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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 Wickeds 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 dont know I havent ever analyzed it using all the appropriate standards. But I do now that seven vs eight notes probably won make the difference. Perhaps its two notes, or perhaps it is 60 but a bright line rule is more a humorous antidote than legal advice.

Earlier this year shoe icon Christian 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. In 1992 Louboutin began using the red lacquer sole. 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.

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. In August the court flatly denied Loboutins request. The Court stated, Because in the fashion industry color serves ornamental and aesthetic functions vital to robust competition, the Court finds that Louboutin is unlikely to be able to prove that its red outsole brand is entitled to trademark protection, even if it has gained enough public recognition in the market to have acquired secondary meaning. The Court therefore concludes that Louboutin has not established a likelihood that it will succeed on its claims that YSL infringed the Red Sole Mark to warrant the relief that it seeks. 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.

In short, the Court argued that clothes are inherently aesthetic, the addition of an aesthetic feature like the color is merely a function of the design and therefore not protectable as a trademark. I would imagine the same outcome had the designer claimed a specific cut of a dress or pant, or use of a specific material. A finding converse to this would open the flood-gates to claims that new designs or aesthetics are trademarks and preventing any others from their use. Taking this argument to an extreme, the little black dress is largely credited to Coco Chanel if she had elected to trademark the aesthetics that make up this classic design, one would be hard pressed to recognize todays fashion. 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.

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 years 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. Were looking forward to building on that success and making this years event even betterwith more stories, more connections, and more conversations about what works and what doesnt in building a life based on doing what you love.

Weve got new digs, too. This years event (daytime and evening) will be held at the world-famous Guthrie Theater. Were 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 7^th, 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 23^rd (lunch, headshots, evening concert are included) Register Now!

Were 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. Theyll share their stories of how they got started, whats worked and what hasnt, and where they see ideas and possibilities for the future. This years event will feature a mix of new and returning speakersincluding 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 workfrom 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 7^th!

Peace,

Susan Campion, Founder of Camponovo Consulting

Kwame Tsikata (M.anifest), Artist

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 hasnt 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.

Earlier this month, the U.S. District Court, Southern District of New York awarded a default judgment to clothing designer Tory Burch LLC in its trademark counterfeiting and cyber-squatting case against 232 websites which sold copies of Burchs handbags, flats, and accessories. After none of the 232 defendants answered the complaint, the Court awarded damages of $164 million and ordered that the counterfeit websites be turned over to Burch. The $164 million is the largest settlement of this type. Additionally, the Court used the process provided in similar cases involving The North Face and Ralph Lauren which ordered third-party payment facilitators, such as PayPal, to disgorge any money in Defendants accounts. While it is not expected that Burch will ever recover the full judgment in this case, the ability to take possession of the infringing domain names, along with the ability to freeze related financial accounts, gives the plaintiff a great tool in combating future infringement and sends a strong warning on the repercussions of counterfeiting goods.

Websites selling counterfeit designs are a huge problem for the fashion industry because of the damage to their profits and brand integrity. While some argue that the consumers who buy the knock-off are not the same as those who will buy the real-deal, this argument avoids the fact that exclusivity of the designs is one aspect of what give the marks of these designers value. When thousands of sub-par handbags are suddenly available, not only is the quality of the product related to the counterfeited goods put into question, but so is the exclusive aura surrounding the product.

While the actual designs of most manufacturers are not protected by copyright (clothing is not protectable subject matter), holding the product out as being sourced from the original designer violates their trademark rights. Counterfeiters be aware the courts are looking at new and more aggressive ways of taking you down and preventing you from profiting from harming the trademark rights of the designers you are ripping off.

Thanks to Sara Harrison for her assistance with this post.