San Fernando Valley Los Angeles Attorneys
Navigation Two
Phone Number

Entries in copyrights (10)

Wednesday
Jul122017

Does This Selfie Make Me Look Like a Copyright Infringer?

 

Trademark and Franchise Attorney Tal GrinblatIntellectual Property Lawyer

 by Tal Grinblat

(818) 907-3284

 

 

Caution. This blog lacks lawyerly gravitas. Why?

Naruto SelfieWikimedia Commons Public Domain: Naruto's Selfie

The Ninth Circuit Court of Appeals will consider a copyright infringement suit brought by a primate – specifically, Naruto, an Indonesian crested macaque that supposedly made fantastic use of his opposable thumbs and took a selfie in 2011 – long before primate selfies became a "thing".

Naruto used a camera owned by David Slater, a wildlife photographer. Apparently, the macaque is well versed in camera use, having observed numerous tourists visiting his reserve in Indonesia.

Slater had been selling Naruto's photogenic image since the primate's fateful selfie-indulgence day. But under U.S. copyright law, the person who takes the photo is the copyright owner for the resulting image. So is Naruto entitled to copyright protection for his image?

'Next Friends' Got Naruto's Back

A "next friend" in legal terminology, is a person who represents someone who is disabled or otherwise unable to bring a lawsuit on his or her own behalf.

Enter, stage left, the People for Ethical Treatment of Animals (PETA), along with primatologist Antje Engelhardt who sued Slater in 2015 on behalf of Naruto for copyright infringement, even though the U.S. Copyright Office determined in 2014 that non-human authors cannot hold copyrights (see sections 306 and 313.2.).  

Last year a district court judge found for Slater and dismissed PETA’s case, holding as follows: 

Naruto is not an "author" within the meaning of the Copyright Act. Next Friends argue that this result is "antithetical" to the "tremendous [public] interest in animal art." . . . Perhaps. But that is an argument that should be made to Congress and the President, not to me. The issue for me is whether Next Friends have demonstrated that the Copyright Act confers standing upon Naruto. In light of the plain language of the Copyright Act, past judicial interpretations of the Act's authorship requirement, and guidance from the Copyright Office, they have not.

PETA and Engelhardt disagree. In the "Next Friends" appellate brief, they argue that nothing in the Copyright Act limits the law's application to humans, and that it is antithetical to the purpose of the Act to specify who can be an author; and that protections under the Act depend on the originality of the work, not the author's humanity.

How will the 9th Circuit decide? That remains to be seen. Perhaps we can get Naruto to draw us a picture.

 

Tal Grinblat is an Intellectual Property Attorney and a Certified Franchise & Distribution Law Specialist.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Thursday
Jun082017

There's an App for That: Franchisors Fight Slumping Sales, Millenials

Franchise LawyerChair, Franchise & Distribution Practice Group

by Barry Kurtz

818-907-3006

 

How has the gourmet burger gone awry? According to Fox, the better burger business dropped five percent in foot traffic at quick-serve restaurants last year, primarily because consumers are opting to “DIY” their food at home.

But why would customers go through the hassle of firing up the grill when it’s so much easier to belly-up to a counter and place an order? For many, double-digit burgers just cost too much.

Franchisors are taking notice, and making adjustments.

Some are offering premium toppings to compete with the fancier restaurant chains. Others like McDonald’s plan to try using non-frozen beef or offer more “Signature Crafted” items alongside the menu mainstays. Franchises like Wendy’s are sticking to lower price point items, knowing the average consumer just can’t spend $6.00 per day on lunch, according to the article.

Chains in fast food (Burger King), quick-serve (Habit) and full service, sit-down style restaurants (Red Robin) are offering rewards programs to encourage brand loyalty through discounts and freebies. These strategies may help bring back those customers wanting to save money.

But there’s another reason diners are cutting back on eating out: Physically going to restaurants just costs too much in time and stress. Some even characterize it as a “dying tradition” that eats up too much of the work day. Just consider the coordination of schedules, the drive to the restaurant, a hunt for parking, the wait for a table, the wait for service…all of that time adds up. It’s daunting.

And some blame the millennials, who, believe it or not, prefer to cook at home more than their parents did. They also rely more on fast, cheaper meals provided by grocery stores, grocery delivery services, and a new wave of hi-tech, time-saving web based applications for curbside pickup or delivery.

Speed seems to be key here. Denny’s just launched Denny’s on Demand, allowing customers to place orders for pickup or delivery, and pay for those orders. Forget 30 minute pizza delivery. In the land "Down Under", Dominos is working on making and delivering pizzas in 10 minutes or less.

Jack in the Box recently teamed up with DoorDash to deliver curly fries and tacos to home addresses. McDonald’s hopes to drive up profits through UberEats, now available in 100 test markets across the country. Eat24 and Yelp will help web visitors find fast food delivery services within their zip codes.

All in all, apps seem to be the way of the future for restaurants craving more business. Some eateries in the Los Angeles area are claiming anywhere from a 2 to 35 percent increases in sales due to expanded digital assets. But what should franchisors know about the legal ramifications of going hi-tech?

A Franchisor’s Mobilization Plan

Some recent litigation in the dawn of digital gastronomy points the way. Franchisors should ensure they hire the right developers to reduce the risk of litigation. Important aspects to consider include:

Accessibility: This is a big issue, as ADA (Americans with Disabilities Act) suits are on the rise. Sweetgreen, Inc., a Washington D.C. based salad chain faced a class action lawsuit filed on behalf of visually-impaired plaintiffs. The app Sweetgreen had developed to allow customers to order online for faster pickup worked great for those who could see. But those customers who were impaired or blind weren’t able to customize their orders as easily, and spent extra time refining their choices at the restaurant. For this group, the app wasn’t time-saving at all.

Intellectual Property Rights: It’s common for developers to borrow code already written, rather than reinvent the wheel every time they build a new site or app. The same applies to graphics and text. However, developers are being targeted more and more often for trademark, copyright or patent infringement. Franchisors should ensure the developers own all elements used in the project, have the licensed rights to use all elements, or that the developers assume all responsibility should IP litigation be initiated.

Privacy: This one’s always an issue, as anything that connects to the internet can be hacked. Just ask Starbucks, which attributes a third of its sales to purchases made through its app. The franchise also claims that less than one percent of its app users have actually been hacked, and that the fault lies with users employing simplistic passwords. Whether those claims are true or not, the hacking is turning out to be a bit of a social media challenge for the coffee franchise.

Third Party Partnerships: Customers are generally unaware when they place an order online through their favorite restaurant’s website that the food will actually be delivered through a third party delivery service. Zoomer is one example, and plaintiffs allege the company violated the federal Telephone Consumer Protection Act and other laws when the delivery service sent customers unauthorized texts after placing food orders with partner restaurants. Granted, it’s the delivery service that is facing the lawsuit – but franchisors should be wary of using any third party service that will annoy customers. Or break the law.

As for the non-digital logistics, remember the practicalities: People who order online generally don’t want to communicate with the restaurant – they want to get in and out quickly, or just have food delivered without fuss. Consider more short-term parking or curb service for pickups; counter space, windows or staff dedicated just to online orders; and whether or not it’s better to employ your own delivery staff or contract out.

Most importantly, make sure the app works, and that it works well – there’s no point in developing an app that doesn’t allow customers to order, customize selections, and pay. Useless apps without these features tend to get slammed in reviews. And the critics are harsh, as seen in the example to the right.

Barry Kurtz is a State Bar of California Certified Specialist in Franchise & Distribution Law.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Thursday
Apr282016

Living Like a Prince, but not Dying Like One

Tax Law Certified SpecialistTax Law Certified Specialist

 

 

by Michael Hackman

818.907.3279

 

 

The media seems to be concerned with two primary subjects lately, and both topics continue to trounce each other in turn on social networks for attention:

1. The presidential elections

2. The death of Prince, and his lack of a will

Prince at the Los Angeles Forum, 4.22.11

We’ll worry about the elections later, but right now we should clear up a misunderstanding. It’s not the lack of a will that is so important. For a musician of Prince’s caliber – it’s more the lack of a trust and overall estate plan that is most critical.

Here in California, one needs a trust to avoid probate courts if real property is involved – a will won’t help your heirs in that regard, and probate is a very expensive process. 

Having only a will is fine for those who have smaller assets to bequeath, such as small sums of money, a car, jewelry etc. In California, up to $150,000 of otherwise probatable assets can be distributed without requiring a probate.

For those with real estate and larger financial assets, a trust is needed. Additionally, a will only goes into effect when a person passes away, whereas a trust can ensure care and stability during life; which is much more of a concern for those of us who are not living like rock stars.

Even a rock star like Prince should have had an estate plan though, particularly if the rumors of his prescription drug addiction turn out to be true. If an overdose or some other tragedy had left the musician incapacitated, Prince could have used an estate plan to determine who makes health and business decisions until he recovered.

Intellectual Property and Right of Publicity

The website TMZ is reporting that Prince had no will, though it’s entirely possible one will turn up eventually. In the meantime, the musician’s sister filed documentation in probate court to have Prince’s bank, Bremer Trust, administer the estate.

If there really is no will, and if an old but valid will turns up, it is likely that it will be different than what he would do if making decisions in the year before his death. For now it seems Prince’s siblings will divide proceeds from the estate under Minnesota law.

If the bank is approved as Trustee, it will have to determine the values of Prince’s real property (mansion, grounds, memorabilia, etc.) as well as that of his intellectual property, including an issue called right of publicity. Right of publicity puts a value on the musician’s name and image.

We saw this same issue come up when Michael Jackson passed away. The case is still unresolved, eight years after the King of Pop died, and there is no immediate end in sight. Appraisers for the IRS and the estate argue over the value of Jackson’s master recordings, likeness, right of publicity and other details.

Estate Planning for Intellectual Property

Any artist who engages in creation for profit, inventors, and business owners, should include intellectual property rights in their estate planning.

1. Copyrights in the United States exist for the author’s life plus an additional 70 years (if the work was created after 1978). For a “joint work prepared by two or more authors who did not work for hire,” the term lasts for 70 years after the last surviving author’s death. For works made for hire and anonymous and pseudonymous works, the duration of copyright is 95 years from first publication or 120 years from creation, whichever is shorter. Heirs may profit from copyrights until they come to term.

2. Duration of publicity rights (use of name, likeness, voice, image, signature) vary from state to state. In at least 13 states (including California), it runs for 70 years, from the date of the artist’s death.  

3. Trademark rights do not expire so long as they are actively used.  In most countries to maintain trademark registrations, the owner must renew the registrations every 10 years. 

4. For patents, the term is 20 years from the filing date of the application (for those patents filed on or after June 8, 1995. Design patents have a term of 15 years from issuance (for applications filed on or after May 13, 2015).

All intellectual property can be distributed among heirs, just as other property can. But ownership rights may be determined by actions the original author or owner of the intellectual property did during their lifetime.

For example, let’s imagine the album Purple Rain was never released, and left in the famous vault at Paisley Park. Prince may have bequeathed or transferred during his lifetime the original sheet music or recording to one heir, the rights to digital reproductions to another, and the right to turn the song or album into a movie, to a third.

Taxing Challenges for Prince’s Estate

Considering Prince’s habit of living large and presumably, having some unresolved debts;  his personal wealth; innumerable real property assets; and undetermined values for intellectual property assets, the probate courts will be a long time in unraveling how the musician’s estate should be administered. Currently, a very conservative estimate runs at $250 million, which could potentially result in $120 million going to state and federal governments. (Unlike California, Minnesota has a state estate tax.)

So what’s the lesson here? Don’t let nearly half of your net worth go to the government, when it could be better used by your family, friends, or a worthy charity.

Prince was apparently charitably inclined. If he had made gifts to charity through a will or trust, a significant amount of estate taxes could have been saved. Further, to the extent he was making charitable donations during his life, those beneficiaries will now no longer receive support from the music icon's largesse. Prince's legacy in this regard is apparently, no more.

 

Michael Hackman is a Certified Specialist in Tax Law (State Bar of California Board of Legal Specialization), and Chair of our Tax Planning and Trusts & Estates Planning Practice Groups. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Monday
Oct052015

Music Publisher Caught in Birthday Suit

Franchise & Trademark Business Litigation

 

by Tal Grinblat & Nicholas Kanter

818.990.2120

 

In 2013, Good Morning to You Productions Corp.,  Rupa Marya and Robert Siegel (collectively “GMTY”) filed a class action suit against Warner/Chappell Music, Inc., one of the largest music publishing companies in the world and Summy-Birchard, Inc. (collectively “WCMI”), to invalidate the copyright registration of the song Happy Birthday To You.

Happy Birthday LitigationGMTY claimed the song is in the public domain, that WCMI has no rights to the lyrics or melody, and that WCMI should return “millions of dollars of unlawful licensing fees” received over the years.

In 1893, Mildred and Patty Hill sold a manuscript containing 73 songs composed by the sisters, including one piece titled Good Morning to All (melody composed by Mildred; lyrics written by Patty), to Clayton F. Summy, which Summy subsequently published in a songbook called Song Stories for the Kindergarten. Summy applied to register the copyright in the songbook that same year. 

Validity of the Summy Copyright Registration

As a musical work, Happy Birthday has two primary copyrightable elements- one for the music composition (the tune); the other for the lyrics (song’s words).  Each one is protected against infringement independently.  The parties both conceded that the Happy Birthday melody entered the public domain years ago.  The issue in the case was whether the lyrics were still protectable by copyright, and if so, who had those rights.  WCMI contended that the Hill sisters authored the lyrics to the song, held it for several decades and then transferred it to Summy Co. in 1935, which subsequently published and registered the lyrics for federal copyright.

The issue for WCMI was that the copyright registration covered “arrangement as easy piano solo with text” and listed another person as the author of the lyrics.  Hence, the copyright registration may not have covered the lyrics in the dispute.

Copyright Birthday Candles Begin Melting

The court held that WCMI had no evidence a transfer of the lyrics occurred from the Hill sisters to WCMI.  It found that while the Hill sisters gave Summy Co. the rights to the melody and the rights to piano arrangements based on the melody, no rights were transferred to the lyrics.  The court explained that because Summy never acquired rights to the Happy Birthday lyrics, WCMI as Summy’s successor-in-interest, did not hold a valid copyright in the Happy Birthday lyrics entitling them to collect royalty or licensing fees.

The Song May Never End

IP LitigationThe battle may not be over, as Warner/Chappell is "reviewing their options" after the verdict, and GMTY will now move to qualify the lawsuit as a class action.

Though GMTY Productions may see their $1,500 license fee returned, the ruling signifies a landmark win for the "Davids" in this David and Goliath-like battle, particularly for musicians, entertainment productions and other artists around the world.

For business owners wanting to protect their own copyrights, the case serves as a reminder: Make sure you have the right to do so and keep good records of title to permit you to enforce rights in your copyrighted works.

 

Tal Grinblat and Nicholas Kanter are intellectual property attorneys at our firm. They can be reached via email or phone: tgrinblat@lewitthackman.com or 818-907-3284; and nkanter@lewitthackman.com or 818-907-3289.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Friday
Sep252015

Pow! Boff! Thwack! Batmobile Wins Copyright Litigation

Business LitigationIP Litigation Attorney

 

 

by Nicholas Kanter
818-907-3289

 

DC Comics Litigation

 

It's not every day a Ninth Circuit court opinion includes, "Holy copyright law, Batman!," or “To the Batmobile!”  But in affirming a district court’s ruling in a copyright infringement case by DC Comics against the maker of Batmobile replicas, Judge Sandra Segal Ikuta chose these choice quotes, among others, to add a little more drama to the case.

DC Comics’ lawsuit centered on the Batmobiles driven by actor Adam West in the 1966 television series Batman, and actor Michael Keaton in the 1989 motion picture BATMAN.  Mark Towle, owner of Gotham Garage, made and sold replicas of these super autos for and to car collectors – to the tune of $90,000 each.

DC Comics, a company of Warner Bros. Entertainment and Time Warner, brought suit against Towle in 2011 in the United States District Court for the Central District of California alleging copyright and trademark infringement, as well as unfair competition. The parties filed cross motions for partial summary judgment as to DC Comics’ trademark, copyright and unfair competition claims, and as to Towle’s laches defense (wherein he claimed DC waited too long to sue for trademark infringement).

The District court granted DC’s motion in part, finding the Batmobile was a character entitled to copyright protection because the vehicle:                                     

1. Is known by one consistent name that identifies it as Batman's personal vehicle;

2. Has several traits that remained consistent over time, including "high-tech gadgets and weaponry", color and bat motifs; and

3. Has personality traits, consistently depicted as "swift, cunning, strong and elusive", and is even portrayed as a “superhero, Batman’s sidekick, if not an extension of Batman’s own persona.”    

9th Circuit Opinion: "To the Batmobile!"

In affirming the District Court’s opinion, the 9th Circuit relied on prior copyright infringement cases involving characters in comic books, television shows and movies:

Not every comic book, television, or motion picture character is entitled to copyright protection. We have held that copyright protection is available only “for characters that are especially distinctive.” Halicki [Films, LLC v. Sanderson Sales & Marketing], 547 F.3d at 1224. To meet this standard, a character must be “sufficiently delineated” and display “consistent, widely identifiable traits.” Rice v. Fox Broadcasting Co., 330 F.3d 1170 (9th Cir. 2003) (citing Toho Co., Ltd. v. William Morrow & Co., Inc., 33 F. Supp. 2d 1206, 1215 (C.D. Cal.1998) (Godzilla)).

The 9th Circuit, like the district court, also applied a three part test, determining that a character entitled to copyright protection must:

1. Have "physical as well as conceptual qualities";

2. Be "sufficiently delineated", or immediately recognizable; and

3. Be "especially distinctive and contain unique elements of expression", i.e. not just any black sports car with weapons.

The court found that the Batmobile is a copyrightable character, that DC Comics is the owner of the copyright and that Towle infringed on DC Comics' exclusive right to produce derivative works of the character. 

Nicholas Kanter is a Business Litigation Attorney at our firm. Contact him via email: nkanter@lewitthackman.com, or by phone: 818-907-3289.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120