I have a great idea for a tee-shirt!!!

Tee-Shirt Trademarks I have a great idea for a tee-shirt - can I register it as a trademark??? Short answer - probably not.  The main issue with whether a slogan or word  operates as trademark is how it is used.   This is especially true of tee-shirts. If the mark / slogan is just printed on a shirt – no protection – the Trademark Office deems that as being “merely ornamental” (there is an exception when the mark is also used for other products or business name).  However if the mark / slogan is also used to identify the tee-shirt company, it may serve as a trademark and be registered (i.e. it is a “source identifier”) – the only caveat is that you would need to show it being used in that manner rather than just emblazoned on the front.  Showing the mark this way can be done be showing the phrase on things like the name of an online store, packaging, an inside-tag,...
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You Own Devices Act proposed

You Own Devices Act Congressman Blake Farenthold (R-TX) recently reintroduced to committee H.R.862, You Own Devices Act (YODA), to amend title 17, United States Code.  If enacted, the bill will provide that the first sale doctrine applies to any computer program that enables a machine or other product to operate.  https://www.govtrack.us/congress/bills/113/hr5586/text  Expect opposition to come from...
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Copyright Office Releases Comprehensive Music Licensing Study

LOC NewsNet Issue 567 February 5, 2015 Copyright Office Releases Comprehensive Music Licensing Study The U.S. Copyright Office has released a comprehensive study, “Copyright and the Music Marketplace,” detailing the aging music licensing framework as well as the ever-evolving needs of those who create and invest in music in the twenty-first century. In addition to providing an exhaustive review of the existing system, the report makes a number of recommendations that would bring both clarity and relief to songwriters, artists, publishers, record labels, and digital delivery services. “Few would dispute that music is culturally essential and economically important to the world we live in,” said Maria A. Pallante, Register of Copyrights, “but the reality is that both music creators and the innovators who support them are increasingly doing business in legal quicksand. As this report makes clear, this state of affairs neither furthers the copyright law nor befits a nation as creative as the United States.” There is broad consensus across the music industry on...
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Copyright Office Announces Public Roundtable Discussions for Music Licensing Study

From the United States Copyright Office NewsNet 542 May 5, 2014 The U.S. Copyright Office will hold a series of public roundtables to gather input for its music licensing study. The roundtables will take place in Nashville, Tennessee on June 4 and 5, 2014, in Los Angeles, California, on June 16 and 17, 2014, and in New York, New York, on June 23 and 24, 2014. The roundtables will offer an opportunity for interested parties to comment on the music licensing issues set forth in the Notice of Inquiry issued by the Office on March 17, 2014. Those seeking to participate in the roundtables should complete and submit the online form. Requests to participate must be received by the Copyright Office by May 20, 2014....
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Pied Piper’s Trademark Problems

On a recent episode of HBO's new show Silicon Valley, the hapless coders find themselves in a bind when they realize that the "placeholder" company name "Pied Piper, Inc." was already in use by Pied Piper Irrigation, another California company. The problem is that they received a check from a venture capitalist in the name of the Pied Piper Inc. - humorous situations then ensue as the protagonist tries solve the problem - and then, I began ranting at the television to the chagrin of my wife. Why, you might ask, does this drive me crazy? Not because it is a common and overused plot point, but more notable because it gets both state registration laws and trademark laws completely wrong by muddling the laws of business registrations and trademarks. Someone already registered my business' trade name - what do I? A trade name is the name used to identify the business. States have varying restrictions on...
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The Vivian Maier Dilemma

Vivian Maier (February 1, 1926 – April 21, 2009) was a nanny living in Chicago and New York during the 50's and 60's.  She was also a photographer whose work involved sizable numbers of photos taken of street scenes.  She was not publicly recognized as an artist until after her death and upon the discovery/purchase of her storage locker which contained over 150,000 unprinted negative, hundreds of rolls of un-developed rolls, along with a few thousand that had  been printed (leaving open the question of what she wanted produced).  Subsequently, the negatives were acquired by a handful of entrepreneurs, and select works are now being exhibited and sold as prints.  What is left out of this story is that she died largely without funds of her own, and that she died without any heirs.   The storage locker was sold because no one paid the storage fees.  So who owns the copyright in these photos? Vivian died in Illinois a couple...
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Authors Guild v. Google

After eight years of a trail and the appeals process, on Nov. 14, 2013, U.S. Court of Appeals Judge, Denny Chin, dismissed a suit by the Author's Guild against Google for its’ digital scanning project where they began scanning millions of books and making snippets (not full books) available in its search results. His full opinion can be read here. The Author’s Guild has filed an appeal. The Author's Guild claim is that this scanning alone violates those authors’ copyright. Google's defense -- the one that Judge Chin agreed with -- was that it fell within the scope of Fair Use. Chin says in his opinion that, "...Google Books provide significant public benefits." Section 107 of Title 17 of the U.S. Code determines the nature of Fair Use. Fair Use allows for the use of copyrighted material for a variety of purposes -- education, criticism, research, etc. The most relevant portion of the criterion to be met in this case was...
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Garcia v. Google, Inc.

Garcia v. Google, Inc. “While answering a casting call for a low-budget amateur film doesn’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa.” is the mild understatement of the Appeals court decision in Garcia v. Google, a case rooted in the anti-Islamic “film” that sparked riots in the middle east a few years back. Ms. Garcia was one of the unfortunate soles who was originally hired to act in what seemed like a vanity project of Mark Basseley Youssef. The film project was originally entitled “Desert Warrior” and while it is not clear what it was originally about, what is known is that the footage was reedited and dubbed over with new dialogue. The resulting project was entitled “Innocence of Muslims,” and the reaction to it is thought to have resulted in over 50 deaths. Following the riots and subsequent calls for her death, Ms. Garcia filed eight DMCA...
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Top 10 Lists

I was recently asked by an attorney friend about using the phrase “The Top Ten Reasons…” in relation to a top ten list (á la David Letterman) that she was planning on using in a marketing piece.  This wasn't a comic work meant to mimic the David Letterman version, but rather a serious piece meant to provide useful information regarding estate planning strategies.  So the question to me was whether she could use the “Top Ten List” format without running afoul of Letterman’s intellectual property. My response was that there was a very low probability of risk – the term “Top Ten List” is descriptive and therefore not generally protected by trademark unless it has acquired such distinctiveness that the term is pretty much only associated by one source.  While, in certain contexts it is undoubtedly a very famous list, it is hardly the only place in which you can find people putting together lists of things in quantities of 10. Further,...
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Sometimes They Don’t Quite Get It.

Courts sometime get the right answer for the wrong reason. In a recent case in the US Tenth Circuit (Enterprise Management Limited, Inc. v. Warrick); the court discussed a diagram of a basic idea which was the basis of the defendant copying a similar diagram to explain the same concepts.    While the end result was correct in this circumstance, the reasoning used falls short. Where concepts or ideas are being presented there is a general rule that expression and ideas are sometimes merged and therefore the copying is allowed to not allow the copyright owner to weld exclusive rights to the idea.   The Enterprise Management court articulated this by noting: “In short, the copyright law is not a patent law: it protects the expression of ideas rather than the underlying ideas themselves. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344-45 (1991) (“The most fundamental axiom of copyright law is that no author may copyright his ideas or the...
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