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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 University
           Tanya L. Bridges
   Vice President, Legal & Business Affairs,
             Dada Entertainment
            Michael Snyder
        Shareholder, Volpe and Koenig
2009 Global Creative Economy
        Convergence Summit

        Challenges of Successful
   Entrepreneurship in an Internet Age:
IP Issues for Creative Professionals and Entrepreneurs
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
Renee Hobbs
Media Education Lab
  Temple University
To promote creativity,
innovation and the
spread of knowledge
             Article 1 Section 8
             U.S. Constitution
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 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
--Section 107
Copyright Act of 1976
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
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
Bill Graham Archives vs. Dorling
      Kindersley, Ltd. (2006)
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.
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
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
   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?
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.
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 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.
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
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)
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 Affairs, Dada Entertainment
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
Streaming Music

• Streaming Music = Public Performance
  – What is public performance?
    • Broadcast, over the air, Internet
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
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
   – YouTube
   – Facebook and MySpace
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.
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 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”
“Registered” Trademark




  FEDERAL      “COMMON LAW”
REGISTRATION
Spectrum of Trademark Distinctiveness


• Fanciful/Coined   • Suggestive



• Arbitrary         • Descriptive



                    • Generic
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.
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
Trade Secrets
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
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.
Trademarks and the Internet
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
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
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,
   **********************>
Trademarks and the Internet

 • Keywords/Adwords
   – Term for triggering advertising or
     displaying links
   – Banner ads
   – Pop-ups
Trademarks and the Internet

 • Virtual Worlds
   – “Second Life”
      • Massive Multiplayer Online Role-Playing Game
        (MMORPG)
   – Virtual “store-front”
      • Real money at stake
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
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).
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
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.
Trade Secrets and the Internet
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?
Trade Secret Internet “Traps”

 •   Circulation/Distribution
 •   Publication
 •   Failure to protect secrecy
 •   Inadequate steps to protect
Thank You!




       Questions???
Please complete the survey being
  distributed by the volunteers.
 Surveys may be returned to the
 volunteers or at the Registration
       Desk in Ballroom A.
Thank you to our sponsors

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Legal Challenges Of Successful Entrepreneurship In An Internet Age

  • 1. Legal Challenges of Successful Entrepreneurship in an Internet Age
  • 2. The Creative Entrepreneurship Track is made possible through the generous support of Morgan Lewis.
  • 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. 2009 Global Creative Economy Convergence Summit Challenges of Successful Entrepreneurship in an Internet Age: IP Issues for Creative Professionals and Entrepreneurs
  • 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. Renee Hobbs Media Education Lab Temple University
  • 7.
  • 8.
  • 9.
  • 10.
  • 11. To promote creativity, innovation and the spread of knowledge Article 1 Section 8 U.S. Constitution
  • 15. See no Evil Close the Door Hyper-Comply
  • 17. 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
  • 19. 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
  • 20. 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
  • 21. Bill Graham Archives vs. Dorling Kindersley, Ltd. (2006)
  • 22. 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.
  • 23. 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
  • 25. 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?
  • 26. 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.
  • 27. Communities of Practice Assert Their Fair Use Rights
  • 28. 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.
  • 29. 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
  • 30. 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)
  • 31. What is the Relationship between Fair Use and Creative Commons?
  • 33. The Impact of New Technology and Social Networking on Music Tanya L. Bridges VP, Legal & Business Affairs, Dada Entertainment
  • 34. 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
  • 35. Streaming Music • Streaming Music = Public Performance – What is public performance? • Broadcast, over the air, Internet
  • 36. 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
  • 37. Licensing • How and where to file for a license • Fee for licensing and calculating royalties
  • 38. Social Networking • Effect of Social Networking and New Technology on Streaming – Online and mobile radio stations – YouTube – Facebook and MySpace
  • 39. 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.
  • 40. Trademarks, Trade Secrets and the Internet Michael F. Snyder Shareholder, Volpe and Koenig
  • 42. 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”
  • 43. “Registered” Trademark FEDERAL “COMMON LAW” REGISTRATION
  • 44. Spectrum of Trademark Distinctiveness • Fanciful/Coined • Suggestive • Arbitrary • Descriptive • Generic
  • 45. 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.
  • 46. 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
  • 48. 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
  • 49. 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.
  • 50. Trademarks and the Internet
  • 51. 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
  • 52. 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
  • 53. 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, **********************>
  • 54. Trademarks and the Internet • Keywords/Adwords – Term for triggering advertising or displaying links – Banner ads – Pop-ups
  • 55. Trademarks and the Internet • Virtual Worlds – “Second Life” • Massive Multiplayer Online Role-Playing Game (MMORPG) – Virtual “store-front” • Real money at stake
  • 56. 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
  • 57. 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).
  • 58. 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
  • 59. 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.
  • 60. Trade Secrets and the Internet
  • 61. 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?
  • 62. Trade Secret Internet “Traps” • Circulation/Distribution • Publication • Failure to protect secrecy • Inadequate steps to protect
  • 63. Thank You! Questions???
  • 64. Please complete the survey being distributed by the volunteers. Surveys may be returned to the volunteers or at the Registration Desk in Ballroom A.
  • 65. Thank you to our sponsors