Great Article About INTA (International Trademark Association)

http://www.forbes.com/sites/jesscollen/2012/05/10/265/

Tupac Hologram Copyright and Intellectual Property Issues

Most of you have probably heard about the Tupac hologram at the Coachella Music Festival in California over the weekend. If you haven’t…read the news, there was a Tupac hologram at the Coachella Music Festival over the weekend. Now that’s out of the way, why is this important? First, it was a great post-mortem performance along side Dr. Dre and Snoop Dogg which can be seen here.

Tupac hologram copyright

Second, in addition to the incredible technical feat of the hologram, which was a collaboration pushed by Dr. Dre and done by Digital Domain Productions and AV Concepts, Pandora’s box blew up with speculation of resurrecting great performers like Jim Morrison and Michael Jackson for possible tours.

So what does this mean? IP issues run amok. Where do we begin? Essentially it can be broken down into copyright law and right of publicity. Namely, the creators of the hologram would need to obtain a license of the music that was performed. Most likely AV Concepts obtained the rights from ASCAP for that, nothing too unusual there. However, the creation of the hologram, which we believe was an original recreation of Tupac’s movement (rather than just a copy of footage from one of Tupac’s prior videos) would be a copyright owned by AV Concepts or whomever created the hologram.

But the biggest question is the right of publicity which would be the threshold question. Right of publicity laws are state laws, and in California Cal. Civ. Code Section 3344 states:

“Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent…shall be liable for any damages sustained by the person or persons injured as a result thereof.”

Therefore, Dr. Dre and AV Concepts had to get consent from the executors of Tupac’s estate which is controlled by Afeni Shakur, Tupac’s mother who was apparently thrilled with the end result. So although obtaining consent to a celebrity’s likeness to be used with products is nothing new; posthumous hologram acts for live performances places a new intellectual property spin the likes of which we’ll probably see more of. Now if we can just get Dr. Dre to bury the hatchet and get Eazy-E to come back, how epic would that make up be?

The Velvet Underground Sues Andy Warhol Foundation for Trademark Infringement

Issues of copyright and trademark ownership can become tricky when an artist makes a work for hire.  This is currently the case with The Andy Warhol Foundation for the Visual Arts and 60’s rock band The Velvet Underground.  Many people would recognize the Andy Warhol stylized print of a banana as the Velvet Underground’s unofficial logo.  Many of the same people would also know that the banana was created by Warhol, who often collaborated with the band.  But who owns the rights to the iconic print? 

The banana print was never properly trademarked through a trademark attorney, neither was the copyright.  The Velvet Underground recently filed a trademark infringement lawusit that claims that the print was taken from a newspaper ad that was part of the public domain.  The Andy Warhol Foundation currently owns most of Warhol’s copyrights, which are valued at over $120 million.  The foundation earns about $2.5 million a year by licensing these copyrights.  When the foundation decided to start using the banana print as part of its copyrighted repertoire, the band sued.  According to the lawsuit, the band wants a judicial declaration that the foundation has no copyright protection for the banana icon.

Yahoo Patent Infringement Dispute with Facebook

 

As Facebook readies itself for an initial public offering this spring, tensions are running high in Silicon Valley.  A bit too high, perhaps.  Yahoo has just sued Facebook for patent infringement over 10 patents that involve methods to advertise online.  A similar suit occurred in 2004, when Yahoo sued Google just prior to its IPO.  Yahoo has recently come under the management of a new CEO, and it looks like he means business.  After initially becoming the internet’s main source of networking and online searching, Yahoo has fallen in recent years to Google and Facebook.  A Facebook spokesman recently told the L.A. Times “We’re disappointed that Yahoo, a longtime business partner of Facebook and a company that has substantially benefited from its association with Facebook, has decided to resort to litigation.”

Apparently this kind of lawsuit has been on the rise in recent months in Silicon Valley.  Most of these suits come from firms that buy technology patents to create large IP portfolios.  The Yahoo suit is more of a surprise, although the cozy business relationship implied by Facebook’s statement is probably a bit of an exaggeration.

Pinterest Walking a Copyright Infringement Tightrope

 

The content sharing mega-site “Pinterest” is rapidly gaining online momentum.  The site features a virtual “pinboard” where users can post photos they find online and arrange them into albums, sort of like scrap booking.  The site is hugely popular to women under the age of 35; Pinterest’s Facebook page is “liked” by 97% women.  This site has been rapidly hailed a demographic marketing super-success, and with good reason.  But the site has also drawn an increasing amount of criticism and scrutiny.  Pinterest is coming under intense legal pressure; the copyright infringement issues seem blaringly obvious.  Unlike Facebook, Youtube, and other very popular social networking sites, Pinterest’s content is not primarily user-generated.  Instead, users are pulling copyrighted works from all over the web and reproducing them, mostly without attribution. 

Most content sharing and social networking sites are protected from the infringing actions of their users by the Digital Millennium Copyright Act (DMCA).  But the DMCA specifies that sites must follow DMCA takedown procedures when they receive a proper takedown notice.  Pinterest has been lax in this regard, committing two key shortcomings in following DMCA.  First, they leave it up to their own discretion as to whether to remove the content or not, after receiving a DMCA takedown notice.  Secondly, there is no provision to ban repeat offenders.  Both of these flaws in their system fall short of DMCA guidelines.    And a quick stroll through the online galleries reveals that the vast majority of images are copyrighted works, by and large not attributed.

It will be interesting to see how this plays out, especially if Pinterest decides to start advertising on its pages.  Currently it does not, which may be why would-be DMCA enforcers are turning a blind eye.

Apple iTV Trademark Infringement

Apple has been cooking up a new TV-like product for a while, and it’s been coming closer and closer to fruition.  Steve Jobs announced “iTV” a while ago, although it has not been launched, only hinted at, and talked about internally.  No doubt, consumers will be eager to jump on the iTV bandwagon, as soon as it arrives, and it is rumored to be on schedule for a Christmas 2012 launch.  Last week the New York Post reported that Apple was in communications with cable content providers to provide Apple users with some kind of cable-like service.

The only issue is that a company called iTV Entertainment, LLC, based in San Francisco, owns a trademark for “iTV.”  Today, iTV Entertainment issued a press release preemptively warning Apple of trademark infringement issues that would be raised if they go ahead with iTV.  Apple has a patent (U.S. No. 2011/0154394) that includes drawings displaying an iTV symbol.  The patent describes a visual and audio entertainment system.  This could play out similarly to the current iPad China debacle, but Apple will probably be relieved that litigation would take place in a court here in the U.S.

Copyright-Infringing Artist May do Hard Time

Obama Hope 2008

 

 

 

Is it possible to do jail time for copyright infringement?  If you destroy and falsify discovery information during your federal trial, the answer is yes.  You are probably familiar with the iconic Obama posters from the 2008 election.  The hugely successful posters were created by Los Angeles artist Shepard Fairey.  Fairey based the image off a copyright-protected image, owned by the Associated Press.  In 2009, perhaps in a preemptive move, Fairey sued the Associated Press in Federal Court, seeking a declaration that the poster constituted “Fair Use.”  The AP countersued.  Fairey claimed he had used a certain image of Obama with actor George Clooney, when in reality the image was based off a closely cropped solo shot of the presidential candidate.  As the proceedings rolled along, it was discovered that Fairey had created several fake documents and deleted others to try and support his claim.  This, of course, led to a criminal case, to which Fairey pled guilty on February 24^th.  He now faces up to 6 months jail time, and $5,000 in fines.