Keeping it Legal with SMCNash 4/2/12


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Slides from the presentation by Jennifer Kovalcik of Stites & Harbison at the April 3, 2012 Social Media Club Nashville event.

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Keeping it Legal with SMCNash 4/2/12

  1. 1. Keeping it LEGAL Jennifer Kovalcik April 3, 2012
  2. 2. What Does IP Law Protect? Words andTrademarks SymbolsCopyrights Expressions InventionsPatents and CreationsTrade Secrets Valuable Secrets
  3. 3. Copyright: What is Protectable? • Original Expression • Work of Authorship • Fixed in a Tangible Medium Ideas
  4. 4. Copyrightable Subject Matter Literary Musical Works Works Dramatic Pantomimes and Works Choreographic Works MotionPictorial, Graphic and Pictures Architectural Sculptural Works Sound Recordings Works
  5. 5. Rights Protected by Copyright Law Reproduction/Copy © Derivative Works Distribution Public Performance Public Display Digital Transmission
  6. 6. Ownership: Does the Employer Own the Copyright? IF the work was created by an Employee within scope of employment; or IF the work was created by an Independent Contractor under a written “Work For Hire”/Assignment Agreement
  7. 7. Copyright Duration (aka the Mickey Mouse Rule)  Individual Work: Life of the Author + 70 Years  Joint Work: Life of the Last Surviving Author +70 Years  Work for Hire: Publication + 95 Years or Creation + 120 Years (whichever is shorter)
  8. 8. Copyright Notice © Notice is NOT required. Use of notice defeats claims of innocent infringement. Elements of Notice  (c) or “Copyright” or “Copr.”; and  Year of first publication of the work; and  Name of copyright owner (or an abbreviation or a generally known alternative name of the owner) © 2012 Name
  9. 9. Copyright Registration Copyright Registration is NOT required. Advantages of Registration:  Required before filing an infringement action  Statutory damages and attorney’s fees  Establishes a public record of the copyright  Presumption of validity
  10. 10. Copyright Infringement Violation of any of the copyright owner’s “exclusive rights.” Elements of Copyright Infringement:  Ownership  Registration = Presumption of Validity  Must prove:  Access  Substantial Similarity  Verbatim copying is NOT required.  “copyrightable expression”
  11. 11. Infringement Remedies  Injunction  “Statutory Damages”  $750 to $30,000  if “innocent” $200 to $30,000  if “willful” $750 to $150,000  Attorneys’ Fees  Criminal  Secondary Liability $$$
  12. 12. Fair Use – D E F E N S E Balance of Free Speech against the rights of Copyright Owners For purposes such as criticism, comment, news reporting, teaching, scholarship or research  Nature of the work  Purpose/character of the use  Amount & substantiality  Effect on the works’ value/market
  13. 13. Public Domain / Open SourceExpired Copyright = “public domain” = free to usewithout permission.Works may be posted under open source or otherroyalty-free licensesBUT check the terms – may have other restrictions Work found “Public Domain” on Internet
  14. 14. Creative Commons Public Licenses  Royalty-free  You can use it Licensed Under  You can make copies ccPL  You can distribute copies  You can publicly perform/display  You must include attribution, copyright notice, and provide a copy of the license or URL with all copies  Can you make derivatives? –depends on version  Can you use it commercially - primarily intended for commercial advantage or monetary compensation? -depends on version
  15. 15. Social Media Uses  Copyright analysis is the same  Know your employer’s policy  Future job interviews  Transparency/disclosure when posting on sites on behalf of your company or client
  16. 16. User Generated Content  Default Owner  Employer Relationship  Client Relationship  Terms and Conditions of Post UGC
  17. 17.  Pinterest lets you create your own visual collections or “boards,” and view and follow other boards, post comments, etc.  Encourages linking/crediting original pin source New Terms of Service – Effective April 6, 2012  Check your account settings  No commercial use without permission Your user generated content  You won’t post any infringing content  You grant a transferrable license to Pinterest to use, display, reproduce, re-pin, modify (e.g., re-format), re-arrange, and distribute  States that other users may search for, see, use, and/or re-pin any content you may publicly available – but no specific license grant You Indemnify and defend Pinterest
  18. 18. SOPA Legislation Piracy is a multi-billion dollar problem  House - Stop Online Piracy Act (SOPA)  Senate - Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (Protect IP Act, or PIPA). Status – benched, evolving Purpose - expands law enforcement’s ability to fight online trafficking in copyrighted and counterfeit goods, especially foreign web sites  Service providers - block access to rogue sites  Payment providers – prohibited from dealing with rogue sites Fear – what constitutes a rogue site?
  19. 19. What is a Trademark? Word, name, symbol or device . . . used by a person to identify and distinguish the goods or services of that person.
  20. 20. Trademark Examples
  21. 21. What is a Trademark? Word, name, symbol or device . . . used by a person to identify and distinguish the goods or services of that person. TM ® SM
  22. 22. Trademark Infringement  “Likelihood of Confusion” Factors  Strength of Mark  Relatedness of Goods and Services  Similarity of Marks  Evidence of Actual Confusion  Marketing Channels  Degree of Purchaser Care  Intent  Likelihood of Expansion
  23. 23. Trademark Research  Trademark Rights Based on Use  Where Can You Look?  U.S. Patent & Trademark Office Website  Google
  25. 25. Legal “Fair Uses” There is no “public domain” trademark There is only trademark use and non- trademark use Unauthorized trademark use is infringement Non-trademark use may be okay
  26. 26. Questions ? Jennifer (615) 782-2214