The Conundrum of Works for Hire.
You are a small business. You’ve hired a web developer to create your website, a marketing expert to author critical passages about your products and services, and you’ve hired a graphics person to design your business cards and signage. You paid everyone, took delivery of and launched your beautiful new website. The problem is, you don’t have any paper that confirms your developer, marketing guru, and graphic designer transferred the rights to the work to you. “But wait,” you protest, “they cashed my checks and I have possession of the files. Doesn’t that mean I own it?”
It’s natural to assume that if you engaged a service provider to create something for you, and you paid for it, it’s yours. But that’s not what the law says, at least with respect to works that are eligible for copyright protection. In fact, even if you have a writing that says the work shall be considered a “work made for hire,” that might not be sufficient to ensure that the work belongs to you.
What Does Copyright Protect?
Copyright protects original, creative works that are set out in a “tangible medium,” meaning they are written … Keep reading
Question: What do Sean Combs, J.K. Rowling, LeBron James, Lionel Messi, and Mark Wahlberg have in common? Two things, actually. First, they are all listed on the Forbes 2017 Celebrity 100 List; second, they all have gone to the trouble of registering their personal names as trademarks with the U.S Trademark Office. Indeed, of the first 20 celebrities on this “A” list, 19 have sought registration of their names as trademarks.
Trademark Protections For Personal Names
Under Federal law, everyone is entitled to seek protection of his or her name as a brand. The Lanham Act expressly provides that:
No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it … consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.
As indicated by the language of the statute, in addition to names, likenesses (portraits) and signatures of individuals are entitled to trademark registration. Several well-known entertainers have taken advantage of this right, including Meryl Streep, Robert De Niro, and Anthony Hopkins … Keep reading
The venue of a lawsuit can be a crucial, even dispositive, decision in managing the strategy of a successful outcome in an IP dispute. Defending a lawsuit on your home turf is often easier than in a distant state – defendants may be more inclined to settle lawsuits that are brought in inconvenient or hostile jurisdictions far from home. Moreover, venue can affect the adjudication of the merits of the dispute, since the various tests for infringement, and even the availability of injunctive relief, can vary by circuit. Accordingly, litigants will often try to tilt the possibility of success by considering all these variables before choosing where to file a case. However, recent developments in venue and jurisdictional law may impact a litigant’s ability to access favorable venues.
The Supreme Court’s recent decision in TC Heartland LLC v. Kraft Foods Group Brands LLC radically changed the law regarding venue of patent lawsuits. Until July 2017, about 40% of patent cases were brought in the Eastern District of Texas. In Heartland, the Supreme Court ruled that defendants in patent cases could be sued only where they are incorporated, or where they have a regular or established place of business. … Keep reading
Like any industry, cannabusinesses and ganjapreneurs need to be thoughtful about protecting their proprietary material, in order to mitigate their risk of being ripped off – or worse, being accused of infringing other people’s rights. This post provides a brief overview of trademark and copyright issues to consider when developing and protecting your business in this space.
Protecting Cannabusiness Branding
If your product is king, then your brand is certainly queen. Your brand name, or trademark, tells consumers that a product or service comes from you and not your competitors. Accordingly, identifying and protecting the name of your new business could be fundamental to your success.
Some Quick General Rules on Trademark Protection
Regardless of your industry, under U.S. law, trademark rights involve a business’s use of a name, term, phrase, or logo in connection with the sale of specific goods and services. Generally, the first business to use a name in the marketplace is entitled to claim ownership of it. It is, however, possible to obtain rights beforehand, if an application for registration with the U.S. Patent and Trademark Office is filed. If your business adopts a trademark that is too similar to a mark used by an … Keep reading
Chances are, if you have ever posted or published content on the web, or your company operates a website, you have heard the term “take-down notice.” Perhaps you have even been on the receiving end of such a notice, claiming that content on your website is owned by a third party, and that if you do not remove the content, your website will be taken down or a lawsuit will be filed claiming copyright infringement.
These notices are part of a mechanism available to copyright owners—including those who have not registered their copyrights— under a U.S. law called the Digital Millennium Copyright Act. This statute was enacted in the late 1990s as an attempt to bring the U.S. Copyright Act up to speed with society’s increased engagement via the Internet. The take-down procedure was introduced to provide a “safe harbor” for internet service providers that provide platforms for others to post content. Essentially, by following the procedures detailed in the DMCA, a website owner (or ISP) may be able to shelter him/herself from liability for infringement if a user posts infringing content, provided the website owner is not actively participating in or encouraging infringement and otherwise … Keep reading
You Can Trademark That? They Can Own What? Who Knew?
There are many reasons we have IP laws – but primary among them is to encourage creative types like artists and inventors to profit from their efforts by way of royalties or exclusive rights. To encourage those efforts, the intellectual property laws give authors and creators a relative monopoly over something they’ve created – a trademark, an invention, a script, a computer program, etc. It’s like society is saying “you made it, so you can own it – at least for a while…”
But a natural tension immediately presents itself when we grant these exclusive rights. Our culture wants to embrace, use and assimilate all that is cutting edge and new without having to ask for permission. We take – no, we borrow Pharrell Williams’ “Happy” riffs and make them background music to our YouTube® videos of our cats and our dogs. We expropriate “just a” screen capture from the Godzilla movie and create e-cards or embed them on our Facebook® pages. Our post-90s, crowd sourced, media-centered sensibility has created this “if it’s out there it must be free” (or “it wants to be free”) ethos … Keep reading
Last night, Nora Ephron passed. Already the internet andblogosphere are filled with this news and discussion of the loss of an incredibly prolific, comical and impactful artist. While she is associated with a broader feminist agenda, her real contributions were in giving comic and touching voice to life experiences that happened to be shared primarily by women. Her clarion call to women, especially younger women, to “…be the heroine of your life, not the victim,” might have been her most poignant gift.
But what, you may well ask, has Ephron’s passing to do with intellectual property or the law of information? Well everything and nothing at once… I was once asked to opine upon the intersection of intellectual property protection and gender. I was flummoxed by this question at first, feeling that certainly there was gender blindness when it comes to IP rights and their exploitation. But if you scratch beneath the surface — as Ephron always did — the story is much more complicated.It’s breathtaking to remember that women were still considered chattel until several hundred years ago. Then, having thrown off that burden, we still could not own property for another huge block of … Keep reading