I was recently made aware by a trusted source in the fashion industry that the clothing retailer Forever 21 had placed an artist's artwork on clothing without the artists permission and without compensation to the artist.
So you may be asking yourself, but Ted, you are always talking about how designs are protected by copyright. How could this be?
Well, in addition to its history of labor violations, Forever 21 has been sued more than 50 times for allegedly stealing the work of other designers and passing it off as their own. Despite this long legal history, Forever 21 continues to thrive.
The matter that recently came to my attention is that the artwork of an artist at http://textilenerd.tumblr.com was appropriated by Forever 21 without permission or compensation. See the original link here.
Left: Original Artist's work. Right: Forever 21.
Consequently, being the lawyer I am, I started researching the issue. What I discovered was a company that is no friend to fashion designers.
Left: An Anna Sui dress on the runway. Right: Forever 21's version.
Apparently, Sui was copied by Forever 21 more than 20 times before she took legal action.
Forever 21 has copied everyone, from big brands like Anna Sui and Diane von Furstenberg...
I am regularly asked by client, what class(es) would be appropriate for registration of their goods or services. However, no one knows their products and services better than my clients themselves. Consequently, I have included the International Classifications for goods and services below. This is the best starting point for any discussion with a qualified trademark attorney on the classes in which an application should be filed.
Chemicals used in industry, science and photography, as well as in agriculture, horticulture and forestry; unprocessed artificial resins, unprocessed plastics; manures; fire extinguishing compositions; tempering and soldering preparations; chemical substances for preserving foodstuffs; tanning substances; adhesives used in industry.
Class 1 includes mainly chemical products used in industry, science and agriculture, including those which go to the making of products belonging to other classes.
This Class includes, in particular:
salt for preserving other than for foodstuffs;
certain additives for the food industry (consult the Alphabetical List of Goods).
Privacy laws vary from country to country, but in most developed countries you need to gain permission from a person to use their image in a media project of any kind if they are identifiable in the piece. If the person is considered to be a minor (usually those under 18 years of age) in the jurisdiction where youre shooting, you will normally need to have a parent or legal guardian sign consent on their behalf instead.
Legitimate news gathering organizations often have special exemptions from these rules as they are generally considered to be operating "in the public interest," but filmmakers (including documentary-makers) do not enjoy this exemption and must therefore get everyone who is recognizable in the film to sign a release form. Without the release, anyone who appears in your film may be able to sue you for using their image without permission, may prevent you from distributing your film, or may even demand a cut of the profits.
If you are shooting with actors or in a controlled environment, make sure you get releases signed at the outset. Leaving it until later on or after your shoot is a very bad idea - what if you lose contact with the actor or have a falling out? It's better to have the...
Unless you know for sure that the clip showing on the TV is in the public domain, you should get copyright clearance to use it. Otherwise you may find that the shot has to be removed from your final film before it can be shown publicly, or worst, you get a letter from the copyright owner demanding a license fee plus damages for the unauthorized use of the their material.
In some cases, particularly with documentary films, it may be possible to argue that the clip on a television constitutes "fair use" (as defined in copyright law). However, to be successful in this defense the clip needs to be incidental to the shot. You still may end up in court having to defend your assertion of fair use, but if the clip isn't featured or favored in your shot, you'll at least have a chance of convincing the judge that fair use applies.
But the upshot is, if you have any control over the scene whatsoever, turn off the television or replace the content with something, which either a) you have the rights to, or b) is in the public domain. If that's not possible, you should seek to clear the clip, or don't use the shot.
At the dawn of the 21st Century, business began using eCommerce as a very real way to interact with their consumers. They discovered that they could reach many more consumers and provide them with the ease of shopping from home via the internet.
Over the following years, innovations in technology made the internet faster and more interactive. Additionally we saw innovations such as smart phones and their ability to access the internet on the go. Fast forward to today, where consumers have a multitude of options regarding how they connect to the internet to purchase goods or services. There is the desktop, laptop, tablet, smart phone, wifi ready devise, and many more.
Consequently, in a relatively short period we went from a society of brick and mortar businesses where (for the most part) business was done within a relatively small geographic area; to a world populated by virtual storefronts and where geographic location has lost any meaning whatsoever.
When eCommerce started to become commonplace for businesses in the late 20th and early 21st Century it was simply enough for a company to have a presence on the internet, however, today, that is simply a happy memory. The global community of businesses on the internet means...
Princeton Review, Inc. ("Princeton Review"), a test preparation service, obtained the domain name "kaplan.com," which contains the trademark of its commercial rival, Stanley H. Kaplan Educational Centers, Ltd. ("Kaplan"). In what is believed to be the first ruling on this issue, unanimous three person arbitration panel required Princeton Review to relinquish the "kaplan.com" domain name to Kaplan.
The first key fact is that the panel had to assume that Internet addresses can in fact act as trademarks. This is not surprising given the true nature of Internet addresses. Although the name "addresses" conjures up the post office addresses of real-world places, this is only part of the purpose of Internet addresses.
As summarized in the statements of the McDonald's pirate himself: "Domain names are to the Internet what addresses are to the Postal Service. They're more than that, really, since your domain name can tell the online world something about who you are. Domain names are kind of like postal addresses, vanity license plates and billboards, all rolled into one digital enchilada.â
The second key fact about the "kaplan.com" case confirms the ability of domain names to serve as trademarks. To quote the McDonald's pirate again:...
If you find yourself in a dispute over a domain name, the best alternative to pursuing the dispute through the courts is to take advantage of the domain name dispute policies that have been developed by ICANN.
Currently the preexisting non-court resolution policy has now been replaced with a Uniform Domain Name Dispute Resolution Policy created by ICANN and used by all accredited registrars. Under this new policy, a trademark owner can initiate a relatively inexpensive administrative procedure to challenge the existing domain name. In order to prevail, the trademark owner must show:
1. that the trademark owner owns a trademark (either registered or unregistered) that is the same or confusingly similar to the registered second level domain name;
2. that the party that registered the domain name has no legitimate right or interest in the domain name; and
3. that the domain name was registered and used in bad faith.
If the trademark owner successfully proves all three points in the administrative proceeding, then the domain name can either be cancelled or transferred to the prevailing trademark owner. If the trademark owner fails to prove one of these points, the administrative panel will not cancel nor transfer the domain name.
When a dispute occurs over a domain name, such as those described in earlier articles, the parties can always turn to the courts. While courts and judges have the authority to award control and ownership over domain names (just as they have authority to award control and ownership over any other property), the judicial process is slow and costly. Consequently, many parties seek to avoid the courts and turn to the domain name dispute policies of the domain name registrars. Refer to later articles for additional information regarding these policies.
Companies that bring a court action must present valid legal arguments on why a domain name registered to someone else should be canceled or transferred to an organization who wasn't quick enough to register the name first.
These arguments have been traditionally based on trademark law or dilution law (which are discussed in other articles on the TMRoe.com website). It has been difficult to present a strong case under the traditional principals of trademark law, especially when the party seeking to obtain a domain name either could not prove a likelihood of confusion (which is required under trademark law) or was a famous individual who never technically established trademark rights in...
The Internet has become wildly popular with businesses (including their inclusion of social media in their marketing plans, which will be the subject of future blog articles). Companies now realize that having a domain name that is the same as their company name or the name of one of their products is an extremely valuable part of establishing an Internet presence, marketing, research, product development and generating brand identification and loyalty. As described in a previous article, a company wishing to acquire a domain name must file an application with the appropriate agency. Before doing so, a search is done to see if their desired domain name is already taken.
When a company finds that the domain name corresponding to their corporate name or product trademark is owned by someone else, the company has the same options as with a standard potential trademark infringement case, i.e., 1) choose a different name or, 2) fight to obtain the domain name from its current owners.
Some well publicized examples of these types of domain names disputes are:
candyland.com: Both Hasbro and an adult entertainment provider desired the candyland.com domain name. Hasbro was too late to register the name itself, but it is never too late to...
To register a second level domain name under a top-level domain, a request must be made to an organization that has the power to assign names for that top level domain. For instance, The US Domain Registry administers the registration of second level domain names under the .US top level domain.
Prior to December 1999, this responsibility for the registration of second level domain names for the most popular top level domains, including .COM, .NET, and .ORG fell on Network Solutions Inc ("NSI"). As the vast majority of domain names are under one of these top level domains Network Solutions wished to avoid having to be the arbitrator between two parties who both desire the same domain name, so, NSI decided to simply adopt a first come, first serve arrangement with respect to domain names. Under this scheme, NSI would not question an applicant's right to have a particular domain name. If the domain name was available, the applicant was granted the name.
As of December 1999, the ability to register .COM, .NET, and .ORG domain names was spread out among many registrars. These registrars are accredited by The Internet Corporation for Assigned Names and Numbers ("ICANN"), a non-profit corporation formed specifically to control Internet...