Create, Consult, Control
News & commentary on intellectual property issues.
Dec312009 | Steve O'Donnell
Poor Man’s Copyright
Copyright, perhaps more than other legal fields, has a lot of urban legends attached to it. The most pervasive is probably the Poor Man’s Copyright where one mails themselves a copy of their work to prove copyright. Copyright attorneys have another name for this: crap.
The setting is this: an author mails a copy of their manuscript to themselves, but doesn’t open it. The author then submits copies to publishing houses and is rejected, but later sees someone steal take their idea and make a fortune off of it. The author sues and there is a dramatic scene where the judge opens the sealed envelope, sees that the other person stole the work and decides in favor of the author. For dramatic effect, we see the defense attorney slam his briefcase shut while the author’s side erupts into a perfectly choreographed, but seemingly improvised, dance routine. Next there is a fade-in of the defendant counting out a huge stack of bills to the author before tossing the money into the air and storming out of the room.
Ahh, Hollywood.
Alas, that never happens.
A Poor Man’s Copyright is, well, crap. Consider this: I mail myself an unsealed envelope and let it sit for a few years. Eventually there a novel that gets turned into a smash movie (maybe one involving friendly vampires with comically large heads) so I quick write up a version of the book and seal it in the envelope. Ta-Da! Now I sue, settle for millions and retire to an island with my supermodel wife.
Sorry, that isn’t going to happen. The sealed envelope will have little or no evidentiary value that I wrote the happy vampire book. If anything, it will show that I have something in an envelope stamped with a certain date--not that the contents of the envelope was there by the stamped date. In other words, it’s worthless to me.
The best way to prove that you created something is to register the copyright. Registration isn’t difficult or expensive and usually doesn’t require a lawyer. I’ve set up some of my creative clients with a scheme to recognize and register copyrights as soon as they’re ready to make sure that they have the best protection available. Contact me if you’d like to learn more.
Image from cyberlawcentre.org and appears to be in the public domain.
Dec152009 | Steve O'Donnell
The Zappa Family Trust vs Assorted Zappa Tribute Bands
Frank’s widow, Gail Zappa, head of the Zappa Family Trust has taken issue with a number of Frank Zappa tribute bands and has successfully shut down shows by threatening legal action. Is this an example of abuse or does she have a viable legal theory?
First, Happy Zappadan everyone! Zappadan is, of course, the annual celebration of Frank Zappa’s work that runs from December 4 (the date of his death, a/k/a/ BummerNacht) until December 21 (his birthday, a/k/a Day Zero of Zappadan).
As I was saying, the Zappa Family Trust has targeted Zappa tribute bands and has shut down some shows by those acts that don’t have the Trust’s blessing to perform. Not so surprisingly, one act that does have the Trust’s permission, Zappa Plays Zappa, is headed by Dweezil Zappa.
To be fair, it has been at least a year since I heard rumblings about the Trust, so maybe Gail has softened a bit. Regardless, Whether these threats are primarily motivated by the desire to make sure that Frank’s music is presented only by those gifted enough to pull off his challenging pieces, or simple greed is a question I will leave to others to debate. I’m more interested in whether the Trust has legal support for their stance.
The obvious legal theory, copyright, probably won’t help the Trust. A quick search of ASCAP’s site shows that a number of Frank’s works are licensed through them. What that means, is that any venue that takes out a license from ASCAP can host bands that cover those songs. Still more works may be licensed by BMI or SESAC.
The other legal theory I can think of is a little more subtle. Trademark law allows a business to keep others from using their trademark in a way that is likely to confuse the public. A quick search turned up 34 trademarks owned by the Trust covering, among other things, the name “Frank Zappa” as used in musical performances and recordings.
Certainly, anyone that would think of going to a Zappa tribute will know that Frank is not going to be there, so can there be any real public confusion? Maybe. One might see the “Frank Zappa” mark, or a similar mark advertised and and think that the Zappa family is behind the show.
Another possibility is that these non-sanctioned shows might tend to reduce the distinctiveness of the Frank Zappa brand. If so, the tribute band could be diluting the trademark, even though there is no likelihood of confusion.
Lastly, trademarks that aren’t defended by their owners can be lost, so the Trust might just be overly cautious about preventing that from happening.
For the trademark theory to work, a tribute band has to be using a Trademark owned by the Trust. A group in KISS makeup called Love Gun that played Frank Zappa’s music probably wouldn’t run into trouble with the Trust, at least not under a Trademark theory.
Bottom line, it may seem heavy handed, but Gail Zappa has a plausible legal theory to back her up when she tries to shut down Frank Zappa tributes.
Check here, here and here for posts by others on the subject.
Image: http://www.flickr.com/photos/swanksalot/ / CC BY-SA 2.0
Dec082009 | Steve O'Donnell
Using a non-disclosure agreement to protect your ideas
Non-disclosure agreements are contracts between parties that need to share certain secret information in order to do business together. An NDA solemnizes a confidential relationship and protects the party sharing their secrets.
The content of an NDA is fairly standard; it defines what information is to be kept secret, what exclusions might exist and what the receiving party needs to do to keep the secrets. Exclusions allow the receiving party to forgo the NDA in cases when the information becomes publicly known or if it was already known. For example, if I get a company to sign an NDA and the secret I share is something they’ve already been working on, the NDA won’t prevent them from cutting me out when they take the item to market.
Obviously, if you are an inventor you will want an NDA in place before you share your invention with manufacturing partners or investors. Whether or not they will is another issue.
By asking someone to sign an NDA you are requesting them to accept a heavy obligation before finding out if your idea is any good or if it’s something they’d even be interested in. Not many investors are willing to sign your NDA without having a good idea of what you have. On the other hand, if you need to have your invention manufactured for testing, the machinist is more likely to sign an NDA to get the job.
Often, to get your foot in the door, you need to either have a track record of marketable ideas or share a trusted intermediary that can set up a meeting. More often than not, that isn’t the case. To coax investors to listen to my clients, I draft a non-confidential disclosure, discussing the invention or idea, without giving away any secrets. If there is a bite, then we know the other side is interested in the technology and likely willing to sign an NDA to learn more.
Ignoring the possibility of having your idea stolen, discussing your invention before starting the patenting process and without an NDA may likely be considered a public use by the patent office and could prevent you from ever obtaining a patent.
The safest thing that you can do to protect your idea is to talk to an intellectual property attorney before you talk to potential investors or partners.
Cartoon licensened under a Creative Commons Attribution, NoDeris 2.0 License.
Dec012009 | Steve O'Donnell
Why Archie drank generic beer
I used to be confused that some TV shows would make up their own prop brands while other shows used real-life products. I assumed it was because of trademark or copyright licensing issues. It’s actually less interesting.
First, most TV or movie uses of a real product are not going to support a claim of trademark infringement. The touchstone of trademark infringement is likelihood of confusion and that’s simply not going to happen because a character used a branded prop. If I see Frodo Baggins eat Funyuns and drink a 7up I’m not going to think that either company made the movie, although I may question the purity of the goods at the concession stand because I’d be pretty sure there was more than salt in the salt shaker.
Depending on the depiction, there might be an exception for brand tarnishment. That could occur if a brand was used in a manner that would tend to offend people, but a filmmaker would probably have to go out of their way to embarrass a brand before having to worry about a tarnishment claim.
Most routine displays of copyrighted material also won’t be actionable, more substantial displays might be actionable in certain circumstances. For example, as if the horrible abomination of a movie that was Batman Forever needed any more trouble, the studio was sued over filming an architectural work. Batman won. Batman always wins.
No, the reason that sometimes a show uses a real brand and sometimes doesn’t is ad revenue.
In a simpler time, it was thought that by keeping brands out of a show that advertising opportunities would be greater. After all, Miller Lite might not want to buy ads on “All in the Family” if Archie was drinking something better in the episode. Miller, however, probably won’t care if Archie has a couple plain-labeled “beers” during a show.
On the other hand, shows can sell product placement space during the show itself to advertisers, and for a number of years we saw both prop brands and real brands. The choice was likely dictated by whether there was a sponsor willing to pay enough for product placement to offset concerns that it would keep competitors from buying traditional commercials.
Since the debut of DVRs and other ways of avoiding commercial breaks there has been a steady shift towards using more product placement ads. Now the only time prop brands are used are probably when a sponsor couldn’t be found.
We may never again see Archie’s favorite beer outside of reruns.
Image licensed under the Creative Commons Attribution-Noncommercial 2.0 Generic license
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