CoCo Day Camp: “Common Myths and Misconceptions About Copyrights and Trademarks”

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On Thursday, May 6th, I'll be providing a seminar for creative professionals on how creative professionals are affected by copyright (e.g., public domain, fair use, joint works and work for hire) and trademark law at CoCo in downtown St. Paul. the program is set to run from 10am to 12pm.Cost:Session + 1/2 day of coworking: $30Session only: $15About CoCo:CoCo is a coworking and collaborative space in Lowertown St. Paul (and coming soon to Minneapolis), where independent workers and small businesses can gather to share ideas, team up on projects and get some work done. We’re an alternative to working from home or the local coffee shop....
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Who can Sue when a Freelancer is Discriminated Against?

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Freelancers take note: Under Minnesota Law if you have formed an LLC or other business entity and you experience discrimination at the hands of one of your clients, as an individual you cannot make a claim under Minnesota's Human Rights Act (Minn. Stat. § 363A.17 (2008)), which authorizes parties to a business contract to sue for business discrimination in the performance of that contract.The Minnesota Supreme Court reasoned in Krueger v. Zeman Construction Co. that the focus of the statue was the relationship of the parties, not on the individual subject to the discrimination. As a result, the court argued that an individual employee, even one that is a single member owner of an LLC, is not the intended beneficiary of the statute and therefore they cannot file a lawsuit in their individual capacity.While I generally believe freelancers should consider business entities like LLC over that of sole proprietorship, this case provides a stark example of how there...
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The 2010 Midwest Art, Entertainment & Sports Law Institute

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I will be presenting along with many other area attorneys at next weeks Midwest Art, Entertainment & Sports Law Institute. Come out and hear about some the latest opportunities and challenges facing the attorneys for the art, entertainment and sports communities. http://www.minncle.org/Materials/Seminars/67410.pdfHighlights Include: Former ASCAP executive and current president of a music publishing company, attorney Ron Sobel will “teach, discuss, rant and rave” about intellectual property pitfalls, new media trends, current revenue models and licensing protocols Music publishing contracts and other issues in the digital age The FTC’s take on endorsements and Internet advertising The hottest legal and ethical concerns in college sports A review of core intellectual property concepts, as well as contract, licensing entity basics with a nod to the creative client The Ramifications of Supreme Court...
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When is a farm boy just like any other farm boy?

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When is a farm boy just like any other farm boy? That's the question at the heart of a recent Federal Circuit decision (Odom's Tennessee Pride Sausage, Inc. v. FF Acquisition, LLC, No. 09-1473) involving a decision by the USPTO to grant a trademark registration to FF Acquisitions (a SuperValu company) over the objection of Odom (a retail food conglomerate). Despite the fact that the registration in question was merely adding the body onto an already registered mark making up the torso of a farm boy (mark on the right), Odom was concerned that the mark was now likely to confuse consumers and opposed the registration, citing its own registrations. Even though Odom argued that there were other factors to be considered under the DuPont test for likelihood of confusion, the USPTO and the Circuit court summarily dispatched the complaint by noting that the registered marks differed in...
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AIGA MN – Cocktails with Creatives

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Come on out and mingle with a variety of creatives (and one lawyer) from the Twin Cities.I will be sponsoring the AIGA MN's Cocktails with Creatives in January. It will take place at the Peacock Lounge, the bar part of Erte Restaurant, in Northeast Minneapolis on January 7th from 6 to 8 p.m. Happy Hour goes until 7 p.m. and parking is free anywhere on the streets. Relax, munch, chat and enjoy!...
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FTC Endorsement Guidelines – Typicality Claims

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Effective December 1, 2009, the Federal Trade Commission (FTC) has adopted new advisory guidelines concerning use of testimonials in advertising. These modifications and clarifications concerning FTC enforcement have raised concerns in many industries that rely heavily on testimonials as a large component of their marketing efforts.What are these guidelines about?The FTC is charged with enforcement of federal laws prohibiting deceptive trade practices – i.e. false advertising. To accomplish this mission, the FTC adopts rules and issues policy guidelines regarding the laws.Complete Bulletin available on KunkleLaw.comAudio from a recent interview with CoachingToys.com...
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Public Performance and Ringtones

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As if to demonstrate why the general public continues to question the validity of all copyright claims in music, ASCAP recently provided us with one of the stupidest and greediest copyright cases in the recent past. (opinion at www.eff.org). After being sued in relationship to the reasonableness of its blanket licenses (related to its antitrust exemption), ASCAP argued that when someone's cell phone rings with a musical ringtone, the ring is a public performance of the composition and therefore the phone companies owe licensing fees for each call. The Electronic Freedom Foundation, who filed an amicus brief in the case, noted that: “Under this reasoning from ASCAP, it would be a copyright violation for you to play your car radio with the window down!" While I am not sure it is quite this bad, the arguments advanced by ASCAP do require a great deal of legal gymanstics in order to work.While the law of copyright...
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Public Performance

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What is a performance license?One of the exclusive rights of composers of songs is to control the right to publicly perform the song publicly. Of course with the way that the music industry has developed, it is not practical in most cases to go to the composer each time a radio station or concert hall wants to play a song for their customers. Coming to the rescue (Debatable, but that's another post) are the folks at ASCAP, BMI, and SEASAC (and a few others). These organizations, commonly referred to as Performing Rights Organizations (“PROs”), have entered into agreements with thousands of composers and music publishers for the right to represent them and to license their music to radio stations and venues. While technically everyone involved (DJ, sponsor, and venue) can be held to jointly infringe a copyright, in practice the venue and promoter is most often the one that is expected to have obtained a license for music performed.What is...
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Bratz Revisted

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In the continuing case of the Bratz doll, the Ninth Circuit recently ruled in the case of Art Attacks Ink, LLC v. MGA Ent'mt. Inc. While the case dealt with several issues, of interest to me is the portion of the ruling dealing with whether Art Attacks had proved adequate access to their character that they sold at fairs and on their website.In the opinion, the court went out of its way to note technical weaknesses of the website as evidence of the small likelihood that there has been any access to the designs. In particular, the court noted that it "took a full two minutes" for the website to fully load; and that the website did not use meta tags that contained the words "Spoiled Brats." The court then drew the conclusion that:A website with such limitations could not have widely disseminated the copyrighted Spoiled Brats material.It is not clear from the opinion how this...
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Bringing Conciliation Court Cases

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Conciliation court was created to allow citizens to bring legal actions for smaller claims that would normally be difficult to bring due to the expense and knowledge needed to bring a suit in district court. Generally, these courts allow individuals to bring claims of up to $7,500 ($4,000 in cases involving commercial consumer credit transaction), or order the return of property. However, these claims may not include claims for title to real estate, libel or slander, class actions or medical malpractice. Additionally, since these are state courts, they can not hear matters of federal law such as disputes over copyright ownership. They can, however, hear cases involving breach of contract that involves copyrighted material. This means that the conciliation court can not hear a case involving ownership of a copyright, but it can hear a case involving whether a party has paid what they owe for the creation of copyrighted material. An important thing to remember before you file a conciliation court...
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