s at issue. According to the lawsuit, the design includes:

Four interwoven segments of fabric, two of which extend from each shoulder; the fabric segments extending from the left shoulder are attached to the right side of the fabric constituting the back of the bra; the fabric segments extending from the right shoulder are attached to the left side of the fabric constituting the back of the bra; the fabric constituting the back of the bra is bisected by a horizontal line

The fact that the company has patents on such designs at all is actually relatively rare–fashion usually moves too quickly and is too cyclical for manufacturers to bother with the patent process.

Still, if Canadian-based Lululemon truly believes Under Armour is cutting into its profits, the lawsuit makes sense. The sports bra industry accounted for $1 billion in sales last year. Lululemon wants an injunction to stop Under Armour from selling the bras, as well as damages. And Lululemon has had some success with such lawsuits before. In 2012, the company sued clothing producer Calvin Klein over a yoga pants design. While that case was eventually settled out of court, the fact that Lululemon was actually able to make progress with its lawsuit was somewhat of a gamechanger, given that clothing IP cases don’t normally make it that far. We’ll have to see if Lululemon actually gets Under Armour to pay up for the alleged strap-stealing as well.

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 Lululemon and Under Armour Battle Over Bra Design appeared first on Law Street.

In 2014, Law Street Media released its first set of law school rankings, in response to the changing legal education industry. Law Street Specialty Rankings are a detailed resource for prospective law students as they consider the many law schools across the country. You’ll notice some differences this year, as we return to the categories we first ranked in 2014. This year, we’ve changed the way we do our methodology slightly, to reflect feedback from our readers and the law school community. We’ve also redesigned our look, to make it easier to navigate and compare various schools. But as always, Law Street Specialty Rankings are built to blend the quantitative and qualitative in a way that accurately highlights the top law schools based on specialty programs.

This year’s law school specialty rankings were compiled by Anneliese Mahoney, Alexis Evans, Celia Heudebourg, Gabe Fernandez, James Levinson, Josh Schmidt, and Marcus Dieterle.

1. IIT Chicago-Kent College of Law: 95 Points

Jobs: 20/20

Employment prospects for students at IIT Chicago-Kent College of Law are excellent, particularly for students interested in intellectual property. To prepare students for life after graduation, it has an IP clinic where students are able to work with attorneys from K&L Gates LLP.

Classes: 25/25

The curriculum at Chicago-Kent offers dozens of IP-related courses per year. Beyond the foundational courses, interested students can take one of the many science and technology-focused classes such as “Computer and Network Privacy and Security: Ethical, Legal, and Technical Considerations.”

Networking: 15/15

From an annual Supreme Court IP review conference to colloquia and book talks with IP-focused speakers, Chicago-Kent provides numerous networking opportunities for students interested in IP.

Extracurriculars: 15/15

The school offers an Intellectual Property society as well as the student-run Chicago-Kent Journal of Intellectual Property. The journal is dedicated to discussions on the fundamental elements of IP law and changes in the industry as new technology emerges.

Location: 14/15

The private university located in Chicago, Illinois provides numerous opportunities for students interested in pursuing IP law outside of the classroom.

Other Rankings: 6/10

Chicago-Kent received modest recognition from other rankings, giving it six points.

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 Top 10 Law Schools for Intellectual Property Law appeared first on Law Street.

Gucci has announced it is leaving the International Anti-Counterfeit Coalition (IACC), making it the second brand to defect from the Washington D.C. based non-profit since the Alibaba Group became a member.

The IACC, which is devoted solely to combating product counterfeiting and piracy, accepted Alibaba into its organization in April as a general member. That same month, Michael Kors announced that it would be leaving the IACC because of Alibaba, calling the Chinese e-commerce giant “our most dangerous and damaging adversary.”

This bad blood stems from Alibaba’s controversial reputation for selling fakes and knockoffs of products from fellow IACC members including: Apple, Burberry, Adidas, Gucci, and Michael Kors, according to Quartz.

In a letter reviewed by the Wall Street Journal, Michael Kors’ general counsel Lee Sporn wrote,

Alibaba’s strategy has consistently been to provide lip service to supporting brand enforcement efforts, while doing as little as possible to impede the massive flow of counterfeit merchandise on its platforms.

Gucci has not released a statement explaining its decision to part ways with the IACC, but it is almost certainly a result of Alibaba’s joining.

The Kering Group, which owns Gucci and other luxury brands such as Balenciaga, Bottega Veneta, and Yves Saint Laurent, sued Alibaba last year alleging that the company knowingly and purposefully profited from the sales of Gucci knock offs on its e-commerce platforms. Alibaba dismissed the suit as “wasteful litigation.”

Even so, Alibaba’s founder Jack Ma has acknowledged the large presence of counterfeits on his marketplace. In an interview with “60 Minutes” he compared his company’s fight against fake goods to battling cancer.

“We are just a website operator. If you sell fake products on the site what can we do? We can’t arrest you. We can’t put you in prison. All we can do is close your shops, ” said Ma. He added, “We are the doctors helping to cure the cancer, but the cancer’s so aggressive. If you kill the doctor, the cancer is still there.”

Alibaba is said to have joined the IACC in hopes that the membership would allow it to enforce intellectual property rights more effectively.

The IACC has stood by its decision to invite Alibaba into the fold. IACC president Robert Barchiesi responded to the controversy in an email Saturday,

The IACC stands by its decision and is committed to lean into the future and lead a coalition of the willing. Whether it’s payment processors or online marketplaces, the choice is clear, they must be an integral part of the solution.

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 Gucci Leaves U.S. Anti-Counterfeiting Coalition After Alibaba Joins 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.

Legal fanfiction, huh?

Now, by that, I don’t mean fanfiction that stringently follows all copyright rules. If you’re looking for pieces on that copyright jazz, tune into this. Or this. (And I know you’re interested. Because all of us fan fic writers are suitably convinced that actual show writers will find our fics and sue us personally, because, well, we write their characters better than they do. And… we do.)

But this is not the kind of legal fanfiction I’m thinking of at the moment.

Right now, I’m thinking of what would happen if we all tried to rewrite the criminal justice system in the ways that we rewrite our favorite shows, books, and comics.

What would fanfiction of the criminal justice system be like? (Or, rather, non-fanfiction, perhaps, because even a cursory understanding of this country leaves me to ask: how could anyone possibly be a fan of the criminal justice system?)

What if we rewrote the legal system, and made it operate however we, as imaginative writers, wish it to be? How would we re-write our legal system if we were writing fiction if we didn’t feel the need to justify ourselves about how “realistic” an idea is at every turn? If we just… imagined?

How would we re-craft the Constitution; would there be a Constitution? Probably not. So the fundamental basis of the document (and this country) was not the “right” to own property (aka, you know, enslaved peoples, on land that we committed genocide to gain access to)?

AU (for those of us who don’t speak fanfiction, that means “Alternate Universe”) — in which anti-racist universal design rather than racist profit-seeking is the main ethos of urban planning: would Baltimore have to be rising right now?

The more creative ways in which we allow ourselves to imagine the legal system, the more fuel with which we can head off to community organizing and protests.

We can write legal fanfiction–and so many of us do, every day–as real-life alternatives to criminal justice: not fan fictions per se, but real political brainstormings about the (un)limits of what we can accomplish. How can we accomplish prison abolition now? What immediate alternatives would need to be arranged? How could that happen?

What alternatives have we to the white supremacist world order now? Some legal (non)fanfiction–like those liberatory pieces linked to above, a form of activism all its own–might help us out.

Fanfiction. Fanfiction. Fanfiction that, like other forms of fiction, can help craft a better world.

Jennifer Polish

Jennifer Polish is an English PhD student at the CUNY Graduate Center in NYC, where she studies non/human animals and the racialization of dis/ability in young adult literature. When she’s not yelling at the computer because Netflix is loading too slowly, she is editing her novel, doing activist-y things, running, or giving the computer a break and yelling at books instead. Contact Jennifer at staff@LawStreetMedia.com.

The post Forget Harry Potter. THIS is the Fanfiction You Should Be Writing appeared first on Law Street.

Fashion trend website Refinery29 published an article recently with the headline “The Jeremy Scott Effect: How ‘Stealing’ Logos Can Technically Be Legal.” The second I came across it, I obviously began to develop a couple of opinions. Is it really technically legal? Are some logos really just up for grabs? I’m not so sure.

The Fall 2015 collection of Scott’s namesake line, presented in February at New York Fashion Week, is rather lacking in commercial logos. Rather, he saved the really fun stuff for Moschino where he sent Looney Toons-emblazoned sweatshirts down the runway at last week’s Milan show. Scott has also brought his own versions of classic American brands like McDonald’s and Barbie to the line.

In the case of the McDonald’s and Barbie capsule collections, Scott always alters logos to put his own spin on them. So technically he’s not stealing anything. Even Moschino’s version of the Barbie logo is distinctly different from any past or present logos. As a matter of fact, the collection was more of a collaboration as Scott even designed a doll for Mattel.

Refinery29 does go on to explain that designers need to get permission from a company to use its logo, as Opening Ceremony did with Kodak. But if anything, it’s not a matter of “stealing” logos, but rather clothing companies collaborating with other consumer brands. T-shirt company Junk Food, known for using images from brands like Coca-Cola as well as bands and tv shows, was one of the originators of this notion. Wherever they sell their products, there’s always a note crediting a company’s featured image.

While a lot of areas in fashion law are fuzzy, in this case it’s pretty clear; there’s no technical way to steal another company’s logo. It’s all a matter of strict licensing practices and creative collaborations.

Katherine Fabian

Katherine Fabian is a recent graduate of Fordham University’s College at Lincoln Center. She is a freelance writer and yoga teacher who hopes to one day practice fashion law and defend the intellectual property rights of designers. Contact Katherine at staff@LawStreetMedia.com.

The post Why There’s Nothing Legal About “Stealing” Logos appeared first on Law Street.

Copyright law took center stage last week as not one but two famous singers took vendors and fans to court over their intellectual property. The number one article of the week is from Anneliese Mahoney who brought us the case of Katy Perry versus the vendor who produced 3-D figures of the infamous “Left Shark” from Perry’s Superbowl halftime performance; the second most popular post was from writer Morgan McMurray who threw the flag on “50 Shades of Grey” and its abusive storyline; and the number three article, from writer Alexis Evans, details Taylor Swift’s legal action against Etsy vendors making a buck off her song lyrics. ICYMI, here is the best of the week from Law Street.

#1 Katy Perry Claims Left Shark is Her Intellectual Property and Files Suit

Katy Perry’s halftime performance at last week’s Super Bowl was really great, but it wasn’t without its moments of humor. Unfortunately, one of those moments of humor has now sparked the pop star’s legal team to file a lawsuit. Read full article here.

#2 Fifty Shades of Grey and Abuse

You may have heard of a small erotic “novel” (I use the term loosely), which once started off as Twilight fan fiction and has become a worldwide, bestselling trilogy soon to be a major motion picture. I am of course referring to the phenomenon known as Fifty Shades of Grey by E.L. James, which follows the story of timid Anastasia Steele and her BDSM-loving boyfriend Christian Grey. Read full article here.

#3 Taylor Swift vs. Etsy Vendors: Singer Trademarks Song Phrases

America’s red-lipped singing sweetheart Taylor Swift is at the center of another intellectual property dispute, this time with vendors on Etsy. The dispute is over several items, including t-shirts using her likeness and candles adorned with her lyrics. Swift’s legal team sent several vendors on the online DIY marketplace cease and desist letters demanding the immediate removal of their trademark-infringing products. Read full article here.

Chelsey D. Goff

Chelsey D. Goff was formerly Chief People Officer at Law Street. She is a Granite State Native who holds a Master of Public Policy in Urban Policy from the George Washington University. She’s passionate about social justice issues, politics — especially those in First in the Nation New Hampshire — and all things Bravo. Contact Chelsey at staff@LawStreetMedia.com.

The post ICYMI: Best of the Week appeared first on Law Street.

America’s red-lipped singing sweetheart Taylor Swift is at the center of another intellectual property dispute, this time with vendors on Etsy. The dispute is over several items, including t-shirts using her likeness and candles adorned with her lyrics. Swift’s legal team sent several vendors on the online DIY marketplace cease and desist letters demanding the immediate removal of their trademark-infringing products.

This takedown spree comes just one week after Swift registered phrases from her album “1989” with the U.S. Patent and Trademark Office. The phrases include:

• “Party like it’s 1989”
• “This sick beat”
• “Nice to meet you, where you been?”
• “Could show you incredible things”
• “Cause we never go out of style”

If you’re wondering why her hit song’s title “Shake it off” didn’t make the list, that’s probably because it’s because the phrase was already trademarked by a diet company.

The singer already holds a slew of other trademarks related to her music, which she has been notoriously protective over. She made headlines back in November when she pulled all of her music from the popular music streaming website Spotify, claiming the site didn’t adequately compensate artists for their work. Swift’s label is also quick to have users on YouTube take down lyric videos because they can be converted into mp3s that violate copyrights.

The Etsy vendors who received the cease and desist letters were shocked to have been singled out by the singer’s camp for making what they thought were just fan items. One anonymous vender told Buzzfeed:

We originally made the item for fun, we love Taylor and we had friends that love Taylor. We never intended for it to be a profit making item. The cost of the item covered shipping costs, and production costs with very little left over.

When we got the e-mail that the trademark infringement occurred, we were pretty shocked because while our item was popular we didn’t feel as if it had become popular enough to cause harm to Taylor Swift’s empire. We were shocked. And we were scared. We didn’t even make enough money for a lawyer and this had seemed like such a harmless and fun idea.

If you’re a T-Swift fan don’t fret, there’s still plenty of other merchandise with “1989” lyrics being sold on the site that Swift has yet to legally claim, like this classic coffee mug.

Taylor Swift is trademarking lyrics, but you can still buy plenty of T-Swift garbage on Etsy: http://t.co/pjAq73NDy0pic.twitter.com/9CLOSY94yE

— Fusion (@ThisIsFusion) January 29, 2015

Many are wondering how it’s even possible for Swift to trademark popular phrases like “Nice to meet you, where you been?” in the first place. Richard Rochford, a partner in New York’s intellectual property litigation group Haynes and Boone, explained to Billboard that unlike copyright law, trademark rights don’t require the phrases to be absolutely unique or for the applicant to have coined them personally. This makes it easy for artists like Swift to acquire rights to these phrases if they can prove that they’re profiting off of a phrase associated with their brand. Britney Spears attempted to do the same thing, trying to trademark her popular song title “Toxic,” as well as Beyonce with her alter ego “Sasha Fierce”.

Ultimately this is smart move by Swift, showing that the 25-year-old singer doesn’t want to messed with. By marking her territory now, she can ensure others won’t be able to profit off of her brand if and when she decides to produce her own merchandise using the phrases.

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 Taylor Swift vs. Etsy Vendors: Singer Trademarks Song Phrases appeared first on Law Street.

Katy Perry’s halftime performance at last week’s Super Bowl was really great, but it wasn’t without its moments of humor. Unfortunately, one of those moments of humor has now sparked the pop star’s legal team to file a lawsuit.

One of those great moments that came out of the performance was during Perry’s rendition of her hit song “Teenage Dream.” She did it as a beach-themed segment of the show, and no beach-themed dance would be complete without giant humanoid sharks doing complicated choreography. Unfortunately, one of Perry’s two sharks, now dubbed “Left Shark,” didn’t really do so well. Instead of following the sharp choreography, “Left Shark” kind of just flopped around. See for yourself:

Oh Left Shark. We’ve all known the struggle.

Left Shark has sparked a bunch of spin offs though:

This meme is soooooo much fun…. Valentine’s Day anyone? #sharks#leftsharkpic.twitter.com/StDC2xEDc1

— John (@Hayler97) February 4, 2015

Everyone really does love Left Shark. So much so that people have started producing Left Shark items. One company that tried to monetize Left Shark was called Shapeways; it’s a 3D printing company that sells 3D-printed figurines of famous people, such as politicians or celebrities. It started selling a Left Shark figurine; however, it just received a cease and desist letter from Perry’s lawyer.

Fernando Sosa who runs Shapeways, posted a picture of the cease and desist letter on Instragram. It claimed that Left Shark was Perry’s “intellectual property.” Part of the letter read:

As you are undoubtedly aware, our client never consented to your use of its copyrighted work and [intellectual property], nor did our client consent to the sale of the infringed product. Your infringing conduct entitles our client to significant legal relief against you, which may include actual damages, statutory damages, and punitive damages, as well as immediate and permanent injunctive relief.

What exactly does Katy Perry claim is her intellectual property though? The shark costume itself? It looks like a pretty basic shark costume if you ask me, and courts have often ruled that you can’t trademark costumes. Because they’re clothing, and viewed as an “essential article,” they’re often considered beyond what copyright protection can protect.

So, is she trademarking the concept of “Left Shark” then? That also seems like a stretch. The whole Left Shark debacle occurred because the dancer screwed up and/or forgot the choreography. It wasn’t planned, it was a happy, hilarious accident. Can she really claim that something is her intellectual property if it wasn’t something she came up with?

The cease and desist letter seems more like it was an attempt to scare Sosa and Shapeways, rather than a legitimate threat of legal recourse. Sosa has stopped selling the figurines, but it still seems like a petty move on Perry’s part. After all, all the buzz about Left Shark means people are talking about her halftime show. There’s also been plenty of other Left Shark merchandise produced:

Just bought my very own #LeftShark tshirt!! pic.twitter.com/3qD54F2Syb

— Methibosheth Ichabod (@methibosheth) February 5, 2015

Will Katy Perry send letters to everyone who creates something that’s Left Shark-themed? With the proliferation of pictures on the internet, that may be difficult. It will be a shame if Left Shark disappears just because Katy Perry is grumpy.

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 Katy Perry Claims Left Shark is Her Intellectual Property and Files Suit appeared first on Law Street.

Happy Couture Week, my fellow fashion law-istas! On Tuesday while we were just dodging the Snowmageddon here in New York, Karl Lagerfeld threw a garden party in Paris for Chanel’s Spring ’15 Haute Couture show. Things haven’t been all sunshine and daisies, however, over at the Haus of Chanel as it filed a counterfeiting suit just last month.

Chanel is suing online e-tailer Shop Jeen not only for copying its goods but also its way of doing business. Shop Jeen produced imitation Chanel iPhone cases and allegedly marketed them in the same way as the couturier. According to The Fashion Law, Chanel claims that Shop Jeen’s actions have cost it irreparable damage and “the Defendants have been unjustly enriched.” Chanel is demanding $2 million “for each counterfeit trademark used and product sold,” in addition to attorney and investigative fees.

As you know, I’m all for designers defending their own intellectual property, but I’m not so sure about their ability to sue someone for stealing the way they do business. If a product is already a knockoff, wouldn’t it come with the territory that it is advertised in the same way as the original? If it were any other company but Chanel this might not really fly as two separate charges, but I’m sure the kaiser Karl Lagerfeld will be able to get away with it.

It’s cases like this that make fashion law so much trickier than most other intellectual property and trademark lawsuits. The only thing fashion attorneys have to go off of is prior cases. Then again, this is the Haus of Chanel we’re talking about here. Lots of clothing and accessories can be seen as inspired by or imitating the brand that basically defines classic. Yet as far as I can tell, it looks like Chanel’s got this lawsuit in the (2.55 chain strap) bag.

Katherine Fabian

Katherine Fabian is a recent graduate of Fordham University’s College at Lincoln Center. She is a freelance writer and yoga teacher who hopes to one day practice fashion law and defend the intellectual property rights of designers. Contact Katherine at staff@LawStreetMedia.com.

The post Can Chanel Sue For Stealing Its Style of Doing Business? appeared first on Law Street.

Ah Canal Street; one of the few places in New York where you can score “designer” bags, gold chains, and a bong all for under $1,000. Even this future Intellectual Property lawyer has owned her fair share of counterfeit handbags from the Chinatown locale. But as a tween who just wanted a fake Louis or Chanel like everyone in my middle school, it never really made sense to me how my relatives would get their hands on them. I heard stories about being taken “behind the scenes” to the warehouses where the better stash of goods is kept. I heard about the cops coming to bust these vendors for selling without a permit. But none of these stories ever answered the real question I always had: how do these vendors throughout the city persist when everyone knows (including cops standing nearby) that they either do not have a proper permit, are selling counterfeit goods, or both?

On Tuesday, the NYPD and U.S. Homeland Security officials raided a storage unit in Queens full of about $22 million worth of counterfeit goods. The raid followed a seven-month investigation and resulted in seven arrests. This kind of takeover is what police call an “Operation Treasure Hunt” and took about 30 minutes to execute. I highly suggest clicking over to WWD to view pictures of the facility and all the goods it contained, because it’s truly astounding. From fake Gucci and Chanel handbags to Beats headphones and fake Uggs, these guys had it all. Rarely do you ever get to see a successful takedown of Canal Street vendors like this. But why is that? Why can’t the police just approach these guys who are selling on the street?

As a kid, my mom tried to relieve my conscience claiming that my LV-monogramed bag was probably real but was just stolen. But does that make it any more ethical? In hindsight, it kind of made it a lot worse; however, regardless of whether these goods are stolen or just really good knockoffs, any Canal Street vendor or distributor is guilty of at least one of these things.

One reason these vendors may get off the hook is that they are merely a third party selling the goods, not making them. Also, I doubt most NYPD even know about the designers these bags are trying to imitate, nevermind the standards for what counts as a knockoff and what does not. The only way the police can shut down these vendors is by asking if they have proper permits, and if they do there’s nothing they can do about it.

The case with the storage unit in Queens required a lengthy investigation so that the police could acquire enough evidence to warrant a search. Also it’s a much more effective tactic to take down the counterfeit industry by heading straight to the source, as opposed to approaching every single business on Canal Street.

Maybe it’s time to start training the NYPD to have a more keen eye for spotting counterfeit goods. Every year counterfeit products can cost the global economy up to $250 billion. Manhattan is not the crime-ridden place that it once was, so a lot of police officers are often seen just standing around offering surveillance. And while counterterrorism should definitely  be a primary concern in this day and age, that doesn’t mean police can’t multitask and try to stop this form of economic terrorism too.

Katherine Fabian

Katherine Fabian is a recent graduate of Fordham University’s College at Lincoln Center. She is a freelance writer and yoga teacher who hopes to one day practice fashion law and defend the intellectual property rights of designers. Contact Katherine at staff@LawStreetMedia.com.

The post NYPD Busts $22 Million Counterfeit Goods Operation 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.

In such a celebrity-obsessed society, famous peoples’ identities are sometimes co-opted for other reasons. However, American law does protect identities, to some extent, through something called “the right of publicity.” Read on to find out about whether the laws we have in place to protect rights of publicity are adequate or lacking.

What is the right of publicity?

The right of publicity protects a person’s right to control the commercial use of elements of his or her identity e.g. their name, voice, or likeness. It allows individuals whose identities have been misappropriated to bring civil claims against the offending entities. In several estates, it extends beyond the death of the relevant individuals, enabling their estate or heirs to bring infringement claims on their behalf.

However, the nature and extent of publicity rights protections varies from state to state. For example, Indiana allows publicity rights claims to be brought for misappropriation of an individual’s “name, voice, signature, photograph, image, likeness, distinctive appearance, gestures or mannerisms.” Rights in these identity elements are protected up to 100 years after the individual’s death. Indiana grants uncommonly expansive publicity rights protection. Because there is no federal right of publicity and there are many differences in protection among the states, many publicity rights claimants often resort to forum shopping. That means that they figure out what court or jurisdiction they think will be friendliest to their case, and bring the case there.

The possibility of forum shopping creates a  “race to the bottom” of the First Amendment ladder. Given the vast reach of entertainment content due to electronic broadcasting and the internet, content providers have to tailor their broadcasts to the rules of the most plaintiff-friendly jurisdictions in order to protect themselves from publicity rights claims. Because social media allows so many permutations of appropriating elements of a person’s identity, the range of actions that can infringe on publicity rights is not entirely clear.  Moreover, in many jurisdictions, the publicity rights laws have not developed enough to keep pace with the increasing possibilities of infringement created by the ability to use the internet.

Who thinks the current laws are adequate?

Proponents of the adequacy of current publicity rights laws argue that claims about the need for a federal publicity right are ill-informed because the Lanham Act (15 U.S.C. 1125) already creates federal standards for publicity rights claims. This act allows plaintiffs to file a federally based claim for infringement. Also, the differences in state publicity laws reflect the needs of different jurisdictions. The fact that certain states do not have such laws may reflect a reasoned and considered policy determination of their legislatures and federalizing the right may undercut those legislative policy needs. Moreover, such a law would infringe on states’ rights to determine which claims may be brought in their courts. If the federal publicity right preempts the state laws, then it could easily overprotect some publicity rights and under-protect others. A uniform federal law couldn’t possibly account for the nuances of different states’ needs with respect to publicity rights. Furthermore, claimants often have difficultly forum shopping because many states have choice of law rules that determine where claims need to be litigated.

What’s the argument to change the laws?

Opponents of the adequacy of the current realm of publicity rights assert that a federal publicity right would be Constitutional under the Commerce Clause. Publicity rights affect a number of issues relating to interstate commerce including what can be broadcast over several channels such as radio, television, and the internet. The rights affect multi-state advertising campaigns and the distribution of products between states as well. Furthermore, forum shopping makes it difficult for promoters to know when their actions will open them up to liability because it is not realistically possible for businessmen to cover themselves against 50 different jurisdictions’ rules and still effectively run business. This is especially true when a dead person’s rights are involved and the infringement claim involves media that is broadcast nationwide.

Even the claims under the Lanham Act are limited because federal law is interpreted differently in different geographic federal circuit jurisdictions and federal court decisions are not binding on the state courts within their jurisdiction. Moreover, the concept of what constitutes a person’s “likeness” varies between states so protected identity elements in one state may not be protected in another.  A federal publicity right statute may solve this problem but the current law does not. Furthermore, publicity rights laws are not always evolving at a pace commensurate with the increasing capabilities of potential infringers.

Conclusion

Publicity laws have run into some problems as the years go on. One big issue is the inconsistency between different states and jurisdictions, and the publicity laws they implement. Another issue is the proliferation of the internet specifically and technology in general. With the resources we now have, it’s entirely possible to create a facsimile of someone’s identity, particularly through tools like social media and photoshop. It’s important that we make sure that people remain in control of their own identities, without infringing on creativity. The current laws are apt in some ways, but could use some updating.

Resources

Primary

U.S. Congress: Lanham Act

Additional

JD Supra: The Federalism Case Against a Federal Right to Publicity

Georgetown Law Journal: The Inalienable Right of Publicity

NY State Bar Association: Why a Reasonable Right of Publicity Should Survive Death: A Rebuttal

University of Georgia Law: Race to the Stars: A Federalism Argument for Leaving the Right of Publicity in the Hands of the States

Amy E. Mitchell, PLLC: Personality Rights

Chapman Law Review: Intellectual Property Expansion: The Good, The Bad, and the Right of Publicity

American Bar Association: Why a Federal Right of Publicity Statute is Necessary

International Trademark Association: Board Resolutions U.S. Federal Right of Publicity

IP Watchdog: The Right of Publicity: A Doctrine Gone Wild?

LegalZoom: What to Know About Rights of Publicity

Right of Publicity: State Statutes

Cornell University Law School: Right of Publicity Overview

Right of Publicity: Brief History of the Right or Publicity

Library of Congress: Privacy and Publicity Rights

John Gomis

John Gomis earned a Juris Doctor from Brooklyn Law School in June 2014 and lives in New York City. Contact John at staff@LawStreetMedia.com.

The post Publicity Law: The Line Between Creativity and Identity Theft appeared first on Law Street.

A lot has happened in the world of fashion lawsuits and controversial apparel lately. So this week I thought I’d do a roundup of the brands that have come under fire, or even started the fire, over the past few weeks.

H&M Accused of Producing a Kurdish Jumpsuit

H&M have been inspired by the Kurdish female fighters. pic.twitter.com/3QzC7nQgsA

— Wasan Shoresh (@K4life_) October 5, 2014

Last week people seemed to get all up in a tizzy about a green khaki jumpsuit featured in H&M’s latest Fall campaign. Apparently the jumpsuit appeared to be a little too similar to the ones female Kurdish soldiers wear in the Middle East to defend against ISIS. But if you ask me, such a military-inspired jumpsuit has become pretty ubiquitous in almost any culture. H&M also released the jumpsuit in other colors besides the allegedly offensive green, as well as a denim version. In this case, I think consumers have once again read a little too much into the motive behind the garment. While we should definitely be aware of both the women and men fighting for their rights in the Middle East right now, in this case any similarities between H&M’s version of the jumpsuit and the ones Kurdish soldiers wear are merely coincidental.

Converse Sues to Protect Its Classic Shoe

The only thing more prevalent than the classic Chuck Taylor All Stars are the various knockoff versions of it and Converse has finally decided to put its foot down (pun unintended). Converse is accusing 31 companies, including Walmart, Kmart, and Skechers, of trademark infringement for copying elements like the black stripe along the sole and the rubber toe cap. On Tuesday the company filed 22 separate lawsuits in United States District Court in Brooklyn. As much as fake Chuck Taylors annoy me, I can’t help but wonder what took Converse so long to finally take action. Is it possibly too late? I guess we’ll have to just wait and see if they can stomp out their competition (okay, the pun was intended that time).

Bottega Veneta Trademarks a Knot (or at least is trying to)

Courtesy of Jerine Lay via Flickr.

This one is not really as crazy as the others, but I still thought it was interesting. Bottega Veneta is trying to trademark the metal knot it uses on its handbags, particularly as the clasp for its clutches. Apparently that’s easier said than done. The U.S. Patent and Trademark Offices (USPTO) rejected Bottega’s claim, saying that it was not distinctive enough. The designer then had to re-present its case citing the amount of sales they have made and how notorious they are for this particular “configuration” based on its ads. The company also compared its knot to the Chanel double C’s, the Tory Burch cross, and the Ferragamo bow.  Apparently that still wasn’t enough to convince USPTO, but the design house still won’t take no for answer and wants to reapply. As important as it is for designers to protect “trademark” elements, I hope that Bottega doesn’t get too tied up in this application process. (Okay that was the last one I swear!)

Chanel Sues Over Ghostbusters Sweatshirt

Parody T-shirt brand What About Yves has been creating a stir since releasing apparel with the message “Ain’t Laurent Without Yves,” regarding the haus’s name change to Saint Laurent Paris, a couple of years ago. For the most part the targeted designers let the streetwear brand be, but Chanel is not too happy about its use of the company’s logo. Just in time for Halloween, What About Yves released a Sweatshirt with the classic double C logo with the Ghostbusters ghost in between. I’m not sure if this is just supposed to be a festive clothing item, but if there is some kind of joke behind it I don’t get it. But yet again, why has Chanel decided to come after someone using its logo now? I’m not sure. Maybe they just decided that since the tacky clothier Jeanine Heller has finally targeted them that it’s their opportunity to take the designer-offending brand down. I know I sure wouldn’t mind if they did.

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Katherine Fabian (@kafernn) is a recent graduate of Fordham University’s College at Lincoln Center and is currently applying to law schools, freelance writing, and teaching yoga. She hopes to one day practice fashion law and defend the intellectual property rights of designers.

Katherine Fabian

Katherine Fabian is a recent graduate of Fordham University’s College at Lincoln Center. She is a freelance writer and yoga teacher who hopes to one day practice fashion law and defend the intellectual property rights of designers. Contact Katherine at staff@LawStreetMedia.com.

The post This Week in Fashion Law: Kurdish Jumpsuits and Ghostbusters appeared first on Law Street.

In the age of the internet, phones with cameras, and digital picture-taking, it’s become much easier to “steal” artistic property. Both the United States and the international community try their best to prevent the theft of artistic and intellectual material through copyright laws. In addition to regular copyright laws, there also exists something called “moral copyright.” Moral rights are artists’ rights to protect the integrity and ownership of their copyrighted works. They include the right of attribution, the right to have the work published anonymously or pseudonymously, and the right to the integrity of the work.  Preserving the integrity of the work creates limitations upon the rights of others to distort the work, alter it, or do anything that attenuates the artist’s relationship with the work.

Read on to find out how both artists’ copyright and moral copyrights are protected by law, the effectiveness of the laws, and the arguments for and against the different laws in place to protect artists’ rights.

U.S. Copyright Law

The stated purpose of U.S. Copyright law is “to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Copyright law protects many forms of artistic works including literary, musical, dramatic, pantomimes and choreographic works, pictorial, graphic, and sculptural works, audiovisual works, sound recordings, derivative works, compilations and architectural works. Even though the realm of works protected is wide, there are differing levels of protection that apply for some of these works.  For example, sound recordings are protected in a different manner than written documents are.

Copyright law protects the author’s manner of expressing the idea but it does not protect the idea itself.  This means that copyright-protected works of authorship can still be plagiarized under the law. For example, a paper that describes a scientific theory may be protected from reproduction or distribution, but someone else can restate the theory with a different manner of expression and circumvent the original creator’s copyright protection.

Copyright protection ensures that the protection of the work lasts longer than the person who created it. Current law mandates that an individual person’s copyrighted works are protected for the duration of his or her life, plus 70 years afterward. For works created by multiple authors, the length of the protection is based on the life of the last surviving author. If a work is made for hire, an anonymous and pseudonymous works (where the author’s identity is not in Copyright Office records), the duration of protection will be ninety-five years from publication or one hundred and twenty years from creation, whichever is shorter. This makes it less likely that an author’s work will fade into the public domain before he or she has a chance to reap its full commercial value. This also serves as somewhat of a safeguard to an author’s legacy after he or she has passed on.

Copyright protection does not exist for articles that have a “useful function.”  For example, an artist’s drawing of a train would be protected by copyright, also the creation of a 3D model of the train would be actionable. However, creating an actual, working version of the depicted train would not be actionable under copyright law. Some creators’ work have both useful and non-useful, aesthetic attributes. Copyright law protects the aesthetic attributes but not the useful ones. If the aesthetic attributes cannot be separated from the useful ones, then the owner does not receive federal copyright protection. This means that owners can potentially lose copyright protection because their creation has applications that are useful to society.

Why do proponents argue in favor of current American copyright laws?

Proponents of the adequacy of U.S. copyright law argue that the duration of the rights gives authors time to effectively profit from their work without fear of having their labors stolen. The law properly makes exceptions for certain socially valuable non-commercial uses of copyrighted material by providing such users with Fair Use as a defense to an infringement claim. This allows copyrighted works to be used for socially beneficial purposes before the expiration of protection without infringing on the author’s commercial or economic interests. The substantiality requirement prevents frivolous uses of copyright protection e.g. for single words.

Why do opponents argue against current American copyright laws?

Opponents of the adequacy of U.S. Copyright protection argue that the exceptions are too broad and too easy to invoke. In certain situations, alleged infringers can cause significant economic damage to a creator’s interests and still be protected by a defense granted by copyright law. Copyright protection only protects the author’s manner of expression, not his ideas.  Ideas can often still be plagiarized without giving rise to a copyright infringement claim. Also, useful articles that don’t qualify for patent protection still don’t get copyright protection. Since patent protection is more difficult to obtain and has a shorter duration than copyright protection, some authors are disadvantaged by the usefulness of their work, which is contrary to the purpose of the Copyright Clause of the Constitution. Finally, if content is too minimal then copyright law does not protect it.

Moral Copyright Laws in the United States

U.S. Copyright law does not recognize moral rights beyond the extent to which they are recognized by the Berne Convention, of which the U.S. is a member.

The rationale for the lack of additional moral rights protections in federal law is that Congress believed that they were unnecessary because other areas of law are sufficient to protect artists’ interests. U.S. copyright law, governed by the Copyright Act of 1976, already grants artists the exclusive right to create derivative works. Defamation laws, unfair competition laws and trademark laws governed by the Lanham Act grant artists sufficient civil claims against entities who intentionally or recklessly mislead the public about an author’s work and those who attempt to profit from such conduct. Moreover, certain states have created their own moral rights laws, mitigating the need for a federal statute.

Furthermore, the Visual Artists Rights Act of 1990 (VARA) provides increased moral rights to certain types of art i.e. paintings, drawings, prints, sculptures and still photographic images that are produced for exhibition only, and existing in single copies or in limited editions of 200 or fewer copies, signed and numbered by the artist. These rights include the right to claim authorship, the right to prevent the use of one’s name on any work the author did not create, and the right to prevent use of one’s name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author’s honor or reputation. Authors of works of “recognized stature” may prevent the grossly negligent or intentional destruction of their work. The phrase “recognized stature” has not been statutorily defined, but there is a lot of case law interpreting the same. VARA rights only apply to a limited set of works but the protections for those works are substantial. Buyers of the works must get written waivers from the copyright owners if they wish to employ any VARA rights. If the rights are not waived then the author or last surviving author of a joint work generally retains them for life.

What are the arguments for keeping the moral copyright laws as they are? 

Proponents of the sufficiency of U.S. moral rights law argue that VARA grants vast protection to artists. VARA rights generally last for life and they can only be extinguished by signed, written waivers. They are secure enough to ensure that artists have recourse to act when owners of individual instantiations of their work infringe their creative rights. Furthermore, even when VARA rights don’t vest in an artist’s work, he or she can still utilize copyright, defamation, unfair Competition laws, or any relevant state statute, to defend moral rights of their work.

What are the arguments against keeping the moral copyright laws as they are? 

Opponents argue that there are many works that VARA does not protect. For example, VARA doesn’t apply to written works or to works made for hire. Also, since copyright law does not protect ideas, an author who is known for innovating an idea cannot utilize copyright law to protect the moral rights to that idea. Finally, state moral rights laws vary and it is difficult for an artist to know if the state he or she is located in will have jurisdiction over the alleged infringer of their Moral Rights.

Conclusion

Given that art is so subjective and so rarely indexed, it can certainly be difficult for artists to protect their work. There are many different kind of laws in place to protect artists’ copyrights, including some laws that loosely protect moral copyrights. While there are disagreements about the effects and implementations of the laws, its clear that artists’ works do need to be protected.

Resources

Primary

U.S. Congress: 17 USC 501 Infringement of Copyright

Cornell  University Law School: Visual Artists Rights Act of 1990

U.S. Congress Committee on the Judiciary: Copyright Law Revision

Additional

McClanahan Powers: Innocent Copyright Infringers: The Importance of an Adequate Copyright Notice to Defeat Them

Electronic Frontier Foundation: New Study Affirms Fewer Copyright Restrictions Benefit the Economy, Amid Renewed Calls for SOPA 2.0 

Copyhype: Who Benefits from Copyright?

Law and Economics Consulting Associates: Agreed Use and Fair Use: The Economic Effects of Fair Use and Other Copyright Exceptions

Harvard Law School: Moral Rights Basics

Library of Congress: Waiver of Moral Rights in Visual Artworks

Washington University in St. Louis: Economists Say Copyright and Patent Laws Are Killing Innovation; Hurting Economy

TechDirt: Yet Another Study Shows That Weaker Copyright Benefits Everyone

Buffalo Intellectual Property Law Journal: A Case of Bad Credit? The United States and the Protection of Moral Rights in Intellectual Property Law

Washington and Lee Law Review: Toward an American Moral Rights in Copyright

Boston University International Law Journal: Protecting Moral Rights in the United States and the United Kingdom

Information Today: Moral Rights for Authors and Artists

Stanford Encyclopedia of Philosophy: Intellectual Property

Brian Leiter’s Law School Reports: Protecting Philosophical Ideas With Copyright?

U.S. Copyright Office: Reproduction of Copyrighted Works by Educators and Librarians

College Art Association: Intellectual Property and the Arts

Leech Tishman: Litigation; a Counterfeit Pays

Golden Gate University Law Review: The Visual Artists Rights Act of 1990: Further Defining the Rights and Duties of Artists and Real Property Owners

vLex: VARA Rights Get a Second Life

John Gomis

John Gomis earned a Juris Doctor from Brooklyn Law School in June 2014 and lives in New York City. Contact John at staff@LawStreetMedia.com.

The post U.S. Copyright Law: Enough Protection for Artists? appeared first on Law Street.

The legal industry is changing and law schools are no exception. Applications and enrollment are both down, and the value of the traditional legal education with its current price tag is the subject of continual debate. Law Street Specialty Rankings are a detailed resource for prospective law students as they consider the many law schools across the country. Law Street Specialty Rankings blend the quantitative and qualitative in a way that accurately highlights the top law schools based on specialty programs.

Entertainment Law
Full List: Top Law Schools for Entertainment Law
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1. Southwestern Law School
2. Columbia Law School
3. Loyola Law School, Los Angeles
4. UCLA School of Law
5. USC Gould School of Law
6. Fordham Law School
7. NYU School of Law
8. Villanova Law School
9. Vanderbilt University Law School
10. Stanford Law School

Environmental & Energy
Full list: Top Law Schools for Environmental & Energy Law
—
1. Lewis & Clark Law School
2. New York University School of Law
3. Pace University School of Law
4. Georgetown University Law Center
5. The George Washington University Law School
6. UC Berkeley School of Law
7. Tulane University Law School
8. UMD Francis King Carey School of Law
9. Harvard Law School
10. Stanford Law School

Business
Full list: Top Law Schools for Business Law
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1. New York University School of Law
2. Harvard Law School
3. Columbia Law School
4. Northwestern University School of Law
5. University of Chicago Law School
6. Fordham University School of Law
7. Georgetown University Law Center
8. UCLA School of Law
9. Loyola University Chicago School of Law
10. Yale Law School

Healthcare
Full list: Top Law Schools for Healthcare Law
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1. Loyola University Chicago School of Law
2. Georgetown University Law Center
3. University of Maryland Francis King Carey School of Law
4. Case Western Reserve University School of Law
5. Georgia State University College of Law
6. Harvard Law School
7. Yale Law School
8. Boston University School of Law
9. University of Houston Law Center
10. University of Virginia School of Law

Intellectual Property
Full List: Top Law Schools for Intellectual Property
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1. The George Washington University Law School
2. University of New Hampshire School of Law
2. Santa Clara University School of Law
4. Benjamin N. Cardozo School of Law
5. New York University School of Law
6. The John Marshall Law School
7. Columbia Law School
8. Fordham University School of Law
9. University of California Berkeley School of Law
9. Stanford Law School

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Research and analysis done by Law Street’s Law School Rankings team: Anneliese Mahoney, Brittany Alzfan, Erika Bethmann, Matt DeWilde, and Natasha Paulmeno. Click here to read the 2015 Law School Specialty Rankings.

Click here for information on rankings methodology.

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 Law School Specialty Rankings 2014 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.

Along with the two consecutive award shows this week came two red carpets. Each carpet brought a lot of interesting fashion choices, from Katy Perry’s tribute to Britney Spears to Kim Kardashian’s backwards looking dress, both at Sunday night’s MTV Video Music Awards. The one dress that people could not stop talking about, though, was Lena Dunham’s Giambattista Valli gown worn to the Emmy Awards Monday night. Regardless of whether you loved or hated the dress worn by creator and star of the HBO series Girls, it seemed to bring up an issue of intellectual property.

On Monday night, designer Christian Siriano posted a throwback photo on Instagram of one of the designs from his Spring 2010 collection. The dress he chose to post had a strikingly similar color scheme and tiered tulle skirt to the dress Dunham wore that very night. Hm, coincidence? Probably not. Nice try Christian, but it wasn’t even #ThrowbackThursday.

As much as I hate when bigger designers copy smaller ones’ designs, I don’t think Siriano really has a case here. The only thing the two dresses have in common is the fact that they have tulle skirts. The colors and tiers are far too different for there to be any issue of copyright infringement. The bodices of each dress also give off two completely different aesthetics, as Valli’s offers a menswear-meets-formalwear vibe by matching a collared shirt with a ball gown skirt, while Siriano’s features a simple strapless design.

Even if Siriano did want to get into a legal battle with his fellow designer, there are no laws protecting him. It is perfectly legal to copy a garment’s pattern, which is hardly the issue here anyway. The only way Siriano would have a case is if there was an issue of print-copyrighting and both dresses lack any kind of screen-printing to begin with. Also, Siriano would probably never stand a chance in court against Valli, as the latter is a veteran couture designer and the former is a relatively new designer who got his start through Project Runway and designs for Payless Shoes.

Then again, Siriano definitely wasn’t the only one who thought the dress looked familiar…

Lena Dunham’s #Emmy dress looks kind of familiar. @josswhedon @JewelStaite pic.twitter.com/oEkU7N59nv

— refinery29 (@Refinery29) August 26, 2014

—

Katherine Fabian (@kafernn) is a recent graduate of Fordham University’s College at Lincoln Center and is currently applying to law schools, freelance writing, and teaching yoga. She hopes to one day practice fashion law and defend the intellectual property rights of designers.

Featured image courtesy of [Lena Dunham via Twitter]

Katherine Fabian

Katherine Fabian is a recent graduate of Fordham University’s College at Lincoln Center. She is a freelance writer and yoga teacher who hopes to one day practice fashion law and defend the intellectual property rights of designers. Contact Katherine at staff@LawStreetMedia.com.

The post The Votes Are In: Lena Dunham Wins Most Controversial Emmy Dress 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.

—

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.

Trade secrets are pieces of information that businesses or companies use to gain some sort of competitive advantage. In the United States, we have trade secret laws that allow companies to protect this valuable type of information from being stolen by other companies or individuals. Read on to learn everything you need to know about trade secrets, the laws that protect them, and the arguments for and against these protections.

What Are Trade Secrets?

Under the Uniform Trade Secrets Act, a trade secret is defined as:

Information, including a formula, pattern, compilation, program, device, method, technique, or process that derives independent economic value, actual or potential, from not being generally known to or readily ascertainable through appropriate means by other persons who might obtain economic value from its disclosure or use; and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Some well-known tangible examples of trade secrets include:

• The recipe for Mrs. Fields Chocolate Chip Cookies
• The New York Times bestsellers’ list methodology
• The WD-40 formula
• The Twinkies recipe
• The recipe for McDonald’s Special Sauce
• The Coca-Cola recipe
• Google’s algorithm

Less tangible examples of trade secrets include consumer information or lists. Each of those secrets have made their corresponding products incredibly popular, but should they fall into the hands of competitors, they would lose their competitive advantage.

 What are Trade Secret Laws?

Trade secrets are protected by federal law, state law, and contracts between businesses and employees or associates.  This triple layer of protection differentiates them from, and in some cases makes them more effective than, patent laws. Trade secret law applies to a much wider range of information than other forms of intellectual property (IP) law, such as patents. Unlike patent protection, which expires after twenty years, trade secret protection does not expire.  Trade secret protection does not need to consist of information that is defensible by other IP laws.  Even if information does not qualify for patent, copyright, or trademark protection, it can still qualify for trade secret protection. A big, valuable difference between trade secrets and patents is how they’re disseminated to the public. A patented piece of information is owned by the patent holder; they release it into the public and in return get to profit off of it for as long as they own that patent. A trade secret stays secret, and gives the company its competitive value.

Trade secret protection, however, is not applied to information that is common knowledge or is publicly available. For example, if a telemarketing company used the entire phone book as a potential customer list, the company could not claim trade secret protection over the contents of the phone book. Moreover, unlike patents, trade secret protection can be bypassed if the information is obtained independently of the owner of the secret e.g. through reverse engineering or independent or accidental discovery.  The protection cannot be circumvented through improper means such as industrial espionage or misappropriation.

Perpetrators of misappropriation of trade secrets can be subject to federal and state civil and criminal liabilities; however, a company must be able to demonstrate that it undertook reasonable methods of protecting the alleged trade secrets in order for trade secret protective legislation to apply.  If the company cannot show that it undertook reasonable measures to protect the information, then it can lose its trade secret rights even if it is illegally obtained.

The Uniform Trade Secrets Act 

The Uniform Trade Secrets Act was created in 1979 and updated in 1985 in an attempt to create consistent American law across state borders. It was written on the heels of a Supreme Court decision — Kewanee Oil Co. v. Bicron Corp. — that legitimized the use of trade secret laws. After that court decision, many states created their own versions; however, given that many American companies operate across state lines, it’s understandable why consistency was desired.

As of 2013, 47 states, the District of Columbia, Puerto Rico, and the Virgin Islands adopted the UTSA, the only exceptions being New York, Massachusetts, and Texas. Those states have their own laws that provide trade secret protections.

In addition to protecting the trade secrets of companies, the UTSA puts remedies in place for when the laws are breached. These include injunctive relief: essentially a court-ordered prevention from a company using its competitor’s trade secret it obtained, as well as provisions allowing the payment of damages.

What are the benefits of trade secret laws?

Proponents of trade secret protection argue that the law recognizes that a company’s realm of economically valuable information extends beyond patentable and copyrightable content. This gives companies protection from unfair competition. It also alleviates companies’ fears that former employees can weaken their competitive position in the market by working for competitors or selling information. Unlike patents, trade secret protection has no registration costs, takes effect immediately, avoids procedural legal encumbrances, and lasts as long as the company needs.

Trade secret laws also promote collaboration, as strange as that may sound. If two companies embark on some sort of research mission together, they are more likely to be forthcoming and fully collaborative if they know that their confidential information is protected by law.

The Downsides of Trade Secret Laws

Opponents of trade secret protection argue that it gives businesses far too much power. Since the protection lasts until the secrets are discovered, the public’s use of beneficial innovations and freedom of information is restricted in the service of individual profits. Contractual trade secret restrictions can harm employees’ employment availability because the confidentiality and non-compete requirements remain with them after they change employers. These employees are limited in where they are able to work after changing jobs and limited in the knowledge and skills they can employ at any subsequent employment they find.

Case Study: Coca-Cola

The formula for Coca-Cola is one of the most famously sought-after trade secrets in the world. Coke actually loves the mystery surrounding its formula and tries to hype the public up for publicity and marketing reasons:

The history behind the Coca-Cola formula is fascinating, and makes it the perfect example of a trade secret. Starting in 1887, one of the first presidents of the company, Asa Chandler, demanded that no one ever write down the formula again for fear it could be stolen. According to the company, at any given time only two individuals actually know the formula. It is passed down in a ritualized manner, and those two individuals never travel together in case anything tragic ever happens.

New Horizons in Trade Secret Laws

As the world becomes increasingly globalized and the internet is an increasingly important part of the business landscape, trade secret laws are seeing some changes. Trade secret theft is much easier when companies have access to hackers and other tools of corporate espionage. Also, our companies have become not just fluid across state borders, but across international borders as well. American companies are sometimes worried that international competitors, who aren’t necessarily held to the same laws as American companies, will gain hold of valuable trade secrets.

Action in Congress 

In light of these concerns, American lawmakers have attempted to strengthen trade secret protections. Earlier this year, two bills were introduced in the House (H.R. 5233: “Trade Secret Protection Act of 2014”) and in the Senate (S. 2267: Defend Trade Secrets Act of 2014.) Both of these bills would create a private federal civil remedy option for companies whose trade secrets have been stolen.

International Action

China, now one of the United States’ most important global trade partners, has attempted to expand its trade secret protections. It is currently working on a trade secret law — it’s in draft status right now — but it’s part of a larger project that China is working on to expand its competition law protections. This action came after the United States had strong disagreements and legal action against China over the possible stealing of trade secrets:

The European Union is also working on strengthening trade secret protection laws. In May 2014, the EU clarified its position on trade secrets, and committed to making consistent laws throughout member countries. A press release from the EU published last winter read:

There are substantial differences in the laws in place in EU countries on protection against trade secret misappropriation. Some countries have no specific laws on the issue. Businesses find it difficult to understand and access the systems of other Member States and, whenever they become victims of misappropriation of confidential know-how, they are reluctant to bring civil court proceedings as they are not sure the confidentiality of their trade secrets will be upheld by the courts. The current fragmented system has a negative effect on cross-border cooperation between business and research partners and is a key obstacle to using the EU single market as an enabler of innovation and economic growth.

Technology and Trade Secrets 

Another new frontier in the issue of trade secret protections is protection for technological innovations, such as technology design concepts. Altavion, Inc. v. Konica Minolta Systems Laboratory Inc. was heard in California earlier this year. In this case, a small company called Altavion claimed that a process it had invented to authenticate documents had been stolen by one of its competitors, and that the process was a trade secret. The court ruled in Altavion’s favor.

Conclusion

Trade secrets are an incredibly important part of the American business structure. Many of the United States’ most well-known companies and products have some involvement in trade secrets. While the U.S. has taken admirable actions to protect those secrets, there are constantly new frontiers in the issue, including the advents of technology and globalization. As those topics expand, we should expect to see trade secret protections expand as well.

Resources

Primary

Uniform Trade Secrets Act: Text

European Commission: Commission Proposes Rules to Help Protect Against the Theft of Confidential Business Information

Additional 

Marquette IP Law Review: Why Do We Have Trade Secrets

Nature: The Good and Bad of Trade Secrets

IP Watchdog: Trade Secrets and Employee Mobility

WIPO: Patents or Trade Secrets?

Unemed: What You Need to Know About Patents and Trade Secrets

King Hall IP Law Assocation: History of Trade Secret Law

Uniform Law Commission: Trade Secrets Act Summary

PeterToren: Criminal Trade Secret laws

Listverse: How Trade Secrets Are Kept

TMS: Federal Trade Secrets Crimes

Hahn Loeser: Does Trade Secret Law also provide patent protection?

Journal of Economic Perspectives: Some Economics of Trade Secret Law

Association of Corporate Counsel: New Texas Trade Secret Law Helps Big Businesses

Beck Reed Riden: Does the Government Favor Businesses With Trade Secrets?

JD Supra: Technology Design Concepts Can be Trade Secrets

Managing IP: Trade Secrets Get Sexy

Buffalo Business First: Looming Changes in Trade Secret Protection

Time: Is this the real thing? Coca-Cola’s Secret Formula “Revealed”

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 Trade Secret Laws: Competitive Advantages at Work appeared first on Law Street.

I’m just going to cut to the chase: I hate Forever 21. Don’t get me wrong, I spent plenty of my parents’ money there on a seasonal basis when I was a teen, but by the time I was 17 I had completely sworn off the fast fashion mega-chain. Ironically, I used to shop at stores like Forever 21 and H&M because their merchandise was strikingly similar to the clothes I would see in magazines. But the more I immersed myself in the industry, the more I learned that these stores were the antithesis to the look I was striving to emulate. Forever 21 blatantly copies designers’ prints from big names like Diane von Furstenberg to independent clothing boutiques. In publishing that’s called plagiarism, but in retail it’s called making fashion “accessible” to the masses.

Courtesy of Simka sol via Facebook

The whole concept behind Forever 21 disturbs me. I used to walk into a store in complete awe, wondering how I was ever going to manage to thoroughly browse through all of the trendy merchandise. Now I walk in and feel disgusted.

I first noticed something was off about the store when I visited a three-level unit at the Garden State Plaza, much larger than any other store I had seen before. The bottom floor was overstuffed with sale merchandise. Upon seeing this I immediately thought, “What do they end up doing with all of these clothes? Surely, not that many people end up buying sale when there’s so much on-trend and reasonably-priced merchandise upstairs.” I pictured those factories where they shred old clothes and realized that even if the store never sells most of its sale merchandise, it will hardly make a dent in the company’s revenue. Forever 21’s clothes could cost around 20 cents to make and they sell them for $20 apiece, that’s a 1,000 percent markup. Something about that just doesn’t seem right.

Copyright laws allow for retailers like Forever 21 to copy garment designs, but not any prints that designers place on their garments. Which, if you think about it makes a lot of sense. Most clothes are made with one of a few possible patterns and ultimately it is what a designer puts of those patterns that makes their work unique and innovative. Considering part of their job description involves designing prints, how is it fair for them to do all the work only for someone else to come along and sell the same thing at a fraction of the price? Not to mention that fast fashion retailers can make a whole lot more money off of a copyrighted item by selling it in mass quantities.

Left: A dress by Diane von Furstenberg Right: Forever 21’s version. Courtesy of Susan Scafidi via Counterfeit Chic

Granted, the role of a fashion designer is also to set the example so other fashion retailers can sell on-trend clothing to the masses. However, trends usually dictate a silhouette or color that is “of the moment.” Sometimes a particular generic print may be in style, for example leopard print, but in that case there are so many variations that retailers can make that it is completely unnecessary for them to literally copy a designer’s version of that print. So why does Forever21 win or settle nearly every lawsuit filed against it?

In addition to over 50 copyright lawsuits, the company is also notorious for numerous labor violations. So not only does it cheat designers out of profits, but it also fails to pay employees fairly. Employee lawsuits go as far back as 2001, when workers claimed they were being paid under minimum wage. There was even a three-year boycott of the retailer by its U.S. garment workers. This year, U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) fined three stores with over $100,000 in safety violations.

Despite all of the company’s lawsuits and violations, Forever 21 is one of the largest clothing retailers in the world, so independent designers and small design firms often do not stand a chance against it. Also, Forever 21 has a history of settling before cases are ever brought to trial. Susan Scafidi, fashion law professor at Fordham University, explains that “they’ve been caught so many times, they’ve been publicly exposed so many times, they’ve even been sued — although many fewer times, because all they do is settle — this is just part of their business strategy. They go ahead and they take what they want, and when they get caught, they pay up. It’s probably cheaper than licensing it in the first place.”

The way Forever 21 runs its business is unnecessary as there are plenty of other retailers who run honest businesses, while still offering on-trend merchandise. Despite their involvement in the Bangladeshi factory collapse last year, Gap is a respected retailer in the industry and often collaborates with high-end designers and the Council of Fashion Designers of America (CFDA) in order to provide designer fashions to the masses. In fact, the recent explosion of designer collaborations with retail chains like Target, J. C. Penney, and H&M is the perfect antidote to the moral fast fashion dilemma. When designers willingly and legally offer their pieces to retailers, then there is no need to copy their designs because consumers can have access to the real thing at their desired price-level.

High-end designers control trends in this industry, but large chain retailers control how these trends get delivered to about 90 percent of consumers. Stricter copyright laws should be implemented in order to protect the artistic integrity of these designers. The garment industry is just like any other creative industry, so if it’s illegal to copy famous works of art, it should be illegal to copy wearable works of art as well.

—

Katherine Fabian (@kafernn) is a recent graduate of Fordham University’s College at Lincoln Center and is currently applying to law schools, freelance writing, and teaching yoga. She hopes to one day practice fashion law and defend the intellectual property rights of designers.

Featured imaged courtesy of [Adam Fagen via Flickr]

Katherine Fabian

Katherine Fabian is a recent graduate of Fordham University’s College at Lincoln Center. She is a freelance writer and yoga teacher who hopes to one day practice fashion law and defend the intellectual property rights of designers. Contact Katherine at staff@LawStreetMedia.com.

The post Is There A Legal Way to Offer Fast Fashion to the Masses? appeared first on Law Street.

Research and analysis done by Law Street’s Law School Rankings team: Anneliese Mahoney, Brittany Alzfan, Erika Bethmann, Matt DeWilde, and Natasha Paulmeno.

Click here to read more coverage on Law Street’s Law School Specialty Rankings 2014.

Click here for information on rankings methodology.

Featured image courtesy of [Ingfbruno via WikiMedia]

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 Top 10 Law Schools for Intellectual Property: #1 The George Washington University Law School appeared first on Law Street.

Research and analysis done by Law Street’s Law School Rankings team: Anneliese Mahoney, Brittany Alzfan, Erika Bethmann, Matt DeWilde, and Natasha Paulmeno.

Click here to read more coverage on Law Street’s Law School Specialty Rankings 2014.

Click here for information on rankings methodology.

Featured image courtesy of [Rajiv Patel via Flickr]

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 Top 10 Law Schools for Intellectual Property: #2 University of New Hampshire School of Law appeared first on Law Street.

Research and analysis done by Law Street’s Law School Rankings team: Anneliese Mahoney, Brittany Alzfan, Erika Bethmann, Matt DeWilde, and Natasha Paulmeno.

Click here to read more coverage on Law Street’s Law School Specialty Rankings 2014.

Click here for information on rankings methodology.

Featured image courtesy of [Arnaudh via WikiMedia]

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 Top 10 Law Schools for Intellectual Property: #2 Santa Clara University School of Law appeared first on Law Street.

Research and analysis done by Law Street’s Law School Rankings team: Anneliese Mahoney, Brittany Alzfan, Erika Bethmann, Matt DeWilde, and Natasha Paulmeno.

Click here to read more coverage on Law Street’s Law School Specialty Rankings 2014.

Click here for information on rankings methodology.

Featured image courtesy of [Scaligera via Wikimedia]

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 Top 10 Law Schools for Intellectual Property: #4 Benjamin N. Cardozo School of Law appeared first on Law Street.

Research and analysis done by Law Street’s Law School Rankings team: Anneliese Mahoney, Brittany Alzfan, Erika Bethmann, Matt DeWilde, and Natasha Paulmeno.

Click here to read more coverage on Law Street’s Law School Specialty Rankings 2014.

Click here for information on rankings methodology.

Featured image courtesy of: [Jonathan71 via WikiMedia]

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 Top 10 Law Schools for Intellectual Property: #5 New York University School of Law appeared first on Law Street.

Research and analysis done by Law Street’s Law School Rankings team: Anneliese Mahoney, Brittany Alzfan, Erika Bethmann, Matt DeWilde, and Natasha Paulmeno.

Click here to read more coverage on Law Street’s Law School Specialty Rankings 2014.

Click here for information on rankings methodology.

Featured image courtesy of [Mrtoren via WikiMedia]

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 Top 10 Law Schools for Intellectual Property: #6 The John Marshall Law School appeared first on Law Street.

Research and analysis done by Law Street’s Law School Rankings team: Anneliese Mahoney, Brittany Alzfan, Erika Bethmann, Matt DeWilde, and Natasha Paulmeno.

Click here to read more coverage on Law Street’s Law School Specialty Rankings 2014.

Click here for information on rankings methodology.

Featured image courtesy of [Drew Garaetz via Flickr]

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 Top 10 Law Schools for Intellectual Property: #7 Columbia Law School appeared first on Law Street.

Research and analysis done by Law Street’s Law School Rankings team: Anneliese Mahoney, Brittany Alzfan, Erika Bethmann, Matt DeWilde, and Natasha Paulmeno.

Click here to read more coverage on Law Street’s Law School Specialty Rankings 2014.

Click here for information on rankings methodology.

Featured image courtesy of [Billy Ward via Flickr]

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 Top 10 Law Schools for Intellectual Property: #8 Fordham University School of Law appeared first on Law Street.

Research and analysis done by Law Street’s Law School Rankings team: Anneliese Mahoney, Brittany Alzfan, Erika Bethmann, Matt DeWilde, and Natasha Paulmeno.

Click here to read more coverage on Law Street’s Law School Specialty Rankings 2014.

Click here for information on rankings methodology.

Featured image courtesy of [Alan Cordova via Flickr]

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 Top 10 Law Schools for Intellectual Property: #9 University of California Berkeley School of Law appeared first on Law Street.

Research and analysis done by Law Street’s Law School Rankings team: Anneliese Mahoney, Brittany Alzfan, Erika Bethmann, Matt DeWilde, and Natasha Paulmeno.

Click here to read more coverage on Law Street’s Law School Specialty Rankings 2014.

Click here for information on rankings methodology.

Featured image courtesy of [Jonathan Yu via Flickr]

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 Top 10 Law Schools for Intellectual Property: #9 Stanford Law School appeared first on Law Street.

Intellectual Property is a quickly growing and extremely lucrative specialty in the legal industry. Here are Law Street’s top ten law schools that provide their students extensive and holistic educations in Intellectual Property.

Click here for detailed ranking information for each of the Top 10 Law Schools for Intellectual Property, and click here for the methodology used.

Research and analysis done by Law Street’s Law School Rankings team: Anneliese Mahoney, Brittany Alzfan, Erika Bethmann, Matt DeWilde, and Natasha Paulmeno.

Click here for detailed ranking information for each of the Top 10 Law Schools for Intellectual Property.

Featured image courtesy of [Jens Schott Knudsen via Flickr]

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 Top 10 Law Schools for Intellectual Property appeared first on Law Street.

Patent trolls have long been a problem in the realm of intellectual property, but companies have yet to devise a solution to successfully combat against them. As the years have gone by, patent trolls have no longer solely affected the technology industry but have begun to target many other businesses as well.

Well, now the government is getting involved in this widespread issue. The Senate is considering a bill, the Patent Transparency and Improvements Act that would force the losers of patent lawsuits to cover the winner’s legal fees in order to minimize patent trolling. The bill is similar to one that passed the House this past December. Diane Feinstein, a Democratic Senator from California, stated, “I think we are united on the troll. The troll must go.” The White House also has said it supports the measure.

Will Congress’ actions, if implemented, help to prevent patent trolling? There is evidence that suggests it will.

Making the losing party pay the other party’s legal fees will discourage patent trolls from pursuing legal action. Engaging in litigation can be a taxing and costly process, especially for small businesses, who lack the funds to engage in huge lawsuits. And in 2011, small businesses encompassed 90 percent of patent troll victims. The cost to defendants in a patent lawsuit can range from two to six million dollars. However, now faced with potential consequences, these companies engaging in patent trolling will have to think twice before filing lawsuit and extract licensing fees.

In addition, the bill would help protect true innovators. The bill’s provisions deter patent trolling companies, which exist solely to make a profit and do not actually contribute real innovation. These companies don’t create anything themselves; instead, they buy old patents and use them to file suits against other companies. Since patent trolling companies make their money off of legal cases, the potential cost not only deters these companies from filing lawsuits but also discourages anyone from forming these ventures in the first place.

Meanwhile, businesses that are actually creating innovative products or services can benefit from the bill. 40 percent of small businesses affected by patent trolls stated that the lawsuits they were forced to undergo hurt their business and ability to innovate. With the decreased threat of patent trolls, businesses will feel freer to create unique and new products without worrying about frivolous lawsuits.

The bill potentially also evens out the bias in the legal system that has long worked in favor of plaintiffs in intellectual property cases. Suing a company or individual over patent rights is relatively simple and inexpensive, but defending them can be extremely complex and costly. The fact is, patent cases are difficult to defend, many businesses are forced to settle out of court, which still costs them. Knowing that losers will have to pay for legal fees will encourage businesses to hold out for court settlement, whereas patent trollers will have a much harder time to defend their bogus claims.

While the bill exhibits many benefits against patent trolling, another question arises in the discussion of the bill: How will it affect legitimate patent litigation?

Some worry that the bill, while working against bogus patent troll lawsuits, could also affect litigation of serious infringements on patent rights. Skeptics of the bill argue that the bill goes too far and it could make it more difficult for inventors to profit from their innovations. Combatting this fear, several senators note that any legislation they support will protect the rights of companies that have legitimate claims to sue. Plus, parties with real claims of patent infringement still have the advantage of being the plaintiff in lawsuit, and can be confident of winning if their claim is truly legitimate. While fears of protecting innovation are not unfounded, those entering lawsuits to protect their legitimate patents need not fear of taking legal action.

If the bill passes in Congress and is signed into law by President Obama, businesses entangled in frivolous lawsuits will gain vital help in protecting their companies from patent trolls.

[Reuters] [Forbes] [Nextgov] [The Hill]

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Sarah Helden (@shelden430)

Sarah Helden

Sarah Helden is a graduate of The George Washington University and a student at the London School of Economics. She was formerly an intern at Law Street Media. Contact Sarah at staff@LawStreetmedia.com.

The post S.1720: A Real Solution to Patent Trolling? appeared first on Law Street.

Few things in the world are as marketable as sports. There’s just something about the mix of competitive energy and artistic renderings (especially when appearing on casual clothing) that’s fun. Even when tragedies befall us, opportunities to overcome often appear in the simple form of a sports-related symbol or catchphrase, capable of uniting folks behind a singular cause. But since most Americans have great minds (fact), and great minds think alike, some of our best symbols, catchphrases, or ideas in general have already been taken. The problem that arises in these scenarios is a contest of intellectual property (IP), often settled in federal court.

Are there specific examples of said IP struggles in sports? Oh well I’m glad you asked. Here at Law Street we’ve decided to list the top five examples for your entertainment and intellectual stimulation.

5. “B Strong” 

The most recent example of a prominent sports-related IP battle can be found in El Paso, Texas, home of the Braden Aboud Foundation, which was created in 2007 to honor the memory of its namesake. Aboud was a 14-year-old boy who passed away from injuries sustained during a ski accident. Also in ’07, the Foundation received trademark protection for their slogan, “B Strong,” which they’ve printed on merchandise to help fundraising efforts. Fast forward to 2013. That same slogan was adopted by the Boston Red Sox, who printed ‘B Strong’ on their merchandise to raise money for charity following the Boston Marathon bombings last April. The Red Sox have offered joint licensing with the Texas charity, but the parties have yet to agree upon licensing compensation. The conflict could soon be headed to court.

4. San Diego Chicken vs. Barney

In the early ’90s, two giant bipeds stole everyone’s heart: Barney and the San Diego Chicken (three if you count the Phillie Phanatic). In 1994, the San Diego Chicken began a campaign to push out Barney, as he repeatedly assaulted a Barney impersonator at San Diego Padres home games. The routine was in jest, of course, but Lyons Partnership LLP — the company that owned the real Barney’s copyright — was not laughing. Lyons sued the San Diego Chicken in federal court alleging copyright infringement. The fight for Barney however, didn’t last long. U.S. District Judge John McBryde dismissed the lawsuit, holding that the Barney lookalike in San Diego was intended to be used as a parody, and not as a source of confusion with the actual Barney.

3. Major League Baseball vs. Cape Cod Baseball League

Anybody who has played little league baseball knows that recreational team names are often borrowed from MLB teams. In 2008, Major League Baseball decided it would start to enforce the naming rights of its teams by threatening legal action against the Cape Cod Baseball League, whose teams share the names of MLB baseball squads. The Cape League however, is not your average amateur baseball league. It was founded in 1885, and many of the teams — such as the Harwich Mariners — have names that predate those of their MLB associates. Consequently, this struggle ultimately ended in a tie, as some Cape League teams agreed to change their names, while others were permitted to keep theirs.

2. 12th Man (Texas A&M) vs. 12th Man (Seattle)

Fans can often sway a game for the home team. Some teams recognize this home-field advantage and reinforce the raucous behavior of their crowds in less destructive ways than holding a ten-cent beer night. In football, this reinforcement comes in the form of merchandise labeled “twelfth man,” which refers to the home-crowd advantage which is often equivalent to having an extra man on the field. This clever slogan however, is trademarked by the Texas A&M Aggies. The NFL franchise Seattle Seahawks found this fact out the hard way, when they were sued by A&M for using the slogan on merchandise without permission. Despite retiring the jersey number 12 to honor Seattle fans, the Seahawks eventually acknowledged A&M’s trademark, and the two teams agreed to a licensing relationship.

1. WWF vs. WWF

You ready for this one, brother? The World Wrestling Federation and the World Wide Fund for Nature coexisted in harmony for years with both enterprises agreeing to use the descriptive acronym “WWF.”  Presumably, there was no need for a lengthy legal battle because there was no chance the two organizations would be confused with each other. Then came the internet and the alleged breach of the two organizations’ 1994 agreement by the World Wrestling Federation when it began using the domain WWF.com.  The environmentalists ultimately won when a U.K. Court of Appeals ruled that the wrestling giant had breached the ’94 agreement. Nature – 1, Nature Boy – 0.

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Andrew Blancato (@BigDogBlancato) holds a J.D. from New York Law School, and is a graduate of the University of Massachusetts, Amherst. When he’s not writing, he is either clerking at a trial court in Connecticut, or obsessing over Boston sports.

Featured image courtesy of [Rob Larsen via Flickr]

Andrew Blancato

The post The Top 5 IP Battles in Sports appeared first on Law Street.

The fact that James Dean died in 1955 hasn’t prevented his fans from following his active Twitter account. A passionate fan of the actor created the handle @JamesDean and maintains a sustained presence as his Twitter voice. Dean’s estate, however, took issue with this renegade appropriation and has sued Twitter for not shutting down the account, claiming it has to control how James Dean’s name and image are used. They argue that they are the rightful owners to the handle @JamesDean and should control its activity.

Interestingly, the operator of @JamesDean claims that this lawsuit represents an about-face from the estate’s previous policy. On June 16, 2010, @JamesDean sent the following tweet:

Twitter believes that the use of @JamesDean falls within their trademark policy, which permits users to create fan pages of a celebrity as long as the page is not misleading followers into thinking the account represents the official voice of that person. Ultimately, this case features parties with conflicting rights. The Twitter user can argue that he has a freedom of speech right to create a fan account for his or her favorite actor. James Dean’s estate can point to its intellectual property right to control how James Dean’s name is used.

If this case goes well for James Dean’s estate, it could unleash a cascade of litigation against Twitter by celebrities, dead and alive. Additionally, if Twitter caves to the pressure applied by James Dean’s estate and dethrones the user who controls @JamesDean, that could also set a precedent that encourages other celebrity estates to sue the company. Twitter will have a lot to lose if they unsuccessfully handle this lawsuit.

To its advantage, Twitter can demonstrate that they have policies in place to signal that an account is operated by the real celebrity or his or her estate. For example, Michael Jackson’s Twitter page has a check mark by his name indicating that the account is verified.

Twitter can argue that James Dean’s estate can create their own Twitter account with the verified check mark to proclaim that the account represents the actual voice of James Dean. The estate will appear petulant by maintaining that only the handle @JamesDean will suffice to protect their rights as owners of James Dean’s estate. James and Dean are both popular names – the argument would also mean that the estate can repossess the account of some unfortunate teen who shares the name of the famous star if the teen had @JamesDean as his handle. While it is unlucky that an avid fan created @JamesDean before the estate, their logic appears shaky when they can just create another handle as a verified Twitter account.

There is something unsurprising with James Dean being exiled from his own Twitter handle. It fits his renegade image – but his estate believes only he has the right to determine that.

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Imran Ahmed is a writer living in New York City whose blog explores the legal implications of social media and the internet. Contact him via email here.

Featured imaged courtesy of [Stephanie via Flickr]

Imran Ahmed

Imran Ahmed is a writer living in New York. Contact Imran at staff@LawStreetMedia.com.

The post James Dean Sues Twitter From the Grave appeared first on Law Street.

For those of you who are behind the times, Bitcoin is a unique electronic currency developed five years ago. Among many currencies, Bitcoin is the first decentralized digital currency, enabling individuals to exchange Bitcoins through the Internet without having to go through a middleman such as a bank. Bitcoins are revolutionizing traditional currencies, as anyone can “mine” the electronic coins. This is a significant reason why Bitcoin is becoming increasingly popular, as anyone can “mine” coins and make money. For a more extensive breakdown of Bitcoin, check out this article.

As Bitcoin emerges into a recognized currency, much of the legality and security of the e-currency has yet to be interpreted and standardized. This poses the complex question of what is needed to create a new currency? Often, the use of the Bitcoin is illegal, though the bitcoin system itself is not. Thus, the issue is not with the currency, but rather with it’s tendency to be prone to illegal activity. Therefore, does Bitcoin enhance criminality?

As Bitcoin is the newest globally recognized currency, agencies including the Internal Revenue Service, Canada Revenue Agency, and Her Majesty’s Revenue and Customs are developing new methods of taxing the e-currency. Exclusive to the United States, the Internal Revenue Service affirms the awareness of the potential tax-compliance risks posed by virtual currencies. Consequently, the lacking regulation permits malicious activity detrimental to the states well-being.

Bitcoin incorporates the option of anonymity into every exchange, making it prone to illegal activity. Provided in a case study by the Federal Bureau of Investigation, “cyber criminals may increasingly use bitcoins to purchase illegal goods and services and to fund illegal activities.” Specifically, this untraceable digital currency has an inherent proclivity towards criminality. However, if a transaction is not anonymized, a third party can geographically locate the individual. Every Bitcoin transaction is public and documented through archiving its Internet Protocol addresses.

As bitcoin technology increasingly becomes popular, criminals develop intricate methods to create an incognito transaction. An example of this illicit method is using a third party eWallet, attempting to consolidate Internet Protocol addresses. Research from the Federal Bureau of Investigation further concludes, “some third-party services offer the option of creating an eWallet that allows users to consolidate many bitcoin address and store and easily access their bitcoins from any device”

Bitcoin is the currency of choice–it has been used on many sites including the late Silk Road. An electronic market to buy potentially illegal goods, the hidden site was seized by the FBI in conjunction with the IRS Criminal Investigation Division, ICE Homeland Security Investigations, and the Drug Enforcement Administration. Prior to the injunction, private brownish markets were prone to criminal activity. The Silk Road allowed “parties to communicate anonymously for the purchase and sale of illegal goods, including the purchase of illegal narcotics, in addition to using Bitcoin.” Prior to the implementation of Bitcoin, Silk Road received very little traffic. Currently, hundred of thousands of transactions have been made through Silk Road and the newest platform, Silk Road 2 via Bitcoin. Such illicit websites cause for questioning the integrity of Bitcoin around the world.

What about this…

Although regulative agencies spanning across the world have yet to concretely define the boundaries, actions against criminality have been taken. On January 27, 2014 Charlie Shrem was arrested for engaging in currency laundering–directly connected to the Silk Road. Regarding the innovative currencies connections to criminal activity, Manhattan U.S. Attorney Preet Bharara stated, “truly innovative business models don’t need to resort to old-fashioned lawbreaking, and when bitcoins, like any traditional currency, are laundered and used to fuel criminal activity, law enforcement has no choice but to act.”

Bitcoin is highly susceptible to theft. Thieves intending on stealing bitcoins target and exploit third-party Bitcoin services “because there is no central Bitcoin server to compromise.” Malicious actors can steal user “mined” bitcoins by exploiting “the way bitcoins are generated by compromising victim’s computers.” Accomplished by installing malware on a victim’s computer, criminals can then use the compromised computers to generate bitcoins. The evolution of Bitcoin towards a more sustainable and legal future exemplifies the nature of an ever-changing currency. Yet the activity associated with Bitcoin can destroy the currency ad infinitum.

 [Business Insider] [Federal Bureau of Investigation]

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Zachary Schneider

Feature image courtesy of [Antana via Flickr]

Zachary Schneider

Zach Schneider is a student at American University and formerly an intern at Law Street Media. Contact Zach at staff@LawStreetMedia.com.

The post Bitcoin: Why is it Prone to Criminal Activity? 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.

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.

In today’s world of constantly shared media, including photos, videos, and artwork, it’s easy to get confused about copyright laws. People who create content have the copyright to it, but there are some exceptions. For a long time, we’ve had the concept of “Fair Use” in American jurisprudence. Read on to learn about Fair Use, the arguments for it, and the arguments against it.

What exactly is Fair Use?

Under 17 U.S.C. 107, a person who infringes the exclusive copyright rights held by another can avoid copyright infringement liability if he proves that the infringement constituted Fair Use. Fair Use is an exception to copyright rights that is written into U.S. Copyright law. It is an affirmative defense to a copyright infringement claim, which means that if the plaintiff makes a  prima facie showing of the elements of infringement and can therefore claim that the defendant did infringe on his copyright, then the defendant, in order to avoid liability, must meet the burden of proving at least a prima facie showing that Fair Use applies in his case. If the defendant succeeds, then the plaintiff will then have the burden of showing that there are insufficient Fair Use factors in the case. Whoever fails to meet their burden loses. If Fair Use is claimed it is analyzed by the courts under several fact-specific factors, including the following:

• The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
• The nature of the copyrighted work;
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
• The effect of the use upon the potential market for or value of the copyrighted work.

The relevance of each factor varies with the facts of each individual case; however, the fourth factor is generally the most important. Courts are allowed to consider additional factors to the ones enumerated in the Copyright Act.

The first Fair Use factor is the “purpose and character of the use.”  Courts consider whether the use comports with the intent of copyright law to engender creativity that enriches the realm of knowledge available to the public, or whether the use merely attempts to serve as a substitute for the original, serving the second creator’s financial interests. To qualify for the Fair Use defense, the user must show that the use advances the knowledge or progress of the arts by adding something new. A key consideration is whether the use is transformative or simply derivative. The Supreme Court has held that the extent of the transformativeness of a use of copyrighted material is inversely proportional to the import of factors weighing against Fair Use.

The second Fair Use factor is “the nature of the copyrighted work.”  For example, courts consider whether the work is fictional or non-fictional. Also, individual facts and ideas are generally not protected under Copyright law.  This factor is generally the least relevant in a Fair Use determination.

The third Fair Use factor is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” This factor is about the amount and proportion of the work that is used without authorization. Generally, the amount used is inversely proportional to the likelihood of a finding of Fair Use; however, the use of small but important portions of a work may constitute infringement despite the minimal nature.

The last factor is “the effect of the use upon the potential market for or value of the copyrighted work.”  This factor is based on whether and to what extent the unauthorized use negatively impacts the copyright owner’s ability to exploit the value of his or her own work.  Courts consider whether the specific use is harmful to the owner’s financial interests and whether similar mainstream uses would be harmful. If the unauthorized work creates a market replacement for the original then that indicates harm to the copyright owner’s interests. Certain kinds of market harm can constitute Fair Use e.g. parody or criticism. Copyright protection does not shield a work from negative reviews.

What is the argument for keeping Fair Use?

Proponents of retaining the Fair Use defense argue that it is intended to allow educational and nonprofit organizations to utilize copyright material for noncommercial purposes that do not harm the interests of copyright owners without fear of litigation. These purposes are socially valuable actions that allow vulnerable members of society access to the public’s realm of knowledge. The words “educational” and “nonprofit” are even written into the Copyright Act. Moreover, the exception is not easily abused because educational value of an unauthorized use is neither dispositive nor the most critical factor.  The other factors are still considered as well.

A study by numerous technology companies found that Fair Use exceptions to Copyright law were responsible for more than $4.5 trillion in yearly revenue for the U.S. economy–roughly one-sixth of the United States’ total gross domestic product. The study also found that Fair Use was responsible for more than 18 percent of U.S. economic growth and more than 11 million American jobs. Fair Use is vital to modern life in the information age.

Courtesy of Association of Research Libraries.

 What is the argument against Fair Use?

Opponents of retaining the Fair Use defense argue that Fair Use is a problem because it leads to a large amount of litigation. Fair Use is commonly misunderstood by the public and emboldens many individuals into conduct that risks infringing the copyrights of owners. The law is deliberately ambiguous in order to give the courts the flexibility to make fact-specific determinations, therefore, different courts can interpret copyright law differently and it is difficult for an owner to know the extent to which his or her work will be protected from infringement.

By granting an affirmative defense to copyright infringers the law makes it more difficult for copyright owners to rely on the courts for justice. Owners may be forced to not only prove that their work is copyrighted and that it was used by the defendant, but also they may be forced to prove the absence of Fair Use as well. Fair Use also makes it more expensive and time consuming to litigate copyright infringement claims because it essentially creates two trials out of one. First, the plaintiff must make a prima facie showing of infringement, which the defendant is free to undercut and the defendant only needs to attempt to show Fair Use after the plaintiff’s burden is met. Furthermore, if Fair Use is shown, then the plaintiff has to show that it does not apply in the case. This is an unreasonable burden on the plaintiff.

 Conclusion

How to protect fairness when it comes to using someone else’s copyrighted content is a complicated question. Fair Use is an answer to that question, although clearly an imperfect one. As our technology and ability to share content continues to develop, however, they may need to be revisited.

Resources

Primary

BitLaw: Fair Use Statute

US Copyright Office: Copyright Fair Use

Additional

ARL: The Good News About Library Fair Use

Electronic Frontier Foundation: Court Upholds Legality of Google Books: Tremendous Victory for Fair Use and the Public Interest

Tech Dirt: Fair Use: Worth More to the Economy Than Copyright?

Wired: Study: Fair Use Contributes Trillions to U.S. Economy

Electronic Frontier Foundation: Supreme Court Gets it Wrong in Golan v. Holder, Public Domain Mourns

Blog Herald: The Limitations of Fair Use

Copyright Crash Course: Will We Need Fair Use in the 21st Century?

Stanford: Fair Use

Columbia: Fair Use Checklist

Columbia: Fair Use in Education and Research

Fair Use Tube: Fairusetube

Electronic Frontier Foundation: New Study Affirms Fewer Copyright Restrictions Benefit the Economy, Amid Renewed Calls for SOPA 2.0

John Gomis

John Gomis earned a Juris Doctor from Brooklyn Law School in June 2014 and lives in New York City. Contact John at staff@LawStreetMedia.com.

The post Fair Use: Is it Really Fair? 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.”

—

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.

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.

The Stop Online Piracy Act (SOPA) was a bill  proposed in Congress in 2011 that immediately made headlines because opponents argued that it was too restrictive and had the potential to hamper free speech. It did not end up passing, but the ideas and motivations behind it still remain up for debate. Read on to learn about SOPA, the legislative battles surrounding it, and where we stand now.

What was SOPA?

The provisions of the bill primarily included increased federal enforcement of copyright laws and increased government action against entities involved in copyright infringement. These provisions include allowing both the U.S. Department of Justice and private copyright holders to obtain injunctions against copyright infringement by foreign-based entities. The bill would have allowed the Justice Department to bar internet advertising networks and payment network providers from servicing infringing websites e.g. torrent websites, sites that allow streaming of copyrighted movies or TV shows, etc. SOPA also would have prevented search engines from providing links to those websites.

SOPA aimed to increase the criminal penalties infringers face under the law.  For example, the penalties for economic espionage would have been a maximum of 15-20 years imprisonment and fines up to $5 million. The bill would have increased the realm of copyright crimes to include those perpetrated by “electronic means.”  Criminal penalties would have increased for IP infringement of government information or infringement that results in harm to government personnel or interests.

SOPA also would have had major implications for IP civil jurisprudence. Private entities are given rights against infringers as well. If a private entity is damaged by infringement and wishes to exercise SOPA rights they could have sent written notification to payment agents and advertising networks connected with the alleged offending site who then have to inform them and cease service unless the alleged infringer can respond with a counter-notification, indicating that they are not infringing. The copyright holder would have been able to bring an action for injunctive relief against the infringing site’s owners if either a counter-notification was provided or payment networks continue serving the alleged infringer without a counter-notification. Applying SOPA rights to foreign sites would have required them to consent to U.S. jurisdiction to determine if they are dedicated to infringement.

What was the argument for SOPA?

Proponents of the bill believed that SOPA could have created a lot of benefits for the public. It created major difficulties for perpetrators of IP crime because it would have given private companies the means and authorization to enforce and protect their own intellectual property rights. This allowed IP crimes to be remedied more quickly and at a far lower cost to the public because it could be done without the time constraints and expense of adjudication. This would improve the economy by decreasing government spending on investigating and prosecuting IP crimes. The fear of facing civil litigation under SOPA and the strengthened criminal penalties would have created a strong disincentive for many forms of infringement. Furthermore, by hamstringing IP infringement SOPA would make the U.S. more attractive to authors and innovators and reinvigorate the economy with increased job creation.

What was the argument against SOPA?

Opponents highlighted SOPA’s drawbacks. Under the law, even when a valid counter-notification would have been sent, third-party servicers were not required to resume serving accused websites.  SOPA also insulated the third parties from all lawsuits except those initiated by the copyright holder.  Therefore, the law allowed and perhaps even incentivized companies to limit other companies’ legal and commercial rights without judicial oversight, leaving SOPA vulnerable to the objection that it violates individuals’ constitutional due process. Non-infringing companies may be damaged by having valuable business relationships taken away from them without a meaningful opportunity to be heard and without legal recourse. This is because even if a company is found to be non-infringing there is no requirement that the discontinued services be reinstated. Finally, SOPA would not have accounted for the proportionality of the alleged infringement relative to the alleged infringer’s website. For example, under SOPA if one person uploaded an allegedly infringing video on Facebook and the owner exercised his SOPA rights he could potentially bring SOPA action against Facebook in its entirety.

What happened with SOPA?

There was a lot of backlash against SOPA from high-profile and much-used websites. On a few different days websites blacked themselves out to protest SOPA. The blackouts not only called attention to the issue, but also served as a sort of warning to consumers that if they did not get involved in stopping SOPA, some of their favorite websites would be threatened. Participants included Wikipedia, WordPress, and BoingBoing. Eventually, SOPA ended up failing. There were attempts to revive it about a year later, but nothing really came of those.

SOPA is the perfect example of the disconnect between technology and the people making our laws. On paper the idea sounded good, but in practice there were significant problems with the proposed law. While the debate over copyright and technology is far from over, SOPA almost certainly is.

Resources

Primary

U.S. Constitution: Article I Section 8 of the United States Constitution

House of Representatives: H.R. 3261, the “Stop Online Piracy Act”

Additional

100gf: Why SOPA Might be the Best Thing That’s Ever Happened to the Internet

Vulture: Polone: Why I’m for SOPA, and How the Entertainment Industry Blew It

Venture Beat: Top 5 Reasons to Support SOPA

Cracked: The Only Argument on the Internet in Favor of SOPA

Washington Post: SOPA Died in 2012, But Obama Administration Wants to Revive Part of it

Mashable: Why SOPA is Dangerous

TechDirt: Supporters of SOPA/PIPA Make Arguments That Make No Sense

CDT: US Piracy Law Could Threaten Human Rights

SOPA Strike: Homepage

Christian Science Monitor: SOPA and PIPA Bills: Old Answers to 21st Century Problems

Masur Law: Summary of SOPA and PIPA

CNN: SOPA Explained: What it is and Why it Matters

NickEhrenberg: The Arguments For and Against SOPA/PIPA (and now CISPA)

PC World: SOPA Controversy Explained

John Gomis

John Gomis earned a Juris Doctor from Brooklyn Law School in June 2014 and lives in New York City. Contact John at staff@LawStreetMedia.com.

The post SOPA: The Argument is Over, but the Dust Hasn’t Settled appeared first on Law Street.