When our Intellectual Property/Arts & Entertainment team presents at one of its legal workshops (and we typically do these for various arts groups along the Front Range), sometimes we tell the story of Carlos Ramirez, the creator of the Trollface meme.
In 2008, Carlos was procrastinating on a college term paper and drew a face in MS Paint to post on an online message board. People seemed to like it.
In 2010, Carlos registered his drawing with the U.S. Copyright Office, and thereafter successfully monetized his work in a wide variety of ways. You can read more about Carlos’s fascinating tale here. In short, as of mid-2015 Carlos had made over $100,000 through various exploitations of the Trollface (both merchandise licensing, as well as settlements under claims of copyright infringement he brought against various parties).
We like to share Carlos’s story at our workshops because it illustrates how beneficial copyright laws can be to professional artists and even lucky doodlers, like Carlos. If you create an image that becomes a viral meme, are savvy enough to register it with the U.S. Copyright Office, and put in the time to actively market, license and police the use of your work, you too could make six figures! Or so we say.
However, maybe Carlos and his Trollface meme lucked out during the “OH! The Internet Is a Thing!” stage, which appears to have ended several years ago now. The Atlantic just published a story about how making money off Internet memes is becoming harder and harder. The pace of online trends and the time frame for what people think is funny (or at least, funny enough to spend some money on) is too fast to keep up with. “It feels like the internet is all moving a lot quicker.” “Today, memes come and go sometimes faster than T-shirts can be printed, and there’s nothing more mortifying than donning a T-shirt with a dated phrase.”
As attorneys, we think we will probably still teach our workshop attendees about Carlos and Trollface, because it’s a funny and unusual story, and helps people learn about how they can reap real legal benefits if they know how to make copyright law work for them. We just may no longer promise the potential for them to make riches off their memes!
That Tweet that has been making the rounds, and maybe even gone viral, should be fair game, right? Everyone has been retweeting it, so embedding the original tweet into my website isn’t hurting anyone…riiiight? Well, not so fast. The answer may depend on where the case is heard.
Katherine B. Forrest, a U.S. District Judge for the Southern District of New York, recently issued an interesting order on this issue. Seems that Breitbart News Network, Yahoo, and a number of other online news outlets failed in making the same argument.
It seems that they all embedded a tweet (which had gone viral) into their own online websites. The tweet included a photograph of Tom Brady taken by Justin Goldman, and originally posted by him to Snapchat.
The photograph caught fire and several users uploaded it to Twitter, and eventually landed on the news websites. Goldman argues that he never publicly released or licensed the photograph, so he’s suing for infringement of his exclusive copyrights in the image.
The news outlets claim that they never actually downloaded or copied the photograph because it technically remained housed on the Twitter servers, linked through the embedding code on their own websites.
In what some have labelled a “surprising” decision, Judge Forrest set aside the 9th Circuit’s “Server Test”, which would determine infringement based upon whether an image is hosted on the alleged infringer’s server. Rather, she granted partial summary judgment to Goldman, holding that the fact that the image was never stored on the news websites’ servers was not dispositive.
Judge Forrest did leave the issue open as to whether the news outlets had raised effective defenses against infringement—citing potential arguments under fair use, the Digital Millennium Copyright Act and innocent infringement theories.
In reaching her decision, Judge Forrest examined the exclusive right to display the photograph (as opposed to copy or make a derivative work) granted to Goldman under the Copyright Act of 1976. Her opinion delves into a history of the right to display and the fact the drafters of the Copyright Act wanted it to encompass “new, and not yet understood, technologies,” such as Twitter.
Her decision also references a 10th Circuit decision, out of the U.S. District Court for the District of Colorado, which came to a different result. In Colorado, the District Court has (at least for the time being) applied the “Server Test” to a similar case.
In the 2016 Grady v. Iacullo decision, the Court held that, when a website includes a hyperlink to a copyrighted work, a copy has been created and infringement may have occurred. “transferring a copyrighted work into a computer’s RAM can create a copy under the Copyright Act.” However, the court requested that additional information be provided to it by the parties and a final ruling has not been made.
While final rulings and appeals are yet to be announced, beware the shifting sands of technology…embedding another’s image in your website may be more trouble than it’s worth.
If you have questions about this or any other copyright or licensing issue, contact our Arts & Entertainment Team today.
An Internet domain name can be vital to branding and marketing, so it’s important for business owners to be familiar with some of the legal rules related to domain names, including the intersection of domain name rights with trademark rights. This post also reviews actions you can take to dispute domain names that may infringe upon your trademark rights.
A domain name is the primary “address” of a web site, and nearly all website owners want to have a domain name that is identifiable and easy to remember.
If my company is called “Betty’s Plumbing, Inc.” and I have a trademark for “Betty’s Plumbing”, it would be most logical for my website to also be “www.bettysplumbing.com”. This would be the best way for current and potential customers to find me online.
Domain Names vs. Trademarks
A trademark is a word, name or symbol used in commerce to indicate the source of the goods or services and to distinguish them from the goods or services of others.
Trademarks and domain names are not synonymous, but the two concepts often meet when there is an issue of whether use of the domain name is a trademark violation.
The United States Patent and Trademark Office (USPTO) has made clear: “Registration of a domain name with a domain name registrar does not give you any trademark rights.” The USPTO also states that simply using a trademark as part of a domain name does not necessary serve the function of “indicating the source” of goods or services. In other words, using someone else trademark in your domain name is not automatically infringement. However, additional uses of the trademark by your business beyond your domain name could lead to trouble!
The biggest takeaway is that the issue is not black and white. Generally, we recommend that before you spend money on acquiring a certain domain name, you do some research to make sure your desired domain name does not contain a trademark belonging to someone else who has not given you permission to use it. Trademark violations occur when there is “confusion in the marketplace” – when a consumer could confuse the business represented by the domain name with another business represented by a trademark contained in the domain name.
Further domain name registrars such as GoDaddy and Google Domains do not perform any trademark ownership verification before registering a new domain name for you so it is your responsibility to consider intellectual property matters! If you need any assistance with this, please contact our Intellectual Property team.
Domain Name Disputes
Domain name disputes often involve companies battling over the ownership of domain names from “cybersquatters.” Some cybersquatters register domain names with the intention of selling them at high prices to the companies who own the trademarks. Others exploit domain names by taking advantage of the online traffic that popular brands attract and misdirecting consumers to the cybersquatters’ own websites for such business as selling counterfeit goods, or at worst, websites loaded with viruses, malware, and other malicious content.
The Anti-Cybersquatting Consumer Protection Act (ACPA)
You can file a federal lawsuit to challenge a domain name under the ACPA, a law enacted in 1999. ACPA allows you to challenge domain names that are similar to your business name and other trademarks. ACPA makes it “illegal to register, “traffic in” or use a domain name that is identical or confusingly similar to a distinctive or famous. If a trademark owner successfully wins a claim under the ACPA, the Court will grant an order that requires the domain be transferred back to the trademark owner. In certain cases, the Court can also award monetary damages.
Uniform Domain-Name Dispute-Resolution Policy (UDRP)
Another (and likely cheaper) way to challenge a domain name is through the Uniform Domain-Name Dispute-Resolution Policy (UDRP), a process created by the Internet Corporation for Assigned Names and Numbers (ICANN), the non-profit corporation that manages and controls domain name registrations. UDRP provides a relatively quick legal mechanism to resolve a domain name dispute by providing a streamlined procedure to transfer or cancel ownership of domain names.
Beyond offering a quicker dispute resolution process beyond federal court litigation, UDRP proceeds are also nice because it does not matter whether the trademark owner and domain name holder live in different countries. Filing a lawsuit in U.S. federal court generally comes with jurisdictional issues that are tricky if the domain name holder lives in another country.
If your business needs help with a trademark or domain name issue, please contact us today!
So after you have been in a car accident, you’ve made the first step in your personal injury claim: scheduling an appointment with a personal injury lawyer. Here’s what you may expect during this initial consultation:
- Details about the accident. Your lawyer will likely want to know everything leading up to and after the accident. The time of day, the weather conditions, what you were doing when you were hit, what you experienced upon impact, and all information that you obtained from the other driver. If you have the police report, pictures of the vehicles, and/or exchange of information sheet, make sure to bring a copy for your lawyer to review.
- Your insurance coverage. Specifically, whether you have UM/UIM (uninsured/underinsured motorist coverage) through your own insurance provider. Make sure you bring your policy information to the appointment.
- Your medical history. This includes past injuries and past motor vehicle accidents, especially if the car accident has aggravated any previous injuries.
- Your injuries. What injuries did you incur from the accident, and what medical attention you have sought. Bring the contact information for each medical provider that you have seen, along with any referrals that you have been given.
- The effect that the car accident has had on your life. Outside of injuries and medical appointments, how have your injuries affected your home life, personal life, work life, physical, emotional, and social health.
Social Media and Your Personal Injury Claim: Part One
If you have been hurt in an auto accident and are thinking about, or are already, pursuing a personal injury claim, and are one of the millions of people utilizing social media, there are things you need to keep in mind before posting on your online profile.
Anything you post, including seemingly harmless posts about a recent vacation or outing with friends and family, might be used by the insurance company to deny or limit your claim.
Keep the following in mind before you post:
- Request that your friends do not “tag” you in their posts as you do not have control over what they post.
- Change your privacy setting to maximum security, make your profile private, or temporarily suspend your profile.
- Do not accept “friend” or “follow” requests from accounts that you do not know.
- Do not post anything that you would not want a jury or a judge to see, even if you think you have a good explanation for it.
- Do not post anything about your personal injury claim.
- Do not post anything about your medical care.
- Do not post anything about conversations between you and your attorney.