Tattoo Copyrights

Tattoo Copyrights

by admin Comment Closed
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...
Read More

8th Circuit Adopts Fair Housing Council CDA Analysis.

by admin Comment Closed
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...
Read More

Ringtone Copyright Royalty Rates

by admin Comment Closed
"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...
Read More

Magic Words for Copyright Transfer

by admin Comment Closed
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....
Read More

Trademarks and Pepper Potts – Is Iron Man a good or a service?

by admin Comment Closed
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...
Read More

Does the Twitter ToS dedicate everything you post to public domain?? – NO!

by admin Comment Closed
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...
Read More

Who can Sue when a Freelancer is Discriminated Against?

by admin Comment Closed
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...
Read More

When is a farm boy just like any other farm boy?

by admin Comment Closed
When is a farm boy just like any other farm boy? That's the question at the heart of a recent Federal Circuit decision (Odom's Tennessee Pride Sausage, Inc. v. FF Acquisition, LLC, No. 09-1473) involving a decision by the USPTO to grant a trademark registration to FF Acquisitions (a SuperValu company) over the objection of Odom (a retail food conglomerate). Despite the fact that the registration in question was merely adding the body onto an already registered mark making up the torso of a farm boy (mark on the right), Odom was concerned that the mark was now likely to confuse consumers and opposed the registration, citing its own registrations. Even though Odom argued that there were other factors to be considered under the DuPont test for likelihood of confusion, the USPTO and the Circuit court summarily dispatched the complaint by noting that the registered marks differed in...
Read More

FTC Endorsement Guidelines – Typicality Claims

by admin Comment Closed
Effective December 1, 2009, the Federal Trade Commission (FTC) has adopted new advisory guidelines concerning use of testimonials in advertising. These modifications and clarifications concerning FTC enforcement have raised concerns in many industries that rely heavily on testimonials as a large component of their marketing efforts.What are these guidelines about?The FTC is charged with enforcement of federal laws prohibiting deceptive trade practices – i.e. false advertising. To accomplish this mission, the FTC adopts rules and issues policy guidelines regarding the laws.Complete Bulletin available on KunkleLaw.comAudio from a recent interview with CoachingToys.com...
Read More

Public Performance and Ringtones

by admin Comment Closed
As if to demonstrate why the general public continues to question the validity of all copyright claims in music, ASCAP recently provided us with one of the stupidest and greediest copyright cases in the recent past. (opinion at www.eff.org). After being sued in relationship to the reasonableness of its blanket licenses (related to its antitrust exemption), ASCAP argued that when someone's cell phone rings with a musical ringtone, the ring is a public performance of the composition and therefore the phone companies owe licensing fees for each call. The Electronic Freedom Foundation, who filed an amicus brief in the case, noted that: “Under this reasoning from ASCAP, it would be a copyright violation for you to play your car radio with the window down!" While I am not sure it is quite this bad, the arguments advanced by ASCAP do require a great deal of legal gymanstics in order to work.While the law of copyright...
Read More