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...
When I first saw these photos, I did what anyone would do... laugh. This very effectively illustrates an incredibly valid point regarding copyright law. Just because you made something does not mean you hold the copyright to it. In the above example, Spiderman was created by Stan Lee and he holds the copyright on images of Spiderman. The first image would be a derivative work, meaning that it is not completely original but rather is derived from some other work, i.e., Spiderman. If the first artist truly wanted to create this work and not be liable for copyright infringement, he would need to obtain the appropriate license or fall within one of the exemptions of fair use.
To put it another way, you need to own it before you can Own it.
So I am asked this question, often, can I use a song or other copyrighted work in my film if I change ... percent of it?
For a long time a copyright myth has circulated that there is a magic percentage of a copyright work, that if the original work is changed by that amount, it becomes ok to use without permission.
This is completely and utterly false.
There is no rule of thumb or magic number, which separates non-infringing use from infringing use. This interpretation is entirely up the courts, and will depend largely on the nature of the copyright work and how it is used.
In nearly all cases, if you are planning to use copyrighted material in your film, you will either need to get permission from the copyright holder, or substantially change it to the point where it is not recognizable from the original source (which kind of defeats the purpose of using it anyway).
International copyright law does allow for a concept of "fair use", which allows copyrighted material to be used for certain purposes without permission of the copyright-holder. Fair use is a qualitative measure so it again comes down the to the way in which the material is used, how much is used, and what the nature of the copyright material itself is. Generally, fair...
Brand abuse does not, necessarily, mean counterfeiting. Trademark infringement can be equally damaging. Goodwill and reputation associated with the products and services of your company can tempt others into cashing in.
Unfortunately, there is no worldwide registration of trademarks. With rare exceptions, trademarks must be registered on a country-by country basis. Generally, the person registering the trademark should consider registering the trademarks as soon as possible in every jurisdiction considered for possible expansion.
In almost every legal jurisdiction in the world, there are very significant benefits that flow from trademark registration. With some limited exceptions for prior users in a number of countries, trademark registration will usually provide the registering party with the exclusive right to use the trademark in a particular jurisdiction for the goods or services covered by the registration.
Trademark offices in many countries do not perform an examination for prior registrations, and in those that do, the process is not always accurate. Furthermore, no country will search for or cite the rights of prior users. However, we need not look solely, to other countries to illustrate this problem. It also appears...
Imagine, large boxes filled with new product sitting in a home office, now imagine them never leaving.
This is an all to real and frequent example of how trademark disputes can effectively shut a small business down. Small businesses traditionally, put the lion share of their capital into the product and administrative aspects of their new business. However, ignoring the implications of a potential trademark infringement lawsuit could be disastrous.
If a company puts all of their capital into developing a certain brand name and that brand name just so happens to belong to the owner of a different company, this is the textbook example of trademark infringement, and can cause a business to come to a screeching halt.
Occasionally, I hear from a client (who initially filed their trademark application themselves) "I have a product, but I can't do anything with it. We received a cease and desist letter which said that if we use it [the trademark], we could be in real trouble."
After meeting the minimum filing requirements and receiving approval from a trademark-examining attorney, the new client is sent a notice of publication by the US Patent and Trademark Office. Thereafter, the published trademark is opposed during the 30-days...
Ford Motor Company sued Ferrari SpA in Detroit federal court, claiming the Italian luxury automaker misappropriated its F-150 pickup-truck trademark for a 2011 Formula 1 racing car.
When Ferrari proudly unveiled the F150, its state-of-the-art Formula 1 race car, Ford said the name was too similar to its F-150 pickup truck, the best selling Ford vehicle for many years. Ford insisted that Ferrari change the name of the car. Ferrari refused, thinking it was odd that a sleek, carbon fiber Formula 1 race car could in any way be linked with a 5,000-pound American pickup truck. Ford sued, filing a trademark infringement lawsuit in federal court. However, even though confusion was unlikely between the Ford pickup and the Ferrari Formula 1 and in many ways any potential association could be considered ridiculous, Ford had no choice but to demonstrate vigilance in protecting the value of its brand.
In its complaint Ford alleged that Ferrari, based in Modena, Italy, adopted the Ford trademark âin naming its new racing vehicle the âF150â in order to capitalize on and profit from the substantial goodwill that Ford has developed,â and that âFerrari's F150 logo bears striking resemblance to the one on Ford's F-150 pickup truck.â
After a considerable amount of interest in my prior article on Fair Use, I have decided to expand on the subject.
Free Republic, LLC, owner of the political website freerepublic.com, was found liable for copyright infringement in L.A. Times v. Free Republic for reproducing and archiving full-text versions of plaintiffs' news articles even though the judge found the website minimally commercial. She held that "while defendants' do not necessarily 'exploit' the articles for commercial gain, their posting to the Free Republic site allows defendants and other visitors to avoid paying the 'customary price' charged for the works."
The April 2000 opinion ruled concerning the four factors of fair use that 1) "defendants' use of plaintiffs' articles is minimally, if at all, transformative," 2) the factual content of the articles copied "weighs in favor of finding of fair use of the news articles by defendants in this case," though it didn't "provide strong support" 3) concerning the amount and substantiality prong, "the wholesale copying of plaintiffs' articles weighs against the finding of fair use," and 4) the plaintiffs showed that they were trying to exploit the market for viewing their articles online and defendants didn't rebut...
After a considerable amount of interest in my prior article on Fair Use, I have decided to expand on the subject.
Free Republic, LLC, owner of the political website freerepublic.com, was found liable for copyright infringement in L.A. Times v. Free Republic for reproducing and archiving full-text versions of plaintiffs' news articles even though the judge found the website minimally commercial. She held that "while defendants' do not necessarily 'exploit' the articles for commercial gain, their posting to the Free Republic site allows defendants and other visitors to avoid paying the 'customary price' charged for the works."
The April 2000 opinion ruled concerning the four factors of fair use that 1) "defendants' use of plaintiffs' articles is minimally, if at all, transformative," 2) the factual content of the articles copied "weighs in favor of finding of fair use of the news articles by defendants in this case," though it didn't "provide strong support" 3) concerning the amount and substantiality prong, "the wholesale copying of plaintiffs' articles weighs against the finding of fair use," and 4) the plaintiffs showed that they were trying to exploit the market for viewing their articles online and defendants didn't rebut...
For over ten years a California man named, Rick Norsigian has been trying to prove that a box of glass-plate negatives he bought at a yard sale are the work of Ansel Adams. Norsigian bought the negatives at a Fresno, California, garage sale for $45.
After marketing prints made from the negatives as Adams prints the Ansel Adams Publishing Right Trust filed a federal trademark infringement lawsuit against Norsigian. Norsigian responded by filing counterclaims against the Trust.
A team of experts concluded they were Adams' early work, believed to have been destroyed in a 1937 fire at his Yosemite studio, Norsigian said. The Adams Trust disputed that.
However, the authentication effort was hampered from the beginning by the emergence of Earl Brooks. An Oakland woman, Marian Walton, produced a photo she said was taken by her "Uncle Earl" which seemed to match one of the negatives â a shot of the Jeffrey Pine in Yosemite.
Also in the fall of 2010, another seemingly matching photo of Yosemite was found in a photo scrapbook belonging to Brooks' great grandson. No word from Earl Brooks' family about settlement agreement; one legal chapter might have closed, but many questions remain.
Consequently, this week, Norsigian agreed to a ...
In this final installment of the weekâs articles regarding copyright law and filmmaking I will focus on the Fair Use doctrine.
The Fair Use doctrine is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work that allows limited use of copyrighted material without acquiring permission (license or assignment) from the rights holders. Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test.
Notwithstanding the provisions of sections 17 U.S.C. Â106 and Â106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
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