Baseball Uniforms as Trade Dress: MLB v. Donruss

An interesting case was recently filed involving baseball card manufacturer Don Ross and Major League baseball. Among several counts involving, minor league players, retired players and current players is a claim that that Donruss inappropriately used the trade dress of the former Major League players. Interestingly, the complaint seems to indicate that there isn't a claim of trademark infringement related to the cards with the former players. While it is not spelled out in the complaint, it appears that the claim is that even though the logos have been removed from the pictures of these players (thereby avoiding the trademark claim) that because the colors and other parts of the uniform are visible, the trade dress has been infringed.It is standard practice to remove the logos on licensed memorabilia of sports figure, but if this case plays out in favor of MLB, it would appear players will have to be completely stripped of any identifying...
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Business and the Law Seminar

This evening I had the pleasure of giving a presentation at Women Venture to several women working to develop and start new businesses. I gave a presentation entitled Business and the Law which covered a variety of issues related to protecting the business owner's rights and managing their liability risks.While it is easy to focus on the doom and gloom of the big picture economy, hearing the plans of these business women highlights the importance of not allowing the stories in the news to prevent businesses from moving forward. Opportunities do exist -people simply need to keep an eye out for the right situations. People wiling to take the risk at this point will be well situated when better economic times come along.For more information on Women Venture and their programs, go to www.womenventure.org....
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An Oldy But Goody: Copyright & Fireworks

The following is from a response I made to a listserv (remember those?) over ten years ago. I got to thinking about the subject again yesterday after The Colbert Report made a reference to a fireworks display I worked on a long time ago. From: Kenneth L. Kunkle XXXXXXXXXXXXXXXXXXXXXXXXXX Date: Tue, 06 Oct 1998 22:59:52 -0500 I regret that I have not been looking at the list for a few days, as this is a topic I may be able to shed some light on. For background, prior to entering law school I was employed by a firework display firm with my primary responsibility being in the area of... you guessed it... choreography and design of large scale displays set to music (referred to as pyromusicals). It was standard for all of our work to be submitted to the copyright office for registration and to my knowledge they were always accepted. There is a great deal of work that goes into choreographed displays, timing colors,...
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Deceptive Hot Dogs: Food Trademarks

Found in a complaint in a recently filed trademark case:"The hot dog, synonymously identified over the years by a host of names including frankfurter, sausage, frank, wiener, dog and others, has a rich and long history in the United States."http://www.scribd.com/doc/9620013/Complaint-Dogma-Hot-DogsOk, I confess, I have no reason for posting this other than the fact that it amuses me that the attorney who wrote this sat down to write out synonyms for hot dogs. Some other synonyms include:Georgia hot, boaster, crowd-pleaser, dog, flaunter, foot long, footlong, frank, frankfurter, grandstander, hotshot, pigs in a blanket, ...
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Barbie v. Bratz: Scope of employment and tainted copyrights

Think that idea that you put together in your free time is free for you to use? Think again. While not binding in any court here in Minnesota, the legal battles between Barbara Millicent Roberts (Yes, that's her full name) and Cloe, Sasha, Yasmin, and Jade recently took a turn for the worse for Bratz manufacturer MGA Entertainment Inc. and are a good example of why creative professionals need to understand what their employers view as their work responsibilities, and why companies hiring creatives need to make sure they know the origins of those great ideas coming from new employees.After a large number of Mattel employees, including Bratz designer Carter Bryant, defected and came to work at MGA and MGA launched its Bratz line, Mattel filed suit claiming the Bratz dolls were designed on their dime and therefore they held the copyright for their design. After a jury trial that resulted in a jury finding...
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SPNN Presentation

I had the opportunity the other night to cover for another attorney in a presentation at the Saint Paul Neighborhood Network (SPNN) regarding copyright law, release forms, and fair use in video production. I typically enjoy these programs, as I always learn new things based on the questions I receive. As I experienced when I conducted a similar presentation last year to a national association of public media, the questions were well thought-out and addressed the many of central legal issues that new comers and old hands alike run into when creating video productions. Unfortunately, many of the questions necessitated the maddeningly frustrating answer of "it depends." This a problem that aggravates many clients, because obviously if they are paying for your expertise, they expect concrete, text book response. Unfortunately, to fully resolve most people’s questions related to fair use and privacy rights requires a fuzzy answer, as various criteria must be weighed against one another and more than...
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Liability for Withholding Passwords

Update (6/8/10): Terry Childs was found guilty of one felony count of denying computer services. Does your company have a clear policy concerning who may receive admin passwords? The city of San Francisco apparently has some problems in this area. Terry Childs IT manager Terry Childs was arrested earlier this year for refusing to provide administrative passwords for the city's computer network. The city alleges that he was setting up a network that he could take over remotely and take down at his whim - Mr. Childs claims that the policies of the city did not allow him to provide the passwords to his managers and that once he turned them over to the Mayor, the management simply didn't understand the technology enough to understand how to use them. Apparently out of fear that his release will result in a melt down of the city's computer network, the judge in the case has set bail at 5 million dollars, as opposed to a lower...
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Jacobsen v. Katzer – Open Source infringment

In August, the Court of Appeals for the Federal Circuit issued a ruling (Jacobsen v. Katzer) that has been widely discussed as acknowledging the rights of developers of open source software. This opinion, while not necessarily binding in Minnesota, is helpful in illustrating important issues that relate not only to open-source software licensing and development but to general contracts that apply to everyone.The dispute involved an open-source developer and a company that used the open-source code as a part of their own software. Despite a license that required that the open-source developer be credited and copyright information retained in subsequent use of the code, the defendant stripped out this information. The issue was whether failing to provide this information caused the subsequent software to be an infringement of the plaintiff’s copyright, or whether it was simply a breach of contract - the difference meaning considerably different remedies.The opinion contained an extensive discussion on the importance of “conditions” verses...
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Copyright Basics

Every once and a while it is good to go back to basics.What is a copyright?A copyright is a set of rights (often referred to as a "bundle of rights") afforded to the owner of original works. Under federal law these rights include the right to reproduce the work, prepare derivatives of the original, and the right to perform the work publicly. By controlling these rights the owner may receive income from licenses in the form of royalties or directly from the sale of these rights.How do I get a copyright?Under current U.S. law all that is required to get a copyright is that the original work be "fixed" in a "tangible form." For example, if you are a writer, once the words appear on the page (or on computer disk) you have a copyright. There are no registration requirements to obtain the copyright, however, in order to enforce the copyright the work must be registered with the Copyright Office...
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Poor Man’s Copyright

A frequent comment I hear when talking with musicians is that they think mailing a copy of their music to themselves will work just like a copyright registration, but cheaper. This is sometimes known as a "Poor Man's copyright." While this might (and I use the term loosely" be helpful from an evidence standpoint, it doesn't really help with who created it and it will likely run into all kinds of evidentiary problems. Writers are much better off going ahead and filling out the copyright application. By filing a registration you set yourself up to collect attorney's fees and potentially higher damages if you have to file a lawsuit. By the way, in order to even get into a court on a claim of copyright infringement you have to file a registration, but if you wait to long to register you may lose out on some forms of damages.The better advice is to always put together a...
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