Posts By Herminia Fleming

What Happens to A Social Media Profile When Someone Dies?

More people use social media every day than ever before. People continue to sign up for sites like Facebook, Pinterest, Google + and more. But, the reality is the question of what happens when a person dies? Does the social media account go away?

The answer is that it depends on the platform. Pinterest specifies in its rules and terms that it does not do anything. Your account could remain up indefinitely. If you are a Facebook user, Facebook will either change it to a memorial page, leave it be or delete it. They need to hear from loved ones to find out you or a loved one has died.

There are no laws that pertain to this sort of thing in the United States. There probably should be because of how susceptible online profiles can be to trolls or people who are mean-spirited and just want to put comments on a page that is not actively monitored. That does not exactly help the surviving family members but the fact that this can happen should be a cause for deciding ahead of time what your social media wishes are.

A simple way to handle this is to assemble a list of everyone’s usernames and passwords. The thought of collecting information like this is not easy to deal with, but remember that it will go a long way in the event of someone’s passing. You can avoid dealing with unpleasant comments about a loved one or seeing their page get bombarded with endless amounts of spam.

If you do choose to leave a page up as a memorial, Facebook allows this as long as they are in receipt of an obituary from an official publication. They will review the information before memorializing the account.

Allergan Finds Its Way Around Patent Procedures

For five years, the Patent Trial and Appeal Board (or PTAB) has been in charge of determining whether a patent is, well, patentable. The problem is that it’s really easy to launch a challenge against a patent either already in place, or in the process of being implemented. Critics of the board want big changes to the processes used to determine whether a drug or other product is suitable for patent, but not everyone is willing to wait for those changes. Allergan Plc is willing to pay a hefty price rather than see its drug opened up to an appeal process that might not go its way.

That’s why the drugmaker opted instead to transfer its patents to the Saint Regis Mohawk Tribe in Upstate New York. The tribe stands to make $15 million annually in royalties just for hanging onto the patent for Allergan, which made $1.49 billion in sales in 2016. Because Native American tribes aren’t bound by the same laws as anyone else who lives in any of the fifty states within the U.S., it can hold onto the patent without falling under the watchful eyes of the PTAB, thereby guaranteeing that the drug can continue to be sold into the foreseeable future.

When your company makes billions, it pays to be sneaky. The PTAB has reversed so many patents that it has been nicknamed a “death squad.”

Then again, not everyone thinks the board is bad news. Google and Apple are routine users of the board, using it to defend against potentially frivolous lawsuits that could damage their reputation and capacity to do business for the greater good, while also attacking patents they don’t like.

Because the PTAB is so controversial and has overturned so many patents, the Supreme Court is finally getting involved. As of June 2017, it decided to hear arguments as to whether or not the board’s recommendations and reviews are indeed legal. The potential that the court will rule in favor of the PTAB is more likely than not, but critics of the board are happy that the issue is finally getting the attention it deserves.

Opposition to the PTAB criticizes the board’s rulings because it regulates the kind of evidence that can be offered during appeals processes, and then often fails to explain the resulting decisions. That’s why Allergan and other companies are trying to bypass the board entirely rather than work with it. Others contend that the PTAB is overburdened. When originally conceived, there was an expectation of perhaps an annual pool of only a hundred or so petitions, while in reality there were thousands.

The tech companies that fought for the board’s creation aren’t backing down from the fight. After the board was created, the number of lawsuits filed against Silicon Valley tech startups and bigger companies like Apple or Google started to fall. On the other side of things, they’ve been able to challenge patents that are similar to their own.

Whether or not changes will be made might depend on whoever finds their way into the post–Barack Obama’s appointee has since left–and the decision of the Supreme Court.

What Is Public Domain and What Does It Mean?

The term public domain is heard on a regular basis, but what does that even mean? It is a legal term that essentially applies to works like books, audio recordings, and films. It means that there no copyright.

Some people confuse public domain to mean that any work that is no longer under a copyright is free and does not cost anything. Public domain has nothing to do with cost. It has to do with ownership of intellectual property.

When it comes to creative works or any work that a person crafted on their own, it is their ideas or intellectual property that must be protected. This is so that no one else can claim that they wrote a song like “Yesterday” by the Beatles and pass it off as something they created. That just would not be fair to the people who really wrote it using their own ideas.

Laws developed over time to protect this type of property and intellectual property law is the branch of law that covers this area. When a person creates a work they usually either have to copyright it or they should. A person does not have to be a famous artist or singer to copyright something. It is a form of legal protection to keep the work from getting copied as described above.

Copyrights do expire. For books, the copyright stays in effect until the author dies and 70 more years pass. Once this time is up, that author’s work enters the not-so-mysterious world of public domain. Some works fall out of copyright if the creator does not renew a copyright.

There are some occasions where the creator of a particular work decide to let his or her copyright go. They want it to fall into public domain as a gift to those who wish to enjoy their work. When a work is in public domain, it means that you can copy portions of it in print, for example, without having to obtain copyright permission.

You can, for instance, reprint a book online in its entirety as long as it has become public domain. This does not mean you can go around claiming you wrote it. But, then again, most people probably would get suspicious if you told them you penned “Treasure Island.” Either way, works that are in public domain have expired copyrights which can make them easier to obtain and enjoy.

Here are a few examples:

The Picture of Dorian Gray by Oscar Wilde
Jane Eyre by Charlotte Brontë
Pride and Prejudice by Jane Austen
Frankenstein by Mary Shelley
The Adventures of Huckleberry Finn by Mark Twain
Wuthering Heights by Emily Brontë
Dracula by Bram Stoker
The Wonderful Wizard of Oz by L. Frank Baum

When A Copyright Holder Dies: What Happens To The Copyright?

There are many different things that might be protected by a copyright, and the person who files it is the legal owner of the material. However, many people wonder what happens to the copyright once the person has passed away.

The answer varies a little based on a few factors. But, you should know that it absolutely does not become public domain! Generally speaking in the US today the copyright is still in effect for 70 years after the author passes away.

However, this has not always been the case. Over time the laws regarding materials that have been copyrighted have begun to recognize it as a tangible asset to the extent that is possible. While these things were once lumped in with service-based contracts, that is no longer the case.

Just like other pieces of property, copyrights can be given to beneficiaries. The law allows people to reassign and redistribute copyrights as a part of estate planning. However, copyright holders don’t have to retain possession of the copyright.

They can be legally transferred, usually via a licensing agreement, giving another party ownership of the material. This implies only certain rights being given over. On the other hand, an assignment will transfer unconditional rights to the new party. Interestingly enough, there are some instances where several decades after the creation that the transfer can be terminated by the author or their heirs.

These rules regarding copyright holders regard authors and similar artists rather than corporations who are bound by a completely different set of legal protocol. However, if you are interested in understanding the law for yourself or are studying up for a friend, this information should give you a good start.

Keep in mind that materials created prior to the early 1970’s might not have the same protection that newer works do. Before making any decision regarding copyrighted materials, find out when it was written and any other pertinent information regarding it, including publishers and dates.

The law has evolved to help protect the creative properties of authors and their works. Doing so not only allows them greater control over how the works might be used over time but also ensures that any royalties from the works go to the person or people that they want to receive it. Continue learning more about this fascinating aspect of the law and the world of publishing!

Swastika as a Trademark

As is often the case regarding any sort of particular legal practice, the specifics behind intellectual property law and trademark law come with a bunch of snags that several people outside of the practice don’t necessarily consider. For example, there once was a man by the name of Steve Maynard who attempted to register the Swastika and the N-word as trademarks for a business group, Snowflake Enterprises, LLC. Recent changes to U.S. Trademark Act had found unconstitutional the provision that banned certain images or concepts to be trademarked based solely on whether or not they were considered “disparaging.” Maynard, a local of Alexandria, Virginia and one who claims he is “not at all” a racist by any stretch, stated he wanted to trademark the Swastika and the N-word – strikingly enough – to combat their use and marketability by white supremacists. He believed, by trademarking these specific symbols, he could curb the market on Swastika flags by artificially inflating the prices on them to the point that no one would want to buy one, or by reframing the use of the N-word in images that inspired conversation and debate rather than hateful rhetoric. And while many might consider this a noble act to counter certain social beliefs in America, Maynard – a one-time patent examiner – failed to account for a couple of major flaws in his plan.

For one, even despite apparently having the best of intentions, Maynard would have had to register the trademark of the Swastika under a slew of different categories for product use in order to secure the Swastika solely as the trademark of his company. This includes products as teeshirts, coffee mugs, flags, and whatever other sorts of paraphernalia one can consider slapping a prominent socially recognizable symbol upon. That is not to say that he couldn’t accomplish something like that for a variety of other potential trademarks. But, it certainly does provide a bit of a kink in his plan to market (or rather, take off the market) the Swastika.

The bigger and more hampering problem is actually the social perception the Swastika represents. While Maynard’s intent was to utilize it on the market in order to destabilize its availability, the Swastika as it is recognized within the public eye is hardly ever used as an actual marketing device. Rather, because of what the Swastika represents politically and socially, to use the symbol outside of Maynard’s attempt to trademark it for his own business would have proven futile. Because of its proven standing as a political and social symbol instead of being a symbol for commercial use (compared to, say, Apple’s “bitten apple” logo or Google’s rainbowesque G), to use it outside of how Maynard intended to market it would not have been considered infringing upon the commercial intent of  Snowflake Enterprises, LLC. Generally speaking, infringement of this sort is only committed when there is a substantial confusion caused in terms of who is marketing the product. Because the rainbow G associates so strongly with Google as a marketing device, for someone outside of Google to use it in a public, commercial display would cause confusion as to who was actually marketing the product and thus making a profit off of its use. However, because the Swastika has such strong social ties outside of Maynard’s potential to use it as a marketing device, many people don’t interpret it as a commercial logo and so do not associate it strongly with any given company as opposed to a group of socially like-minded individuals who are not necessarily out to profit financially by its use; rather, they use it as a symbol of their group’s ideals, and so – as a political device – it isn’t effectively marketed for commercial use by one business entity or affected very much at all by trademark laws.

Taylor Swift and Her Trademarks

As we walk through the world of a slowly-overwhelming corporate America where everything is little more than a marketing device, it’s usually nice to think we as consumers can fall back on something that usually (usually, I said) doesn’t involve any sort of direct product advertising: music. Music has been around for centuries, developed through various styles and tastes from virtuosos and geniuses of a wide array of backgrounds to evolve into the plethora of genres and subgenres that we are capable of enjoying at our own leisure today. However, in the modern world, some might argue that while music itself may or may not remain genuinely pure, the musical artists whose childhood dreams involved belting a tune on a stage in front of thousands of adoring fans may or may not have gotten something lost in translation along the way. Now, it’s safe to say that musical artists are greatly celebrated for their talent and their lyrics that can inspire a whole generation on the spot, but with that goal successfully reached, where do they go from there? Some use their fame as a voice of influence. Some branch out to other fields: movies or TV shows chief among them. And there are some who go on intelligent property and trademark binges.

Remember when our President Donald Trump attempted to develop the common phrase of “You’re fired” into his own brand? The popularly-used, two-word phrase slung around by the businessman-turned-reality-TV-star-turned-world leader (whatever opinions you might have of him, this is the current reality) nearly became the sole property of our highest government leader. Granted, it was rejected based on a more rudimentary and empirical reason, but to many of us, the idea of capitalizing monetarily on such a common phrase such as that borders on idiocy.

But, the phenomenon of trademarking is hardly a new one, and hardly one that the musical industry has attempted to capitalize upon. While many tend to attempt applying trademarks to band names or specific song titles or even specific gestures (cue the famous Gene Simmons “devil horns” which personally reminds me more of a pretty famous college football gesture anyway), Taylor Swift appears to have been on quite a tear over the last several years in attempts to trademark more substantial portions of her lyrics.

With the intent of furthering her brand as one of the more successful musical artists since the turn of the century, it’s pretty easy to see why Taylor Swift might want to capitalize on specific phrases such as “This sick beat” or “Party like it’s 1989.” But, at some point, one has to wonder: is this for protecting your specific brand? Or is it simply an excuse to slap wholly unnecessary lawsuits for what some might consider to be trivial product placement at best? Intellectual property law is a fickle thing, after all, and one of the conditions that must be met regarding trademark applications is whether or not the trademark in question is actually being used in a commercial setting or at least comes with an intent to use it regarding specific categories of merchandise. And while I’m sure Ms. Swift could come up with a plethora of ideas for merchandise regarding some of her trademarks, there is always the simple question of how aggressive she is with patenting several lines of lyrics and how she might apply them to a commercial setting. Many diehard fans only ever want officially licensed merchandise to show support for a particular brand as opposed to bootleg knockoffs anyway. So, in an ever-increasingly corporate industry such as that of music, the aggressive tactics to protect her intellectual property make you wonder just how much of it may be about the fans and how much of it may be about – and I’m sorry to all the “Swifties” out there – the money.

Famous Logos From Around The World

Most of us don’t give any real thought to where logos actually come from beyond what we can see. The people behind these artistic masterpieces were sometimes inspired by the smallest of things or by the most iconic of symbols before stamping their own little bit of history. Most of the creators of the most famous logos probably had no idea they would become so popular or become so widely used throughout cultures around the globe. These are just a few of the most famous logos used all around the world because they don’t assault our eyes.

Frank Seiberling never disclosed the creator of the Goodyear logo, but that doesn’t really matter. The icon of a pair of winged boots in between the company name is known almost any place where the company does business and was inspired by the Greek god Hermes. That shouldn’t be a huge surprise considering the company’s emphasis on speed and efficiency.

The Mobil Oil icon has changed substantially over the years, but it remains well known anyway. Although colors, font, and other parts of the logo have been altered over the decades since the company began (in 1911), the pegasus has been a primary component of the logo the whole time. 1964 was the first year that Mobil Oil used red to emphasize the “O” in Mobil.

Target was originally founded in 1902 and always used a target as part of its icon. For a long time, it was larger, included more rings, and was black. The single ring design didn’t arrive until 1980 and hasn’t changed too much since it debuted.

The Audi logo has been through a number of iterations, some embracing the new, while others fell back upon the old. The most common component in most is a number of interlocking rings, which are silver and hover above a red-lettered Audi in more contemporary designs. Although the silver rings weren’t always present in the logo after the acquisition by Volkswagen Group, they remained a core part of the grill on every vehicle made.

One of the best-known logos worldwide is that of lego, and its iconic red, yellow, black and white will forever be a part of our imaginations from childhood and onward. The logo used right now was implemented in 1998, but it isn’t much different from its previous version which came to be in 1973.

Sometimes an icon or logo is so well known that you can just drop the name altogether–and that’s exactly what Nike did in 1995. Today, the logo of a curved checkmark is still as simple and effective as it always was. The name Nike also belongs to a Greek goddess who symbolized victory, and Nike has clearly embraced the same over the years.

Logos of long-lasting companies are clearly the best known throughout the world, but a powerful logo might just be the key to creating a company that does indeed endure.

Famous Copyright Infringement Cases

By now, everyone should know that you can’t just steal artistic or intellectual properties that you don’t hold the rights to and use them however you like. The laws against doing so are strict. Although sometimes law enforcement doesn’t always uphold those laws routinely, the blow can be disastrous when and if that hammer falls upon you. Copyright is a serious issue, and because IP is becoming more difficult to manage, laws and regulations are adapting quickly. These are some famous copyright infringement cases that might make you think twice about using something that necessarily doesn’t belong to you.

Ann Kirsten Kennis worked as a model in the 1980s. Decades later, she had transitioned into motherhood. Her daughter sauntered into the house with a Vampire Weekend album called Contra. That album’s cover had a blatantly pilfered picture of Kennis from when she was a model, and so a whopping $2 million lawsuit resulted. Because cases like these are often settled behind closed doors, the settlement amount remains undisclosed and we’ll probably never know how much Kennis got for this serious copyright infraction.

Somehow, people are still realizing that you can’t use music in advertisements without permission to do so. When Adam Yauch of the Beastie Boys passed away, he left specific instructions that the music was not to be used in such a fashion. That didn’t stop a San Francisco startup called GoldieBlox from putting together a creative YouTube video in order to advertise its toys using the song. Ironically, it was GoldieBlox that sued the Beastie Boys upon hearing of copyright infringement allegations, arguing that parody use of artistic endeavors is protected (that’s why shows like South Park and Family Guy don’t have to worry about lawsuits when they mimic content or potentially defame celebrities and everyone else). GoldieBlox lost their suit.

Speaking of parody, it’s always been a hot topic of fair use laws. When artist Jeff Koons created a sculpture based on a photo entitled “Puppies” taken by Art Rogers, Koons argued that his sculpture was a parody. A jury disagreed since the sculpture provided no direct commentary on Rogers’s photograph or its contents. People often realize their best defense with this type of case is parody, but that does not often do the trick in a court of law.

“Blurred Lines” made a lot of money for Robin Thicke and Pharrell Williams, but its obvious resemblance to a 1977 song by Marvin Gaye led to claims of copyright infringement. Once again, it was the accused that preemptively struck with a lawsuit claiming that the Gaye family was arguing copyright for the genre of music as a whole. The Gaye family won, but is currently seeking more monies.

At the end of the day, it’s better to base your artistic endeavours on your own imagination rather than take the chance of ending up in a courtroom for a ridiculous amount of money.

How Do You Cancel A Trademark?

You can make your mark in your trade with a registered trademark.

However, if you are not careful, your mark could be erased by someone else. That precious trademark is not in permanent marker.

It is possible that your trademark, as brilliantly clever as it is, may well be challenged by what is called a trademark cancellation petition, which can be filed by a third party such as a lawyer for some specified reason.

What is a Trademark Cancellation Petition?

When an entity (firm or individual) has grounds to challenge a trademark, the entity can file a petition to cancel a trademark through the U.S. Patent and Trademark Office. The petition is what it implies – it is a legal document requesting an administrative hearing in front of the Trademark Trial and Appeal Board (TTAB).

Why Could a Such a Petition be Filed?

A petition to cancel a trademark is specifically meant to be something other than a weapon of revenge or jealousy against another person who might have a successful trademark.

There are only a limited number of grounds to bring a petition to cancel a trademark before the TTAB. These are:

  • The mark is too generic (like a company called “Balloon”);
  • The mark has not been used for at least three years, with no apparent intent to re-use;
  • The mark was achieved fraudulently; or
  • What is called “priority,” where the mark interferes with the ability to do business or the mark was used by another party before it was registered.

Is There a Time Limit to File a Petition?

Generally speaking, a petitioner has up to five years after the registration date in order to file a petition to cancel, though a petition filed after five years may be heard under very strict circumstances.

What is a Trademark Cancellation Proceeding Like?

This is a legal proceeding in an administrative setting, which is in some ways similar to a civil court case. It is an adversarial proceeding, which means that the registrant and petitioner may cross-examine each other and scrutinize each other’s evidence and testimony in the case. Because of this, it is not advisable for a party to represent himself for herself in the proceeding, but instead, have a knowledgeable patent law attorney represent your interests.

What is the Result of This Proceeding?

Unlike a civil proceeding, an administrative proceeding like a trademark cancellation does not have monetary damages as a result of the hearing. Should the petitioner win, the trademark would be canceled. Should the registrant win the hearing, the trademark registration remain would intact. The parties may negotiate a settlement outside of the hearing, though.

The Bottom Line

It is understandable to protect your business assets by looking to establish a trademark for your company or your product. But make sure you do your research and check out the legal history of trademark applications to ensure there are no possible grounds for a petition. After that, follow all the rules regarding trademark registration to protect against claims of fraud.

Parodies, The 1st Amendment & Copyrights

The Simpsons. Saturday Night Live. Family Guy. South Park.

At different times, many of us enjoy parodies of various cultural icons and public figures. Many of these shows garnered headlines for some of the parody work they had presented, where they poked fun at various parts of society or culture, whether they be religious symbols, trends, presidents, legislators and even entire groups of people.

Many of us laughed at these parodies. Some of us did not have a sense of humor and got angry. But parody has been part of comedy, entertainment and the fabric of America from the start of the Republic.

Despite their prevalence in our culture, are parodies actually a form of copyright infringement?

Parody is on a razor’s edge, walking the tightrope between a First Amendment right to expression and infringing on a copyright. Sometimes you hear about a lawsuit in support of the original idea which was parodied, claiming infringement, but those who do parodies have a couple different defenses which courts have recognized as exemptions in copyright law.

Copyright law prohibits significant use of any creative work without consent of the copyright owner. And as parody is inherently based on mocking an original “work” of some kind, so there are some legal guidelines that will allow parodies without copyright owner permission.

One defense for a parody can be First Amendment expression, of which the courts have granted pretty wide latitude. One key exception is when the parody is deemed to be created with a profit motive in an attempt to usurp the copyrighted work in the public. Another issue is to not use a significant amount of the work in a parody – and courts have been all over the place in defining “significant.” One guide could be to do a parody of Wal-Mart shoppers but don’t use the Wal-Mart name or familiar colors, as an example.

Another exception from copyright law can be the “fair use” defense, which is often used in many parodies. There are a number of factors that go into determining a parody as a legitimate use of “fair use.” They are:

  • Whether the “new work” (parody) has a different purpose or “character” as the original work;
  • The “nature” of the original – does it require more protection than some other work (historical significance, for example)?
  • The amount of the original work that was used in the parody – and is the parody based wholly on that portion?
  • How would the parody impact the market value of the original?

As mentioned before, parody is prevalent in the media and in social media, and there is some deference to artistic expression with parodies, but the key is to have just enough different so as to not make an obvious connection to the work being parodied. Playing a mental game where some people can mentally conclude the parody while others may not reasonably notice, is where the line is drawn. But as so many minds are different, that line continues to be fuzzily defined.