Legal Challenges of
    Successful
Entrepreneurship in
  an Internet Age
The Creative Entrepreneurship
Track is made possible through
   the generous support of
         Morgan Lewis.
Fred Koenig, Moderator
        Shareholder, Volpe and Koenig
             Renee Hobbs
Professor of Communication, Temple U...
2009 Global Creative Economy
        Convergence Summit

        Challenges of Successful
   Entrepreneurship in an Intern...
IP Issues for Creative Professionals
 and Entrepreneurs


    Moderator: Fred Koenig, Volpe and Koenig

Part 1: Conquering...
Renee Hobbs
Media Education Lab
  Temple University
To promote creativity,
innovation and the
spread of knowledge
             Article 1 Section 8
             U.S. Constitut...
Use and Share
Copy
Modify
Repurpose
Distribute
Excerpt/Quote from
Restrict
Limit
Charge high fees
Discourage use
Use scare tactics
Copyright Confusion
See no Evil   Close the Door   Hyper-Comply
with
accurate
knowledge
When I use the creative work of others in my own
  work, which concepts apply to my situation?

 Attribution: Citing your ...
--Section 107
Copyright Act of 1976
Criticism, comment,
         news reporting,
      teaching, scholarship,
              research

     … but also many for...
Fair use of copyrighted
                                      Fair use prevents
materials is allowed when the
            ...
Bill Graham Archives vs. Dorling
      Kindersley, Ltd. (2006)
An Example of Transformative Use

      The purpose of the original:
      To generate publicity for a
      concert.

   ...
Transformative Use is Fair Use
 When a user of copyrighted materials adds
value to, or repurposes materials for a use
diff...
http://mediaeducationlab.com/index.php?page=295
1. Did the unlicensed use “transform” the material taken from
   the copyrighted work by using it for a different purpose
...
MYTH:
FAIR USE IS TOO UNCLEAR AND COMPLICATED FOR ME; IT’S BETTER
LEFT TO LAWYERS AND ADMINISTRATORS.




TRUTH: The fair ...
Communities of Practice Assert
Their Fair Use Rights
The Code of Best Practices Helps

• To educate educators themselves about how fair
use applies to their work
• To persuade...
Educators can:
1. make copies of newspaper articles, TV shows, and other
   copyrighted works and use them and keep them f...
Organizations Supporting the
    Code of Best Practices
                                Association of College and
       ...
What is the Relationship between
Fair Use and Creative Commons?
1201
ANTI-CIRCUMVENTION
RULEMAKING PROCESS

When encryption
interferes with fair use
The Impact of New Technology and
   Social Networking on Music

               Tanya L. Bridges
VP, Legal & Business Affai...
Music and Copyright

 • Each song has two copyrights
   – Musical Works: notes and lyrics
   – Sound Recording: the actual...
Streaming Music

• Streaming Music = Public Performance
  – What is public performance?
    • Broadcast, over the air, Int...
Licensing

 • Publisher
   – Blanket license from a performance
     society: ASCAP, BMI, SESAC
   – Direct license from c...
Licensing

 • How and where to file for a license
 • Fee for licensing and calculating
   royalties
Social Networking

 • Effect of Social Networking and New
   Technology on Streaming
   – Online and mobile radio stations...
Music Stream Law Evolving

• United States V. ASCAP
  – Whether streamed previews of ringtones
    and ringback tones requ...
Trademarks, Trade Secrets
     and the Internet

       Michael F. Snyder
  Shareholder, Volpe and Koenig
Trademarks
Trademarks
• A distinctive word, phrase, logo, symbol, design,
  picture, styling or a combination of one or more
  of the...
“Registered” Trademark




  FEDERAL      “COMMON LAW”
REGISTRATION
Spectrum of Trademark Distinctiveness


• Fanciful/Coined   • Suggestive



• Arbitrary         • Descriptive



         ...
Trade Dress

•   The totality of elements in which a
    product or service is packaged,
    such as the shape and
    app...
Test for Trademark Infringement

  • Whether there is a likelihood of confusion
    between the marks
    1) strength of t...
Trade Secrets
Trade Secret

• A “trade secret” is a confidential practice,
  method, process, design, formula, or other
  information us...
Examples of Trade Secrets

 • Software, customer identities and
   preferences, vendors, product pricing,
   marketing str...
Trademarks and the Internet
Trademarks and the Internet
 • Domain Names
   – May or may not be trademark use
      • www.sanyoresellersstore.com
     ...
Trademarks and the Internet

 • Metatags
   – HTML code intended to describe the
     contents of the web site
   – Picked...
Trademarks and the Internet

 <meta name="description" content="books,
   magazines, music, DVDs, videos, electronics,
   ...
Trademarks and the Internet

 • Keywords/Adwords
   – Term for triggering advertising or
     displaying links
   – Banner...
Trademarks and the Internet

 • Virtual Worlds
   – “Second Life”
      • Massive Multiplayer Online Role-Playing Game
   ...
Special Types of Trademark
Infringement on the Internet

 •       Framing
     –       Putting a “frame” around the target...
Trademark Fair Use

• an affirmative defense of fair use is
  available to a party whose "use of the
  name, term, or devi...
Trademark Nominative Fair Use

• Using a trademark to describe a third
  party’s (such as a competitor)
• Protects using a...
Internet Trademark “Traps”

 • Failure to perform clearance search
 • Falling prey to easy copying
 • Following “internet ...
Trade Secrets and the Internet
Trade Secrets and the Internet

 • Can anything be kept a secret on the
   internet?
 • FTP sites
   – Password protection...
Trade Secret Internet “Traps”

 •   Circulation/Distribution
 •   Publication
 •   Failure to protect secrecy
 •   Inadequ...
Thank You!




       Questions???
Please complete the survey being
  distributed by the volunteers.
 Surveys may be returned to the
 volunteers or at the Re...
Thank you to our sponsors
Legal Challenges Of Successful Entrepreneurship In An Internet Age
Legal Challenges Of Successful Entrepreneurship In An Internet Age
Legal Challenges Of Successful Entrepreneurship In An Internet Age
Legal Challenges Of Successful Entrepreneurship In An Internet Age
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Legal Challenges Of Successful Entrepreneurship In An Internet Age

  1. 1. Legal Challenges of Successful Entrepreneurship in an Internet Age
  2. 2. The Creative Entrepreneurship Track is made possible through the generous support of Morgan Lewis.
  3. 3. Fred Koenig, Moderator Shareholder, Volpe and Koenig Renee Hobbs Professor of Communication, Temple University Tanya L. Bridges Vice President, Legal & Business Affairs, Dada Entertainment Michael Snyder Shareholder, Volpe and Koenig
  4. 4. 2009 Global Creative Economy Convergence Summit Challenges of Successful Entrepreneurship in an Internet Age: IP Issues for Creative Professionals and Entrepreneurs
  5. 5. IP Issues for Creative Professionals and Entrepreneurs Moderator: Fred Koenig, Volpe and Koenig Part 1: Conquering Copyright Confusion Renee Hobbs, Temple University Part 2: The Impact of New Technology and Social Networking on Music Tanya Bridges, Dada Entertainment Part 3: Trademarks, Trade Secrets and the Internet Michael Snyder, Volpe and Koenig
  6. 6. Renee Hobbs Media Education Lab Temple University
  7. 7. To promote creativity, innovation and the spread of knowledge Article 1 Section 8 U.S. Constitution
  8. 8. Use and Share Copy Modify Repurpose Distribute Excerpt/Quote from
  9. 9. Restrict Limit Charge high fees Discourage use Use scare tactics
  10. 10. Copyright Confusion
  11. 11. See no Evil Close the Door Hyper-Comply
  12. 12. with accurate knowledge
  13. 13. When I use the creative work of others in my own work, which concepts apply to my situation? Attribution: Citing your sources Public Domain: Materials available for anyone to use freely Fair Use: Using copyrighted works without permission or payment under some conditions Licensing: Asking permission and paying a fee
  14. 14. --Section 107 Copyright Act of 1976
  15. 15. Criticism, comment, news reporting, teaching, scholarship, research … but also many forms of creative work that advance and spread innovation --Section 107 Copyright Act of 1976
  16. 16. Fair use of copyrighted Fair use prevents materials is allowed when the copyright law from becoming benefits to society a form of outweigh the private costs private censorship to the copyright holder --Section 107 Copyright Act of 1976
  17. 17. Bill Graham Archives vs. Dorling Kindersley, Ltd. (2006)
  18. 18. An Example of Transformative Use The purpose of the original: To generate publicity for a concert. The purpose of the new work: To document and illustrate the concert events in historical context.
  19. 19. Transformative Use is Fair Use When a user of copyrighted materials adds value to, or repurposes materials for a use different from that for which it was originally intended, it will likely be considered transformative use; it will also likely be considered fair use. Fair use embraces the modifying of existing media content, placing it in new context. --Joyce Valenza, School Library Journal
  20. 20. http://mediaeducationlab.com/index.php?page=295
  21. 21. 1. Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original? 2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?
  22. 22. MYTH: FAIR USE IS TOO UNCLEAR AND COMPLICATED FOR ME; IT’S BETTER LEFT TO LAWYERS AND ADMINISTRATORS. TRUTH: The fair use provision of the Copyright Act is written broadly because it is designed to apply to a wide range of creative works and the people who use them. Fair use is a part of the law that belongs to everyone.
  23. 23. Communities of Practice Assert Their Fair Use Rights
  24. 24. The Code of Best Practices Helps • To educate educators themselves about how fair use applies to their work • To persuade gatekeepers, including school leaders, librarians, and publishers, to accept well- founded assertions of fair use • To promote revisions to school policies regarding the use of copyrighted materials that are used in education • To discourage copyright owners from threatening or bringing lawsuits • In the unlikely event that such suits were brought, to provide the defendant with a basis on which to show that her or his uses were both objectively reasonable and undertaken in good faith.
  25. 25. Educators can: 1. make copies of newspaper articles, TV shows, and other copyrighted works and use them and keep them for educational use 2. create curriculum materials and scholarship with copyrighted materials embedded 3. share, sell and distribute curriculum materials with copyrighted materials embedded Learners can: 4. use copyrighted works in creating new material 5. distribute their works digitally if they meet the transformativeness standard
  26. 26. Organizations Supporting the Code of Best Practices Association of College and Research Libraries (ACRL) National Association for Media Literacy Education (NAMLE) Action Coalition for Media Education (ACME) Visual Studies Division National Council of Teachers International Communication Of English (NCTE) Association (ICA)
  27. 27. What is the Relationship between Fair Use and Creative Commons?
  28. 28. 1201 ANTI-CIRCUMVENTION RULEMAKING PROCESS When encryption interferes with fair use
  29. 29. The Impact of New Technology and Social Networking on Music Tanya L. Bridges VP, Legal & Business Affairs, Dada Entertainment
  30. 30. Music and Copyright • Each song has two copyrights – Musical Works: notes and lyrics – Sound Recording: the actual recording of the song by the producer and musicians
  31. 31. Streaming Music • Streaming Music = Public Performance – What is public performance? • Broadcast, over the air, Internet
  32. 32. Licensing • Publisher – Blanket license from a performance society: ASCAP, BMI, SESAC – Direct license from copyright holder or publisher • Master – Direct license from master owner: typically the record label – Statutory license: Sound Exchange
  33. 33. Licensing • How and where to file for a license • Fee for licensing and calculating royalties
  34. 34. Social Networking • Effect of Social Networking and New Technology on Streaming – Online and mobile radio stations – YouTube – Facebook and MySpace
  35. 35. Music Stream Law Evolving • United States V. ASCAP – Whether streamed previews of ringtones and ringback tones require licenses – ASCAP suits against AT&T and Verizon • Claims that when a ringtone is played in a public place, it constitutes a public performance in violation of copyright law.
  36. 36. Trademarks, Trade Secrets and the Internet Michael F. Snyder Shareholder, Volpe and Koenig
  37. 37. Trademarks
  38. 38. Trademarks • A distinctive word, phrase, logo, symbol, design, picture, styling or a combination of one or more of these elements. • A trademark is used by a business to identify itself and its products or services to consumers, and to set itself and its products or services apart from other businesses. • The essential function of a trademark is to indicate source or act as a “badge of origin”
  39. 39. “Registered” Trademark FEDERAL “COMMON LAW” REGISTRATION
  40. 40. Spectrum of Trademark Distinctiveness • Fanciful/Coined • Suggestive • Arbitrary • Descriptive • Generic
  41. 41. Trade Dress • The totality of elements in which a product or service is packaged, such as the shape and appearance of a product or container, the cover of a book or magazine, and the distinctive and recognizable shape of an automobile. These elements combine to create the visual image presented to customers and can acquire exclusive legal rights as a type of trademark or identifying symbol of origin.
  42. 42. Test for Trademark Infringement • Whether there is a likelihood of confusion between the marks 1) strength of the mark; 2) degree of similarity between the marks; 3) degree of similarity between the goods/services; 4) likelihood that owner will “bridge the gap”; 5) evidence of actual confusion; 6) good faith in adopting mark; 7) quality of products/services; and 8) sophistication of buyers; cost of goods/services
  43. 43. Trade Secrets
  44. 44. Trade Secret • A “trade secret” is a confidential practice, method, process, design, formula, or other information used by a company to compete with other businesses. – Must be kept secret • NON-COMPETE/NON-DISLOSURE AGREEMENTS
  45. 45. Examples of Trade Secrets • Software, customer identities and preferences, vendors, product pricing, marketing strategies, company finances, manufacturing processes and other competitively valuable information, testing (successes and failures), technical information and specifications.
  46. 46. Trademarks and the Internet
  47. 47. Trademarks and the Internet • Domain Names – May or may not be trademark use • www.sanyoresellersstore.com • www.harrypottercollectors.com • www.rollingstones-tribute.com • Sometimes difficult to predict if trademark owner will object – Could drive trademark owner’s business • UDRP even if no trademark infringement
  48. 48. Trademarks and the Internet • Metatags – HTML code intended to describe the contents of the web site – Picked up by search software (spiders) to return “hits” on search engines
  49. 49. Trademarks and the Internet <meta name="description" content="books, magazines, music, DVDs, videos, electronics, computers, software, apparel ***************; accessories, shoes, jewelry, tools &amp; hardware, housewares, furniture, sporting goods, **********; personal care, ***************** CDs, DVDs, Videos, Electronics, Video Games, Computers, Cell Phones, Toys, Games, Apparel, Accessories, Shoes, Jewelry, Watches, Office Products, Sports &amp; Outdoors, Sporting Goods, Baby Products, Health, Personal Care, **********************>
  50. 50. Trademarks and the Internet • Keywords/Adwords – Term for triggering advertising or displaying links – Banner ads – Pop-ups
  51. 51. Trademarks and the Internet • Virtual Worlds – “Second Life” • Massive Multiplayer Online Role-Playing Game (MMORPG) – Virtual “store-front” • Real money at stake
  52. 52. Special Types of Trademark Infringement on the Internet • Framing – Putting a “frame” around the target • Appears to be the work of the “framer” • “Deep” linking – Providing a direct link to the inner content of a target website to display content – Not a copy; a direct link to third party content without clicking a hyperlink
  53. 53. Trademark Fair Use • an affirmative defense of fair use is available to a party whose "use of the name, term, or device charged to be an infringement is a use, otherwise than as a mark, . . . of a term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of such party, or their geographic origin . . . ." § 1115(b)(4).
  54. 54. Trademark Nominative Fair Use • Using a trademark to describe a third party’s (such as a competitor) • Protects using another's trademark or trade dress for the purposes of comparison, criticism, or point of reference
  55. 55. Internet Trademark “Traps” • Failure to perform clearance search • Falling prey to easy copying • Following “internet advice” – “urban legends,” e.g., if you mail something to yourself and never open it….etc.
  56. 56. Trade Secrets and the Internet
  57. 57. Trade Secrets and the Internet • Can anything be kept a secret on the internet? • FTP sites – Password protection – Encryption • What are adequate precautions to protect trade secrets being lost to the internet?
  58. 58. Trade Secret Internet “Traps” • Circulation/Distribution • Publication • Failure to protect secrecy • Inadequate steps to protect
  59. 59. Thank You! Questions???
  60. 60. Please complete the survey being distributed by the volunteers. Surveys may be returned to the volunteers or at the Registration Desk in Ballroom A.
  61. 61. Thank you to our sponsors

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