What do recent headlines about tattoos, video games, and my favorite Katy Perry song have in common? The articles contain interesting lessons from the always complicated, but never dull (to me) world of intellectual property law. Let’s dive in:
Athletes Don’t Own Their Tattoos. That’s a Problem for Video Game Developers (The New York Times)
Copyright registration with the United States Copyright Office is a precondition to filing a copyright infringement lawsuit, however until earlier this month, there was a split as to when registration actually occurs. In Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, the United States Supreme Court unanimously held that registration occurs when the Copyright Office registers a copyright. The alternative view was that registration occurs when a copyright owners submits a proper application to the Copyright Office. Therefore, you must have a copyright registration certificate from the Copyright Office before filing a lawsuit for copyright infringement.
Continue Reading When Can You Sue for Copyright Infringement?
One of my primary fitness activities this past winter has been riding our Peloton bike. Workouts on the bike are always interesting because Peloton has numerous great instructors, varied ride types for all skill levels, and great music. You may have seen in the news earlier this week that Peloton is being sued for using music without permission in its video fitness classes. The lawsuit was filed by a group of several music publishing groups, claiming that Peloton does not have licenses in place for more than 1,000 songs owned or administered by the groups over a period of years.
As an attorney that works with both businesses that use others’ intellectual property and creators of intellectual property, music licensing and other types of intellectual property licensing is a commonly misunderstood issue. Songs are protected by copyright law, which grants exclusive rights to the owner of the song. If you don’t own the copyright, you need a license from the copyright holder in order to legally play their songs. Small businesses that play music for their customers are no exception to this rule; in fact, they are often the target of litigation when they ignore these obligations.
Continue Reading Peloton’s Cautionary Tale: Music Licensing and Your Business
Earlier this month my wife and I traveled to Barcelona, Spain and I posted some of the highlights from our trip on Instagram. On the last day of our trip, we traveled just outside the city to Montserrat, which features a monastery and some incredible views.
After I returned to the US, I received a notification that I’d been tagged in a photo from an account I didn’t recognize. I opened the notification, and here’s what I found:
Another account had copied my photo, and in the description included a copyright symbol next to my username. I quickly reviewed the other posts from the account, and every other image was accompanied by a similar description.
This practice is called “content curation”, and while relatively common on Instagram and other social media sites, it doesn’t eliminate the risks of running afoul of the individual site’s terms of service, or subjecting the curator to liability for intellectual property infringement. Consequences for these types of violations include removal of the content, getting your account temporarily or permanently suspended, to an intellectual property infringement lawsuit with the potential for significant financial penalties.
So what’s the problem? The other account gave attribution, that makes it ok right?
Continue Reading Protecting Your Intellectual Property on Instagram
A federal court case involving who has the exclusive rights to a selfie taken by a monkey has settled. As mentioned in Part 4 of my series on Intellectual Property Law Basics, at the trial court level, a federal judge determined that animals cannot own copyrights. People for the Ethical Treatment of Animals (PETA) appealed the ruling to the 9th Circuit Court of Appeals, but reached an agreement with the photographer, David Slater to settle the lawsuit prior to a ruling on the appeal.
The basis for the photographer’s claim to the rights associated with the photo is that he engineered the photo using his camera and that since copyright law does not recognize ownership rights by an animal, the exclusive rights associated with the image are owned by the photographer’s company. The settlement reportedly requires that the photographer agrees to donate 25% of any future revenue of the images to charities that protect crested macaques (the species of monkey that took the selfie).
Continue Reading Copyright Update: Monkey See, Monkey Settle
This is the final installment of a four-part series on the basics of intellectual property law. The goal of this series is to provide individuals and business owners with a primer on the different types of intellectual property in the United States, including patents, trade secrets, trademarks and copyrights. The previous posts in the series include the introduction, a discussion of patents and trade secrets and trademarks.
Copyright can be a tricky subject, but having an understanding of a few general rules can go a long way. Let’s start with a hypothetical:
In May, I went to Colorado to visit my friend Andrew. We went on a hiking trip with a few other friends and Andrew’s dog, Bear. Andrew has trained Bear well to out-hike us all, and to look good doing it. Sensing a great photo opportunity, Bear sat stoically on a rock with a backdrop of the Rocky Mountains. Andrew hands me his iPhone, and I take the following photo:
Who owns this photo? Andrew? Me? Bear? Read on to find out how copyright law applies to this photo and certain other creative works.
Continue Reading IP Law Basics Part 4 – Copyright
This is part three of a four-part series on the basics of intellectual property law. The goal of this series is to provide individuals and business owners with a primer on the different types of intellectual property in the United States, including patents, trade secrets, trademarks and copyrights. The previous posts in the series include the introduction and a discussion of patents and trade secrets.
Trademark protects words, phrases and symbols that identify the source of goods or services
Trademark law protects companies as they develop brand recognition with a particular word, slogan or logo when used in connection with goods or services. In order to be protectable, a trademark must be distinctive, which is determined on a sliding scale by the United States Patent and Trademark Office (USPTO). Examples of trademarks include Nike Inc.’s use of the following marks when used in connection with clothing, shoes and various other goods and services: the name “Nike”, the Nike “Swoosh” logo and the slogan “Just Do It.”
Continue Reading IP Law Basics Part 3 – Trademark
This is part two of a four-part series on the basics of intellectual property law. The goal of this series is to provide individuals and business owners with a primer on the different types of intellectual property in the United States, including patents, trade secrets, trademarks and copyrights. For the introduction to the series, click here.
Patents (and sometimes trade secrets) protect inventions and discoveries
A patent creates a legal monopoly on the right to use that particular invention or discovery within the United States for a limited amount of time.
Continue Reading IP Law Basics Part 2 – Patents and Trade Secrets
You may have heard the term “intellectual property” (IP for short), but do you know what intellectual property is? The World Intellectual Property Organization defines intellectual property as “creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.”
Continue Reading IP Law Basics Part 1 – What is Intellectual Property?
Is your business posting images on a social media account or on a website or blog as a part of your marketing strategy? If so, make sure you have the appropriate permission to post the images to avoid the prospect of a threatening letter (or worse) for a claim of copyright infringement.