Monday, June 23, 2014

Who Owns the Copyright for a Tattoo?

As if it were not enough that college athletes are seeking compensation from video game makers for using their names and likeness, now there is a group of tattoo artists suing video game makers who re-create an athlete's image--including their tattoos.  As with several other emerging copyright issues there are two schools of thought.  One is that, once the athlete pays for the tattoo, it belongs to them.  The other is that the tattoo still belongs with the artist, and therefore, any recreation of that tattoo as part of a game is a violation of the artist's copyright rights.

The ensuing litigation has caused the NFL Players Association--which licenses images of the players to EA Sports--began encouraging athletes to obtain licenses to their body art in order to avoid claims by the tattoo artists against EA Sports. 

Generally, a work remains the property of the author who created it (in this case, the tattoo artists).  However, there is an exception for what the Copyright Act deems "works made for hire."  The works made for hire doctrine allows an employer to be the author of a work created by its employee within the course and scope of his/her employment.  It also applies in the context of a commissioned work (i.e. a work specially ordered or commissioned for use in certain circumstances).  This part of the Copyright Act does not explicitly cover tattoos.  But, if the courts find that the tattoos are, indeed, works made for hire, then there must be a written document indicating that it is a work made for hire. Essentially, this writing transfers the copyright rights to the person receiving the tattoo.  Otherwise, the artist maintains the rights. 

Now, I am pretty sure that before this influx of lawsuits, there were no real written agreements between a tattoo artists and their customers.  I would venture a guess that there are more tattoo artists being asked to sign agreements assigning or licensing their copyright rights to their customers. 

Thursday, June 12, 2014

Leahy Kills Proposed Patent Reform Legislation Targeting Patent Trolls

Patent trolls rejoice! Senate Judiciary Committee Chairman Patrick Leahy killed the Innovation Act which sought to curb patent trolls.  Patent trolls are firms that obtain (horde) patents and use them primarily to threaten lawsuits.  The Innovation Act sought to impose a loser pays regime in patent lawsuits, protect end-users from being threatened with legal action for using commonly available products, and would have required more detailed descriptions of the alleged damage suffered by the trolls in their initial pleadings.

Not surprisingly, the Innovation Act was popular over a broad spectrum of companies, by persons on both sides of the aisle, and the President. Unfortunately, the trial lawyers and drug manufacturers were not such big fans.  Hmmm.  Leahy claimed that the Innovation Act would have "severe unintended consequences on legitimate patent holders."  So, we should let the illegitimate patent holders keep making profits by way of lawsuit extortion?

Monday, June 9, 2014

Another Group Joins the Call to Change the Copyright Act

If you follow this blog at all, you will know that I am not a big fan of the Copyright Act in its current form.  Well, I can happily say that I am not alone.  A group of academic authors known as the Authors Alliance are seeking changes to the Copyright Act to reflect the reality of publishing in the digital age.  In particular, this group wants the Copyright Act changed to allow librarians, archives, and heritage groups to reproduce and store books digitally.  The Authors Alliance says that in denying these groups the ability to digitize books could mean losing "long-term cultural and intellectual history."

I could not agree more.  Unfortunately, the Authors Guild vehemently disagrees.  The Authors Guild feels that making works easily available and sharable digitally will undermine the literary industry--sort of like music sharing has "undermined" the music industry. 

It appears as if the Authors Guild is doing what the music industry did when faced with the digitization of their works, trying to maintain the status quo.  I said it at the time when I was a fairly fresh-faced intellectual property attorney and the Napster case was wending its way through the court system:  the music industry then should have embraced Napster and worked with it to achieve its goals (maintaining profitability for the artists and allowing the copyright holders the ability to control their songs).  Instead, they fought tooth and nail and are now losing terribly.  The Authors Guild should learn from the music industry's mistake. 

The artists should ultimately have a say in how and what type of protections they want to have for their works. As I've written before, some authors are okay with looser restrictions, others want to maintain a vice grip on their intellectual property.  There has to be a way to modernize the Copyright Act to achieve some middle ground given that digitization is going to happen one way or another.

Tuesday, April 15, 2014

Google's Attempt to Register "Glass" As a Trademark Stalls

"Google Glass" is already registered as a trademark, but now, Google is having difficulty getting a registration for its "Glass" mark:

Recently, the USPTO rejected the registration citing applications filed prior to Google's application, likelihood of confusion and the mark is descriptive.  In response, Google's attorneys provided almost 2,000 pages of news articles about Google Glass in an attempt to show that there can be no confusion because of all the press.  The argument goes that since Glass has gotten so much press, consumers are not likely to confuse that mark with anything else.  The attorneys, of course, also argue that the term is not descriptive.  

Everything I've ever read (and it has not been 2,000 pages of articles) has used the term "Google Glass," not just "Glass" alone.  Not sure Google can overcome this rejection, but maybe "might makes right" on this one? Stay tuned. 

Wednesday, April 9, 2014

More for the Don't Trust Yelp File

Yelp seemingly provides never-ending fodder for this blog.  As you may recall, when we last left our erstwhile thug (i.e. Yelp), Yelp was suing a law firm for "working" the system by getting associates and employees to post favorable reviews.  Of course, Yelp did not take kindly to being sued and began running competitor's ads on the firm's Yelp page, as well as filtering the reviews to make the less favorable ones more prominent.  This is a common tactic employed by Yelp when a merchant has the audacity to refuse to pay Yelp's advertising fees. 

According to a recent Los Angeles Times article provided a real-life example of Yelp's "mafia-like" tactics.  Apparently, Rick Fonger decided to open a jewelry store after a career in journalism.  To help advertise, Mr. Fonger paid Yelp $ 300 a month.  He got some results, but thought that he could spend his advertising dollars differently to get better results (or, more advertising bang for the buck).  So, he did what any small business owner would do, he canceled his Yelp ad in order to apply his limited advertising budget towards something more fruitful.  The next day, a Yelp representative called Mr. Fonger to inform him that competitor's ads were showing up on his Yelp page and explained that she could make them go away for $ 75 a month.  I agree with the LA Times article that this sounds like extortion.

David Lazarus of the LA Times was not done with Yelp.  He followed up the aforementioned article with another one describing Yelp's extortionist ways.  In that article, Mr. Lazarus describes how Yelp uses bad reviews to strong-arm small businesses to purchase their services.  Indeed, if the small business refuses to "play ball," it is likely that they will find bad reviews featured more prominently. Yelp also demands payment to remove bad reviews and is not very helpful in addressing false claims made by reviewers.  Even more troublesome is the fact that several of the small business owners who spoke to the reporter were afraid to give their names for fear of retaliation by Yelp.  Indeed, one real estate appraiser noted that after he stopped paying Yelp, Yelp apparently reordered the reviews to feature the negative ones more prominently.

Notably, after my last blog post about Yelp, I received several phone messages from someone from Yelp.  Undoubtedly, that person wanted to sell me ad space or have me pay to remove ads of "competitors." 

Tuesday, April 1, 2014

First Onions, Now Whiskey

Well, Georgia has their trademarked Vidalia Onion.  Now, Tennessee is in a battle over whiskey.  Specifically, Tennessee whiskey.  Apparently, the Tennessee Legislature passed a law that "Tennessee Whiskey" is that which is made virtually the same way as Jack Daniel's.  Needless to say, JD's closest in state competitor, Dickel, was not amused.  Apparently, JD's has several distinct advantages in making their hooch the way its been doing it since the 1870's.  First, JD's is a huge enterprise.  Second, they also make their own very expensive barrels mandated by the law.

Jack Daniel's frames the law as necessary to insure that Tennessee's "signature" whiskey is not undermined by competitors.  Apparently, JD's is trying to make it harder for its behemoth competitor, Johnnie Walker from entering the Tennessee whiskey fray.  It will be interesting to see if David can slay Goliath in this battle. 

Tuesday, March 18, 2014

Software Patents Headed to Supreme Court

If you've read my patent primer, you know that patents protect inventions, but not abstract ideas.  One wrinkle to this notion is the software patent.  Many in the industry believe that software code should not receive patent protection.  There is also the little matter about a design patent which can translate into trade dress thereby receiving legal protection for longer than the monopoly afforded patents--but, I digress.

Those who say "down with software patents" may see their demise in the form of a Supreme Court opinion in Alice Corp. v. CLS Bank.  Apparently, the founder of Alice obtained a patent for a software program which calculates the obligations of parties entereing into a currency exchange transaction.  However, the Federal Circuit in a circuitous and fractured opinion invalidated the patent.  Because of the Federal Circuit's muddled opinion, it appears the Supreme Court will now need to take up this case to provide clarification about the viability of software patents.  In one of the many opinions of the Federal Circuit, Judge Moore provided an inkling at what was at stake:
And let's be clear: If all of these claims, including the system claims, are not patent-eligible, this case is the death of hundreds of thousands of patents, including all business-method, financial-system, and software patents as well as many computer implemented and telecommunications patents.
In other words, money is at stake.  Patents (or any other IP) generally equates to money.  They are property after all.  For example, Twitter just paid $ 36 million to avoid a lawsuit and to purchase 900 patents from IBM.  Undoubtedly, most, if not all, of these patents are software patents.  That is a lot of money for a portfolio of patents which the Supreme Court invalidates in a few months.  With so much at stake, it will be interesting to see what the Supreme Court has to say in this case.