Off the Mark

When Is Imitation Infringement?

Over the last few weeks, I was sent two different instances of mainstream, big dollar entities content that bared an eerie resemblance to work created by two different incredible brilliant creative artists. Happenstance?

While many people believe that imitation is the best form of flattery, many artists across the world adamantly disagree. Their livelihood is dependent on their ability to monetize create original work. Fortunately, Congress recognized centuries ago the necessity of creatives creating and enacted copyright laws to protect their interest. Copyright protects literary, dramatic, musical, and artistic works such as poetry, novels, movies, songs, computer software, and architecture. These laws give the copyright owner the exclusive right to:

  • Reproduce the work
  • prepare derivative works
  • perform the work
  • Display the work

Copyrights have three elements (requirements):

  1. The work must be original
  2. It must be in a fixed
  3. Tangible form

This means that ideas are excluded from protection. Sorry folks.

Imitation or Infringement?

I was sent an article inquiring whether CNN’s recently released documentary infringes on the work of the same title from independent artist, Sarah “Huny” Young. In the article, the author suggests that a single Google search on CNN’s part could have prevented the matter altogether. Here’s the thing, copyright laws require originality. The fact that something is similar does not mean that the work is not original. People are often influenced by life some share similar experiences which could manifest itself similar ways. My favorite example is to take two people locked in the basement. Let’s call them John and Michael. John and Michael are locked in the basement with only their respective girlfriends and have no access to one another. If they decided to write a song about their experience they could create something similar to this...

Each has no idea what the other is doing. The song is an original work for both. With no allegations of plagiarism, this is the case for Huny’s American Woman. It is very unfortunate that her brilliant depiction of black women in America and the “complex relationship with this country” is to be overshadowed by the work done by the news network giant.

Infringement or Imitation?

Cameron is a YouTube Partner known for creating song mashup videos with a quartet including Starrkeisha, Pastor James, Joe, and Cameron (all played by him). For the last two years, the quartet has created Christmas mashups. This year Old Navy Christmas commercial features a diverse group of people singing a mashup of Christmas songs. On an Instagram post, Cameron questioned whether Old Navy ripped his work.

Copyrights protect the execution of ideas, not the idea itself.Thus, it’s possible to have 100 hundred songs on the topic of love however the lyrics to the individual song are protected by copyright laws. While Huny’s situation was a matter of originality, Cameron’s is one regarding execution. Take a look at the videos.

Copyrights protect the execution of ideas, not the idea itself.

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While they have some similarities, specifically Christmas theme, mashup, carolling, the execution of the ideas are different. Despite the similarities, neither of the videos put me in mind of the other. The themes are common especially considering the holiday season.

Bottom Line:

  1. Copyrights protect original work that are in a fixed tangible form
  2. Originality is different from similar
  3. Ideas are not protected by copyrights but the execution of ideas are

Have copyright questions? Contact our office to schedule a consultation.

P.s... we discussed this live in our Facebook Group, Beyond the Launch.  Join future discussions by joining the group. Watch the video below.

Now you know, what's poppin....

What's Poppin

What's Poppin

Contracts Matter: 3 Famous Businesses Who Unintentionally Loss Their Trademarks At The Stroke Of A Pen

What does a hamburger joint, cookie company, and BBQ stand have in common? They each had insanely popular and profitable brands that were unwittingly signed away—with the simple stroke of a pen.

Hamburger Joint

McDonalds was created in 1940 by two brothers, Richard and Maurice McDonald. They were at the forefront of change in the restaurant business. At a time when carhops were all the rage, their business model caused for customers to leave their vehicle and walk to the window to place their order. Instead of waiting of what could seem like ages to the hangry, customers received their orders almost instantly. Their rigid business system created efficiently and eventually caught the attention of traveling salesman Ray Kroc. Kroc convince the brothers to not only franchise their business but to let him oversee the franchise division. If you haven’t watched Founder, The McDonald story, please do so now. There are so many business lessons here. After selling the company the brothers attempted to continue selling burgers, but were met with a cease and desist letter. Not only did they sell their business, they sold all their rights to their name. Even worse Kroc reneged on a handshake deal that was to pay the brothers a percentage of the revenue from the franchises.

Which leads to this question: What is a business?

Many would argue that it’s the systems put in place to produce a product or service. Others would say that a business is more, much more. It’s the relationships you build with your customers. It’s the trust you’ve gained. The promises you make and keep. All of those things are encompassed and are instantly recognized through business brand identifiers—trade names, logos, taglines, etc.….

Cookie Company

Wally Amos was the founder of the Amos chocolate chip cook brand. After serving in the military he became the first black talent agent in the history of the William and Morris Agency. He discovered Simon and Garfunkel, worked with Diana Ross, Marvin Gaye and Sam Cooke. Eventually, Amos left the William and Morris Agency to start his own production company. When it did not pan out, Amos took the skills he learned from years of baking with his Aunt and entered into the cookie business out of necessity. Using a modified version of a family recipe he began to produce and sell luxury cookies. He went on to open multiple stores on the west coast and partnered with Bloomingdale’s of New York to distribute his cookies. After a few years of financial difficulty Wally Amos sold his cookie company. Once again facing financial trouble he opened another cookie company called Wally Amos Presents Chip & Cookie. He was immediately hit with a lawsuit. When Amos sold his business, the contract included a clause that prevented Amos from not only using his name he also couldn’t use his likeness on the packaging of any food products. Ouch!

TRADEMARKS ARE ASSETS.

In business you should never be so focused on short-term gains that you fail to calculate the long-term effects. With the assistance of a lawyer it may be possible that the financial gains can exist outside of the moment. McDonalds and Amos were bought out in 1966 and 1991 respectively. Since that time it would seem that some business owners have yet to figure out rule #1: What’s tragic about these stories is that the original founders did not even realize they were signing away the family’s name.

Rule #1

Assumptions have no place in business. You must communicate and memorialize your intent into a written contract. While oral contracts are valid they can be difficult to enforce. See the McDonald’s story above.

The BBQ Stand

Stubb’s Legendary BBQ joint, out of Austin, TX, is changing its name as a result of a two year trademark battle. Prior to the suit, C.B. Stubblefield was granted the use of the Stubb trademark for the original Stubb’s restaurant after the sale of Stubb’s BBQ sauce to food giant, McCormick & Co.

It’s not uncommon for larger brands to acquire smaller brands with the intent to gain access to their loyal customer base. The acquisition makes it easier for them to transition into a new market space.

Although the sale did not include the restaurant and music venue, Stubblefield found himself in hot water when he expanded his restaurant venues using the Stubb’s brand. The expansion using the Stubb’s trade name was not considered in the contract. (remember rule number 1) After the resolution of the trademark issue, One World Foods, Inc. is now considering opening it’s own chain of restaurants using the Stubb’s brand.

Bottom line?

Use written contracts, consider the long-term effects of your actions, and review your contracts thoroughly before you sign them.  Need a contract?  Contact Off The Mark for your contract needs.

Now you know what's poppin....

What's Poppin

What's Poppin

The Feds Issues Stern Warning to Brand Ambassadors, Influencers, and Endorsers

Today on LegalPOP we're discussing, the Feds, brand ambassadors, and your business.

Most people are familiar with the idea of brand ambassadors, influencers, and endorsers but have you seen #ad or #sponsor and wondered, what’s up with that? If you are in business then you know that the number one rule in running a successful business is not to be the world’s best-kept secret. People need to know what you do and or what you have so they can spend their money with you. Traditional avenues such as radio, television, and billboards are great way to get the word out but can be expensive and often require lengthy contracts. While traditional methods of advertising are still relevant, social media has made it possible for brands big and small to expeditiously overcome the know, like, trust hurdle in ways that weren’t possible before.

Social media makes it possible for people like you and me to make connections all over the world. To amass a large and ever growing list of “friends” and followers. To become virtual aunties and uncles to children we have watch grow up but have never physically met. Savvy businesses are taking note and reaching out to not only celebrities but also social media celebrities (those who have a huge amount of followers on social media) to promote their products and services. By putting their goods in the hands of someone their ideal client already knows, likes, and trust these companies have struck gold.

Consumers see the celebrity's use as a stamp of approval. In addition to "likes", followers race  to be the first spend their money and follow suit, which is why brand ambassadors are often compensated. Compensation may be monetary or take on some other form such as free products, services or other gifts.

Sidebar: This is just one of the reasons you can’t use someone’s likeness without their permission. People, especially celebrities, typically get paid to promote other people’s business. Keep this in mind before advertising your product.

These endorsements are like personal referrals. Referrals are powerful. Think about it. If you are looking for an attorney, a plumber, even somewhere to eat, what’s the first thing you do?

I’ll wait….

You ask someone. Referrals are so powerful that even Facebook created a feature to make seeking recommendations simpler. 

This is great but what does it have to do with the Feds? Glad you asked…

Last month the Federal Trade Commission, or FTC as they are so fondly known, sent a letter to almost 90 influencers, including approximately 45 celebrities, warning their endorsement practices may be breaking the law.

What is the FTC?

The FTC is a bipartisan agency of the federal government created to both protect consumers and promote competition. It recognizes that consumers are influenced by what they hear and see. You can’t deny the number of people ordering cosmopolitans went up after millions caught Carrie fever, or the increase of little brown boys and girls across the United States wanting to attended HBCUs to get the Hillman experience, or the number of misguided souls aspiring to be gangsters, dope dealers, and womanizers to be more like their favorite rapper. Just as with most everything else in life there are rules to advertising. Although using brand ambassadors is not a traditional for of advertising, it is still advertising.

Advertising is defined by businessdictionary.com as

“the activity or profession of producing information for promoting the sale of commercial products or services.”

If you are a brand ambassador, thinking about becoming one, or even using one you MUST play by the rules. Not doing so could cost you. Literally. The penalty, which was increased in June of last year to account for inflation, is between $16,000- $40,000.   

Yikes

Interpreting and applying law can be a bit cumbersome for non-lawyers.  To assist businesses, ambassadors, and influencers with the law, the FTC published a guide governing endorsements and testimonials. Essentially as a brand ambassador or a business working with brand ambassadors you have a responsibility to do these 4 things:

1. Be honest. Your endorsement MUST reflect your honest opinion, findings, beliefs or experience with the product or service.

2. If using a statement from an ambassador, influencer, or endorser do NOT use the statement out of context. You don’t have to use the statement verbatim but you cannot make it suggest something it was not intended to state. i.e... influencer says "OMG I love tacos" you can't say "Influencer loves our tacos"

3. DON’T say you used a product if you haven’t. OTM can’t have the best tacos you ever had if you never had their tacos.

Sidebar: The difference between an advertisement and endorsement is that on commercials consumers recognize that actors are being paid to promote a product. It’s a lot more difficult to discern from an Instagram post whether Khloe really loves OTM tacos or if she is being compensated to say she does.

4. Which brings us to our last point, both influencer and business have a responsibility to DISCLOSE the relationship. If you post a review of a product you received in exchange for your testimonial disclose that ‘ish. If a company is paying you to put their products in front of your followers, disclose that ‘ish. If you are paying an ambassador to promote your product or service….. You guessed it, disclose that ‘ish. 

Sidebar: The disclosure MUST be plain.  The relationship between endorser and business should be clear.  Consumers shouldn't have to wonder if you are being compensated for your endorsement.

Although the guide is not law and there are no penalties attached to failure to adhere to the guide, failure to adhere to the guide could put you at risk for a FTC investigation to determine whether you have violated the FTC Act. 

What is the FTC Act?

The FTC Act are the laws the guide was created to explain. Remember, one of the FTC's responsibilities is to protect consumers from being manipulated or duped, the FTC enacted the FTC Act, which gives the, among other things, the power to prevent deceptive acts or practices in or affecting commerce and seek monetary redress (hence the 40k) and other relief for conduct injurious to consumers.

So what are deceptive acts or practices? A practice is deceptive where

• a representation, omission, or practice misleads or is likely to mislead the consumer;

• a consumer’s interpretation of the representation, omission, or practice is considered reasonable under the circumstances; and

• the misleading representation, omission, or practice is material.

What's Poppin

What's Poppin

Now you know what’s poppin.  Influencers are big business both for businesses and the influencer but as with all things if you are going to play the game you have to know the rules.

P.S.  You can also view our video on this subject here

 If want to know how the FTC regulations affect your specific situation, schedule a consultation for a time that is convenient for you. 

Are You Ready For The President To Control Your Intellectual Property?

Today on LegalPOP we’re talking politics….

Currently, the House of Judiciary Committee, (committee responsible for overseeing the administration of justice within the federal courts, admin agencies, and Federal law enforcement entities) is considering The Register of Copyrights Selection and Accountability Act of 2017. I know, I know sounds like boring stuff but trust me you're going to want to keep reading. If passed, the bill would essentially remove the power of the Librarian of Congress to appoint the Register of Copyrights and investing that power to the President. That's right, 45 could potentially control your business's most valuable assets. Its copyrights.

Can you imagine 45 with that type of authority? My eldest says: really, his tiny hands can’t handle the responsibilities he already has.

What's A Register of Copyrights?

But seriously, let’s look at this. The Register of Copyrights is the director of the U.S. Copyright Office. This person is responsible for assisting in creating policies and procedures for the U.S. Copyright Office and more importantly assisting in creating the standards for registering copyrights. The Librarian of Congress has appointed the Register position since 1897. 1897. 120 years.

I acknowledge that our current copyright laws are outdated, as they haven’t had any major overhaul since 1976, but have we considered the ramifications of handing (pun intended) this responsibility over to 45?

Although the bill proposes to grant the President the authority to appoint a Register to a ten- year term, 45 can fire and reappoint a new Register at his leisure.

Also, keep in mind that as of February 45 still had 515 out of 549 positions to fill. The Register position is currently unfilled, although the Librarian of Congress has begun a search to fill the position. If this bill is passed, the process will start all over and the Register position will remain empty indefinitely.

Bottom Line

There are a number of artist and actors that have publicly spoken out against 45. Given his bully-like tendencies, one would not be surprised if he took advantage of his position by appointing someone willing to create policies and procedures to enforce his pettiness. With this being said, keep in mind that copyrights, a form of intellectual property, are assets. Just as you’re keeping an eye on 45’s actions and their effect on the stock market you should do the same as it relates to future copyright policies as they can potentially affect your bottom line as a business owner or artist.

Now you know #WhatsPoppin...

If you're ready to protect your copyrights contact my office.

 

Legal Pop: I Own You! Words heard across the Gram as one entrepreneur registers her digital nemesis’ trademarks as her own

This week on LegalPOP we direct our attention to Instagram where @theglamuniversity has taken pettiness to the next level.  I’ll start by admitting that I do not have all of the details HOWEVER I do know this…..

Yesterday @theglamuniversity posted an Instagram video showing the registration of three trademarks, Miss Hollywood Posh, IAMPOSH, and Allure Luxe all marks used by @misshollywoodposh.  I’m not here to dwell on the messiness BUT the caption “I OWN YOU” that accompanied the post SCREAMS for a quick lesson on trademark basics.

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GLAM GANG OWNS YOU

Maybe they do but more than likely they just wasted a couple hundred dollars just to prove a point.  Trademarks are brand identifiers.  They help consumers readily identify the source of a good or a service.  The average consumer is bombarded with trademarks every day, every minute, every second. Stop what you’re doing right now I bet you can find five trademarks in less than 15 seconds.

Apple

Brahmin

Nike

Panasonic

Gap

Play along with me, list your five in the comments.

Here’s the thing, if the mark is not associate with a good or service it is not a trademark.  Furthermore, if the mark is not associated with a good or service YOU provide or intend to provide in the immediate future you don’t own jack.

Pettiness Comes With A Price

And I’m not simply speaking of the fees associated with registration.  When you register a federal trademark you are declaring that the statements made in the application are true. Lying on your application, i.e. making willful false statements, i.e. making statements that you know aren’t true, i.e. I am using Acme trademark in association with the widgets I sell knowing good and well you’ve never used the mark Acme a day in your life and you wouldn’t know a widget if it hit you in the head.

Notice that the penalty for making false statements on your trademark application is a fine or imprisonment, or both.

To make sure you know the deal, the United States Patent and Trademark Office modified the requisite statutory declaration language that trademark owners attest to in each USPTO trademark filing to include separate individual declaration statements, and you must electronically execute the declaration by affirmatively check a box next to each statement, the last of which is the standard warning that false statements are punishable by fine or imprisonment.

Bottom Line

I don’t know if Glam University has a legitimate interest in the Misshollywoodposh, IAMPOSH, or Allure Luxe trademarks.  I’m not saying she does or does not. Today’s lesson is this; if you are in business and that business has marks that consumers associate with a good or service make the investment and protect your mark.  Remember last week’s tip of the day, She who owns the name holds the power.  If you’re ready to protect your marks contact my office.

Now you know #WhatsPoppin…

 

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