If You’re Going to “Wing It” as an Entrepreneur

December 28, 2017 by Leave a Comment

“Yay!!” by Subharnab Majumdar from Flickr (Creative Commons License)

Plenty of entrepreneurs start out as a person or two, a business idea, and a shoestring budget. They know their craft but have limited or not experience starting or running a business. They don’t know what they don’t know – and that’s what gets them into trouble.

Many entrepreneurs employ the “we’ll learn as we go” approach to operating a business. Often times these are smart people, but if they get too focused on doing their business that they don’t take care of business within their operation, it can lead to costly mistakes: thousands of dollars in legal expenses and painful heartache to try to fix a problem that was completely avoidable.

Real-Life Facepalm Moments
I’ve had countless times where a business owner comes to me for help and I cringe and think, “We could have helped you avoid this if you had come to us sooner.” This is just a sample of my facepalm moments as a lawyer:

KAWS “At This Time” Sculpture by Guilhem Vellut from Flickr (Creative Commons License)

  • Owners who don’t create a business entity: put their personal assets at risk if the business gets sued;
  • LLC with multiple owners and no operating agreement: painful business “divorce” when things didn’t work out between owners;
  • Filing a trademark application with the USPTO that wasn’t trademarkable: the application might have had a chance if the description of the products and services was written more effectively;
  • Not filing a trademark and your competition files a trademark application that’s confusingly similar to or the same as yours: costly to make a claim against them and it may not be successful, which could force you to rebrand even though you were using it first;
  • Flawed customer contracts: doesn’t fully protect the company’s interests or address all likely contingencies;
  • Hiring a third-party contractor without a contract: if the person is hired to create an original work for the company, the company won’t own the copyright in what they hired the person to create and may have to pay to acquire it;
  • Working without a contract: so many problems. Whenever I get a call about a business deal gone bad, my first question is usually, “What does your contract say?” (Ideally, you want to be in a situation where, if the other side doesn’t perform as you agreed you can essentially respond with, “F*ck you, pay me.”)

If You’re Going to “Wing It”
If you are starting a business, my unsolicited advice is “Do your homework.” Invest the time to learn what goes into running your business and figure out what you don’t know. Reach out to established entrepreneurs to ask for their advice and avail yourself to resources in your community. In Arizona, we have dozens of these organizations like Arizona Small Business Association, Local First Arizona, and SCORE.

Even if you don’t think you can afford it, look into hiring a business and intellectual property lawyer for an hour. Bring them your ideas of what you want to do, and ask for their recommendations on how to make it happen. A good lawyer will respect your budget and tell you what you can do yourself and what you should hire a lawyer do for you. They can also recommendations resources to help you based on their experiences helping others.

If I’ve learned one thing as a lawyer it is that it’s easier and cheaper to prevent problems than to fix them.

True Story
Years ago, I worked with a new company where the owners hired me to create their operating agreement. I asked a lot of questions about things like intellectual property rights, compensation, and worst-case scenarios (e.g. disability of an owner) to create custom provisions for this document.

A few years later, the owners realized it wasn’t working out between then and decided to part ways. Their operating agreement dictated how they would address this situation, and they hired us again to revise the agreement to account for the exit of one of the owners. The process was professional, respectful, and cost-effective. I’m sure there were hurt feelings on both sides, but having this operating agreement helped the owners mange them and made for a smooth transition.

If you want more information about the legal dos and don’ts of starting and running a business, you can send me an email (Note: I can’t give advice to non-clients), and I maintain a mailing list where I share my thoughts about being a lawyer/entrepreneur, updates about projects I’m working on, upcoming speaking engagements, and I may provide information about products, services, and discounts. You can also connect with me on Twitter, Facebook, YouTube, or LinkedIn.

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The 10 Legal Commandments of Entrepreneurship

December 13, 2017 by 7 Comments

“Stained Glass Window Full of Light and Color” by Stock Photos for Free from Flickr (Creative Commons License)

Since becoming a lawyer in 2011, I’ve had the privilege of working with businesses on a variety of legal issues. Looking back at some of the most cringe-worthy moments I’ve experiences I’ve had and heard about from other business and intellectual property lawyers, I’ve come up with a list of the 10 legal commandments of entrepreneurship:

1. Thou shall have a business entity.

When you start a business, create a business entity – an LLC or corporation. Your accountant can tell you which option is best for you. By separating the business from your personal assets, you limit your personal liability if the business is sued. If you open a business without an entity (aka a sole proprietorship), you don’t have this layer of protection.

2. Thou shall maintain your corporate veil.

Creating a business entity is how you begin to limit your liability, and you perfect that protection with a “corporate veil.” This means having a separate bank account and credit card for the business, and the business accounts pay for business expenses and your personal accounts pay for personal expenses. This creates a clear delineation between where the company ends and the person begins in terms of your finances. If the company is sued and loses, it’s clear which assets belong to the company and your person assets are protected.

3. Thou shall have a signed contract at the beginning of a business relationship.

When you are hired by a client or hire someone, start with a signed contract. A contract is a relationship-management document. It is your master document that puts everyone on the same page regarding their responsibilities. This will help you avoid confusion and resolve problems. When a client comes to me with a problem with a customer, I often start by asking “What does your contract say?”

4. Thou shall be thoughtful and careful about looking online for a contract template.

Looking at templates online is a good place to get ideas about terms you might want to have in your contract, but don’t indiscriminately use any contract you find. You don’t know where it came from or whether it’s suitable for your needs.

5. Thou shall take the time to fully read and understand a contract before signing it.

Never be afraid to ask questions or request changes when considering a contract offered to you. Don’t sign anything you don’t understand, because if you sign it and later regret it, you may be stuck with it.

6. Thou shall respect others’ copyrights.

Do not use others’ work without permission. Create your own original content. It’s ok to be inspired by and quote others, but add something to the conversation. If we’re talking about images, do not pull any image you find using a regular Google search. Seek out sources that provide licenses for use, including images available under Creative Commons. If there is an image you want to use that’s not available, contact the copyright holder and ask for permission. To date, I’ve never had anyone say, “No.”

7. Thou shall check the USPTO before branding a company or product.

When entrepreneurs think “branding,” lawyers think “trademark.” The United States Patent and Trademark Office (USPTO) has a database where you can see what company names, product names, and logos others have applied for and registered for their products and services. You don’t want to fall in love with, or invest a lot of time and money in, a branding idea to find out that it’s already been claimed by someone else.

8. Thou shall outsource your taxes.

Every entrepreneur needs an accountant. Let them do what they’re good at.

In the time it would take you to try to do your own taxes, you could make more than enough money to pay an accountant to do your taxes for you.

9. Thou shall consult thy attorney.

Even when you want to do things yourself, talk to your lawyer to make sure you’re not setting yourself and your business up for future problems. My most cringe-worthy moments as a lawyer have been problems clients created for themselves that we could have helped them avoid completely if they had told us what they were thinking about doing. It is easier and cheaper to prevent legal problems than to fix them.

10. Thou shall act with integrity.

Put your energy into your own business, creating quality products or services for your audience.

You don’t need to stoop to bad-mouthing the competing, using trademarks that are confusing similar to others, or ride other’s coattails by doing things like using a web domain that will allow you to pull an audience based on someone else’ popularity (e.g., cybersquatting). Be so good at what you do that you don’t need to use others to make a name for yourself.

One last note: If you’re an entrepreneur, don’t be afraid to ask for help. Accountants help you make money, lawyers help you keep it, and your peers will share their experiences so you can learn from them. If you are an entrepreneur, or have plans to become one, I hope you have people around you who can help you be successful.

If you want additional information about the legal dos and don’ts of starting and running a business, I maintain a mailing list where I share my thoughts about being a lawyer/entrepreneur, updates about projects I’m working on, upcoming speaking engagements, and I may provide information about products, services, and discounts. Please add yourself if you’re interested. You can also contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn.

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Trademark Rights in Website Domains

March 7, 2017 by Leave a Comment

Business Entrepreneurs by Airsoftpal.com (Creative Commons License)

I regularly get questions about whether a person should use a business name based on whether their desired website domain in available. There is also the reverse – if a company has a registered trademark, is it a deal-breaker if you want to use a similar name for your business? For example, if a company has a registered trademark for The Ooga Booga and the domain theoogabooga.com for their children’s book series, does that mean you can’t have the domain, oogabooga.com for your business?

Ooga Booga is my default fake trademark when describing trademark concepts. As of this writing (3/5/2017), no one has a registered trademark in the U.S. for “Ooga Booga.”

Two Parts to a Trademark
There are two elements to every trademark – the mark itself and the product or service with which you are using it. It’s possible for two different companies to use the same trademark so long as the products and services with which they are using it are so different that no consumer will be confused about what they’re buying. That’s why it’s possible to have Delta Faucet, Delta Airlines, and Delta Dental. No one would think these products and services come from the same company.

Do your Homework when Selecting a Domain
When it comes to selecting your company or product name and the corresponding domain, be thoughtful. Do you some searches to see if other companies have similar domains and how they are using them.

If you see someone using a domain that is similar to yours, or a product or company domain that has a corresponding registered trademark, it’s not necessarily a deal-breaker for your business plans, but you may want to do further research. There’s nothing wrong with two companies have similar websites as long as you have a legitimate reason for using it and you’re not violating the other company’s rights.

Let’s say you wanted oogabooga.com as your website, examine the difference between your product or service and the registered trademark for The Ooga Booga. They sell children’s books; so as long as your product or service isn’t in the arena as children’s entertainment, education, or related products, you could be ok. Most likely, no one will think that your affiliated with this other company if you’re selling something like wetsuits, wine, or financial planning services.

If you’re in a situation where you don’t want other companies having a similar domain as yours, spend the money to buy these other domains. It’s cheaper and easier to have a slew of domains related to your product rather than invest time and money monitoring, sending cease and desist letter, or pursuing other legal action against these other companies.

Only the Trademark Holder is a Threat
The good news in this type of situation is only the person who owns the trademark or other intellectual property rights can go after you for suspected infringement. If they don’t know or don’t care about what you’re doing, you face any legitimate legal threats.

Of course, when in doubt, consult a trademark lawyer to discuss your thoughts about your business or product name and website domains. If you’re interested in discussing your trademark needs, you can contact me directly or an intellectual property lawyer in your community. I regularly post about legal issues impacting entrepreneurs on Twitter, Facebook, YouTube, and LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

More Information about Trademarks:

Photo credit: Airsoft Pal

Filed Under: Intellectual Property, Internet law Tagged With: , , , , , , , ,

Response to Star Trek Fan Film Guidelines

July 17, 2016 by 2 Comments
11/6/2015 - Taurid Meteor Shower - Joshua Tree , CA by Channone Arif from Flickr (Creative Commons License)

11/6/2015 – Taurid Meteor Shower – Joshua Tree , CA by Channone Arif from Flickr (Creative Commons License)

In light of the recent lawsuit between CBS and Paramount Pictures and a Star Trek fan film creator, CBS and Paramount released guidelines regarding fan-created films.

Previously, fan fiction movies were limited to camcorders and sets people created in their backyards, but now with computer animation and other technology, a fan could create an impressive work of fan fiction. You can see some earlier Trek fan fiction on the documentary Trekkies.

A friend asked me to weigh in on these guidelines. As a die-hard Star Trek fan, my legal interpretation may be slightly biased in favor of promoting fandom. Below are the guidelines in full with my comments in italics:

CBS and Paramount Pictures are big believers in reasonable fan fiction and fan creativity (I’m glad you support fan art/fiction. Star Trek is known for inviting fan-submitted scripts, but what do you mean by “reasonable?”), and, in particular, want amateur fan filmmakers to showcase their passion for Star Trek. Therefore, CBS and Paramount Pictures will not object to, or take legal action against, Star Trek fan productions that are non-professional and amateur and meet the following guidelines. (It’s nice when people tell you how not to get sued.)

Guidelines for Avoiding Objections:
1. The fan production must be less than 15 minutes for a single self-contained story, or no more than 2 segments, episodes or parts, not to exceed 30 minutes total, with no additional seasons, episodes, parts, sequels or remakes. Is this because you don’t want fan fiction to compete with the TV series and movies? I wonder if someone is less likely to make significant money from a one-off video vs. a series. I wonder if the copyright holder would have objected if Melissa Hunter only made one Adult Wednesday Addams video instead of two seasons.)

2. The title of the fan production or any parts cannot include the name “Star Trek.” However, the title must contain a subtitle with the phrase: “A STAR TREK FAN PRODUCTION” in plain typeface. The fan production cannot use the term “official” in either its title or subtitle or in any marketing, promotions or social media for the fan production. (This makes sense from a trademark perspective. With brands creating content in various genres, it’s important to avoid confusing viewers about what is/is not made by the brand vs fans.)

3. The content in the fan production must be original, not reproductions, recreations or clips from any Star Trek production. If non-Star Trek third party content is used, all necessary permissions for any third party content should be obtained in writing. (This makes sense because of copyright. It’s ok to copy ideas, but not the original work itself. This may be overstepping a little bit depending on how they define “recreations.”)

In my Starfleet uniform and Trill Make-up, 2000

In my Starfleet uniform and Trill Make-up, 2000

4. If the fan production uses commercially-available Star Trek uniforms, accessories, toys and props, these items must be official merchandise and not bootleg items or imitations of such commercially available products. (I understand that they want to promote their partners and don’t want fans being misled. However, it makes more sense to require disclosure of sources of props and costumes. Some fans prefer to have a tailor custom-make uniforms instead of buying them from commercial sources. And thank you for calling them uniforms, not costumes – as a fan and Starfleet officer myself, I appreciate that.)

5. The fan production must be a real “fan” production, i.e., creators, actors and all other participants must be amateurs, cannot be compensated for their services, and cannot be currently or previously employed on any Star Trek series, films, production of DVDs or with any of CBS or Paramount Pictures’ licensees. (What?! This seems overreaching and overly broad, especially considering that non-compete agreements are not permitted in California. Past and current employees can have non-disclosure agreements that limit their participation in other projects. Even a hobbyist has to pay for certain things – like a musician paying for studio time.)

6. The fan production must be non-commercial (This makes sense. Many artists approve of fan art as long as the person isn’t selling their work.):

  • CBS and Paramount Pictures do not object to limited fundraising for the creation of a fan production, whether 1 or 2 segments and consistent with these guidelines, so long as the total amount does not exceed $50,000, including all platform fees, and when the $50,000 goal is reached, all fundraising must cease. (Thank you for understanding that hobbyists have expenses – despite your contradictory term above.)
  • The fan production must only be exhibited or distributed on a no-charge basis and/or shared via streaming services without generating revenue. (Ok – so you can’t submit your video to film festivals or run ads on it if you post on YouTube.)
  • The fan production cannot be distributed in a physical format such as DVD or Blu-ray. (This makes sense given current technology. They want to protect their intellectual property.)
  • The fan production cannot be used to derive advertising revenue including, but not limited to, through for example, the use of pre or post-roll advertising, click-through advertising banners, that is associated with the fan production. (Fair enough.)
  • No unlicensed Star Trek-related or fan production-related merchandise or services can be offered for sale or given away as premiums, perks or rewards or in connection with the fan production fundraising. (This makes sense in terms of protecting their intellectual property, and also makes it more challenging to use fundraising sites.)
  • The fan production cannot derive revenue by selling or licensing fan-created production sets, props or costumes. (Agreed. This makes sense.)

7. The fan production must be family friendly and suitable for public presentation. Videos must not include profanity, nudity, obscenity, pornography, depictions of drugs, alcohol, tobacco, or any harmful or illegal activity, or any material that is offensive, fraudulent, defamatory, libelous, disparaging, sexually explicit, threatening, hateful, or any other inappropriate content. The content of the fan production cannot violate any individual’s right of privacy. (I understand no porn, but no illegal activities? What are the bad guys supposed to do? Even Star Trek episodes and films depictions of tobacco and alcohol and the films contain the occasional swear word.)

8. The fan production must display the following disclaimer in the on-screen credits of the fan productions and on any marketing material including the fan production website or page hosting the fan production:

“Star Trek and all related marks, logos and characters are solely owned by CBS Studios Inc. This fan production is not endorsed by, sponsored by, nor affiliated with CBS, Paramount Pictures, or any other Star Trek franchise, and is a non-commercial fan-made film intended for recreational use. No commercial exhibition or distribution is permitted. No alleged independent rights will be asserted against CBS or Paramount Pictures.” (This makes sense, but the last sentence suggests that CBS and Paramount may be able to use fan-created content without obtaining the creators’ permission.)

Hanging with the Klingons, Grand Slam Star Trek Convention, 2001

Hanging with the Klingons, Grand Slam Star Trek Convention, 2001

9. Creators of fan productions must not seek to register their works, nor any elements of the works, under copyright or trademark law. (What about the fans’ rights to protect their original works of authorship and their brands that don’t infringe on CBS or Paramount’s rights?)

10. Fan productions cannot create or imply any association or endorsement by CBS or Paramount Pictures. (Agreed.)

CBS and Paramount Pictures reserve the right to revise, revoke and/or withdraw these guidelines at any time in their own discretion. These guidelines are not a license and do not constitute approval or authorization of any fan productions or a waiver of any rights that CBS or Paramount Pictures may have with respect to fan fiction created outside of these guidelines. (This makes sense as long as CBS and Paramount don’t change the rules and go after a fan film creator who reasonably complied with the guidelines as written at that time.)

I appreciate that CBS and Paramount Pictures’ desire to protect their intellectual property and that put out guidelines to further this goal, but I wish they would be more fan-friendly. Hopefully this is only an over-zealous reaction to the recent lawsuit and not a sign of future legal battles between Star Trek and their fans.

If you have questions about the legalities of fan art/fiction or you just want to geek out about Star Trek, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

Filed Under: Geek Law, Intellectual Property Tagged With: , , , , , , , , , , , , , , , , , ,

What Went Wrong with Fate Brewing Company

June 20, 2016 by Leave a Comment
Photo Courtesy of Fate Brewing Company (Scottsdale, AZ)

Photo Courtesy of Fate Brewing Company (Scottsdale, AZ)

Earlier this month, Fate Brewing Company announced that they were changing their name to McFate Brewing Company.
Wait…what?! Is this awesome local brewery turning itself into some type of fast food brewery?
No, but they ran into a legal snag that forced the name change.

In 2012, Fate Brewing Company opened in Arizona. In 2013, someone else opened Fate Brewing Company in Boulder, Colorado. In legalese, the Fate Arizona is called the “senior user” of the name since they opened first and the Fate Colorado is the “junior user.” Despite being the junior user, Fate Colorado sued Fate Arizona for trademark infringement.

How Is This Allowed?
Easy: Fate Colorado registered the trademark “Fate Brewing Company” with the U.S. Patent and Trademark Office (USPTO). It’s the Burger King situation all over again.

By doing business first, Fate Arizona had rights to use “Fate Brewing Company” for beer and restaurant services, but since they didn’t register their trademark with the USPTO, their rights only extended to the geographic area where they did business. When Fate Colorado got their registered trademark, they obtained the exclusive right to use “Fate Brewing Company” for beer and restaurant services everywhere in the U.S. except where Fate Arizona had an established market. Likewise, Fate Arizona couldn’t expand its market beyond its established boundaries without infringing Fate Colorado’s rights.

I suspect Fate Colorado sued Fate Arizona for trademark infringement in part because their trademark was granted in 2013 and Fate Arizona South opened in 2015. Fate Colorado could have interpreted the new location as a market expansion that violated their trademark rights.

New Logo for McFate Brewing Company - opening June 25, 2016

New Logo for McFate Brewing Company, Photo courtesy of Fate Brewing Company

What’s Next for Fate Arizona?
Even though Fate Arizona could have made a legal argument that they had the right to use the name as the “senior user,” they have opted to take the high road to rebrand rather than spend hundreds of hours and thousands of dollars on this legal fight. The re-branding party for McFate Brewing Company (named after the owner, Steve McFate) is scheduled for June 25, 2016 according to Fate Arizona’s Facebook page.

I hope Fate Colorado wasn’t a jerk about this process. A company has an obligation to protect its intellectual property or risk losing it, but there is more than one way to pen a cease and desist letter.

How Could Fate Arizona have Avoided This Problem?
Yes. Fate Arizona could have beaten Fate Colorado to the USPTO and filed a trademark application before they did. They could have staked their claim to the name and gained exclusive right to use the name nationwide, shutting down Fate Colorado or forcing them to rebrand from their start.

Many new businesses are more concerned about getting off the ground than federal trademark filings, especially when the business only has aspirations of being a local brand. Unfortunately, this leaves them vulnerable to being boxed in geographically, called into court, or forced to rebrand like it did here.

If you have questions about your company’s trademark or how to select a trademark for your new venture, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

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Starting a Comic Book – What Does it Cost?

June 8, 2016 by 2 Comments
Atom vs. Ant-Man (334/365) by JD Hancock from Flickr (Creative Commons License)

Atom vs. Ant-Man (334/365) by JD Hancock from Flickr (Creative Commons License)

I had the privilege of doing two panels at Phoenix Comicon this year: Fan Art/Fiction and Fair Use and Comic Book Creator Rights. The latter was a panel with writer/artist Josh Blaylock. He has experience licensing others’ work and creating his own.

Someone in the audience asked us how much a person should set aside to cover legal fees when starting a comic book.

Create Quality First
If your goal is to create a comic book and possibly a business from it, start by working on your craft. You won’t have any legal issues if no one cares what you’re making.

Start with a Consultation
When you’re ready to take your work from a hobby to a professional endeavor, schedule a consultation with a lawyer. Choose someone with experience in entrepreneurship and intellectual property – business formation, copyright, contracts, and trademarks. You need someone who can help you understand when you need a lawyer. Expect to pay $200-350/hour for a lawyer’s time, more depending on where you live and the person’s experience level.

It doesn’t cost much to get started with a new venture, but you do want to be thoughtful about what you can afford and act accordingly. A good lawyer will respect your budget and tell you what you can do on your own, and when it’s imperative to hire a lawyer. For instance, in many states, it’s easy to file your own business entity. Check with your state’s corporation commission for instructions and the forms. In Arizona, you can file an LLC and complete the requisite publication for less than $100.

Nuts and Bolts information by Josh Blaylock

Nuts and Bolts information by Josh Blaylock

Protect your Intellectual Property
The most valuable asset in your work is your intellectual property. Before you fall in love with a name for your comic book, run a search on the USPTO trademark database to verify that someone else hasn’t claimed the same or a similar name. Even if you can’t afford the $225-325 filing fee to register your trademark at first, you can put a superscript “TM” next to your work’s name, logo, and anything else you claim as a trademark. The USPTO has videos about how to submit a trademark application if you want to try to file your own, but I usually recommend that clients have a lawyer shepherd their application through the process. If you want to do this, expect to pay an additional $1,000 for their time.

In regards to copyright, I tell my clients, it’s not if your work gets stolen, but when so plan accordingly. For a new comic book creator, my recommendation is to register each edition with the U.S. Copyright Office. Their website is not the most user-friendly experience, but you can hire a lawyer for an hour to walk you through your first registration and then you can submit your subsequent copyright applications by yourself. The filing fee for a single work is $35-55.

Manage Relationships with Contracts
Every relationship related to your business should be documented with a written signed contract. This applies to co-owners of your business, writers, artists, colorists, licensors, licensees, vendors, and if your comic book turns into a job offer, your employment contract. Contracts are relationship-management documents. They keep everyone on the same page in regards to expectations, compensation, ownership, and they provide a course of action if there is ever a dispute. A contract is an investment and worth the cost to hire a competent lawyer to write or review your document to ensure it is effective for your needs.

Additionally, every entrepreneur should watch the video Fuck You, Pay Me, featuring Mike Monteiro and Gabe Levine. They have excellent advice for all entrepreneurs, especially those who work in creative services.

If you want more information about the nuts and bolts of starting a comic book, check out Josh Blaylock’s book How to Self-Publish Comics: Not Just Create Them. If you want more information about the legalities of starting a business or working in the creative arts, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that’s shared only with my mailing list, by subscribing to the firm’s newsletter.

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Stolen Images: How to Respond if Someone Uses your Photo Without Permission

May 5, 2016 by Leave a Comment
Caught in the Act by *sax from Flickr (Creative Commons License)

Caught in the Act by *sax from Flickr (Creative Commons License)

What should you do if you discover that someone is using a photo you took without your permission? As the person who took the photo, you are likely the copyright owner, which gives you the right to control where and how your work is copied, distributed, displayed, and used in other works. You may have grounds to sue the person for copyright infringement, but that’s often not a practical course of action, especially if your damages are minimal or the alleged infringer doesn’t have means to pay you the damages.

In many cases, the owner simply wants the person to stop using their image, so what do you do? If your goal is removal of the photo and cessation of further uses, this is one way to proceed.

1. Dial Direct: Contact the suspected infringer directly, inform him/her of your concerns, and request that they remove the image. Many people still believe that they can use any image they find on the internet as long as they give an attribution and a link to the original.

Look for contact information on their website if that’s where the alleged infringement is occurring. If that information is not available, it might be listed on WhoIs from when the person registered the domain.

2. Send a DMCA Takedown Notice: If you can’t contact the person or they don’t respond to your request to remove your image, you can send a DMCA takedown notice to the company that hosts their content. If the image is on a person’s website, be aware that the company that registered the domain is not necessarily the same company that hosts the site. Before I send a DMCA takedown notice, I usually contact the hosting company and verify that they host the site in question. I also ask if there’s a specific email address to use to send DMCA notices or if they have a form on their site for submitting them.

The downside of sending a DMCA takedown notice is that it may result in the image being removed, but only for a short time. The infringer can have the content restored to their site merely by sending a counter takedown notice.

3. Consider the Court or the Court of Public Opinion: If sending a DMCA takedown notice is not effective, you may have to sue the person to get the image removed from their site or account. You may also consider turning to the court of public opinion. If you pursue the latter option, be careful about what you say. You don’t want this person to have grounds to sue you for defamation, false light, or a similar claim.

If you’re interested in seeing an epic copyright battle that was fought in the courts and the public eye, I recommend The Oatmeal vs. FunnyJunk. Be sure to read this update, this one, and this one too.

Of course if you’re in this type of situation, it’s best to consult a copyright lawyer to determine the best course of action based on your specific circumstances. If you want to talk with me about copyright issues, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content, entrepreneurial tips, and rants that are available only to people on my mailing list, by subscribing here.

Filed Under: Featured Post, Intellectual Property, Internet law, Photography & the Law Tagged With: , , , , , , , , , , , ,

YouTube Reinstated my Video

November 30, 2015 by Leave a Comment
Webtreats - 272 YouTube Icons Promo Pack by webtreats from Flickr (Creative Commons License)

Webtreats – 272 YouTube Icons Promo Pack by webtreats from Flickr (Creative Commons License)

Last month, YouTube pulled one of my videos within hours of it being released. My videos are typically uploaded in advanced and released early every Wednesday morning. That was the strangest message to wake up to.

The weird thing was that the videos on this challenge are mostly Q&A for legal questions about business, intellectual property, and internet law. Occasionally, I talk about more risqué topics like revenge porn and legal issues related to posting or sharing intimate photos and videos, but this video was about publicity rights. (The question I received was poorly phrased. As written it sounded like he/she could have been asking about human trafficking, but I’m pretty sure they were asking about the right of publicity.)

Since life is blog material, instead of posting the video that day, I posted about how YouTube pulled my video for allegedly violating their Community Guidelines. I do not know if someone reported my video as offensive or if an automatic process within YouTube detected suspicious verbiage and removed it automatically.

Initially, I was going to let it go, thinking “Their site, their rules;” but a friend suggested I appeal the decision. (I wish I could remember who suggested this! Thank you!) I went into the firm’s YouTube channel and submitted an appeal with a short note explaining that the purpose of the video was a discussion of publicity rights, not an endorsement of human trafficking. About a day later, I received the following response:

Thank you for submitting your video appeal to YouTube. After further review, we’ve determined that your video doesn’t violate our Community Guidelines. Your video has been reinstated and your account is in good standing.

In case you missed it, here’s the video that led to this predicament:

I’m glad this situation has a happy ending. The lesson I learned from all of this is that it’s worth it to appeal YouTube’s decision if you think a video was pulled in error. If you have any questions about a YouTube video or any other questions about social media law, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn.

Filed Under: Internet law Tagged With: , , , , , , ,

Why Taylor Swift Won

November 16, 2015 by 2 Comments
Taylor Swift 092 by GabboT from Flickr (Creative Commons License)

Taylor Swift 092 by GabboT from Flickr (Creative Commons License)

A few weeks ago, Jesse Braham sued singer Taylor Swift and her record label for $42 million for copyright infringement, alleging that she copied the lyrics from his song “Haters Gone Hate” in her song “Shake It Off.” Braham claimed to be the author of the phrases “Haters gone hate” and “Playas gone play,” which are similar to the lyrics in Swift songs. He claimed that Swift never could have written her song if it wasn’t for his. (Note: There are no other obvious similarities between these two pieces of music.)

Last Friday, United States District Court Judge Gail Standish dismissed the case in a brilliant fashion, saying, “At present, the Court is not saying that Braham can never, ever, ever get his case back in court. But, for now, we have got problems, and the Court is not sure Braham can solve them.”

So why did Taylor Swift win this case, legally speaking? (Anyone who read the article about the lawsuit probably thought Braham had no basis for bringing the claim.) Under the U.S. Copyright Act, to get a copyright, you need an original work of authorship that is fixed in a tangible medium. Writing lyrics for a song on paper or creating an mp3 of a song would each qualify as a copyrightable work. Short phrases are typically not original enough to quality as an “original work of authorship.” That’s why Paris Hilton couldn’t get a copyright for “That’s hot.”

If Braham had a copyright in “haters gone hate,” he could stop anyone from using the phrase unless they bought a license from him. As far as I know, he only went after Swift for infringement.

Braham also wanted credit as an author of “Shake It Off.” I suspect he was hoping for a similar outcome as the Sam Smith/Tom Petty case over Smith’s song “Stay with Me” where Petty was credited as a co-author in the settlement.

My question in this situation was, “What lawyer would take on case?” It’s a violation of the Rules of Professional Responsibility for a lawyer to file a lawsuit if their client doesn’t have a case. It turns out, Braham didn’t have a lawyer. He filed the lawsuit by himself. He also requested that the court waive the filing fees, saying that he had not had a job since 2006.

If you believe that someone is violating you copyright, please contact an intellectual property attorney in your community. These cases have to be evaluated on the facts of each situation. If you want to chat with me about a specific question related to copyright law, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn.

Filed Under: Intellectual Property Tagged With: , , , , , , , , , , , , ,

Independents Week Specials at Carter Law Firm

June 27, 2013 by 2 Comments

Carter Law Firm Independents Week 2013One of the things I love about being a solo attorney in Phoenix is I get to be part of Local First Arizona. This is an organization for locally-owned businesses and it’s a great place to meet and connect with amazing professionals in the state.

Independents Week is coming up June 30 – July 7, 2013. Local First created the Golden Coupon program for this week to celebrate these businesses and give you another reason to check out the independent businesses in your community. Dozens of businesses will be giving patrons a 20% discount if they shop with a Golden Coupon during Independents Week. Dozens of Local First members all over Arizona are participating. Check out the full list on the Local First website and my list of places I’m excited to visit on The Undeniable Ruth.

After seeing the success of last year’s Golden Coupon program, Carter Law Firm is participating in this year’s program and offering 20% off legal consultations. Since there are only so many hours in the day, the firm only requires you to contact us during Independents Week to get in on the discount. You can schedule the consultation itself anytime in July 2013 and use your Golden Coupon.

Here’s how to use your Golden Coupon with Carter Law Firm:

  1. golden-couponPrint the Golden Coupon from Local First Arizona.
  2. During Independents Week (June 30 – July 7) contact the Ruth and say you want to book a legal consultation with your Golden Coupon.
  3. Schedule you appointment for any mutually agreed upon time during July 2013.

Please note, that you should schedule an appointment to talk about your business, intellectual property, social media, or flash mob law needs. All other legal questions are outside the firm’s scope of practice.

Don’t forget to check out all the other locally owned businesses that are participating in the Golden Coupon program. This is a great opportunity to try out a new place or revisit a business you love in your community.

You can connect with me on Twitter, Google+, Facebook, YouTube, LinkedIn, or you can email me. You can also subscribe to the Carter Law Firm newsletter.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: News Tagged With: , , , , , , , , , , , , , , , ,
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