Copyright Law: Using quotes from someone else (including Cajun keychain sayings) in your song, blog, book or website 2

Did you know that it’s possible to buy a “Cajun in your pocket” keychain? …that plays spoken Cajun phrases? GOOD NEWS – you can buy the keychain and use the sayings without violating copyright! cajun pocketEven though the toy manufacturers have copyrights that include the sayings on the keychain… there is no copyright violation for using the sayings in your own song, book, blog or website because, the phrases are not original.

A federal court in Louisiana held that the phrases at issue (see below) were common Cajun phrases and therefore, when the rap artist Mystikal included the exact word arrangements in his hit “Shake Ya As*” he did not infringe the toy maker’s copyright. (One of the necessary elements of a copyright infringement claim is that the parts of a copyrighted work that are copied without authorization must be original.)

  • “We gon pass a good time, yeah, cher”
  • “You gotta suck da head on dem der crawfish”

Another aspect of evaluating whether copyright protected works were copied without authorization is proof of access to the copyrighted work and similarity of the works. Interestingly in this case, it was proven that Mystikal’s nephew had a “Cajun in your pocket” toy… which was how the artist had access to the copyrighted work prior to the creation of his song. (By the way, it was estimated that the rap song had sold over six million units worldwide by the fall of 2000 and had also appeared in several movies and numerous CD compilations.)

When quotes from copyright protected works can be used in songs, books, blogs or websites without permission of the copyright owner… is a grey area and the facts and circumstances are fundamental to the case by case evaluation of copyright infringement.

Let the good times roll and stay clear of copyright infringement. “Laissez les bons temps rouler”!! (the “Cajun in your pocket” toy says this too.)

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

vk@kasterlegal.com

See also: http://www.emanation.com/products/cajun-in-your-pocket and Emanation Inc. v. Zomba Recording, Inc., 72 Fed. Appx. 187 (5th Cir. La. 2003). Emanation Inc. v. Zomba Recording, Inc., 72 Fed. Appx. 187 (5th Cir. La. 2003).

FAME is a game changer for Trademarks Reply

Registering trademarks with the USPTO helps strengthen brands by giving brand owners exclusive use rights as well as defensive powers to block similar marks.  FAMOUS trademarks are stronger and have broader defensive blocking powers against other trademarks.  One example of a strong, famous trademark is APPLE.

The iconic Apple logo is widely recognized by consumers and this FAME grants Apple Inc. the power to block the trademark registrations of other logos that include a confusing similar apple graphic.   Defining what is a confusingly similar trademark… is the million dollar question.  A few years ago APPLE challenged a “Green NYC” apple logo.

Would you have been confused by the two marks?  Would you have thought they were from the same corporate or municipal source?  (Take a look and see what you think.   If this logo had a leaf on the stem… would you be confused? http://www.nyc.gov/html/greenyc/html/home/home.shtml vs. http://www.apple.com/)  The end of the story, is that NYC had to remove a leaf from the stem of its “Green NYC” apple logo… and then it was granted trademark registration.

How about them apples….

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

vk@kasterlegal.com

 

For more information see: http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aS6kWpRRWe9U&refer=us and USPTO Serial number 77975167 and Registration number 3753302; @iplegalfreebies and www.kasterlegal.com.

Little Bo Peep and Her Sheep Flambe Reply

Creativity abounds as household items are incorporated into Halloween costumes; however, use common sense and pay attention to intended uses and warnings on everyday items that you use in your costumes.  Courts are not always very sympathetic to costume-related injuries because, products are often used in ways that were not expressly intended when incorporated into costumes.

For example, did you know that some cotton balls are highly flammable?  Little Bo Peep and her husband (who unfortunately for him was dressed as a sheep at a Halloween party) discovered this in a matter of seconds when he lit a cigarette and was quickly engulfed in flames.  The sheep costume was made by gluing cotton balls all over a pair of long underwear (from his head to ankles)… and neither Little Bo Peep nor her husband-sheep had any idea how quickly cotton balls would burn if caught on fire.

Ultimately the court held that making a sheep costume with cotton balls was outside of the intended, medicinal uses of the product and therefore a failure to warn was not the proximate cause of the man’s injury.

[an intellectually property law post script relating to costumes… is that original costumes, like the elaborate feather costumes and headdresses worn by Mardi Gras Indians are eligible for copyright… as sculpture and works of art.  This applies to elaborate galactic, warrior costumes… like Stormtroopers too.]

This case is: Ferlito v. Johnson & Johnson, 1992 U.S. App. LEXIS 34781; see also, Case Law From the Crypt: The Law of Halloween by D. Moar in the October, 2011 issue of the NYSB Journal.

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

vk@kasterlegal.com

Making ‘Stormtroopers’ in your basement? (gotta look at that basement) 2

In a galaxy not so far away… (the United Kingdom under the rule of HRH)… the original designer and prop maker of the Star Wars stormtrooper costume continues to make replicas of the iconic stormtrooper in his basement and sell them over the internet.  This basement stormtrooper-production-line led to a legal battle in the UK’s highest court.  Lucasfilms filed a lawsuit for copyright violation, in the hopes of shutting down the basement production.

The court ruled in favor of the basement stormtrooper-production since UK copyright law offers a short term of copyright protection for ‘props’ and that period of protection had expired.  (Interestingly, the same stormtrooper costumes are covered by a much longer term of copyright protection in the UK if the court had found them to be works of sculpture instead of classified as props.  Here in United States, if the stormtroopers were being produced in a basement on US soil… it is likely that Lucasfilms would have prevailed because, the US copyright law offers a much longer term of copyright protection regardless of the classification of the copyrightable work as a sculpture or prop.)  Since the stormtrooper costumes are still under copyright protection in the US, damages may have to be paid to Lucasfilms for any costumes that were sold here in the US.

Copyright laws and the term of copyright protection vary from country to country.

(I gotta tell ya, that I visited the UK courtroom while this case was being tried and there were stormtroopers set up all over the place.  The combination of wigs, robes, courtroom formalities and stormtroopers felt like another dimension… straight out of Star Wars.)

The case is: Lucasfilm v. Ainsworth, No. [2011] UKSC 39, U.K. Supreme Court.  See also, http://www.supremecourt.gov.uk/news/latest-judgments.html; @iplegalfreebies and www.kasterlegal.com.

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

vk@kasterlegal.com

 

Social Media: joining the conversation Reply

Social Media networks have created a global conversation of epic proportions.  Figuring out how to plug-in and use social media efficiently is a million dollar question.  Monitoring trends and conversationsdisseminating information… and joining the conversation are all ways to plug-in to social media.

Actually joining the conversation is proving to be the most effective way to reach people.  This is common sense, really.  A conversation engages people and has a higher chance of eliciting a response than just talking at someone, blaring a commercial, or watching silently on the sidelines.

A few interesting tips on effective use of social media:

  • 3am to 9am, pacific time… is the magic window when social media posts have the most traction because, this is the time of day when a posting or tweet can generate the most discussion around the world and across time zones.
  • Social media management tools have developed that allow you to manage various social media sites from a single account.  (Hootsuite, Tweetdeck and Postling)

Think about it… have fun… and be smart as you join the conversation and maneuver through social media networks.

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

vk@kasterlegal.com

 

See also: Time, Tide and the Net Wait for No One by Chief of Navel Operations Adm. Gary Roughead; and The Twitter Paradox at www.briansolis.com; www.hootsuite.com; www.tweetdeck.com; www.postling.com; @iplegalfreebies and www.kasterlegal.com.

Copying another artist’s work into a New Medium can violate copyright 2

The idea behind a piece of artwork is not protected by copyright.  However, a near replica of an artist’s work in different medium can be a copyright violation if the new work closely copies a copyright protected work.  What this means is that being inspired by an idea of another contemporary artist to recreate your own artwork from scratch is…100% legit.  For example, if a famous photograph of the pyramids inspires you to fly to Egypt and try to recreate the exact same photo to display and sell in a gallery… there is no copyright violation.  However, it is different if you use a copy of a famous photograph of a pyramid to paint a replica of the photograph.  Painting a copy of a photograph changes the medium of the artwork, but it can often still be a copyright violation of the copied work.

Here are a few examples of instances when copying someone else’s artwork into a new medium could be a copyright violation of the original work:

  • Photographing a sculpture… for use on a postage stamp
  • Making a painting of another artist’s photograph… to display in a gallery show
  • Making a campaign poster out of another artist’s photograph… to sell and raise money
  • Making a sculpture of another artist’s photograph of a sad kid in a costume… to display and sell
  • Recreating another artist’s painting in peanut butter and jelly and photographing the PB&J  rendition… to display and sell

Obviously, there are many unique facts and factors to consider in each case… and many of these types of challenges settle before a court issues a final ruling.  However by the time the parties begin negotiating a settlement, the stakes are higher and the alleged infringer generally ends up paying much more than it would have cost to secure a license at the outset.

The solution is to get a license from the original artist to make a derivative work.  (Trying to deny or cover-up your source material is often unsuccessful and can cost a lot more $$ in the end.)

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

vk@kasterlegal.com.

Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992)( The infringers fair use defense was denied); Gaylord v. United States, 595 F.3d 1364 (Fed. Cir. 2010); Fairey v Associated Press; alleged infringement between A.Brown and littlewhitehead; alleged infringement between Burdeny and Leong; NY Times article 9/28/11, questioning originality of Dylan paintings at the Gagosian; @iplegalfreebies and www.kasterlegal.com.

Cooking up Copyright – (cookbooks and recipes) 3

FACT: A recipe is not copyrightable

FACT: A cookbook is copyrightable

What does this mean?  It means that while a recipe itself (ie the mere listing of ingredients) is not protectable by copyright, other original elements embodied in a cookbook can be protected by copyright registration.  For example: the selection of recipes, layout, descriptions, illustrations, cover artwork, explanations and accompanying text are all elements of a cookbook that can be protected by copyright registration.

Most cookbooks contain a substantial amount of content that can be protected by copyright, even though the actual listing of ingredients is not copyrightable.

IN SUMMARY: register cookbooks for copyright protection… and keep secret ingredients…secret.

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

vk@kasterlegal.com

for more from the US Copyright Office on recipes and cookbooks –>http://www.copyright.gov/fls/fl122.html  and for more on how to register your cookbook for copyright registration for $35 –>  https://iplegalfreebies.wordpress.com/category/copyright-for-35/@iplegalfreebies and www.kasterlegal.com.

Seeking Copyright Termination for Y.M.C.A. and other hit songs of 1978 Reply

It’s no secret that young musicians often have zero bargaining power when it comes to negotiating recording contracts. (Congress even knows this which is why they inserted the Copyright Termination provisions into the US Copyright Law).  Usually, recording contracts signed by musicians favor the recording companies heavily.  (ie recording company forks over $$  and makes an investment in an unknown and not-yet-famous musician… and this is done on the recording company’s terms.)

If and when the musician becomes famous (for example: Bob Dylan, Bryan Adams, Tom Petty, Loretta Lynn, Tom Waits, Charlie Daniels and Victor Willis) … then the record company makes money… and the musician is already bound to the terms of an unfavorable agreement that exploits them.  FOR THIS REASON, the US Copyright Law contains termination provisions.

News of the copyright termination provision abounds recently; since, the first batch of songs from 1978 will be eligible for copyright termination in 2013… AND notice of the intended termination must be given this year. With some exceptions, The Copyright Law states that a grant or transfer or license of a copyright that was made by an author in or after 1978 may be terminated by that author (or his widow and/or children)  35 years after the grant.  Authors must give notice of their intent to terminate not less than two or more than ten years from the intended termination date.

The time is NOW and evidently many famous musicians including Bob Dylan, Bryan Adams, Tom Petty, Loretta Lynn, Tom Waits, Charlie Daniels and Victor Willis (of the Village People/YMCA) have given notice of copyright termination.  Not surprisingly the recording companies are putting up resistance to the possible disappearance of large revenue streams.  News reports indicate that the recording companies are challenging Victor Willis’s claim on the basis of ‘work for hire.’  This means that the companies claim that Willis was an employee… and legally… status as an employee trumps a copyright termination claim.  It will be interesting to see what evidence is presented to the court to prove this claim.    (fyi… living in a van or at a YMCA without health insurance or employee benefits is not a strong indicator of work for hire/employee status.)

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

vk@kasterlegal.com

For more info: Termination of Transfers and Licenses Under 17 U.S.C. §203 at  http://www.copyright.gov/docs/203.html ; see also the ‘Statement of Marybeth Peters, The Register of Copyrights, before the Subcommittee on Courts and Intellectual Property Committee on the Judiciary, United States House of Representatives, 106th Congress, 2nd Session, May 25, 2000 at http://www.copyright.gov/docs/regstat52500.html; @iplegalfreebies and www.kasterlegal.com.

Trademark Law: Using someone’s trademark in your book, blog or website Reply

Using someone’s Trademark in your book, blog or website is something that you need permission to do.  Generally, trademark owners monitor use of their registered trademarks diligently and will often send cease and desist letters asking that unauthorized uses of their trademark be removed.  (For example the NFL and POPSICLE trademarks are heavily monitored and policed in this way.)

How do you figure out if a word is a registered trademark?  Sometimes you can tell by doing a quick GOOGLE search, or for a more definitive search look on in the USPTO’s list of registered trademarks.  Here are instructions for running a basic USPTO (US Patent and Trademark Office) search to see if a word is a trademark:

  • Click – http://tess2.uspto.gov/
  • Then Click on – New User Form Search (Basic)
  • Enter your business name in the ‘Search Term’ field
  • Click – ‘Submit Query’
  • To be really comprehensive, Back-page and search the key words in your business name separately

If you discover that a word is a trademark, it is possible that the trademark owner will give you permission to use their mark… ask em.

You might enjoy knowing that the inspiration for this post came up last night while I was talking to my mom.  She is currently writing a children’s story about a horse that likes specific types of candies as treats.  So, in order to list the candies in the text of her story, it’s important to know which ones are trademarks and which ones are not.  This way she can acquire the needed permissions to use the trademarks.  (my mom’s site —  http://www.bayouponytales.com/)

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

vk@kasterlegal.com.

A monopoly over Red-Soled shoes denied to designer Louboutin 2

In the US, color alone may be protectable as a trademark when it identifies and distinguishes a particular brand.  This type of color, trademark protection is most common with industrial goods like fiberglass insulation that must conform to strict regulatory standards.  For example, ‘pink’ fiberglass is a trademark of Owens Corning.

FASHION, however, is another world entirely and the high-end shoe designer, Louboutin, was recently denied a monopoly over the color RED used on the soles of designer footwear.  Even though Louboutin was granted a US trademark registration for red soled shoes in 2008, a Manhattan judge recently held that Louboutin could not prevent Yves Saint Lauren (and other designers) from designing and selling red-soled shoes.  The judge also stated that Louboutin’s ‘Red Sole’ trademark registration was likely to be cancelled.  (This holding is likely to be challenged, appealed… and possibly overturned).

Wouldn’t it be strange to think of only one designer or fashion house owning an exclusive right to use a particular color?  The court thought so and held the fashion industry is a highly creative industry dependent on access to the full spectrum of colors.

(Interestingly, the judge did create a distinction between Louboutin’s Red Sole mark and other fashion color marks like the Burberry Plaid because the plaid is an arrangement of different colors and not a specific, single color.)

Enjoy this new freedom to paint your soles red.

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

vk@kasterlegal.com

For more information: NY Law Journal: http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1202510810474  and Judge Marrero’s 8/10/11 Decision:  http://www.nylj.com/nylawyer/adgifs/decisions/081111marrero.pdf.  Red Sole USPTO Registration # 3361597. @iplegalfreebies and www.kasterlegal.com.