Create, Consult, Control

Cheesy Poofs

Thu, 10 May 2012 14:50:00 GMT

I have not been the best blogger lately. I've been busy and really, I'm not going to crank out a quick post where I mention some story in the news and tag "If you'd like to learn how to protect your business, call or email me." I see too many blogs that trick me into thinking they're going to have some deep insight or analysis and it's just a call to action. Not that every post has to be a comprehensive treatise on a subject, but I don't like pushing something out just for the sake of having pushed something (I guess I could say something about Prometheus, but that's already been done to death and concerns an issue that is not likely to come up with my clients). In fact, let‘s go in the complete opposite directions here, and I’ll give you my recipe for homemade cheesy poofs (apologies to Cartman).

These cheesy poofs are a gougère, which is just pâte à choux dough mixed with cheese. Sounds fancier than cheesy poofs, so call them whatever you want based on your target audience. My kids prefer cheesy poofs, but if I had someone over that I was going to try to get to invest in my awesome idea for a portable bidet, I'd probably call them gougère.

Anyway, don't be put off by the french name, these are only slightly more complicated than popping open a pressurized sleeve of biscuit dough.

Turn the over to 425°F and get a couple baking pans ready.

You'll need:

1 cup water
1 cup flour
4 eggs (which is about a cup, isn't it cool how that works out?)
1 stick butter
1 big pinch salt
1/2 cup shredded cheese (whatever you like, I prefer stronger cheeses)

Boil the water, salt, and butter, then remove from heat and mix in the flour. Let it rest a minute to cool off so the eggs don't cook, then mix in the eggs and the cheese. A mixer is nice, but not necessary.

Then, you can put it in a bag and pipe it into little clouds or you can just use a spoon to drop little blobs down. The dough doesn't really hold it's shape that well when it cooks, so don't spend too much time worrying about what they look like.

Put them the oven for 10 minutes, then turn it down to 350° for 20-30 minutes (till they get a little browned, it'll depend on how big your dough blogs are.

As a little explanation, the hot water is absorbed by the flour (better than it would be if it was cold), so the flour is super-saturated. The initial high temperature brings it to a boil quickly and the steam is what makes the poofs, poofy. Dropping the temperature allows them to cook through, without burning.

You can also make some pretty amazing sandwich rolls by mixing some bacon bits into the dough and making bigger blobs to cook. Since the steam creates a big pocket, these would be ideal for stuffing with a tuna or chicken salad.

This is also, basically, the dough you would use for cream puffs. For those, you would leave out the salt and cheese (of course) and add a big pinch of sugar.

Trust me, you'll get more out of this than you would reading a post about the Supreme Court's ruling in Prometheus.

Does a twitter follow have a value? What does this mean for RT contests?

Wed, 28 Dec 2011 21:59:00 GMT

If you’re on twitter, or if you’re an employment lawyer, you’ve probably seen the story about the case to decide ownership of a twitter account. Interesting story, and one that should be kept in mind when you mix business with twitter.

The story is all over the internet, so I’m not going to hash the whole thing out here again. If you’ve been able to avoid it so far, you might want to take a look at this NYT article.

In a nutshell, Noah Kravitz worked for Phonedog and tweeted as Phonedog_Noah. When he left, he kept tweeting as NoahKravitz (you can change your twitter name without losing followers). Phonedog sued for possession of the account stating that it is a “customer list” and asking for damages of $2.50 per month, per follower (17k followers). There are a number of “facts“ I’m leaving out, because I’m sure they’re up for debate (i.e., who said what, why the account was opened, etc).

The usual headline to this story is that the case will decide if you or your employer owns your social media accounts. I don’t think it will do that. I doubt many people would think that they own an account if it was opened by their employer for the purpose of communicating with customers (which is, I hope, explicitly drafted into an employment contract, if it’s not, it should be or the business is just asking for trouble). On the other hand, I don’t think there is much of a question that if I work for a company and also run a personal twitter account, that the account isn’t the property of my employer. In those situations, there really isn’t a question to be resolved. Here, the question is closer to “whether a list of followers of an account that was associated with a business constitutes a customer list?” A contract could have settled this before it ever became an issue. Even if there was no traditional employment contract in place, the foresight to send an email and create a “paper” trail about ownership could have kept this from becoming an issue.

Enough about that, lets just say the main idea is that is should be clear from the start who owns what. What’s more interesting to me is that thought that there is some monetary value to a twitter user.

One of the things I like to roll around my head from time to time is the legality of twitter or Facebook contests. You know the ones, “everyone that Likes my page will be entered to win…” or “ReTweet this by Friday at Midnight for a chance to win…” I posted on it once before, you can read that if you’re bored.

In brief, there are contests, sweepstakes, and lotteries. Contests require skill, sweepstakes are open to everyone, and lotteries require something like a lottery ticket to enter (the legal term is consideration--some tit for tat). Those cereal box promotions, or McDonald’s Monopoly game look like lotteries because you’re supposed to buy something to get a game piece, but read the rules and you can also send away for a free entry--which is how they avoid being classified as a lottery.

Contests and sweepstakes are usually legal (there might always be some state-specific issue, so check that out before you get yourself in trouble), but lotteries are usually pretty tightly controlled by the state. I’ll let you decide for yourself if that’s so the government can run it’s own lottery as a monopoly or if it’s to protect the public from unscrupulous lotteries (the old, illegal, numbers games).

Usually people get confused about the terms, so just because someone calls something a contest, don’t assume they mean it’s a contest.

The interesting thing I see coming from the twitter-ownership case is a possible finding that twitter followers have some real value. That is a core presumption to Klout.com (and a few other “social influence” marketers) where you can get stuff based, in part, on your number of twitter followers.

If, the court states that there is some value to twitter followers, then the question of whether a “ReTweet to enter” promotion is a lottery or a sweepstakes suddenly becomes more of an issue. If there is value to a new followers, a like, a retweet, or any other social media metric, then is trading one for a chance to win something make that promotion a lottery or a sweepstakes? It sounds like a lottery to me, and running an illegal lottery is generally to be avoided, unless you’re in the illegal lottery business. On the other hand, there could be some value to a Like (or whatever), but not enough to transfer any benefit on the site being Liked. In other words, an individual Like or RT might be of such little value that it’s not worth the bother for a court to care about. Of course, if the court goes along with Phonedog and agrees that each follower is worth $2.50, that is probably enough consideration to turn these promotions into lotteries and possibly cause lots of problems for lots of people.

Now, of course, it’s probably going to require a bored Attorney General to look into a simple Facebook or Twitter promotion, but it could happen. There’s also the possibility that you’re violating the law of another country if someone in their borders “Likes” your page as an entry to your promotion. That could be a whole new circle of Hell. Even if you don’t have a legal issue because of your request for ReTweets being open to the world, you might incur more expense than you intended if someone half a world away wins your promotion and wants their prize mailed to them.

So, I haven’t really settled things here, like lawyers tend to do, so what is the takeaway? At the very least, I’d post rules for a promotion and limit it to people within the US. You might also want to limit it to people in your state or city--what is the point of having someone win your promotion if you’re a local business and they’re half the country away and likely to never actually purchase your services/products? Of course, the best idea is to hire an attorney to look at the issues and give you advice on how to structure things to minimize the chance of running into troubles.

XXX Domains. Should you care?

Wed, 26 Oct 2011 20:13:00 GMT

XXX top level domains are coming any minute now. Should you worry that your personal or business .com is going to be registered as a .xxx and someone is going to divert your visitors? Will your mom try to visit your personal blog and wind up watching weird porn, the kind you used to have to import directly from ex-Soviet bloc countries?

ICANN, the body that oversees our domain system has opened up registration of .xxx sites. I’m not sure if the impetus for that was so that it was even easier to find pornography on the internet, or if it was that this would make it easier for individuals (or governments) to block pornography. I don’t think it matters. I also don’t think anyone is particularly thrilled at the prospect of xxx domains. I understand the adult industry doesn’t like it because the new domains are more expensive that the usual .com and there is the concern that they’ll be rounded up and forced into the .xxx ~~pigeonhole~~ category.

One thing that has some people concerned is the possibility that pornographers are going to register known trademarks with a .xxx domain and divert internet traffic. I personally don’t see the problem. Even .net domains are second class internet citizens and other top level domains (TLDs) out there have been largely ignored by everyone. Sure, a few people registered different TLDs, for special effects, such as Delicio.us, or for .TV sites, but for the most part, they just haven’t caught on. Most internet marketing people will still tell you to rebrand if you can’t get the .com TLD.

Let’s say, just for fun, that you own pizzahut.com. What will happen if someone buys pizzahut.xxx and posts foot fetish videos? Probably nothing really, someone searching for pizza isn’t going to pull a porn site from Google or Bing. The content of the site is still going to drive search results, not just the name. Is it possible that someone could accidentally type in pizzahut.xxx instead of pizzahut.com? Sure, I guess it’s possible, that’s a pretty weird typo though. That person is probably just as likely to accidentally type in papajohns.com.

Also, registering pizzahut.xxx is a pretty obvious trademark problem, and if someone did try to do that, it could be recaptured by Pizza Hut without much bother.

Still I guess I can see why some people might want to shut down the possibility of someone registering the .xxx version of their trademarked site, so there is a way you can do that now. For the next few days you can file a reservation request with the ICM registry. If you’re interested, take a look at http://www.icmregistry.com/ (Sunrise B option). You’ll need a trademark to do this. You can also contact your favorite registrar. I’m sure any one will be happy to have your business. If you miss the time frame, you’ll likely be able to still register it later if you want.

Personally, I’m not worried about it, and I actually have some reason to be concerned.

Steve Jobs, 1955-2011

Fri, 07 Oct 2011 16:52:00 GMT

I mourn the loss of Steve Jobs.

If it wasn’t for him, well, I’m not sure if we’d still be using DOS, but I think it’s safe to say that technology wouldn’t be where it is now.

If he retired with the stack of money he had following his ouster from Apple in the mid-80s, I doubt we’d be at the point where I can hand a device to my 4-year old or to my mom, and have both people intuitively know how to use it without a long explanatory demonstration. Also, without his influence, technology would still be ugly. He realized there wasn’t a good reason tech had to be beige and that it could form the aesthetic centerpiece of a desk, office, or even living room.

Steve Jobs was also a prolific inventor and realized that patents were vital to business, especially to a company whose strength lies in innovation. He is listed as an inventor on 317 patents that range from computers and peripherals to OS innovations, and even to staircases. I’m not going to list them all, especially since the New York Times already has here. Take a few minutes to look through their list to get an appreciation of the depth of Steve’s influence.

The Times list, of course, doesn’t contain applications that haven’t yet issued as patents. I don’t know how many of those are pending, but I know we’ll be seeing Steve Jobs’ influence for years to come.

Who doesn’t like free porn?

Mon, 22 Aug 2011 14:02:00 GMT

Who doesn’t like free porn? No one, that’s who. Who likes paying an absurd amount to settle a lawsuit alleging that they committed copyright infringement by downloading porn over BitTorrent? No one, that’s who.

Over the past year or so there have been a number of mass copyright infringements filed across the country against “John Does” for downloading movies. Over 200,000 “Does” have been targeted so far, and that number is almost certainly going to increase. I don’t have a breakdown of how many have been targeted in porn, versus non-porn cases, but based on the calls I get, the porn cases are the busiest now.

Although I’m not sure exactly how people are being targeted since no one has taken discovery yet, I have a guess pieced together from various sources: basically, someone jumps into a torrent and takes screen shots of the IP addresses of everyone in that torrent; the copyright owner takes a look at how many people are sharing their property and gets in contact with a lawyer to see what can be done. At least that’s one possible relationship, I’ve heard of some lawyers receiving offers to sell lists of timestamped IP addresses and some lawyers are actively soliciting clients for these cases. In any situation, the exact relationship might be different, but the basic idea is the same.

Of those 200,000 people, I’m sure some of them were targeted because someone jacked their wireless connection and used it to download. Many people don’t secure their connection, either out of some sense to community, because they just don’t know how, or just don’t want to go through the bother. Other people are using a WEP secured connection and don’t realize that WEP can be cracked in a couple minutes.

Since the best way of avoiding the expense and bother of getting caught up in one of these matters is to shut it down before it happens, there are a few things you can do to make sure unauthorized people aren’t using your connection to download movies, or even worse like what happened to this guy or this one.

First, change your wireless security to WPA2. WEP can be broken into in a few minutes if the person has the right equipment and motivation (we’ll assume they do).

Pick a good password. There are different suggestions about what makes good passwords, and to some extent the password strength needed depends on what you’re protecting. Generally, avoid single words, “password” and “1234” and you’ve probably done enough to keep someone from breaking into your wifi. Adding a number and a capital letter or two is even better. At that point, it’s probably easier for them to pick someone else than to bother trying to crack your password.

You can also hide your SSID so your neighbor won’t even see your network name when they are looking for a connection. Of course, it’s easy to find hidden networks, but it’s an extra step that many won’t bother taking.

Turn on MAC address filtering. This way, each new piece of hardware that connects has to be approved by you. This is a little more annoying in use, since you can’t just type in a password into a new device you want on your network, but it’s very secure.

Doing those things will keep out most unwanted guests, but what if the problem is inside your house? What if it’s your kid that discovered he can get “free” music/games/movies and doesn’t realize that you might be hit with a nasty and expensive lawsuit?

One thing you can do is uninstall any torrent programs on your computers and revoke administrative privileges so they can’t be installed again.

You can also install OpenDNS on your network, which will let you (mostly) shut off access to sites where the torrent files can be downloaded. OpenDNS won’t shut of torrent traffic though, so it’s still important to make sure that your computers don’t have a torrent downloading program. OpenDNS will also let you take a look at what network activity has been going on, so you could detect traffic that you didn’t authorize.

The trouble with the “the downloader is in my house” solutions is that there is always a way around if someone is motivated enough. The best way to keep your son or daughter from downloading and exposing you to liability is probably to talk to them and explain the potential problems.

I’m no computer security professional, so if anyone has other suggestions on how to prevent such unauthorized uses, I’d be happy to hear them.

My ex-employee is using my customer list and materials!

Sun, 07 Aug 2011 12:55:00 GMT

What, if anything, can you do if an employee takes more than some pens when he leaves and starts calling your customers and using your advertising materials?

Ideally, you’ve thought this through and already have something in your employment contract that addresses these things.

What? You don’t have trade secret language in your contract? You don’t have any intellectual property language in your contract? You don’t have any contract? That’s really not that surprising, such things are usually not considered until a business gets burned. It’s like the saying goes: fool me once, shame on you; fool me twice, shame on me.

First, call your lawyer. If an ex-employee is using your client list, you have to move quickly. If it’s a trade secret (generally something of economic value that isn’t known by the public and that you’ve taken some actions to keep secret) you might be able to get an injunction.

If an ex-employee has taken your advertising materials and designs, and is using them for a competing business, you might have a couple options. It is possible that doing something like this is punishable as an unfair business practice, at least it sounds unfair. A clearer claim might be made for copyright infringement, but copyright is one of the more annoying areas of law to start kicking around in, especially if there isn’t clear ownership of the copyrights and a copyright registration in place. Chances are, if you’ve come across this post, you don’t have either.

What every employer should do if have an employment agreement in place when someone is hired that addresses these things before they happen. Ideally, contracts are also put in place between the employer and whoever designs their marketing materials, so that, if needed, a copyright claim can be more easily made against someone that misappropriates the advertising materials. Many of these issues are state-specific, so you should talk to someone licensed in whatever state you’re in.

This, like pretty much everything, is a “ounce of prevention v. pound of cure” issue. It might not be attractive to hire someone to draft these documents if your business’ greatest goal is making payroll next month, but taking care of these fairly simple things can help you continue to make payroll long after someone leaves.

Can I get sued for this?

Mon, 01 Aug 2011 13:55:00 GMT

Rarely do I go longer than a few days without someone asking me if they can do something without getting sued. I’d bet every lawyer gets that question, or some version of it, a lot. The questions can rarely be definitely answered. If there was an easy answer, then the person asking probably knows the answer. For example the question “is it OK if I kill my spouse?” doesn’t really need to be asked. Unfortunately (for clients), or fortunately (for lawyers), the questions usually aren’t as easy.

For example, here are four questions I’ve been asked over the last couple weeks:

•Can I sell my drawings of famous articles/landmarks and not get sued? (maybe)

•Can I get in trouble for publishing my erotica that features popular TV/movie characters? (maybe)

•Can I be sued for reusing a picture I found on a website? (maybe)

•Can I get in trouble for counterfeiting arcade tokens (that one was answered with a long, uncomfortable stare)

First of all, you can be sued for just about anything. A neighbor could sue you for letting your grass get too long (if any of my neighbors are reading this: I swear I’ll cut it when the heat breaks). You could be sued if your toddler said something mean to another toddler at the park. Someone could sue you because they think you’re conspiring with Elvis, Oprah, President Obama, and a group of sewer-dwelling reptile-people to steal their thoughts. Granted, the chances of any of these cases being filed is narrow, and the chances of them getting anywhere in a court is even smaller, but they could happen. Asking whether you can be sued for something isn’t the right question to ask. Better questions are what is the chance of being sued, and what are likely damages. An even better question is “what can I do to reduce that chance or eliminate it?”

Often when I get these kinds of questions I’ll need to get more information before I can even suggest a plan. For example, to even start thinking about the question about selling drawings of famous articles/landmarks I needed to know what was being drawn. It’s one thing if you’re drawing a cityscape, it’s quite another if you’re drawing a Coke can or Batman. After that, what context is the famous article/landmark being used? Fan art of Batman is probably not going to rile DC’s feathers nearly as much as a drawing of Batman doing something extremely non-heroic and exceedingly out of character (let your mind wander for a moment, I’m sure you’ll think of something). Another big factor is the money involved. It’s one thing if you‘re planning on selling the art on a street corner or mall kiosk, it’s another if these drawings are being incorporated in a large, national publication that can generate thousands in revenue. Simply put, it’s not generally worth the expense to bring a lawsuit against someone if that suit can’t possibly pay off.

Depending on the exact facts behind a question, the likelihood of being dragged to court might be very low, or dangerously high.

No matter where that likelihood ends up, we can usually lower it a bit more. Ideally, we can get a license from any rights holder, but even without that, there are things that can be done, and precautions that can be taken that can reduce the chance of being taken to court.

Once you know the risk you‘re taking, which is something like: (chance of being sued * estimated legal fees and costs * estimated damages * chance of losing) you can decide if you want to change your course of action or if you want to go forward. Without knowing these things you’re going in blind.

A painless trademark dispute

Thu, 16 Jun 2011 17:03:00 GMT

I’ve written before about trademark owners that have been a little overly aggressive in protecting their marks and have had some social media backlash. Recently I represented a trademark owner whose mark was being infringed and had the opportunity to try a more gentle approach that turned out very well for everyone.

A short time ago, I was approached by a business that has been using a trademark (“Mark”) for a couple years, but had not registered it with the trademark office. They discovered that another business in the same market had started using the Mark. We discussed the possible costs of a lawsuit and the problems that can come from a strong-arm approach and I decided that the first thing we should do is to file an application for registration of the mark based on my client’s use, and then to find out a little more about the infringer.

Within a few minutes of searching I discovered that the infringer had just started using Mark and did not file their own application with the trademark office--meaning that they probably had not invested huge amounts of money or time in exploiting Mark, in other words, they probably were not going to be interested in fighting this out in court.

I filed the application for my client and then drafted a letter to the infringer. I took the friendliest approach I could. I pointed out that my client had an application on file and had been using Mark for several years, and that we would defend Mark if necessary, but would rather avoid doing so if we could come to an agreement. Rather than the typical “cease and desist” letter, I stated that from my research it appears that they just started using Mark and that we’re assuming that they did not intend to infringe my client’s use of Mark. I even (with my client’s permission of course) said if they had already invested in printed matter with the mark, that we would allow them to use up their stock of such, provided that they don’t print more.

The response was as good as I could have hoped for. They had not substantially invested in the mark and didn’t realize they were infringing. They agreed not to use the mark again and had no printed material to use up. Easy-peasy-lemon-squeezy.

It’s not often that a legal dispute can be settled with an email exchange, but it is always a possibility. Too often it’s an overlooked possibility.

DC vs Batmobile custom car seller

Thu, 12 May 2011 16:13:00 GMT

Did you know you can buy kits to customize your car so that it looks like the Batmobile? Let that sink in for a second: you could own a car that looks like the Batmobile! This has to be the greatest thing ever! Why did no one tell me about this before?

One of the accounts I follow on Twitter, @justiacom, posted a link to a complaint filed by DC Comics against Mark Towle (D.B.A. Gotham Garage) alleging Mr. Towle of engaging in copyright infringement, trademark infringement, trademark counterfeiting, and unfair competition (both under the federal Lanham Act and under California common law).

Looking at the website http://www.gothamgarage.net, it’s hard to say that there isn’t some infringement going on. Rather, it’s pretty clear to me that there is infringement (although that’s ultimately up to a court to decide). There are defenses that can be brought up, there always are--whether they’ll be successful is far too early to say. A more interesting question for me, is why does DC Comics care?

DC owns the Batman copyrights and trademarks. In this case, although there may not be any real, direct damage to DC if they were to allow Batmobile replicas to be made, they are risking abandoning their intellectual property if they don’t do something.

For the sake of argument, lets say that the sale of Batmobile replicas themselves aren’t damaging because DC doesn’t offer for sale, or license someone else to sell such replicas, so DC decides to ignore Mr. Towle’s replica business. What happens then if someone else starts selling Batman costumes, t-shirts, toys, etc (all of which are officially licensed products)? If DC was to exert their intellectual property rights against someone infringing those rights in a market that directly competed with Batman’s licensees, that infringer has an argument that DC abandoned their rights by not exerting them earlier against Mr. Towle, meaning that they really don’t care about protecting their marks and so the marks are not protect-able. It might not be a winning argument, but there is no reason not to keep one step ahead.

Of course, even without the concern that their rights will be lessened by not going after infringers, it’s still entirely proper for them to exercise their rights to protect their intellectual property, even if doing so means that something that sounds totally bad ass, like a Batmobile replica, becomes unavailable.

So, if replica Batmobiles (even if faithful and reverent) could be an issue, why hasn’t DC’s lawyers taken aim at Vivid Video, the makers of Batman XXX (link goes to a safe trailer on YouTube.com)? One reason is probably that DC doesn’t want to risk an adverse finding that the X-rated version is a parody protected by the First Amendment. Parodies are those works that take another work and twist it so that the new work makes fun of the original. In Campbell V. Acuff-Rose Music, Inc. the Supreme Court found that 2 Live Crew’s version of Pretty Woman was a parody that was intended to ridicule the original. Parody in this context is just part of the Fair Use infringement analysis, which is far too complicated to go into in great depth here. I’m not convinced that all porn “parodies“ are parodies under the case law, but a company could reasonably decide not to sue based on a calculation of how much it might cost to drag a case through the initial court and the appeals process on an iffy legal point.

Anyway, I’m trying to get an adjunct professor position at Batmobile State University, so if any of my readers knows the Dean, I’d appreciate a recommendation.

Before anyone gets smart, the picture is a partial frame from All-Star Batman and Robin #1, which you should read. It’s used without permission. I have a good fair use argument and I can make that call, because I’m the goddamn lawyer.

The Days of Turkey Roll

Wed, 13 Apr 2011 23:08:00 GMT

Last night, for a reason unknown to me, the thought of turkey roll invaded my mind.

If you’ve never had turkey roll, you should feel lucky. Turkey roll is essentially a giant hotdog, maybe 5 inches in diameter and a few feet long, made out of turkey. At least I think it’s turkey, I’m assuming the government somehow regulates what can be called turkey. However, I’m pretty sure that it’s not made out of the part of a turkey that people willingly eat. Rather, it’s probably little bits mechanically scraped off of bones, with a generous serving of eyeballs and genitals.

It seems that most people’s memories of turkey roll are limited to a couple sandwiches from high school or from a gas station (I don’t think it can be served to prisoners). My experience with this gastronomic disaster goes a little deeper.

My parents ran a small catering business on the side. When I tell that to most people, they’ll respond with something like “wow, that must have been a great learning experience for you” or “wow, you’re lucky, your mom must have been a great cook.” Sadly, neither was the case. First, the name of the business was “Ken and Barb’s Food Service.” Say that in your head a few times, now say it aloud. That should tell you everything you need to know about the business. Note: it’s not a “Catering Service,” it’s a “Food Service.”

The business was not geared towards serving delicate petits fours to powerful business leaders. The clientele were people that would base every decision about their wedding on price. Not that doing so is such a bad thing, most people have to watch the bottom line quite carefully, but my parents did seem to attract the extremely cheap. That was not helped at all by them deciding to compete solely on price.

To keep their costs down, there was no separate phone line for the business, every call to the house came to the same dark green rotary phone that was wired about 10 feet from the TV. A typical evening would consist of me having to listen to my mom discuss menu options with a bride-to-be while I was trying to watch Good Times (“there’s chicken, ham, or chicken and ham.” Seriously, those were the options. With enough planning, there could be roast beef, but that was harder to plate in a production line so my mom didn’t mention it unless asked).

Not to disparage my parents. They worked very hard to keep me fed and clothed and I thank them for that. I’m pretty sure that if I ever had to work a single week like my father did for most of his life, I would die. Still, that doesn’t mean I can’t make fun of their business.

Along with the chicken and turkey-ham, which was by far the most popular choice, there would be mashed potatoes, stuffing, gravy and some of whatever canned vegetable was cheapest that week--usually corn. Rolls and butter would be on the tables themselves. A half dozen rolls per table of eight, along with a full stick of butter. I never quite understood that. I’ve never been to a wedding, funeral, diner, potluck, church fundraiser, or gas station, that served less appetizing food than my mother would. Honestly, I think that is mostly a “familiarity breeding contempt” problem, since most people seemed to like what she served.

Of course, Mom would always plan for a few uninvited people showing up and make a few extra servings of everything. Sometimes there were extra people that showed up, but more commonly we had lots of food left over. Generally, you can assume attrition of at least 10% from those that RSVP yes to an event. So, if a wedding was supposed to be 200 people, my mom would usually aim for around 180. Sometimes, especially if the weather was bad (this was in Minnesota, so the weather was usually bad), the no-show amount would be closer to 25% or more. My mom would pass out the leftovers to her workers and then feed the rest to me and my dad. Our home refrigerator was usually full of number 10 cans (the big ones that chickpeas come in at Costco) filled with mashed potatoes, stuffing, gravy, and corn. There might also be 25-50 oven-fried chicken quarters. I guess it’s better than having no food, but I would often wistfully pine for some variety.

So far, this has nothing to do with turkey roll, I’m getting to that.

Sometimes people die. Often, the family of the deceased will feel compelled to feed mourners something. I never quite understood that. I’m hoping to have my funeral first thing in the morning so my family can get by with serving Froot Loops and PopTarts. If that doesn’t work, then I’d like it to be after 9:00 PM so we can serve nachos and beer.

Sometimes, though, the family of the recently deceased wants to treat all the mourners to a lunch, typically of the fare one would expect from a crappy picnic--i.e., cold sandwiches and chips. My mom would happily feed cold cuts to mourners. In the interest of keeping costs low, she would purchase big deli-type logs of processed meats and cheeses and run them though her slicer. I would often have the task of arranging slices of meat and cheese in a spiral pattern on large serving platters. Most often, her meats of choice would be whatever summer sausage was on sale and turkey-ham (shh, no one was to be told that it was turkey-ham and not actual ham--they’ll never know otherwise), but occasionally, when the stars aligned just right, and the turkey roll was on sale because it was nearing it’s expiration date, she would purchase a log of turkey roll.

The turkey roll logs (I don’t think logs is the right name for the unit of measurement, but it works) were 5 inches in diameter and 3 feet long. If you’ve never seen turkey roll, it has an appearance and texture, or lack of texture, similar to a hot dog, only instead of being dyed to resemble beef, it’s dyed to resemble turkey. Although it had an overall consistent grey-ish beige color, there would be veins or clumps of darker “meat” that has a slightly grainer texture. I was never sure if those were because of an actual difference in how white and dark meat wound up being pressed together, or if it was a ruse designed so that the chub would more closely simulate food. I guess it doesn’t matter. I preferred the darker, grainer regions.

Picture a giant hot dog being cut in to slices so that mourners can place some on a white bread roll with a slice of American cheese and you can appreciate that a 3 foot log will produce a lot of slices, more than a typical funeral can go through, especially when they also have delicious turkey-ham (again, quiet about the turkey-ham). Granted, the hundred or thousands that might show up for the funeral of a head of state or a popular entertainer could easily go though a turkey roll, perhaps several, but those people were not my parents’ target market. The turkey-ham, salami, and even the cheese could be frozen and used for the next funeral, but the turkey roll did not thaw well. She tried, God bless her, she tried, but on thawing it would collapse into a turkey scented, grey-ish beige goop.

Turkey roll then, was not only purchased when on sale, but also only when she had two or more funerals scheduled in a single week. It truly was an event.

Still though, that’s a lot of processed turkey to go through and there was always leftover turkey roll that couldn’t be frozen, so it would sit in the fridge next to the oven-fried chicken, mashed potatoes, stuffing, gravy, and corn. Now, having an abundance of an ingredient isn’t really a bad thing, if you’re creative. Sadly, as evidenced by the name “Ken and Barb’s Food Service,” creative was not a adjective generally used to describe my parents.

There were no turkey croquettes, no turkey tetrazzini, no General Tso’s turkey, no Kung Pow turkey, no turkey pad thai, no turkey chili, no turkey bolognese, no turkey casserole, no turkey pot pie, no turkey quiche, no curried turkey, no turkey paprikash, and no turkey hash. There were cold turkey roll sandwiches on white bread with mayonnaise, and there were hot turkey roll sandwiches served with mashed potatoes and covered in gravy. Since there was always rapidly aging mashed potatoes and gravy in the fridge, guess what we had most often? It’s very sad when you find yourself wishing for a cold sandwich with mayo.

That particular type of hot sandwich seems to be a midwest thing. As it’s normally served in diners across the plains, a meat sandwich is made with white bread (usually dry, but sometimes on buttered bread, if you wanted to get fancy), cut diagonally, and artfully arranged on a platter so that a large scoop of mashed potatoes could fit between the sandwich halves. Then, the whole thing is covered in gravy. The need for such food is evident if you’ve visited the upper mid-west, specifically, the Dakotas, Minnesota, Wisconsin, and maybe Iowa. In those states, there is always the chance of a crippling snow storm striking while you’re out and exposed to the elements. Really, it can be the middle of July and you’re in a park playing frisbee golf when, boom! Snow storm, -20F, 100 mile an hour winds and hail the size of hybrid cars. If that happens, hopefully you have a hearty and hot meal in your stomach or you might not even make it to your car to get out your emergency parka and snow shoes. I believe Paul Bunyan’s cook created the sandwich in the 1800s to save on the number of bears that would have to be cut open and crawled into to survive those sudden storms.

I didn’t realize that the sandwich wasn’t common outside of the midwest until I served one such roast beef sandwich to my Pennsylvanian wife. I’m sure she looked at it with eyes full of love, turned her head towards me and said something like “Steve, what do you call this?” However, I more clearly remember the subtext, which was closer to “what the fuck is this shit?”

I went to the store today and looked in the deli case for turkey roll. I didn’t see it, and didn’t have the nerve to ask for it, because if I had asked, and they had it, I would have been compelled to buy some, and even though I’m sure it would transport me back to my childhood, I never really liked turkey roll so I’d rather just watch Scooby Doo or something.

Maybe it’s one of those foods than lived through it’s glory days and is now just isn’t widely available. You just can’t find liver or tripe as easily as you could years ago. Braunschweiger is another such food that I haven’t seen in years, although I admit, I haven’t looked for that. My mother also would serve something she called “liver paste” which was a thoroughly unpleasant spread (I can’t quite call it a pâté) she’d make with braunschweiger, mayonnaise, onion, and Worcestershire sauce; but that’s a story for another day.

Or maybe turkey roll was banned by the international community. I prefer to think that’s the case.

*****
So, how does that short story fit into my blog which usually discusses matters of intellectual property? I’m not quite sure. I wanted to write that and didn’t want to start another blog just for that, since I might lose interest in the theme, leaving a blog with one post floating out there.

I think I can fit it in conceptually however. It is a creative work, so it is automatically covered by copyright. If someone scrapes my blog and posts it, I think I can probably find out pretty easily by setting up a Google alert for “turkey roll,” since, thankfully, it’s not a popular search term.

If I do not register the copyright in a timely manner, and someone scrapes this story, I could sue them and recover actual damages/profits and get an injunction against them. For this short, short story, I doubt damages would be worth the filing fee in federal court.

If on the other hand, I do promptly register my copyright in this story, and someone scrapes it to fill up their own blog I could recover statutory damages, which are much more attractive to a plaintiff ($750-$30k, maybe even as high as $150k if the infringement is willful).

So, just to be clear, as of the time I wrote the above it was copyrighted. I have also registered it with the copyright office to put myself in a better position if someone scrapes it or otherwise infringes my work. A question I have is whether the automated nature of blog scrappers argues against a finding of willful infringement. If it comes up, I’ll have to look into that further.

Steveodonnell.com, now with fewer penises

Mon, 21 Mar 2011 16:54:00 GMT

About 10 years ago I attempted to register the domain steveodonnell.com and found that it was already taken. I was curious so I opened the site and to my great amusement and dismay, discovered that it was a gay porn gateway.

I, quite reasonably, wanted that domain for myself, so I looked up the registration information with a whois search and set a reminder to check the registration on its expiration date. Every time I checked, the domain registration was renewed by the same company and still contained a big image of the other Steve O’Donnell showing him in all of his <ahem> glory.

I registered the names of my two kids so they wouldn’t have to eventually deal with a similar issue (which I suggest everyone does).

Finally, this year I checked and the domain registration wasn’t renewed, but it was still in its initial redemption period so the original registrant could still renew. I looked into a number of domain “drop-catchers,” companies that buy and resell expired domains, but they seemed problematic--specifically, they tend to want a fee upfront to even try, and then if they do catch the domain, they auction it off to all bidders that paid for the initial catch attempt. In short, working with them wouldn’t guarantee that I would get the domain even though I paid their fees.

Instead, I simply emailed the administrative contact listed on the whois lookup and said that if they were going to let the domain expire anyway, that they should instead renew the registration for a year and then transfer it to me for what I thought was a reasonable amount. In that way, the original registrant received something rather than just letting the domain go and I was assured that I would become the new registrant.

The administrative contact accepted my offer and after a couple weeks of finalizing details, making payment, and waiting for the registrars to update the registration, I am now the proud owner of steveodonnell.com. Currently the URL simply forwards to this site, but I will probably repurpose it at some point. I doubt I’ll use it as my main business domain, since it might be blacklisted by some databases, and I’d hate to have someone try to find my legal practice and see that my site has been blocked for porn. The entire process was painless, fast, and relatively inexpensive--at least as compared to the uncertain process of using a drop-catcher.

So, how does my story interface with intellectual property? Obviously, I have some degree of IP rights to my name, but in this instance, where someone registered my name before I did, I probably couldn’t force a domain turnover. There are a few of us Steve O’Donnells. My one and only Twitter list is a list of people with the same name as me. We’re a diverse bunch. There are also some Steve O’Donnells of note, such as an actor, a writer, and an IT professional. It would be an insane mess if we all got into a fight over who had superior rights to the domain.

On the other hand, lets say that I’ve been doing business as “Steve’s Pizza” (not a great branding decision to use such a mark from a trademarking standpoint--but it’s just for illustration) and I find that another pizza place has already registered “stevespizza.com.” I probably won’t be able to force a domain turnover through the ICANN dispute process, but if the other Steve’s Pizza sells the domain to a competitor of mine, I’d be in a good position to dispute the competitor’s registration and force a turnover, especially if I was able to point to a registered trademark for Steve’s Pizza.

Certainly there are a lot of issues involved if someone has already registered a domain that you want, but there are ways of approaching the issue that can give someone an upper hand in negotiations or can even force a turnover. If you’re in such a situation, you should speak with a lawyer that understands the interplay of domain registration and trademark to create a plan to capture the domain.

If you're dying to see the previous version of steveodonnell.com you can find it on the Internet Archive: Wayback Machine.

Social Media contracts

Tue, 08 Mar 2011 14:07:00 GMT

It shouldn’t be shocking to anyone that not all of the social media posts (Twitter, Facebook, LinkedIn, etc) that a company puts out are written by the CEO after a meeting of the board of directors. Some companies use internal people to maintain official accounts, others have a swarm of people handling specific aspects of the accounts, and some companies outsource that work to an external contractor. It’s certainly common to outsource marketing, but traditionally, outsourced marketing would still be approved by someone before being made public. In the case of social medial marketing, where quick and short messages are the norm, it’s just not possible to have management approve every outgoing message so it’s incredibly important to have a written agreement detailing what both parties expect from the social medial marketing in place and detailing what happens if something goes horribly wrong.

There is not much to be found online about what should be in this type of contract, which isn’t surprising. It’s a fairly new field and possible that these agreements haven’t made their way before a judge yet. The lack of guidance to be found in forms might be troubling to some, but to a lawyer that drafts contracts, this is fun, or at least as fun as drafting contracts gets, because it frees me to be creative with the work.

After reflecting on what things I post to my social media profiles, and giving some thought to what is mostly likely to go wrong I’ve come up with a few clauses or sections that should probably find their way into these contracts.

Firstly, there’s nothing particularly magical about these contracts and they’re pretty closely related to any independent contractor agreement. Therefore, I’m not going to say anything about payment, cancellation, intellectual property, independent contractor status or any of the “standard” clauses like arbitration, heading, integration, saving, etc.

•Length of average post and number or posts/time. No one wants to see someone post nothing but 2 word status updates every 15 minutes. Specify roughly how long an average post should be and roughly how many should be done per day/week/month. I say roughly, because it’s just silly to expect someone to pay a terrible amount of attention to that, but you do want to ensure that the posts aren’t too short, too often.

•Timing of posts. It might not help a business if they’re more active online in the middle of the night or if all messages go out in a burst every day. A good agreement will allow flexibility here, but make it clear that some reasonable spacing will be used.

•Content. It’s a good idea if someone at the company can feed suggested posts to the independent contracts. It doesn’t have to be a steady diet, but the business should have some regular input so the contractors know about promotions, new products, etc.

•Ratio of post topics. Not many people are going to follow a company’s social media account if all the posts are “try our new diet Slurm.” Also, it won’t help a company if all the posts are off topic. There should be some ratio to act as a guide, maybe 1/2 company line, 1/2 light small talk. That ratio will need to be customized for each outlet. Twitter is better suited for small talk, but the same kind of post would be out of place on LinkedIn.

•Disclaimers. Even with light small talk posts, the odd minor controversy can come up. The poster should be able to make it clear that opinions on who should win the World Series, etc, are their own.

•Language. Specify that things like profanity shouldn’t be used in the posts, and that the contractor shouldn’t post their personal political opinions. Hopefully no one is stupid enough to use their access to a company’s official twitter account as their own personal soapbox, but it could happen. Also, most businesses will probably want to avoid excessive text-speak. “OMFG I <3 ur lolcatz!!” might be an excessive example, but you see what I’m getting at with it.

•Terminable posts. Someone’s opinion about a sports team or the weather probably isn’t going to be an issue with anyone, but what if a poster makes a nasty remark about a politician or makes some sweeping offensive generalization? There should be some definition of what crosses the line. Actual determination of whether something is too far will have to be made by the company, but having some definition in the contract itself will keep the company from abusing their discretion.

•Damages. Hopefully it won’t come to this. But lets say a company hires an independent contractor that then hires someone that has a particularly bad day and decides to quit their job in the most flamboyant, bridge burning way they can (it happens)--so they use the LinkedIn account to defame another business, or make a very blue joke, or start discussing their bizarre “solution” to the Gaza Strip conflict--things like that might conflict with your brand identity, to say the least. The contract should have something in there addressing damage mitigation and control. Certainly the offending person should be removed from the account, but what then? The damage is done. For something like this, I might suggest a liquidated damages clause for terminable posts to ensure that the contractor is careful about who they have actually posting the content. Also, in the event of a terminable post by a sub-contractor or employee of the contractor, the contractor should offer some amount of damage mitigation, perhaps by including 10 explanatory posts for every terminable post (this might be one of the situations where fighting fire with fire actually works). Again, hopefully it won’t ever come up, but having an agreement in place is critical in case of situations like this.

I’m interested if anyone has other thoughts on what should be in a social media independent contractor marketing contract that might not be in other contracts. If you have something to add, please leave a comment. Also, if you need such a custom contract drawn up for your company, whether you're the one hiring the contractor or the contractor, E-Mail me to set up a consultation.

Zebra trademark backlash

Mon, 28 Feb 2011 19:01:00 GMT

About a week ago, The Lones Group in Washington state brought an action for trademark/tradedress infringement against Dan Rothamel and Strong Team Realtors (in Virginia) over the defendants’ use of some allegedly “confusingly similar” elements. As often happens, this didn’t sit well with a number of people (check out Twitter hashtag #savethezebra). Does the Lones Group have a case? If not, what could they have done differently to protect their marks? Could this have been resolved without a formal complaint and the resulting backlash?

First, I have no particular insight into the facts of this case beyond those I’m assuming to be true from the complaint. So, if you have a problem with what the Lones Group says in their complaint, don’t complain to me. Second, I’m not going to take sides; if you want to read something that cuts down the Plaintiff (Π) or the Defendant (Δ), I’m sure you can find plenty of material online. What I am going to do is point out some difficulties that Π will likely encounter in a lawsuit, offer some suggestions and what they could have done differently, and hopefully add a little something to the discussion.

Trademarks are something, a name, a symbol, a slogan, etc, that identify the source of goods or services. You can rely on the assumption that if you buy a can of Coke, that it was made by Coca-Cola. Trademarks can be a company’s most valuable asset if managed properly. Trademarks can also be separated into registered and unregistered. Registered trademarks go through an examination procedure at the trademark office, unregistered trademarks can gain “common law” rights through their use. There isn’t a particular need to register a trademark, but registration offers some huge benefits such as the right to bring an action in federal court, public notice of the mark, possibly greater damages, a presumption of ownership, and the exclusive right to use the mark nationwide in connection with the goods/services listed in the registration. If you’re using a trademark, you should contact a trademark attorney to discuss registration--there’s really no reason not to register a mark.

Π starting using the word “Zebra” and employing a zebra-theme at least as early as 2005 to identify their real estate business, but did not register the mark(s) as far as I can tell (a quick search of the trademark office records did not find it, and if there were registrations, the complaint would almost certainly have noted the registration numbers). Later, Δ started using the domain “realestatezebra.com” for a real estate blog. Had Π registered the trademark, their position to have Δ’s registration canceled or to get the domain turned over to them would have been much stronger through ICANN’s dispute system.

Π discovered that Δ was using a mark they considered their own, didn't care for it, and filed a trademark infringement lawsuit.

Since the marks were not registered, Π will have to demonstrate that their Zebra marks have acquired secondary meaning (meaning that people in the market for real estate marketing services identify “Zebra” as meaning the Lones Group, and that either their mark is known where Δ does business or that Δ is doing business where the mark is known. So, either the mark is known in VA (assuming Δ only does business in VA, for example) or, if the mark isn’t known in VA, that Δ is doing business in WA (or wherever Π is known)). It’s certainly possible, but it is an extra layer of work to do in the lawsuit which could have been avoided had Π registered the mark.

Π will also have to show that Δ is using the disputed mark in the same market. Trademarks, both registered and unregistered, can peacefully co-exist if their markets are different enough. Zebra (as used for real estate services) could, and does, happily exist along side Zebra Technologies (specialty printing company) and Zebra Tattoo and Body Piercing. It’s extremely unlikely that anyone is going to go for a tattoo and ask the artist about their bar code label printers or their real estate services.

In this case, after a minute on each party’s website, Π appears to be a marketing consultant for real estate agents, while Δ seems to primarily be a realtor, although it looks like he does do some educational work in the field. Is that the same market? I’m not sure of the answer. If it’s not the same market, is it close? If the markets have enough connection, even though they’re not exactly the same, it could be close enough to infringe. The whole thing comes down to likelihood of confusion. How likely is it that a consumer would confuse Π and Δ based on their use of “Zebra?”

Is the case a slam-dunk, no. Is it frivolous, no. If the Lones Group asked me about it, I wouldn’t have suggested ignoring it. Trademark owners have a duty to police their mark or they risk losing it. Based on what little I know about the case, it sounds perfectly reasonable to bring the action, but was that the best route to take?

There seems to have been an explosion of late of trademark owners being overly aggressive about protecting their marks, or maybe it’s just that the internet has picked up on it and these things are being publicized more. I don’t think this is a case of a trademark bully, but it still could have been handled differently.

I hate second guessing Π because I have the advantage of seeing the fallout the lawsuit has caused, but this is an era of social networking and the fallout could have been foreseen. For one thing, it’s rarely a great idea to sue a potential client, that just doesn’t sit well with other potential clients. If this same exact controversy came up a couple years ago, a few bloggers would have picked it up, but it probably wouldn’t have caused anywhere near the backlash that it has. If it came up a decade ago, it’s doubtful many outside of the parties would even have found out about it. Today though, one has to assume that any action will draw the attention of every person that might be interested in it.

If I was handling the matter for Π (and admittedly, this is with the benefit of hindsight), I would have attempted to open communication with Δ and tried to convince them to abandon “Zebra.” If that failed, since the market overlap (both geographic and by type of service) isn’t exactly in unity, I would have suggested that the matter be settled with a disclaimer on Δ’s materials that any use of “Zebra” or of “Zebra themes” does not imply a connection with Π. If that failed, I’d have to take an even closer look at market overlap before suggesting further action. Since it’s not a slam dunk case, and since the marks were never registered, I might have drafted an opinion letter discussing how Δ’s use of “Zebra” and related were not actionable trademark infringements or at least that it was questionable. Such an opinion letter could be used later to defend against a claim of trademark abandonment if an action was initiated against a more clear infringer.

Bottom line, if you have a trademark--register it to put yourself in a better position if someone starts using the same, or confusingly similar, mark; and before taking action to protect your trademark, consider social networking backlash. One thing you don’t want to do is cause damage to your brand by trying to protect it.

I’m interested in seeing some comments and questions. I hope this post is of some value, but if nothing else, you’ve learned that lawyers use Π and Δ as shorthand for Plaintiff and Defendant--that alone is worth the price of admission.

Photo by Nevit Dilmen and licensed under the GNU Free Documentation License

When a parody isn’t a parody

Tue, 11 Jan 2011 16:02:00 GMT

I’m willing to bet that at some point you watched something labelled a parody video on YouTube. In the past week I’ve run across three that people have either sent me our pointed out on twitter. Of those, one was a song played on top of clips from the original Star Trek series, one was a mashup of an 80's metal song and a 60's pop song, and the last was a pop song done with different lyrics to poke fun at one of the many reality show disasters. Each was labelled as being a “parody,” probably as an attempt to cut off a copyright issue before it became a problem. Each was very clever and well done, but are they protected parodies?

Parody is protected fair use of a copyrighted work, but it doesn’t mean that all comical uses of a copyrighted work are protected. For a work to be a fair use parody of a copyrighted work, it has to actually parody the copyrighted work. [sounds like a lawyer wrote that last line.]

It would probably be helpful if I linked to the videos that inspired this post, but I don’t want to step on anyone’s legal defense (if it came to that).

First, lets touch on fair use. In determining whether a use of a copyrighted work is a “fair use,” courts will look to a few factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work; 

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 

(4) the effect of the use upon the potential market for or value of the copyrighted work.

If you ever read a case with that list in it, you’ll notice that something like “although each prong is not determinative…” is nearby. In other words, a court will look at all the factors in deciding if a use if a fair one. That can be a hard thing to explain since most people thing that just because some use is noncommercial that it’s automatically a fair use, which isn’t the case.

Second, lets briefly go over the differences between parody and satire, at least in this context. Parody pokes fun at a work and needs to use part of that work in order to do so. Satire pokes fun at society, usually for social change. Either parody or satire can be protected fair use, although the fair use is generally much easier to find in parodies (look again through the four factors).

Turning then to the three YouTube videos I mentioned:

A song played over Star Trek clips. What is being made fun of? The song isn’t changed, so the song isn’t being parodied. The show might be parodied since it’s taking a serious sci-fi show and making it into a video for the song with some creative editing. Use of the song is not parody, even though it’s used as part of a parody of something else. Use of the clips, though, might be protected.

A mash up of two songs. That might be parody. I’d argue that the use of each work is poking fun at the original, in this case, by pointing out the structural similarities and interchangeability of certain elements between two otherwise disparate works.

New lyrics to a pop song making fun of a person. Since the song itself isn’t really the target of the new work, it’s probably not a parody of the song.

Of course, like just about everything in copyright law, each case is different and fair use is not an easy doctrine to pin down. It’s always in your interest to get an attorney’s opinion about your plan, especially if your parodies are for-profit. Although “not determinative” (there’s that term again), for-profit uses tend to get a closer look from copyright owners.

So, if at least some of these YouTube videos are not really fair use, why are they still there? Shouldn’t YouTube take them down? Why aren’t the copyright holders suing?

A couple reasons that probably explain that. For one, fair use is not a clear cut test, I wouldn’t be shocked to find a judge that came to different conclusions than I did. Also, in some cases, the copyright holder probably likes the additional expose they get through a popular YouTube video.

For a quick, fun read, take a look at Campbell v Acuff-Rose Music to see what the Supreme Court said about 2 Live Crew’s version of Pretty Woman.

Safely choosing images for your website

Wed, 05 Jan 2011 14:37:00 GMT

Over the past year I’ve had a few clients come to me with nasty letters from image licensing sites demanding $1000+ for copyright infringement. In these cases, a few simple tips could have prevented them from having any trouble.

1) Don’t just grab images you like from other blogs/websites. You don’t know where those images came from: they may be licensed, they may be original works. If you really, really want to use the image, email the site for permission or information on licensing.

2) If it looks professionally done, it probably is. Many people make money from works they post online and don’t like it if you just take them.

3) Be careful. It’s one thing to download examples from a stock photo site to use to create a mock-up page, it’s another to make that page live without being sure that you have a license to use those images.

4) Don’t assume you have “fair use” rights. Fair use is a very fact intensive defense to copyright infringement. You may think you can do something because of fair use, but, you’re probably wrong. Sorry, I didn’t write the law. Even if you do have a bullet-proof fair use defense. . . it’s a defense, it doesn’t prevent you from being sued or from getting a DMCA takedown notice. It’s something you argue in court, after paying your legal team some hefty fees

5) Wide use doesn’t mean it’s public domain. Sometimes wide use means that the image is just really popular, and brings in license fees.

So, how does one find images that they can use without running into problems?

1) License them. Look for images from Getty Images or iStockphoto or any of a number of other image licensing sites, pay their fees, and comply with their licenses.

2) Creative Commons. Search for images and read/comply with the license. These aren’t totally free, they might not cost money, but they might limit what you’re allowed to do or require a link back or attribution. When I’ve used CC images I’ve sent a copy of the page using the image to the creator and thanked them for their image. I’ve always received a nice thank you from the creator.

3) Use free images. Lots of site republish free images. Pull out your google-fu and search for “public domain,” “free graphics,” or whatever search terms suit your fancy.

One annoying point: even if you use a “free image” or a Creatively Commons licensed image. . . or even a purchased image, you can never be totally sure that the image is clear. There is nothing to stop someone from downloading an graphic and reposting it under a Creative Commons license or otherwise granting a dubious license. If you really, really, positively need an image you are stuck with either creating it yourself or commissioning the work (with the appropriate transfer(s) in place). Otherwise you’re depending on others being truthful and granting rights they have the ability to grant. Of course, I’ve never heard of a case where someone has offered a graphic for license that they don’t have the rights to, but that doesn’t mean that it couldn’t happen. The best course of action is to keep a paper trail for all images you use so that if you receive a nasty letter you can point to your records to explain why you’re not a proper defendant.

If you receive a threatening letter concerning an image you’ve used, you should contact an attorney that is familiar with copyright law to discuss your issue.

That picture. . . well, I had some credits with iStockphoto that were about to expire so I searched for “patent” and after looking at a bunch of lightbulbs found a pair of patent leather boots. It seemed almost relevant.