Business and Tax Lawyer Blog

It was a great news story - In late 2009, a group calling themselves the "Yes Men" played a joke involving the US Chamber of Commerce. They put up a phony site along with a phony press release, supposedly quoting the chamber's President, Thomas Donahue, in a speech on global warming. Several national news outlets, including CNBC and Fox News, picked up the story and reported on it as real, even interrupting broadcasting to report on the "breaking" story. The US Chamber of Commerce was not amused by the joke.

The Chamber issued a DMCA takedown notice to the Yes Men's hosting provider, saying that the website clearly infringes on their copyright by directly copying design aspects of their official government site. The Yes Men countered by saying that if the ISP takes down the site, the Chamber will be liable for misrepresentation of infringement. They cited a US Supreme Court opinion, which stated that "parodies must often use substantial portions of an original work to make their point." But legal precedent also implies that parodies can be considered infringing if they are too close to the mark.

The "real" Chamber of Commerce, recognizing the value of its name and reputation, aggressively pursued its legal rights in court, U.S. Chamber Files Civil Complaint to Protect Trademark and Intellectual Property from Unlawful Use, and created a web page, U.S. Chamber of Commerce "The Facts," specifically responding to "false accusations and misstatements" of their policy. This dual approach addressed not only the Chamber's legal defense of its intellectual property rights, but also attempted to minimize the damage to their public image.

Protect your intellectual property - your trade name, trademark and service mark. Contact Jacksonville, Florida business attorneys Wood, Atter & Wolf, P.A. for legal counsel.

Find out more about this story at Yes, but is it funny? US Chamber issues takedown notice for Yes Men parody.

Joe Frazier, the former heavyweight boxing champion, tried unsuccessfully to sue the Oneida Indian tribe in Federal Court for using his picture without permission. The picture was used to promote a boxing match between Frazier's daughter and Muhammad Ali's daughter at the Oneida-owned Turning Stone Casino. The former heavyweight champion objected to the use of his picture in a way that promoted commercial gambling. The 2nd US Court of Appeals in Manhattan ruled that it had no jurisdiction in the case because of the tribe's sovereign status. To pursue the matter further, Frazier will have to sue the casino owners in an Oneida run court.

Tribal sovereignty is a complex legal issue. While congress recognizes that tribes have an inherent right to govern themselves, congress can limit that sovereignty. For example, tribal jurisdiction over their own residents had been well-established, but jurisdiction in matters between tribal and non-tribal persons is less clear cut. If your business is being affected by a legal matter, please contact Wood, Atter & Wolf, P.A. for legal counsel.

You can find out more information about this case at: Court in NY: Joe Frazier can't sue tribe here.

The US Department of Justice has announced the formation of a task force that will focus on fighting US and international crimes committed in relation to US intellectual property. The task force will work closely with state, local and international law enforcement agencies. It will also closely scrutinize current intellectual property enforcement activities as well as look at the the links between international intellectual property crime and organized crime.

The recently created Office of the Intellectual Property Enforcement Coordinator, which reports to the President of the United States, will look to the task force to offer recommendations on fulfilling its mission of creating a strategic plan for handling the evolving landscape of intellectual property protection.

Intellectual property crimes include the creation and selling of pirated and counterfeited digital media, luxury apparel, auto and airplane parts and even medication and infant formula; the market for these good is said to exceed $200 billion in the US alone and poses a significant public safety risk.

In the past, the large number of agencies involved in monitoring and enforcing intellectual property laws have made decisive action difficult. It is hoped that this new task force will help streamline and concentrate these efforts. View the full article about the new task force and its responsibilities by visiting Can US get tough on intellectual property crime?

If you have a dispute with respect to intellectual property, please contact Wood, Atter & Wolf, P.A. for patent, trademark and copyright legal counsel.

A new patent awarded to Google has sparked a media debate over Google's intended use for the software method in question. The patented method allows Google to selectively restrict content based on a variety of parameters, including geographic location. This has led some to believe that Google may be trying to censor certain content in specific countries, which is something Google has taken a stand against in their ongoing war of words with China. But a closer look at the wording of the patent would seem to imply that the new software method is more about protecting Google from copyright infringement in relation to its new book scanning initiative. In fact, the major use case presented in the patent describes a system where the accessibility of scanned reading materials is either restricted or limited to certain passages based on user access privileges that are based on local copyright laws. This step is necessary for Google because of a lack of consistency in copyright law and Fair Use Doctrine from one country to another. What is considered public domain or fair use in one country may spark a copyright infringement lawsuit in another. The new patent appears to have been designed to help Google remain compliant with copyright laws around the world. You can read more details by visiting Google content-filter patent about copyright, not censorship. If you live in the Jacksonville, Florida or Orlando, Florida area and require assistance with a patent application or copyright protection, please contact Wood, Atter & Wolf, P.A. for legal counsel.

Sun-Maid is updating their Sun-Maid girl's new look, and it is sparking controversy. The iconic symbol has been transformed from a girl in a loose-fitting smock to a modern young woman in tight-fitting clothes. The new symbol has been described by some as "Barbie Doll in Amish attire." The update follows on the heels of other well-known symbol modernization of such iconic figures as Betty Crocker, Aunt Jemima and Mrs. Butterworth.

The original drawing of the Sun-Maid girl was made in 1915, and was inspired by Lorrraine Collett Peterson, a young California girl who posed for the watercolor that is the basis of the symbol. Lorraine's look has been updated slightly over the years, but the basis of the image has always been the original watercolor – until now. The new computer animated Sun-Maid girl is a real departure from the original. Comments from conservatives to feminists are less than positive, and mostly focus on the woman's adult shape and snug top.

According to a company spokesman, the redesign was done to bring the company's image into the twenty first century as well as to help educate modern consumers about healthy food choices. It is rumored that the Sun-Maid girl will be featured in upcoming advertising doing the things a modern woman would do, such as going to the gym and shopping. See the old and new logos and find out more about the new Sun-Maid girl at 'Sun-Maid girl' makeover sparks controversy.

Companies spend a lot of money to update logos in order to freshen up their brand image and appeal to modern customers. But they do need to be careful; the image they have worked so hard to establish over the years can be damaged by a makeover that rubs consumers the wrong way. If you have a business trademark issue, please contact Wood, Atter & Wolf, P.A. for legal counsel.

In Mississippi, the same computer software that has been used to hunt down child predators on the internet is now about to be used to target those who illegally download copyrighted content like music and movies from the internet. Mississippi Attorney General Jim Hood has stated that he feels the state needs to get ahead of counterfeiters and pirates if they are going to be able to make a difference in this growing crime trend.

The office currently uses software called "Operation Fairplay" to track downloaded child pornography and keep an eye on child predators. This spring they expect to begin using a modified version of the software that will target illegal downloads of music, movies, software, and other copyrighted electronic information. Hood warns Mississippi resident that anyone caught downloading more than $100 worth of copyrighted materials can be prosecuted for a felony. He asks parents to take a part in making sure their kids are aware of the new crackdown.

Hood also announce that Mississippi will be using the software as part of the nation's first statewide task force aimed at stopping intellectual property theft. The task force will be known as" "Operation Knock Off the Knock-Offs.'' Hood hopes it will serve as a model for other states. It is believed that counterfeiting and pirating costs the US economy $250 billion annually. Read more about the Mississippi anti-pirating task force at Mississippi Attorney General to Target Intellectual Property Theft.

If you have a copyright or intellectual property matter, please contact Wood, Atter & Wolf, P.A. for legal counsel.

The latest ruling in an ongoing copyright dispute between MGA Entertainment and Mattell ensures that the popular Bratz dolls will remain on store shelves come January. A court had recently ruled that the 2010 version of Bratz dolls would be made by Mattell, not MGA. MGA was ordered to stop making the dolls and to turn over ownership of the dolls to Mattell. But a US court of appeals has suspended the order while considering its verdict in the case.

The dispute started when Mattell charged that the Bratz designer, Carter Bryant, was working at Mattell when he designed the Bratz. That would possibly give Mattell rights to the design, depending on their employment contract. A US court ruled last year that MGA had breached copyright laws by selling the dolls. MGA was subsequently ordered to stop selling the dolls, but in the latest decision the court called the earlier ruling "draconian;" MGA has stated that they would go out of business if the right to produce Bratz were taken away.

The court ordered Mattell and MGA to attempt to come to an agreement on their own. You can find out more about what will become of the Bratz doll line at Bratz dolls to remain on shelves in Mattel-MGA battle.

If you have questions about employment contracts, work for hire, or copyright infringement, please contact Wood, Atter & Wolf, P.A. for legal counsel.

Bloggers beware! Recently, the Recording Industry Association of America (RIAA) issued Google a take down notice for hosting websites that were either streaming or distributing music without authorization. Most, if not all, of the websites included in the notice have blog addresses and have either been removed from the internet or have had the music download feature disabled.

Have you noticed your protected work being reproduced on the internet without your permission? When the owner of copyrighted material, or as in this case the owner's representative, seeks to stop online infringement, a first step is to issue a take down notice under the Digital Millennium Copyright Act (DMCA). To be valid, the notice must contain several elements. For example, a claimant shall identify both the copyrighted work that has been infringed and the infringing material. Also, the claimant must include a statement that the owner has not permitted such use. The remaining requirements for a DMCA take down notice are listed in the United States Code, 17 U.S.C. Section 512(c)(3).

On the other hand, if you notice that materials on your website have been blocked or deleted by the service provider, it may be due to a DMCA claim. In that event, you may pursue a counter-notice. A counter-notice ensures that copyright owners and their representatives do not cause the removal of non-infringing materials.

If you find yourself in any of these situations, it may be wise to contact an experienced intellectual property attorney before proceeding.

The United States intellectual property offices (U.S. Patent and Trademark Office and U.S. Copyright Office) are open to comments about a new world wide treaty that could affect copyright laws. The World Intellectual Property Organization has recently considered an international treaty that would create minimum standards in copyright laws to provide people who are blind or face other visual impairments better access to copyrighted materials.

The draft treaty is sponsored by the World Blind Union and was introduced at the May 2009 session of the WIPO's Standing Committee on Copyright and Related Rights. At the committee meeting, the United States delegates indicated a commitment to enhancing accessibility of copyrighted works. They also stressed the National policy of gathering information about proposed ideas through consultations, information meetings, and notices of inquiry with citizens.

Anyone is invited to comment on the draft treaty. Comments are due on November 13, 2009 and may be submitted electronically.

In 2008, the United States Congress established a new Office of Management and Budget administrative post: U.S. Intellectual Property Enforcement Coordinator. On September 23, President Obama delegated that position to Victoria Espinel, former Assistant USTR for Intellectual Property and Innovation.

Ms. Epinel's primary job will be to combat counterfeiting and bootlegging of software, music, films, and drugs. She'll have her work cut out for her in trying to encourage countries like China to crack down on piracy abroad and prevent such illicit materials from entering the U.S.

I applaud the decision to create a dedicated executive IP position in order to fight the rampant problem of copyright violations. Not enough is being done to make certain that artists rightfully receive proper recognition and compensation for their works.

A lawsuit commenced by guitarist Joe Satriani against a wildly popular British band and its record company has been dismissed. Satriani alleged that Coldplay stole substantial parts of his 2004 song "If I Could Fly" and improperly used them in their hit song "Viva La Vida."

From court records of the case, it seems that there was a settlement between the parties. Neither side is admitting that any agreement was reached. Interestingly, another musician, Yusuf (Cat Stevens) is now claiming that "Viva La Vida" ripped off his song "Foreigner Suite" from 1973.

I went through an entire week with Coldplay's version of the song going through my head. I even downloaded it, and listened to it on repeat, hoping that I would get sick of it, and stop singing the song in the shower. It would have been interesting if this case had gone to trial to find out what really happened!

Blogging has become a popular and effective way to disseminate information about your business and personal life. While some bloggers prefer to use original content in their posts, it is also acceptable to borrow media and information from other internet sources. As a result, many blogs are the product of information that has been copied and modified. Because some of the materials on the internet may be copyright protected, it is important to observe the following guidelines when borrowing to blog.

Use ideas. Recall that a copyright only protects the expression of an idea. It does not protect the ideas or information behind the expression. Therefore you have more liberty to use other people's ideas and information so long as you're not copying the manner in which such information is arranged or expressed.

Public Domain. Materials created prior to 1923 or prior to 1977 without a copyright notice are considered to be in the public domain. That means they are not afforded copyright protection. Thus, you have free reign over public domain materials.

Beware of infringement claims. Realize that in the event of an infringement complaint, you may not be able to remove the troubles by simply taking down the infringing post. Most people take a lighthearted approach to the unauthorized copying of protected materials; they assume a case will be dismissed when they remove the protected materials. They also assume copyright infringement only applies when the copied work is misappropriated for commercial use or to make a profit. Such assumptions are not true. The act of infringement is committed, regardless of whether it's for a commercial purpose, when the work is displayed without the owner's permission or not pursuant to the fair use doctrine.

You may have noticed this fashion ad posted on internet news sites or broadcasted on entertainment TV shows. The image of the incredibly thin model is central not only to an ongoing self-esteem and body image debate in the fashion world, but also to the issues of copyright infringement and fair use in the intellectual property law world.

The battle began when internet websites, Photoshop Disasters and Boing Boing, reproduced the admittedly altered Ralph Lauren ad. Boing Boing also included a caption commenting on the model's unrealistic dimensions. Ralph Lauren filed a Digital Millennium Copyright Act (DMCA) complaint, alleging that the reproduction of the image amounted to copyright infringement and did not fall within fair use, which permits the copying of protected works for the purpose of parody and critical commentary. Photoshop Disasters removed the airbrushed photo, while Boing Boing stood its ground. The editor of Boing Boing issued a razor-sharp response, warning that future attempts to "silence their criticism" will be met with "copious mockery." In light of Boing Boing taking the offense, many organizations have shown their support for Photoshop Disasters and Boing Boing in what appears to be a victory for Fair Use and freedom of speech.

If you have any questions concerning whether or not the reproduction of a work is fair use, consult with an experienced copyright attorney.

Marvel Entertainment and Disney may lose some of the rights to characters and stories involving the Fantastic Four and X-Men come 2014. The children of the Jack Kirby, the late artist of several comic books, have given the entertainment giant notice of their intention to recapture the copyrights to the characters conceived by Mr. Kirby.

There is precedent here: in a similar action, the heirs of Jerry Siegel, the creator of Superman, successfully regained some of the rights to the character's origin from Time Warner. This could potentially be a large blow to Disney, which recently acquired Marvel for $4 billion dollars.

The U.S. Copyright Act enables creators to end old copyright grants after a lengthy waiting period and revert them back to themselves. I think artists should be fairly rewarded for their creations, but I also believe in honoring one's commitments. Here it would be ideal if the heirs can work out some agreement by which they are justly compensated but Marvel and Disney retain the ability to use the characters!

Amazon has taken it upon itself to break into customers' Kindles and surreptitiously erase copies of Nineteen Eighty-Four by George Orwell that it has deemed illegally obtained. Kindles are wireless reading devices sold by Amazon that store and display e-books and other digital information.

Amazon did not get permission from users to remove data but unilaterally made the decision to invade users' collective privacy. Once media is recorded on someone's personal device, it is effectively personal property and generally cannot be taken without a court order. What Amazon did is tantamount to vigilante justice.

Individuals' personal electronics are their own and their contents must be respected! I would be furious if a company skulked into my digital space and took what was rightfully mine! Furthermore, if these allegations are true, controversy could open up a whole can of censorship and/or freedom of speech worms. In the event of illicit activity, there are proper judicial channels and legal remedies available to those that have been truly wronged.

Consult an intellectual property attorney to properly enforce your copyrights!

The Electronic Frontier Foundation has asked the United States Copyright Office to grant an exemption to the Digital Millennium Copyright Act so that iPhone users may load outside programs onto their phones. Circumventing a manufacturer's software is referred to as "jailbreaking" and Apple says that an allowance of it could lead to devastating hacker attacks.

What are some of the potential results spelled out by Apple? Cell tower crashes from improper external commands, signal disruption, privacy concerns, exposure to viruses, increased piracy, and the spreading pornography to children. Quite the doomsday prediction!

I think that Apple should strive to protect its technology without resorting to scare tactics and sensationalism. To me, brazenly touting fatal consequences that are remotely possible undermines its credibility. Apple should make its case based on its legitimate IP rights, not on public fear.

Do you think that this forecast is realistic? Please post your comments.

Judge Sotomayor's career in the judicial system has spanned 30 years and she has ruled on both ends of the spectrum, issuing favorable judgements to both plaintiffs and defendants in IP matters.

In 1997, in Castle Rock Entertainment, Inc. v. Carol Publishing Group, 150 F.3d 132 (2d Cir. 1998), Judge Sotomayor held that a trivia book based on Seinfeld, called The Seinfeld Aptitude Test, violated various copyrights. She also found in favor of licensees of the rights to The Three Stooges in an action to protect their property.

However, in another major case, Tasini v. New York Times et al., 533 U.S. 483 (2001), Judge Sotomayor ruled against a number of freelance journalists claiming that major news outlets had improperly duplicated their work and displayed it on databases like LexisNexis without permission and in violation of copyright laws. Judge Sotomayor opined that these news organizations were in compliance with the Copyright Act of 1976. Ironically, the U.S. Supreme Court ultimately struck down her ruling!

Despite the variation in her decisions, I am glad that there will be a judge on the U.S. Supreme Court with some IP savvy to tackle what is sure to be a huge slate of cases involving new technology.

How do you feel about Judge Sotomayor's qualifications? How do you think her background will affect the Supreme Court's decisions? Please post your comments or contact me to discuss!

Competitors to Google are working feverishly to invalidate or delay a settlement agreement between Google and numerous authors and publishers that would avoid copyright infringement litigation over the digitization of literary works for the Google Books platform.

Google Books is a digital book system which scans in books, converts them into text, and makes them available and searchable online. Authors and publishers sued Google for unauthorized use of copyrighted materials. In October 2008, Google and the complainants came to an agreement that would allow Google Books to continue development.

The settlement has not been approved yet and raises antitrust issues into which the United States Department of Justice is launching an investigation. Companies like Microsoft, Amazon, and Yahoo are banding together to fight the deal as they claim that it unfairly insulates Google from liability for violating copyrights.

I think that if Google freely contracts with the authors and publishers, then it should be honored. The other tech businesses should draft their own agreements to secure the same rights instead of whining about Google! What do you think? Please post your comments!

Even the United States Patent and Trademark Office isn't immune to posthumous Michael Jackson mania. The USPTO has opened a new exhibit in conjunction with the National Inventors Hall of Fame and Museum to commemorate the late Gloved One's contributions to intellectual property.

Catch it while you can! The exhibit is slated to run from July 15 to September 7, has no entry fee, and all are welcome to visit. As I mentioned in an earlier post, Michael Jackson was very savvy when it came to IP and even had his own patent for gravity-defying shoes.

Whether you loved him or hated him, there is no denying the indelible imprint Michael Jackson left. This is exemplified by the many trademarks he left behind, including this one, for his Heal the World Foundation. With all the bizarre news reports swirling about both his life and death, it's nice to focus on some of the positive things he did!

Want to see the exhibit in person? It's located inside the USPTO headquarters at 600 Dulany Street, Alexandria, VA, 22314.

Some of the reparations sought by the plaintiffs in a class-action suit against YouTube, the ubiquitous video sharing website, have been thrown out by a U.S. federal judge. Judge Louis Stanton, of the Southern District of New York, denied a number of plaintiffs' claims for statutory damages.

YouTube is a subsidiary of Google and receives 1.2 billion video views per day. Its level of exposure has soared as amateurs and professionals alike post over 65,000 new videos every day. The clips uploaded run the gamut from home videos to pro sports highlights to news updates.

The judge ruled that statutory damages for all domestic and foreign works that are not timely registered are barred by the Digital Millennium Copyright Act of 1998. He further declared that some of the videos in question were foreign works not governed by U.S. copyright law and therefore punitive damages would not be available for them. This decision appears to have no bearing on several of the other plaintiffs as their works fall under the Copyright Act.

YouTube is by no means out of the woods yet, as another, far more ominous lawsuit has been filed against Google by Viacom, to the tune of $1 billion dollars. At this stage, Google's main defense seems to be that as long as it immediately takes down illegal videos once it becomes aware of a violation, it is in compliance with the Copyright Act.

I, for one, really enjoy YouTube videos and hope that it can find a way to operate within the bounds of copyright law. It would be a shame for such an innovative site to be shut down, so hopefully some sort of licensing agreement or other permission can be secured.

What're your feelings on YouTube? Please post your comments or contact me to discuss!

The Recording Industry Association of America has triumphed over Usenet.com in a copyright infringement case originating in October 2007. The favorable ruling was issued by a federal court in the Southern District of New York, but the exact parameters of the punishment have yet to be determined. They could range from heavy fines to the complete disintegration of Usenet.

Usenet isn't a traditional peer-to-peer networking site, but affords users access to over 120,000 newsgroups enabling them to retrieve files on-demand from a single server hosted by Usenet that draws from stored content on several servers. The RIAA accused Usenet of actively encouraging users to share music illegally via its unusual structure.

This case represents a watershed moment in terms of the RIAA's tactics as it is now pursuing companies that are facilitating piracy instead of tracking down individuals. Furthermore, the RIAA is approaching internet service providers and requesting that they convey RIAA copyright infringement notices to their customers and suspend service for repeat offenders. The RIAA will refrain from taking legal action against the ISPs themselves in exchange for their cooperation.

The RIAA should be focusing on large-scale violations and the entities that make them possible. The RIAA's new outlook makes more than a little sense from both fault-finding and efficiency standpoints. It will be much easier to combat music piracy by going after the big fish.

Do you think this is a better strategy for the RIAA? Please post your comments or contact me to discuss!

In 1999, total revenue in the US from sales and licensing of music was nearly fifteen billion dollars. By the end of 2000, that figure had dropped to just over six billion dollars. In fact, the Recording Industry Association of America (RIAA) has reported a decline in revenue for nine out of the last ten years, making the first decade of the twenty-first century the first decade that music sales were lower at the end of the decade than the beginning.

Of course, the last decade saw two separate recessions, which cannot have helped music sales. And sales during the 1990's were certainly helped a great deal by consumers re-purchasing all of their favorite taped and vinyl music on CDs.

An RIAA representative cited growing pains adjusting to digital music as the reason for the decline, saying that the music industry has been trying to adapt to rapid changes in how consumers buy and listen to music. He went on to admit that the music industry has had trouble monetizing evolving music delivery methods.

Thanks to Napster and other digital file sharing sites, customers now expect to download music from the internet for free or for very little money. So instead of purchasing a complete album of music for fifteen dollars, they can cherry pick songs for one dollar each on Apple's iTunes, or use an unauthorized file sharing site to get music.

According to Forrester Research, only sixty four percent of Americans believe that music is worth paying for. Another study showed that unauthorized file sharing sites still account for 90% of downloaded music. Find out more about the music industry's struggles at Music's lost decade: Sales cut in half.

These statistics reflect the current difficulties faced by artists trying to protect their interests due to constant advances in music delivery systems, however, as a starting point, musicians and songwriters must also take the first and most basic step of protection – filing a copyright on their "creation" at the outset.

If you live in the Jacksonville, Florida or Orlando, Florida area and need to have a copyright on your music or believe your copyright has been infringed, please contact our firm Wood, Atter & Wolf, P.A., for business legal counsel.

True story: I loved Twitter. Then I hated Twitter. And now I use it only to diversify my online social media portfolio. I mean, the micro-blogging site has even spawned new lingo in the English language! As I just used the term, an update posted on Twitter is referred to as a "tweet."

Consequently, Twitter has submitted a trademark application to the U.S. Patent and Trademark Office for the word "tweet." This process likely will turn into a race against the clock as "tweet" may become genericized before Twitter can fully establish its rights in the term.

A genericized trademark refers to one that has become so prevalent that it comprises the definition for a general class of product or service. Such a trademark no longer carries the specific connotation intended by the applicant but has developed into the generic description itself. Notable examples of genericized trademarks include "cellophane." Companies like Xerox take painstaking efforts to educate the public not to use the word as a verb ("Xerox this memo,") but rather, as an adjective ("Make a Xerox photocopy.")

What this means is that Twitter must actively take measures to inhibit broad usage of "tweet" or else it may effectively forfeit some of its rights in the word. One option is to formally notify users of proper trademark use. I would love to be part of the ad campaign that promotes phrases like, "Send me a tweet micro-blog." It is critical for trademark applicants to maintain the fine balance of popularizing their brands while concurrently preventing genericide so that they may retain their full intellectual property rights in their trademarks.

Are these rules nitpicky? Sure they are! But they all serve a purpose. Want to find out more? Send me a tweet!

Independent internet radio service providers have struck a deal with the Copyright Royalty Board that will keep them afloat. The internet stations were concerned that astronomical royalties would inflate their costs to the point of sinking their businesses. Some had worried that required royalties could potentially be set at double their total revenue!

Internet radio stations continuously stream music and draw over 42 million American listeners every week. Traditional radio stations have licensing agreements in place which enable them to legally broadcast music and which are paid for by substantial income from advertising.

The contract agreed upon by the parties spans 10 years, expires in 2015, and includes a graduated royalty fee structure whereby artists and record companies receive progressively higher payouts over time which may be tendered in the form of a cut of the stations' profits. The compensation paid will be directly proportional to the popularity of the radio stations.

Some key stations, such as such as Pandora, have yet to join the deal, but it is anticipated that they will soon sign on the dotted line. Such an agreement was critical for internet radio as it needed a plan that would enable it to be financially viable. The industry is still fairly new and in its formative years, so very few independent providers are turning a profit right now. It will take some time before these providers can compete with larger stations that are affiliated with large media conglomerates.

I love internet radio and listen to it practically every day! It has so many more dimensions than regular radio and gives users new ways to mix and match music to suit their individual tastes. I'm glad that some middle ground could be found so that internet radio can go on uninterrupted!

Are you a fan of internet radio? Let me know what you think!

By now, everyone has heard of Byrd and Melanie Billings, the Florida couple who were gunned down in cold blood in their own home in early July, 2009. Not one detail of this sad story is run of the mill as the Billings were the proud parents of 17 children, 13 of whom were adopted and have special needs. Now another puzzling wrinkle has been added to mix; Mr. Billings reportedly copyrighted his children's names and repeatedly alleged infringement.

I know what you're thinking: "Copyrighting a name?! Is that possible?!"

My answer is no. And even if it is, it's doubtful that he would be able to pursue a copyright infringement claim. Copyrights protect an expression of creativity on a tangible medium. I don't care how creative Hollywood parents get with their babies' names--it's not eligible for copyright protection. Write a poem with the kid's name, and now the poem is eligible for copyright protection.

Strangely, Mr. Billings frequently sent letters to the Florida Department of Children and Families, accusing the agency of infringing upon copyrights on his children's names and demanding $100 million dollars in silver coins or Federal Reserve notes. He claimed that the DCF violated copyrights, trademarks, contracts, admiralty and maritime law, the Truth in Lending Act, and committed libel. This story has gotten odder and odder in the days have since the shootings.

Mr. Billings appears to have had a checkered past including ownership of a strip club, alleged involvement in an adoption scam, and associations with disreputable individuals. This has led some to speculate whether the killings were a contract hit. Unfortunately, nothing conclusive has been discovered as to motive.

Despite the darker facts that have emerged, the Billings seem to have been a sweet couple blessed with the wherewithal to take care of several developmentally-disabled children. It's tragic that some of their own colleagues may have been responsible for their murders, and I sincerely hope that the perpetrators are brought to justice and punished to the full extent of the law. I can't fathom such callous indifference to life!

How do you feel about these new revelations? Please post your comments!

Numerous reports have surfaced alleging that the underlying ideas for one of the wildly successful Harry Potter books may not have come from author J.K. Rowling but instead may have been an imitation of a preexisting fictional personality dubbed Willy the Wizard.

Rowling's 2000 fantasy novel, Harry Potter and the Goblet of Fire, is contended to have a striking resemblance to a book written by British author Adrian Jacobs in 1987 titled "The Adventures of Willy the Wizard – No 1 Livid Land." Interestingly, it is claimed that Jacobs, who died several years ago, had unsuccessfully submitted the manuscript for his novel to the same literary agent that currently represents Rowling. Jacobs' estate has commenced a copyright infringement action against Rowling's publishing company, Bloomsbury Publishing Plc.

Copyrights enable authors, artists, musicians, and other composers to guard their intellectual property and deter plagiarism. In the absence of a license agreement or other authorization, the original author has exclusive rights to reproduce or create derivatives of his or her work.

I, for one, hope that the accusations are unmeritorious as Rowling has been an inspiration to many and substantiation of such claims would cast a dark cloud over a series that has entertained millions. Duplicating another's original literary work and passing it off as one's own is tantamount to theft and would be extremely distasteful, especially for a multi-billion dollar franchise such as that of Harry Potter.

What's your reaction to these allegations? Please post your thoughts and comments!

 The Associated Press has reached an agreement with All Headline News, to drop its intellectual property lawsuit alleging that AHN essentially stole AP stories and tried to pass them off as its own. The complaint included misappropriation of news reports as well as copyright and trademark infringement.

The suit was filed in January 2008 in the U.S. District Court for the Southern District of New York and the AP relied heavily on the theory of "hot news." This theory was originally set forth in International News Service v. Associated Press, 248 U.S. 215 (1918), wherein the Supreme Court held that, as far as ownership rights, breaking news may be treated like quasi-property. U.S. District Court Judge P. Kevin Castel ruled that "hot news" could serve as a basis for a misappropriation claim in the instant case, because money, time, and resources were expended to gather this information. This decision was somewhat surprising as most view "hot news" to have limited applicability.

The AP accused AHN of actively copying its news information without a license and rewriting it to appear as AHN's original work. The suit was ultimately resolved in June 2009 and as part of the deal, AHN conceded that it had used AP intellectual property without permission in several instances.

If someone had pilfered my work, I would find out whether they intended on giving me credit for my work, or whether they intended to compensate me for what was rightfully mine! It is unsettling when people try to take credit for someone else's efforts, because it doesn't offer any motivation for creative, hard-working individuals to keep contributing to the public sphere.

Want to insulate yourself from intellectual property theft? Contact an intellectual property attorney to learn how to guard your important business content!

The recently deceased superstar was known by many names: the King of Pop, M.J., Jack-o, and the list goes on. We also recognize him either as a dark-skinned cherub-faced child or a pale, middle-aged man with over-processed facial features. Why don't we also know him as an Intellectual Property Goldmine? Love him or hate him, the supremely talented character was a genius when it came to securing various forms of intellectual property during his long and decorated career as an artist and performer. Michael Jackson brilliantly relied on copyrights, trademarks, and even patents to protect his work, and was an avid collector of others' proprietary works.

Jackson registered his name with the U.S. Patent and Trademark Office and held a multitude of trademarks ranging from performances to merchandise to fan clubs. Even for a personality as distinctive as Jackson, trademarks played an important role in further distinguishing him from others.

Not only did Jackson guard his own work and attributes, he even acquired copyrights to other music. He owned a 50 percent stake of Sony/ATV, a joint venture which controls publishing rights to two hundred and fifty one Beatles songs. Jackson famously outbid Paul McCartney to purchase the song-copyright catalog in 1985. Today, Sony/ATV is estimated to be worth upwards of $1 billion dollars.

Amazingly, Michael Jackson even patented his very own invention, a method and means for creating an anti-gravity illusion. The patent features a shoe interfitting with a peg protruding from a stage and enables a wearer to lean forward at a 45 degree angle to the floor without falling. It certainly appears to be unprecedented for a musician to have obtained a patent himself.

Universal Music Group, the copyright holder of Prince's song, "Let's Go Crazy," earned over $6.9 billion in 2007. In February of that same year, toddler Holden Lenz was lucky to take 6.9 steps on his own two feet. But that didn't stop Universal from suing Holden's parents for copyright infringement, when they posted a 30-second video on YouTube of the baby bobbing to "Let's Go Crazy," playing faintly in the background of their kitchen in Pennsylvania.

Long before the tot could sing a nursery rhyme, his case set a precedent in federal court. The Northern District of California interpreted the Digital Millenium Copyright Act (DCMA) as requiring copyright owners to conduct a good faith evaluation of alleged infringement to consider fair use of the work, prior to sending takedown notices to websites like YouTube. Failure to do so could expose the owner to damages. This case essentially placed the burden of preventing online copyright infringement back on the owner.

The DCMA establishes safe harbors for internet hosts, so that they are not liable for the infringing acts of individual website owners or public posts on websites. Online companies like Facebook, MySpace, and YouTube enjoy the benefit of this safe harbor if they expeditiously remove allegedly infringing material, upon receiving a Takedown Notice from the owner. The online company then must notify the posting party, so that he can send a counternotification that he believes, in good faith, that he is not infringing. Unless the owner filed an infringement suit against the posting party, the online company, obviously caught in the middle of this war, then has 14 business days to restore the material on their site.

Because the Takedown Notice is relatively easy to send, and it starts such a flurry of burdens on online companies, the Lenz case requires copyright owners to do their due diligence to first determine whether there has been fair use of their material. Otherwise, the copyright holder faces liability for misrepresentation.

While strict copyright laws are intended to promote creativity, by protecting the rights of those who express creativity on a tangible medium. Although initially counterintuitive to place the burden back on copyright owners to perform due diligence investigations on alleged infringers, this requirement may, in itself, promote creativity. Lenz's attorney, Corynne McSherry argued that people who post on online sites "create a new and more vibrant public sphere," and that these posts should not be discouraged.

I absolutely agree with McSherry. I am one of millions of Facebook junkies. My friends' videos, photos, and posts are what make Facebook so intriguing (and addictive). The fair use of copyrighted material becomes a springboard for my friends' own creative works. Without my friends' contributions, the allure of Facebook would literally fade away.

What do you think? Read more about this story in an article by the ABA Journal. I'd love to hear your comments--contact me to discuss!

Warez is a term internet users created that refers to illegally downloaded copyrighted works. It likely originated from the plural of "software" as such groups often use specialized computer programs and servers to transfer large amounts of data, such a music and digital films.

Illegal downloading is a serious crime in the United States. In fact, I discussed the harsher penalties recently imposed by President Bush in the Pro-IP Act of 2008.

A Federal Court of Appeals recently upheld a 30-month sentence for downloading copyrighted works through a warez group. The defendant was guilty of illegally downloading films and music from the Czech Republic.

In this case, the defendant was indicted under a Federal statute for willful copyright infringement by reproducing or distributing during a 180-day period at least ten copies of one or more copyrighted works with a retail value of more than $2500. Even though the defendant had no criminal record and did not benefit financially from the activity, a federal judge determined that the prison sentence was reasonable.

All things considered, it is a good idea to be aware of the downloading activities on your computers or networks. According to federal law, many people may qualify for harsh penalties, including some very hard time.

On August 1st of last year, Copyright Office fees changed. While basic electronic filing will still be $35.00 per claim, the fees for form CO filing (which is filed electronically, printed out, then mailed to the Office) will jump to $50.00. Paper applications for published photographs will increase to $65.00. Currently, the fee for form CO filing is $45.00 and the fee for a paper application for published photographs is only $45.00. The Copyright Office stated that increased fees for paper applications are associated with the higher cost of processing them.

A copyright protects the expression of your original works of authorship including literary, artistic, or musical compositions and sound recordings. For example, if you register an original set of song lyrics, you can prohibit others from reproducing them without your express authorization. In this manner you may be able to charge royalties in exchange for such authorization.

The change in fee structure may seem slight. However, in light of the current economy, any future increase in registration fees should provide you with the necessary reason to expedite your copyright application and submit it before the changes take effect.

My advice? Get your copyright applications filed before the fee changes! Don't forget to contact a good copyright or intellectual property lawyer to assist you.

When does a fan's admiration become copyright infringement? This question was at issue when J.K. Rowling, author of the famed Harry Potter novels, filed a complaint against Steve Vander Ark, a fan of the series. In ruling for infringement, a federal judged enjoined Ark from publishing his book, "The Harry Potter Lexicon" and awarded Rowling monetary damages.

Prior to writing the book, Ark created a website, also called "The Harry Potter Lexicon." The website defines and cross references characters and elements from Rowling's novels in addition to providing updates about Harry Potter film releases and events.

During the lawsuit, Ark defended his position with fair use. Fair use is a legal defense that allows an author or artist copy a limited amount of preexisting material, without permission, for incorporation into a new work.

However, the judge determined that the Lexicon was a mere compilation of Rowling's copyrighted work and did not qualify as a new expression for the fair use defense. Other examples of compilations include "Best Of" albums such as Best Hits of the 1980s. Generally, the creators of such compilations must either own the rights or have authorization to use the individual works.

I'm sure you noticed this artistic image of Barack Obama during the 2008 Presidential Election. Street artist, Shepard Fairey, created it and based the work on an Associated Press photo found on Google Image. Now, AP claims that the artist copied their photo without the "required permission." Is this an example of copyright infringement? For now, the parties' attorneys are not disclosing much information; however Fairey's lawyer has brought mentioned the doctrine of fair use.

Fair use is a legal defense to avoid copyright infringement liability. It is not an exact rule; rather, it weighs various factors: the purpose and character of the use, the nature of the work that was copied, the amount the copyrighted work was copied, and the effect of the new work on potential markets for the copyrighted work.

Fairey's poster features a portrait of Barack Obama looking into the distance and splashed in red, white, and blue. At the bottom is an underlined word reading, "HOPE." Fairey said he made the picture specifically for the campaign after being requested to do so. However, the Obama campaign was hesitant about using an image to which they did not own the rights. Although the image was never officially used by the Presidential campaign, supporters distributed copies of the popular image at rallies and posted it on their websites

Now that the election is over, Fairey's work will be displayed in an art exhibit at the Institute of Contemporary Art in Boston as well as an exhibit at the National Portrait Gallery in Washington. The work is also being published in various books pertaining to the 2008 Election.

If you are an artist and wish to create a piece of artwork based on previous work, you may want to first consider getting authorization from the original owners. You can be sure that the details will be negotiated. Our law firm not only does trademark registration, but also negotiates licensing deals, drafts cease & desist letters, and is well-equipped to litigate a dispute. If you need assistance in these matters, contact us.

What happens to your intellectual property when you share it on a social network such a Facebook? For a short period of time, user content such as photos appeared to belong to the website.

Recently, Facebook briefly changed its terms of service. The new terms appeared to claim ownership in the intellectual property rights of any user content you uploaded, even after you deleted your account. Critics claimed that under this version of the terms, Facebook could potentially use your photos for commercial purposes or prevent you from doing the same.

After protest from users, Facebook CEO, Mark Zuckerberg, reverted back to an original version of the terms of use. The language granting Facebook such extensive ownership of your content appears to be absent. Zuckerberg stated in his blog that it is necessary to have some license over user content in order for the network to exist.

The team at Facebook is now in the process of drafting new terms of service that is more user friendly and easier to understand. Facebook users are encouraged to provide ideas for the new document. Read more about this topic here.

Small businesses rely on their proprietary assets, and many of these business depend on global transactions. However, less than one fifth of these businesses realize that their federal trademark and patent protections are limited to the United States. Are your IP assets protected abroad?

Without a doubt, profits fall prey to overseas counterfeiting and piracy. Counterfeiting is the creation of imitation products while piracy involves the unauthorized use or reproduction of software.

Stopfakes.gov is a great resource to help determine whether you should seek international protection. The website features different tool-kits to educate business owners about intellectual property (IP) protection in various foreign countries. Also included are instructions for filing a compliant against international infringers.

Strategy Targeting Organized Piracy (STOP) is part of a government effort with a two part objective. The first part is to strengthen IP enforcement throughout the world. The second part is to prevent IP crime throughout the world. STOP, along with other government organizations, provide protection to domestic businesses by regulating U.S. boarders and preventing the importation of counterfeited products, for example.

For more information on international trademarks or patents, contact a trademark attorney who understand the need to work closely with IP counsel abroad.

Have you ever said, "Wrap it in cellophane" to ask for your food to be wrapped in plastic? How about, "Kleenex is softer to blow your nose" to recommend facial tissue to a friend, or "I need a xerox of this report" to request a photocopy of your document?

Cellophane, Kleenex, and Xerox are all trademarked brand names. By using a brand name to describe a generic product, you may be furthering trademark dilution.

Dilution occurs when a trademark becomes so overused that the trademark starts to identify a product itself, rather than the brand or company behind the product. Personally, I find that to be the case with "Band-Aid" and "Google." Why? Because we over-look the fact that the plastic bandage for our paper cut was not, in fact, made by Johnson & Johnson, even if we did ask for a Band-Aid. In addition, how many other Internet search engines are used when we're asked to "Google it"? Compare this with consumers' attitudes to other products: watch how noses turn up to cola that did not originate from the Coca-Cola company!

If a trademark becomes too diluted, it may become a generic term and lose protection under trademark laws. Companies on the verge of losing their protected status due to dilution will often launch extensive and expensive campaigns to prevent the public from using their trademarks in a generic fashion.

Are you concerned about the dilution of your trademark? Contact a trademark attorney for a consultation.

During the week of June 22-27, 2009, inventors and innovators gathered in Alexandria, VA for Innovation Week. The United States Patent and Trademark Office hosted this event at their headquarters in order to celebrate the important role patents and the USPTO play in the economy and the advancement of science and technology.

The event was open to the public and included dexhibits on display, technology specific presentations to patent examiners, and a multi-day conference for independent inventors.  Interested parties were able to attend Innovation Week as a spectator or were able to take a more active role in the event by participating as a keynote speaker, technology specific presenter, and patent exhibitor.

No "orphan works" are not the labors of a parentless child. Orphan works are copyrighted materials where the creator is difficult or impossible to find. If a reasonable effort is put into finding the creator, the work is considered to be orphaned. The problem arises when people want to make legitimate and good-faith use of the orphan work, but can't find the creator to enter into a licensing agreement.

In Canada, my native country, the Copyright Board of Canada has permitted the issuance of licenses on behalf of lost authors for the use of orphan works. As of August 2008, the Board issued 226 licenses, and only seven applications have been denied.

Here in the U.S., legislation is pending in Congress, intended to ease the orphan works problem. It is similar to the Canadian model, in that reasonable steps must be undertaken to locate the creator. If a license is granted to a good faith user, the legislation proposes to attach an orphan works symbol on the licensed material, in the event that the original author surfaces. If and when the original author steps forward, the good faith user will then have to pay reasonable compensation, the amount to be determined by the parties or by a court of law.

If you have expressed your creativity in any form, protect your expressions from becoming orphaned! Contact a copyright attorney to register your works.

The new Pro-IP Act makes current copyright laws more strict, in a sense. For instance, any property used to commit (or facilitate the commission of) a criminal offense involving copyrighted works may be seized. This provision amends §506 of the existing Copyright Act. Also, it makes it unlawful to export unauthorized copies of protected works from the U.S.

The new Pro-IP Act amps up enforcement efforts against counterfeiting and piracy. One of the ways it achieves this is that the Act creates a position, appointed by the President: the Intellectual Property Enforcement Coordinator (IPEC), within the Executive branch. The role of the IPEC is to develop & implement a Joint Strategic Plan to combat counterfeiting and piracy. In addition, the Act increases funding and resources to enforce copyright laws.

Not surprisingly, copyright holders, owners, and registrants are happy about these stricter laws that protect them and their works. However, public advisory groups and those advocating for more access to creative works educational settings are concerned that this new law does not benefit groups that it intends to benefit, namely, the public and students. Some criticisms are regarding the increase in expected litigation, making it cost-prohibitive to give the public or students access to a greater variety of creative works. Another concern is that the PRO-IP Act is of more benefit to big media companies, rather than the public and independent artists.

The new Pro-IP Act is the thankfully succinct nickname for the new "Prioritizing Resources and Organization for Intellectual Property" Act. Its objective is to protect innovation, and to better encourage creative contributions to the U.S. economy. President Bush signed the bill into law on October 13, 2008.

In an age where an 11-year old's act of downloading music can cost his parents a six-figure (and in some cases, seven-figure!) judgment, the new Pro-IP act makes it more likely that these judgments roll into the eight-digit categories.

Downloading music is not the only way that copyright laws can be violated. Any type of "copy and paste" work could be an act of infringement. This has widespread implications as more people, including children, are blogging, sharing ring tones, and personalizing web pages.

Now I've seen it all. ...all except for Elvis, that is. In browsing through the Copyright Office's FAQs, there is an answer to the question posed: "How do I protect my sighting of Elvis?"

Copyright protects creative expression on a tangible medium. That means that the expression must have some element of creativity to be protected. While works like sculptures, paintings, and musical scores are obviously creative expressions; lists and forms are among items that are not, and cannot be protected.

A "tangible medium" is something like paper, canvas, or digital recordings. So while a song you sing outloud is, in itself, not eligible for copyright protection, it can be if you write the lyrics on paper or save the melody to a CD.

So to answer the question about whether a sighting can be protected, the answer is unequivocally "No." However, while the sighting itself cannot be protected, if you took a photograph (a creative expression on a tangible medium), the photograph can be eligible for copyright protection. For the Copyright Office's detailed answer, click here.

Of the five titles of the Digital Millennium Copyright Act ("DCMA"), I have the most inquiries about Title II, the Online Copyright Infringement Liability Limitation Act ("OCILLA"). This title addresses liability of online service providers ("OSPs") in copyright infringement actions.

With the advent of the Internet, instances of copyright infringement exploded. Copying another's work is as easy as a copy and paste from one source to another. Copyright owners faced the challenge of enforcing their rights against online infringers, who were either difficult and/or expensive to find, and once found, these infringers often had no money to compensate the original author/creator. As such, copyright owners turned to OSPs as parties in litigation, since OSPs were easier to find, and often had more financial resources to pursue.

The DMCA was signed into law in 1998 to better protect OSPs from the massive onslaught of infringement claims. In general, OCILLA created safe harbors for OSPs, such that OSPs could not be held liable for copyright infringement if its capacity was only as a passive conduit for Internet information, and if it did not know about or actively participate in the alleged infringement.

To qualify for these safe harbors, OSPs should do the following:

1) Designate an agent to receive infringement claim notices from copyright owners;

2) Designate a person to deal with those infringement claim notices;

3) Implement and execute a policy to terminate the accounts of repeate copyright infringers, and make this policy known to all Internet subscribers;

4) Take action, such as removing or blocking access to allegedly infringing content, once alleged infringement has been discovered; and

5) Accomodate and cooperate with measures that copyright owners take to identify or protect their copyrighted works (which could include use of watermarks or encryption to prevent copying and pasting of their work).

For more information, visit the U.S. Copyright Office website.

Recently, at the Florida Coastal School of Law campus in Jacksonville, Florida, law professor, Carolyn Herman and patent attorney, Clark Wilson, presented a seminar entitled, "Identifying Intellectual Property Issues for the General Practitioner." It was a succinct presentation covering patent, trademark, and copyright laws.

This is the second annual presentation of this seminar, which was given in conjunction with Florida Coastal's Alumni Weekend celebration. I recommend this seminar to attorneys, business executives, entrepreneurs, and inventors alike, and would encourage anyone interested in attending to sign up for the seminar again next year.

Politicians made the rounds in Jacksonville, Florida during 2008, promoting their campaigns. In a country where corporate powerhouses like Napster have made headlines for prosecuting teenagers who download music without permission or payment, could presidential candidates McCain or Obama be accused of a similar transgression?

Apparently so. The band, the Foo Fighters, has accused McCain of misappropriating their song, "Hero," for the purpose of promoting his campaign. Similarly, Obama has been under fire for using the legendary song, "Soul Man" without Sam Moore's permission.

Even McCain's running-mate and co-maverick, Sarah Palin, has been in cahoots with the band, Heart, for the use of the song, "Barracuda." If Heart has not been compensated for the use of their hard-driving rock song, they should be! Association with the song has given birth to a pop culture brand name. This has parleed into an entire line of "Sarahcuda" products, the intent of which are obviously to promote Palin.

Copyright misappropriation is theft. Because I represent musicians, most of whom are garage bands and independent artists, I do a lot of advising as to proper channels to get permission for using the music and lyrics of popular artists. On the flip side, I also stand up for these "lone voices," when they feel that another artist has misappropriated their work. My name is Jo-Anne Yau, and I approved this message.

Businesses often use their business name to create a logo. Both the name and the logo are trademarks identifying goods and/or services. Should they be filed on the same trademark application?

No. Even if the logo is a stylistic version of the business name, if they can be used separately, they should each be filed on separate trademark applications. Filing an application for the logo protects only the graphic representation of the business name. To protect the business name itself, separate trademark registration will protect the use of that name, regardless of the font, color, or manner in which the business name is being presented.