Coogan in The Kid

Well before before Uncle Fester shaved his head and joined the Addams Family, the actor Jackie Coogan was appearing in silent film alongside Charlie Chaplin.  Unfortunately for Jackie, his parents spent all the money from his work and when he  turned 18 he had little to show for his time on stage and screen.  The spectacle  of a child star of Coogan’s stature being exploited in that way led to a California Law requiring that child performers be paid in such a way that around 15% of their pay is automatically placed into an untouchable trust fund that only they will be able to access when they turn 18 – many states around the country now have similar laws and they are typically referred to as Coogan Laws.  It is estimated that Bieber is worth around 100 million dollars.  While its impossible to know how much of that is held in a Coogan Trust, it is likely that upon his 18th birthday upwards of 15 million will available to him to spend freely and without oversight – not a bad birthday present.

While contracting with minors is always an issue when considering the enforceability of the agreement,  you also have to be aware of whether your state requires a portion of funds to be paid directly to a trust fund.  This is a matter handled on a state by state basis – presently performers in California, New York, Louisiana, and Arizona are subject to the trust requirements.  Other states have addressed the concern raised in the Coogan case by affirming that the earnings of the child are the child’s property (not the parents as was the argument of Coogan’s mother and father), and that the parents have a fiduciary obligation to safeguard the property.

Speicman Fail - A speciman of a mark in actual use is required for trademark applicaitons, but this one only shows the mark superimposed on the goods.

Since February 7th the Trademark office has received eight trademark applications for the term LINSANITY.   The products identified in applications range from clothing, jewelry, and sport drinks, to eyeglasses and cell phone covers.  The only problem is only one of these applications is on behalf of the Knick’s Jeremy Lin (Serial 85541426); and it is a basic premise of trademark law that you can not register the name of a living person without that person’s written consent.  Perhaps more concerning, however, is the attempt of people who know him to cash in on his name – one of the applications is by Roger Montgomery for the purpose of “Business management of sports people” (Serial 85542514) and who the Washington Post identifies  as Lin’s own agent.

While some of the applicants may try to argue that it is purely coincidental that they want to register the name in the middle of Mr. Lin’s hot streak (“by Linsanity, I mean LENS -Anity for eyeglass lens – really I did!”), presumably, the trademark examiners will call them out on this blatant attempt to cash in on Mr. Lin’s new found celebrity; but if they don’t, Mr. Lin’s attorney will be able to oppose the registration on his behalf.

This model creates a bit of a dilemma for the copyright holder because it is in essence a model based on using their photos to create traffic to someone else’s website.  Proponents of Pinterest argue that it isn’t really diverting traffic, but rather increasing traffic to business who may have images represented on user’s “boards.”   This is similar to the argument that websites solely consisting of framing (placing other websites’ content into a frame appearing on the framer’s website) used a few years ago in cases like Washington Post v. Total News.  While the Washington Post case settled, the complaint argued a variety of claims including copyright infringement and misappropriation.  On the flip side, in cases involving images that are part of search engine results, courts have found that the use of the smaller images constituted fair use under the Copyright Act (e.g. Kelly v. Arriba Soft Corporation,  336 F.3d 811).   Notably, however, cases like Kelly were very specific to the smaller inline images and found that that reasoning did not apply to larger images or images that were independently framed or linked to – arguably what Pinterest does.

So where does this leave Pinterest?  Quite simply – in a bit of a bind.  While many businesses will not care that their images are being used, as it can mean a real increase in their business, other copyright holders may be less enthralled since the same benefits are not bestowed upon them from the appropriation of their intellectual property.  While Pinterest can initially rely on the DMCA safe harbor (assuming they can continue to comply with take down notices), at some point they will be challenged on grounds that the site is designed for the purposes of facilitating infringement and therefore the safe harbor does not apply.  In my opinion this is a real dilemma – if Pinterest is to survive long term and generate real income they will need to distance themselves from a purely appropriation model of content development.

Additional reading:  Pinterest: Is It A Facebook Or A Grokster?

Much like the Three Second dropped food rule (if its on the ground less than 3 seconds its safe to eat), the eight note rule is similarly not true, and (hopefully) said  just in jest.  While copyright Fair Use does look at the amount of the original taken, it also looks at other factors – and while many subsequent creators would love a bright line rule like this, it is simply not available.   Even the Fair Use factor addressing the amount of the original works appropriated looks deeper than a purely mechanical calculation, by looking at both the amount and “substantiality” of what is taken.  Meaning, if what is taken is the heart of the original, the quantity of the overall work is less important.

Does this mean Unlimited infringes Somewhere over the  Rainbow?  I don’t know – I haven’t ever analyzed it using all the appropriate standards.  But I do now that seven vs eight notes probably won’ make the difference.  Perhaps its two notes, or perhaps it is 60 – but a bright line rule is more a humorous anecdote than legal advice.

Louboutin filed a trademark action against YSL, which YSL prominently countered with a counter-suit seeking cancellation of the Louboutin trademark registration.  Louboutin responded with a request for a  preliminary injunction temporarily preventing YSL from selling the shoes until the dispute was settled.  In August the court flatly denied Loboutin’s request.  The Court stated, “Because in the fashion industry color serves ornamental and aesthetic functions vital to robust competition, the Court finds that Louboutin is unlikely to be able to prove that its red outsole brand is entitled to trademark protection, even if it has gained enough public recognition in the market to have acquired secondary meaning. The Court therefore concludes that Louboutin has not established a likelihood that it will succeed on its claims that YSL infringed the Red Sole Mark to warrant the relief that it seeks.” However, “Color alone “ sometimes ” may be protectable as a trademark, “where that color has attained ‘secondary meaning’ and therefore identifies and distinguishes a particular brand (and thus indicates its ‘source’).” Conversely, color may not be protectable where it is “functional,” meaning that the color is essential to the use or purpose of the product, or affects the cost or quality of the product.”

In short, the Court argued that clothes are inherently aesthetic, the addition of an aesthetic feature like the color is merely a function of the design and therefore not protectable as a trademark.  I would imagine the same outcome had the designer claimed a specific cut of a dress or pant, or use of a specific material.  A finding converse to this would open the flood-gates to claims that new designs or aesthetics are trademarks and preventing any others from their use.   Taking this argument to an extreme, the “little black dress” is largely credited to Coco Chanel – if she had elected to trademark the aesthetics that make up this classic design, one would be hard pressed to recognize today’s fashion.   While the red sole has become synonymous with Louboutin, with women paying  $595- $1000 for a pair of these status symbol shoes, the ability to take an entire color off of the pallet of future designers would be far reaching and stifle the creativity contained in future catalogs and runways.

Thanks to Sara Harrison for her assistance with this post.

Dear Creative Minds and Brave Souls,

We are excited to officially open registration for Giant Steps 2011, a day-long interactive event for creative entrepreneurs and entrepreneurial creatives forging their own paths.

Giant Steps will inspire you, connect you with like-minded souls, and introduce you to valuable resources. Giant steps is where people in the know will exchange ideas and stories with people on the verge of their creative and entrepreneurial paths. Giant Steps is about creating a community and finding new ways of working. And Giant Steps believes a great day of connections and creativity is best finished with an amazing evening concert!

In the follow-up survey to last year’s Giant Steps, 83 % of the people rated their experience at Giant Steps 2010 an 8 out of 10 or higher, and 21 % rated it a 10 out of 10. We’re looking forward to building on that success and making this year’s event even better–with more stories, more connections, and more conversations about what works and what doesn’t in building a life based on doing what you love.

We’ve got new digs, too. This year’s event (daytime and evening) will be held at the world-famous Guthrie Theater. We’re excited to be surrounded by the combination of creative history, forward-thinking architecture, and the power of the mighty Mississippi.

You will want to be a part of Giant Steps if you are looking to advance your thinking, meet other creative thinkers and potential collaborators, and enhance your skills to move your work forward. Learn More!

When:  Friday, October 7^th,  2011

Where: The Dowling Theater at the Guthrie, 818 South 2nd Street, Minneapolis, MN 55415

Plenaries and Workshops:  9:00 am to 5:30 pm

Happy Hour on the Endless Bridge:  5:30-7:30 pm

Evening Concert:  7:30-10:00 pm (in the Dowling Theater, with a cash bar)

Cost: $95 if you register before Sept 23^rd (lunch, headshots, & evening concert are included) Register Now!

We’re bringing together inspiring Giants in many fields: creative entrepreneurs in design, artist activists and educators, technology software entrepreneurs who double as music promoters, chefs, photographers, musicians, consultants, and more. They’ll share their stories of how they got started, what’s worked and what hasn’t, and where they see ideas and possibilities for the future. This year’s event will feature a mix of new and returning speakers—including acclaimed photographer Wing Young Huie, Blu Dot COO Maurice Blanks, musician/actress/activist Maria Isa, playwright and performance artist May Lee-Yang, and many more.

There will also be workshops and panels to help you acquire the practical information and contacts you need add great value to your work–from information about alternative funding models , to discussions on more effective ways to promote and market your work, to legal and tax-related solutions. Become a part of this talented and forward-thinking community of Giants.   Register now!

To keep up-to-date on the list of speakers and other details about Giant Steps, be sure to “like” the Giant Steps Facebook page or follow Giant Steps on twitter.  Please help us to spread the word by sharing this information freely with your friends, colleagues, and any other Giants you may know.

We look forward to seeing you on October 7^th!

Peace,

Susan Campion, Founder of Camponovo Consulting

Kwame Tsikata (M.anifest), Artist

On time payment and record keeping: While it may seem obvious, small business owners often forget that their employees expect to be paid on a regular schedule and may not care that the boss is on vacation and hasn’t gotten around to writing out the checks.  Services handle this for their customers automatically and will mail out checks or make the appropriate online deposits upon request.

Withholding: One major issue overlooked by many businesses is their obligation to withhold taxes and to pay them into the government.  Miscalculating these fees, or worse, withholding them and using them for other business purposes is a huge problem.  A common statistic is that one in three businesses are penalized for missing tax deadlines.   Additionally, If you have employees, you also have an obligation to send annual statements to both the employee and the government about wages paid and taxes.  By having a service handle this, the risk of common errors is greatly reduced, thereby lowering the employers potential to make costly legal errors.

Signage: If you have workers, you are most likely required to post signage at your work place advising your employees of their rights under the law regarding things like overtime pay and worker compensation.  Failure to display proper signage is a common error for employers and can lead to fines.  Most services will provide you with   appropriate signage and can be a resource for understanding what may required of you.

By no means is this an exhaustive list of your payroll obligations, but they do demonstrate that these tasks sometime take you away from doing core parts of your business.   For a relatively low fee, many services will perform these services for you, as well as many other parts of the hiring process, thus putting this highly bureaucratic process into the hands of people that handle it on a day to day basis and can handle it far more efficiently than you might be able to.  When evaluating services consider their experience level, their ease of use, the scope of their services, and their fees.

Websites selling counterfeit designs are a huge problem for the fashion industry because of the damage to their profits and brand integrity.  While some argue that the consumers who buy the knock-off are not the same as those who will buy the real-deal, this argument avoids the fact that exclusivity of the designs is one aspect of what give the marks of these designers value.   When thousands of sub-par handbags are suddenly available, not only is the quality of the product related to the counterfeited goods put into question, but so is the exclusive aura surrounding the product.

While the actual designs of most manufacturers are not protected by copyright (clothing is not protectable subject matter), holding the product out as being sourced from the original designer violates their trademark rights.  Counterfeiters be aware – the courts are looking at new and more aggressive ways of taking you down and preventing you from profiting from harming the trademark rights of the designers you are ripping off.

Thanks to Sara Harrison for her assistance with this post.

The Copyright Office is requesting comments on eliminating these licenses, making them permanent, and alternative licensing arrangements.   Three specific proposals have been put forward as alternatives:  1) Sublicensing the transmissions – shifting responsibility for payment of copyright holders to the original broadcast providers as a part of their original broadcast license; 2) Private licensing – requiring the satellite and cable providers to seek individual licenses from each copyright owner; and 3)  Collective licensing – converting the system to something akin to the current system used for music performance copyrights (BMI. ASCAP, SEASAC, etc).

The complete text of the notice can be found at http://www.copyright.gov/fedreg/2011/section302noi.pdf