Copyright is valuable – ‘The Birthday Song’ earns $2 Million a year in royalties 1

Would you have guessed that the song, ‘Happy Birthday to You’ generates an estimated $2 million dollars a year in royalties?  (and has earned this much annually since 1996)  It’s only eight measures long, spans an octave and was written for children …but it’s a big FullSizeRender (3)money maker.

The song has appeared in over 140 movies, in countless advertisements for products ranging from cars to cereals to insurance to paper products and pet stores… and was featured in the world’s first singing telegram in 1933.   Royalties are earned for public performances of the song as well as its use in movies, television shows, advertisements, music boxes, theatrical productions and the like.  (Just an fyi… singing it around the dinner table or serenading your friend is a royalty-free private performance.)

‘Happy Birthday to You’ was written by two sisters… one was an educator and the other a composer.  They were knowledgeable about copyright law and took steps to register their work for copyright protection.  They may not have guessed that their song would become one of the most popular songs in the 20th Century…. earning over an estimated $45 million dollars to date.  (Spending $35 to register your music for copyright protection pays off –> http://t.co/ynaHCbX )

(Since this blog just celebrated its first birthday… this is a timely topic.)

BY: Vanessa Kaster, Esq. LL.M.

vk@kasterlegal.com

An interesting reference for more on the copyright issues surrounding the Happy Birthday song, see Professor Brauneis’ legal paper http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1111624

Privacy Policies are often required on commercial websites

If a commercial website collects personal information from consumers and users, it is often required that a Privacy Policy be posted to the website.  Here are FOUR things to know about Privacy Policies:

  • ITS THE LAW, to post a Privacy Policy if a website is directed to children under 13 or a website operator knows that personal information is being collected from kids under 13
  • ITS THE LAW, to post a Privacy Policy if any personally identifying information is collected from consumers based in California
  • The EU, Canada and Australia require that website operators who collect personally identifiable information from consumers in within their borders post Privacy Policies.  Even if you are operating a website from another country, posting a Privacy Policy is recommended if you are collecting information from people in these countries.
  • POST AN ACCURATE PRIVACY POLICY.  This sounds obvious, but it’s important that the Privacy Policy that you post is accurate, relevant to your business, clear and is not deceptive.

For more information see: State Laws: http://www.ncsl.org/default.aspx?tabid=13463; Children’s Online Privacy: http://business.ftc.gov/privacy-and-security/children%E2%80%99s-online-privacy; EU ‘safe harbor’ arrangement: http://www.ita.doc.gov/td/ecom/menu.html; @iplegalfreebies and www.kasterlegal.com.

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

vk@kasterlegal.com

 

Were you wondering what happened to Jamie Thomas (she was sued in 2006 by Capitol Records for illegally downloading songs)? 5

Do you remember the hoopla that surfaced in 2006 when Jamie Thomas was sued by Capitol Records for illegally downloading 24 songs for her personal use?  Were you wondering what happened to her?  ANSWER: she’s been in and out of court this whole time… and last week a District Court Judge drastically reduced the damages awarded to the record company on a constitutional basis.

The Story:  Ms. Jamie Thomas illegally downloaded 24 songs on Kazaa (for her personal use) and was sued by Capitol Records.  After Capitol Records sued Ms. Jamie Thomas for illegally downloading 24 songs that they own…. a copyright controversy swelled when the jury awarded damages of $222,000 ($9,250 per song) for Jamie’s infringement.  The media continued to follow the case as it moved in and out of court and the damages awarded to Capitol Records for Jamie’s copyright violation shifted upward from $222,000 ($9,250 per song) to 1,920,000 ($80,000 per song) and back down to $1,500,000 ($62,500 per song).

Last week, a District Court Judge reduced the damages awarded by the jury to Capitol Records from $1,500,000 ($62,500 per song) to $54,000 ($2,250 per song).  The judge’s opinion stats that the reduced award is ‘substantial’, ‘acts as a potent deterrent’ and is the ‘maximum amount permitted under the Constitution.’   The court reasoned that awarded damages are unconstitutional when they violate due process for being severe, oppressive and obviously unreasonable.   (It’s rare for a court to reduce statutory damages.)

What happens now?  This decision could be appealed again by either side.

The decision can be read at: http://www.scribd.com/doc/60635512/Order-on-Motions-to-Amend-Alter-Verdict-in-Capitol-v-Thomas-Rasset  also see, http://www.copyhype.com

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

vk@kasterlegal.com.

 

Sending a Cease and Desist Letter (stop monkeying around) 1

Sending a cease and desist letter is a common way to notify someone that they are using your copyright protected material without your permission and to request that they remove the infringing use and/or pay up.

The owner of the copyright protected material (ie the author, photographer or commissioner of the original work) has the authority to issue a cease and desist letter.  If the infringing use is on a social media website or popular internet website, look to the TERMS or TERMS OF USE agreement posted to the website (usually a clickable at the bottom of the page) for step by step instructions on how to draft your cease and desist letter.  Generally, the ‘Terms of Use’ on a reputable website provide a clear outline of the information that needs to be included in your letter.   Click on the ‘Terms of Use’; scroll down to the ‘Protecting Copyright and Intellectual Property’ section; use the language provided; and give the requested information to the provided contact.

A cease and desist letter is only effective if it is sent by the owner of the work.  A funny scenario surfaced recently, when a news agency sent a cease and desist letter requesting that a photograph taken by a monkey be removed from a website.   But hold on… who owns the copyright in a monkey’s self portrait anyway?!?  Evidently, a monkey in a national park in Indonesia picked up a photographer’s camera and snapped a few pictures.  (One of them is a hilarious self portrait of the monkey. Take a look  at –>  http://www.techdirt.com/articles/20110706/00200314983/monkey-business-can-monkey-license-its-copyrights-to-news-agency.shtml.)

Since, the news agency didn’t employ the monkey or own the monkey, nor did it license the monkey’s work… the cease and desist letter that it sent… doesn’t have much oomph.

For more info on what to do if you receive a cease and desist letter, see –> http://wp.me/p10nNq-1B 

BY: Vanessa Kaster, Esq.

vk@kasterlegal.com and www.kasterlegal.com

MUMMYOLOGIST Trademark Applications accompany a new Mummy Exhibit 1

Fashion exhibits often have strong trademark connections due to the popularity of iconic fashion labels and brands; however, archeology exhibits are less likely to be ‘name branded’ with trademarks.  Generally speaking, anything that can be exhumed from an ancient resting place predates trademark registration systems.

The times are changing… and ‘The Mummies of the World’ exhibit, currently on display at the Franklin Institute in Philadelphia, has submitted trademark registration applications for the term: MUMMYOLOGIST in several classes.  The MUMMYOLOGIST trademark applications are ITU (Intent to Use) applications and it will be interesting to see how the MUMMYOLOGIST brand is developed to establish the requisite USE for trademark registration.

Every trademark registration application must designate at least one class of goods or services where the mark is ‘used in commerce’ (as a brand) in order to qualify for trademark registration.  The MUMMYOLOGIST trademark applications designate 4 classes: 2 classes of services (‘educational exhibitions’ and ‘providing information on archeology’) and 2 classes of goods (‘clothing’ and ‘printed material’).  The two service classes for which ITU applications are pending could be a good fit for developing a MUMMYOLOGIST brand; because, it seems likely that a MUMMYOLOGIST brand can be developed and used to promote and sell the services of ‘educational exhibitions’ and ‘providing information on archeology.’  However, the two classes of goods for which ITU applications are pending could be a bit trickier; since, the mark will need to be used as a brand and not merely as ornamentation on clothes and other goods to qualify for trademark registration.

USPTO rejections for ‘merely ornamental use’ are difficult to overcome and often leave popular graphics without the protection of a trademark registration.  (Just because a graphic or logo is printed on a t-shirt that is bought by a lot of people, doesn’t means that it is operating as the trademark or BRAND of the shirt.  The brand is generally the mark that’s on the inside label in the back of a shirt.)  It will be interesting to see how USE will be claimed for the MUMMYOLOGIST trademark applications.

That’s a wrap on the MUMMYOLOGIST trademark applications. Let’s see if they dig up the requisite use requirement to register this neat mummy mark.

Info on the exhibit: http://www.fi.edu/mummies/info.html  and the trademark serial numbers: 77829439; 77829436; 77829434; 77829430; @iplegalfreebies and www.kasterlegal.com.

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

vk@kasterlegal.com

Search for misappropriated photographs and artwork online with Google Images Reply

Tracking your copyright protected images and photographs on the internet is an important and often time consuming task.  Once a digital photo is posted to a website or distributed electronically it is possible for the photo to be misappropriated and used by other folks without your permission.  (It’s easy to do, it happens all the time, and often the offenders don’t even know that they have done any wrong.)

Keeping tabs on who is using your copyright protected images is important because, it helps you control your photos, preserve your licensing revenue streams and protects the copyright vested in your work.

One simple way to search for uses of your photographs online is by using Google Images.  Google Images allows a Google search to be run on an image, instead of a ‘text search term’.  It’s easy; you just drag an image into the search field and click ‘Search Images’.

Try it –> http://www.google.com/imghp

For example, I just ran a search on the cover photo of a book and the results that came up were websites using the image or a similar image.  Not all the results listed were infringing uses.  Some of the results are legitimate.  It’s easy to scroll through the Google Image results and identify infringing uses.  (The Google Images search works for artwork too.)

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

vk@kasterlegal.com

 

If your work is a SECRET, Copyright Registration may not be the best option for you. Reply

There are lots of benefits to Copyright Registration with the US Copyright Office; however, keeping your work a secret is generally not one of them.  Part of the process for registering a work for copyright protection is submitting a deposit copy of the work (newsletter, photo, document, manuscript) to the US Copyright Office.  These deposit copies are generally available to the public at the Library of Congress and can be copied with the assistance of staff members.

What does this mean?  If your work product contains secret information that you do not want to disclose, then do not register the work for copyright protection until you are ready to disclose it.  (An exception is made for computer programs… see below)  However, even if you do not register a work for copyright registration to protect secret information contained in the work… using a copyright registration notice on any copies of your work product that you distribute is smart.  [Remember that a copyright notice can be used even if you do not register your work with the US Copyright Office… and using a copyright notice gives you extra rights in your work if it is misappropriated.]  A sample copyright notice is: © 2011 Your Name.  All rights reserved.

One important exception to this deposit copy rule is made for computer programs.   When a computer program is registered for copyright protection only a small portion of the source code is submitted as a deposit copy and any trade secret material can be blocked out.

For more info on:

 

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

vk@kasterlegal.com

Trademarks are a defense against cybersquatters 3

Popular internet domain names are a hot commodity… and brands and business names are often used as internet domain names.  (for example: www.coca-cola.com and www.nike.com )

Businesses often seek to register and own their business names and brands as internet domain names; however, it’s not uncommon for cybersquatters to beat them to the punch and register internet domain name out from under them.  What can be done if this happens?  If the domain name purchased by the cybersquatter contains a trademark owned by another party, then there a good chance that the cybersquatter will be forced to surrender the domain name.   A cybersquatter can be forced to surrender a domain name if: 1) the cybersquatter who registered the name has no legitimate business interest in the name; 2) the domain name was registered in bad faith; and 3) the trademark owner’s trademark is confusingly similar to the registered domain.

If all three of these points can be proven, then the domain name can be cancelled or transferred to the trademark owner.

For more info on TRADEMARKS and Exclusive Use Rights –> http://t.co/llWyfhN; @iplegalfreebies and www.kasterlegal.com.

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

vk@kasterlegal.com

Tattoo Copyright FACE-off (Mike Tyson’s tattoo artist v. Hangover II movie) Reply

The hoopla surfacing over the unauthorized use of a copyrighted tattoo that is prominently featured in the Hangover II movie sets the stage for examining the elements of a strong copyright claim.  Elements of a strong copyright infringement claim are: 1) is the work original and vested with copyright protection; 2) was the work copied; and 3) was the work copied without authorization.

  • Is the tattoo an original work vested with copyright protection?  Copyright protection is automatically vested in an original work that has been fixed in a tangible form.  A tattoo is ‘fixed’ and if the design is original, then there isn’t any reason why it wouldn’t be covered by copyright protection.  In this instance, the tattoo artist claims that he created the design.  Hopefully he did.  However, one way that the movie studio may try to overcome this claim of originality is by researching ancient or historical tattoo patterns.  If for example, this tattoo was common among Maori-warriors, Samurai  or some other ancient sect, tribe or culture… then the artist’s claim of originality could be trumped depending on how unique and original his version is.
  • Was the tattoo copied?  You bet.  Rather blatantly… and from what I’ve read the exact copying of Mike Tyson’s tattoo is an element of the movie plot.  I just took a look at online photos of the movie character and Mike Tyson for comparison… and the tattoos are virtually identical.  (looks better on Tyson, though).
  • Was the tattoo copied without authorization?  The artist claims that he didn’t authorize the use.

As unexpected as it might seem, this has the makings of a strong copyright infringement claim.  I’m rooting for the tattoo artist… and I hope he negotiates a solid settlement.

The case is: Whitmill v. Warner Bros. Entertainment Inc. –> see Warner Bros. response at http://www.nytimes.com/interactive/2011/05/21/business/media/20110521tattoo-case-warner-brothers.html AND see also http://dockets.justia.com; @iplegalfreebies and www.kasterlegal.com.

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

vk@kasterlegal.com

When does Copyright start? Copyright protection starts automatically 2

When does copyright protection start?  It starts automatically, as soon as you create an original work.  It’s like having a baby (ie your creative, brain child)… as soon as it’s in this world it’s yours and it’s covered by copyright protection.   You don’t have to DO anything… other than create it and put it in a fixed and tangible form.

What does this mean?  As soon as you have written a song down; typed out a manuscript; applied pen or paint to paper… copyright protection starts automatically.

Using the copyright symbol © and registering your copyright with the US Copyright Office are two extra steps that give you more rights in your copyrighted work if and when you want to sell it, transfer it or protect it from being abused, misused or copied by other folks.

There is 99.999% chance that you have created original works that are already covered by copyright protection… even if you didn’t know it.

For more info SEE:

–>    How and why to use the © copyright symbol?: http://t.co/iBjePPU

–>    Copyright registration only costs $35: http://t.co/ykPmZ3T

 

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

vk@kasterlegal.com