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.
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).
This Class does not include, in particular:
raw natural resins (Cl. 2);
chemical products for...
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...
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In the same week that it started rolling out its Timeline feature to New Zealand users, Facebook also filed a countersuit against Timelines.com, a company accusing the social network of infringing on its name.
Timelines.com sued Facebook in late September, arguing that Facebook's Timeline is "confusingly similar" to Timelines.com.
Facebook Timeline, unveiled at September's f8 conference, serves as a digital "this is your life." Once available, users can chart their entire Facebook history via Timeline, from their first friend to the most recent status update.
Timelines.com says its website "gives users the ability to create customized web pages featuring user-defined information about historical, current and upcoming events." The U.S. Patent and Trademark Office granted the company a trademark for Timelines in September 2009.
In its response to the Timelines.com suit, Facebook acknowledges as much, and said it was aware of the trademark. But Facebook "determined that ...the term 'timelines' is merely descriptive of, or generic for, the services offered by [Timelines.com] and thus [Timlines.com's] trademark registrations are unenforceable and subject to cancellation." However, this is a dangerous game for Facebook, a company...
If the vitality of film banking reflects the health of the independent production sector, then there are plenty of encouraging signs despite the ongoing turmoil in the global financial system.
After the shake-out following the credit crunch in 2008, the stalwart lenders who stuck with indie film through thick and thin, such as Union Bank of California, Comerica and City National Bank, are reaping the reward with expansion in their business.
A number of new entrants are also emerging, including National Bank of Canada, East West Bank and OneWest Bank.
At the same time, Wall Street's capital markets are waking up again to the opportunities offered in the more risky but also more rewarding areas of gap and mezzanine finance.
"It's an optimistic time now, and will become more optimistic in the next year," says Myles Nestel, the former banker who recently launched a sales and financing venture called the Solution Entertainment Group in partnership with veteran sales agent Lisa Wilson.
Union Bank, the market leader in single-picture financing, is expanding its entertainment team under senior VP Bryan LaCour after a record year in 2011, when it doubled its deal volume to $800 million from its previous average of $350 million-$400...
Your work is copyrighted from the moment you create it. You cannot choose to have something copyrighted.
The issue is whether you will want to pursue a breach of that copyright. If someone copies your work... you can either ignore it or you can try to take action. In that case we are talking about registration of your copyright. Copyright infringement lawsuits without registration often prove to be cost prohibitive. However, with registration comes access to statutory damages of as much as $150,000 per violation, plus an award of costs and attorney fees.
As to the question of why you would want to copyright your work... there are various reasons. The most important two are:
1. Financial - If the work makes money, you may be entitled some of it (including preventing others from unauthorized duplication of your work).
2. Creative - You will want to be properly acknowledged for your work. It could help your reputation and/or your success for future work in the industry.
As with all legal issues touched upon in this blog, this information should be used as a guide only. You should always talk to a qualified entertainment lawyer regarding any legal issue.
Generally speaking, you can refer to trademarks by name without permission. The only exception would be using someone else's trademark in what amounts to a competitive product. For example, you couldn't have a superhero named "Spiderman" or a spaceship named "Enterprise" (both trademarks), although you could, for example, have a character look around a high-tech building and say, "What the hell is this, the Starship Enterprise?" or sarcastically say to someone hanging from the side of a building, "Who do you think you are, Spiderman?"
With regards to having a character sing a few lines from a copyrighted song, you will need obtain clearance to perform the said piece from your country's music clearance organisation (ASCAP, BMI, SEASAC, etc). Depending on the profile of the music, this may or may not attract a fee. Generally if you are not using an original recording (i.e. having the character sing the lines instead of the original artist) clearance is a lot cheaper. Again, contact a lawyer, like me.