Trademark Registration Workshop for Bloggers

The Anxious Type by JD Hancock from Flickr (Creative Commons License)

The Anxious Type by JD Hancock from Flickr (Creative Commons License)

I’ve been on my soapbox for a while about the importance of registering your trademark if you have a blog. Even if your following is small, you want to stake a claim to your site’s name because if someone registers your name before you, they can essentially shut down your site. If they register your name as a trademark after you’ve started your site, you don’t have to shut down your site, but you can’t grow you market.

This is not a new problem but it is getting more complicated in the online world. The most infamous trademark story I know in the brick-and-mortar world is about two different Burger King restaurants. The most infamous situation in the blogosphere is the Turner Barr situation:

When I speak at social media and blogging conferences, I encourage everyone who has a blog to register their site’s trademark with the U.S. Patent and Trademark Office (USPTO). (Ditto for vlogs and podcasts.) A lot of people agree that it’s a good idea; however most people don’t follow through and do it.

The #1 reason I hear why most people don’t register their trademark: the cost.

I’m not going to lie. Registering a trademark is expensive. The filing fee alone is at least $225. But what would suck more – paying for a trademark or having to rebrand because someone else registered it – especially if your plans include making money off your site?

I am almost through the process of registering the trademark for my blog, The Undeniable Ruth. It’s got me thinking that I could do small workshops with bloggers (3-5 participants) that includes an overview of trademarks and then I could lead them through the process of filling out the USPTO trademark application during the session, and then shepherd their applications through the rest of the process. Since it would be in a group setting, I could charge half the price of what I’d normally charge to submit an application for a client (only $499 instead of $1,000).

Interested? Please fill out the form below and if there’s enough interest, I’ll schedule a workshop.

 

If you want to know more about the legalities of blogging, please watch my Q&A keynote from TechPhx or check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.  You can also contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Thoughts on the Ashley Madison Hacking

Puzzle by Andreanna Moya Photography from Flickr (Creative Commons License)

Puzzle by Andreanna Moya Photography from Flickr (Creative Commons License)

I have had a lot of different thoughts about the recent hacking of the Ashley Madison website – both as a lawyer and as a person. Ashley Madison is a website geared towards helping people participate in infidelity. They apparently have over 37 million users. According to NPR, the company suspects it was an inside job. Allegedly, whoever did this threatened to release the identity of its users if the company doesn’t take down the website.

As a social media lawyer, I am against hacking. Whenever I work with a company on their website, I always ask what security measures they are taking to protect their users’ information, and I encourage them to explore whether they need cyber liability insurance. Conversely, people need to remember that there is no expectation of privacy in anything they post on the internet, regardless of their privacy settings. There is always a risk that they could be unmasked, which could lead to social, professional, and legal consequences.

Do I believe this hacker deserves to be punished? Yes. If this person has an issue with what this website does, assuming this was perpetrated by an employee, they should quit their job. Being personally morally opposed to a company is not a valid reason to potentially jeopardize millions of people’s lives.

Additionally, I am a huge advocate of everyone leaving each other alone (with a few exceptions related to safety and public policy). Stay out of other people’s relationships that don’t involve you. I have no idea what these 37 million people were doing on Ashley Madison. I suspect some of them were there with the consent of their significant other as part of an open relationship arrangement. Some people may be allowed to cheat as long as they do it discreetly. I wouldn’t be surprised if there are partners where both people have profiles on this site. The only thing I know for sure, is that I don’t care about what these consenting adults do in the privacy of their own lives.

Part of what makes this situation so newsworthy is that it involves infidelity, and it forces us to acknowledge on some level that not everyone believes in or practices monogamy. This isn’t a legal issue; it’s a personal choice. And the only people who deserve a say on these decisions are the other people who are directly impacted (meaning that person’s significant other and possibly children). The fact that outsiders are outraged by these beliefs and activities is irrelevant.

I know this is a hot button topic for a lot of people, and I am open to continuing the conversation in the comments below, on TwitterFacebookYouTube, or LinkedIn, or you can contact me directly.

When “I’m Sorry” Isn’t Enough

Sorry Bout That! by Anne-Sophie Ofrim

Sorry Bout That! by Anne-Sophie Ofrim

I’ve encountered a significant number of people in my short legal career who were under the impression that they could absolve themselves from legal wrongdoings by simply apologizing. Unfortunately for them, that is often not the case.

When I first meet with a client, especially in situations where they suspect their intellectual property has been infringed, I start by asking, “How do you want this to end?” Their answer will inform me what I need to do to try to get their desired result (and if that result is available).

Sometimes my client simply wants the alleged infringer to stop using their work. That requires a cease and desist letter from me and the recipient to cease and refrain from using the material in question. An apology isn’t even required. However, if my client wants money, and my evaluation of their case shows that they are eligible to collect, “I’m sorry” will not be enough to resolve the situation.

In general, once lawyers are involved, “I’m sorry” is not going to be enough to fix the situation. If a person hires a lawyer, they are usually investing hundreds of dollars in an attempt to seek their preferred resolution. Very few people are willing to pay that amount just for an apology.

In my experience, when one side gets a lawyer the other side should get one too – if only for a consultation to understand the totality of the situation. They need to understand their options for responding to a cease and desist or a demand letter and the likely consequences of each potential course of action. In a perfect world lawyers talk to lawyers when there is a dispute. They know the law best and can often speak more candidly about the situation and achieving a resolution.

Every entrepreneur should watch Mike Montiero’s “F*ck You, Pay Me.” It’s an outstanding talk that shows how the legal system helps entrepreneurs protect their rights.

If you believe your rights have been violated or you’ve received a notice from someone’s lawyer accuses you of intellectual property infringement, breach of contract, or the like, contact a lawyer in your community who can analyze the situation and advise you on your options. If you want to chat more about this topic, you can contact me or connect with me on TwitterFacebookYouTube, or LinkedIn.

The Dark Side of Periscope

Mirror Image by The Joneses from Flickr (Creative Commons License)

Mirror Image by The Joneses from Flickr (Creative Commons License)

I was on Periscope the other night, talking with people about the legal implications of using live video apps, when an awful thought struck me:

You know someone is going to use Periscope for evil.

I got a sinking feeling in the pit of my stomach that sometime (probably soon) someone is going to use Periscope or a similar app to share a live broadcast of a suicide, sexual assault, or other equally horrendous activity.

I hate that horrible things like this happen and that anyone might think that it’s a good idea to broadcast it to the entire internet-accessible world. I also hate how powerless I am to stop these people from doing things like this. It’s like a train wreck, and I see it coming but because I don’t know when or where it will happen, there is almost nothing I can do to stop it.

The only thing I can think to do is create a post like this that will hopefully raise people’s awareness so that if you see a bad act in the works and you are in the position to take an action to stop or prevent it, please please please do it. Do not stand idly by when there’s a chance that you could prevent harm to another.

If you see a crime being committed on a live video app, report it immediately to the administrators of the app and as well as law enforcement. If you don’t know where the act is taking place, report it to the FBI.

Two of the reasons I became a lawyer are I like to help people and I like to solve problems. It’s so frustrating to find myself in situations where I feel like there’s nothing I can do to help a situation.

Part of being a social media lawyer means I have to keep up on what people are doing online and could be doing online. The downside of this is I have to think about these worst-case scenarios and accept that it’s more likely than not that at least one of them will come to fruition.

I am watching the legal issues with Periscope, Meerkat, and similar apps closely. If you want to talk more about internet or social media law, please contact me or connect with me on TwitterFacebookYouTube, or LinkedIn.

Legal Issues with Periscope

Vents by SecretLondon123 from Flickr (Creative Commons License)

Vents by SecretLondon123 from Flickr (Creative Commons License)

Have you tried Periscope? It’s one of the new livestreaming apps where you can let everyone into your world and they can post comments and questions. I’m on it. It’s pretty fun – except when it overheats my phone.

Of course, being a social media lawyer, I started thinking about what types of legal hot water someone could get into using this or any other live video app. Here’s my preliminary list:

Copyright
You own the content you post via Periscope, but you grant Periscope and anyone who has access to it permission to use it.

An artist may be upset with you if you use Periscope to display, distribute, or perform their work without their permission – i.e., if you’re playing someone’s song, doing a dramatic (or not so dramatic) reading, or showing someone’s art (even with an attribution).

Trademark
If you’re using Periscope to talk about products, make sure you’re not confusing people by giving the impression that you represent the company.

Federal Trade Commission Rules
If you are lucky enough to have sponsorship or otherwise be compensated for reviewing products, make sure you disclose that too. If you’re doing reviews on periscope, you’re legally required only to give truthful and accurate reviews of products and services. Otherwise, the FTC could fine you up to $11,000.

Trade Secrets
Every company has secrets that give them a competitive advantage. Make sure you don’t accidentally disclose your company secrets on your videos.

Privacy
Although there is no expectation of privacy in anything you do in public, there are a few exceptions for bathrooms, changing rooms, medical offices, lawyers’ offices, as well as within the walls of your home. Be thoughtful and respect full when it comes to shooting videos of others.

Remember, you have no expectation of privacy in anything you post online.  Just like people have been fired for other social media posts, you can be fired for a Periscope video. You could also do tremendous reputational harm to yourself.

Defamation
I can foresee people using Periscope to vent when they are angry. Be careful that you don’t cross the line and tell a lie about another person. Even if you didn’t intend to tell a lie, you could still face a lawsuit for defamation. If you are especially upset, it may be best to wait 24 hours to calm down and verify your information before talking about the situation on live video. Think before you speak.

These legal issues apply to all live streaming video apps so be careful before you jump on your virtual soapbox. The FCC does not regulate online streaming video, so there are no “deadly words,” but there are also no 7-second delays or buttons to bleep you out.

These are my rules of thumb when it comes to posting anything on the internet:

  1. Don’t post anything online that you wouldn’t put on the front page of the newspaper.
  2. Assume everything you post will be seen by four people: your best friend, your worst enemy, your boss, and your mother. If you don’t want to one of those people to see what you’re thinking about posting, don’t say it.

This is an area of law that is still new and developing. I’m excited and curious to see what legal cases will come out of live video apps like Periscope and Meerkat. If you want additional information about the legalities of social media, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. You can also contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Bring Back Streaking!

John by J0NU from Flickr (Public Domain)

John by J0NU from Flickr (Public Domain)

Did you see the clip of the streaker on American Ninja Warrior?

He was pretty impressive until he was stopped by security! I was bummed to learn that this was a stunt and not a true streaker. This video made me wonder – whatever happened to streaking? I’m sure some people think it’s offensive, but I think it’s hilarious. Now that everyone has a smart phone in their purse or pocket, I suppose fewer people are inclined to strip down and run. But it still happens on occasion – i.e., Portland’s Naked Bike Ride, Bay to Breakers, etc.

In Arizona, streaking is illegal under the indecent exposure law. It is a felony if you expose yourself to a child who is under 15 years old, and you have to register as a sex offender if you commit this felony  two or more times.

Now, anyone who knows me knows that I am against the sexual abuse or sexual assault of any person, and I think it makes sense to differentiate between people who expose themselves to commit a sex crime (including flashing) and people who have other motives. When I think of “flashers,” I think of people who do what these two guys are insinuating:

In my mind, a traditional streaker has no sexual motive, but rather is violating a social norm. I have heard of other states where a public nudity is permitted as long as you are not sexually aroused, masturbating, or the like. Streaking should fall into this latter category.

Do I think the rules or going to change anytime soon? No. Arizona is a conservative state in general, and our legislature has more important issues to tackle than legalizing streaking. But it would be awesome if they did. Of course, if you are going to streak, be mindful of the likelihood that you will be videotaped or photographed while you’re doing it, and you may be at risk of being arrested for additional crimes such as trespassing and disorderly conduct.

If you want to know more about pulling off shenanigans like this legally, please check out my book Flash Mob Law, or you can contact me or connect with me on TwitterFacebookYouTube, or LinkedIn.

Summer Social Media PSA for Teens & Tweens

Texting by Jhaymesisviphotography from Flickr (Creative Commons License)

Texting by Jhaymesisviphotography from Flickr (Creative Commons License)

Summer is officially here! It’s hottest than Hades in Phoenix and the kids are out of school until August. I suspect that a lot of teens and tweens have a lot more free time than during the school year and they might be spending much of it glued to their cell phones and tablets. Here are my recommendations for having a summer without social media-based regrets:

Think before you post.

Think before you text.

Think before you chat.

Think before you tweet.

Think before you snap (a photo).

Think before you shoot (a video).

Think before you send (anything).

Remember, that there is a permanent record of everything post online or send to another person. You never know when someone is going to forward, download, screenshot what you thought was only going out to a small group or contained in a person-to-person communication. What you post or send doesn’t have the same emotional impact when we can’t hear the inflection in your voice or facial expression (especially sarcasm). You never know how a post will be interpreted out of context. What you thought was justified or funny in the moment may have long-term effects for you. (Just ask Justine Sacco – with one tweet she lost her job and appeared to anger the entire planet.)

Carter Law Firm's Postcards

These are my two rules of thumb regarding the internet:

  1. Don’t post anything online that you wouldn’t put on the front page of the newspaper.
  2. Assume everything you post online will be seen by four people: your best friend, your worst enemy, your boss, and your mother. If you don’t want someone to see what you’re thinking about posting, don’t put it out there.

These rules also apply to emails and text messages.

For anyone who is applying for jobs or college, those decision makers may be looking you up online. You want to be sure that what you post online is congruent with how you present yourself in-person or on paper. You don’t want to appear irresponsible or that you lack good judgement.

I’ve had to read the riot act to a teen who misbehaved online, and I would be happy to do it again if it means I can help prevent someone from posting something they’ll regret later. If you want to chat more about social media dos and don’ts, please contact me or connect with me on TwitterFacebookYouTube, or LinkedIn.

What Happened to Adult Wednesday Addams?

Haunted House by barb_ar from Flickr (Creative Commons License)

Haunted House by barb_ar from Flickr (Creative Commons License)

Earlier this year, I discovered Melissa Hunter’s “Adult Wednesday Addams” on YouTube. It’s a collection of short videos featuring Melissa playing a grown-up version of the iconic Addams Family character. In each video, Melissa dresses up like Wednesday Addams (black dress, long braids, pale skin, and deadpan attitude) and plays out everyday occurrences (like interviewing to be someone’s roommate and going to work) while embodying the Wednesday Addams character. She is a talented, smart, and funny writer.

Recently I noticed that all of Melissa’s adult Wednesday Addams videos were pulled from her YouTube channel. (You can still find them on others’ channels.) Apparently, Tee & Charles Addams Foundation, the copyright holder for the Addams Family, flagged her videos for copyright infringement after her video where Adult Wednesday Addams responds to catcallers gained attention by the international press.

So of course, my question in this situation is, “Are the Adult Wednesday Addams videos infringing on the original Addams Family copyright or are they protected by fair use?”

The law is complicated and there is no mathematical equation that will definitively show whether this is fair use. That is up to a court to decide based on the merits of the case. There are four main fair use factors. I created an acronym of the fair use factors when I spoke at Phoenix Comicon last year on fan art and copyright: PAIN.

P = Purpose and character of your use

A = Amount of the original used

I = Impact on the market

N = Nature of the work you copied

Here’s my take on how the fair use factors apply to this situation:

  • P (Purpose): Adult Wednesday Addams transforms the original Wednesday Addams character who was a tween in the latest Addams Family movie (Favors Melissa). I don’t remember if Melissa was running ads on her videos, but if she was, that would be a strike against her – but not a deal breaker (Favors Addams Foundation).
  • A (Amount): Compared to the entire Addams Family franchise, Melissa only used a single character (Favors Melissa) but compared to the copyright in the Wednesday Addams character herself, Melissa copied a substantial amount (Favors Addams Foundation). However, part of what makes Adult Wednesday Addams work is that we know that she is copying the original. That’s what makes it so funny, and parody is generally protected by fair use.
  • I (Impact on the market): Apparently there is a new project in the works for the Addams Family, but I don’t know if Melissa’s work will have any effect on that. Melissa’s videos are only a few minutes long, compared to the longer TV shows and movies created using the original characters’ story line. Her work is definitely not a viable substitute for those (Favors Melissa).
  • N (Nature of copied work): The Addams Family has been made into cartoons, a TV show, and movies. Melissa Hunter created short YouTube videos. Although these are both audiovisual works, they cater to different audiences (Favors Melissa).

Do I think what Melissa did was fair use? Yes. I hope she’s fighting the claim that her work is copyright infringement, and I hope whoever is working on the Addams Family remake offers to hire her. Remember, fair use is a defense, not a permission slip, so Melissa has to prove to the court that what she did was legal if she chooses to fight this.

Yesterday, Melissa released a video with an update about Adult Wednesday Addams:

I’m glad to see that Melissa is as sassy as ever and that she’s working on this while putting energy into new projects too. Keep wearing that dress!

Fair use cases are usually complicated. If you want to chat more about fair use and copyright, please contact me or connect with me on TwitterFacebookYouTube, or LinkedIn.

Creator Rights | Phoenix Comicon Recap

Photo by Scott Adams for Phoenix Comicon - sorry I had to crop out the Phoenix Comicon logo to fit the dimensions of my site. View the original here: http://bit.ly/1QqlW48.

Photo by Scott Adams for Phoenix Comicon – sorry I had to crop out the Phoenix Comicon logo to fit the dimensions of my site. View the original here: http://bit.ly/1QqlW48.

I had an awesome time presenting on Creator Rights at Phoenix Comicon this year with Javier Hernandez. His comic book series, El Muerto, was recently made into a movie and a fan created a fan film that was shown at the Con. It was really interesting to hear his story as an artist trying to muddle through the legalities of working in the arts with the help of his lawyer.

I don’t prepare much for my talks at Phoenix Comicon. I feel like it’s my job to be there to explain legal concepts in plain English and answer the audience’s questions about copyright, trademarks, contracts, and fan art. There’s always a fun smart audience with thoughtful questions. It’s a privilege to be invited back multiple times. Here are some of the highlights from this year.

You have Rights in your Original Creations
There is no legal protection for ideas but there is for original works of authorship once you’ve captured your ideas in a tangible medium such as paper or a digital file. The copyright laws were designed to protect original storylines and fully-formulated characters. I often recommend that artists at least register their “story bible” with the U.S. Copyright Office to maximize their legal rights related to their work.

Once you create a comic, you have the exclusive right to copy, distribute, display, perform, or make derivative works from your original work. That’s why the movie studio had to get the option (aka license) from Javier to make a movie from El Muerto, because a movie is a derivative work. Javier didn’t authorize the creation of the fan film and so when he went to see it, part of his motivation was to see if he wanted to exert his legal rights to stop the creators from showing it in other forums.

Protect your Trademarks
Someone in the audience shared a horrific story. He created a comic and after he started sharing his work with others, someone else started a similar comic – with the same name. Here’s the kicker, the second guy registered the name with the U.S. Patent and Trademark Office. What a nightmare. I told him to call a lawyer to try to sort out this mess.

A lot of beginning artists and people who create art as a hobby don’t understand their rights and how they can avoid problems like this by registering their trademark before their competition does. Or if they understand their rights, they don’t invest the money to file the proper applications with the federal government. These types of problems happen all the time. Check out what happened when two restaurants decided to call themselves “Burger King.”

When Contracts are Involved, Call a Lawyer
If you are lucky enough to create art that someone wants to buy or license, call a lawyer. The other side is going to present you with a contract that was written solely based on their interests. You need someone who is equally versed in entertainment contracts to represent you. Lawyers talk to lawyers – so hire someone who can explain the process, understand your priorities, and advise you of your options.

Javier and I had a fantastic time doing this panel – sharing our experiences and knowledge from the creator’s and lawyer’s perspective. It was a wonderful juxtaposition for the audience. I also did a panel at Phoenix Comicon on Fan Art/Fiction and Copyright. If you want to know more about that specific topic, check out this post I wrote last year with a handy mnemonic device.

If you have questions or want to chat more about creator rights, please contact me directly or connect with me on social media via TwitterFacebookYouTube, or LinkedIn.

Supreme Court Rules on Social Media & Free Speech – What It Means

Man Holding Laptop Computer Typing While Dog Watches by Image Catalog from Flickr (Public Domain)

Man Holding Laptop Computer Typing While Dog Watches by Image Catalog from Flickr (Public Domain)

Earlier this week, the U.S. Supreme Court released its ruling on the first social media free speech case.

Anthony Elonis was previously convicted for violating a federal law for posting threatening messages on his own Facebook page. The court that convicted him did so based on the negligence standard, which is whether a reasonable person would interpret his statements as threats.

The Supreme Court ruled that the lower court used the wrong standard in making its decision. A court can’t use the reasonable person standard to decide cases like this – it has to be higher standard than that.

So what happens now? The Supreme Court sent the Elonis case back down to the lower court. The lower court will have to decide whether it should apply the recklessness standard or whether it should examine Elonis’ intent behind the posts in question.

What does this mean for other cases, perhaps those involving domestic violence or cyber harassment? We’ll see. All we know now is that the court has to apply a higher standard than simply asking whether a reasonable person who interpret a statement as a threatening. We will have to wait and see what standard will ultimately apply.

Legal Side of Blogging Book CoverDo I think the Supreme Court made the right decision? Yes. Words are clumsy beasts, especially on social media where we deal with words without inflection and non-verbal cues to decipher what the speaker is saying. I don’t want to see people punished for being inarticulate when exercising their First Amendment right to free speech. We need to examine the statement in the context in which it was made when determining whether a statement violates a criminal law.

As always, think before you post. Don’t use this decision as a license to post whatever you want online. You can face serious repercussions criminally, civilly, and socially for what you post on the internet. If you want to read more about this situation, I highly recommend a post written by my fellow legal eagle, Mitch Jackson. If you’re looking for a resource about internet and social media law, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.

If you want to chat more about free speech and the internet, please contact me directly or connect with me on social media via TwitterFacebookYouTube, or LinkedIn.