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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.

Court refuses to dismiss photographer’s copyright claims

At our law firm, we represent photographers and other creative artists in a variety of copyright matters, including negotiating, drafting and reviewing licenses for use of copyrighted materials. We also bring and defend copyright infringement suits.

On January 4, a U.S. District Court judge in the Northern District of California denied publisher Scholastic, Inc., request to dismiss some of the copyright infringement claims in a suit brought by Peter Menzel, a photographer who had previously licensed some of his work for use by Scholastic.

US high court rejects de Havilland's right of publicity suit

Throughout 2018, we have followed in this space two-time Oscar-winning actor Olivia de Havilland's lawsuit against the creators of FX's docudrama series, Feud: Bette and Joan. On January 7, the U.S. Supreme Court refused without any comment to hear her case, in which the 102-year-old plaintiff sought review of the California Court of Appeal's holding that the series' makers' First Amendment right to expression trumped the actor's right of publicity and claim of defamation.

The California Supreme Court also refused to review the Court of Appeal's holding.

Judge finds insufficient evidence of DMCA violation

The Internet provides a vast platform on which creative works in written, photographic, film and video formats can be reproduced. Unfortunately, this also creates a bigger universe within which parties can violate copyrights by posting protected works online without permission.

This became a problem for Internet service providers, called ISPs, like website hosting services, or online marketplaces, like Amazon or eBay, that post creative works to view for potential purchase. The legal issues became thorny when third parties presented works to ISPs for posting that raised accusations of copyright violations. 

Many copyrighted works lose copyright protection in New Year

On New Year's Day, 2019, hundreds of thousands of creative works will enter the public domain when their copyright protections expire. An article in Smithsonian Magazine explains the interesting phenomena of this massive expiration after 20 years with no copyright releases. 

The reason for this hiatus was the federal Sonny Bono Copyright Term Extension Act, which in 1998 added 20 years to the protection of existing copyrights. Reportedly, Disney mounted a major lobby for the law because the copyright on Mickey Mouse's first movie "Steamboat Willie" was scheduled to expire in 2004. Thanks to the Act, the film is now protected until 2024.

Claims against Fortnite allege violation of rights in dance moves

Three celebrities have filed lawsuits against Epic Games, the creator of the wildly popular video game Fortnite, for allegedly using their signature dance sequences in the game without their permission and without giving them credit, reports The Washington Post. The suits bring claims for copyright infringement, violation of their rights of publicity and unfair competition.


The use of nondisclosure agreements in trade-secret protection

Our law firm regularly helps businesses, corporations and entrepreneurs to protect their trade secrets from exposure to and misappropriation by competitors. We have written in this space before about the importance of trade secrets to commercial success and stressed the importance of proactively erecting legal and physical barriers around trade-secret information.

Trademarks need inherent distinctiveness or secondary meaning

At our law firm, we represent people in a wide variety of legal matters related to the protection of branding through trademarks and service marks. A trademark is a distinctive word, name, phrase, logo, symbol or even a "device" like a sound, scent, motion or color that serves to identify the source of the product, good or service. 

A generic term cannot be trademarked. For example, an auto-parts maker could not trademark "tire." Rather, to be eligible for federal protection, an appropriate trademark must be distinctive, either automatically by its nature or by acquiring secondary meaning.

Licensing creative artwork

In the context of artwork, licenses are contracts in which artists grant to other parties -- often manufacturers -- the legal right to use their copyrighted creative works in exchange for flat fees or royalties based on a percentage of sales, sometimes with advances up front.  

At our law firm, we represent artists like photographers, painters and graphic artists in a wide variety of legal matters related to outbound licensing of their creative works. Careful drafting of such a license is important so the artist can control the ways in which the licensee can use the art.

Presidential tweet criticized for ... trademark misuse?

Some are still having a hard time accepting President Trump's use of Twitter to announce government policy or to express his personal or political opinions. One of his recent tweets, however, raised trademark issues when he modified the line "Winter is Coming" from the wildly popular HBO series "Game of Thrones." 

According to a search of live trademarks on the U.S. Patent and Trademark Office website, the original phrase, "Winter is Coming," is a registered trademark of HBO. According to ScreenPrism, the phrase not only identifies the series, it has evolved to symbolize metaphors in the series' stories such as "generally expressing the sentiment that dark periods occur in life."

When is a moving logo or image protectable as a trademark?

At our Northern California law firm, we represent people and businesses seeking trademark protections for their unique branding strategies, including words, phrases and logos used to identify their goods or services. While usually this brings to mind product names or unique logos, we have talked here before about less common types of trademarks granted for color, sound and scent associated with particular products or services. 

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