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San Francisco California Intellectual Property Law Blog

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

US Supreme Court to hear important copyright infringement case

At Lawrence G. Townsend, Intellectual Property Lawyer, we represent California plaintiffs and defendants in federal copyright infringement lawsuits. The copyright owner of an "original work of authorship" has an exclusive right to control, use and protect its creative work, which could range from books, movies, and architecture to music, poetry and software. 

A creative work eligible for copyright protection is automatically protected by copyright law upon its tangible creation, but to file a federal lawsuit for copyright infringement, the work must be registered with the U.S. Copyright office, a government agency.  Infringement happens if a copyrighted work is "reproduced, distributed, performed, publicly displayed, or made into a derivative work without" the owner's permission, according to the Copyright Office.

De Havilland to ask highest court to hear right-of-publicity case

At our law firm, we represent people involved in disputes about the right of publicity. The right of publicity means that a person's name, photograph, or the like cannot be used for commercial purposes without that person's permission. 

California state law specifically says that a person who uses another's "name, voice, signature, photograph, or likeness, in any manner ... without that person's prior consent" may be liable in a lawsuit for damages and legal costs.  

Marketing to the senses: Nonvisual marks for scent

When considering trademarks, most people think of words used as brands, commercial slogans, stylized writing, or symbols. As we talked about recently, in a few situations, federal trademark registrations have been granted for colors when a specific shade has become distinctly linked with a product. Think about Post-It note yellow and the immediate mental association between the color and the product. 

In another kind of trademark linked to our senses, in rare cases, the U.S. Patent and Trademark Office, known as the USPTO, approves trademarks based on scent, sometimes called olfactory marks.

Color alone may in certain circumstances be trademarked

At our law firm, we help people protect their trade and service marks for brands, slogans, logos and similar ways to uniquely identify the source of a particular product, good or service in the marketplace. We also represent people being accused of infringing or diluting another party's mark. 

One unique kind of mark that can only in narrow circumstances be protected is the color mark. Mental Floss explains that a trademarked color is only protected for use within the particular industry or product type in which it is uniquely used, where it has become associated strongly in the perception of the public.

California jury awards millions for trade-secret theft

In recent posts, we have discussed the difficulty of protecting trade secrets in this age of rapidly advancing technology. It is easier than ever for an employee or contractor to digitally abscond with valuable commercial secrets

On August 10, a Superior Court jury in Santa Clara County awarded $66 million to Lumileds, a San Jose LED lighting company in a trade secret lawsuit. According to The Mercury News, the complaint alleges that Lumileds formerly employed Chinese citizen Gangyi Chen as a research engineer, who took trade secrets and gave them to his current employer, Elec-Tech International, known as ETI, a Chinese technology company. Chen is now reportedly an ETI vice president.

Current trademark issues in international markets

At our law firm, we represent clients in a wide range of trademark matters, including international registrations and renewals, and worldwide protection of marks in commerce. 

A U.S. business or entrepreneur who is already exporting goods or who intends to export goods outside the country or even produce them abroad for sale in other countries should talk to an attorney about how to best protect lucrative marks in markets abroad.

Steve McQueen family sues Ferrari over using name on car

On July 31, the surviving family of iconic actor Steve McQueen filed a lawsuit in Los Angeles state court against luxury auto maker Ferrari for calling a limited-edition Ferrara "The McQueen" without permission. The car is brown, apparently in tribute to a brown Ferrari Lusso that McQueen had owned. The McQueen Ferrara was part of the automaker's 70th birthday tribute to famous Ferrari owners. 

Courthouse News Service cites the complaint as saying McQueen was the best paid actor around the globe in the mid-1970s and that he loved car racing, as reflected in his choices of roles in films on the subject.

State high court rejects de Havilland's right-of-publicity case

The California Supreme Court has rejected a famous actor's appeal of a right-to-publicity case in which she claims the portrayal of her by another actress in a TV series cast her in an undesirable light. 

California's right-of-publicity statute broadly allows a person to sue for money damages and to recoup his or her legal fees if someone else has -- without consent -- used the person's "name, voice, signature, photograph, or likeness" in any way, including in products or advertising.

VARA and the moral rights of graffiti artists

At our law firm, we represent artists and parties doing business with them in agreements and lawsuits about artists' "moral rights" to their creative works under the federal Visual Artists Rights Act of 1990, known as VARA, as well as under the California Art Preservation Act. We have recently been discussing copyright issues concerning graffiti or aerosol art and, in an interesting twist, a federal judge in New York recently found in favor of graffiti artists in a VARA lawsuit

On June 13, 2018, Judge Frederick Block refused to grant a new trial in Cohen v. G&M Realty L.P., a case in which he had ordered $6.75 million in damages under VARA against the owner of a building in New York City because the owner whitewashed -- without warning to the artists -- famous, extensive graffiti art on the building's brick walls.

Another twist on copyright interests in graffiti art

We recently talked here about the emerging copyright question of whether graffiti can be protected creative work. In our previous post, we described a case in which a federal judge in New York decided that a graffiti artist did not have an infringement claim. Because the art was only displayed for a couple of seconds in the background of a scene in "Vinyl," a show involving Mick Jagger as a creator, the judge said the use was only de minimis, meaning so trivial and brief that it could not rise to the requirement that the use be "substantially similar" to the original work. 

That case is on appeal, and we will keep an eye on what happens to it. The trial court's decision is an interesting one to ponder because, by applying copyright analysis to the use of the graffiti, the judge in essence seemed to acknowledge that there may be instances where graffiti may have copyright protection.

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