Legal Challenges Of Successful Entrepreneurship In An Internet Age

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

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 IP Issues for Creative Professionals and Entrepreneurs

Moderator: Fred Koenig, Volpe and Koenig

Part 1: Conquering Copyright ConfusionRenee Hobbs, Temple University

Part 2: The Impact of New Technology and Social Networking on MusicTanya Bridges, Dada Entertainment

Part 3: Trademarks, Trade Secrets and the InternetMichael Snyder, Volpe and Koenig

Renee HobbsMedia Education Lab

Temple University

To promote creativity, innovation and the spread of knowledge

Article 1 Section 8U.S. Constitution

Use and ShareCopyModifyRepurposeDistributeExcerpt/Quote from

Restrict

Limit

Charge high fees

Discourage use

Use scare tactics

Copyright Confusion

See no Evil Close the Door Hyper-Comply

withaccurate knowledge

When I use the creative work of others in my own work, which concepts apply to my situation?

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 107Copyright Act of 1976


Criticism, comment, news reporting,

teaching, scholarship, research

…

but also many forms of creative work that advance and spread

innovation

Criticism, comment, news reporting,

teaching, scholarship, research

…

but also many forms of creative work that advance and spread

innovation


Fair use of copyrighted materials is allowed when the

benefits to society outweigh the private costs

to the copyright holder

Fair use of copyrighted materials is allowed when the

benefits to society outweigh the private costs

to the copyright holder

Fair use prevents copyright law from becoming

a form of private censorship

Fair use prevents copyright law from becoming

a form of private censorship

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

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 material5.

distribute their works digitally if they meet the transformativeness standard

Organizations Supporting the Code of Best Practices

Action Coalition for Media Education (ACME)

National Association for Media Literacy Education (NAMLE)

National Council of Teachers Of English (NCTE)

Visual Studies DivisionInternational Communication

Association (ICA)

Association of College and Research Libraries (ACRL)

What is the Relationship between Fair Use and Creative Commons?What is the Relationship between Fair Use and Creative Commons?

1201ANTI-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

The Impact of New Technology and Social Networking on Music

Tanya L. Bridges VP, Legal & Business Affairs, Dada Entertainment

Music and CopyrightMusic 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 MusicStreaming Music

• Streaming Music = Public Performance– What is public performance?

• Broadcast, over the air, Internet

LicensingLicensing

• 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

LicensingLicensing

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

royalties

Social NetworkingSocial Networking

• Effect of Social Networking and New Technology on Streaming– Online and mobile radio stations– YouTube– Facebook and MySpace

Music Stream Law EvolvingMusic 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, Trade Secrets and the Internet

Michael F. Snyder Shareholder, Volpe and Koenig

TrademarksTrademarks

TrademarksTrademarks

• 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“Registered” Trademark

FEDERAL REGISTRATION

“COMMON LAW”

Spectrum of Trademark DistinctivenessSpectrum of Trademark Distinctiveness

• Fanciful/Coined

• Arbitrary

• Suggestive

• Descriptive

• Generic

Trade DressTrade 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 InfringementTest for Trademark Infringement

• Whether there is a likelihood of confusion between the marks1) 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; and8) sophistication of buyers; cost of goods/services

Trade SecretsTrade Secrets

Trade SecretTrade 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 SecretsExamples 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 InternetTrademarks 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


• Metatags– HTML code intended to describe the

contents of the web site– Picked up by search software (spiders) to

return “hits” on search engines


• Keywords/Adwords– Term for triggering advertising or

displaying links– Banner ads– Pop-ups


• 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 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 UseTrademark 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 UseTrademark 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”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 InternetTrade Secrets and the Internet

Trade Secrets and the InternetTrade 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”Trade Secret Internet “Traps”

• Circulation/Distribution• Publication• Failure to protect secrecy• Inadequate steps to protect

Thank You!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.

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Legal Challenges Of Successful Entrepreneurship In An Internet Age

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