Tattoo Copyrights

Tattoo Copyrights

Can I Copyright my Tattoo? A while back someone asked me about writing a blog post on copyright law and tattoos. After thinking about it, I realized that the issue is one that provides a great opportunity to illustrate (no pun intended) some core concepts about copyright law that are often misunderstood by the general public and sometimes by creatives. At issue is who owns the copyright in that tat on your forearm. After all, a tattoo is really no different than other creative work and as long as it is an “original work of authorship” (Most likely) and “fixed in a tangible form” (most defiantly), US law states that the subject matter is subject to copyright protection. A person who originally creates something generally has the exclusive right to control how that “expression” is used by others – they can give it away, sell it, or just prevent anyone else from using it. Tats are no different. When a tattoo artist...
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8th Circuit Adopts Fair Housing Council CDA Analysis.

When Cozy Kitten Cattery spotted what it felt was defamatory comments concerning their business on complaintsboard.com it raised their hackles and the fur started flying.  After a series of complaints were filed in state and federal courts, the district court dismissed the complaint against InMotion after raising, Sue Sponte (on its own), the issue of whether 47 U.S.C. 230 of the Communications Decency Act shielded InMotion as the ISP which hosted the offending website. (on its own), the issue of whether 47 U.S.C. 230 of the Communications Decency Act shielded InMotion as the ISP which hosted the offending website. Noting that the case was the first opportunity for the 8th Circuit Court of Appeals to hear a case involving Section 230, the court adopted the reasoning of of the 9th Circuit that it interpreted as holding that CDA immunity did not apply to websites that are designed to encourage or facilitate defamatory, or other wrongful speech, however, CDA immunity does apply...
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Legal Issues When Using Social Media

Last Friday I had the honor of presenting a program on Social Media and the Law at the annual American Bar Association meeting in San Francisco which was written up by the American Bar Association Journal (Slander or Satire? When Does Social Media Cross Legal Lines?). Presenting with me was Marylee Abrams of Abrams and Schmidt and Heather Armstrong (dooce.com). Ms. Armstrong provided background as one of the nation’s most prominent lifestyle bloggers and her history, which gave rise to the term “being dooced” as a phrase meaning that a person was fired for things they said or did in a blog or other social media, as well as current legal issues she faces being a paid endorser and copyright owner. Marylee gave an excellent program on issues employers need to consider in this world of social media. Her program was recapped very well at ABA Online, and on Marylee’s blog. I provided clean-up by discussing the things attorneys need to tell clients...
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Ringtone Copyright Royalty Rates

"Answer the phone, answer the phone" - that's what my cell phone screams in the voice of my daughter whenever someone tries to reach me. I recorded it a while back and it amuses me and everyone around me every time it plays. What happens, however, when you record someone else's creative work as your ring tone?Under US copyright law, users of compositions must pay copyright owners when recording a composition. When the recording party and the copyright owner do not negotiate a license, Section 115 of the Copyright Act provides that the Copyright Royalty Board can establish a predefined rate which allows the recording party to record the composition without the explicit permission of the owner of the composition's copyright. In traditional recording settings, this is often refereed to as a mechanical.In the recent decision DC Circuit decision Recording Indus. Assn. of Am. v. Library of Cong., No. 09-1075 ruled that the Copyright...
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AIGA Solopreneurs breakfast event

From AIGA Minnesota Website. Sign-up available at the AIGA website. Event is Thursday, June 24, 2010.Discover your entrepreneurial spirit and business desire. If freelancing or self-employment is in your future, this event will provide ideas, possibilities and insight. Join us for this special event, where a trio of speakers awaits your questions. Hear from Doug Powell, Principal, Schwartz Powell; Dan Woychick, Principal, Woychick Design; and Kenneth Kunkle, Kunkle Law PLC.Kenneth Kunkle is a local attorney whose practice is focused on working with creative professionals. Blogging at muse.kunklelaw.com, Ken provides a wide field of knowledge in the areas of business, copyright and trademarks. His long history working in, and with, a variety of creative fields provides a unique understanding of creativity and the law. Ken will be discussing issues related to business...
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Magic Words for Copyright Transfer

Last week the 8th Circuit Court of Appeals (which covers Minnesota) ruled in Thomsen v. Famous Dave's of Am., a case involving a copyright infringement claim by an independent signage designer that designed and built various signs and interior elements for Famous Dave’s Restaurant around the Twin Cities. Following a prior dispute between the parties, where Thomsen alleged infringement of his copyright (no work for hire agreement or other assignments were entered into), the parties entered into a settlement agreement. As a part of that settlement, the parties agreed that: Thomson ". . . is releasing all copyright, proprietary design and sign work to [Famous Dave's] in all other restaurants that he has worked on with the exception of . . ." Adopting language from the 9th Circuit, the Bench ruled that " A transfer of ownership requires no "magic words" to satisfy copyright law; even "a one-line pro forma statement will do." (citing, Radio Television Espanola S.A. v. New World Entm't, Ltd....
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Trademarks and Pepper Potts – Is Iron Man a good or a service?

Warning: this may be one of my more nonsensical posts.After seeing Iron Man 2 this week, I felt compelled to speak out about the misinformation propagated by Pepper Potts. During a scene in which Tony comes into Pepper's office, we overhear Pepper talking to an unidentified party about the suit. In the conversation (which I am editing to avoid spoiling it for anyone who went to see Robin Hood this weekend instead), Ms. Potts repeatedly references the intellectual property right in the suit being based on trademark law. My beef? It is clear from the story line, that the issue is one of patent law, not trademark.Trademarks generally serve two purposes: 1) to provide consumers with an assurance as to the source of goods or services; and 2) to protect the value that a business receives from creating and marketing a product. Patents, on the other hand, are intended to protect inventors...
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Does the Twitter ToS dedicate everything you post to public domain?? – NO!

I use to say that it was a myth that if it was on the Internet it was free to use. While still a myth, photojournalist Daniel Morela may have reason to question whether this in fact still true. Morla was recently sued by Agence France Presse (AFP) for “antagonistic assertion of rights” for accusing AFP of violating his copyright in several photos taken following the January earthquake - Morela has counter sued for copyright infringement. AFP has asked for summary judgment that it did not infringe on Morela's copyrights (complaint). AFP's claims are interesting because, in part, they note that since Morela used Twitter to distribute the photos (which he did not - he used Twitpic), the Twitter Terms of Service (ToS) granting Twitter the right to distribute the photos should be extended to AFP as well. Besides the fact that AFP appears to have little understanding of the facts of their own case, this reading of the Twitter ToS...
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CoCo Day Camp: “Common Myths and Misconceptions About Copyrights and Trademarks”

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?

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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