Quote Brahms: Any ass can see the similarities with Beethoven’s ‘Ode to Joy’ 2

A page from Beethoven's manuscript for his 9th Symphony available at www.wikipedia.org

A page from Beethoven’s manuscript for his 9th Symphony available at http://www.wikipedia.org

The program notes for a recent concert of Brahms Symphonies No. 1 & 3 contained an admission by Brahms that the “big string section” in the finale of his first symphony was similar to Beethoven’s “Ode to Joy.”  Evidently, when Brahms was confronted about the resemblance, he replied, “Any ass can see that.”  I’m not sure how this quote has managed to survive almost 200 years, but it’s a fascinating example of an admission to copying another artist’s work. [Today this would be an example of admitting to copyright infringement by copying another artist’s work and/or creating a derivative work based on another artist’s work].  While the Brahms’ quote may seem comical, it is not so uncommon today for similar admissions to be made to the media or on social media regarding plagiarism or copyright infringement.  Often this type of admission is made off-the-cuff by an artist who has copied another artist’s work without any thought being given to a possible copyright infringement claim.  Yet, when the copyright infringement claim surfaces it may be difficult to overcome because of the prior admission.  Admissions made off-the-cuff, even in a slightly comical tone or on social media can have detrimental repercussions.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: U.S. Copyright Office Circular 1 on Copyright Basics at http://www.copyright.gov/circs/circ01.pdf; NY Times, What’s Wrong With the ‘Blurred Lines’ Copyright Ruling at www.nytimes.com; Carnegie Hall calendar and announcement of the Vienna Philharmonic Orchestra playing Brahms Symphony No. 1 at www.carnegiehall.org/Calendar/2015/2/27/0800/PM/Vienna-Philharmonic-Orchestra; @iplegalfreebies and www.kasterlegal.com.

Rosita Missoni: Queen of Zig Zag (PS fabric designs are Copyrightable) Reply

IMG-it

photo credit: Yavidan at VIOLETA PURPLE

“There are few people in fashion that are an institution like Rosita Missoni, she is not only the head of one of the most successful Italian houses but the Queen of a very beautiful family. With her late husband Ottavio they founded what today is one the most successful Italian houses thanks to their unique knits and colors.”

Reading this (which was posted on www.violetapurple.com by Yavidan) brought the COPYRIGHTABILITY of unique and original fabric designs and weaving designs to mind.

It’s true, unique and original fabric designs and weaving designs are eligible for U.S. copyright registration.  In the U.S., they are registered as a “work of visual art.”  To apply for copyright registration of an original fabric or weaving design, either a color photo of the complete design or a fabric swatch showing the complete design may be submitted along with the application for registration and payment of the filing fee. (The general filing fee is $35 or $55).

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: www.violetapurple.com for Yavidan’s post on “Rosetta Missoni: Queen of the Clan”; other blog posts on copyright at https://iplegalfreebies.wordpress.com/category/c-o-p-y-r-i-g-h-t/U.S. Copyright Office Circular 40 on Copyright Registration for Pictorial, Graphic, and Sculptural Works including fabric designs at http://copyright.gov/circs/circ40.pdf ; U.S. Copyright Office Circular 40A on Deposit Requirements for Registration of Claims to Copyright in Visual Arts Materials at http://copyright.gov/circs/circ40a.pdf; @iplegalfreebies and www.kasterlegal.com.

Dueling Noodle Trademarks: CHUBBY NOODLE vs FAT NOODLE Reply

CHUBBY NOODLE has challenged FAT NOODLE for using a trademark too similar to its own to sell noodles to folks in San Francisco.  Evaluating whether these two trademarks are “confusingly similar” will be key to the outcome of this lawsuit.  In trademark law, evaluating if two marks are “confusingly similar” is critical.  For example, will noodle-loving patrons be confused by the similarity of the CHUBBY NOODLE and FAT NOODLE trademarks (pictured below) and think these two separately-owned restaurants are related, affiliated or have the same owner?Screen Shot 2015-02-06 at 5.17.44 PM

Curiously, do you think the two trademarks look so similar that you would assume the two restaurants are related?

Are the CHUBBY NOODLE and FAT NOODLE trademarks more or less “confusingly similar” to you than these registered trademarks for other noodle shops?

other noodle regIn the lawsuit filed by CHUBBY NOODLE they also claim that, since the words “CHUBBY” and “FAT” are synonyms consumers are more likely to be confused and think the restaurants are related.  It will be interesting to see how this duel between the noodle shops pans out.

A copy of the complete complaint filed by CHUBBY NOODLE against FAT NOODLE is available at: http://insidescoopsf.sfgate.com/files/2015/01/11329862-0-48091.pdf

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: other blog posts on trademarks at https://iplegalfreebies.wordpress.com/category/t-r-a-d-e-m-a-r-k/; the U.S. Patent & Trademark Office website at www.uspto.gov; @iplegalfreebies and www.kasterlegal.com.

Trademarks – What Types Of Trademarks Are There? Reply

For fun, here is a list of some types of trademarks.  Are there more types than you would have guessed?

  • Logo
  • Numbers
  • Slogan
  • Nickname or abbreviation
  • Internet domain
  • Words
  • Packaging
  • Character
  • Color
  • Distinctive Building Shape

The key to “being a trademark” is “being USED as a trademark.”  One way to explain this is to ask if the trademark is being used to identify and distinguish goods and services of a particular company or brand. For example, does the trademark enable consumers to identify the company that makes the goods?  Do you notice the trademark on the items or in advertising? Does the trademark distinguish the goods of one producer from the goods of competitors?

Here are examples of each of the types of trademarks listed above:

  • Logo: NIKE SWOOSH                                                                                          TM Types
  • Numbers: 1664   (Kronenbourg beer)
  • Slogan:  A DIAMOND IS FOREVER   (De Beers)
  • Nickname or abbreviation: VW   (Volkswagen)
  • Internet domain: GODADDY.COM
  • Words: GROUPON or APPLE
  • Packaging: COCA-COLA BOTTLE
  • Character: GEICO GECKO
  • Color: TIFFANY’S BLUE JEWELRY BOX
  • Distinctive Building Shape: APPLE STORE

See also: Another post containing instructions on “how to run a basic search on the USPTO (US Patent and Trademark Office) trademark database” at http://wp.me/p10nNq-BMcCarthy on Trademarks Vol 1, Ch 7[B]; the USPTO website at www.uspto.gov, the trademarks listed above: NIKE SWOOSH (USPTO Reg. No. 2107521 and others); 1664 Kronenbourg (USPTO Reg. No. 2702301, 3282436 and others); A DIAMOND IS FOREVER (USPTO Reg. No. 337133); GODADDY.COM (USPTO Reg. No. 2945200, 3605479 and others); GROUPON (USPTO Reg. No. 3685954 and others); APPLE (USPTO Reg. No.4088195 and others); COCA-COLA bottle (USPTO Reg. No. 4200433 and others); GEICO GECKO (USPTO Reg. No. 3398021 and others); TIFFANY’S BLUE BOX (USPTO Reg. No. 2184128 and others); APPLE STORE (USPTO Reg. No.4021593); @iplegalfreebies and www.kasterlegal.com.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

 

SELMA: Bravo for the Movie & Creative Script (mixing original text & public domain works) 1

Selma Hostoric Route sign

photo from wikipedia.org

Two enthusiastic thumbs up for the movie SELMA and the creative script that uses accent, aura, scripture, lyrics of gospel songs and original text instead of historic speeches.  Before seeing the movie, SELMA, I read that the speeches given by Dr. King in the film were written by [the talented writer, producer, director and distributor] Ms. DuVernay and were not the historical speeches given by Dr. King.

Dr. King’s heirs did not grant permission for his speeches to be quoted in “Selma,” and while this may be a blow to the film’s authenticity, Ms. DuVernay turns it into an advantage, a chance to see and hear him afresh. Mr. Oyelowo, a British actor of Nigerian background, has mastered the Southern inflections and preacherly cadences that have become part of the permanent soundtrack of our educational system, and the script offers credible paraphrases of his character’s unmatched eloquence.

[–BRAVO, Ms. DuVernay, for turning this into an advantage].

It is not uncommon for permission to use famous copyrighted works, like Dr. King’s famous speeches, to be unattainable or denied.  (Obtaining permission to use a famous copyrighted work is often cost prohibitive).  Whatever the reason that permission to use a famous work is unattainable or denied, creating an original work is a brilliant solution.  After seeing the movie SELMA this past weekend, I was impressed with the use of bible verses and gospel lyrics in Ms. DuVernay’s script.  Bible verses and gospel lyrics are often in the public domain and free to use.  Intermixing public domain material and original text in a movie script works.  For example, Ms. DuVernay’s script uses the lyrics of the “Battle Hymn of The Republic” in a final scene with Dr. King.  The lyrics of this old hymn (written in the 1860’s and now in the public domain) were a powerful, spoken finale.

“Mine eyes have seen the glory of the coming of the Lord…”

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: An earlier blog post on Copyright Law & Dr. King’s famous “I Have a Dream” speech at http://wp.me/p10nNq-3R; Free tickets for 7th, 8th, and 9th grade students at http://selmastudenttickets.com; the SELMA website at www.selmamovie.com; www.paramount.com/movies/selma; www.avaduvernay.com/about; movie review by Kenny Miles at http://themovieblog.com/2015/ava-duvernays-masterful-selma-is-the-timely-movie-america-needs/; quote above is from the NY Times article titled, “A 50-Mile March, Nearly 50 Years Later. In ‘Selma,’ King Is Just One of Many Heros” by A.O. Scott on Dec. 24, 2014 available at www.nytimes.com; NY Times article titled, “The Man Who Would Be King.  David Oyelowo’s Pivotal Role in ‘Selma’ by Felicia R. Leedec on Dec. 18, 2014 available at www.nytimes.com; information on the Battle Hymn of the Republic at http://en.wikipedia.org/wiki/The_Battle_Hymn_of_the_Republic; NY Times article titled, “An Unsettled Chapter in Martin Luther King’s Legacy” by Richard Fausset on Jan. 12, 2015 at http://mobile.nytimes.com; Wikipedia photo credit at http://en.wikipedia.org/wiki/Selma_to_Montgomery_marches; @iplegalfreebies and www.kasterlegal.com.

“Congress shall make no law…abridging freedom of speech.” Reply

Among other cherished values, the First Amendment protects freedom of speech. The U.S. Supreme pencilsCourt often has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct (words) and symbolic (actions), that the Court has decided are either entitled to First Amendment protections, or not. [quote from & available at www.uscourts.gov]

The First Amendment states, in relevant part, that:

“Congress shall make no law…abridging freedom of speech.”

Freedom of speech includes the right:

  • To use certain offensive words and phrases to convey political messages.
    Cohen v. California, 403 U.S. 15 (1971).
  • To engage in symbolic speech, (e.g., burning the flag in protest).
    Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).
  • Not to speak (specifically, the right not to salute the flag).
    West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
  • Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”).
    Tinker v. Des Moines, 393 U.S. 503 (1969).
  • To contribute money (under certain circumstances) to political campaigns.
    Buckley v. Valeo, 424 U.S. 1 (1976).
  • To advertise commercial products and professional services (with some restrictions).
    Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976); Bates v. State Bar of Arizona, 433 U.S. 350 (1977).

Freedom of speech does not include the right:

  • To incite actions that would harm others (e.g., “[S]hout[ing] ‘fire’ in a crowded theater.”).
    Schenck v. United States, 249 U.S. 47 (1919).
  • To make or distribute obscene materials.
    Roth v. United States, 354 U.S. 476 (1957).
  • To burn draft cards as an anti-war protest.
    United States v. O’Brien, 391 U.S. 367 (1968).
  • To permit students to print articles in a school newspaper over the objections of the school administration.
    Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
  • Of students to make an obscene speech at a school-sponsored event.
    Bethel School District #43 v. Fraser, 478 U.S. 675 (1986).
  • Of students to advocate illegal drug use at a school-sponsored event.
    Morse v. Frederick, __ U.S. __ (2007).

See also: the text above (emphasis added) and other information on the meaning of free speech at http://www.uscourts.gov; the full text of the U.S. Constitution at http://constitutioncenter.org/constitution/full-text; @iplegalfreebies and www.kasterlegal.com.

Throwback Thursday – JAZZ FOR JUSTICE Reply

The historic “Jazz For Justice” tours brought jazz to audiences around the world, defying racial and photo(3)social prejudices and demanding equal treatment for African-American musicians.  At the same time as the civil rights movement, Illinois Jacquet, Charlie Parker, Benny Carter, Erroll Garner, Ella Fitzgerald, Duke Ellington and other jazz greats were in their prime, astounding audiences with their music.

Here are a few legendary Jazz For Justice era recordings:

  • Illinois Jacquet, Nat “King” Cole and Les Paul!  Song: “Blues” featuring Illinois Jacquet’s solo. Album: Complete Jazz at Philharmonic.
  • Charlie Parker!  Song: “Just-Friends.” Album: Charlie Parker with Strings: The Master Takes
  • Benny Carter!  Song: His version of “Flamingo” recoded on tour in Japan in 1953. Album: New Jazz Sounds: The Urbane Sessions
  • Oscar Peterson!  Song: “I Gotta Right to Sing the Blues.” Album: Oscar Peterson et Joe Pass à la Salle Pleyel
  • Ella Fitzgerald!  Song: “C-Jam Blues” is a powerhouse jam session.  Album: Jazz at Santa Monica Civic ’72
  • Erroll Garner! Album: Concert by the Sea

Bravo to these legendary jazz musicians, their audiences, supporters, music and accomplishments.  Music can be powerful vehicle for change.  Music and harmonics resonate.  Let freedom ring.

See also: http://www.npr.org/blogs/ablogsupreme/2011/10/20/141419438/norman-granz-five-recordings-by-the-man-who-used-jazz-for-justice; Jazz at the Philharmonic, or JATP (1944–1983), was the title of a series of jazz concerts, tours and recordings produced by Norman Granz at http://en.wikipedia.org/wiki/Jazz_at_the_Philharmonic; http://www.ucpress.edu/book.php?isbn=9780520267824; @iplegalfreebies and www.kasterlegal.com.

Legal Requirements for Commercial Email Messages Reply

Are you gearing up to send emails to your customers, clients and/or colleagues about your products and services? Keep in mind that commercial email messages are regulated by the CAN-SPAM Act.  The good news is that compliance with the legal photo(2)requirements outlined in the Act isn’t difficult.

Here is a brief rundown of the Act’s main requirements:

  1. Don’t use false or misleading header information – accurately identify the sender of the email
  2. Don’t use deceptive subject lines
  3. Identify the email message as an advertisement
  4. Include your physical postal address in the email so recipients know where you’re located
  5. Tell recipients how to opt-out of receiving future email from you
  6. Honor opt-out requests promptly
  7. If you hire folks to handle your email-marketing, monitor what they are doing on your behalf to ensure compliance with the CAN-SPAM Act.

Here is a short excerpt from the CAN-SPAM Compliance Guide for Business issued by the FTC Bureau of Consumer Protection on compliance:

Despite its name, the CAN-SPAM Act doesn’t apply just to bulk email. It covers all commercial messages, which the law defines as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service,” including email that promotes content on commercial websites. The law makes no exception for business-to- business email. That means all email – for example, a message to former customers announcing a new product line – must comply with the law.

Each separate email in violation of the CAN-SPAM Act is subject to penalties of up to $16,000, so non-compliance can be costly. But following the law isn’t complicated.

Check your holiday email blasts twice before sending them out to folks.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also:  The CAN-SPAM Act at http://www.gpo.gov/fdsys/pkg/PLAW-108publ187/pdf/PLAW-108publ187.pdf (section 5 lists the requirements for transmission of commercial email messages); the CAN-SPAM Compliance Guide for Business issued by the FTC Bureau of Consumer Protection at http://www.business.ftc.gov/documents/bus61-can-spam-act-compliance-guide-business; http://www.fcc.gov/encyclopedia/can-spam; @iplegalfreebies and www.kasterlegal.com.

GhostTunes: Garth Brooks launches iTunes competitor and releases his new album Reply

As a Grammy winning artist and a #1-selling solo artist in the U.S., Garth Brooks has interesting leverage and oomph when it Screen Shot 2014-11-11 at 4.43.59 PMcomes to launching a new digital music platform called GhostTunes.  After resisting to sell his music through iTunes or any download store, Garth Brooks has begun selling his music digitally through the newly launched GhostTunes website.  Just this week, Garth Brooks released his new album “Man Against The Machine” on the service for $12.99 or in a “bundle”/package deal with 8 of his other studio albums for $29.99.

Here are a few interesting tidbits about GhostTunes:

  • Users can access the music they buy on GhostTunes on any of their devices instantly (smart phone, tablet, laptop).
  • Taylor Swift is selling her new album “1989” on GhostTunes after publicly pulling her catalog from Spotify.
  • GhostTunes may be selling some music for less than iTunes (According to a WSJ article this week).
  • GhostTunes is allegedly making about 10% less than iTunes and other popular download services by allocating 80% of each song’s sale price to artists, labels, songwriters and music publishers. (According to a WSJ article this week).
  • Artists can create “bundle” deals (like the group sale of several of Garth Brooks albums) for one price.
  • Bundle deals can include more than just music.  For example, concert tickets and merchandise.
  • www.ghosttunes.com

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: GhostTunes at www.ghosttunes.com and www.ghosttunes.com/garth-brooks;  Article in the WSJ by Hannah Karp on 11/10/2014 titled, “Garth Brooks Launches Download Store: GhostTunes, to Debut Tuesday, Will Offer Digital Songs by Thousands of Artists” at http://online.wsj.com/articles/garth-brooks-to-launch-music-download-store-1415594399; @iplegalfreebies and www.kasterlegal.com.

Copyright ≠ Confidential: Key to Tire Litigation & Wrongful Death Claims Reply

Copyrighted works that have been registered with the U.S. Copyright Office are not vested with the same confidential treatment as trade secrets because they are available to the tirepublic.  Each time a person or entity registers an original work with the U.S. Copyright Office, a copy of the work that the applicant wishes to register is submitted along with their application.  This submitted copy of a published, literary work (which is called a deposit copy) is often made available to the public via the Library of Congress and a national network of libraries.

The fact that copyrighted materials are public records and not confidential is a basic principle of U.S. Copyright Law.  This basic principle of copyright law may create big changes to tire litigation and the evaluation of wrongful death claims related to faulty tires.  To date courts have routinely held copyrighted reports containing data on tire safety is inadmissible in tire litigation because, the reports contain trade secrets and are thereby confidential.  However, it seems that the copyright notice on the reports and their availability (upon request) to the public in the stacks at the Library of Congress and other libraries has been routinely overlooked.

Proper application of copyright law in tire litigation could alter the evaluation, treatment and admissibility of copyrighted reports containing data on tire safety.  As a result, copyright law has the potential to impact public safety.

For more information on this topic, See the article titled “The Tire Industry’s Abuse of Copyright Claims and the Corresponding Defenses of Copyright Misuse and Fair Use of Smithers Documents” co-authored by me and my uncle, Bruce Kaster Esq.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: a full bio of Mr. Bruce Kaster who has extensive litigation experience against major tire manufacturers and vehicle manufacturers, including Bridgestone, Firestone, Goodyear, Continental General, Cooper Tire, Ford Motor Company and others at www.tirefailures.com and a copy of our article and other resources at www.tirefailures.com/helpful-resourses.html; @iplegalfreebies and www.kasterlegal.com.