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  • On Break

     

    IStock-1334410038 - GTTLJ Hiatus.jpg

    After writing over 250 posts on the Guide Through the Legal Jungle Blog, I am taking an indefinite hiatus from regular postings.

    Rest assured that the vast majority of the blog's content remains relevant and valuable, so I invite you to explore and benefit from the existing articles.

    Meanwhile, I continue to offer rights clearance attorney services through my law firm practice, leveraging my in-depth knowledge and experience to help clients navigate the complexities of rights clearance. Should you need my assistance, please reach out via the website for The Law Office of Joy R. Butler.

    Warm regards,
    Joy Butler

  • Infographic – Music Licensing.

    Music Licensing is not rocket science. But it's not intuitive either. This infographic illustrates some of the broader principles for music licensing under United States law.

    Music Licensing Infographic

     

    The downloadable pdf can be printed onto one sheet of legal-sized paper. Download Music Licensing Infographic – by Joy Butler Esq.

  • Options for Responding to Negative Online Comments, Reviews, and Defamation

    Someone posts online a critical comment about you or your company, and it is having a negative impact on your business. What can you do?

    Reality Check. Realize that not every critical comment qualifies as a defamatory or libelous comment that merits legal action. To be defamatory, the statement must be false. The First Amendment protects our rights to express our opinions and to share (truthfully) any bad experiences we have with a business. The First Amendment even protects us if we share those opinions and experiences in a tasteless, mean way. Here is a comparison of critical statements that are defamatory versus critical statements that are non-defamatory. If you are on the other side and want to express (truthfully) your outrage about a situation, here are examples of good (and not-so-good) word choice suggestions as a guide to staying on the non-defamatory side of the line.

    Outreach to Poster. If you view the poster’s complaint as having some validity; and you can remain calm and objective in your communications, it might be worthwhile to engage the poster in a constructive dialogue. Some companies view customer complaints/feedback as an opportunity to showcase their customer service prowess and uncover improvements for their products/services.

    Platform Assistance. Some online platforms will work with you to remove comments that are defamatory, violate the platform’s terms of service, or are otherwise inappropriate. However, federal law insulates platforms from liability for defamatory statements made by visitors. Hence, platforms like Yelp, Amazon, Facebook, etc. have discretion in what they deem as inappropriate and whether they will remove it. Many lawsuits attempting to force social media platforms to remove material are unsuccessful.

    Positive Statements. One method of diluting a negative review or comment is to seek favorable reviews. But be careful. As I will discuss further in a future posting, there are right and wrong ways to request online reviews. Doing it the wrong way can lead the Federal Trade Commission to conclude that you have violated its Guides Concerning the Use of Endorsements and Testimonials in Advertising.

    Reputation Management Companies. There are companies that specialize in repairing one’s online reputation. However, if you do use such a company, be mindful that some companies in this space might use questionable tactics and provide sub-par service. Check references and use due diligence prior to selecting one with which to work.

    Lawsuit. If the online statement is libelous, you can pursue a claim against the specific person who made the comment. Even if the person posts anonymously, there are methods of legally requiring the platform to reveal the name/contact info of the anonymous poster. When considering this course of action, one has to evaluate whether a lawsuit against the person is even worthwhile (e.g., what is the primary objective? If it is money, does the person have the resources to pay a monetary penalty if your lawsuit is successful?).

  • When Another Company Duplicates Your Tagline

    Your company has been in business and using the same tagline for a number of years. Another company begins using the same tagline. What are your options?

    While some might mistakenly refer to the issue as a copyright issue, it is actually a trademark or unfair competition issue. Briefly, copyright law protects original creative material such as books, films, visual art, and even magazine columns. Trademark law protects one’s exclusive use of an identifier (e.g., branding) for the source of a specific product or service. The trademark-protected identifier can be a word, phrase, design, shape, color, – and, yes, a tagline.

    When evaluating whether the other company’s use of an identical tagline violates your trademark rights and whether legal action is warranted, you should ask yourself the following questions:

    1) Are you actually using the tagline in a manner that qualifies for trademark protection? This requires using the tagline in commerce. Many business owners don’t fully understand that trademark use in commerce requires using the trademark in connection with offering for sale the business’ good or service. It is not sufficient to use the company name, logo, or tagline on company letterhead or business cards. Instead, the company name, logo, or tagline must appear on the product or the product’s packaging. If the trademark is used with a service, the trademark must appear with advertising for the service.

    2) If you have trademark rights, have they actually been infringed? Just because a company has trademark rights, those rights do not absolutely prohibit anyone else from using the same name, logo, or tagline. A business owner can prevent others from using her trademark only if the other use is confusing. The same exact trademark you use can be used on a substantially different product or in a substantially different industry. That’s why Delta Airlines can co-exist with Delta Faucets and Outback Cars can co-exist with Outback Steakhouse.

    3) Have you registered your trademark? Registration is not a prerequisite for valid trademark rights. You instantly develop trademark rights by being the first to use the trademark in commerce in a particular geographic region. Nevertheless, federal registration of the trademark with the United States Trademark Office does provide a trademark owner with a number of additional benefits including nationwide exclusivity in the trademark, increased powers to enforce trademark rights, and eligibility to receive higher damage awards from the infringer if your trademark infringement lawsuit is successful.

    My book, The Cyber Citizen’s Guide Through the Legal Jungle, includes guidelines for determining if you have trademark rights and whether they have been violated. It also includes fully annotated examples of completed trademark registration applications.

  • The Malformed Referral Contest Promotion. How to Fix It. Part Two.

    In my last blog posting, Autopsy of a Malformed Referral Contest Promotion. DOA., I deconstructed the potential legal and public relations problems a local business generated for itself with a lead-generating promotion. In this posting, I discuss how one might fix that malformed promotion.

    Brevity Is Not Always a Good Thing

    In the malformed promotion, a local gym seeking referrals for new gym members used the following three sentences to describe its referral promotion:

    For every member you refer, you’ll receive one ticket for a drawing. For every referral that joins, you’ll receive two additional tickets. Once we hit 20 members, we will draw two prizes, one for the member that has brought in the most members, and the other will be drawn randomly from all tickets.

    Mistakes Were Made

    The gym made several of the mistakes included on my list of the 10 Common Legal Mistakes for Contests and Sweepstakes Promotions including the following:

    1) The gym’s promotion (arguably) combined the elements of chance, consideration, and prize so that some states might view the promotion as an illegal lottery.

    2) The gym did not provide entrants with complete rules for the promotion. This included a failure to explain how to enter and a failure to identify the prize.

    3) The gym did not offer a free alternative method of entry.

    The full analysis of the promotion’s mistakes is here.

    One Potential Method to Fix this Malformed Promotion

    Because of the consideration and skill/chance questions (discussed in Part One), I would discourage trying to structure this referral promotion as a contest or as a sweepstakes. Instead, I would explore a “you do this for us, and in exchange, we’ll do this for you” promotion.

    For example, the gym could give every patron who refers a new member a complimentary personal training session, a free class that normally comes only with premium membership, a complimentary tropical smoothie from the juice bar – you get the idea. Of course, a business following this approach must still ensure that this exchange promotion does not trigger (or, if it does trigger, complies with) any of the federal and state laws applicable to gift cards and loyalty programs or any industry- specific regulations. For example, in some industries such as real estate and insurance, it is not permissible to pay anything to anyone for the production of business unless that person is licensed in the industry.

    A Real-Life Example of this Approach

    Refer a friend and Save $20.

    All you have to do to start saving is refer ABC Company to a friend or neighbor. When your referral contacts us to schedule their free, no obligation consultation they must give your name as the referring customer. After your referral schedules service with ABC Company, you will receive a $20.00 credit toward your account. There is no limit to the number of friends or neighbors you recommend or the amount you can save.

    This real-life example of the “you do this for us, and in exchange, we’ll do this for you” promotion works well for the service company offering it. Unlike the malformed promotion, the ABC Company promotion explains exactly how to participate, identifies the incentive, and has no element of chance or randomness (as viewed in promotion law terms).

  • Autopsy of a Malformed Referral Contest Promotion. DOA. Part One.

    With just three sentences, a local business seeking leads for new customers illustrates how a seemingly simple promotion can generate legal and public relations complications when not structured properly. In this malformed promotion, a gym seeking new members described its lead-generating promotion to potential participants with the following three sentences:

    For every member you refer, you’ll receive one ticket for a drawing. For every referral that joins, you’ll receive two additional tickets. Once we hit 20 members, we will draw two prizes, one for the member that has brought in the most members, and the other will be drawn randomly from all tickets.

    So what’s wrong with this promotion? Wow, where do I start?

    THE BASICS

    For this discussion, you need to know that valid contests and sweepstakes may not combine the elements of prize, chance, and consideration. A promotion offered by a business may have one or two of these elements but it may not have all three:

    • prize + chance = legal sweepstakes
    • prize + consideration = legal contest (in most jurisdictions)
    • prize + consideration + chance = illegal lottery or gambling

    THIS PROMOTION IS NOT A CONTEST OR A SWEEPSTAKES

    This business is actually offering two separate promotions – and each is poorly formed. The first promotion offers a prize to the person who brings in the most members. The second promotion selects a winner randomly from the people providing referrals.

    Promotion One. The first promotion offers a prize for the “member that has brought in the most members”. This aspect of the promotion is trying to be a contest but it potentially fails due to the existence of prize, chance, and consideration. Some of the elements are easier to identify than others.

    Prize. Easily identifiable. The business offers a prize for the promotion participant whose referrals generate the most new memberships.

    Consideration. In this promotion, individuals receive a ticket in exchange for generating referrals and new memberships. Consideration is not limited to currency. Hence, some states might interpret this exchange as the individual providing payment (or consideration) for the ticket. While most states allow contests to charge an entry fee, the sponsor of the contest-with-an-entry-fee must select the winner based on a skill demonstrated by the winner. As discussed in the next paragraph, Promotion One arguably does not select the winner based on skill.

    Chance. When a promotion charges consideration (which can be money or something else of value), the contest winner must be selected based on skill; not based on chance. The “chance or skill” issue is ambiguous in a promotion where the prize is awarded to “the member that has brought in the most members”. Is it a skill to generate new memberships? The answer depends on state law with some states likely to conclude that generating new memberships is NOT a valid skill for the selection of a contest winner.

    Prognosis for Promotion One. The ultimate prognosis for Promotion One depends on the interpretation of law in the relevant state. For Promotion One to be legal, the applicable state must accept one or both of the following

    1. Receiving an entry into a contest in return for generating referrals and/or memberships for the business sponsoring the contest does not constitute paying consideration (or an entry fee) for
    2. Offering referrals that result in new memberships is a valid skill for a contest.

    In states accepting one or both of these propositions, Promotion One is a valid contest since it does not have all three elements of prize, chance, and consideration. In states rejecting both propositions, Promotion One combines the three elements of a prize, chance, and consideration, and is, therefore, an illegal lottery.

    Promotion Two. By awarding a prize to an individual drawn randomly from all tickets, Promotion Two is attempting to be a sweepstakes. Sweepstakes may have the elements of prize and chance but not consideration. The existence of prize and chance are clear in Promotion Two. The sponsor bestows a prize to a winner. The random drawing constitutes chance.

    The existence of consideration is questionable. As discussed above, some jurisdictions might regard the exchange of promotion tickets for referrals as payment of consideration for the ticket. In such jurisdictions, Promotion Two is an illegal lottery as it combines prize, chance, and consideration.

    PROMOTION DOES NOT EXPLAIN HOW TO MAKE A REFERRAL

    The promotion offers a ticket in exchange for a referral. But what qualifies as a referral?

    Suppose Michael is staffing the welcome desk and, as he checks me in, I mention that my co-worker Jen Smith is looking for a new exercise routine and might be interested in the gym. Is that a referral?

    Can I just email the gym my Outlook contact list as an email attachment (NOT something I would do) and have each of the 430 people listed count as a referral that gets me a promotion ticket?

    Does my friend need to come into the gym and take a tour to qualify as a referral? Can my friend come by himself and just mention my name, or do I need to bring my friend and physically make the introduction.

    PROMOTION DOES NOT IDENTIFY THE PRIZE

    What is the prize! Is it three extra towels lying around the locker room? A nice bracelet that’s been in the lost and found bin for a few weeks?

    At a minimum, the business should tell participants the value of the prize. After ten of my friends join the gym adding a combined $10,000 to the gym’s annual revenue, I might not be satisfied finding out after-the-fact that my “prize” is a free tropical smoothie from the gym juice bar (even if that smoothie does retail for an outrageous $9.50).

    IS THERE REALLY ANY RISK?

    Do these missteps really generate any risk for a simple promotion targeted to local customers of a small business, you might ask.

    There are federal and state laws regulating contests, sweepstakes, and other promotions. I advocate compliance with all those laws and regulations. Nevertheless, for a promotion in which the dollar amounts, number of participants, geographic region, and publicity outreach remain limited, it is possible that a poorly structured promotion will not generate much attention from federal and state regulators.

    A more palpable risk comes from the promotion’s participants. If participants believe that the undisclosed prize is not commensurate with their efforts, do not have their recommendations count as referrals, or otherwise feel the business has not treated them fairly, those promotion participants become dissatisfied patrons.

    Dissatisfied patrons might stop doing business with the company, give the company bad online reviews, and warn their friends to avoid the business – the opposite effect of what the business hoped to achieve with its promotion. A huge step in preventing a business promotion from generating such dissatisfaction is having adequate rules, and making promotion participants aware of those rules.

    In a worst case scenario (where the administration of the promotion incorporates some “unfair business practices” – albeit inadvertently) – those customers might report the business to the better business bureau, the state attorney general office, or consumer protection bureau – or, less likely but by no means impossible, even file a lawsuit against the business. At that point, federal and state regulators just might become more interested in the simple promotion targeted to local customers of a small business.

    IN PART TWO OF THIS BLOG POSTING, I WILL DISCUSS HOW TO FIX THIS MALFORMED REFERRAL CONTEST PROMOTION

  • A Few Social Media Etiquette Guidelines

    I shared social media business (and legal) etiquette tips as a panelist at a seminar offered at a JA New York jewelry industry trade event. The seminar moderator, Ashley Davis, an Associate Editor at National Jeweler, eloquently described the environment for companies building an online presence:

    Social media is a new frontier for businesses, one that is essential to survival in the tough retail market, but it’s also an arena without established mores to guide proper behavior.

    Here is a summary of my response to Davis’ question about ground rules for a company’s online presence. Since seminar attendees consisted primarily of retail, manufacturing and design professionals from the jewelry, my remarks focused on the jewelry industry. However, the guidelines for appropriate social media conduct apply to many industries.

    You want to make sure that your online activities are legal and are not violating anyone’s rights Some of the subject areas for potential pitfalls include violating someone’s copyright, trademark, and publicity rights; and offering a promotion that violates the law. Here are a few examples of social media activities likely to land you in legal trouble.

    Undisclosed Endorsements

    Paying people who are influential in the jewelry industry to post pictures of themselves to social media wearing your designs without disclosing their relationship to you is illegal and can result in a contact from the Federal Trade Commission (FTC) inquiring about your failure to comply with its Guidelines concerning endorsements and testimonials.

    For the same reason, running a promotion where you promise customers a 15% discount on their next purchase if they bring in a screen shot of their positive Yelp review of your store – can yield an inquiry from the FTC if the incentive for that positive review is not disclosed.

    (Inaccurate) Implied Celebrity Endorsements

    Let’s say Angelina Jolie or Meryl Streep or [you fill in the celebrity] visits your store and makes a purchase, you take a picture of Angelina or Meryl and post it to Twitter or Facebook with the caption “Look who’s shopping at our store” without the permission of the celebrity. That has the potential of generating a lawsuit claiming that you violated the celebrity’s publicity rights.

    One high-profile 2014 example started with a paparazzi photo capturing actress Katherine Heigl leaving a New York Duane Reade drugstore and carrying bags from the store. Duane Reade posted the image online with the caption “Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.” Heigl launched a lawsuit alleging violations of the federal Lanham Act as well as the New York civil rights statutes and seeking $6 Million in damages. Duane Reade and Heigl eventually settled.

    Online Sweepstakes

    You offer an online sweepstakes. Each time a customer makes a purchase at your online store, they are immediately entered into a random drawing for a complimentary day at the spa with all the treatments. If your sweepstakes does not offer a method to enter that does not require payment, it is not a sweepstakes. It is an illegal lottery because in exchange for a payment, the customer received an opportunity to win a prize where the winner of the prize is selected randomly. To change it back into a legal sweepstakes, you need to remove the required payment. You can usually accomplish that by offering a free method of entry.

    In a recent blog posting, I deconstructed a real example of an illegal lottery masquerading as a legal sweepstakes and provided options for remedying the problem.

    Promotional Videos with Infringing Music

    You put together a short video promoting your store. To make the video more interesting, you rip a copy of your favorite song and pop it into your video as the soundtrack. As previously discussed on this blog, adding music to your company video can generate legal problems.

    Suppose you post your promotional video online. If posted to YouTube, there are some YouTube specific reasons [i.e., YouTube’s Content ID System] why such posting might not be problematic. On other online platforms or when YouTube exceptions do not apply, a common scenario is the music copyright owner issuing a take-down request and removal of your video from the platform. A worst case scenario is the music copyright owner suing you for copyright infringement.

  • Protecting Your Recipes. What Culinary Professionals Want to Know.

    Cookbook authors, food bloggers and recipe developers have many questions about protecting, sharing, and adapting recipes. In this blog post, I respond to the 28 questions submitted by culinary professionals during my recent webinar sponsored by the International Association of Culinary Professionals.

    Potential methods of protecting recipes include copyright, trade secret, contract, and patent. My webinar comments and this blog posting focus on copyright which is the most utilized form of protection for recipe protection. (I briefly discuss potential recipe protection offered by trade secret, patent and contract law here.)

    BASIC PRINCIPLES

    Here is a summary of the key points I shared during the webinar, broken down into five principles. In the next section below, my responses to the questions will refer back to these five principles.

    Principle One. Many Recipes Do Not Qualify for Copyright Protection. A recipe that simply lists ingredients and basic cooking directions is not protected by copyright law. That is because copyright law does not protect basic facts, procedures or processes. As an example, the following recipe is NOT protected by copyright.

    Cranberry Gelatin Mold

    Ingredients:

    • 6-oz package of strawberry-flavored gelatin
    • 8 ounces of crushed pineapple
    • 12-ounce can of whole cranberries

    Preparation Instructions:
    Dissolve the gelatin in 2 ½ cups of boiling water. Add the pineapple and cranberries. After the mixture cools, transfer it to a bowl and chill in refrigerator until firm. If desired, garnish with whipped topping before serving.

    A group of recipes (e.g., a cookbook, the entire content of a food blog) might qualify for copyright as a compilation even if the individual recipes do not qualify for protection on their own.

    In contrast to the ingredient list and directions for cranberry gelatin mold above, a recipe that incorporates expressive elements might qualify for copyright protection. For a recipe, expressive elements might be suggestions for presentation, advice on wines, and information on the origin of the dish.

    Principle Two. When Available, Copyright Protects Only the Text of the Recipe. Copyright protection of a recipe protects only the text. That means you cannot offer a verbatim or substantially similar copy of a copyright-protected recipe in your own cookbook or website without the copyright owner’s permission or without an applicable exception to copyright protection.

    Principle Three. A Recipe that Is Not Copyright-Protected Can Be Copied with No Legal Copyright Consequences. Of Course, There Is a Caveat. If a recipe is not copyright-protected, anyone can duplicate the text of that recipe without violating any copyright laws. However, if you duplicate the recipe by making a photocopy of the book or magazine page or screen-print of the webpage on which it appears, your copy of the recipe might pick up elements of the book design or webpage that do qualify for copyright protection (e.g., illustrations, book layout, webpage design elements). Your capture of those copyrighted elements might qualify under the copyright fair use exception; however, it depends on the specific circumstances of your use. (See Principle Five)

    Principle Four. Copyright Does Not Prohibit Anyone from Cooking or Preparing the Recipe. Copyright protection does not prevent you from making and offering a dish based on the same recipe – even if you offer the dish for sale. Likewise, copyright protection does not prevent you from extracting the raw information offered by the recipe – such as the list of ingredients and the preparation instructions – and using that information in your own recipes. (This situation might be different for a recipe protected by trade secret, by patent – and to a lesser extent by contract.)

    Principle Five. Duplication of Copyrighted Materials Usually Requires Permission from the Copyright Owner. As a general rule, you should obtain permission before using another person’s intellectual property. This applies to duplication of a copyright-protected recipe as well as other materials protected by copyright such as images, music, films, etc. Exceptions include a use protected as a First Amendment use, as a fair use, or as a parody use. Application of these exceptions is very fact- specific and often subjective. As a bottom line, if you use someone’s copyrighted protected material without consent, there will always be some level of risk – even though the risk might sometimes be minimal. You can find some questions here to help you evaluate the risk of using copyrighted material without permission.

    RESPONSES TO QUESTIONS ABOUT RECIPE PROTECTION

    These are my responses to the 28 questions and comments submitted by the culinary professionals attending the IACP Protecting Recipes webinar. To minimize duplication, the following responses refer back to the five recipe protection principles outlined above.

    COPYRIGHT PROTECTION AND COPYRIGHT REGISTRATION FOR RECIPES

    1. Where do headnotes fall in all this? Does the headnote make the recipe different enough to be copyrightable? I understand headnote to mean descriptive text about the recipe. A headnote might provide the expression necessary for copyright protection. (See Principle One)

    2. Can recipe photos be copyrighted? Yes, copyright law protects photos and images.

    3 &4. What is the process and cost of filing a copyright registration? AND How does one register a copyright (specifically for a recipe)? As outlined in the blog posts on Copyright Protecting Your Work, Part One and Part Two, to register your copyright, you must submit three items to the Copyright Office: a completed application, a deposit, and a filing fee. and. As of this writing, the copyright registration filing fee for a basic registration starts at $35. For additional assistance with preparing a copyright registration application, the Copyright Office publishes several information circulars and The Cyber Citizen’s Guide Through the Legal Jungle includes fully annotated examples of completed copyright registration applications.

    USING OTHER PEOPLE’S RECIPES

    Webinar attendees asked numerous questions about “using other people’s recipes”. To answer this question, we must first determine the meaning of “use”. If “use” means copying the text of the recipe into your own book, website or other publication, there is no copyright issue if the recipe is not copyright-protected. (See Principle Three along with its caveat)

    If use means preparing the dish based on the recipe and even selling that dish, you can freely do so regardless of whether the recipe is protected by copyright without violating any copyright laws. See Principle Two. If “use” means extract the raw facts – ingredients and instructions – and present them in your own words, you can freely do so regardless of whether or not the recipe is protected by copyright without violating any copyright laws. (See Principles Two and Four)

    5. Can a newspaper copy and reprint recipes? Like anyone else, a newspaper can reprint recipes that are not copyright-protected. If the recipe is copyright-protected, the newspaper should have permission to reprint it or should determine that its use falls into an exception for requiring permission such as fair use. (See Principle Five)

    6. Are there special rules for using recipes in academic publications (aka using it with citation, etc.)? There are no special rules specifically for an academic publication that wants to re-print a recipe. However, if the academic publication wants to rely on fair use to re-print a recipe, educational and academic uses are favored uses under the fair use analysis.

    7. Can you please discuss recipes used on a food product like Toll House cookies on Nestle chocolate chip packaging. The same basic principles apply to recipes used on a food product. One additional concern when duplicating such a recipe is the appearance of trademarks in the recipe text. Toll House and Nestle are both federally registered trademarks. If you want to specify Toll House and/or Nestle products in your list of recipe ingredients, that is a nominative (i.e., a method of referring to a specific product) use of the trademark and thus legally permissible.

    8. If you buy a cook book, you have paid for the book including the recipes so why can’t you use them as you like including rewriting them in your own form? By “use” if you mean prepare the dishes presented in the cookbook, you can. (See Principle Four) By “use” if you mean duplicate the recipes verbatim on your website, book, or other publication, duplicating multiple recipes from the cookbook verbatim holds the potential of violating the compilation copyright in the cookbook even if each recipe is not independently copyrightable. (See Principle One – read to the end for relevant point). Yes, you paid for the physical (or electronic) copy of the book. However, ownership of a physical (or digital) copy does not entitle you to reprint, copy, post it on the internet, or further distribute it as you please. Those activities are the exclusive rights of the copyright owner. The same concept applies to dvd’s, cds, novels, artwork, and any other copy of copyright-protected content that you might purchase.

    9. As bloggers we post recipes because we'd like people to make the recipes. How does this fit for blogging about a recipe made from another blogger's recipe post and discussing and photographing results? Copyright protection of a recipe does not prevent anyone from making the dish featured in the recipe. (See Principle Four) If you see a recipe on another website, you can make that dish, discuss your experiences in following the recipe, and take a photograph of the dish you make. The activity that might be problematic is duplicating the recipe verbatim if the recipe is copyright-protected. (See Principle Two)

    MAKING A RECIPE YOUR OWN

    10. When I used to work in recipe development, the golden rule for making a recipe "your own" was changing, significantly, 3 ingredients. Is that an actual edict or just something some food editors came up with? While this golden rule might be a part of the moral code for culinary professionals, it is not a tenet of copyright law – or any other method for the legal protection of a recipe. If the original recipe that inspires you is not eligible for copyright protection, you may legally publish a modified version of the recipe – even if your modifications are minor. (See Principle Three) If the original recipe is copyright-protected and you re-publish it verbatim except for changing three ingredients, the change alone will not shield you from copyright infringement liability. You may prepare the dish featured in the recipe – regardless of whether or not the recipe is copyright-protected. (See Principle Four).

    11 & 12. There are only so many ways to make certain dishes, so how do you deal with that and ensuring that your recipes are different enough so you don't get sued? AND If I'm making a recipe about a common food (i.e. overnight oats or salads in a jar), what do I have to do to make it my own? Copyright protects only the text of the recipe – prohibiting you from re-printing the recipe verbatim. Copyright does not prohibit you from preparing the dish or developing your own version of the dish. (See Principles Two and Four)

    13. Can I use on my website the recipes I developed while working at a corporate test kitchen or do those recipes belong to the company? The copyright in copyright-protected material developed by an employee within the scope of his employment belongs to the employer as a work made for hire. However, there are several issues you must address for a definitive answer in this situation including the following:

    • Are the resulting recipes copyright-protected? Even if the answer is no, this issue requires more analysis because of the employee-employer relationship.
    • are the recipes protected as a trade secret (think McDonald’s secret sauce and the formula for Coca-Cola)
    • Did the employee sign a contract (e.g., a non-compete or non-disclosure contract) dictating how the employee may use the recipes

    CREDITING SOMEONE WHEN USING THEIR RECIPE

    14 & 15. What is the correct way to credit someone who wrote a recipe that yours is inspired by? AND So, how do you properly credit someone for their recipe or method? For copyright law purposes, “credit” is not really an issue. If the recipe is not copyright-protected or your use qualifies as a fair use, there is no legal requirement to give credit when using public domain or fair use materials. If the recipe is copyright-protected, giving a credit will not shield you from copyright infringement liability. If the copyright owner has granted you permission to re-print or duplicate a copyright-protected recipe, you should provide whatever credit you negotiated with the copyright owner.

    16. Can a recipe be copied verbatim, if credit is given to the recipe author? If the recipe qualifies for copyright protection, copying the recipe verbatim without the copyright owner’s permission is copyright infringement (unless an exception applies) – regardless of whether you credit the recipe author. (See Principles Two and Five)

    17. So are you basically saying the literature of a recipe or a group of recipes are the only things that can be protected? For a recipe, copyright can protect the text (literature in your words). For a group of recipes, copyright can protect the text as well as the manner and order in which the recipes are presented (i.e., protection as a compilation).

    18. I see recipes on, for example, Martha Stewart's site, then I see that same recipe on a blogger's website. Is that "legal"? There is no credit given. If it is a verbatim copy of the Martha Stewart recipe and the blogger does not have permission for the re-print, it might be copyright infringement. If it is the blogger’s revised rendition of the recipe in the blogger’s own words – it likely presents no copyright issue even if the blogger uses the same ingredients and basic procedures as Martha Stewart’s recipe. (See the Principles)

    19. What about recipe round-ups? This is a common way for food bloggers to post recipes from others. Verbatim copying without permission might be copyright infringement – especially if the food blogger is taking multiple recipes from a single source.

    USING OTHER PEOPLE’S IMAGES OF DISHES

    20. If I wanted to use a recipe and photograph from someone on my website, do I need permission to do so and how would I go about getting that permission? You should obtain permission prior to posting copyright-protected materials on your website. (See Principle Five) The recipe you want to post might or might not be copyright-protected. (See Principle One) The photograph you want to post is highly likely to be copyright-protected. A complete explanation of how to get permission is beyond the scope of this blog post but rights clearance is briefly covered here (within the parallel context of permission for using quotes) and obtaining permission is the entire subject matter of The Permission Seeker’s Guide Through the Legal Jungle .

    21. Can the photos and recipes from vintage recipe pamphlets published by food manufactures be used without permission? What if they were published prior to 1923? If the photos and recipes are copyright protected, you need permission or an exception. (See Principle Five) For United States purposes, works published prior to 1923 are in the public domain and are not protected by copyright. There might still be privacy and publicity rights related to the use of the photos if the photos depict people.

    TAKING ACTION AGAINST INFRINGERS

    22. What can we do if it's not a US based company that infringes? This question was prompted by my description of sending a take-down letter per the Digital Millennium Copyright Act (DMCA) in the event your content is being infringed online. For copyright infringement. The DMCA is effective in taking down content that is hosted by an interactive service provider subject to United States federal law. If the infringer has no contacts with the United States, options include filing a lawsuit in a country in which the infringer does have contacts (an expensive proposition so there needs to be a significant amount at stake for most plaintiffs to take this route.)

    23. I've had journalists take my quotes from my website and online interviews previously done with other publications and use them in new stories. Is the journalist committing copyright infringement? If the text on your website is copyright-protected and the journalist’s use does not qualify as a fair use or other exception to copyright protection, the journalist’s use of your material without your permission is copyright infringement. A journalist’s quoting from a website in a relevant news article is a good candidate for a permissible fair use of a quote.

    OTHER QUESTIONS – TRADEMARK, PATENT, CANADIAN LAW

    24. Is it worth suing over trademark infringement due to cost of filing and pursuing one? The answer to that question has many variables such as the value of the infringed material/trademark, the likelihood of a positive outcome, the defendant’s ability to pay monetary damages, etcetera. While I cannot respond to your question with a yes or a no, I can confirm that pursuing a lawsuit can be costly.

    25. When does a patent have to be filed after the item is published? For United States patent protection, there is a one year period after the first public disclosure or offer for sale of an invention by an inventor during which a patent application must be filed. However, there is much nuance regarding what actions trigger the one-year clock and how such public disclosure impacts the ability to obtain foreign patent registration.

    26. Do these copyright laws address both US and Canadian law – or is there significant variance between countries? My comments during the webinar and in this blog post address United States law only. I cannot address Canadian law. I invite any Canadian legal professionals who drop by the blog to share any insights in the comment section below on Canadian law impacting recipe protection.

    27. Terrific content, Joy! I learned more from you in 5 minutes than I did in an hour-long consultation with a local Intellectual Property attorney! Thanks!

    28. Will we be able to get a copy of the presentation? The International Association of Culinary Professionals will make a recording of the webinar presentation available to IACP members through the IACP Speaker Series Archive .

  • Copyright, Trademark and Other Legal Concerns for Visual Artists

    While artists need not be legal scholars, there are a few fundamental principles they can embrace to prevent legal problems from creeping into their artwork. I discuss some of those principles as a guest on the ArtMarketingNews.com blog. Here is a brief summary of the tips I shared:

    Be Aware of the Most Significant Art-Related Laws. As part of their creative process, artists should consider if their work raises any copyright, trademark, privacy and defamation issues – as well as whether the First Amendment’s protection for artistic expression offers them any leeway in those areas.

    Heed the Fine Line between Legal Inspiration and Infringing Copying. An artist’s duplication of another artist’s idea or concept is copyright-permissible. Duplication of another’s artistic expression in rendering that idea or that concept is not. However, it is not always clear where the idea ends and the expression begins.

    Know When Taking Photos in Public Goes Too Far. Even though photographers have wide latitude to take photos in public, there are situations in which taking photos in public might be problematic. Aggressive paparazzi behavior is one of them.

    Understand How You Can Depict Real People in Your Artwork. The permissibility of publishing images of other people depends on whose image you have and how you want to use the image. I offer some general guidelines and examples to determine which uses are permissible and which uses are not.

    Understand How You Can Depict Products in Your Artwork. Companies can react negatively to the unauthorized appearance of their brands, products, and trademarks in media. Courts have sanctioned the unauthorized appearance of products in artistic photography when the use is for social commentary and is not misleading. In contrast, an unauthorized product appearance in a commercial context can have dire legal and financial consequences on the unauthorized user.

    You can read the entire article, “Five Tips for Artists to Avoid Copyright, Trademark, and Related Legal Problems”, here.

  • Music Licensing for Business Use – Types of Licenses, Sources of Music & Fair Use

    The Copyright Clearance Center’s (CCC) Velocity of Content blog is offering three articles adapted from my recent CCC-sponsored webinar presentation about uses of music within the work and office environment:

    Music Licensing: The Difference Between Public Performance and Synchronization Licenses The complexity of music licensing stems in part from the different types and names of music licenses. The music industry gives different names to music licenses according to whether you are using the song or the sound recording and according to how you are using the music. During the webinar, I reviewed different categories of music licenses and gave examples of when you might need each one – including public performance licenses which grant permission to perform music in public and synchronization (or synch) licenses which grant permission for the use of a song in a video, advertisement, or other audio-visual presentation. Read the article, “Music Licensing: The Difference Between Public Performance and Synchronization Licenses” on CCC’s Velocity of Content blog.

    Using Music at Work – 5 Source and Licensing Considerations During the webinar, I discussed the pros and cons of the following sources where a company might seek music for its video, advertisement, and training materials:

    • Existing Popular Music (i.e., music that has charted)
    • Production Music
    • Independent Artist Music
    • Creative Commons Music
    • Commissioning Original Music
    • Other Online Sources

    Read the article, “Using Music at Work – 5 Source and Licensing Considerations” on CCC’s Velocity of Content blog.

    Music Licensing: What is Considered Fair Use? Copyright fair use is an exception to copyright protection that allows you to use a small portion of a copyrighted work without the copyright owner’s permission. The challenge for those who want to rely on fair use if that the doctrine is subjective, has no bright line rules, and must be decided on a case-by-case basis according to the specific circumstances. During the webinar, I discussed how the fair use doctrine applies to educational use, incidental use (i.e., a documentary production picking up music in the background during a shoot), and use for news reporting purposes. Read the article, “Music Licensing: What Is Considered Fair Use?” on CCC’s Velocity of Content blog.

    Additional “Using Music at Work” Webinar Summaries and Recaps

    Here is my recap of 25 key music licensing points I shared during the webinar, 25 Key Points about Using Music in Your Business. For more details and examples of these key points, you can listen to a recording of the entire 1-hour “Using Music at Work” webinar at http://go.copyright.com/l/37852/2017-02-24/cg7t1z