I am NOT a Gleek – Glee on Copyright

First off, I am not a "Gleek"; however after watching a recent episode with my family, I got to thinking about what a great illustration about copyright law that the show and the production of the show provides. The first issue that came to mind was - beside the producers of Glee, who is making money off the music?  Under US copyright law, royalties for music generally fall into three categories: (1) For reproductions (CD, downloading), (2) Grand Performance Rights (commonly known as sync rights), and (3) performance rights (radio play). There are other categories but rest assured sure I doubt that copies of "Glee for ukulele" sheet music is making ton of money. So let's use a hypothetical, let's say I have a band and we record and make popular a new song written solely by our bassist. The bassist is the sole copyright holder. Under our recording agreement, all the band members get a percentage of all sales...
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SPNN Workshop: Copyright Myths

When: Sat, March 5, 1pm – 3pm Where: SPNN - 375 Jackson Street, Suite 250 Saint Paul, Minnesota 55101 Description: What is a copyright and how does it affect you as a video producer? Kenneth Kunkle of Kunkle Law Office will go over common questions creative people may have concerning copyright issues. Kenneth is a Minnesota lawyer and a graduate of Hamline University School of Law. Kenneth has been providing legal services to the Twin Cities business community, and focuses on issues affecting the technology, graphic and fine arts, and entertainment (music, film, and publishing) industries. Cost: $25 for current members, $40 for non-members, $15 fimited income. Call (651) 224-5153 for more information....
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New Copyright Rules on Registering Photo Databases

In a nod to the reality that most photographers have gone digital and use databases to store and display their work,  the Library of Congress (where the Copyright office is) recently announced an interim rule concerning registration of databases of photographs and group registration of published photographs (previously electronic group registration was limited for unpublished photos).  In summary, the Copyright Office noted in the the Federal Register: The Copyright Office is adopting interim regulations governing the electronic submission of applications for registration of automated databases that predominantly consist of photographs, and applications for group registration of published photographs. This interim rule establishes a testing period and pilot program during which the Copyright Office will assess the desirability and feasibility of permanently allowing such applications to be submitted through the Copyright Office’s electronic filing system (‘‘eCO’’). Persons wishing to submit electronic applications to register copyrights of such photographic databases or of groups of published photographs should contact the Visual Arts Division...
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Hand-held Devices & Privacy: We Know What You Read, Bought, Watched, Ate and Emailed Last Summer – Are You Scared?

Is it a phone? An ebook reader? A video game controller? A credit card reader? An entertainment system? A medical device? A GPS navigator? A camera? A remote control? An email/social networking communication device? A news reader? Today's hand-held devices are ALL of these and more. As hand-held devices such as smart phones and tablet computers serve more and more functions in our lives, they also collect more and more information about us. The separate laws and regulations that evolved in a world in which communication, entertainment and technology were fairly distinct areas will be increasingly stressed as devices cross these boundaries in new ways. Our expert panel will explore the current and future business opportunities and legal implications of these cutting-edge technologies. Join us for this joint session of MSBA sections, sponsored by the Computer & Technology Law Section, the Communications Law Section, and the Arts & Entertainment Law Section. Panel: - Jamie Nafziger (Moderator), Dorsey & Whitney, LLP - Kenneth Kunkle...
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Trademark Enforcement

When thinking about whether or not to enforce a trademark, keep in mind the purpose of having the mark is to serve as an identifier of the source of the good or service for consumers. With this in mind, in order to preserve your own rights to a mark you have to try to maintain its strength as an identifier for your product. In the event you have adopted a mark, an important part of maintaining it is to monitor the marketplace for others using identical or similar marks for the same or similar services. In the event you locate someone using the mark in a way that might cause consumer confusion, steps should be taken to eliminate potentially weakening of the mark. Consideration should be given to sending a letter advising the infringing user of your prior use and demanding that they stop using the mark (sometime referred to as a cease and desist letter). Before sending such a letter,...
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Gray Market Goods in Legal Gray Area

In what is perhaps a fitting end to the only copyright case before the Supreme Court during this term, the Court sitting without Justice Kagen issued its first split decision of the term – leaving the issue of “gray-market” goods in a gray area. ‘Gray-market’ goods, or ‘parallel imports,’ are genuine products possessing a brand name protected by a trademark or copyright. They are typically manufactured abroad, and purchased and imported into the United States by third parties, thereby bypassing the authorized U.S. distribution channels.” Parfums Givenchy, Inc. v. Drug Emporium, Inc., 38 F.3d 477 The case centered on Costco’s sale of imported watches manufactured in other countries.  The watches manufacturer alleged that the unauthorized sale of the watches constituted a violation of their rights to control importation under 17 USC 602(a).   Costco’s defense rested on the “first sale doctrine” The case centered on Costco’s sale of imported watches...
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Considerate Contracts

While it may seem like a simple question, sometimes its worth reviewing just the same – when is a contract a contract? General speaking it is when two or more parties exchange mutual promises. Often the determining factor is whether the mutual promises of the parties are supported by consideration. Consideration involves the giving of something of value, rather than a mere promise. The reason that the courts and legislatures generally require some form of consideration is to insure that the promises being made are not merely a casual statement, an accident, or gratuitous – in short – to make sure the people making the agreement really mean it. Consideration looks at whether the parties have assumed an obligation on the condition of an act or forbearance of another. Except in cases of employment matters, Minnesota courts generally do not look at the adequacy of the consideration being offered – only whether some consideration has been exchanged. For written agreements,...
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Legal Muse as Top 25 MN Legal Blog

Legal Muse as Top 25 MN Legal Blog

Legal Muse is pleased to announce that the editors of practiceblawg.com have named Legal Muse as one of the state’s top legal blogs. Besides referencing my content and images, the editors noted the recent release of my microsite mntrademark.com. I am grateful for this acknowledgment and am honored to be in the company of some really excellent law firm blogs. It’s a great honor, but it really puts on the pressure going forward....
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Attorneys as Artist’s Freind

The lawyer is often the butt of the joke or the object of the creative’s ire.  The reason cited is often that the attorney was a roadblock of that great idea.  As an attorney I can tell you that I understand why so many attorneys are viewed this way – I know that I sometimes feel like I am always delivering bad news – “no you can’t do that,” “if you do that there’s a risk you will get sued,”  “There’s no guarantee that you will be paid,” and on and on with warnings and ambiguous gray areas that seem so expansive that you wonder what value talking to the attorney actually brings you.  We don’t try to be spoilers, but on the other hand sometimes our role is be the reality check.  It easy to be blinded by a great idea and when you have a hundred great ideas and projects flowing from your imagination – some of which...
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Piercing the Corporate Veil in Minnesota

The term “piercing the veil” is a reference to a method of holding a company or individual responsible for the liabilities of a corporation or other business entity despite the company being a separate corporate entity with limitations on its liability.  Saint Paul attorney Jack Roberts on his Minnesota Business & Real Estate Law Blog recently had a great post laying out many of the issues related to piercing the corporate veil and some sound advice on preventing it from happening. Jack’s article can be found here....
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