Tag: license

News Brief: Lingerie Entrepreneur gets to Bottom of I.P. Controversy

Pop culture critic and journalist C.E. Hanifin recently pointed out a fascinating intellectual property controversy at Target Addict. That blog comments on a news story run by The Virginian-Pilot, involving I.P. and lingerie.

April Spring, of Norfolk Virginia,  obtained a design patent in December, 2008 for a design of women’s briefs marketed under her Foxers brand. This is the image of the design patent, as it was issued by the U.S Patent Office.

Design Patent D581,628 for Women's Briefs
Design Patent D581,628 for Women's Briefs

Spring’s design attaches an elastic waist band to the briefs, much like those seen on men’s boxer shorts.

Spring filed a lawsuit against Target, Corp. alleging the retailer knocked-off her design. The Foxers briefs are normally priced at between $20 to $26 a pair. The Target briefs that allegedly rip-off her design are priced at around $5 a pair.

Note: design patents are a special type of patent and differ from utility patents, which cover working inventions. Design patents cover only the ornamental look of a product, as opposed to how the product works.

by Categories: Design, Entrepreneurship, Intellectual property controversies, TrademarksTags: , , , , , , , , Leave a comment

Matsuflex

“I have the name Matsuflex. If I can harness that Matsuflex energy, it’s gonna help change America in a positive way!”

Matsuflex
Matsuflex

These are the words of Ryan Matsunaga, a.k.a. Matsuflex, one of the participant’s on VH1’s reality t.v. show The Tool Academy. Matsuflex, is one of the program’s finalists and has made a point of advertising his name as often as possible. During a recent show, one of the show’s attendee’s asked “What’s Matsuflex? It sounds like an energy drink.” Here’s another suggestion, a Matsuflex sounds like a pull-up machine hawked on late night t.v. The point is, the name Matsuflex may have real commercial value.

If that is the case, Matsuflex would do well to trademark the name as soon as possible. I ran a quick search at the United States Patent and Trademark Office (USPTO) database and was unable to find a trademark registered as Matsuflex, which means it is still open for someone to claim, so long as they can prove they will offer something for sale called Matsuflex in a particular class of goods or services.

Matsuflex should think about running to the USPTO to claim the name, if he hasn’t done so already. Otherwise, an unscrupulous entrepreneur might take it over, and misappropriate all that positive Matsuflex energy.

by Categories: Entrepreneurship, Intellectual property controversies, Public domain, TrademarksTags: , , , , , , 1 Comment

Board Game Manufacturer Trumps The Donald

Donald Trump tried to register the phrase “you’re fired” but was denied. Paris Hilton was allowed to register “that’s hot”. What gives? The law of trademark.

Trademark law accomplishes two important objectives: 1) it protects investments to build brand equity in a trademark; 2) it protects consumers from the likelihood of confusion in the marketplace. The second reason explains why the Donald was rejected, and Paris was not.

Another important item to consider is that trademarks are only registered for goods that are actually sold in narrowly defined product markets.

The United States Patent and Trademark Office examiner rejected Donald’s “you’re fired” trademark application in the class of goods for “games”. The rejection was based on a previously registered trademark: “you’re hired”. A company, called Franklin Learning Systems, had registered “you’re hired” for one of its educational board games. The examiner determined that “the similarities between the marks and the goods of the parties are so great as to create a likelihood of confusion.”

In Paris’ case, no one had registered anything similar to “that’s hot” as a federal trademark for the classes of goods and services she applied for, including “men’s and women’s clothing”.

by Categories: Entrepreneurship, Intellectual property controversies, TrademarksTags: , , , , Leave a comment

Cohen and copyright

The New York Times recently reported a story on the singer and composer Leonard Cohen’s upcoming tour, after a 15-year hiatus from live music performances.

Here is one of Mr. Cohen’s quotes that most grabbed my attention (he is speaking about the ownership of his songs, which have been popularized by other, younger performers):

“My sense of ownership with these things is very weak,” he responded. “It’s not the result of spiritual discipline; it’s always been that way. My sense of proprietorship has been so weak that actually I didn’t pay attention and I lost the copyrights on a lot of the songs.”

When I mentioned this story to C.E. Hanifin, the acclaimed journalist and music critic, she said: “If Leonard Cohen can’t keep track of his copyrights, I’m sure there are a lot of other artists who need help, too.”

Even if you don’t own a Leonard Cohen album, you are probably familiar with some of his songs. As the New York Times article pointed out, many popular artists have covered his works. For example, Cohen’s song “Hallelujah” has been covered more than 200 times by such artists as Jeff Buckley and John Cale.

How different from other artists (like The Beatles) who zealously guard their intellectual property.

So, how does one lose a copyright?

There are several ways. First, you can neglect to read a contract from, say, a manager or corporation like a media company who gets you to assign your creative content rights to them. Along similar lines, you can sell the rights. Or, you can donate them to the commons through a public release, or creative commons-like license.  Be wary, since once that copyright is gone it is usually very hard to get back.

Regardless of whether an artist decides to defend or give up their copyrights, every creative person should at least know the basic rules so that they can choose which path to take.

Acknowledgements: C.E. Hanifin.

by Categories: Copyrights, Intellectual property controversies, Public domainTags: , , , , 1 Comment

Copyright Battle Over Obama’s Image

Artists borrow material to create new art. This practice is widely acknowledged and condoned in art circles. Daniel Grant makes this point in a recent Wall Street Journal article. Mr. Grant also points out, however, that copyright law can potentially render artistic borrowing an unlawful transgression. What is routine practice in the arts may lead to litigation and an intellectual property minefield.

Mr. Grant’s article discusses the Rogers v. Koons case. In that case the renowned artist Jeff Koons was sued by photographer Art Rogers. Mr. Koons made an unauthorized sculptural and literal rendition of a photograph taken by Mr. Rogers that depicted a family with eight puppies. A federal court found that the sculptural representation amounted to copyright infringement. Mr Koons unsuccessfully argued that creating the sculpture from the photograph was a transformative social commentary. This type of commentary, he argued, was an important artistic activity. It was a good argument, but not a legally persuasive one.

The Rogers v. Koons case was decided in 1992. Seventeen years later, a very similar case is now publicly unfolding. This case also involves an artist and a photographer. In this case, the artist is Shepard Fairey, who created the Obama Poster shown below from a photograph taken by photographer Mannie Garcia. Mr. Garcia, who is a freelance photographer, was working for the Associated Press at the time he took the photograph, shown below next to the poster image. Mr. Fairey based his image on the photograph without asking the Associated Press for permission. Now, Mr. Fairey has sued the Associated Press to have the copyright issue resolved.

AP Photo vs. Mr. Fairey's Rendering
AP Photo vs. Mr. Fairey's Rendering

The question, however, remains contested. How can one determine if their new work has unlawfully copied another work? How much borrowing is permitted? Prior cases, like Rogers v. Koons state that an original work is copied when “the accused work is so substantially similar to the copyrighted work that reasonable jurors could not differ on this issue.” That is a fuzzy boundary that is determined on a case-by-case basis.

So here’s my question:

by Categories: Copyrights, Intellectual property controversiesTags: , , , , , , , 2 Comments

The anti-Creative Commons

A few weeks ago I was part of a panel on intellectual property controversies at Michigan Tech. One of the comments I made on the panel is that most intellectual property law innovations have been developed by regular people taking intellectual property law into their own hands. For example, Creative Commons, Science Commons and Open Source Software are all innovations created by information creators and users, not lawmakers on Capitol Hill or the judiciary.

A reader recently submitted the website: myfreecopyright.com, which I’ve dubbed the anti-creative commons. Like the legal innovations listed above, this is yet another resource that allows creators to engage their online i.p. and the law in a user-friendly way.

The difference, a big one, is that the myfreecopyright site allows you to notify others of your copyrighted content and allows you to register and date the work through their database. This is achieved in three steps: 1. Upload the work by allowing the site to subscribe to your content; 2. A digital fingerprint of the work is created; 3. The work is registered on the database.

Why go through this? Here is what the myfreecopyright site says:

“You should provide evidence of your Copyright on all public displays of your original creations so that nobody can claim they thought your creation was part of the public domain. The Public Domain consists of original creations available Copyright Free to the whole public. Copyright Infringers often claim the public domain defense, and can be let off the hook, if no public display was with your original creations defining your Copyright.”

What I find so interesting about this is that the Library of Congress is the official place for authors to register federal copyrights. Authors obtain copyright when they create the work in a tangible medium, but they can register it. Authors register their works to have the right to sue in federal court and obtain the high damages stipulated by federal laws. The myfreecopyright site does not register your copyrights in the Library of Congress, and does not help you locate and pursue infringers. It does (as mentioned above) put everyone on notice that you have claimed a copyright and have registered it in a public database, which hinders unauthorized users from claiming the public domain defense. This is another private technology solution to intellectual property law. In this way, it’s another example of how everyday folks are innovating and engaging their intellectual property, participating in what I call law 2.0

by Categories: Copyrights, Intellectual property controversiesTags: , , , , , , , , , Leave a comment

A librarian’s perspective

Molly Kleinman, the fourth speaker of the lecture series (see posts below),  is a copyright specialist and librarian at the University of Michigan. Her job hinges on allowing people to achieve their research goals, and her job at times can be impeded by copyright laws. 

I asked her if she viewed Google as a threat to libraries. They’re not, to her. They actually make her job easier and serve as just another tool.

She also mentioned how libraries and their special databases are often unrecognized, since Google uses them extensively but never tells you that they are using a library’s database.

A big concern Molly has with copyright is that in the pre-Web era, libraries could buy a phyiscal copy of a book or journal and keep the tangible copy as long as it did not disintegrate. Now, she has seen an increased trend in licensing content. Basically, the libraries are owning less and less physical materials, and hence are owning less physical content. When they license the information, the terms of a license contract dictate the terms of use. These terms often mean no copying, no backing up, no storing in other devices, and no saving on the shelf. This means the library has to keep re-paying the content owner for re-newed access to the information periodically. This has been great for content owners who have shifted their information to digital platforms. But this is bad for the consumer who now no longer owns any tangible product where the data has been stored.

If this keeps happening, used book stores might be out of business some day?

by Categories: Copyrights, Intellectual property controversies, UncategorizedTags: , , , Leave a comment