Fair Use & Photography

Because I’m a lawyer, everyone in my family thinks I know everything about every esoteric law that has ever been written. As much as I wish I could recite the statute my Aunt Cookie swears she has heard of which would prohibit her neighbor’s cat from using her backyard as a litter box, I usually can’t help them without having to spend a Saturday doing some good ol’ legal research (for which I’d charge full rates, of course). So imagine my surprise when my brother started a new business and started coming to me with questions about “mainstream” legal issues with which I am actually familiar! He recently started a t-shirt company out of our parents’ garage (of course) and, while he has done a great job coming up with original t-shirt designs, every so often he consults me regarding “fair use,” and, specifically whether or to what extent an existing work of art can be transformed into something “new” on one of his t-shirts. Continue reading the full story . . . »

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The Best Laid Plans of Best Buy Go Awry

Does any one electronics retailer have a monopoly on incompetent employees wearing blue shirts? That’s just one of the questions raised by a cease and desist letter sent by retail giant Best Buy to internet merchant Newegg.com, which Newegg posted on its Facebook page last week.

In its letter, Best Buy takes Newegg to task for, among other things, a TV commercial in which (in Best Buy’s words) a “fake Best Buy employee is depicted as being slovenly and uninformed about computer products, in contrast to [Newegg’s] employees who are portrayed as ‘experts.’” The letter goes on to state that Newegg’s “misuse of valuable trademarks and . . . negative portrayal of our employees violates our trademark rights and misleads consumers about our services in violation of federal and state law.”

Check out the commercial in question, after the jump. Continue reading the full story . . . »

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Q&A: What’s the Standard Split Between Publishers and Authors When Movie Rights Are Sold?

Q: I have just had a novel published by a small publishing house in Montreal, and there is already talk of adapting this into a film. The original publishing agreement does not include subsidiary rights, and the publisher — who is in touch with the movie interests — wants to write a separate deal between me and him over the movie rights. I have no fundamental objection to this, but don’t know what the split between author & publisher should be. Can you tell me what is usual/standard in such cases?

A: The usual/standard in such cases is to try hard to develop a fundamental objection to this. It’s customary for many publishers in the US and Canada not to acquire film rights to the books they publish. The custom in Europe and elsewhere is just the opposite: publishers acquire not only publication rights but also film, TV, and other “subsidiary rights.”

It seems that the only rights the publisher acquired to your novel are the publication rights. And you retain film and other “subsidiary rights.” If that’s the case, the split between you and the publisher should be 100/0, in your favor. Film rights to your novel are your property, and there is no reason why you should cut in the publisher. Why stop at film rights? Maybe you should also split with the publisher the proceeds from the sale of your boat? Continue reading the full story . . . »

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My Twitter Has a Second Name, it’s W-E-I-N-E-R

What do you get when you mix a racy photo, alleged computer hacking, Twitter, and a Congressman named Weiner? (Besides Jon Stewart’s debut as an R&B producer.) That’s right, faithful readers, you get a smorgasbord of 21st century legal issues, and an example of why privacy is harder to keep than ever. You also get a great reason to think twice about what you save on your computer. And you get the joy of what is undoubtedly the best name for a scandal since “DickiLeaks.”

You’ve probably heard about Congressman Anthony Weiner, and the tough week he’s had. To recap, Weiner’s hard drive was “hacked” and a bulging photo (labeled “package.jpg”!) was sent to a college student from his Twitter account. Then the interwebs started chirping and the politician non-denial denials started (“I can’t say with certitude” [that it isn’t my bulging crotch making the Internet rounds]). Then the conservative bloggers found some absurd photos of Weiner showing off his pecs in front of framed photos of his family. And before you know it, we’ve got tearful televised confessions (“The picture was of me, I sent it”), and voila, a new word is seared into the American collective consciousness: Weinergate! It’s hard not to feel both bad for and perplexed by Weiner, even if he isn’t exactly the first New York Congressman to get caught sending racy pics this year. But I can also only feel so bad about any situation that results in one of my coworkers walking into a department meeting and announcing, “I can’t get enough Weiner!”

Of course, at this point, we all know that Weiner’s initial explanation for the sudden proliferation of his groinal region on the Internet — that his Twitter account was “hacked” — was as bogus as it sounded. But what if we lived in a magical world where a politician’s initial explanation for a totally inexplicable scandal was actually true? Let’s look at what anti-hacking laws say Weiner could have done. (Besides resigning, hiding out for a year, then taking a cushy job on cable news).

(Note: not covered here are potential claims for copyright infringement based on the unauthorized distribution of the photo itself, a favorite theory in the ever-popular celebrity-trying-to-block-a-sex-tape segment.) Continue reading the full story . . . »

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A Fight for Your Sole

Ask a fashionista what a red soled shoe means and they’ve got two words for you: Christian Louboutin. (On the other hand, ask a guy what a shoe with a red sole means and they’ll probably answer: dirty shoes). Christian Louboutin believes the red sole defines his brands identity, so in 2008 he trademarked his red sole with the US Trademark office. Today, Christian Louboutin has a “zero tolerance policy” when it comes to enforcing his trademark (and if you’re looking for a working definition of “zero tolerance,” it might look something like this video of a monster truck rolling over thousands of counterfeit Louboutins). He has even sued brands such as Carmen SteffensOh. . . Deer, and more recently Yves Saint Laurent for violating this trademark.

Is Louboutin overreaching by claiming proprietary rights in red shoe soles? The answer might have Yves Saint Laurent’s lawyers seeing red. Continue reading the full story . . . »

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Q&A: How Does One Determine the Copyright Status of Something Like a Radio Show?

Q: I’d like to use some audio from an old radio show. My research so far reveals the show…like many old radio shows…was never copyrighted. How does one determine the copyright status of something like a radio show?

A: Let’s first talk about where copyright law is today with respect to the need for copyright registrations. Remember those old SAT questions where they asked you to find the two pairs of things that were most alike? Well, under current U.S. copyright law, copyright registrations are to copyright owners as permanently affixed Bluetooth earpieces are to morons. You don’t have to have a copyright registration to be a copyright owner, but if you do have a registration, you’ve put the public on notice that you are, indeed, a copyright owner. Continue reading the full story . . . »

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