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.

 

 

Do you know if you are infringing on a copyright?

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Here are Three Tips to avoid breaking the law with Copyright Infringement:

Copyright infringement

Copyright Infringement

Legal Copyright Infringement is honestly an oxymoron- if it qualifies as Copyright Infringement, then it is, by definition, illegal. This being said sometimes it’s hard to know where the gray area of legal vs. illegal starts.

What is a Copyright?

A Copyright is an exclusive right granted to an artist or author, pursuant to Article 1, §8, Clause 8 of the US Constitution, which protects any original work of art or authorship reduced to a tangible form.

What is Copyright Infringement?

Copyright infringement is a violation of that right; it is THEFT; it’s stealing.  Copyright infringement is using someone else’s copyright protected material without permission, without a license, or without that use falling within an exception, such as fair use or the public domain.

A lot of times, people don’t even realize that what they are doing is illegal, thinking what they are doing is harmless, with no thoughts to the potential consequences. For this reason, I have put together a list of 3 tips for judging whether what you are doing is copyright infringement or not…

Legal Copyright Infringement Tip #1: If it does not belong to you, assume it belongs to someone else.

Legal Copyright Infringement Tip #2
 If it belongs to someone else, assume you need permission or a license to use it.

Legal Copyright Infringement Tip #3 Be aware of ways you can inadvertently infringe someone’s copyright,

    1. Downloading music from the Internet,
    2. Photocopying portions of a book or articles from magazines,
    3. Duplicating testimonial  letters & inserting them in your media kit on web site,
    4. Inserting popular music into your video,
    5. Performing someone’s music in public,
    6. Reproducing a photograph,
    7. Allowing someone to download your copy of software without buying their own license

Until next time, THINK before you USE!

Website. Copyright Protection.

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Do you have a fabulous website that YOU created, with YOUR original content? Have you thought about protecting that website and its component parts?  If you’ve not given much thought to the protection of your website, now is the time to change your thinking.
website
Your website, like your blog posts, books, articles, videos, screenplays, music, marketing materials other valuable content, in some cases can be protected by copyright.

Copyright for Website.

While the Copyright Office does not register websites, per se, it does allow you to register the copyrightable content that is on your website.  For example, did you know that you can register the source code, the audio visual material (e.g., videos), text, and any visual content (e.g., cartoons, photos)? Don’t wait until someone has copied your website to take action. Register it with the US Copyright Office now.

In order to obtain a copyright registration for your website, here are some things to keep in mind:

  1. Your website content MUST be original,
  2. You (not your web designer) must own the content,
  3. If you handle the registration yourself, make sure you do it right or you won’t have a valid registration,
  4. Read Copyright Office Circular 66 carefully
  5. Make sure you use the correct form,
  6. Remember, update your registration whenever you make significant revisions to your website

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.

Copyright? Free Legal Advice. Website Links.

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copyrightBelow is a list of links that can help you with your copyright efforts:

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.

Is Copyright Registration Necessary?

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A copyright registration is notNetflix. The Bicycle Thieves. necessary. However, there are many good and different reasons why you should register your original creative content, e.g., books, articles, photographs, jewelry, music, web content, video, blog posts, and more. Here are 6 reasons:

  1. You receive a Certificate of Registration.
  2. There exists prima facie evidence that you own the copyright in question.
  3. You have the right to sue for copyright infringement.
  4. You have nationwide protection.
  5. It is easier to obtain international copyright protection.
  6. You can possibly receive statutory damages and attorneys fees.

One of the most important benefits of having a registered copyright with the U.S. Copyright Office, is that you can sue an infringer for copyright infringement. It may not seem like a big thing now, as you are not thinking about filing a lawsuit. But if, and when, the time ever comes when you need to take an infringer to court, it is better that you invest now–within 90-days after you publish your work–rather than have to pay for expedited registration fees and also risk not getting everything you deserve.  Copyright registration fees are around $35 if you do it yourself and do it online.  If you wait and register after someone starts to use your work, the costs will be considerably higher.

The other important reason to register your work immediately after you publish it is that if you ever have to sue, an attorney is more likely to take your case if they can potentially receive attorneys fees.

It is important to pursue copyright registration in a timely manner. That means, register your work within the first 3-months of publication. If you do so, you may become eligible to receive fees set by the government, what we call statutory damages. This could be of real benefit, as those fees range anywhere from $750 per infringement all the way up to $150,000 per infringement, if it’s proven that the infringer intentionally and willfully infringed your work. Now isn’t that a good reason to get that valuable creative content registered?

Finally, with a registration, you have solid ground for sending a “cease and desist” letter to any person who infringes your work.  This usually encourages  people to STOP using your work without permission, or purchase a license from you.  Sometimes the threat of a lawsuit goes a long way.  Just be careful not to threaten a lawsuit, unless you are truly ready to file that suit.

The Internet: An Amazing Communication Tool

The advent of the Internet, while a wonderful and advantageous communication tool, has created new issues for copyright owners. It has made access to creative content easy, and has also made content easy to create, easy to disseminate, easy to display, and easy to reproduce. As a result, many people think that if it is on the Internet, it is free.

People often conclude that if copyright is not mentioned when they view a creative work or there is no copyright symbol on the work that they can use it for any purpose they want.  The reality is that the work is in fact copyrighted regardless of whether the author mentions the copyright or not.

Whether it’s because they lack the knowledge or just don’t care,  copyright infringement on the Internet is rampant. So as a creator of valuable content PROTECT YOUR ASSETS!  Take the extra step to protect what you have invested time and money in creating.

And, as a general rule, if something is on the Internet and YOU didn’t create it, assume that someone else did. Assume that if someone else created it, you need permission to use it. Permission can come in the form of a license, a contract, public domain (no one owns it or the copyright has expired), or that your permission is granted through the fair use exception. CAVEAT: To take advantage of the Fair Use Doctrine, make sure you understand the rules, or risk being sued for copyright infringement.

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.