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Protecting one's intellectual property online can seem like an onerous task. This is especially the case with copyrighted content. However, content creators can help protect their copyrights by taking several actions.
Keep in mind that according to the U.S. Copyright Office, a copyright is a "form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works." Notably, copyrights protect the expression of ideas, and not the ideas themselves. Additionally, copyrights attach immediately when the work is fixed in some form of tangible medium of expression (like a book, recording, painting, blog post, etc.) Although it is not necessary to register a copyright for protections to attach, a registered copyright has additional benefits should someone infringe. For more information on what a copyright is, see my earlier post here. So what steps can you take to protect your creative, copyrighted works? Place a copyright notice on your work. In the context of protecting copyrights online, you can place a copyright notice alongside your work. This need not be complicated, and can simply state "Copyright (your business' name) 2014. All Rights Reserved." Although this isn't necessary, it informs potential infringers that you are aware of your rights with respect to the work, potentially discouraging them from infringing. For photos, this can be effectively accomplished by watermarking your images. Define others' rights in utilizing your work. Create a policy (and place a link to it on your site) that tightly defines how people may use your content with and without your permission. Effectively, this creates a route for potential infringers to utilize your work in a manner that respects your copyrights by offering them a limited license under terms you decide. Even better, these terms establish how other people can freely advertise your work. Consider registering your copyright. Some content, especially if used as a means of generating income, may warrant a Federal Copyright Registration. This is purely optional, although there are benefits to registering a copyright which primarily manifest during litigation. Some of the added benefits of registration include: the ability to sue for attorney's fees; the ability to sue for statutory damages (which is easier to prove than actual damages); a presumption (after 5 years) that the copyright is valid and all facts in its registration are true; the registration itself constitutes notice that said content is copyrighted. Additionally, registration may allow you to transfer copyrights easier. Find out if your copyrighted material is being infringed upon. Once you are aware that your work is being infringed upon, you can take steps to have the infringing work taken down, or at least attribute credit to you, whichever you deem appropriate. There are many different tools you can use to find out if your works have been infringed upon. Not surprisingly, a Google search is a great place to start as the search engine has both text and image search capabilities. Sound recordings are much more difficult to police as there can be multiple copyrighted elements, in addition to the technical difficulties of searching audio recordings. Contact the infringer. Generally, there is some manner available to contact someone that improperly posts your content, be it via email, comment, or message. Utilize whatever method you believe to best contact the infringer and request that they remove your content, or point them in the direction of your use policy and request that they abide. If they fail to remove the content or fail to adhere to the policy, locate the website's ISP information. To do so, you can use this site or this site. Once you have the ISP's information, send a Takedown notice (free samples can be easily found through a Google search) to the ISP, which states that one of the sites it is hosting contains infringing material. The Digital Milennium Copyright Act allows for an ISP to be held liable for hosting infringing content. Generally, once the ISP is notified that they are hosting an infringing work, the website will be taken down so the ISP can avoid liability. When to hire an attorney. If the ISP fails to remove the content, or take down the website, then you may wish to hire an attorney to prosecute your claim of intellectual property infringement. If you have yet to register the copyright of your protected content, then you may have to do so before any litigation may commence. Following these steps will help you protect your copyrighted content online, allowing you to only worry about creating more content to share with the world.
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Last week, the NCAA eliminated a controversial provision of the contracts it requires DIvision 1 athletes to sign. That is, the organization removed the provision that allows the NCAA, or an assigned third party, to use the name and likeness of the athlete to promote NCAA events without compensation.
Currently, the NCAA is awaiting the decision of a Federal Judge in the O'Bannon v. NCAA trial, which is a class action lawsuit brought by former, and current, Division 1 athletes principally challenging the NCAA's use of the athletes' names and likenesses in television broadcasts, rebroadcasts, and video games without compensation. The NCAA's elimination of the name and likeness provision appears to be an effort to distance the organization from the practices which resulted in the O'Bannon lawsuit. Name and likeness rights, also known as publicity rights, are the personal rights to control the use of one's name, image, or likeness for commercial use. These rights continue to exist after death and are freely assignable. Publicity rights are State specific. Publicity rights are an important issue for collegiate athletes because intercollegiate athletics, particularly Division 1 football and basketball, is a multi-billion dollar industry where the athletes do not get paid to play, nor for the use of their names and likenesses. Meanwhile, some NCAA conferences and schools have been making millions on media deals and broadcast rights for their sporting events which rely on the use of the athletes' names and likenesses. Additionally, the NCAA had been licensing the use of these athletes' likenesses, at a profit, for video games. In some cases, athletes' likenesses were used years after their college career had ended, capitalizing on players' success and popularity as a professional. Not only were the athletes unpaid for their on-field performance, but they were also unpaid for the use of their likeness, seemingly in perpetuity prior to the O'Bannon lawsuit. Although there has yet to be a decision by the Federal Judge in the O'Bannon case, it is telling that the NCAA is removing its name and likeness provision from its athlete contracts. However, some individual colleges and conferences still require athletes to sign name and likeness releases. It will be interesting to see how the Court rules on the O'Bannon case, as it has the potential to reshape the business of intercollegiate athletics.
Last week, Lebron James announced that he would be returning to his hometown team, the Cleveland Cavaliers. The following day, the Cavaliers sold all of their remaining season ticket plans. However, the Cavaliers are not the only Ohio business benefitting from Lebron's return.
In anticipation of Lebron announcing what team he would sign with, Fresh Brewed Tees created a tee-shirt design it would sell should Lebron return to the Cavaliers. Fresh Brewed Tees tweeted this design to its sizable following, and within hours of Lebron's decision, the company sold out of its initial batch of shirts. (For more on Fresh Brewed Tees success following Lebron's announcement, see this article.) The tee-shirt designed by Fresh Brewed Tees serves as a good example of ambush marketing done well. For a brief review of ambush marketing, see my previous post here. Take a look at the shirt design below:
Let's break down the elements of the shirts shown above. Remember, proper ambush marketing does not use or directly associate itself with any protected trademarks surrounding an event. In this case, the event being Lebron's return to the Cleveland Cavaliers.
FOR6IVEN The most prominent feature of the design is the word FOR6IVEN, which is clearly a play on the word "Forgiven" with the number six replacing the G. The word "Forgiven" does not allude to any trademarks held by Lebron, the Cavaliers, or the NBA. The text is bolded and entirely in capitals, which is distinct from the Cavaliers logo. Additionally, the text is in a different font than the Cavaliers' logo. The number six that replaces the G is also not associated with any known trademark owned by the Cavaliers or Lebron, and exists as an allusion to Lebron's jersey number while playing for the Miami Heat. It is still not known whether Lebron will even wear a 6 on his jersey in Cleveland. Actually, Fresh Brewed Tees should be able to trademark the term "FOR6IVEN" for use on apparel, specifically tee-shirts. As a trademark is a word, phrase, symbol or design that identifies and distinguishes the source of goods from others, Fresh Brewed Tees could trademark the word to create a line of tee-shirts, or other clothing, which similarly allude to Lebron. A quick search of the US Patent and Trademark Office's trademark database revealed no trademark filings for the term. THE KINGDOM RESTORED This phrase is a secondary design element of the tee-shirt, appearing below "FOR6IVEN" in plain text and all capital letters. This phrase is an allusion to Lebron James' nickname "King James," which is trademarked, and is perhaps suggesting that Ohio, or Cleveland, is the kingdom. In the context of the shirt, "kingdom" is somewhat vague. The phrase does not specify what said kingdom is or who rules it. Ultimately, the allusion to Lebron is so removed from the trademark that it would not constitute infringement. Given the phrase "THE KINGDOM RESTORED," there appears to be little, if any, likelihood of confusion with Lebron's trademark. The image of a basketball with a sword through it The final element of the tee-shirt is an image of a basketball with a sword through it, placed on the center of the shirt, below all other elements. This element is an allusion to the Cavaliers logo, which also contains a sword and basketball. However, in the Cavaliers logo, the sword is puncturing the team name in the foreground of a basketball. Additionally, the two swords are strikingly similar. This element of the tee-shirt design is too close to the trademarked logo of the Cavaliers, possibly creating a likelihood of confusion. As the Cavaliers sell tee-shirts featuring their logo, the shirts would be in the same channels of commerce, strengthening any infringement claim. There also is a colorable argument that Fresh Brewed Tees intentionally selected this design element to be similar to elements of the Cavaliers' logo. By implementing the sword and basketball design, purchasers further understand the connection of the above phrases with the team. On the other hand, if faced with an infringement suit, Fresh Brewed Tees could claim that the Cavaliers' logo is distinct from its design as the sword in the logo pierces the team name and not the basketball. Further, the company could argue that the sword used is generic, and not specific to the Cavaliers' logo. It is unclear whether Fresh Brewed Tees would prevail on such an argument, but to avoid a potential infringement suit, it may be in Fresh Brewed Tees best interest to remove the sword and basketball image. Although Fresh Brewed Tees ambush of Lebron's return to Cleveland has been financially successful in a short period of time and mostly proper, the company may wish to consider removing the image of a sword through a basketball to avoid a potential infringement suit. Should the company do so, its FOR6IVEN tee-shirts will serve as a primary example of a proper ambush. Earlier this week, the Supreme Court of the United States of America issued an important decision on the case of American Broadcasting Cos. Inc., Et Al. v. Aereo, Inc. The key issue in this case was whether Aereo could broadcast copyrighted content (which it did not own the copyright to) that appeared on TV without obtaining a license to distribute the content. The Supreme Court ruled against Aereo, holding that its broadcasting of copyrighted content without a license from the copyright holder was unlawful.
Although the case hinged on technical, copyright law concepts which are too lengthy for discussion here, the Aereo case serves as a reminder for a very basic copyright law principle: DON'T USE ANOTHER'S COPYRIGHTED MATERIAL UNLESS YOU FIRST OBTAIN THE LICENSE TO DO SO But what is a copyright? According to the U.S. Copyright Office, a copyright is a "form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works." This means that a work must be:
Copyrightable subject matters include, but are not limited to:
Notably, copyright law does not protect:
However, copyright law may protect how facts, ideas, systems and methods of operation are expressed. Additionally, copyrights do not need to be registered anywhere for protection to exist. However, there are benefits to registering a copyright with the U.S. Copyright office, such as having the facts of the copyright on public record and also granting the copyright holder certain legal remedies such as statutory damages and legal fees in litigation. It does not take very much for someone to have copyright protection, so people/businesses should be extra careful when using content in any way that they did not create. When it comes to using material this kind of material, err on the side of caution, and don't be like Aereo. Seek a license to use the work, which you will likely have to pay for, but will come far cheaper than any potential copyright infringement lawsuit. |
AuthorQuiles Law is an esports and content creator law firm headquartered in New York City, representing a global clientele. Archives
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