Copyright. Supreme Court. Is Fashion protectable?

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Fashion. Copyright.

The Supreme Court ruled on copyright and fashion.  Can fashion be protected by copyright? This landmark copyright case will impact the fashion design industry for decades to come. This case began 10 years ago when Varsity Brands, Inc. sued Star Athletica, LLC for copyright infringement. Both companies supply uniforms and other accessories for sport related events. The lawsuit centered on a copyrighted two-dimensional stripe pattern and colors used on Varsity Brand cheerleading uniforms which they claimed Star Athletica infringed upon.

fashion. copyright.

fashion. copyright.

The case was originally heard by a federal  district court sitting in Memphis, TN in 2014, where Judge Robert Cleland ruled that the designs were utilitarian, and since utilitarian designs are not subject to copyright law, the case was dismissed.

Fashion.

Varsity Brands appealed the ruling and the case went to the Sixth Circuit Court of Appeals in Cincinnati, where the district court ruling was reversed in a 2 to 1 decision. Among other findings, the court found that the designs in question could be separated from the utilitarian aspects of the uniform, and that the designs could stand on their own separate from the cheerleading uniforms, thus eligible for copyright protection.

Is Fashion Protected by Copyright?

The case then made its way up to the Supreme Court, where finally, a ruling was announced this Wednesday. Varsity Brands came up victorious, once again.  In short,  Judge Thomas, who delivered the opinion of the Court, affirmed the decision of the Sixth Circuit  Court, holding that

“a  feature  incorporated  into  the  design  of  a  useful  article  is  eligible  for copyright  protection  only  if  the  feature  (1)  can  be  perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable  pictorial,  graphic,  or  sculptural  work-either  on  its own  or  fixed  in  some  other  tangible  medium  of  expression if  it  were  imagined  separately  from  the  useful  article  into which  it  is  incorporated.”  The Court held that the test was satisfied in this case.

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Join my conversation on FacebookTwitter, or in one of my LinkedIn groupsGoogle+ Circles. Feel free to subscribe to my newsletter.

 

 

Female Empowerment. Intellectual Property. IP Lawyers.

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Female Empowerment.

Empowering and mitigating the next generation of female IP lawyers

On January 21st, women from all parts of the United States participated in the “Women’s March.” The march was a direct response to the inauguration of Donald Trump a day earlier and drew about 500,000 people to Washington D.C. Other marches followed throughout the country in cites including New York, Los Angeles, San Francisco, as well as London, Paris, Barcelona, and Brussels, just to name a few.

The purpose of the Woman’s March was to rally for women’s issues, as well as issues like the environment and immigration – to empower women to have a voice and let their concerns be heard.

Being a female attorney specializing in IP (intellectual property) law, I have a personal goal to inspire and mentor women who want to become attorneys to pursue careers in IP law.

Why does it matter—you may ask?

With technology progressing at a breathtaking pace, the need for IP attorneys is exploding. Furthermore, I believe that women should be leaders and players in this global field. It took women far too long to establish themselves in other areas of the law, such as criminal law. I don’t want to see women playing this type of catch-up when it comes to IP law.

Yes, it’s true that women have made great strides in the law over the past couple of decades. According to the legal blog, Associate’s Mind, women could be the majority of law students in 2017. While that’s great news for women, and for the law profession in general, women are lagging when it comes to IP law. And I, for one, believe that women have much to offer in this vital field.

So, what can women practicing IP law do to help fellow women who are interested in getting into the field?
Mentoring, mentoring, and more mentoring. That’s how I see it. We can tremendously by focusing on the following four points:

1. When asked, take the time to answer their questions;,
2. Encourage them, but at the same time tell them the truth about your experiences, good and bad;,
3. Teach and encourage them to be responsible and explain the hard truth, regarding what will be expected of them, and
4. Of course, let them know they always have choices.

Yes, now more than ever, it’s important that women feel empowered to pursue the life and careers they truly want. We cannot slip backwards after all the hard-fought progress we have made over the last few decades. I can and will do my part when it comes to practicing IP law. What can and will you do to help women be the leaders and innovators of the future?

Machu Picchu. Bucket List.

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Bucket List.

Machu Picchu

Machu Picchu

Not sure why it’s taken me so long to publish this post, but it has.  Some might call it lazy, but lazy I’m not.  Some might say, I was too busy to focus on it. But if the truth be known, I was not too busy; I was just a procrastinator. In any event, here we go!

A few months ago, I was watching a segment of Sunday 60 Minutes called, the Children’s Village. I was touched by the humanity of India Howell and her business partner, Peter Leon Massy.  Their love of and desire to help children was heart-touching. It also reminded me of my recent adventure in Peru.

Machu Picchu. Bucket List.

Machu Picchu was never on my bucket list.  No, I was not jumping for joy at the opportunity to travel 12,000 feet above sea level—in hiking boots.  I mean the truth is, I’m a high heel kind of girl—5 inches high, I might add.  Yet, much to my surprise, when given the chance to journey to Peru in July, I was willing and able to show up.  That’s how life works. When we are open to the endless possibilities presented to us, we get so much more than we planned. At least that’s my experience.

12,000 Feet Above Sea Level.

Because I had never ventured to such a high altitude, I was a bit concerned. So, I prepared myself for the journey. I spoke with several friends who had trekked up the mountain, and had a conversation with my doctor about appropriate actions to take.  But the interesting and most telling thing is that I took the suggestions offered to me. What a novel concept. That single action allowed me to avoid the sickness often visited upon high altitude hikers.

First Class Travel, not so shabby!

The actual flight to Peru was delightful. Because I travel a lot, I’m an elite flyer on American Airlines and a lifetime member of the Admirals Club. Being an Executive Platinum has its perks, and there is something to be said for first class accommodations.  It makes a difference. So even though I arrived into Cusco at 5am Sunday morning, I felt rested.

The Bread House.

But the real fun began on Monday, which was our humanitarian day.  We left Cusco at 6am headed for the Azul Wasi Orphanage.  But let me step back. On the way to the orphanage, we stopped by a bread house.  Peru is a relatively poor country, so folks make money in whatever way they can.  Many bake and sell bread in their homes, hence bread house. The bread was so delicious that I took several wheel-shaped loaves home.  Perhaps because I love bread, but also because it was my small way of supporting the economy in this poor village. Three months later, I’m still eating bread.

Azul Wasi Orphanage.

From the time we arrived at the orphanage, I felt like I was steeped into a magical experience.  Nineteen kids greeted my small group with bear hugs and kisses. Wow! What a sweet and pleasant surprise.  They were so happy to see us, and made sure we knew it.  From that moment until we left the orphanage hours later, my heart was cracked wide open. Had I returned to San Francisco after that day, I would have felt fulfilled.  But there was more to come.  It was the start of an affair to remember.

On one hand, being with the kids was joyful. But on the other hand, it was sad. For most of these children, being at this orphanage was a place filled with more love than they have ever known.  Most of them had lived on the streets since they were barely able to walk. Their ages ranged from 3 to 19-years old, yet you could see in their little faces that they were old beyond their years.  Drugs, alcohol, and the streets were all some of them knew.  It was sad to hear their stories, and for the most part, we couldn’t discuss it with them. The memories were too fresh and painful.

I, more than anyone in my group, understood their plight. While not an orphan, my childhood was lost to drugs, alcohol, and a sordid lifestyle.  I lived homeless on the streets of New York at 18 surviving in whatever way I could.  I know all too well what one must do to survive.  Yet, I was granted a reprieve, an opportunity to turn the tide. There were angels in my midst.  So for me, this trip was not just a trip to Peru, but one more opportunity for me to say thank you and give back. And as in my life, there was an angel for these kids, and his name was Alcides.

A police chief for 30-years, he got tired of seeing these street kids come through his station. So he saved and saved and vowed when he retired from the police force, he would buy land and build a place where these kids could come live, grow, get an education, and become productive members of society.  A place where they could feel safe and loved.  Alcides has obviously succeeded, as evidence by the fact that while the kids are free to leave at any time, not one has chosen to do so.  How lucky they are and how blessed I was to get to speak with Alcides.

Sacred Valley. Machu Picchu.

Machu Picchu.

Machu Picchu.

The next day we were off to the Sacred Valley, and then Machu Picchu. What I can say most about the Sacred Valley and then Machu Picchu is how awestruck I was with what the Incas accomplished. We often like to think we are superior to other people and cultures. Yet, when one is able to witness firsthand what these courageous people created, we think twice about our assumption that we are better than most. Like the Romans, the Incas built structures that are still standing.

The most exhilarating part of the Machu Picchu day trip was that I became willing to do something I was afraid to do.  In anticipation of a bumpy upward climb, I gave myself permission not to go to the top. Once there, I allowed myself to take one baby step at a time, and before I knew it, I was on top. Being atop Machu Picchu was wonderful, but being willing to get there was awesome!

Someone asked, what was my favorite part of the trip? My answer was – the entire trip!  From the first day at the orphanage with the kids, to interviewing Alcides, to interviewing two of the children (Alfredo and Dante), to visiting a bread house, to visiting the Sacred Valley, to climbing Machu Picchu, every step of the way was a piece of the puzzle that made for a beautiful picture.  The final piece, bringing the puzzle all together, was the group itself.  I went to Peru, primarily, to support a friend’s charity (Legacies in Motion), engage in humanitarian work, and visit one of the NEW 7 wonders of the world. What I got was so much more. Yes, the actual act of climbing Machu Picchu was awe inspiring, but what impacted me was the fact that I was even willing to go.

A Life Filled With Endless Possibilities.

Today my life is filled with endless possibilities, and I am grateful to be alive and fully present enough to participate in this, my journey.  There was a time when I sat on the sidelines judging those who showed up for life.  People who, even if afraid, had the courage to take risks, go for their dreams, and possibly fail.  I was always afraid to fail, so I made safe choices.  Making safe choices keeps you protected and out of harm’s way, but also keeps you and your life small.

After 37 years of trying new things, I take a stand for those who are courageous enough to show up for their lives, try new things, meet new people, and live a life of limitless expansion. Life is so short; don’t waste it. Before you now it, it’s over.

Here’s to you!   Feel free to subscribe to my newsletter

 

 

Social Networks. Defamation. Facebook.

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Social Networks. Defamation. Facebook.

Social media networks, such as Twitter, YouTube, Pinterest, FacebookLinkedIn, and others have found a safe harbor in the United States, when it comes to allowing users to do and say anything they want. Thanks to the Digital Millennium Copyright Act, these sites are almost never held liable for the content their user’s post online.  Essentially, the responsibility for libelous posts, infringing content, or simply outrageous and offensive rants generally fall on the poster of the material, not the platform that permits the dissemination of the content. It appears that defamation is supported and encouraged. "<yoastmark

Facebook.

However, that is not the case in other countries, where social networking sites are held to a higher standard. For example, as we speak, Germany is deliberating whether to hold Facebook accountable for its posters actions. German prosecutors are seeking to compel Facebook into holding its users accountable by removing racist and threatening posts. Is that fair? Some say Facebook and other social networking sites should not be held accountable ford the action of their users. Others say, why should they not?

Are we too lenient with people who take what does not belong to them? Do we give too much freedom to people who spew racist and defamatory content? Does our first amendment need to be changed?

What are your thoughts?

Join the conversation on my Facebook Fan Page. Twitter page, in one of my LinkedIn discussion groups, or send me an email through my website.

Uber. Contract. Terms of Service.

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Uber. Contract.

Uber. Terms and Conditions

Uber. Terms and Conditions

How many times have you downloaded an app to your smartphone or software to your personal computer? Most people have done this dozens of times. Notice that sometimes when you install an app/program you are asked to click on a box that says you “Agree” to the terms of service. In the legal world, this is referred to as a “click-wrap” agreement. On other occasions, you are not required to “click on a box,” but you’re simply invited to read the terms of service.  You don’t have to and there is no one forcing you to do so.  In fact, you can ignore them if you desire.  This is referred to as the “browse-wrap.”

So what exactly are your rights as a consumer, when you supposedly agree to terms of service through one of these two methods?

Terms of Service.Uber.

This question may be closer to an answer after a controversial ruling by federal judge Jed Rakoff of the Southern District of New York. In an antitrust class action complaint, Meyer v. Kalanick and Uber Technologies, Inc. the judge denied a motion to compel arbitration in a class action complaint filed against Uber Technologies, a multinational transportation network, which allows its app users to hail rides via their Smartphones.

Like most apps, Uber’s contains a hyperlink to their terms of service, which includes a “mandatory arbitration” clause. However, Judge Rakoff ruled that consumers using the Uber app were not obligated to either click a box (click-wrap) or read through (browse-wrap) the terms of service before using it. Thus, the users never consented to the mandatory arbitration clause. The court also noted that the arbitration clause for Android users was “buried” in pages of legalese in fine print that was barely legible, making it extremely unlikely to be understood by ordinary consumers.

The accepted legal standard has been that in absence of “click-wrap,” the notice of terms of service is required to be conspicuous and indisputable. Judge Rakoff ruled that Uber did not meet these standards. This ruling contradicted a recent federal case out of Massachusetts, which ruled that Uber’s arbitration clause was “sufficiently disclosed.”

Federal courts, including the Supreme Court, have steadfastly enforced mandatory arbitration clauses.  However, this ruling by Judge Rakoff and the 2014 Ninth Circuit Court of Appeals decision in Nguyen vs. Barnes and Noble have shown that courts take seriously the concept of notice—making consumers aware of the existence of the terms.  Essentially, arbitration provisions and class action waivers are enforceable, so long as the user has been placed on sufficient notice.

In this case, the plaintiff’s allegation that he did not see the terms of service, while registering to use Uber, was sufficient to determine that Uber did not provide sufficient notice.  Therefore, the arbitration provision was not enforceable.

What can a business owner take away from this?

  1. Contract rules apply.
  2. Terms of Use or Terms of Service cannot be hidden in barely legible fine print.
  3. They cannot be stuck inside “highly legalistic language that no ordinary consumer could be expected to understand.”
  4. Best practice, require acceptance of the terms through a click-wrap

Is this a sign of things to come and will congress ultimately have to update federal dealing with mandatory arbitration laws to bring them up to speed with the digital age? We will have to wait and see.