France – Where Everyone Has the Right to Privacy

Article 9 of the French Civil Code provides that: “everyone has the right to privacy.”

A little while back Kate Middleton was spotted (via a long range lens) topless at a private residence in France.  The resulting photos ended up in the French magazine Closer. The ensuing outrage by the British and the French demonstrates an important issue when works of authorship cross international borders: namely, the U.S. expectations of privacy and Freedom of Speech laws are not embraced in the same ways in other nations and cultures.

For example, the French maintain some of the strictest privacy laws in world.  These laws leave little room for arguments of news worthiness.  In fact the French go so far as to prohibit “theft of personal image,” which can theoretically be used to ban the taking of photos of individuals even in public spaces.  While the U.S. states have many comparable types of laws, the extent of the French laws is illustrated by the fact that the images of Ms. Middleton are no different than what you might see on most beaches in France, however the French laws still provide little leeway for these arguments – arguing instead that this is a private matter and not for public consumption.  Similarly, the British courts have a distinctly different view of libel that favors parties making such claims.

Beyond the civics lesson, what is important to take from this is the fact that as we are in a global economy, laws of other countries may be in  play and when dealing with more sensitive topics, a few minutes of research may be beneficial in keeping you out of trouble.

Why I Oppose Amending the MN Constitution for Voter ID.

As an attorney, I feel compelled to speak up concerning the proposed Voter Identification Amendment to the Minnesota Constitution.  Putting aside the partisan political aspects of the issue for a moment, this is a bad idea.  Simple ideas sometimes have complex consequences, and in the case of voter id, the simple idea is both expensive and potentially harmful to our most sacred right as Americans.

The Minnesota Constitution was enacted in 1857.  Generally speaking, amendments to constitutions are made to accomplish things that cannot be done through the legislative process.  Unfortunately, this is not always the case in MN and the Voter Id Amendment is a prime example.   In the case of the Voter Id Amendment, some Legislators decided they had a law they wanted to pass, and rather than working the law through normal legislative channels which require the checks and balances of Executive Branch approval and judicial oversight, they are seeking to circumvent and embed the administrative practice of verifying a voter’s identity, not in the state statute or regulation, but into the state’s highest legal authority.  This is akin to the legislature deciding to put a 30 MPH speed limit into the Constitution and it is simply inappropriate.  Constitutions are documents meant to provide a framework for our governing system and to place restraints on government intrusions.  However, in the case of voter id, proponents are asking Minnesota citizens to shackle themselves to what is essentially an untested administrative procedure by including it in a document that requires a state wide vote in amend or modify.

A report from the University of Minnesota estimates that this unproven procedure for tackling a problem that is questionable at best, will cost local governments (the ones that raise property taxes) approximately sixty-three million dollars.  This is money that comes out of our pockets when local government funds are already short.  In order to implement the Amendment, entire new computer systems have to be built to handle provisional balloting, new id cards issued for thousands of people at no cost, new employees hired and training revised.   These things cost money, and in the event that the structure of this Constitutional regulation doesn’t work, instead of modifying it through legislative or regulatory process, our only means of change will be to wait for the legislature to once again place an amendment on the ballot at the next general election – this is simply not the way to do things.

When I think about the amendment, I also have to look at what it means for people’s right to vote.  While some say that voting is a privilege and it is not too much to ask for a photo, I say perhaps, but I do know that using a photo id isn’t necessarily fool-proof and without significant safeguards, requiring it may result in citizens losing out on one of their most fundamental privileges as citizens.  As of January 2012, 24,738 registered voters in Ramsey County do not have valid MN driver’s licenses or state issued ids — that’s roughly 9% of voters.  Presumably many of these folks with driver’s licenses may not have license that will comply with the Amendment or which will be difficult to use as verification of the holders identity.   Ask yourself these questions:

  • Do you have a photo id?
  • Is your id issued by the state (not a private school, nursing home, employer, etc)?
  • Did you recently move and does your id have your current address?
  • If you recently married, does it have the right address and your current legal name?
  • Do you still look like that DMV photo (weight gain/ loss, hair color, etc)?

Now ask yourself if your friends, family members and neighbors have the same.   Problems are sure to arise with the proposed procedure.  By entombing this legislation in the Constitution, Minnesotans would be handcuffing themselves to a single method of accomplishing a goal and, ironically, restricting their own future ability to free themselves from problematic outcomes.

While we can debate whether requiring a photo id is needed and whether there is a real problem being solved, I have heard no real arguments as to why a constitutional amendment is the best way to address the issue.   While I don’t believe voter id laws are needed, I appreciate that concern for the integrity of the voting process; I just don’t think that the administrative procedures of verifying identity belong in our constitution.

Of Flesh Eaters and Copyright

Of Flesh Eaters and Copyright

Have you ever seen Night of the Flesh Eaters?   Probably, though you probably know it as the 1968 classic Night of the Living Dead.  Now ask yourself why have you seen it (besides it being a fun little romp about zombies) – because it has been pervasively shown on broadcast television and other media for decades.   While we now view this film as a classic and all that air play is only respect to the genre defining classic, when it came out it was simply a B movie.  The reason it received so much initial air time, however, probably had more to do with the formalities of copyright than the artistic vision of George A. Romero and John Russo.

Up until March 1, 1989, in order to maintain a copyright in a work a notice of copyright was required somewhere on the work – in films this usually consisted of a listing on the title card showing the copyright symbol, the year, and the owner’s name.  When the film was sent to the film’s distributor it had a title card for “Night of the Flesh Eaters”, however it was decided at the last minute to change the name to “Night of the Living Dead” and the title card was changed – unfortunately no copyright was placed on the film and it was released to the public – under then current copyright law, this release caused the film to go into the public domain for free use, display, copy, and creation of derivatives without any payment to the film makers. While current copyright law no longer requires new works to have this notice (though it is still recommended), the unintentional release of the film to the public domain had an immediate impact on the pocket books of Romero and Russo, and resulted in a long term impact on American culture.

The broad distribution that resulted from local TV stations being able to show the film at no cost likely broadened the film’s appeal and thus created a bigger cult classic, which in-turn allowed Romero to cash-in on future sequels, as well as changing the mythology of the zombie from a voodoo ritual, to that of the brain dead flesh eaters we know and love today.  So when you put on that zombie outfit for Halloween or sit down to watch the Walking Dead on AMC, remember to give a little thanks for the zombie copyright of Night of the Living Dead.

Uncle Fester and Justin Bieber

Coogan in The Kid

Well before before Uncle Fester shaved his head and joined the Addams Family, the actor Jackie Coogan was appearing in silent film alongside Charlie Chaplin.  Unfortunately for Jackie, his parents spent all the money from his work and when he  turned 18 he had little to show for his time on stage and screen.  The spectacle  of a child star of Coogan’s stature being exploited in that way led to a California Law requiring that child performers be paid in such a way that around 15% of their pay is automatically placed into an untouchable trust fund that only they will be able to access when they turn 18 – many states around the country now have similar laws and they are typically referred to as Coogan Laws.  It is estimated that Bieber is worth around 100 million dollars.  While its impossible to know how much of that is held in a Coogan Trust, it is likely that upon his 18th birthday upwards of 15 million will available to him to spend freely and without oversight – not a bad birthday present.

While contracting with minors is always an issue when considering the enforceability of the agreement,  you also have to be aware of whether your state requires a portion of funds to be paid directly to a trust fund.  This is a matter handled on a state by state basis – presently performers in California, New York, Louisiana, and Arizona are subject to the trust requirements.  Other states have addressed the concern raised in the Coogan case by affirming that the earnings of the child are the child’s property (not the parents as was the argument of Coogan’s mother and father), and that the parents have a fiduciary obligation to safeguard the property.

Linsane Trademarks

Linsane Trademarks

Speicman Fail - A speciman of a mark in actual use is required for trademark applicaitons, but this one only shows the mark superimposed on the goods.

Since February 7th the Trademark office has received eight trademark applications for the term LINSANITY.   The products identified in applications range from clothing, jewelry, and sport drinks, to eyeglasses and cell phone covers.  The only problem is only one of these applications is on behalf of the Knick’s Jeremy Lin (Serial 85541426); and it is a basic premise of trademark law that you can not register the name of a living person without that person’s written consent.  Perhaps more concerning, however, is the attempt of people who know him to cash in on his name – one of the applications is by Roger Montgomery for the purpose of “Business management of sports people” (Serial 85542514) and who the Washington Post identifies  as Lin’s own agent.

While some of the applicants may try to argue that it is purely coincidental that they want to register the name in the middle of Mr. Lin’s hot streak (“by Linsanity, I mean LENS -Anity for eyeglass lens – really I did!”), presumably, the trademark examiners will call them out on this blatant attempt to cash in on Mr. Lin’s new found celebrity; but if they don’t, Mr. Lin’s attorney will be able to oppose the registration on his behalf.

The Copyright Dilimma for Pinterest

The Copyright Dilimma for Pinterest

In case you’ve been living under a digital rock, one of the currently hot internet properties is Pinterest is a social media platform that allows users to skim pictures from third-party websites and to post them along with a link back to the original website that the image originally appeared on – sort of like a much more streamlined & robust method of saving bookmarks/favorites.   Unlike Facebook or some of the other social media sites which encourage users to come-up with their own content, Pinterest is largely based on a model of users creating collections of photos from third-parties.

This model creates a bit of a dilemma for the copyright holder because it is in essence a model based on using their photos to create traffic to someone else’s website.  Proponents of Pinterest argue that it isn’t really diverting traffic, but rather increasing traffic to business who may have images represented on user’s “boards.”   This is similar to the argument that websites solely consisting of framing (placing other websites’ content into a frame appearing on the framer’s website) used a few years ago in cases like Washington Post v. Total News.  While the Washington Post case settled, the complaint argued a variety of claims including copyright infringement and misappropriation.  On the flip side, in cases involving images that are part of search engine results, courts have found that the use of the smaller images constituted fair use under the Copyright Act (e.g. Kelly v. Arriba Soft Corporation336 F.3d 811).   Notably, however, cases like Kelly were very specific to the smaller inline images and found that that reasoning did not apply to larger images or images that were independently framed or linked to – arguably what Pinterest does.

So where does this leave Pinterest?  Quite simply – in a bit of a bind.  While many businesses will not care that their images are being used, as it can mean a real increase in their business, other copyright holders may be less enthralled since the same benefits are not bestowed upon them from the appropriation of their intellectual property.  While Pinterest can initially rely on the DMCA safe harbor (assuming they can continue to comply with take down notices), at some point they will be challenged on grounds that the site is designed for the purposes of facilitating infringement and therefore the safe harbor does not apply.  In my opinion this is a real dilemma – if Pinterest is to survive long term and generate real income they will need to distance themselves from a purely appropriation model of content development.

Additional reading:  Pinterest: Is It A Facebook Or A Grokster?

The Three Second Rule of Copyright

At dinner the other night, a friend mentioned she had recently seen a performance of Broadway songs at a fairly well known theater here in Minneapolis/ St Paul.  She mentioned that during the performance the host for the night compared the first seven notes of  the iconic Somewhere over the Rainbow to notes played during Wicked’s Unlimited.  The host explained that only seven notes where used because “if you use eight notes the copyright owner can come after you.”  I was curious about this statement and looked a little closer and found out that in fact that is the story that has been told by the composer Stephen Schwartz.  While making a nice antidote and joke, unfortunately the story is simply not true.

Much like the Three Second dropped food rule (if its on the ground less than 3 seconds its safe to eat), the eight note rule is similarly not true, and (hopefully) said  just in jest.  While copyright Fair Use does look at the amount of the original taken, it also looks at other factors – and while many subsequent creators would love a bright line rule like this, it is simply not available.   Even the Fair Use factor addressing the amount of the original works appropriated looks deeper than a purely mechanical calculation, by looking at both the amount and “substantiality” of what is taken.  Meaning, if what is taken is the heart of the original, the quantity of the overall work is less important.

Does this mean Unlimited infringes Somewhere over the  Rainbow?  I don’t know – I haven’t ever analyzed it using all the appropriate standards.  But I do know that seven vs eight notes probably won’t make the difference.  Perhaps it is two notes, or perhaps it is 60 – but a bright line rule is more a humorous anecdote than legal advice.

Limitation on Color Trademarks in the Fashion Industry

In 1992, shoemaker Christian Louboutin began using red lacquer soles on some of its shoes.  In 2008, the red soles were registered as mark in the US Patent and Trademark Office, and on January 1, 2008, number 3, 361,597, the “red sole mark” came to life.

In 2012 Louboutin sued Yves St. Laurent (“YSL”).  They were seeing red  (pun intended) over the recent Yves St. Laurent 2011 Resort collection, which included red-soled shoes, the Louboutin signature brand detail.  Louboutin filed a trademark action against YSL, which YSL prominently countered with a counter-suit seeking cancellation of the Louboutin trademark registration.  Louboutin responded with a request for a  preliminary injunction temporarily preventing YSL from selling the shoes until the dispute was settled.  The district court initially denied Loboutin’s request largely on the basis that . . .”in the fashion industry color serves ornamental and aesthetic functions vital to robust competition  . . . However, “Color alone “ sometimes ” may be protectable as a trademark, “where that color has attained ‘secondary meaning’ and therefore identifies and distinguishes a particular brand (and thus indicates its ‘source’).” Conversely, color may not be protectable where it is “functional,” meaning that the color is essential to the use or purpose of the product, or affects the cost or quality of the product.”

Affirming in part and reversing in part, the 2nd circuit stated that

We conclude that the District Court’s holding that a single color can never serve as a trademark in the fashion industry, Christian Louboutin S.A. v. Yves Saint Laurent America, Inc., 778 F.Supp.2d 445, 451, 457 (S.D.N.Y.2011) (“Louboutin”), is inconsistent with the Supreme Court’s decision in Qualitex Co. v. Jacobson Products Co., 514 U.S. 159, 162, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995) (“Qualitex ”), and that the District Court therefore erred by resting its denial of Louboutin’s preliminary injunction motion on that ground. We further conclude that Louboutin’s trademark, which covers the red, lacquered outsole of a woman’s high fashion shoe, has acquired limited “secondary meaning” as a distinctive symbol that identifies the Louboutin brand. As explained below, pursuant to Section 37 of the Lanham Act, 15 U.S.C. § 1119, we limit the trademark to uses in which the red outsole contrasts with the remainder of the shoe (known as the “upper”). We conclude that the trademark, as thus modified, is entitled to trademark protection. Finally, we conclude that, because the monochrome design employed by YSL is not a use of Louboutin’s modified trademark, we need not, and indeed should not, address whether YSL’s use of a red outsole risks consumer confusion or whether the Louboutin mark, as modified, is “functional.” 

In short, the Circuit Court rejected the District courts argument that that clothes are inherently aesthetic, and that the addition of an aesthetic feature like the color is merely a function of the design and therefore not protectable as a trademark, however found that the use of the color in this context has to be fairly limited.

While the red sole has become synonymous with Louboutin, with women paying  $595- $1000 for a pair of these status symbol shoes, the ability to take an entire color off of the pallet of future designers would be far reaching and stifle the creativity contained in future catalogs and runways.

Thanks to Sara Harrison for her assistance with this post.

Edited 10/27/14

Giant Steps 2011 – a day-long conference for entrepreneurial creatives.

From the folks at Giant Steps 2011

Dear Creative Minds and Brave Souls,

We are excited to officially open registration for Giant Steps 2011, a day-long interactive event for creative entrepreneurs and entrepreneurial creatives forging their own paths.

Giant Steps will inspire you, connect you with like-minded souls, and introduce you to valuable resources. Giant steps is where people in the know will exchange ideas and stories with people on the verge of their creative and entrepreneurial paths. Giant Steps is about creating a community and finding new ways of working. And Giant Steps believes a great day of connections and creativity is best finished with an amazing evening concert!

In the follow-up survey to last year’s Giant Steps, 83 % of the people rated their experience at Giant Steps 2010 an 8 out of 10 or higher, and 21 % rated it a 10 out of 10. We’re looking forward to building on that success and making this year’s event even better–with more stories, more connections, and more conversations about what works and what doesn’t in building a life based on doing what you love.

We’ve got new digs, too. This year’s event (daytime and evening) will be held at the world-famous Guthrie Theater. We’re excited to be surrounded by the combination of creative history, forward-thinking architecture, and the power of the mighty Mississippi.

You will want to be a part of Giant Steps if you are looking to advance your thinking, meet other creative thinkers and potential collaborators, and enhance your skills to move your work forward. Learn More!

When:  Friday, October 7th,  2011

Where: The Dowling Theater at the Guthrie, 818 South 2nd Street, Minneapolis, MN 55415

Plenaries and Workshops:  9:00 am to 5:30 pm

Happy Hour on the Endless Bridge:  5:30-7:30 pm

Evening Concert:  7:30-10:00 pm (in the Dowling Theater, with a cash bar)

Cost: $95 if you register before Sept 23rd (lunch, headshots, & evening concert are included) Register Now!

We’re bringing together inspiring Giants in many fields: creative entrepreneurs in design, artist activists and educators, technology software entrepreneurs who double as music promoters, chefs, photographers, musicians, consultants, and more. They’ll share their stories of how they got started, what’s worked and what hasn’t, and where they see ideas and possibilities for the future. This year’s event will feature a mix of new and returning speakers—including acclaimed photographer Wing Young Huie, Blu Dot COO Maurice Blanks, musician/actress/activist Maria Isa, playwright and performance artist May Lee-Yang, and many more.

There will also be workshops and panels to help you acquire the practical information and contacts you need add great value to your work–from information about alternative funding models , to discussions on more effective ways to promote and market your work, to legal and tax-related solutions. Become a part of this talented and forward-thinking community of Giants.   Register now!

To keep up-to-date on the list of speakers and other details about Giant Steps, be sure to “like” the Giant Steps Facebook page or follow Giant Steps on twitter.  Please help us to spread the word by sharing this information freely with your friends, colleagues, and any other Giants you may know.

We look forward to seeing you on October 7th!


Susan Campion, Founder of Camponovo Consulting

Kwame Tsikata (M.anifest), Artist

Minimizing Your Risk Related to Administrative Tasks and Payroll

Thinking of adding an employee but not sure how to handle the day to day administrative issues related to pay and insurance?   Employees are a responsibility for any business.  When you take one on, they may be there to make you money, but in return you have an obligation to treat them right.  As a result there are a variety of administrative and bureaucratic rules to help make sure things go smoothly. One option to consider to avoid this extra burden is to hire a reputable payroll services.

On time payment and record keeping: While it may seem obvious, small business owners often forget that their employees expect to be paid on a regular schedule and may not care that the boss is on vacation and hasn’t gotten around to writing out the checks.  Services handle this for their customers automatically and will mail out checks or make the appropriate online deposits upon request.

Withholding: One major issue overlooked by many businesses is their obligation to withhold taxes and to pay them into the government.  Miscalculating these fees, or worse, withholding them and using them for other business purposes is a huge problem.  A common statistic is that one in three businesses are penalized for missing tax deadlines.   Additionally, If you have employees, you also have an obligation to send annual statements to both the employee and the government about wages paid and taxes.  By having a service handle this, the risk of common errors is greatly reduced, thereby lowering the employers potential to make costly legal errors.

Signage: If you have workers, you are most likely required to post signage at your work place advising your employees of their rights under the law regarding things like overtime pay and worker compensation.  Failure to display proper signage is a common error for employers and can lead to fines.  Most services will provide you with   appropriate signage and can be a resource for understanding what may required of you.

By no means is this an exhaustive list of your payroll obligations, but they do demonstrate that these tasks sometime take you away from doing core parts of your business.   For a relatively low fee, many services will perform these services for you, as well as many other parts of the hiring process, thus putting this highly bureaucratic process into the hands of people that handle it on a day to day basis and can handle it far more efficiently than you might be able to.  When evaluating services consider their experience level, their ease of use, the scope of their services, and their fees.