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.

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.

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

 

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

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

Licensing a Cover Song: simple music copyright licensing Reply

Securing a license to include a song that you cover (ie a song written by someone else that you record) on your CD is simple and more affordable than you might guess.  For example, if you have recorded a Bruce Springsteen song that you want to include on your ‘soon to be released album’ then you need to secure a license to use the song.  Clearing cover songs has become simple with online licensing and royalty service providers like RightsFlow.

RightsFlow offers an easy online service for licensing cover songs for use on physical CD’s, ringtones, digital downloads and interactive streaming.  So back to the Bruce Springsteen example, the price for licensing a Bruce Springsteen song for use on 500 CD’s and 500 digital downloads is less than $150.00.  If you are selling your CD’s for $10 and giving the digital downloads away for free on your band website… you only have to sell 15 CD’s before you have recovered the licensing costs.  (this is peanuts compared with possible fines and litigation that can be brought on by illegitimate use of a Springsteen song.)

Check out RightsFlow for simple music copyright licensing  –>  http://rightsflow.com/

Note, that RightsFlow offers discounts to ASCAP members.

For more information: @iplegalfreebies and www.kasterlegal.com.

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

vk@kasterlegal.com

Avoid Trademark Rejection for Descriptiveness Reply

Descriptiveness is a slightly unexpected and common pitfall when it comes to registering a trademark.  If your trademark is descriptive, meaning that your mark merely describes your goods and services in a common and generic way, then trademark registration will be difficult  unless modifications are made to enhance the uniqueness of your mark.

For example, if you have a Doughnut shop where you sell hot doughnuts and you submit an application to register the trademark ‘hot doughnuts’ …your application will likely be denied because, your mark merely describes your goods and services in a common way.  [i.e. – a Google search on ‘hot doughnuts’ returns over  1,740,000 results in 0.18 seconds and these results are linked to doughnut shops and bakeries all over the world that also use the phrase ‘hot doughnuts’ to describe what they sell.]  Since ‘hot doughnuts’ is commonly used to describe doughnuts, it is too literal of a description to be registered as a trademark for a shop selling hot doughnuts.

Fire up your creative juices and make your trademark unique and not merely descriptive.

See also: more info on recent disputes involving this issue: Coppola and his family trust have sued a small restaurant in Novato, CA –> http://wp.me/p10nNq-kz and designer Louboutin’s Red Sole Shoes–> http://wp.me/p10nNq-cy ; @iplegalfreebies and www.kasterlegal.com.

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

vk@kasterlegal.com

ORIGINALITY is Key To Copyright Reply

Originality is key to securing copyright protection over a work.  This is true for literary works, sculptures, paintings, music and all varieties of creative output.  While this may seem obvious, in truth it’s a gray area.  Here are a few examples:

  • TELEPHONE DIRECTORY, WHITE PAGES:  not original; therefore, no copyright protection.
  • PHOTOGRAPH OF AN ARMFUL OF PUPPIES: is original; therefore, making a sculpture that is a deliberate copy of the photograph is a copyright violation.
  • A PAINTING: is original; however, making an engraving of the painting is not a copyright violation because of the engravers artistic use of light, shade, lines and dots.

MARDI GRAS INDIAN COSTUMES: possibly original works of sculpture.  At present the Mardi Gras Indians are seeking copyright projection for their elaborate costumes as works of sculpture.

What does this mean?  For the Mardi Gras Indians it will mean that photo releases, licenses and fees will need to be paid to the Indian sculptors before others copy, reproduce and sell their images as photographs, fine art, in calendars or on t-shirts.

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

vk@kasterlegal.com

for info on copyright registration –> http://t.co/ynaHCbX; @iplegalfreebies and www.kasterlegal.com.

Put the World On Notice of Your Copyright 2

Like all property rights, copyright is an asset.  Keeping track of your copyright copyrightprotected works and putting the ‘world on notice’ of your copyright is important.  Take the simple step to give the world notice of your copyright by adding a copyright notice to fixed forms of your original works.  For example, add a copyright notice to copies of all your manuscripts, sheet music, screen plays, comic strips, websites and other original, creative works.

It’s simple to do.  The general format for writing out a copyright notice in the USA is: ©; followed by the year that the work was created; followed by the name of the owner/creator of the work.  For example: “© 2011 Ima Star.”  Adding the extra phrase ‘All rights reserved’ to the copyright notice adds some international copyright protection in Central and South America.  For example: “© 2011 Ima Star.  All rights reserved.”  In either format, the notice is usually placed on the title page of a manuscript, and on the bottom of sheet music, comic strips and websites.

Registering your copyright protected works for copyright protection with the US Copyright Office is also a great idea; however, do know that you can use the copyright notice before registering for copyright protection.

© 2011 Ima Star.  All rights reserved.

To register your work with the US Copyright Office –> http://www.copyright.gov/forms/

See also:http://wp.me/p10nNq-1o for info on adding a copyright notice to your website;  http://www.copyright.gov; @iplegalfreebies and www.kasterlegal.com.

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

vk@kasterlegal.com