As is widely known and cared about throughout the tiny, sheltered world of copyright enthusiasts, today is the final day of Fair Use Week, “an annual celebration held the last week of February” that “celebrates the important doctrines of fair use in the United States and fair dealing in Canada and other jurisdictions.” The doctrines of fair use and fair dealing are, in the words of the official Fair Use Week website, “essential limitations and exceptions to copyright, allowing the use of copyrighted materials without permission from the copyright holder under certain circumstances.” In the U.S., fair use is codified in Section 107 of the Copyright Act, which provides that “the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” Section 107 further provides that, “[i]n determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” The four factors are analyzed by the courts on a case-by-case basis, and there is no bright-line rule as to whether a particular use of copyrighted material is a fair use. However, to help prospective fair users navigate the murky legal waters, the Fair Use Week website has published a handy infographic to explain the “Fair Use Fundamentals.” See the infographic here, and the Fair Use Week website here. Reposted from Fair Use Week.
Rolling Stone reports that actress and singer Scarlett Johansson’s new band, The Singles, has received a cease and desist letter from an old band, The Singles, unsurprisingly alleging trademark infringement. According to Vincent Frederick, frontman of the old Singles, his group has been using the Singles name for sixteen years, whereas Johansson’s group debuted just this month. Unmentioned in the article is the fact that Johansson’s band owns a pending U.S. trademark application, filed in 2012, for the mark THE SINGLES. Frederick’s group can likely claim common law trademark rights in its name, but the group does not appear to have taken any steps to secure formal trademark registration of its name. If the earlier group had registered THE SINGLES as a trademark sixteen years ago, the registration would now be incontestable, and would likely have prevented the newer group’s application from even passing the substantive examination stage. An incontestable registration would also be a considerably more formidable weapon against Johansson’s band, or any other junior user of THE SINGLES as a band name.
This story serves as a cautionary example of why bands and other performers should always formally register their stage names as trademarks at the earliest opportunity, as well as why performers should always conduct a full trademark search prior to adopting a stage name. Registration also confers exclusive rights to the mark throughout the United States, which makes it possible for a band that, for example, only performs in California and Nevada to prevent the use of a confusingly similar name by another band that only performs in New York and New Jersey. Many, if not most musicians understand the importance of copyright law to a successful musical career, but far fewer appear to fully appreciate the critical role that trademark law can play in protecting their professional identities, reputations, and livelihoods. Read the full article here, and listen to Johansson's new single here. Reposted from Rolling Stone.
World Intellectual Property Review reports that “[t]he heirs to reggae singer Bob Marley’s estate have won an appeal in a long-fought intellectual property battle, meaning they can now stop a t-shirt maker from using the late star’s likeness without their permission.” The U.S. Court of Appeals for the Ninth Circuit upheld a district court ruling against clothing company A.V.E.L.A., holding that the company violated the Lanham Act by and Nevada state law because, in the Court’s words, “they (a) used Marley’s image (b) on their t-shirts and other merchandise, (c) in a manner likely to cause confusion as to plaintiffs’ sponsorship or approval of these t-shirts and other merchandise.” The Court awarded plaintiff Fifty-Six Hope Road Music, which is owned by Marley’s heirs and manages his rights, more than $2.5 million in damages, lost profits, and attorneys’ fees. Marley’s heirs filed the suit in 2008, but their appellate win shows that they were not waiting in vain, and they are no doubt jamming to a redemption song right about now. Satisfy your soul by reading the full article here, and the Court’s opinion here. Reposted from World Intellectual Property Review.
On February 24, 1908, the U.S. Supreme Court held in White-Smith Music Publishing Co. v. Apollo Co. that perforated piano rolls are not copies of works. Congress responded by introducing a nonexclusive right for copyright owners to make and distribute mechanical reproductions of their nondramatic musical works. Reposted from the History of Copyright Timeline at the U.S. Copyright Office.
The Guardian has an interesting piece about Google vice president and Internet Hall of Fame inductee Vint Cerf and his advocacy for the preservation of our digital history. Speaking at the annual meeting of the American Association for the Advancement of Science, Cerf warned about the prospect of a “forgotten generation, or even a forgotten century” due to “bit rot,” the loss of access to digital data from the degradation or destruction of physical media, the obsolescence and consequent disappearance of compatible software and hardware needed to access the data, and the legal barriers that stand in the way of efforts to preserve and archive important documents and creative works. One of the most significant legal barriers is current copyright law, which often serves to prevent would-be archivists from making archival copies of protected works. Such works may have historical or cultural significance, yet are being allowed to degrade or become inaccessible through neglect by the owners of the works, and being prevented by copyright law from archival preservation by others. Moreover, the vast number of files and documents in the personal digital histories of individuals are frequently stored on degradable or obsolete media, and have a high risk of falling into an “information black hole.” As Cerf states, “[w]hen you think about the quantity of documentation from our daily lives that is captured in digital form, like our interactions by email, people’s tweets, and all of the world wide web, it’s clear that we stand to lose an awful lot of our history” to bit rot. Cerf’s proposed solution has two parts. First, we need to develop a form of “digital vellum” that will allow people to preserve and access obsolete files, no matter how old. Second, we need to incorporate the rights of preservation “into our thinking about things like copyright and patents and licensing.” Read the full article here. Reposted from The Guardian.
On February 19, 1897, a government appropriations bill established the Copyright Office as a separate department within the Library of Congress and created the position of Register of Copyrights. Before the Library’s Jefferson Building opened the same year, an unceasing flow of deposits piled up in cramped Library quarters.
For those who seek to integrate legal issues into every single facet of their lives and become one with the law, the Trademark & Copyright Law Blog has selflessly posted “An Oscar-Time Guide to ‘Best Picture’ Intellectual Property Litigation.” This indispensable resource answers the call of our nation’s twin obsessions, the Academy Awards and preliminary injunctions, and should be considered required reading for anyone who has ever seen an Oscar-winning film. Read the full article here, and you’ll never look at movies the same way.
Reposted from the Trademark & Copyright Law Blog.
World Trademark Review reports that brand valuation firm Brand Finance has released its annual Global 500 report for 2015. The report ranks the 500 most valuable global brands, according to the firm’s assessments, and also the world’s 12 most powerful brands. Apple maintains its perch at the top of the list, with an estimated brand valuation of $128.3 billion, over 50% more than the next most valuable brand on the list, Samsung, which earned a mere $81.7 billion brand valuation. Rounding out the top ten are Google, Microsoft, Verizon, AT&T, Amazon, GE, China Mobile, and Walmart. The most powerful brand in the world is Lego, beating out PWC, Red Bull, Unilever, McKinsey & Co., Burberry, Rolex, L’Oréal, Coca-Cola, Ferrari, Nike, and Disney for the top spot—as the report explains, “Lego’s appeal spans generations; as well as the creative freedom it gives children, the brand appeals to the nostalgia of adults.” The competition is fierce, so take heed, brand owners—if you want your brand or business name to conquer the world, you’d better make sure that it’s properly protected as a trademark. Read the full article here, and the Global 500 report here.
Music from the Mother Church, registered by the Christian Science Publishing Society, is among several sound recording registrations entered on February 16, 1972, the day after federal copyright protection was extended to new sound recordings.
On February 15, 1972, Congress extended federal protection to sound recordings fixed and first published on or after that date. Recordings fixed earlier remained under the protection of state laws.
Friday the 13th is considered by many people to be one of the unluckiest days of the year, and some of the more superstitious among us are fearful of even leaving their homes on such a portentous day. Well, thanks to the Sierra Nevada Brewing Company and the well-established scientific principle that alcohol = liquid courage (and that any day that includes beer can’t be all bad), a frothy libation now exists that is undoubtedly up to the task of turning a superstitious frown upside down—RYEDAY the 13th®. The company’s flagrant and fearless Friday flaunting brings a much-needed measure of mirth to an otherwise woeful day, and if anyone can conceive of a better omen than the recent granting of U.S. Trademark Registration No. 4649156 for the RYEDAY THE 13th mark, this author would like to hear about it. So come out from under those bedcovers, head to the nearest liquor store, and celebrate Friday with a RYEDAY. Just be careful not to break the bottle as you step under the ladder to avoid that black cat.
Variety reports that the ecosystem of online copyright infringement is evolving from downloading to streaming as a means of distributing pirated content, according to a new report from the Digital Citizens Alliance, a self-described “coalition of consumers, businesses, and Internet experts focused on educating the public and policymakers on the threats people from all walks of life face on the Internet.” A shift from downloading to streaming has many potential ramifications for digital copyright enforcement, which has historically been based on the ability to trace infringing files back to a specific location, such as a server or personal computer. In order to detect infringing content by that means, the content has to be stored on a more than a transitory basis (i.e., downloaded). A streaming model, by contrast, delivers content in an ephemeral manner, and does not require a transfer of content from one location to another—when a stream ends, the content simply disappears. An additional issue with streaming is that the streaming location can easily be moved to a different server, or even a hacked server operated by an unwitting third party. Both of these issues understandably make tracing and enforcement efforts more difficult, and can implicate innocent third parties that are unknowingly trafficking infringing content from their hacked computers. Read the full article here.
Reposted from Variety.
Timberlake Law’s Trademarks Are Magic blog has a rundown of “This Week in Katy Perry Trademark Filings.” Perry’s company, Killer Queen LLC, filed five intent-to-use U.S. trademark applications on February 6, 2015, just five days after Perry is alleged to have performed at some televised sporting event in Arizona, for the marks LEFT SHARK, RIGHT SHARK, DRUNK SHARK, BASKING SHARK, and the design of a friendly blue fish-like creature that was featured onstage with Perry during said alleged performance. All five applications cover “cell phone covers, stickers, mugs, t-shirts, sweatshirts, hats, costumes, plush toys, action figures, figurines, and live musical and dance performances.” Interestingly, while four of the newly-filed applications remain pending, the design application for the fish creatures was expressly abandoned by Perry’s company on February 10, 2015. Although no reason was given for the express abandonment, one suspects that it may have something to do with a pending dispute over ownership of the design in question. Read the full article here.
Reposted from Trademarks Are Magic.
The Hill reports that the Senate Judiciary Committee could vote on President Obama’s nominee to head the U.S. Patent and Trademark Office as soon as Thursday of this week. The nominee, Michelle K. Lee, is currently the Deputy Director of the USPTO, but has been serving as the acting director since January 2013. Lee has already testified twice before the Judiciary Committee, and is expected to win confirmation to the Director’s post with little opposition. Approval of her nomination by the Judiciary Committee will send Lee’s nomination to the full Senate for an up-or-down vote. Read the full article here, and an earlier post on this subject here.
Reposted from The Hill.
An article at World Trademark Review sheds further light on the “[furor] surrounding trademark applications filed by pop star Taylor Swift,” and how it exemplifies “the confused and inaccurate reporting of trademark law in the media” (see an earlier post on this subject here). In addition to the media’s interchangeable and apparently synonymous use of trademarks, copyrights, and patents when discussing any form of intellectual property, the coverage has incited a public backlash against “what is, in reality, normal practice for any individual or [organization] selling merchandise.” Swift is “not actually seeking to trademark lyrics,” which is not permissible under current trademark law, but rather “is using, or planning to use, phrases in connection with merchandise that she already sells, and those phrases happen to be associated with her songs.” The article laments the “false impression to the public of a [monopolization] of the English language” that the media coverage has fostered, and notes that “Swift is certainly not acting unusually in her brand protection strategy”—Kanye West’s 337 trademark applications number nearly three times as many as Swift’s 121, and numerous other famous pop artists have similarly applied for dozens of trademarks for various types of products and services. Unfortunately, the damage may already be done—the media coverage has already “sparked possibly the first trademark protest song,” aptly titled “This Sick Beat” by the “avant-garde metal artist Peculate.” Read the full article here, and hear Peculate’s protest song here.
An article from PetaPixel illustrates a fundamental but sometimes misunderstood principle of copyright law: copyright infringement requires copying. Unlike trademarks and patents, which can be infringed regardless of whether the infringer is aware of their existence, copyrights can only be infringed if the infringer has access to the copyrighted work and engages in actual copying of the work. As such, an independently created work of authorship, by a person (or more than one person) who has never seen the work alleged to be infringed, cannot give rise to a copyright infringement claim, even if the independently created work is very similar or even identical to the allegedly infringed work. Unsurprisingly, the independent creation of two essentially identical works of authorship by two different authors rarely occurs, and most works of authorship that are essentially identical to existing works result from copying. However, “rarely” does not mean “never.”
As the article reports, a UK-based photographer named Sarah Scurr was accused in 2015 of copyright infringement for a 2006 photograph of an iceberg off the coast of Chile that she entered in a photo competition in 2009. The accuser, Chilean photographer Marisol Ortiz Elfeldt, alleged that Scurr had taken one of her photographs, edited it, and submitted it to the competition. The sponsor of the competition compared and analyzed the original images from both photographers, which to the unaided eye appear to have come from the same original image. However, upon closer examination, slight differences were detectable in the perspectives of the two images, leading the sponsor to conclude that “the two women captured nearly identical photographs of the same scene at roughly the same moment and from roughly the same vantage point,” which “lead to the remarkable conclusion that the two women were standing beside one another when they took the same photo just seconds apart.” No copying, no infringement. Apparently, it happens. Read the full article and compare the two images here.
Reposted from PetaPixel.
The Telegraph reports that UK-based luxury car maker Aston Martin Lagonda is suing one of its suppliers, design firm Envisage Group, for trademark, copyright, and design infringement. Envisage used to provide design services to Aston Martin, but began designing and producing its own line of cars last year. Aston Martin alleges that Envisage has misappropriated several design elements from its own iconic designs, including designs of wheels and headlights. The suit also alleges that Envisage is using a logo that is “identical” to the famous winged logo that has appeared on Aston Martin cars for more than eighty years, in “a clear exploitation on the coat-tails of the Aston Martin Lagonda trademarks.” Aston Martin cars are most famous for being the cars of choice for a certain fictional British spy, and have appeared in eleven James Bond films dating back to the 1960s. Read the full article here.
Reposted from the Telegraph.
The European Union’s Office for Harmonization in the Internal Market (OHIM) reports that the first set of its updated Guidelines entered into force on February 1, 2015. The updated Guidelines, adopted by OHIM on December 4, 2014, serve as a manual of OHIM office practices and procedures relating to trademarks and community designs. The second set of updates is due to be released in mid-2015, at which point the current cycle of revision will be complete. Read the full article here, and the updated trademark Guidelines here.
Reposted from OHIM.