The song is cute. The video is cute. The point is valid. Those who own trademarks that are entering the general lexicon should take heed.
According to a post by Heather Hummel on the Huffington Post’s blog:
Last spring when I discovered eight of my own images had been copyright infringed, I became particularly passionate about the legal rights of artists. I was fortunate that I had done a few things to help with protecting my work. One step was including a copyright statement, which is clearly stated, on my website. But, the most important step I took was not only registering my copyrights, but doing so in a timely manner. As such, several of my images that were stolen had already been registered with the U.S. Copyright Officeupon infringement. I can attest that it was worth the few pennies per image to do so.
For example, the fee for me to register 184 photos for 2013 and 134 photos for 2014 was $55 per batch.
This photographer registered copyright in her photographs by batching her photos and registering as a collection (the Copyright Office’s term is “collection,” not “batch”). This is a perfectly viable way to register copyright. It is cost-effective and it has teeth.
A copyright infringement award is based on the percentage of the copyrighted work that is infringed. If the photographer registers only one or a very few photos in each registration and eats the $55/registration package fee, the percentage of the work that is infringed increases, here potentially by 100-fold or more.
Look at it this way. If you register 100 photos in one collection and someone infringes one of those photos, your maximum infringed percentage is 1%. Your recovery is 1% of the maximum recovery allowed for that infringement. If, though, you register 10 photos in one batch, your maximum infringed percentage is 10% and your potential recovery increases by a factor of 10. If you register each photo individually, your infringed percentage is potentially 100% and your recovery increases by a factor of 100.
It’s a trade-off, though; many photographers don’t want to spend $55 to register each and every photo; that simply gets cost-prohibitive very quickly. And that’s okay, as long as each photographer understands that the potential recovery for infringement goes down with increasing numbers of photos in the collection.
SCOTUS handed down a HUGE trademark decision yesterday.
Matal v. Tam declares the language of 15 USC 1052(a), which prevents the registration of marks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead” to be unconstitutional under the First Amendment’s Free Speech clause.
This opens up a whole new world of potential trademark registrations.
This is pretty cool.
The Free Law Project is working to make available in one place all the free materials available on PACER. That includes opinions and orders from every federal court in the nation.
“Public Access to Court Electronic Records (PACER) is an electronic public access service that allows users to obtain case and docket information online from federal appellate, district, and bankruptcy courts, and the PACER Case Locator. PACER is provided by the Federal Judiciary in keeping with its commitment to providing public access to court information via a centralized service.” Note that the information is “public” access, not “free” access. Many documents on PACER require payment (at the whopping rate of $0.10/page, which can add up pretty fast if you’re talking about briefs and pleadings and motions and all the rest of it). The paid pages will not be available through the Free Law Project, but it will be easier to access the many opinions and orders that are available on PACER for free.
The patent world is full of technologies that support the Earth. From solar panels to ever-more-efficient batteries to new recycling technologies, inventors throughout the USA are working to protect our environment.
Even the oil and gas industry have worked, at least a little, to help keep things cleaner. According to www.oilprice.com:
Oil companies, working alongside environmental organizations, scientists, biologists and engineers have developed numerous solutions for spills occurring both on land and in the water. Water spills can now effectively be cleaned by presses that involve straining and draining while containing the oil slick, using “floating booms” to corral the oil while skimmers and vacuum pumps cleanse the water and reclaim large percentages of the spilled oil.
Another “eco-friendly” oil spill management method for both water and land spills is called “Bio-Remediation. It’s a technique that uses living organisms such as bacteria and fungi to degrade, break down and in some cases; actually eat the oil as it safely cleanses the spill without hurting the environment. Meanwhile, serious upgrading of the technology now being used for the drilling and refining of oil is cutting previous pollution levels down tremendously, as the oil industry increases profits by processing more usable oil while polluting a lot less.
Oil companies are now investing billions of dollars in socially responsible programs and are quickly becoming one of the largest supporters of environmentally friendly programs worldwide. Oil is already largely responsible for many of the major advances in medicine, pharmacology and world wide health care infrastructure, but now they are some of the largest supporters of research dedicated to promoting renewable energy sources.
This text was written in 2009; whether it remains true in the new administration or not is questionable. Our current administration is not friendly toward our planet, and that fact needs to be mitigated through strong Congressional action that puts into statute environmental protections which have, up until now, been administrative.
So, along with lobbying for science, we need to lobby for statutory control of air pollutants, water pollutants, increased use of green energy sources, and all the rest of the stuff formerly regulated by the Environmental Protection Agency. There is so very much technology out there already to support an eco-friendly country … we just need to have the backing of the government to continue to develop and use it.
Star Athletica, L.L.C. v. Varsity Brands, Inc., et al., 580 US ___, a newly (22 March 2017) decided copyright case, finds that the design elements of a cheerleading outfit can be covered by copyright.
According to the syllabus of the case, SCOTUS holds: “A feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated. That test is satisfied here.”
This case is interesting because it tells us where lies the line between industrial design, which is not protected by copyright (it may be protected by patent), and artistic design, which is. Courts have disagreed where that line lies.
Here, the District Court held that the designs did not qualify for protection under copyright because the designs served the useful purpose of identifying the outfits as “cheerleading uniforms.” The designs are therefore utilitarian, cannot be separated out to stand on their own, and therefore cannot be protected by copyright (you can read the District Court’s opinion at 2014 WL 819422 (WD Tenn., Mar. 1, 2014)).
The US Court of Appeals for the Sixth Circuit disagreed; they held, with one dissent that upheld the District Court’s opinion, that the graphic designs are indeed “separately identifiable” because a cheerleading costume without design is still identifiable as a cheerleading costume, so the graphics on such a garment can indeed be separated out and separately displayed and are thus protectable under copyright (read the 6th Circuit’s opinion at 799 F. 3d 468, 471 (2015)).
The Supreme Court affirms the 6th Circuit.
So what does this case teach us? We now know that designs on clothing CAN be separated out from the clothing, making the design on the clothing, even if the design relates to the function of the clothing, protectable under copyright.
We know that “The statute … provides that the “design of a useful article” can include two-dimensional “pictorial” and “graphic” features, and separability analysis applies to those features just as it does to three-dimensional “sculptural” features.”
We know that “…a feature of the design of a useful article is eligible for copyright if, when identified and imagined apart from the useful article, it would qualify as a pictorial, graphic, or sculptural work either on its own or when fixed in some other tangible medium.”
Copyright remains one of the most case-by-case determinations around. The findings of this case have yet to be tested on utilitarian items other than clothing; we’ll watch this with some interest to see what, if anything, happens.
“The U.S. Copyright Office has published a Federal Register notice extending the deadlines for public comment in connection with the Office’s study on the moral rights of attribution and integrity. Public comments are now due no later than 11:59 p.m. Eastern time on March 30, 2017, and reply comments are now due no later than 11:59 p.m. Eastern time on May 15, 2017.”
For more information, click here to visit copyright.gov
So … what are “moral rights”?
Moral rights provide an author with the ability to control the eventual fate of their works. In the US, these rights are limited to visual arts (other countries allow other, more general, moral rights). You can find the statute at 17 USC 106A, commonly called the Visual Artists Rights Act of 1990 (VARA). Under VARA, an artist has the right to control the use of his/her name in connection with a work (including NOT using his/her name in connection with works s/he did not create), prevent the use of his/her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation, prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
For an example of how moral rights work, say you bought a painting by a famous artist working today. This artist is known for his/her French landscapes in the style of Monet; very peaceful, very verdant, very proper. Your idiot stepson, whom you never liked, then decides to spray paint graphic obscenities on the work. The artist, although you actually own the work, can now dissociate him/herself from that work; thus, the work can no longer be sold under Artist’s name with the obscene spray painting. You thus no longer own a work by Artist; if Artist’s name adds value to the work, your painting has just plummeted in value even more than it did with the addition of spray paint.
“The [US Copyright] Office is commencing its study to review how existing U.S. law, including provisions found in Title 17 of the U.S. Code and other federal and state laws, protects the moral rights of attribution and integrity and whether any additional protection is advisable in this area. To support this effort and provide thorough assistance to Congress, the Office is seeking public input on a number of questions. “
The snow is falling thick and fast as I write this. The roads are terrible; accidents abound on the highways and the back roads around Clifton Park, NY.
The net result of this, of course, is that the office is CLOSED on Monday, 13 February 2017.
Home Free, an a cappella singing group, put out this beautiful rendition of “Angels We Have Heard On High” a couple of years ago.
The basic song itself, melody and words, is in the public domain. Anyone can perform “Angels We Have Heard On High” anytime without paying any royalties to anybody. Home Free is thus … well, home free as they perform this lovely piece.
However, the melody and words are just one layer of the rights involved here.
- Someone wrote the harmonies we hear in the video. That person has copyright in the music of the harmonies they composed.
- The group performed the song. They have copyright in their performance.
- There was a sound engineer who did some mixing here. That sound engineer has copyright in the sound mixing s/he did to produce this video.
- There was a videographer who did the camera work for the video. That videographer has copyright in the video s/he did to produce this video.
- Finally, someone holds copyright in the final production as a whole.
There are lots and lots of layers and stakeholders in a video performance copyright.
Have a joyous holiday season!
The franchisee who developed and named the Big Mac died on Monday night. Jim Delligatti, an early franchisee of Ray Croc’s, ran several McDonald’s in the Pittsburgh area (he ended up with nearly 50 stores). The first Big Mac sold in Mr. Delligatti’s restaurant on McKnight Road in Ross Township for $0.45 … that’s right, the first Big Macs sold for 45 cents.
Ray Croc and his business advisors must have seen the genius of that sandwich and McDonald’s ran with it. All those “two all-beef patties, special sauce, lettuce, cheese, pickles, onions on a sesame seed bun” started in Pittsburgh and went franchise-wide in 1968.
Mr. Delligatti was 98.