Treatments for Film and Television – Is Protection Possible?

In the volatile industries of film and television where networking, pitching, and disclosing ideas is the only avenue for material to develop, how is protection possible? What do you do when you are faced with the harsh dichotomy of the necessity of pitching treatments and acknowledging that the ideas could be misappropriated? In the free intellectual market in which we live, thoughts, concepts, and ideas are categorized as public domain. For this reason, it is crucial to understand the ways in which film and television treatments can be protected.

International Piracy and Efforts to Stop It

Intellectual property theft on an international level has been a problem that does not seem to be going away despite many United States and international efforts to slow down and eventually stop the intellectual property piracy.  Movies, music, books, and other digital entertainment are some of the main IP industries hit hard, but IP theft has also been problematic for many other industries including pharmaceuticals and computer programming.  “America is the largest creator, producer, and exporter of copyrighted material.  In 2009, industry estimates that global piracy costs U.S. firms over $25 billion in lost sales annually.” 2010 International Piracy.  This loss in sales has caused a serious loss in revenue, jobs, and diluted the strength of brands and intellectual property.  It has also caused creators of these works to have less incentive to continue creating because their work is not being protected or recognized as their own.  It is estimated that over 18 million Americans work in intellectual property related industries; strengthening IP protection and repercussion to piracy is pivotal to their livelihoods.  Office of US Trade Representative.

Ringtones- the next Napster?

Ring Tones have become quite a big business, but the issue of how much the copyright owner should get per ring tone has been hotly debated.  According to the U.S. Court of Appeals for the D.C. Circuit last week, 24 cents was the going rate as reported in the New York Law Journal. The price of the average ring tone download costs the consumer $1-$10 per download CNET This shows a sizeable markup for the ringtone agencies that many times start their business first and worry about copyrights and licensing second. The profit, however, is shared between the ringtone company and the cell phone service provider.

Viacom versus YouTube (Google)

In a landmark decision made June 23, 2010, Federal Judge Louis Stanton granted summary judgment in favor of the defendant Youtube, owned by Google, in Viacom International, Inc. v. Youtube, Inc..  The decision held Youtube was protected against claims of copyright infringement made by Viacom under 17 U.S.C. § 512( c). Order and Opinion.  Viacom International, Inc. v. Youtube, Inc. was a $1 billion lawsuit  filed by Viacom in 2007.  Viacom accused Youtube of massive copyright infringement claiming that Youtube was intentionally uploading and displaying enormous amounts of copyrighted material that Viacom owned to their website.  Complaint.  Viacom owns many television networks as well as Paramount Studios.  Some of the copyrighted works Viacom claimed Youtube was allowing to be posted to their website and viewed thousands of times a day was “SpongeBob SquarePants,” “The Daily Show with Jon Stewart,” “The Colbert Report,” “Mean Girls,” etc.  The complaint stated that Youtube does not just allow users to post copyrighted material, but that Youtube promotes the infringement and then does nothing to prevent or stop it because of the significant profits they are making.

Incorporation Soup: Deciding on a Corporate Form

 

Congratulations Entrepreneur. You made it through the hard part. You thought long and hard, carefully crafting your vision, honing your dreams, and creating a plan to put it into action. Now all you have to do is fill out some paperwork and dive head first into your new endeavor. So, armed with anticipation, you google ways to incorporate and are confronted with an alphabet soup of options: PC, PLLC, LLCs, S-Corps, C-Corps. Or maybe you heard of an LLC, know some of its benefits, and think that’s the way to go. Either way, take a few minutes so we can debunk some of the myths and misinformation and address the strengths and weaknesses of the three ways to incorporate.

Cybersquatting

Domain names on the internet are creating problems for trademark owners who do not own the domain name for their trademarked name.   Trademark law gives a person the exclusive rights to use a particular name.  The general purpose of trademark law is to prevent one person from passing off his goods or business as the goods or business of another.  47 AMJUR POF 2d 643.  Domain name owners that do not have any connection to the trademarked name are causing exactly the opposite of what trademark law is supposed to protect.  Website names are being purchased because of the popularity of the name and the likelihood that that name will draw people to the website.  The problem is that when the website appears with goods or services that the trademarked name is not associated with then the true trademark owner is losing the strength and recognition of his trademarked name.

When Suing for TM Infringement, make sure you own the trademark

Judge Laura Taylor Swain of the U.S. District Court for the Southern District of New York ruled that Liz Claiborne’s subsidiary, Lucky Brand Dungarees Inc. infringes on Miami-based Marcel Fashion Group’s “Get Lucky” apparel line. prnewswire.com Liz Claiborne and Lucky Brand Dungarees were ordered to pay Marcel Fashion Group $300,000- including $280,000 in punitive damages.  The judgment and order stems from the lawsuit Liz Claiborne and Lucky brand originally brought against Marcel Fashion and its Licensee, Ally Apparel, for trademark infringement in 2005.   A Jury determined that Marcel fashion did not engage in trademark infringement. Marcel fashion owned, and continually used the trademark, “Get Lucky” before Lucky Brand was even formed.  Marcel Fashion filed a counterclaim for trademark infringement against Lucky Brand and Liz Claiborne.

The jury found that Lucky Brand’s use of the “Lucky Brand” trademark and the use of “Lucky” and “Get Lucky” infringes on Marcel’s “Get Lucky” trademark and violates federal unfair competition laws. cnn Lucky Brand is said to be in the middle of a turnaround and this ruling could present consider obstacles in their endeavors. crainsnewyork Although Marcel Fashions has not decided whether they will sue Liz Claiborne if it continues to promote the brand and Judge Swain’s ruling does not prevent Liz Claiborne from continuing to use the Lucky moniker, Ann Schofield Baker, one of the attorneys who represented Marcel Fashions in the case, said if Liz Claiborne continues to use the name and slogan it would be a continued violation of Marcel’s Trademark. crainsnewyork

It’s essential to work with an experienced attorney who is familiar with the trademark process.  Having counsel on your side to ensure a detailed and efficient trademark search is completed before taking action (whether it be to release a slogan or register a logo) is crucial to the the protection of your trademark.

by Leslie Galindo, summer intern with Arther Law

Taking Money From All Angles: The Rise of The 360 Degree Deal

It is no secret that record labels’ profitability has suffered due to internet piracy of music. Pod Complex. While the recording industry has successfully sued services like Napster, they simply are unable to keep up with the sheer number of file-sharing, peer-to-peer and web-hosting sites that disseminate copyrighted music. Pod Complex. Services like Limewire, Kazaa, and RapidShare are just a few of the many places people continue to turn to instead of purchasing from legitimate sources like iTunes or traditional brick and mortar stores.

Sound Exchange

The digital music era is here.  Artists and listeners alike have as much to love about it as they do to be concerned since digital music continually grows.  Digital music is an easy way to have access to your favorite songs and entertainers.  There are now many legitimate digital music servers that allow consumers to buy and access music through subscriptions or websites that support services through advertisements.  A quarter of music industry revenue is now coming through digital channels, mobile services, subscriptions, and sites streaming download stores.   more info.  This goes to show as time has gone on digital music has become the preferred method of access to the music industry.

North Face Sues to Police Trademark

Jimmy Winkleman Jr. is a 19 year old freshman at Missouri University who started a “leisure wear” company called The South Butt. The fleece wear products sold by The South Butt bear a striking resemblance with The North Face apparel, most especially the Denali Jacket.   The North Face thinks that the similarities between the two brands and products will cause confusion for the general consumer.  The South Butt founder, Jimmy Jr. points out however, that the general public is quite savvy and “capable of telling the difference between a butt and a face.” aba journal article Despite this ever so insightful remark by the founder, The North Face is not taking this lightly.  In December of 2009 The North Face filed suit against The South Butt in the U.S. District Court for the Eastern District of Missouri, alleging infringement, trademark dilution and unfair competition.

In my opinion, The North Face has a tough fight, but potentially a winning one.  It is good to see a large company like The North Face fighting this type of litigation.  With intellectual property (the brand generally speaking) being the most valuable asset a company has, it is imperative that these types of legal battles are fought.  Unless you enforce the trademark, you basically lose it.  Non-enforcement can in some cases be seen as permission to use the brand.  The dissolution of the brand due to non-enforcement of the trademark is sometimes referred to as genericide.