Copyright law and international trade might seem to be a dry and academic exercise for some, but not today, matey. The Caribbean island nation of Antigua and Barbuda once operated a booming online gambling industry, but suffered dramatic setbacks after Washington, with the passage of the Federal Wire Act in 2002, prohibited online gambling. The World Trade Organization ruled that the U.S. prohibition on its citizens’ access to Antigua’s online gambling sites constituted unfair trade practice in violation of the General Agreement on Trade and Services Treaty, and after the U.S. lost its appeals in 2005, it had one year to restore access to Antigua’s gambling websites.

Today, the trade blockade remains, despite the WTO ruling. In response to the continued trade blockade, Antigua won a unique remedy on how to recoup their losses: permission by the WTO to ignore U.S. copyright law up to $21 million annually. Unlike Kim Dotcom’s MEGA, this is not an attempt to circumvent copyright law by claiming ignorance, but rather actual permission by the WTO to ignore U.S. copyright law as a sanction. This would give Antigua permission to run a website selling copyrighted movies, music and material without royalty payment to U.S. copyright owners. Litigation over such a site and the value of the copyrighted material will inevitably arise and continue for years. Antigua is set to appear before the WTO on January 28 to seek final permission to run the site. Look forward to that date to see if the WTO resurrects letters of marque for the first time since the nineteenth century.

The pirates of the Caribbean are back, and while they might not look like Johnny Depp, they’ll be offering some cutthroat prices for movies, music, and other American booty.

For more details, see: http://www.bbc.co.uk/news/technology-21193634

I ask, “Have you registered your copyrights?”

“Yes.  Poor man’s copyright. I mailed myself a copy of the CD and I’m not opening the envelope.”

Unfortunately, so-called “poor man’s copyright” does not work.

Your copyright exists as soon as you “fix” it in a “tangible medium of expression.” That is, as soon as your ideas are expressed in an actual form.  The copyright exists as soon as you record a song, write a story, or paint a picture.

However, if someone uses your music, story, photograph or painting without your permission, you MUST have a registration from the U.S. Copyright Office before you can sue in federal court.  Sending a copy to yourself in the mail may provide some evidence of when you created the work, but has no power to enforce your rights.

At $35, copyright registration is relatively inexpensive, compared to trademark registration, incorporation, or LLC formation.  Registration may not be as cheap as a postage stamp, but the benefits you will receive from copyright registration far outweigh the cost of postage for a “poor man’s copyright.”

If you would be upset if someone used your art or design without your permission – obtain a copyright registration.

In many dining establishments, a group of enthused servers will regale a table with song to help a special diner celebrate his or her birth. I have enjoyed the many variations of the song for myself, friends and other restaurant patrons. And yet throughout all of my dining experiences I have almost never heard the classic “Happy Birthday” song sung by the staff.  Being the copyright law wonk that I am, I have often wondered, “Do they choose to sing their own version, or are they prohibited under copyright law?”

“Happy Birthday To You” is one of the more famous copyrighted works in our culture. Some, such as George Washington University Law School Professor Robert Brauneis, have questioned the validity of the copyright in the song.  His study and the archive of evidentiary documentation are impressive. Professor Brauneis cites many good reasons and facts behind an argument against the validity of the song’s copyright. But for the average restaurant looking to provide a little something extra for its patrons, challenging the validity of the copyright of the song is not within its annual operating budget.

Assuming that the copyright to Happy Birthday is valid, who owns this work, and why don’t restaurant servers just sing the iconic song?

Warner Music Group (WMG) acquired the rights to the song in 1988, and has aggressively enforced the rights to the song throughout media. If Happy Birthday is sung in a movie or on TV, or published in a songbook, WMG looks for its royalties. However, restaurateurs should not be worried about a letter from WMG’s legal department. Because of the administration of rights granted under copyright law, special performance rights organizations have been created to register and license out the use of music in venues such as restaurants.

Section 106 of the Copyright Act grants the holder of a copyright a number of exclusive rights to a work. The Section 106 right in question is the public performance right of a work: § 106(4) “in the case of literary, musical, dramatic, and choreographic works… [the right] to perform the copyrighted work publicly.” In addition, the copyright holder may grant a license to this right to another person or entity. So if a film maker wants to include “Happy Birthday To You” in a scene in a film, the producer must obtain a license. The performance of a song in a discrete play, film or television show is relatively simple to administer a license.

However with non-dramatic performances, such playing music in a restaurant (or indeed singing a song live) where there are likely millions of such restaurants and other venues in the country, licensing every song played in every location would be a Sisyphean task. Performance Rights Organizations (PROs) were created to handle the administration of this right: first ASCAP, and later BMI and SESAC. Music artists and copyright holders register their music with the PROs, who then grant blanket licenses for their libraries to venues, and remit the license fees back to the registered copyright holders. As such, restaurants that play music must have a license from one (and often from all) of the PROs.

Warner Music Group licenses its catalog through ASCAP, the oldest and largest of the PROs. As such, any restaurant with an ASCAP license should be allowed to have their staff sing “Happy Birthday To You.” (see ASCAP title search Work ID: 380008955).

Now that we know who has the rights to “Happy Birthday To You” and how to obtain a license, what reasons could a restaurant have for creating their own version? Perhaps the restaurant owner has not learned of his or her rights and obligations in playing recorded music, or maybe restaurants simply want to create a unique experience for their clients and thus create new version of a perfectly serviceable song. Branding is, after all, an important part of a restaurant’s overall business strategy.

Applying for a trademark registration with the U.S. Patent and Trademark Office is often overlooked by entrepreneurs and startups.  Protecting your business’s name and logo through federal trademark registration provides numerous benefits to you, such as the following:

• Public notice of your claim of ownership of the mark;
• A legal presumption of your ownership of the mark and your exclusive right to use the mark nationwide on or in connection with the goods/services listed in the registration;
• The ability to bring an action concerning the mark in federal court;
• The use of the U.S. registration as a basis to obtain registration in foreign countries;
• The ability to record the U.S. registration with the U.S. Customs and Border Protection (CBP) Service to prevent importation of infringing foreign goods;
• The right to use the federal registration symbol ® and
• Listing in the United States Patent and Trademark Office’s online databases

Trademarks are also important tools for branding. A registered trademark may become a valuable asset for your business because it helps identify your business as the source of certain goods or services and become meaningful in the minds of consumers.  Think about “Coca Cola”, “Exxon” or “Nike.”  These names are not simply corporate names — each name carries with it a certain connotation and feeling (even if negative).

Even after obtaining a trademark registration, many entrepreneurs and startups fail to take the additional steps required to actually develop a brand. Proper branding requires handling the trademark due diligence and registration process carefully to ensure, among other things, that the marks are sufficiently distinctive, do not infringe the rights of third parties, are properly safeguarded with adequate quality control protections, and that policies are in place to protect domain names and online marks. But brand development is a larger process that requires intangible considerations aside from those issues.

Branding and Trade Dress

Branding must be a creative process in order to unify your company’s various elements. Websites, logos, slogans, product packaging, stationery, business cards, color schemes, typefaces and marketing materials should speak with one voice, complement each other and be used consistently. For example, your stationary should complement your website.  Your business cards should complement your office wallpaper.

A successful brand identity conveys a specific message and personality to the public. An accounting firm, for example, may want subtle colors, straight lines, and legible serif typefaces in order to convey an air of sophistication and professionalism to prospective clients. On the other hand, a cutting-edge Internet company vying for a slice of the millennial generation’s business may choose brighter colors, edgier graphics, and an informal sans serif typeface in order to appear young and current. (Of course, the opposite may also be true — the accounting firm may want to target a younger clientele, and the Internet company may see opportunity in an untapped tech-adverse market.)

These design elements are protectable under trademark law.  If, taken together as a whole, the elements are sufficiently distinctive, they may be protected under the Lanham Act as trade dress. “The concept of ‘trade dress’… refers to the total image of a product and may include features such as size, shape, color, color combinations, texture or graphics.” Apple Inc. v. Samsung Electronics Co. Ltd., 768 F. Supp. 2d 1040, 1045 (N.D. Cal. 2011).  To enforce trade dress in court, you must be prepared to prove that your trade dress is (1) nonfunctional; (2) either inherently distinctive or has acquired a secondary meaning; and (3) likely to be confused with the defendant’s products by consumers.”

Families of Marks

Another useful tool under trademark law is creating a family of trademarks.  Apple accomplished this with its “i”-related products, such as iPhone, iPod, iMac and iPad.   Similarly, McDonalds created a food-related Mc-family with its McNuggets, McRib, Egg McMuffin and Big Mac, to name a few.  A “family of marks” is defined as “a group of marks having a recognizable common characteristic, wherein the marks are composed and used in such a way that the public associates not only the individual marks, but the common characteristic of the family, with the trademark owner.” J&J Snack Foods Corp. v. McDonald’s Corp., 932 F.2d 1460 (Fed. Cir. 1991).

The question is not whether you have adopted and used (or even registered) a group of marks with a common feature, but whether consumers recognize that the family “surname” is indicative of a common origin of the goods or services.

The family of marks doctrine is a useful and effective way to unify seemingly unrelated products. However, it is important to note that families of marks are not easily created, and courts will not always recognize families of marks. Your trademark attorney must prove that the common element is inherently distinctive, or that it has acquired distinctiveness thorough secondary meaning.

What other creative ways of branding can you think of?  How might those methods be protected by the law?

Start-up business owners and entrepreneurs must be aware of copyright law.  Of course, entertainment related businesses such as film production companies, authors, publishers, record labels, and artists themselves deal with copyrights regularly.  But all businesses must have a basic understanding of copyright law. Entrepreneurs and their attorneys must recognize copyright issues in the ordinary course of business in order to protect the company from being liable for infringement, while simultaneously safeguarding the company’s own copyrights.

Who owns that photo on your website?

Every time you use a photo, text, music, or image, it is imperative for you and your attorney to have conducted due diligence (research) to ascertain who owns the work. Before using a copyrighted work, you must obtain full ownership through assignment, or, at minimum, a license granting you permission to use work for certain purposes.

This situation frequently arises when using photos or text to build a website, post on a blog, or create marketing and advertising material.  Where did the photos on your website come from?  If you took them yourself, fantastic!  However, if you found them online, you must ensure that the pictures are public domain (read the fine print – sometimes even so-called public domain images have restrictions), or you obtain permission to use the images.  Stock photo sites, such as Getty Images or Shutterstock, may require a fee to use the pictures.  Relying on Google Images to build your website or blog, without determining the authors of the photos, means that you will be exposing yourself and your company to a copyright infringement claim.

If you hired a photographer or had a friend take the pictures, read on…

Independent Contractors and Works for Hire.  Who owns the copyright?  …Are you sure?

Start-up companies and established businesses alike also must exercise caution when hiring independent contractors. Almost always, the independent contractor owns the copyright for any artistic work he or she created while working for you.  The exception:  Works created by independent contractors for certain types of specially commissioned works — if also memorialized in writing as a “work made for hire.”

For example, if you hire a photographer to photograph your employees for their website biographies, the photographer will own the copyright to those pictures and has every right to sell them to third parties and use the photographs for other purposes, unless the photographer executes an assignment agreement transferring all ownership rights to you.

This is true even if you entered into “work for hire” agreement because photographs do not fall within one of the enumerated types of “works made for hire” included in the Copyright Act.

Make sure you consult with a lawyer experienced in copyright law who can prepare documents to transfer copyright ownership to the right party.

Copyright Issues for Tech-Startups

Tech-startups also need to know a few things about copyright law.

“Computer programs” are specifically protected under the Copyright Act, which is one basis for why companies continually struggle with software piracy issues. As with any other copyright, you cannot copy a computer program without the owner’s permission. If you hire developers to write code for your website, app or other computer program, be sure to obtain a copyright assignment assigning all copyrights to your company.  As with photographers, “work for hire” agreements will NOT transfer copyright to you.  If you don’t get an assignment, you don’t own the copyright and the developer could potentially sell the code to a competitor.

The Copyright Act’s “first-sale doctrine” provides that once a work is sold for the first time, the purchaser may then resell that lawfully obtained copy to a third party without permission from the owner. This can get tricky. Most software developers provide, in license agreements that are rarely read by consumers (you usually just click “Agree”), that the software sold to the consumer is licensed, not purchased, with significant restrictions on its use and transferability.

Courts have said that software users are licensees rather than owners when the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions.” See Vernor v. Autodesk Inc., 621 F.3d 1102 (9th Cir. 2010).

The first sale doctrine is now before the U.S. Supreme Court for it to determine whether buyers of foreign copyrighted works may resell them in the United States without the copyright holder’s permission.

Although there is plenty of controversy as to whether or not software should be freely transferable after a lawful first purchase, the license agreement is an effective method, at least in the Ninth Circuit, to restrict the resale of software.

Red Hook and Coney Island in Brooklyn, Breezy Point and the Rockaways in Queens, Long Beach in Nassau County, and the borough of Staten Island were all hit tremendously hard.

I have set up a CrowdRise page to raise money for AmeriCares to help with the recovery efforts.  I encourage you to help with whatever amount you can, whether $5, $50, $100 or more.

First, The Freak faced charges for pot possession in 2009.  Now, Timmy’s ex-landlord is suing him for entering his former apartment after his lease expired and stealing and destroying property.

Good thing Timmy has avoided felony charges thus far and seems to be content with misdemeanors and civil actions, because after three strikes in California, you’re outta here for good.

Whether you are creating a website, preparing documents, writing letters and even emails, be sure to proofread.  Even on Facebook, Twitter and LinkedIn you should be aware of the content of your posts and the nature of your audience.  Spelling and grammar mistakes reflect upon your credibility and others’ perception of you or your business.

This is especially important in business because, as the article suggests, simple spelling mistakes can actually lead to a significant loss of business and missed opportunities.

u may relax these rules when u txt, except 4 when u txt a client or other biz-related recipient

It appears that federal agents seized over 2,400 t-shirts and baseball caps destined for Port au Prince, Haiti, bearing the registered trademarks of the SF Giants and famous slogans from the 2010 season, such as “Fear the Beard,” a reference to the Giants’ feared closer Brian Wilson’s (in)famous mane, which generated huge amounts of publicity, and imitation, during the 2010 season.

Best part of the article:

“Look at this,” said assistant special agent Anthony Ho as he held up a shirt that referred to the city as ‘Frisco,’ “There’s no way anyone from San Francisco would tolerate this. This is what we call, in investigative terms, ‘a clue.’”

Click here for the full article.

The CNN article may be found HERE:

Upon review of the information on the U.S. Patent & Trademark Office website, it appears that our favorite Governor-turned-reality-TV-star applied for registrations under International Classes 035 and 041, for “information about political elections; Providing a website featuring information about political issues” and “Educational and entertainment services, namely, providing motivational speaking services in the field of politics, culture, business and values,” respectively.  (Bristol’s trademark application only covers motivational speaking services in the field of life choices.)

From a practical standpoint, this means that, if the application is approved and the trademark registered, the name “Sarah Palin” would become even more of a brand, and Sarah Palin would have the exclusive right to use the name “Sarah Palin” in connection with the above activities and take legal action against anyone else doing so without permission.  No one else could provide motivational speaking services under the name Sarah Palin, or any other name that may cause a “likelihood of confusion.”

Such a registration seems completely unnecessary for the following reasons:

1. Palin would probably never be able to prove “likelihood of confusion”, the standard for trademark infringement;

2. Celebrities already enjoy a “right of publicity” a right under some states’ laws which gives public figures the exclusive right to exploit their names, likeness and image for commercial purposes; and

3.  FAIR USE AND PARODY.  I need not tediously describe the legal requirements for fair use and parody to confidently say that most use of the Sarah Palin trademark would fall under this category.  To be perfectly clear, Tina Fey and SNL have nothing to worry about.

BUT WAIT… THERE’S MORE!

The Palins’ trademark applications were REJECTED…for failing to sign their applications.  (Click here for more details.)  As an intellectual property attorney who has filed numerous trademark applications, I can tell you that the USPTO makes it extraordinarily difficult to submit a trademark application with no signature, if not impossible.

But, even with an initially failed trademark application, the Palins have clearly succeeded. After all, we are all still talking about them, and the Palin brand lives on.