Category Archives: Dear KLF Legal

Dear KLF Legal

30 Friday Jul 2010

Posted by in Bloggers, Copyright, Dear KLF Legal, Intellectual Property, Musicians, Trademark

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From time to time, people write in with short questions about intellectual property law. We’re always happy to help educate the public about their IP rights, so KLF Legal tries to respond to each inquiry as best we can. The answers tend to be brief since the questions don’t typically include a lot of information. However, I thought it might be helpful to share these questions from time to time in a post category entitled “Dear KLF Legal”…enjoy!

Is there an equivalent form of “fair use” for logos? It really seems unreasonable that I can’t make use of the three lines that make up a Nike “swoosh” without permission.

There is a doctrine of “fair use” in trademark law, but it deals more with third-party use of another company’s trademarks for advertising or nominative uses rather than the ability to use similar trademark elements. One pillar of trademark law, which surprisingly is rarely mentioned, is the avoidance of consumer confusion. When people see the “swoosh”, they know they’re purchasing a high-quality product from Nike Inc. If every shoe company, particularly those that create poor quality products, started using a swoosh, a consumer would no longer be able to identify high-quality products with the swoosh trademark.

What’s the legality of music bloggers posting sample mp3’s without express permission?

A more detailed answer on legality will depend on whether the mp3s are available for download or only for listening. From a “real world” viewpoint, record companies typically have not been enforcing copyrights against music blogs because they view them as free advertising. The economic significance of MP3 blogs is small compared to P2P networks.

What is the cheapest and easiest way to copyright my content? From a blog post to a word document.

Once your original work is “fixed in a tangible medium of expression” (i.e. you have finished your blog post or word document), copyright protection is automatic and free. Hurrah. However, registration with the U.S. Copyright Office brings additional benefits, perhaps most importantly the ability to enforce your rights against infringers in federal court. Registration is quick and inexpensive ($35) so I usually recommend it for commercial works.

Dear KLF Legal,

05 Sunday Apr 2009

Posted by in Copyright, Dear KLF Legal, Intellectual Property

≈ 2 Comments

From time to time, people write in with short questions about intellectual property law. We’re always happy to help educate the public about their IP rights, so KLF Legal tries to respond to each inquiry as best we can. The answers tend to be brief since the questions don’t typically include a lot of information. However, I thought it might be helpful to share these questions from time to time in a new post category entitled “Dear KLF Legal”…enjoy!

Dear KLF Legal,

Q: Can I use public & historical names for characters I intend to use in a fictional book? Example: doll A is General Patton & doll B is Tai Babalonia.

A: Juliet:
“What’s in a name? That which we call a rose
By any other name would smell as sweet.”
Romeo and Juliet (II, ii, 1-2)

Intellectual property law will not generally prevent you from using the names of historical figures. While certain figures have protected their names as trademarks in connection with specific goods or services, names alone will not be protected.

If you start to go beyond use of a name into utilizing the likeness or persona of historical figures, you’ll want to consider not only trademark but “right of publicity” law. The right of publicity is generally defined as an individual’s right to control and profit from the commercial use of his/her name, likeness and persona. Take a look at “right of publicity” resources on the internet and familiarize yourself with the requirements.

Hope this helps.

KLF Legal

Dear KLF Legal

Q: My Chiropractor is accused of using another companies Q & A on her website. She in fact found the info elsewhere and the page the company says she took it from is not accessible unless you know it’s there – there are no links to it. The company sent a letter demanding she remove the content AND pay them $1400 – OR she can sign up with them to provide a site redesign and hosting for a nominal monthly fee. Can they do this? She’s removed the content but is what they’ve demanded acceptable?

A: They can absolutely attempt to do that. Here are some key things she should be thinking about:

First, can she identify the location where she found the info? If so, she could prove she did not copy their work. Even if the info is identical, if she didn’t copy them, she won’t be subject to copyright penalties.

Second, not all information is copyrightable. Facts and ideas are not. On the other hand, the layout of facts is copyrightable. She might want to have a copyright attorney review the information to determine whether it’s even something that can be protected by copyright law.

As far as whether what they’ve requested is acceptable, I’ll give you an idea about copyright damages. If their work has been registered with the U.S. Copyright Office (which presumably it was prior to sending the demand letter), they could be eligible to receive statutory damages ranging from $750-30,000. If the infringement is considered willful, the award could be up to $150,000. So some level of risk definitely exists if she’s shown to have copied their work.

Hope this helps.

KLF Legal

Dear KLF Legal,

10 Tuesday Feb 2009

Posted by in Copyright, Dear KLF Legal, Patent

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From time to time, people write in with short questions about intellectual property law. We’re always happy to help educate the public about their IP rights, so KLF Legal tries to respond to each inquiry as best we can. The answers tend to be brief since the questions don’t typically include alot of information. However, I thought it might be helpful to share these questions from time to time in a new post category entitled “Dear KLF Legal”…enjoy!

Dear KLF Legal

Q: Recently, while visiting family in Hawaii, I was watching TV and stumbled upon an On Demand station entitled PhotoShow TV. Being a photographer, I was intrigued thinking perhaps it was a show covering the latest in photography products and trends. I quickly discovered this was not the case, instead it was a listing of user created photo slideshows that were set to music. These slideshows can be created on the web then published so that anyone can watch them through their Time Warner Oceanic Cable service.

So, my question is two fold, if someone uploads photos and music that they do not have the rights to then who assumes the responsibility for the infringement, Time Warner Oceanic (TWO) or the individual who uploaded the media? I don’t know much about the service but I do know that TWO must approve the content to make sure it is not graphic or offensive. Since they have reviewed and approved all materials, does the infringement responsibility then become theirs?

Here is a link to a bit more information.

A: Thanks for your question.  This is very much an issue du jour in copyright/internet law.  The Digital Millennium Copyright Act (DMCA), Section 512, is the applicable law, but it’s appropriate application is not particularly clear right now.

Some info about the DMCA:

In the online world, the potentially infringing activities of individuals are stored and transmitted through the networks of third parties. Web site hosting services, Internet service providers, and search engines that link to materials on the Web are just some of the service providers that transmit materials created by others. Section 512 of the DMCA protects online service providers (OSPs) from liability for information posted or transmitted by subscribers if they quickly remove or disable access to material identified in a copyright holder’s complaint (generally referred to as a DMCA takedown notice).

In order to qualify for safe harbor protection, a service provider who hosts content must:

* have no knowledge of, or financial benefit from, infringing activity on its network
* have a copyright policy and provide proper notification of that policy to its subscribers
* list an agent to deal with copyright complaints

Of course, copyright owners want to hold the service providers liable, while the service providers want to claim immunity.

So, to answer your question, arguably TWO has knowledge of the infringing activity if they review each submission as you suggest.  This would put them outside the safe harbor and expose them to liability.  BUT, I suspect that they’re careful (or should be) about the manner in which they review submissions so that they can still claim the safe harbor protection.  The bottom line is it’s a gray area in the law that will probably be sorted out soon at the higher levels by the big players in the industry, Warner Music, YouTube, etc.

Hope this helps.

KLF Legal

Dear KLF Legal,

Q:  I want to produce a game and get a patent to protect it, but it is based off of another license. Do I have to get permission to use the license before I try to get the patent or should I get the patent first?

A:  Obtaining a patent can be expensive (think $5,000-$20,000) and the procedure is lengthy (2+ years) so you almost certainly will not want to get a patent first before you are sure that you are cleared to do so.  Go back to the license…does it speak to this issue? If you have trouble understanding the language of the license, you may need to have an attorney help you review it.  Also, keep in mind that to receive a patent your game must be new, non-obvious and useful. In other words, don’t dump a lot of time and expense into getting a patent before you’ve checked to make sure that a patent could even be received. You can do so by having an patentability search performed on your behalf.

Here’s a helpful article that discusses the benefit of patents in the game industry.

Good luck with your game.

KLF Legal

Dear KLF Legal,

23 Friday Jan 2009

Posted by in Copyright, Dear KLF Legal

≈ 1 Comment

From time to time, people write in with short questions about intellectual property law.  We’re always happy to help educate the public about their IP rights, so KLF Legal tries to respond to each inquiry as best we can.   The answers tend to be brief since the questions don’t typically include a lot of information.  However, I thought it might be helpful to share these questions from time to time in a new post category entitled “Dear KLF Legal”…enjoy!

Dear KLF Legal

Q: I would like to use selected quotations (varying in length from 1 sentence to 1 paragraph) as part of lecture materials available on a website. The quotes are from books that are not public domain, and they will be properly cited. The lectures will be posted with a Creative Commons License. Do I need to request permission to use the quotations?

A: You’re using someone else’s copyrighted work, so your instincts are correct to request permission. It’s always better to err against infringement. However, depending on your specific circumstances, your use may be considered “fair use,” in which case you would not be required to request permission in order to avoid infringing.

Quick explanation: One of the rights accorded to copyright owner is the right to reproduce or to authorize others to reproduce the work in copies. This right is subject to certain limitations found in the Copyright Act. One of the more important limitations is the doctrine of “fair use” in Section 107, which contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work

The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. *NOTE* that acknowledging the source of the copyrighted material does not substitute for obtaining permission.

Depending on your circumstances, you may want to have someone familiar with copyright law look at the selected quotes and help you make that analysis. It sounds like your situation might qualify for “fair use,” but it’s not possible to advise further without more details.

Hope this helps.

KLF Legal

Dear KLF Legal

Q: I want to create a collectible card game. I want to use the basic rules from another card game. I am changing the terms and how certain things work and the basis of the game itself. I plan on trying to publish and sell this game. I am wondering if I will be fine legally? If not how much of the original rules need to be changed before it is considered a new property?

A: There is no special category of copyright protection for games as a whole. Copyright does not protect the idea or concept behind a game, nor does it protect the information as to how the game is to be played. Ideas, information and styles are not protected by copyright. 

Note that copyright laws may protect a particular written expression of the rules. Your best option is to completely rewrite the rules in your own words.

Also be careful to avoid the use of any trademarks or trade dress associated with the original game.

Good luck with your game!

KLF Legal