Hello Friends:
I know I have neglected this blog, but I have been so busy working. In addition, I have experienced major life changes in the past six months.
But it is good to be back. I am really excited about the new social media platforms and changes in the social media space in the past year. Pinterest and Instagram are blowing up and with their popularity comes a host of issues and questions regarding copyright law. Apple is still tangled in a battle for use of the iPAD name. And, with the emergence of mobile apps and computing, privacy concerns are very real and immediate for consumers.
In the next few weeks, I will give insight on these legal issues and hopefully provide an understanding on how to protect your valuable intellectual property, your privacy, and tips on how to not infringe on other's IP. So tune in and if you have any questions, please do email me at lgivens@phillipsgivenslaw.com.
Today, I want to talk about domain names. As a branding strategy, always think of domain names as trademarks. So choose a domain name carefully. Domain names can be business names, product names, blog names, or tag lines. All of these can be trademarks if they are unique to a product or service. For example, my blog name is IPLAW101, which is also the domain name for the blog and is a trademark. It is a trademark because it is unique in describing my blog's original content.
Sometimes cybersquatters or trademark infringers may use a variation of an owner's domain name or an owner's actual trademark name in order to divert traffic from the owner's site or to benefit from the goodwill one has built from a good trademark. If your domain name is also your trademark, you can pursue these infringers through cease and desist orders. From my experience, cybersquatters and trademark infringers usually cease infringement or give up the rightful owner's domain name if they know further legal action is pending.
If you have any comments, please leave one.
Until next time,
Latoicha Givens
Showing posts with label Copyright Law. Show all posts
Showing posts with label Copyright Law. Show all posts
Wednesday, June 27, 2012
Sunday, September 19, 2010
Are Recording Contracts Works Made for Hire?
Hello:
In light of the recent decision in the Fifth-Six Hope Road Music Ltd (Estate of Bob Marley) vs. UMG Recordings, many Artist are worried that all of their sounds recordings are going to be classified as "works made for hire." Basically, the judge ruled in the Bob Marley case that all of his recordings with Island Records from 1973-1977 were "works made for hire" and Universal Music Group is the rightful owner of the copyrights to five recordings Marley recorded. Specifically, the judge determined that despite Marley's artistic control over the recordings, both parties had a contractual agreement that clearly indicated the Marley sound recordings were "works made for hire."
A work made for hire is defined as a work created by an employee within the scope of the employee's employment. A work made for hire can also be created by a contractual agreement between two parties. Because most recording contracts are classified as independent contractor relationships and not employer-employee relationships, recording contracts are not usually deemed as works made for hires. However, record labels are now adding work made for hire clauses into recording contracts and artists and artists rights organizations are up in arms.
Work made for hire clauses in recording contracts have serious legal implications for artists. If the sound recording is classified as a work made for hire, the record label can retain the copyright to the work and the Masters in the recording. As a general rule, the Artists retains the right to have the Masters returned after a ten year period. This gives the Artist control over licensing and other revenue that can be obtained from the Masters. In addition, there is also "termination of copyrights" to consider. Termination of copyrights assists artists who may have signed away their copyrights. After 56 years, the artist can recapture the copyright for the last 39 years of the 56 years. For example, a contract signing away copyrights entered into in 1950 can be terminated in 2006 and the copyright can revert (artist has to give proper notice of termination) back to the artist or original author of the work. However, termination of copyrights is not applicable if the work is specifically a "work made for hire."
It is evident that both record labels and artists have a lot of stake when it comes to work made for hire clauses. Artists should hire good legal representation to ensure their works are not classified as works made for hire. Especially if the artist has created the work indepedently and not as an employee.
I welcome your thoughts.
In light of the recent decision in the Fifth-Six Hope Road Music Ltd (Estate of Bob Marley) vs. UMG Recordings, many Artist are worried that all of their sounds recordings are going to be classified as "works made for hire." Basically, the judge ruled in the Bob Marley case that all of his recordings with Island Records from 1973-1977 were "works made for hire" and Universal Music Group is the rightful owner of the copyrights to five recordings Marley recorded. Specifically, the judge determined that despite Marley's artistic control over the recordings, both parties had a contractual agreement that clearly indicated the Marley sound recordings were "works made for hire."
A work made for hire is defined as a work created by an employee within the scope of the employee's employment. A work made for hire can also be created by a contractual agreement between two parties. Because most recording contracts are classified as independent contractor relationships and not employer-employee relationships, recording contracts are not usually deemed as works made for hires. However, record labels are now adding work made for hire clauses into recording contracts and artists and artists rights organizations are up in arms.
Work made for hire clauses in recording contracts have serious legal implications for artists. If the sound recording is classified as a work made for hire, the record label can retain the copyright to the work and the Masters in the recording. As a general rule, the Artists retains the right to have the Masters returned after a ten year period. This gives the Artist control over licensing and other revenue that can be obtained from the Masters. In addition, there is also "termination of copyrights" to consider. Termination of copyrights assists artists who may have signed away their copyrights. After 56 years, the artist can recapture the copyright for the last 39 years of the 56 years. For example, a contract signing away copyrights entered into in 1950 can be terminated in 2006 and the copyright can revert (artist has to give proper notice of termination) back to the artist or original author of the work. However, termination of copyrights is not applicable if the work is specifically a "work made for hire."
It is evident that both record labels and artists have a lot of stake when it comes to work made for hire clauses. Artists should hire good legal representation to ensure their works are not classified as works made for hire. Especially if the artist has created the work indepedently and not as an employee.
I welcome your thoughts.
Thursday, August 12, 2010
Blogher 2010: Mastering Intellectual Propery Law on the Internet Session Recap
Hello Everyone:
As some of you know, I co-presented a presentation at Blogher 2010 entitled Mastering Intellectual Property Law on the Internet and other legal issues in cyberspace. My co-presenter was Wendy Seltzer of the blog ChillingEffects.org. She is a Berkman fellow and law school professor. She specializes in copyright, fair use, and other legal issues in cyberspace such as first amendment and privacy issues.
We covered four main topic areas. They were: Protecting your own Intellectual Property, Respecting others Intellectual Property, Privacy, and Defamation on the Internet. We tag teamed all topics and had so many detailed questions we actually ran over our allotted time. Apparently this is a much needed topic for social media enthusiasts.
When discussing protecting intellectual property, we specifically covered how to protect copyrights, trademarks, and trade secrets. We also discussed why owners of these types of intellectual property should protect them. One reason is because owners of intellectual property can lose out on valuable royalty or licensing income if not protected. No one wants to lose money!
Next we discussed how to respect others intellectual property and not infringe their works. We explained when it is permissible to copy without permission in certain Fair Use circumstances. Wendy explained in detail proper linking, the DMCA take down procedure, and creative common licenses.
I then gave a general overview of Privacy issues. I explained the need for every website or blog to have a basic privacy policy which is a disclosure document. A privacy policy protects the owner of the site and the user. Read my article on Privacy policies here.
Lastly, we both touch on Defamation and how to avoid defamation on the Internet. We also discussed the Communications Decency Act which states website owners or internet service providers are not liable for defamatory statements left by visitors.
If you are interested in seeing the notes or hearing the audio from this presentation, please click here.
As some of you know, I co-presented a presentation at Blogher 2010 entitled Mastering Intellectual Property Law on the Internet and other legal issues in cyberspace. My co-presenter was Wendy Seltzer of the blog ChillingEffects.org. She is a Berkman fellow and law school professor. She specializes in copyright, fair use, and other legal issues in cyberspace such as first amendment and privacy issues.
We covered four main topic areas. They were: Protecting your own Intellectual Property, Respecting others Intellectual Property, Privacy, and Defamation on the Internet. We tag teamed all topics and had so many detailed questions we actually ran over our allotted time. Apparently this is a much needed topic for social media enthusiasts.
When discussing protecting intellectual property, we specifically covered how to protect copyrights, trademarks, and trade secrets. We also discussed why owners of these types of intellectual property should protect them. One reason is because owners of intellectual property can lose out on valuable royalty or licensing income if not protected. No one wants to lose money!
Next we discussed how to respect others intellectual property and not infringe their works. We explained when it is permissible to copy without permission in certain Fair Use circumstances. Wendy explained in detail proper linking, the DMCA take down procedure, and creative common licenses.
I then gave a general overview of Privacy issues. I explained the need for every website or blog to have a basic privacy policy which is a disclosure document. A privacy policy protects the owner of the site and the user. Read my article on Privacy policies here.
Lastly, we both touch on Defamation and how to avoid defamation on the Internet. We also discussed the Communications Decency Act which states website owners or internet service providers are not liable for defamatory statements left by visitors.
If you are interested in seeing the notes or hearing the audio from this presentation, please click here.
Thursday, June 18, 2009
File Sharing & Fair Use: What does it mean for Consumers
Hello!
I hope your week has been productive.
I came across this article on the Daily Online Examiner, which gives an update on the Napster File Sharing Litigation. As many of you know, the Recording Industry Association of America (RIAA) waged a legal battle against Napster and users of file-sharing services for the past 10 years. However, one of those cases can effectively end the RIAA argument that file-sharing is copyright infringement and therefore punishable by a fine and or jail time.
In the case of RIAA vs. Joel Tenenbaum, the court is currently accepting an argument that peer to peer file sharing is a Fair Use exception to Copyright Infringement Laws. Essentially, the argument is that file sharing is not commercial use and therefore not copyright infringement. In lay terms, this means that as long as individual consumers are sharing files with friends for personal enjoyment and not a monetary fee, then copyright infringement does not exist and file-sharing is not a crime. I will explain Fair Use in more detail below:
Copyright Infringement occurs when another unlawfully copies, sells, displays or performs a copyright owner's work without their express permission. However, in some instances, copying a copyright owner's work without their permission is allowed. This is called the Fair Use exception. Specifically, an infringer of a copyright can argue Fair Use if they meet one of the following criteria:
1. the purpose and character of the use is for non-profit or non-commercial purposes;
2. the nature of the copyrighted work is artistic and benefits the public;
3. the amount and substantiality of the portion of the copy is minimal in relation to the copyrighted work as a whole; and
4. the effect of the copying upon the potential market for or value of the copyrighted work is minimal.
If Tennebaum's argument is successful, peer to peer file sharing may be considered legal and enjoy the same treatment as copying of television or cable shows for personal enjoyment. Currently, consumers can copy or record television or cable shows in their home as long as the recording is done for personal enjoyment and the recording is not re-broadcast or viewed by consumers for a fee.
It will be interesting to see how the judge rules this case. I will keep you posted.
I welcome your thoughts!
I hope your week has been productive.
I came across this article on the Daily Online Examiner, which gives an update on the Napster File Sharing Litigation. As many of you know, the Recording Industry Association of America (RIAA) waged a legal battle against Napster and users of file-sharing services for the past 10 years. However, one of those cases can effectively end the RIAA argument that file-sharing is copyright infringement and therefore punishable by a fine and or jail time.
In the case of RIAA vs. Joel Tenenbaum, the court is currently accepting an argument that peer to peer file sharing is a Fair Use exception to Copyright Infringement Laws. Essentially, the argument is that file sharing is not commercial use and therefore not copyright infringement. In lay terms, this means that as long as individual consumers are sharing files with friends for personal enjoyment and not a monetary fee, then copyright infringement does not exist and file-sharing is not a crime. I will explain Fair Use in more detail below:
Copyright Infringement occurs when another unlawfully copies, sells, displays or performs a copyright owner's work without their express permission. However, in some instances, copying a copyright owner's work without their permission is allowed. This is called the Fair Use exception. Specifically, an infringer of a copyright can argue Fair Use if they meet one of the following criteria:
1. the purpose and character of the use is for non-profit or non-commercial purposes;
2. the nature of the copyrighted work is artistic and benefits the public;
3. the amount and substantiality of the portion of the copy is minimal in relation to the copyrighted work as a whole; and
4. the effect of the copying upon the potential market for or value of the copyrighted work is minimal.
If Tennebaum's argument is successful, peer to peer file sharing may be considered legal and enjoy the same treatment as copying of television or cable shows for personal enjoyment. Currently, consumers can copy or record television or cable shows in their home as long as the recording is done for personal enjoyment and the recording is not re-broadcast or viewed by consumers for a fee.
It will be interesting to see how the judge rules this case. I will keep you posted.
I welcome your thoughts!
Thursday, October 9, 2008
Who Owns the Copyright to An Avatar: The Service Provider of the End User?
Hello!
As many of you know, I attended PLI's Intellectual Property Law Institute in San Francisco last week. Intellectual Property issues in Virtual Worlds was a hot topic. Stephen J. Davidson founder and principle of Davidson PLLC, gave a fascinating presentation on this subject. As a social media enthusist, I was particularly interested in the discussion on who owns the copyright in an Avatar created by the end user (customer) but the tools are provided by the service provider (Second Life, Disney's Toontown). Here is a brief outline of his presentation below:
1. Virtual Worlds such as Second Life do not require end users to relinquish their copyright rights. Plus they allow customers to create avatars and then license them. Thus, when you create avatars or other objects in these worlds, you are the rightful copyright owner and can sue an infringer for unlawful copying.
2. There are some virtual worlds such as Disney's Virtual Magic Kingdom, that require customers to reliniquish their copyrights when creating avatars and actually require the customer to license the avatar to the internet service provider.
3. Other service providers that provide avatar creation services, such as Logobama o8' and Ameriland Entertainment allow the customer to retain their lawful copyright and grant the service provider a royalty-free license to copy, distribute, use or display the avatars.
I am of the view that although an internet service provider may provide the tools for a customer to create an avatar, that creation is still the original idea and work of authorship of the customer. Thus a copyright does exist. However, just like in any other case, copyrights can be licensed, retained, and purchased by express written agreement. So when creating avatars make sure you read the terms of agreement of the service provider. You may create the avatar but the service provider may own it.
Monday, September 15, 2008
Practical Tips for Bloggers when protecting your copyrighted works.
Now for the bloggers out there. Use these practical tips to properly protect your copyrights on the internet.
1. Do place a copyright notice on your site. This will not stop individuals from stealing your work, but it may give them pause.
2. Use Copyscape. Copyscape will search the web for copies of your work on the internet. Having the DO NOT COPY widget on your blog will deter some infringers.
3. Register your copyrighted post with the US Copyright Office. I know you are thinking that registering every post will cost you a fortune especially if you have been blogging for more than a year. Well good news! The US Copyright Office will allow an applicant to register collections of works. So you can register your archives from a particular year as one collection. The cost to register a collection of works is the same $45 fee ($35 online) as it is to register one work. For example, you can register all of your posts from the year 2007 as one collection. Entitle the Collection, "My Blog Name, 2007 Collection."
4. Moving forward and if your budget allows, register small collections of your post every 90 days. This will ensure that you can go after a recent infringer within the 90 day time period in order to receive guaranteed federal monetary damages. Read about this 90 day rule here.
I hope this information was helpful. As always if you have any further questions please, contact me at lgivens@phillipsgivenslaw.com.
Friday, September 12, 2008
Pros and Cons of Registering your Copyright with the US Copyright Office
Hello!
Copyright protection is currently a huge issue on the internet. As a blogger, I hear many complaints from fellow bloggers that this site, publication, or individual used their blog material as their own without giving the original author (blogger) credit. This is very frustrating because writing is hard work and nothing is more deplorable than when someone takes credit for something you put your time and effort into. Below I am going to discuss some basic rules and principles of copyright law and then in my next post, I will give you some practical tips to protect your work on the internet.
A copyright owner is one who can prove that the work is an indepedent original creation. A copyright owner has the exclusive right to: 1) make the work, 2) copy the work, 3) sell and distribute copies, 4) make a derivative (book or movie) of the work, 5) perform the work publicly, and 6) display the work publicly. Any person who excercises any of the above 5 rights of the copyright owner, without the owner's permission, is a copyright infringer. 1976 U.S. Copyright Act.
Once an individual creates an independent original creation, that individual automatically owns a copyright. This copyright is obtained without registering the work with the Library of Congress, U.S. Copyright Office and is valid for the life of the copyright owner plus 70 years.U.S. Copyright Act. However, in order to file a copyright infringement action against an infringer and take advantage of certain remedies (resolutions) established by the federal government for those who are victims of copyright infringement, a copyright owner MUST register their original work with the US Copyright Office.
Remedies available to un-registered (US Copyright Office) copyright owners are the following:
1. Go to civil court to obtain an injunction (an order from the court) demanding that the infringer stop the infringement.
2. The copyright owner's actual damages (professional harm, revenue, etc.) from the infringment and any profits made by the infringer. However this has always been very hard to prove. It is well known in copyright practice this is nearly impossible to prove. So most copyright owners simply end up with an injunction and no monetary award. Attorneys fees may also be awarded.
Remedies available for registered works with the US Copyright Office:
1. Statutory Damages. Once you have established copyright infringement you can elect for statutory damages (monetary awards set by federal law that are automatically given to the copyright owner ) which are no less than $750 and up to $30,000. Also the winning party is awarded attorney fees and costs. So you do not have to prove loss revenue, harm, or gain of profits by the infringer. So essentially, if you register your copyright with the US Copyright Office, and you can prove copyright infringement, you are guaranteed to receive some monetary award. If your copyright is not registered, your likliehood of receiving any monetary award is very sketchy.
So it is very good practice to register your copyrighted works as soon as they are created. Why? Guaranteed statutory damages are only available to those who register their original material within 90 days of publication of the work or those who register before the infringement takes place. A copyright application only costs $45 ($35 on line) to file with the US Copyright Office. Plus you can complete the application and file it yourself. Click here for application information. Just make sure you read the instructions for completing the application thoroughly and complete it as instructed. You can hire an attorney to complete it for you, but you will have to pay legal fees and the application fee.
I hope this information was helpful. If you have any further questions or concerns, please email me.
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