Generic Fair Use

... where pop culture meets intellectual property law

Day: November 8, 2015 (page 1 of 2)

Patents, Copyrights and Trademarks Made Simple

[originally published November 5, 2015 at www.law-dlc.com]

Did you know that the Framers of the United States Constitution solidified the rights to copyrights and patents more than two years before the protection of freedom of speech?[1]  It is true.  The Constitution, signed on September 17, 1787, included the following specific provision:

Congress shall have the power to … promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.[2]

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Is Your Halloween Costume an Infringement?

[originally published on October 28, 2015 at www.law-dlc.com]

Halloween is on a Saturday this year.  I am anxious to see people of all ages walking around in full costume.  What a wonderful time of year.  Halloween is fun – and it brings out the creative side in almost everyone.  People will be dressed as superheroes, villains, cartoon characters, pop culture icons, scary monsters, and more.  But most of these costumes you will see represent characters that were created by someone else.

Is your Halloween costume infringing someone else’s intellectual property rights?

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My YouTube Cover Song is Legal, Right? (Well, maybe.)

[originally published on October 21, 2015 at www.law-dlc.com]

In August, Ryan Adams[1] announced his intentions to release song-by-song and nearly note-for-note cover of Taylor Swift’s “1989” album.[2]  He covered every single song and all of the same lyrics, just stripped down and re-recorded as a more guitar-based interpretation.[3]  It is a rather audacious project for an artist that is more of an indie musician than a pop star.  After the release of his covers album, many people asked me that all-too-common question:

How is that legal?  How is that not copyright infringement?

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The NFL will complain about your Vines (and GIFs)

[originally published on October 13, 2015 at www.law-dlc.com]

As a sports fan, Monday, October 12, 2015 was a strange and turbulent day.  USC fired Steve Sarkisian one day after asking him to take an administrative leave of absence (cue the employment lawyers).  Steve Spurrier, the head coach of the other USC – South Carolina – suddenly walked away and called it a career in mid-season.  Meanwhile, Texas Governor Greg Abbott congratulated the Astros on making the American League Championship Series when they were leading 6-2 in the eighth inning, only for the Royals to score five quick runs and turn me into a blubbering mess of a baseball fan.  Someone in the governor’s office forgot about Yogi Berra and “it ain’t over ‘til it’s over.”

Yet the craziest sports story of the entire day might be something that happened over social media.  In the mid-afternoon, the Twitter accounts for Deadspin (@Deadspin) and SB Nation’s GIF-based sub account (@SBNationGIF) were suddenly suspended.  The initial reasons were murky, with media reports later suggesting that the National Football League used its influence with Twitter to suspend the accounts.  And why?  Because the Deadspin account and the SBNationGIF account both routinely posted or re-tweeted Vines and GIFs of highlight plays from NFL games. Which are copyrighted works.

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Express Yourself! A Primer on the Types of U.S. Trademarks

[originally published on October 12, 2015 at www.law-dlc.com]

Trademarks are everywhere.  Everything from a well-known slogan by a shoe company, to a famous organizational logo, to the signature color scheme or uniform of a performer can be considered as a trademark.  Trademarks can take many different shapes and forms, each of which may be protected by U.S. law.  The key is what can (or should be) protected and what may be enforced as the intellectual property rights of an individual or entity.  U.S. trademark law allows for a multitude of ways to express yourself or identify your product to the consuming public.  In fact, the law encourages this!

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How are DraftKings and FanDuel even Legal in the United States?

[originally published October 6, 2015 on www.law-dlc.com]

If you regularly watch sports or have stumbled across ESPN in the last few months, you are certain to have seen the relentless advertising campaigns by the companies DraftKings and FanDuel.  These advertisements are promoting what is known as “Daily Fantasy Sports” or “DFS” for short.  Fantasy sports, specifically fantasy football, experienced exponential growth in the late 1990s and early 2000s, coinciding directly with increased access to the internet and websites that served to process sports stats and information.  Every major sports website now hosts thousands of fantasy leagues year-round, usually for free.  The interest in season-long fantasy sports crested in the latter parts of the last decade, with millions of Americans participating in fantasy leagues every year.  Some of these leagues also allow for the possibility of winning millions of dollars.  Real, actual money.

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Laches (Copyright) is Dead! Long Live Laches (Patent)!

[originally published October 2, 2015 on www.law-dlc.com]

In 2014, the United States Supreme Court effectively killed a long-standing affirmative defense to copyright infringement, the defense of “laches.”  See Petrella v. Metro-Goldwyn-Mayer, 134 S. Ct. 1962 (U.S. 2014).  Laches is essentially an alleged infringer’s defense to a “gotcha!” tactic by a rights holder who has delayed for many years in bringing suit to enforce those purported rights.  Laches is based on equitable principles that a substantially long delay in enforcing legal rights is likely to prejudice the adverse party.[1]  It is the judicial system’s way of saying “hey! That’s not fair!  We are not going to let you do that.”  Laches is available as a defense in many types of proceedings, not just intellectual property matters, but the intangible nature of IP rights lends itself more favorably to successfully invoking “laches” as a defense.

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What if Intellectual Property Rights Were Enforced in the World of “The Princess Bride”?

[originally published September 25, 2015 on www.law-dlc.com]

Have you ever watched a movie and wondered whether something cool in it could be patented?  Many movies, however, are set outside the United States.  Some are set in fantasy lands that would not recognize our system of laws.  Yet – what if?  What if, for example, the mythical country of Florin happened to adopt the laws of the United States as it applies to intellectual property rights?  Yes, Florin.  The homeland of Buttercup.  You know – The Princess Bride. What if the cowardly Prince Humperdinck recognized and enforced patent, trademark, copyright and trade secret concepts as seen in that movie?  Inconceivable, you say?  But what would that look like and what would be some examples?

[If you have never seen The Princess Bride, kindly stop reading and go watch it.  Now.  I do not think I can be friends with anyone who does not like this movie.]

I will skip the kissing parts and go right into the action and adventure.  Pirates are cool, right?  To the land of Florin we go!

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How Was “Happy Birthday” Still Protected as a Copyright?

[originally posted September 23, 2015 at www.law-dlc.com]

By now it is likely you have seen the news story.  On Tuesday, September 22, 2015, Judge George H. King, in the United States District Court for the Central District of California, ruled that Warner/Chappell, the publishing arm of Warner Music, did not have the right to enforce its claims in the copyright for the ubiquitous lyrics to the song “Happy Birthday.”  The legal implications are that the song lyrics may be in the public domain and free to use by all.

The question many of you likely also have is “how was ‘Happy Birthday’ still subject to a copyright after all these years?”  It can be somewhat complicated.

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Not Even Rick Ross is Allowed to Copyright a Word or Phrase

[originally published September 18, 2015 on www.law-dlc.com]

In January 2014, Rick Ross sued LMFAO for copyright infringement over their use of lyrics from their song “Party Rock Anthem.” In particular, Ross claims that LMFAO are infringing on his copyright in the phrase “Everyday I’m hustlin’” which is a phrase Ross claims originally appeared in his song “Hustlin’.” LMFAO modified the lyric to “Everyday I’m shufflin’” and also began selling t–shirts and clothing bearing the same phrase. Rick Ross apparently was not amused by this apparent derivative work.

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