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...
The U.S. Navy may have more of an effect on fashion then they ever dreamed.
Designers have been using camouflage in everything from dresses to bags to shoes.
The Navy now has a registered trademark on a camouflage pattern used on its uniforms. The trademark at issue is for the NWU 1 pattern, a pixelated black, gray and navy blue design. The trademark office initially refused the allow the Navy to register the pattern as a trademark on the grounds that the mark is purely functional and ornamental. However, the Trademark Trial and Appeal Board held otherwise. The Board stated that while the Navy was unable to establish that its print functions as a trademark, they were able to show that due to actual use of the print, it has acquired the necessary distinctiveness in the eyes of the public.
Ralph Lauren, Prada and other designers, on the other hand, may not be able to run out and trademark their camo prints. According to the Navy's trademark application, the mark is limited to goods "to be sold to authorized patrons of the military exchanges pursuant to Armed Services Exchange Regulations. So, while this case provides interesting insight into trademark law, it doesn't seem like it will help designers out just yet....
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.
CLASS 1
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.
Explanatory Note
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:
compost;
salt for preserving other than for foodstuffs;
certain additives for the food industry (consult the Alphabetical List of Goods).
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.
U.S. Court of Appeals for the 9th Circuit Finds Chinese Website Hosts Vicariously & Contributorily Liable for Trademark & Copyright Infringement.
A recent landmark decision of the U.S. Court of Appeals for the Ninth Circuit offers a promising possible avenue for stopping trademark and copyright infringers who sell infringing goods over Chinese--owned websites. That is, suing any US companies or individuals who host the Chinese--owned websites in the United States, under a theory of contributory trademark and copyright infringement.
The decision is Louis Vuitton Malletier, S.A. v. Akanoc Solutions; Managed Solutions Group, Inc., and Steven Chen, 2011 U.S. App. LEXIS 18815, (9th Cir., Sept. 9, 2011). It is groundbreaking because, to date, most US courts have found the other way and not held the website hosting companies responsible under a theory of contributory infringement. This decision may cause more web hosting companies to institute formal notice and takedown provisions in the future to ensure that notices of infringement are promptly handled.
In Louis Vuitton vs. Akanoc, the appellate court affirmed a jury award against MSG, Akanoc, and Steven Chen. None of the parties actually sold the counterfeit goods on...
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.
Getting investors on board your film is perhaps one of the most difficult aspects of the filmmaking process, and also one that can be fraught with many risks. Indie filmmaking lore is full of stories of filmmakers who begged, borrowed, or proverbially stole the money to make their films, stories, which of course end in box-office gold or Sundance glory. But for every âBrothers McMullenâ, âEl Mariachiâ, âClerksâ, or âBlair Witch Projectâ, there are at least 10 miserable failures; stories of filmmakers who poured heart, soul, and comparatively plenty of cash only to be left with an expensive tin of celluloid that nobody wants.
Placing money in independent films is a risky investment. So when you are looking to get investors on board your project (particularly people who are outside your circle of family and friends) itâs essential that you take a professional approach and set realistic expectations for the potential risks and rewards. The best way to do this is to prepare a business plan or prospectus which outlines what is required to produce the film and how you are going to generate enough money from it to repay your investors (hopefully with a little profit too).
When preparing any kind of business plan, itâs essential that...
Copyright law is designed to protect intellectual property in expressions of creative works including books, music, drama, art, sound recordings, films and videos, and broadcasts. It cannot be used to protect ideas, rather it protects the way the idea is expressed in a piece of work. For example, you cannot copyright the rules for a game of chess, however you can copyright a book you have written outlining the rules of chess, since the book is the "expression" of the idea.
In terms of company names, these do not fall within the scope of copyright law at all, so you can't "copyright" them. If you are asking this question, what you are really asking is, "how do I stop other people from using my company name?" Unfortunately there is no one simple answer to this question because it involves several areas, and the higher the degree of protection you want, the more money you will need to shell out. See, our fees here. Consider the following areas as a starting point:
An article with a description of the differences between copyright vs trademark can also be reviewed.
Register Your Company
In most countries, it is possible to register your business with a state or national government authority. Business names can only be registered if...
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