Monday, July 30, 2007

SEOmoz on copyright infringement

The good folks over at SEOmoz -- one of the top dogs in search engine marketing news and tips -- have posted a video outlining the steps they take when they find other sites are posting their content without authorization. Their escalation strategy -- starting nice and becoming increasingly not nice -- is the proper approach in many circumstances; we've all seen how firing off a blistering attack with your first volley can have unintended PR consequences.

I would also note that if you are generating as much valuable original content as do SEOmoz and many of those who frequent it, you might consider applying for a federal copyright registration covering the contents of the website every six months or so (or more, if you publish often). In the event your series of letters and takedown notices don't get the job done, you'll be well prepared to take stronger action. The Copyright Office's Circular 66 discusses copyright registration for online works.


Thursday, July 26, 2007

Barry Bonds and the Taxable Home Run Ball

Great question posed at the WSJ's Law Blog: what are the tax consequences to the (un)lucky fan who catches Barry Bonds' record-breaking home run? The comments are a must-read.

My take? Either MLB or the team at whose park the home run is hit owns the ball (I don't believe the ownership issue was ever settled in the Red Sox/Doug Mientkiewicz dispute). By allowing fans to keep balls that leave the field of play, they are gifting those balls to the fans. Therefore, that entity pays gift tax, and the fan pays nothing. I'm not a tax attorney, so that's pure common sense and a touch of what's left of my memory of tax law classes.


9th Circuit and Contract Amendments

Eric Goldman's Technology and Marketing blog gives a good rundown of the 9th Circuit's decision in Douglas v. US District Court ex rel Talk America, in which the court rejects the practice whereby one party unilaterally updates contract terms without notice to the other party. This method of updating contract terms is particularly common in terms of use agreements for websites. Here's Myspace's version: may modify this Agreement from time to time and such modification shall be effective upon posting by on the MySpace Website. You agree to be bound to any changes to this Agreement when you use the MySpace Services after any such modification is posted. It is therefore important that you review this Agreement regularly to ensure you are updated as to any changes.

As Goldman notes, there are a few options available in lieu of such a provision: have all users re-execute the amended contract, affirmatively notify all users of the change (e.g., mass email), or don't make any unilateral changes at all. From both practical and legal standpoints, each of these have their drawbacks, and this latest decision doesn't do much to pave a better way.

Update: Uber-drafter Ken Adams has some comments as well.


Friday, July 20, 2007

NFL Imposes Vest Rule on Photogs

The National Press Photographers Association objects to the NFL's proposed rule that photojournalists must wear vests adored with Canon and Reebok logos while working the games. Honestly, between this and the "45 seconds of streaming web content per day" rule, the NFL is endangering whatever goodwill it has with the media. And with the various legal pickles it's dealing with right now, it might not be able to afford both bad press and mad press.


Independent Contractors and Copyright

(Reposted from' s Tip of the Week)

Here are two scenarios we run into from time to time…

Scenario 1: Ted started a web development business, and he’s ready to roll it out and start creating websites for his clients. He wants to make a marketing splash, so he’ll need a nice logo. But Ted’s a business person, not a designer, so he decides to find someone to come up with a design. Since he can’t afford to hire an employee just yet, he locates an experienced independent contractor whom he trusts can do the job. She doesn’t present Ted with a contract, and Ted doesn’t bother giving one to her. This is a handshake deal. Anyway, Ted’s got so much going on, he can’t even think about more paperwork. A few weeks go by, and the designer presents Ted with the perfect logo design. Ted pays her promptly, and in return she gives him the electronic and printed versions of her work. Ted’s ready to put his logo on his business cards, website, and letterhead.

Scenario 2: Ted’s web development business is running smoothly, and he’s entered into a contract to create a website for a client. He decides to subcontract some development work out to another independent contractor. Ted likes this contractor, and he’s afraid the contractor will not agree to do the work if Ted presents him with a contract to sign. They verbally agree on the project, and a few weeks later the contractor delivers exactly what Ted asked for. Ted’s now ready to present the website to his client and collect his fee.

In both of the above scenarios, Ted has paid for the materials produced by an independent contractor. But what does Ted really own?
Without a written agreement to the contrary, the independent contractor, not the client, is the author and copyright owner of all materials she creates.
In both scenarios, because Ted didn’t have the contractor sign an agreement in which he or she assigned ownership (or created the materials as a work made for hire) of the copyright in the materials they produced over to Ted’s business, Ted doesn’t own the copyright in them. The “bundle” of rights provided by copyright – the rights of reproduction, distribution, display, public performance, and making derivatives – remain exclusively with the contractor, notwithstanding the possibility of an implied license to use the works.

What does this mean for Ted’s business? With respect to the first scenario, it means that while Ted may be able to use the design as his logo on business cards, his website and letterhead (under a theory of “implied license”), any use beyond that may result in a copyright infringement claim by the contractor. Furthermore, the contractor remains free to make use of those same materials herself or for her other clients, which certainly won’t help Ted’s attempts to distinguish himself in the marketplace.

In the second scenario, although the website is complete and Ted has conveyed it – including, ostensibly, the copyright in all associated materials – to his client, the copyright in whatever portions of the website were created by the contractor remain owned by him. If your client later finds out Ted’s purported to convey copyright he didn’t have the right to convey, Ted may find yourself facing at least a breach of contract claim. Furthermore, the contract Ted signed with the client likely holds his business liable for any copyright infringement claims brought against the client. For a business just starting out, even the mere threat of litigation can grind the gears of progress to a messy, and often permanent, halt.

The bottom line is this: as a business owner, you want to own all of the property you pay for, both physical and intellectual, so you are free to make whatever use you like of that property. You do not want your business potentially held hostage by a contractor who exploits his or her ownership of the copyright in materials critical to your success.

With all of this in mind, we advise both individuals and businesses that any independent contractor they intend to use must sign a written agreement in which the contractor agrees to assign to the client all copyright ownership in any materials produced under the agreement. These agreements are often known as “work for hire” contracts, and if appropriately drafted they needn’t be burdensome in length or language. Any experienced contractor should not be at all surprised to be presented with such an agreement; if the one you’re talking to balks at the mention of it, find yourself a new contractor.

In addition to copyright ownership, the terms of these agreements also address important issues regarding liability, such as situations where the contractor copies code or a design from someone else and passes it off to you as original work, thereby exposing you to a copyright infringement claim.

While ideally the agreement will be executed prior to the contractor beginning work, it is often possible to draft the agreement so its terms apply retroactively. So if you’re in the middle of this scenario now – and if so, you’re not alone – it may not be too late to take remedial action.

(And with that, a reminder that this post and the rest of this blog is provided for informational purposes only, and does not constitute legal advice)


Wednesday, July 18, 2007

Four Most Mythical Copyright Myths

As I was pondering potential subjects for the next Tip of the Week over at the Saunders Silverstein & Booth website, I thought perhaps a list of common myths about copyright might be worthwhile. But then I figured such a list must have been posted online before, so I performed a quick search. Turns out a number of people have taken a stab at the top ten (or nine, or seven) copyright myths over the past years, and they’re all fairly comprehensive. So rather than replicate past efforts, I’ve decided instead to create a meta-list: the Four Most Mythical Copyright Myths as determined by the top five (according to Google) lists of copyright myths (there was a sixth list that cropped up frequently, but it was fairly old and out of date).

For reference, I used the following lists:
And now, the results...

The fourth most mythical copyright myth
Tie: “If I use only a small portion of a work, I don’t need permission to use it,” & “If the work wasn’t registered or didn’t have a copyright notice, I don’t need permission to use it.” These myths both appeared on three lists.

The third most mythical copyright myth
“If I’m not making money from the work, I don’t need permission to use it.” This myth appeared on four lists.

The second most mythical copyright myth
“If I found the work online, I don’t need permission to use it.” This myth appeared on all five lists.

The most mythical copyright myth!
“If I give the original author credit/include the copyright notice, I don’t need permission to use the work.” This myth appeared in one form or the other on all five lists, and in both forms on one of them.

No big surprises, really. Perhaps a nugget of info to drop at your next cocktail party (assuming you want to be left alone and glanced at askance from time to time).


Tuesday, July 17, 2007

Harry Potter and the Squinting Fanbase

The latest Harry Potter book has hit popular file sharing service BitTorrent. No, not as a text file, but as photographs of the book's pages. Yes, fans of the series (I'm not one of them) are so mad for it they're willing to download and attempt to read the entire book as a series of photos. Now that's devotion.


Sunday, July 15, 2007

Uncertainty Over New Webcasting Royalty Rates

The Broadcast Law Blog has an excellent post which discusses some of the confusion and complications involved with the new webcasting royalty rates for sound recordings, which go into


Boston Duck Tours Wins Injunction Against Super Duck Tours

U.S. District Court Judge Nathaniel Gorton ordered Super Duck Tours to stop using the words “duck tours” and its cartoon duck logo because of their confusing similarities to those of its 13-year-old competitor, Boston Duck Tours. Super Duck Tours was unsuccessful arguing that "duck tours" is generic for amphibious tours. I've read the ruling, and agree with the outcome.

John Welch of TTABlog fame, prosecuted the various BOSTON DUCK TOURS registrations, available for review here, here, here, and here.

SUPER DUCK TOURS registration on the Supplemental Register available here.

Although registrations are very important for a variety of reasons, it should be noted that it is evidence of actual use and likelihood of confusion that wins these cases. We'll see if Super Duck Tours appeal.


The History of a Brand: Kalashnikov/AK-47

Today's Sunday Times has a very interesting article about the history of the Kalashnikov AK-47 rifle, and the dilemma of knockoffs. The original AK-47 turns sixty years old this year.

Even General Kalashnikov himself is venting his dismay over proliferation without Russian profit. “I take them into my hands and, my goodness, the marks are foreign,” he said of the knockoffs the Soviet Union once championed. “Yes, they look alike. But as to reliability and durability — they do not meet the high standards of our military.”
At the same events, Russian officials and arms manufacturers are clamoring over who should be allowed to put Kalashnikov rifles on the market.

Some arguments are based on quality, and Russia claims, without offering evidence, that the copies and clones are not as well made as the genuine article. There is some support for this on black markets in Iraq, where the Russian Kalashnikovs often fetch higher prices than their clones, although whether the rifles are better or simply more coveted is not clear.

Other arguments are rooted in what the Russians claim is law, as the arms industry insists that the factories that the Kremlin once sponsored, and now are in sovereign, post-Soviet countries, have no right to manufacture or sell items of Soviet design.

“More than 30 foreign companies, private and state based, continue the illegal manufacturing and copying of small arms,” said Sergey V. Chemezov, the former K.G.B. officer and confidant of Mr. Putin’s who directs Rosoboronexport, the state arms-marketing agency. “They undermine the reputation of the Kalashnikov.”

So far, few customers have paid notice. The largest customer in the market, the United States, has purchased whatever weapons it sees fit, coloring the AK-47’s 60th birthday, like much of Kalashnikov history, with another angry struggle.

“We cannot tolerate the situation when only 10 percent of the Kalashnikovs are manufactured legally,” said Sergey V. Lavrov, Russia’s foreign minister. “We cannot stand for this. We must fight.”

US trademark registration for KALASHNIKOV for various apparel items and leather bags. Registration owned by a German company.

Another US registration for the same mark for other apparel, footwear, jewelry, and bath products. Mmm...Kalashnikov after-shave!

US trademark registration for KALASHNIKOV for alcoholic beverages, owned by a company in the UK. A pending application for the same mark, same owner, for various gaming services. Another pending application owned by the same UK company for the mark THE KALASHNIKOV DESIGN BUREAU (and design) for alcoholic beverages.

The same company also owns a US registration for the mark AK47 for alcoholic beverages, and a pending application for the same mark for gaming services.

US pending application for AK47 ACTION GEAR for jewelry and watches, owned by a US company.

AK-47, registered in the US for sport knives, and owned by a US company, Cold Steel, Inc.

I think it would be safe to assume that the KALASHNIKOV and AK-47 marks are the subject of various registrations in jurisdictions around the world. But are any of them for firearms?


Wednesday, July 11, 2007

The CBGB's Brand

Debbie Harry talks about the CBGB's brand living on as a fashion label. (via murketing)

CBGB trademark registrations here, here, and here. And a recent pending application here.


Sunday, July 08, 2007

Match the slogan to the beer

The Seattle Post-Intelligencer reports that most people can't discern the difference between the "flavor-neutral taste" of various mass-market beers. Unsurprisingly, consumers make their selections based on brand loyalty rather than flavor. The article also includes a mini-quiz wherein you are asked to match the slogan to the beer it's selling. I didn't do all that well -- never seen a Hamm's in my life. And I take offense at the notion that my beloved Miller High Life is deemed "flavor-neutral". Tastes like summer to me.


Wednesday, July 04, 2007

Blipverts hit the radio

Where's Max Headroom when you need him? Radio advertisers, facing a distracted, dial-spinning audience, are turning to two- to five-second ads in place of the traditional thirty- or sixty-second spots.


Monday, July 02, 2007

Selling art through blogging

The Boston Globe on artists turning to the web as a primary marketing tool. In typical Globe fashion, they fail to actually link to the blogs they talk about in the story. Here's Elizabeth Torak's blog, On The Easel, and here's Anna Conti's blog, Working Artist's Journal

Digg! Domain Name Acquired by Apple

DomainTools is reporting that the domain name has been purchased by Apple. It appears that Michael Kovatch, the previous owner, had a seven figure payday.