Guide Through the Legal Jungle

Is It Okay to Re-Print or Post an Article from Another Site?

It’s tough constantly coming up with original material for our blogs and social media sites. Believe me, fellow bloggers and writers, I feel your pain.

I recently responded to an aspiring blogger’s query regarding the extent to which one can legally re-print articles and use information from articles in newspapers.

Here’s my response:

Many bloggers use material from other blogs and sources. Facts and raw ideas by themselves are not protected by copyright. Hence, if you see, for example, a news article on the recent ebook/digital rights settlement between Random House and the Wylie Agency, you can write a blog posting using the facts/information from that news article as long as you express the facts/information in your own words.

I suggest not doing a re-write or extensive paraphrasing of another source even when attribution is given. It is copyright infringement. In contrast, it is likely not copyright infringement if you use quotes from a blog posting or article for the purpose of adding your own substantive commentary. How much you may quote depends on a fair use analysis. Unfortunately, there is no bright line rule in determining what qualifies as fair use. Whether or not a particular use qualifies as a fair use depends on the specific circumstances.

For More Information on How Much You Can Copy:

• Blog Posting: Bloggers’ Common Legal Questions. Part Three (Covers “Do I Need Permission to Use Other People’s Material on My Blog?”)


• Blog Posting: Staying Legal When Using Quotes


• My Book: The Cyber Citizen’s Guide Through the Legal Jungle: Internet Law for Your Professional Online Presence (Check the table of contents)


• My Book: The Permission Seeker’s Guide Through the Legal Jungle: Clearing Copyrights, Trademarks, and Other Rights for Entertainment and Media Productions (Check the table of contents)

   

 

 

 

 

 

 

Do You Need an Attorney to Register a Trademark?

Technically, No Attorney Is Needed for a Trademark Registration Filing

Fortunately, the Trademark Office does not give a trademark application filed by a lawyer any preferential treatment. Trademark examiners (and the online trademark registration system) actually take steps to provide additional guidance to trademark applicants working without a lawyer.

What Really Counts in Your Trademark Registration Application

What counts is whether your application is correctly completed and whether your proposed trademark actually qualifies for federal registration. People often make the mistake of trying to register a trademark that simply doesn’t qualify for registration because, for example, the trademark is generic/descriptive or the trademark is too similar to an already-registered trademark.

How a Trademark Attorney Can Help in the Registration Process

The trademark application itself appears deceptively simple. However, there are some application mistakes which can only be corrected by starting over again and filing a new registration application. The trademark application becomes more complicated if you seek to register a design or logo rather than just a word. Using a trademark attorney should help you avoid many common application mistakes.

If someone opposes your trademark registration application, that is the point where you should definitely consider retaining a lawyer. Fortunately, most trademark registration applications do not generate oppositions from third parties.

Some Trademark Registration Tips for Those Not Using a Trademark Attorney

I offer several trademark registration tips as well as a sample completed trademark application in my book, The Cyber Citizen’s Guide Through the Legal Jungle: Internet Law for Your Professional Online Presence. Although the focus of the relevant chapter is registering domain names as trademarks, many aspects of the discussion apply to all trademark applications.

One tip is to try to take the description of your goods and services directly from The Trademark Office’s Acceptable Identification of Goods and Services Manual. As part of the application process, you must describe the goods and/or services with which you use the trademark. In trademark jargon, this description is called an identification.

Describing your goods/services sounds easy, right? However, unacceptable identification(s) is a common reason for the issuance of Office Actions (i.e., an initial rejection of your trademark application). The Trademark Office’s Acceptable Identification of Goods and Services Manual lists identifications for specific goods and services that the trademark examiner will accept without further inquiry as long as the specimens (i.e., examples of how you use your trademark) submitted with your application are consistent with the identification.

Music at a Political Rally Versus Music in a Political Ad

The use of music in political campaigns is a particularly thorny issue. In a recent skirmish, Don Henley of the Eagles sued California politician, Chuck DeVore after DeVore used versions of Henley hits, “The Boys of Summer" and “All She Wants to Do is Dance”, in ads for DeVore’s unsuccessful U.S. Senate campaign. DeVore paid an undisclosed sum after a California federal judge ruled that DeVore’s actions were copyright infringement.

As I discussed in my blog posting, Politicians Need Lesson on Proper Licensing and Rights Clearance Procedures, this is not the first time a politician’s music selection has gone awry. One factor I want to highlight is the distinction between using music at a political rally and using music in a political ad.

Use of Music at a Political Rally

A public performance license should legally cover the use of music at a political rally. You can normally obtain public performance licenses very easily through one of the performing rights organizations.

For example, in the case of the McCain-Palin presidential campaign, the McCain campaign claimed to have paid for and obtained all necessary licenses when it used Heart’s 1977 hit “Barracuda,” after Sarah Palin’s speeches. My bet is the McCain campaign did have public performance licenses just as the Obama campaign likely had proper public performance licenses when it played “Soul Man” at its rallies.

PROs issue public performance licenses as blanket licenses covering all the songs in their respective catalogs. The songwriters have little or no direct involvement in the issuance of the license and may be shocked to see their music performed to support a political agenda with which they don’t agree.

If there’s a proper public performance license, the songwriters are left with very few strong legal objections. Their cease and desist letters may complain of misappropriation or tarnishment. However, United States law generally offers no “moral rights’ or “rights against tarnishment” for music. Nevertheless, if a musician makes enough noise in the media, the politician may stop using the music because the hubbub distracts from the politician’s major message.

Use of Music in a Political Ad

Using a song in a political ad is a different kettle of fish. Use of music in an ad requires a synchronization license that you generally must obtain directly from the songwriter or music publishing company. If you’re also using an original recording, you will also need a master use license. Musicians tend to exercise much more direct control over the granting of synch and master use licenses versus the granting of public performance licenses. Also, synch and master use licenses are generally much more expensive than public performance licenses.

Using music in political ads without proper licenses can lead to significant copyright infringement liability.

Spawn Comic Book Illustrates Why Collaborators Need Written Agreements

If you are someone who creates, you may enlist other people to assist with your creative endeavors. Contributors and collaborators can take the form of illustrators, editors, indexers, consultants, researchers, background musicians, recording engineers, and others.

If you do not intend your collaborators and contributors to share ownership, you should clearly communicate your intentions and, most importantly, put your intentions into a written agreement. If you plan to share ownership of the creation, you and your collaborators should still have a written agreement which addresses ownership, creative control, division of costs and profits, and other issues.

Bad Things Happens When There’s No Written Agreement

The lawsuit over Spawn has been ongoing for about ten years. It all started when Todd McFarlane, the creator of the Spawn comic-book series, retained Neil Gaiman as a writer. Gaiman described and wrote dialogue for three Spawn characters: Medieval Spawn; Angela; and Count Nicholas Cogliostro. McFarlane then illustrated the characters.

McFarlane and Gaiman had no written agreement. Later, Gaiman claimed joint ownership in the copyright to the characters. The court agreed that Gaiman was a joint copyright owner since Gaiman had provided details for the characters including name, age, facial features, title, manner of speech, costume, and what each character knows and says. That ownership decision was made in 2004. The legal proceedings continue to determine Gaiman’s portion of the profits for the posters, trading cards, clothing, statuettes, animated series on HBO, video games, etc. that feature the three characters.

In another decision issued a few days ago, the court ruled that Gaiman also has a copyright and financial interest in three additional Spawn characters: Domina, Tiffany and Dark Ages Spawn. Although Gaiman did not directly participate in the creation of these three new characters, the court found that Domina, Tiffany and Dark Ages Spawn characters are derived from the characters, Medieval Spawn and Angela, which Gaiman did co-create.

4 More Privacy Questions Diane Sawyer Should Have Asked Mark Zuckerberg

Diane Sawyer recently interviewed Facebook CEO and Founder, Mark Zuckerberg.

Facebook upset many people when it expanded how its subscriber’s personal information is shared. While the Sawyer interview did touch on Facebook privacy issues, there are a few additional privacy-related questions I would like to hear Mark Zuckerberg address:

1. Where is the master opt-out switch? Facebook subscribers can opt out of most of the new privacy default settings. However, Facebook has not immediately provided an easy-to-use interface for opting out. Also, it is unclear how many screens one must visit to opt out of ALL the default privacy settings. For example, if one screen offers you the option to make your Facebook postings available to friends only, you may still need to go to another screen to opt out of Instant Personalization.

2. To what extent does Facebook monitor our activities while we’re online and for how long does Facebook keep that data? Some online sites track and record the details of our activities while you’re online. They may track what time you came onto the site and what advertisements you looked at while you were on the site. This can certainly have some value to consumers. For example, tracking what you’ve looked at and what you bought is why amazon.com can recommend additional books that might interest you. However, such tracking can also have unanticipated and unwanted consequences. In a previous blog posting, I recount the story of Disa Powell, a woman whose Facebook and MySpace account data was subpoenaed as part of a civil lawsuit.

3. How do my Facebook friends impact my privacy? Even when you have designated your information as private, someone may have access to information you’ve posted at a social media website through people you’ve friended or linked to. For example, with the Facebook Instant Personalization feature, even if you disable Instant Personalization, Facebook may still disclose information to third party websites through friends who have not disabled the service.

4. How does Facebook monitor the privacy policies of its partners? Facebook shares information about you with other social media sites, with producers of apps, and with producers of plug-ins.

You can view the privacy conversation Diane Sawyers did have with Mark Zuckerberg here.