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.

 

 

What is Actually Protected by Copyright?

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Copyright

We all know that that any original work of art or authorship, which has been reduced to a tangible format is entitled to copyright protection. But what exactly does that entail?

Here is a short list of items that can, and should be protected by copyright:

If you are a musician, who has created original music, then you should protect the following:

  1. The lyrics to the songs
  2. The melodies
  3. Finished recordings

If you are a writer, who has created original content, then you should protect the following:

  1. Articles
  2. Books
  3. Blog posts

If you are a trainer/consultant/coach, who has created original content, then you should protect the following:

  1. Training materials
  2. Manuals

If you are a dancer or choreographer, who has created original content, then you should protect the following:

  1. Choreographed works

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 Lawsuit. “We Shall Overcome.”

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People who were of age during the civil rights era and history buffs alike will surely recognize the iconic protest song, “We Shall Overcome.” Folk Singer Joan Baez sang the civil rights anthem during a 1963 at the Lincoln Memorial during a march in Washington. Forty-seven years later in 2010, she sang the anthem for President Obama at a civil rights celebration at the White House.

Martin Luther King Jr. recited the lyrics to the song during his final sermon in Memphis on March 31st 1968, just four days before he was assassinated.

The song goes……..

We shall overcome,
We shall overcome,
We shall overcome, some day.

Oh, deep in my heart,
I do believe
We shall overcome, some day.

We’ll walk hand in hand,
We’ll walk hand in hand,
We’ll walk hand in hand, some day.

Oh, deep in my heart,
I do believe
We shall overcome, some day.

We shall live in peace,
We shall live in peace,
We shall live in peace, some day.

Oh, deep in my heart,
I do believe
We shall overcome, some day.

 We are not afraid,
We are not afraid,
We are not afraid, TODAY

Today this inspirational anthem is back in the news regarding a copyright lawsuit questioning its copyright protection. On Monday, November 21st, a New York federal judge rejected a motion to dismiss the case by the Publisher (The Richmond Organization and Ludlow Music) that has supposedly held the rights since the early 60’s.

The plaintiffs in the case claim that the lyrics in the first verse of the song were copied from a song that was already in the public domain, thus making the copyright registration fraudulent. One of the plaintiffs is Lee Daniels, the producer and director of the 2013 film, “The Butler.” Daniels claims that his production company was asked to pay $100,000 to use the song in their film.

The plaintiffs argue that some of the lyrics of the song were already in circulation way back in 1946 when it was used by striking African-American tobacco workers and that the words and composition were published in a periodical and the authorship was credited to FTA-CIO Workers Highlander Students. Over the years, verses and lyrics were added to the original composition, according to the lawsuit.

U.S. District Court Judge Denise Cote wrote in her opinion, “The Defendants’ arguments to the contrary are unavailing. The Defendants’ argument that the copyright registrations are entitled to a presumption of validity does not compel dismissal of the claims. A certificate of registration does constitute prima facie evidence of the validity of a copyright.”

So now, this case will go forward through the legal system and we will have to wait and see if the plaintiffs are able to overcome the copyright registration held by the defendants.

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

McDonald’s. Copyright Lawsuit. Artist Dash Snow.

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Street Brand Art.

Copyright

Copyright

The late New York artist, Dash Snow, was well known in art circles for his “street brand” art, which included photography, collage and graffiti. Dash died in a New York City hotel in 2009 of a drug overdose at age 27. Recently, Jade Berreau his girlfriend at the time of his death and mother of his child, and executor of his estate, filed a copyright infringement lawsuit against fast-food giant, McDonald’s.

Graffiti Themed Art.

The suit, filed in federal court in California, alleges that McDonald’s is using Snow’s artwork in hundreds of their restaurants without permission or compensation. The art adorns the walls of many of their “graffiti themed” restaurants throughout the United States and even Europe. The suit also states that McDonald’s is using the late artist’s iconic signature pseudonym, ‘SACE.’ The lawsuit was brought after McDonald’s allegedly ignored requests from the Dash estate to remove the artwork from their restaurants when it first became known in June of 2016.

Within the complaint, Berreau points out that at the time of his death, Dash was an acclaimed artist whose work sold for hundreds of thousands of dollars at high-end auction houses. It also states that within the McDonald’s restaurants in question, the artist’s work is the most prominently displayed, and the only work from an acclaimed artist, and that at least on article appeared in the media where Snow’s name was mentioned in connection with the décor, giving a false impression of an endorsement.

McDonald’s has yet to comment on the suit.

There have been a slew of copyright lawsuits in recent years bought by artists against corporations over use of artwork. In 2014, graffiti artist Maya Hayuk filed a copyright lawsuit against the luxury accessory company, Coach, for using her “graffiti art” in a photo shoot. And in 2015 she filed a copyright suit against Starbucks for using her art in a Frappuccino campaign. The lawsuit against Coach was eventually dismissed.

It’s astounding how many people and big corporations still don’t seem to understand the fact that art, in all its forms, is afforded copyright protection under U.S. law. Using it without permission is not a smart thing to do and can trigger costly and time-consuming lawsuits.

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.

Collaborator. Joint Ownership. Copyright.

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Collaborator. Joint Ownership.

Collaborator. Joint Work.

Collaborator. Joint Work.

It seems like everyday, in one of my writing discussion groups, folks are looking for someone to collaborate with, on a writing project.  They want someone to help them write books, screenplays, and blogs.  The problem is those seemingly innocent requests are fraught with issues–sometimes costly issues. Why? Because oftentimes writers are right brained thinkers who never stop to think about the business issues of an endeavor, until it is too late.

A word of caution, for those seeking collaborators. Unless you want to inadvertently risk entering into a joint-copyright arrangement, you should have a well-drafted, clearly defined agreement in place, BEFORE you discuss your idea with another person—regardless of who it is. Plus, it is wise to be crystal clear what the terms of the relationship will be BEFORE you enter into the relationship.

Copyright.

There have been many lawsuits regarding ownership of rights, where collaborators were involved. Don’t leave such an important issue to a “friendly handshake”. This becomes especially important once your work hits pay dirt. Protect yourself now, while you are still in control and while the choice is still yours.

When considering a business collaboration of ANY kind:

  1. Know who you are dealing with. Do your due diligence. A writing collaboration is a business relationship. Treat it as such.
  2. Have clear expectations before you start working together.  Talk things through. Make sure the other party(s) understands what you want, from the start.
  3. Reduce those clear expectations to writing. Having a well drafted, enforceable contract in place BEFORE you start will help you avoid the nasty problems, which could land you in court later.

Remember, a writing collaboration is a business relationship. Treat it as such.

Until next time, I am Attorney Francine Ward helping you protect what’s yours.

Join my conversation on my Facebook business page, Twitter, LinkedIn.