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Indiana Intellectual Property Blog

~ Trademark and Copyright Law Updates in Indiana

Indiana Intellectual Property Blog

Category Archives: Fashion

Chicks on the Right sued over unauthorized use of Topless Selfie Teacher Photo

29 Monday Nov 2021

Posted by Kenan Farrell in Copyright, Fashion, Indiana, Intellectual Property, Litigation, Southern District of Indiana

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Debra McVicker Lynch, Direct Copyright Infringement, Jane Magnus-Stinson, Photography

Here’s another copyright lawsuit that supports the argument for a copyright small claims court.

The plaintiff is a New York-based professional photographer who owns the registered copyright in a photograph of Lauren Miranda, a New York teacher fired over a topless selfie. Mrs. Miranda was subsequently awarded $3 million in a gender discrimination lawsuit over the firing.

The defendant, Chicks on the Right, an Indianapolis-based politically conservative online news radio show and website, allegedly used the plaintiff’s photograph of Mrs. Miranda in an April 2019 blog post reporting on the teacher’s gender discrimination lawsuit (note: the plaintiff filed for registration of the photograph on June 30, 2019, almost 3 months after the blog post). While the defendant might be hoping to rely on a “news reporting” fair use defense, unfortunately there’s really no “fair use” reason to use the plaintiff’s specific photograph. Numerous images of Mrs. Miranda exist that could have been used (with proper authorization), and the Chicks on the Right blog post isn’t commenting, criticizing, or reporting on the plaintiff’s actual image. Having an online “news blog” isn’t a free pass to use any photograph you find on Google Images.

The reality is that professional photographers take lots of photos for a living, and sell only few. Perhaps political differences kept this dispute from reaching a simple non-litigious monetary resolution. Now, we can expect technicalities about the actual photograph’s ownership, registration or use to be explored in the defendant’s response or discovery.

On one hand, the Chicks on the Right, who likely use photographs for news articles on a daily basis, should be in the habit of verifying the source of every photograph they post on their blog. Presumably, in this specific instance two years ago, someone just got lazy or quick and grabbed the wrong photograph off the internet.

On the other hand, there’s simply no reason a U.S. Federal Court and esteemed judges like Jane Magnus-Stinson and Debra McVicker Lynch, already overloaded with significant legal disputes, should be dealing with a copyright lawsuit over one photograph (of a person most people have never heard of) used on a single “news” blog post. Statutory damages for a single non-willful infringement would be $750, almost certainly less than the plaintiff spent on preparing and filing this lawsuit, and definitely less than the Court has to expend in processing the dispute. You can’t blame the plaintiff though; currently, they have no other alternative legal option than federal court for a photography copyright dispute. Time will tell if there’s better way to handle such disputes.

Note that the allegedly infringing image no longer appears on the defendant’s website as of the posting of this blog (11/29/21).

By the way, go do a Google search for Lauren Miranda’s attorney. Sharp dresser. So much so, I’m giving this post a “Fashion” tag.

Stay tuned for updates.

Alcorn v. COTR, LLC

File Date: November 22, 2021
Plaintiff: Victor Alcorn
Plaintiff Counsel: Craig B. Sanders, Esq.
Defendant: COTR, LLC
Cause: Direct Copyright Infringement
Court: Southern District of Indiana
Judge: Jane Magnus-Stinson
Referred To: Debra McVicker Lynch

Complaint:

View this document on Scribd

Vera Bradley sues numerous eBay sellers over counterfeit goods

27 Tuesday Mar 2018

Posted by Kenan Farrell in Copyright, Fashion, Indiana, Intellectual Property, Litigation, Northern District of Indiana, Trademark

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Common Law Unfair Competition, Copyright Infringement, Counterfeiting, eBay, False Designation of Origin, Trademark Infringement, Unfair and Deceptive Trade Practices, Unfair Competition, Unjust Enrichment

The defendants in this lawsuit are alleged to have sold counterfeit Vera Bradley products on eBay since as early as January 2016.

Vera Bradley Designs, Inc. v. Denny et al.

Court Case Number: 1:18-cv-00070
File Date: Monday, March 26, 2018
Plaintiff: Vera Bradley Designs, Inc.
Plaintiff Counsel: Mark D. Scudder of Barnes & Thornburg LLP, Michael R. Gray of Gray, Plant, Mooty, Mooty & Bennett, P.A.
Defendants: Jennifer Denny, Austin Devin 2 Denny Boys, LLC, Darlene Nicholas, Amanda Whitfield, and Ilene Simpson
Cause: Trademark Infringement, Copyright Infringement, False Designation of Origin, Unfair Competition, Unfair and Deceptive Trade Practices, Common Law Unfair Competition, Unjust Enrichment
Court: Northern District of Indiana
Judge: TBD
Referred To: TBD

Complaint:

View this document on Scribd

Stories from the Week that Was – 1/1/12-1/7/12

08 Sunday Jan 2012

Posted by Kenan Farrell in Copyright, Fashion, Federal Initiatives, Intellectual Property, Legislation, Stories from the Week that Was, Tech Developments, Trademark

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NDAA, SOPA

Stories from the Week that Was – 1/1/12-1/7/12

SOPA is THE issue in IP for early 2012. There is plenty of opposition to the bill from all sides but I’m left with so little confidence in Congress doing the right thing that I can’t forecast an optimistic outcome. I’m tempted to mail a copy of William Patry’s new book “How to Fix Copyright” to all of my congressmen. I’m about halfway through and it carries a vital message that hopefully gets to our elected officials before SOPA is passed and does permanent damage to the Internet.

Why Everyone Should Be Against SOPA

Why The Movie Industry Can’t Innovate and the Result is SOPA

National Defense Authorization Act Outrage Continues To Grow Online

Careful, That’s Not a Louis Vuitton

2011: The Year Intellectual Property Trumped Civil Liberties

Homeland Security monitors journalists

Trademark Licensing Lessons from the Faucet Couture

09 Wednesday Nov 2011

Posted by Kenan Farrell in Branding, Fashion, Indiana, Indianapolis, Intellectual Property, Tech Developments, Trademark

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Brizo, Jason Wu, Licensing

It looks like a unique cross-licensing venture may force me to revise my standard email that I send to trademark clients. For years, I’ve used the following language to help clients understand how to properly select goods and services for their trademark application:

An applicant must state the specific goods or services for which registration is sought and with which the applicant has actually used the mark in commerce. You will not be able to claim federal trademark protection for goods and services outside of those listed in your application (for example, a plumbing company could begin selling “INSERT CLIENT TRADEMARK” faucets without infringing upon your registration as it will not claim “faucets.”

Introducing Jason Wu for Brizo. It turns out a trademark’s expansion into the faucet market may not be so unlikely after all:

Jason Wu is a popular Manhattan-based fashion designer. Brizo is an Indianapolis-based provider of luxury faucets. The two have collaborated to create faucets that, besides looking good, also have a green tech aspect that is pretty cool:

The Jason Wu for Brizo Odin faucet is equipped with SmartTouchPlus(TM) Technology, which allows users to start and stop the flow of water with a simple touch anywhere on the spout or handle of the faucet. For a more intuitive experience, its hands-free mode activates the flow of water when hands are anywhere within 4″ of the faucet…an exclusive temperature control technology featuring a new temperature sensing indicator. A LED light display built into the base of the faucet uses shades of light, from blue to magenta to red, to indicate actual water temperature. The electronic valve built into the lavatory faucet also monitors the mixture of hot and cold water to help provide a consistent temperature for the user, while its high temperature limit stop offers an added degree of safety.

This teamup is a nice reminder that collaborative trademark cross-licensing can be a win-win for all parties. If successful, the Jason Wu for Brizo collection will reinforce the position of the Brizo faucet brand as fashion forward and innovative, and it marks the debut of the popular Jason Wu into the world of interior design.

Have Jason Wu and Brizo got you thinking about finding a trademark license for your company? Although the terms of every trademark license are different and may be freely negotiated between the licensor and licensee, all licenses must at least include the following provisions to be valid:

  • The legal names of the licensor and licensee
  • Identification of the trademark(s) that are the subject of the licensing agreement
  • Identification of the products/services with which the licensed mark may be used
  • The geographic territory in which the licensee may operate and sell its products/services
  • Quality control provisions that set forth clear standards as to the nature and quality of the licensed products/services

Optimally, a trademark license should also explicitly state:

  • whether the license is exclusive or non-exclusive
  • the duration of the license
  • whether the license may be renewed and under what conditions
  • the amount of any royalty payments or other compensation due to the licensor and when those payments are to be made
  • the responsibilities of both parties upon the termination or expiration of the license
  • the consequences of breaching the license and the time in which the breach must be remedied

Can you think of other innovative trademark cross-licensing efforts from Indiana companies? Leave a comment below.

Kenan Farrell, Leibman Forum featured in IU Law Alumni Magazine

22 Wednesday Dec 2010

Posted by Kenan Farrell in Fashion, Intellectual Property, KLF Legal

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My recent presentation “Fashioning the Law of Design: Wearable Intellectual Property” at the 7th Annual Jordan and Joan R. Leibman Forum was featured in the Winter 2010-2011 issue of the IU-Indianapolis Law Alumni Magazine. My excerpt:

View this document on Scribd

Click here to read the full magazine. Feature article: “The Turning Point, Change on the Horizon: What’s Next?” by Jonna Kane MacDougall, ’86

Here’s the full slideshow from the presentation:

 

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