What’s your copyright worth if it’s not registered prior to someone stealing your work?
© Cheryl Hodgson 2010 | Posted On February 1, 2010
The answer is: “Not much.” Visual and graphic artists are particularly vulnerable to unauthorized reproduction of copyrighted images on the Internet. It’s literally a simple “right click,” “copy,” and “paste.” Many such infringements go undetected. Those that are discovered are often let go without remedial action. Why? The artist fails to register his or her work with the U.S. Copyright Office prior to the work being stolen. For years, I’ve been asked: “Can’t I just mail it to myself?” In the case of scripts, “Isn’t the Writers Guild enough?” Then I hear, “I never got around to it.” My answer is, “Sorry, there’s not much I can do to help you.”
NO, NO and—NO! There is one place, and one only, to register your works, www.copyright.gov. Instead of sending in your registration by mail and waiting for years, the Copyright Office has come into the digital age so you can digitally upload the files. So why wait?
Exactly why is registration so darn important? While a copyright is valid without registration, the very statement is misleading. Copyright registration is essential to preserve key remedies for infringement. Unless registered prior to infringement, attorney’s fees and statutory damages are not available. It is often difficult, if not impossible, to prove actual damages or profits attributable to theft of a copyrighted work. For example, if the work is used on a product that doesn’t sell millions of copies, how do you prove your damages?
Congress created two types of damages to recover under copyright law. In addition to “actual damages,” one can elect statutory damages without proof of out of pocket losses. This means not only will the infringer have to pay you up to $150,000 per willful act of infringement (the amount is discretionary with the court) they will need to pay your lawyer’s fees. However, your work must have been registered prior to the theft or these remedies are lost. Without the threat of having to pay attorney’s fees to the copyright owner, there is little, if any, chance of finding counsel to bring a costly and drawn out infringement action on a speculative basis.
Legally, you are entitled to obtain an injunction to prevent ongoing or future infringements even if you file the registration after the infringement. A preliminary injunction in a copyright case can cost six figures and above in legal fees. Just ask Perfect 10 who spent a fortune in litigation costs against Google for the past five years. The company was p.o.’d at the search engine for providing thousands of its modeling images as thumbnail versions and for providing links to infringing sites.
If you don’t register, you won’t be getting any statutory damages or lawyer’s fees from the defendant. Unless you can finance the case out of your own pocket, this is one lawyer who can’t afford to help you. Do your selves a big favor—take care of this simple but all important part of your business. Register your works—someday you may be glad you did!
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Technorati Tags: artist rights, attorney fees, Copyright, copyright registration, Entertainment Law, Intellectual Property, photographer, statutory damages
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Ready for Art Licensing 102? Advance On!
© Cheryl Hodgson 2010 | Posted On January 18, 2010
Wednesday January 20, 2010, 5:30-6:30pm PST.
FREE Art Licensing Teleseminar!
IP Attorney Cheryl Hodgson will answer the questions: Hosted by Artist Tara Reed
Back by popular demand! After the success of her last art licensing teleclass, Cheryl Hodgson will once again be answering artists’ questions during this free teleseminar. To submit your questions and register, go to www.askcherylhodgson.com.
When you register for the call, you will also receive a free mp3 copy of Cheryl’s July 2009 teleclass as our gift to you!
It’s easy to attend—all you need is a phone! You can also sign up for a free mp3 audio replay of the call.
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Technorati Tags: artist rights, Copyright
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Oprah’s “aha moment”— Is this your trademark’s “aha moment?”
© Cheryl Hodgson 2010 | Posted On January 15, 2010
“Aha moment.” What do you think of when you hear that phrase? Or should I ask who do you think of? Oprah Winfrey would like it to be her! However, after her recent settlement with Mutual of Omaha insurance company, she might not be the only one that can use the popular phrase.
Oprah’s production company, Harpo Productions, had originally claimed that “aha moment” was a trademark from her television show. At oprah.com, you will find numerous videos showing the “aha moments” of various celebrity guests. Some of those moments include, “finding a different kind of happiness, learning to prioritize, and the courage to do something new.”
Harpo learned that Mutual of Omaha was using the slogan “official sponsor of the aha moment,” and sent them a letter asking them to stop use. Omaha responded by filing a lawsuit in the U.S. District Court in Omaha arguing that they had already been granted preliminary approval of a federal trademark for the slogan.
Harpo had previously applied for trademark protection of “aha moments” in entertainment services and in magazines, while Omaha applied to register “Proud sponsor of life’s aha moments,” “Official sponsor of life’s aha moments,” and “Celebrating life’s aha moments” in the insurance industry.
In doing a Google search, I found that Omaha also owns the domain <ahamoment.com> where they describe “A moment of clarity, the aha moment is a defining moment where you gain real wisdom—wisdom you can use to change your life.”
Even though Oprah had made the mark famous, Omaha alleged that she failed to police the mark and there was no opposition to its trademark application. The case was settled out of court. This story can be your “aha moment” in brand protection. I’ve written much about the importance of developing and maintaining a trademark monitoring program. Read our earlier post: http://brandaideblog.com. Enforcement means having a watch program in place to monitor new filings and counsel to give prompt notice of potential conflicts. Failure to police can mean complete loss of rights.
This all might not even matter much longer anyway, now that Oprah has officially announced her talk show will end September 9, 2011. Aha…
For more information on the importance of policing and monitoring your trademarks in the digital age, sign up for our blog and we’ll send you a free chapter from the Guide to Building and Protecting a Valuable Brand on the Internet, based upon the INSURE™ Brand Protect Sequence.
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Technorati Tags: brand management, brand protection, Branding, Intellectual Property, loss of rights, police your mark, Registration, trademark, trademark infringement, trademark registration, trademark selection
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FTC REGULATIONS AFFECT INTERNET AFFILIATE RELATIONSHIPS, ENDORSEMENTS AND TESTIMONIALS
© Cheryl Hodgson 2009 | Posted On November 19, 2009
Are Internet marketers affected by the new FTC regulations? The answer is yes! Recent changes taking effect December 1, 2009 have been made to the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising. These regulations will likely require disclosure of affiliate relationships, as well as paid endorsements and testimonials by many Internet marketers. Once relegated to truth in advertising in traditional television, radio and print media, the new regulations expand coverage into the Internet arena. Internet marketers commonly pay a commission for sales made by so called “affiliates.” Also at issue are tighter rules requiring disclosure of paid endorsements and testimonials.
The rules will apply to bloggers as well as social media such as tweeters and Facebook users.
We are sending you the most important things you need to know about the FTC rules:
1. Do not have a consumer describe his product experience as typical if you can’t prove it! Otherwise, you will also have to disclose the results that consumers can generally expect. Under the 1980 Guides, advertisers were able to include unusual results in a testimonial so long as there was a disclaimer. That is no longer the case, as illustrated in an FTC example:
A brochure for a baldness treatment consists entirely of testimonials from satisfied customers who say that after using the product, they had amazing hair growth and their hair is as thick and strong as it was when they were teenagers. The ad will also likely communicate that the endorsers’ experiences are representative of what new users of the product can generally expect. Therefore, even if the advertiser includes a disclaimer such as, “Notice: These testimonials do not prove our product works. You should not expect to have similar results,” the ad is likely to be deceptive unless the advertiser has adequate substantiation that new users typically will experience results similar to those experienced by the testimonialists.
2. You must disclose payments or free products between you and endorsers. The FTC likes to call these material connections that consumers would not expect. This even applies to bloggers. If you are paid to review a product and post a blog about it, it is an endorsement and must be disclosed. The FTC illustrates below:
An online message board designated for discussions of new music download technology is frequented by MP3 player enthusiasts. They exchange information about new products, utilities, and the functionality of numerous playback devices. Unbeknownst to the message board community, an employee of a leading playback device manufacturer has been posting messages on the discussion board promoting the manufacturer’s product. Knowledge of this poster’s employment likely would affect the weight or credibility of her endorsement. Therefore, the poster should clearly and conspicuously disclose her relationship to the manufacturer to members and readers of the message board.
3. If you mention research company data and you sponsored that research, you must disclose that connection in your advertisement.
4. Do not make false or misleading claims. Any paid endorsement or advertisement with false or misleading claims is deceptive and not allowed under the FTC Act. Under the new Guides, advertisers as well as the celebrity endorsers can be held liable for making false claims or failing to disclose material connections. “Celebrities have a duty to disclose their relationships with advertisers when making endorsements outside the context of traditional ads, such as on talk shows or in social media.”
Basically, the new Guide covers endorsements by celebrities, consumers, experts and organizations, as well as disclosure of material connections. There are more great examples at www.ftc.gov
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Technorati Tags: Advertising, business management, Marketing
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FACEBOOK for Business-and my 11-11 Birthday
© Cheryl Hodgson 2009 | Posted On November 13, 2009
November 11, Veterans Day, my birthday and that “mystical” number 11-11 (so I’m told). This year it marked my conversion to FaceBook. While I’ve had a Facebook page for some time, it was only earlier in the week that I logged in and started learning the darned system. I had just finished listening in on a wonderful social media teleclass conducted by Kerianne Mellott. http://marketingmakesmesmile.com.
After some fiddling around I was finally able to configure updates to come to my phone by text message. (Still have not quite got the wall thing down). Wednesday dawned to a steady stream of “Happy Birthday” text messages coming from Facebook Friends. I’ve never felt quite so popular or loved on my birthday! Who would have known that Facebook would bring me one of my best birthdays ever!
Then there’s the business thing. Is my Facebook about staying in touch with my 21 year old rocker nephew, his mother, or engaging with my trademark and intellectual property clients, or potential clients? Is it about building my personal brand? Maybe some of all? As the week closes, I happened upon an interesting piece in the NY Times on how customers are engaging with businesses through Face Book. A great little piece (even if I can’t get the link to work!) http://www.nytimes.com/2009/11/12/business/smallbusiness/12guide.html?em
Looking back this year, many of us have been disappointed in our government and our systems. A feeling of powerlessless can set in if one is not mindful. No wonder the ability to build community on line and have one’s voice heard and acknowledged by others is becoming a national obsession. Maybe all this social media is a great thing after all!
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Technorati Tags: facebook, Intellectual Property, social media, Trademarks
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FAIR USE…FREE EXPRESSION—DOES FAIREY HAVE ANY HOPE?
© Cheryl Hodgson 2009 | Posted On October 29, 2009
Shepard Fairey’s last name is kind of ironic being that he claimed fair use, even though he just recently confessed to concealing his mistake by submitting false images and deleting others.
Tip #1—If claiming you are guilty of stealing someone’s copyrighted work based upon “fair use” at least be honest about which work you used.
A legal battle was launched in February by Fairey against the Associated Press. Fairey claimed his use of the photograph taken by AP’s Mannie Garcia of then-Senator Barack Obama appearing on the artist’s “HOPE” poster was not copyright infringement. The Associated Press fought back arguing willful copyright infringement over use of the photograph.
The artist originally stated that he based his poster on a photo of Obama sitting next to actor George Clooney. He has now changed his mind as to which AP photo he actually used in creating his work.
Fairey’s recent statement may hurt him in his case, especially since he is going to lose his attorneys led by Anthony Falzone, Executive Director of the Fair Use Project at Stanford University. The team has announced they intend to withdraw from the case since their client misled them, fabricated information and destroyed material.
Tip #2—Don’t lie to your copyright lawyer!
Despite his loss of credibility, the case brings to the front and fore a major issue in copyright law certain to affect photographers, composers and artists whose works are used in subsequent content. Subsequent users claiming fair use must show their use of the underlying work was transformative, namely the new use adds value to the original and the prior work is “transformed in the creation of new information, new aesthetics, new insights and understandings.” 4-13 Nimmer on Copyright § 13.05.
Was it ok for the artist to manipulate an existing image? How much of the original image was altered in the creation of his poster? Was it enough to add red, white and blue and the word, “HOPE?”
Fairey stated, “Regardless of which of the two images was used, the fair use issue should be the same.” So we have artists and free speech advocates on one side versus photographers and journalists on the other side.
It will be interesting to see the outcome. Either fair use will triumph or Fairey will have to pay for use of the photograph.
Tip #3—If you base your work on a previously copyrighted work, make sure it is original and transformative.
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Technorati Tags: artist rights, Copyright, Intellectual Property
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HOTELS.COM, HOW GENERIC—TRADEMARK LOST ITS LUGGAGE!
© Cheryl Hodgson 2009 | Posted On October 23, 2009
The costly and belated attempt of Hotels.com to create a protectable trademark and brand from a generic domain name illustrates a point I have been ranting about to internet business owners for several years. A generic term will never be a trademark or brand for the product or service being sold. Before investing thousands of dollars in marketing and advertising solely under a generic or descriptive domain name, consider adopting and registering a term that can be a valuable brand. A strong trademark will distinguish your services and can be used to stake out your turf in the marketplace. Otherwise, you will end up just like HOTELS.COM. It is a nice location on the Internet, but they have no fence to keep out the competition!
Early internet marketers and domain aggregators have spent the last 10 years creating misinformation and leaving many internet businesses with weak or no brand protection. Marketers in their quest to secure easy search rankings, as well as domain resellers seeking to drive up prices, failed to communicate this important message. Now it is not just my pet peeve, it is the law according to the U.S. Court of Appeals. http://brandaideblog.com/wp-content/uploads/2009/11/in-re-hotels.com_.pdf
Despite spending huge amounts in legal fees to convince the court that HOTELS.COM could be a trademark, the efforts to retrieve its lost luggage failed. In re Hotels.com, L.P., 573 F.3d 1300 (Fed. Cir. 2009) affirmed that a generic word can NEVER be trademarked, at least not for the goods or services being sold under that name. The whole point of having trademarks is to identify source. By definition, a generic term cannot identify source. Do not be generic. Be unique. Get protected.
Hotels.com thought that by adding a dot-com to the generic word “hotels”, they could get trademark protection. That is not the case. A word is still generic regardless if it has a dot-com or not. A dot-com merely shows internet commerce. For example, the court referenced the Lawyers.com case. See In re Reed Elsevier Props., 482 F.3d 1376 (Fed. Cir. 2007) (online interactive database featuring information exchange in fields of law, legal news and legal services denied registration of generic mark LAWYERS.COM).
The only argument available to business owners who are wedded to a weak or generic term, is to throw money and legal fees into attempting to prove the term has “acquired distinctiveness” so that the public identifies the term with a particular business or source for goods and services. As was the case here, such efforts after the fact are an uphill battle not easily won. The company failed to persuade the board that its survey showing 76% of 277 consumers thought the domain name was a brand name was sufficient evidence. The board stated that “the survey design did not adequately reflect the difference between a brand name and a domain name.”
So what does this mean now that HOTELS.COM is not a trademark? It means that Hotels.com cannot sue other companies who use the term “hotels.com” to trigger ads on Bing™, Google™ or other search engines. Try doing a search for “hotels.com” and see what comes up—the official website, plus Travelocity®, Priceline® and many more.
What about www.all-hotels.com, www.web-hotels.com and www.my-discount-hotels.com? The TTAB cited these websites to demonstrate a competitive need for others to use “hotels” as part of their own domain names and trademarks.
The holidays are just around the corner…which site will you use to book your hotel stay? Save money and just go with the generic brand—Hotels.com!
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Technorati Tags: Branding, brands, copyright registration, generic terms, internet law, loss of rights, Registration, trademark, trademark registration, trademark selection, Trademarks
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BRANDS WE LOVE TO REPRESENT
© Cheryl Hodgson 2009 | Posted On October 4, 2009
Denise Linn www.deniselinn.com, Hay House author and founder of INTERIOR ALIGNMENT®, has authored numerous books, including Feng Shui for the Soul and Space Clearing to name just a few. Denise has appeared on Oprah and has trained hundreds of people worldwide. Denise’s book Soul Coaching is also a 9-day experience held on her beloved Summerhill Ranch in Paso Robles, CA.
Denise’s weekly radio show on www.hayhouseradio.com is one of the most popular on the network. Soul Coaching is now an online course offered via Hay House, http://www.deniselinn.com/Events-28week-Soul-Coaching.htm. As of the last count, over 700 people worldwide are participating in the online course with monthly tele-classes.
Thank you Denise, for being a beloved client and inspiration to so many people around the world.
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Technorati Tags: brands, women entrepreneurs
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BUSINESS WEEK TOP 100 BRANDS-Focus on Building Trust
© Cheryl Hodgson 2009 | Posted On October 3, 2009
The annual report from Business Week is in. 100 Best Global Brands for 2009.
No huge surprises, but always a great read. Number geeks can get into The Interbrand method of valuation to determine the world’s most valuable trademarks. However, the results this year raise two important points for all of us to remember:
- Trust. In today’s world, those who thrive earn the trust of the consumer and deliver on that promise. Trust translates to consumer loyalty, brand value and brand equity. Read more Earning Trust Is Key In Today’s Marketplace
- Value. What is the core message of your brand promise? What are you doing to refine your message, and clearly deliver on that message to your core customers. Doing so is key to building valuable brand equity in today’s world. World’s Top 10 Most Valuable Brands.
The annual report from Business Week is in. 100 Best Global Brands for 2009. No huge surprises, but always a great read. Number geeks can get into The Interbrand method of valuation. However, the results this year raise two important points for all of us to remember:
1. Trust. In today’s world, those who thrive earn the trust of the consumer and deliver on that promise. Read more Earning Trust Is Key In Today’s Marketplace
2. Value. What is the core message of your brand promise? What are you doing to refine your message, and clearly deliver on that message to your core customers. Doing so is key to building valuable brand equity in today’s world. World’s Top 10 Most Valuable Brands 2009
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Technorati Tags: brand equity, brand management, Branding, brands, Intellectual Property, Marketing, trademark
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ICANN gTLD PROPOSAL: Good for ICANN Bank Account or Benefit to Internet Users?
© Cheryl Hodgson 2009 | Posted On October 1, 2009
Remember when you were young, making mud pies in the backyard after a rain, and not really knowing what you would do with the pies afterwards? Yeah, well, that’s kind of what ICANN has done by proposing to open the floodgates for an unlimited expansion of generic top-level domains (gTLDs).
ICANN stands for the Internet Corporation for Assigned Names and Numbers. Essentially, this is fancy verbiage which literally translates to ICANN being the big cheese of the Internet. The non-profit organization is supposed to bring order to the Internet, mediate disputes among domain owners and regulate generic top-level domains such as .com or .net. [www.icann.org]
As a trademark attorney, our clients face the constant struggle of trying to monitor use of their trademarks in domain names on a daily basis. This is a time consuming and costly process. It is also heart breaking for clients who have invested energy in creating a livelihood around a word or phrase, which is then used by someone else to pass-off similar or competing goods around the world. If this monitoring process is burdensome now, when there are only a few generic top-level domains, can you imagine what will happen when gTLDs can be completely individualized? It is mind blowing and probably the biggest mud pie anyone has ever made.
The President of the International Trademark Association, Richard Heath, recently communicated his position to the Subcommittee on Courts and Competition Policy Committee on the Judiciary in the U.S. House of Representatives. Heath voiced the opinion of INTA that ICANN has not provided sufficient guidelines as to how trademark owners will be protected. Heath’s communication can be viewed at:
http://www.inta.org/index.php?option=com_content&task=view&id=2015&Itemid=152&getcontent=3
INTA also communicated their position to the CEO of ICANN, Rod Beckstrom:
http://www.inta.org/index.php?option=com_content&task=view&id=2016&Itemid=152&getcontent=3
Trademark owners need more assurance that their rights are going to be protected before any more gTLDs are created. Otherwise, it looks as though ICANN is merely trying to increase their relevance in the Internet world, as well as Registrars’ fees, rather than looking out for the interests of domain owners.
Pie anyone?
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Technorati Tags: cybersquatting, Intellectual Property, internet law, Trademarks
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