Hairy Situation by JD Hancock from Flickr (Creative Commons License)
Let me tell you a story. MGM owns the copyright for The Wizard of Oz. In 1976, they hired Bradford Exchange to create a series of Wizard of Oz collector plates. Bradford had a competition for the “Dorothy” plate design. Jorie Gracen submitted a design that clearly depicted Dorothy, Toto, and the yellow brick road, but the image doesn’t match any screenshot from the film. Gracen’s design won but she refused to sign the contract to turn her painting into the plate. Bradford allegedly gave her painting to another artist who used it to create a similar design which was made into the plate.
Gracen sued Bradford and MGM for copyright infringement…and she lost, but this is a pivotal case regarding derivative works.
This is a picture of the plate that was actually made that is remarkably similar to Gracen’s painting
The collector plates were derivative works; however, Gracen was acting in compliance with Bradford’s direction when she created her design. She couldn’t get a copyright in her work because it was based on the movie but she couldn’t get in trouble for simply creating it for the contest.
Bradford’s mistake was they didn’t include a copyright assignment or license in the competition rules. I would expect a similar contest to include a provision that everything the artist creates for the contest becomes the proper of the contest organizers or the company they represent.
Here’s the big lesson I take away from this case – if a copyright holder tells fans to create fan fiction or fan art, the fans’ work may not be original enough to warrant their own copyrights, but they shouldn’t get in trouble for creating something that they have been authorized to create.
However, the fans may only be able to create fan fiction or fan art; they may be committing infringement if they try to distribute it. I would expect the copyright holder to be especially upset if you try to sell your work because you could be interfering with their profits and/or hurting their brand with inferior artwork.
I will be doing two panels on copyright at Phoenix Comicon this weekend:
Comic Book Creator Rights, Saturday, June 7, 2014, 10:30 a.m., North 130 with Mike Baron
Copyright and Fan Fiction/Art, Sunday, June 8, 2014, 12 p.m. North 130
Toying With The Men by JD Hancock from Flickr (Creative Commons License)
I have the pleasure of speaking about copyright and fan fiction and fan art at Phoenix Comicon this year. It’s always fun to hear about the projects fans are working on, and to see that so many of them are mindful about the copyright. I wish I had more black and white answers for them about what they can and can’t do.
Fan fiction and fan art falls squarely into the murky realm of copyright and fair use. The owner of a copyright controls where and how their work is copied, displayed, distributed, performed, and what derivative works are made. Fan fiction and fan art can be derivative works but they also may be protected by fair use.
Fair use is part of the copyright laws that acknowledges the fact that many works are inspired by past art. This law allows artists to build on existing works in creative and innovative ways. One thing to always remember is that fair use is a defense, not a permission slip. There is always a risk that the copyright holder will claim you’re infringing on their copyright and you’ll have to basically tell the court, “Yes your honor, I used their work but it’s OK because . . . .”
When a court considers a fair use case, these are some of the main factors it considers:
Purpose and character of your use of another’s work (Is what you did transformative and did you do it for commercial use?)
Nature of the copyrighted work (What did you copy?)
Amount and substantiality of the copyrighted work used (How much of the original – quality and quantity – did you copy?)
Effect on the market (Would someone seek out the original and accept your work as a substitute?)
These are some of the main factors, but the court can consider others if it wishes. This is also not to be treated as mathematical equation. Regardless of how many fair use factors favor you, you can always lose.
For Phoenix Comicon this year, I wanted to create an easy mnemonic device that fans can use to remember the fair use factors; and here it is: PAIN.
P = Purpose and character of your use
A = Amount of the original used
I = Impact on the market
N = Nature of the work you copied
Another thing to consider if you want to use another artist’s work is how the copyright holder historically responds to fan fiction and fan art. Some encourage it; some are OK with it as long as you’re not making money off of it; some are OK with it as long as it’s not sexual (i.e., slash fiction); and some dislike all fan fiction and fan art and will try to lay the smackdown on you if you create it.
Be A Social Media Super Hero for your Company – “Super Heros” by 5chw4r7z from Flickr (Creative Commons License)
I had the pleasure of presenting Social Media Horror Stories (and How to Avoid the Same Fate) at the Arizona Technology Council Lunch and Learn this week. For those of you who weren’t there, I got to tell the stories of major missteps companies and individuals have committed with their social media activities and how to avoid the same mistakes. In every situation, the problems could have been avoided or mitigated with proper education, forethought, and applying common sense.
This is my recommended follow-up plan for attendees:
Register Your Trademarks
To avoid problems with your competition, register the name of your company, products, blog, logo, and/or tagline with the U.S. Patent and Trademark Office. Without registration, the law only protects your right to use your trademarks in your established geographic market (which can be challenging to discern when your business is 100% online). You don’t want to find yourself in the Burger King situation where your market is limited or the Turner Barr situation where your business is essentially shut down because someone else registered your mark.
Before you launch your next company, product, or marketing campaign, be sure to check the Trademark Office’s database to make sure that someone else doesn’t already have the exclusive rights to use your desired trademark.
Check Your Contracts
If you outsource any of your content creation or marketing activities, review your contracts carefully. Look for information about who owns the social media accounts and any content created on your behalf. Also look for provisions that address potential problems and whether you will be indemnified if you’re sued or get in trouble because of something a third party did on your behalf.
Remember that website terms of service are also contracts. Make sure you understand the implications of using a social media platform or web-based service. Your site may also have terms of service that manage your relationships with your users. Make sure they’ve been written to suit your needs.
Be Careful About Copyrights
When a person owns a copyright in text or an image, they have the exclusive right to control where they work is copied, distributed, and displayed. If you want to use their work, you often need to obtain permission or risk being accused of copyright infringement. I frequently see people pulling images from search engine results without considering the artist’s rights. Many people think they can use whatever they want as long as they give an attribution and link back to the original, and that’s just not true. If you’re looking for images for your site, consider using Creative Commons. I always use images that come with the license that allows me to modify and commercialize the artist’s work.
When it comes to your own copyrights, decide in advance how you want to react when someone steals your work and plan accordingly.
Check Your Social Media Policy
I’m an advocate for the idea that companies should generally leave their employees alone when they’re on their own time, including what they do on social media. However, I’m also a huge proponent of the idea that every company needs a social media policy. Employees need to understand what their dos and don’ts are when it comes to their personal profiles and blogs, and employers need to understand that their social media policy needs to comply with the National Labor Relations Act. If your policy prohibits employees from saying anything damaging about the company online, it’s likely illegal and if you fire someone for violating an illegal policy, you could easily face tens of thousands of dollars in legal fees and damages. This is an area of law that is still developing, so please have lawyer help you write your policy so it complies with the law.
Review Your Crisis Response Plan
For most companies, the question isn’t if it will face a crisis, but when. Every company should have plans in place for dealing with expected problems, including pre-writing content for the media and social media, so what when an problem occurs, everyone knows what their role and the protocol that everyone will be following. When you’re having your planning sessions, it’s a good idea to have your legal counsel present to assist from a legal perspective.
Eero facepalmaa by Tuomas Puikkonen from Flickr (Creative Commons License)
A few days ago, a friend and fellow author posted on Facebook that someone put his book online as a free download without his permission. Some authors make their work available for free as part of their marketing campaign and that’s their prerogative, and they control where and when they do this.
My friend and I started chatting about what he wanted to do to remedy this situation. A person who owns a copyright has the right to control where their work is copied, displayed, and distributed and has recourse if someone else steals or uses their work. If someone blatantly copies your work and is giving away copies of it, it’s likely copyright infringement.
I thought my friend could qualify to sue for copyright infringement and sue for statutory damages. The copyright laws say that if someone willfully steals your work, you can ask the court to award you up to $150,000 plus attorneys’ fees. Alternatively, you could ask for actual damages, which is how much money you actually lost due to the infringement. My friend is self-published in this case, so I suspected the potential statutory damages would be higher than the actual ones.
Then my friend dropped a bomb – he hadn’t registered his copyright yet.
I cringed with defeat.
My friend is a smart guy, so he knew that he couldn’t sue for copyright infringement until he registered his copyright. What he didn’t know what that you have to register your work within 3 months of publication or 1 month of learning of the infringement – whichever happens first – to be eligible for statutory damages. He can still register his work and sue for the actual damages (which is likely low) and he’d be responsible for paying for his attorneys’ fees. If he doesn’t want to put in the time, energy, or money to sue for infringement, he can still get is legal eagle friend (that’s me) to send a cease and desist letter or a DMCA takedown notice to try to make the infringement stop.
So here’s the take-away lesson from my friend’s experience: If you are a self-published author, register your work with the U.S. Copyright Office before you offer it for sale or download. That way, if someone steals your work, all your options for recourse will still be available to you. You can register your work online and the application fee is only $ 35 or $55, depending on your situation. And if you don’t want to register your work yourself, it’s not that expensive to hire a lawyer to do it for you.
My Vibram Fivefingers by Lavender Dreamer from Flickr (Creative Commons License)
I’m sure you’ve heard about the class action lawsuit that claimed that Vibram misrepresented how its FiveFingers shoes benefited consumers’ health. In the settlement, Vibram offered to provide a refund to any purchaser who requests it. Vibram created a site about the settlement that will provide information, including how to file a claim if you qualify.
Unfortunately, cases like this are not uncommon. I saw a similar article in the Wall Street Journal last week where Proctor & Gamble (makers of Crest) sued Hello Products for false advertising when Hello put a claim on its toothpaste that said the product was “99% Natural.” Hello was forced to remove ~100,000 tubes of toothpaste from store shelves, change the claim “99% Natural” to “Naturally Friendly,” and pay “six figures” for legal fees related to this case.
So how do you avoid these problems? It’s pretty easy – just be truthful.
Federal rules about truth in advertising require that all your advertisements be “truthful and non-deceptive.” If you make any claims, you must be able to back them up with evidence. If you have endorsements, they must be truthful and accurate, and you must disclose when a person is compensated for giving their opinion. (This includes getting free products.)
If you violate these rules, you might receive a cease and desist letter from your competition or the Federal Trade Commission which is tasked with protecting consumers. You could also be fined by the FTC, be sued for unfair competition and/or false advertising by another company, and/or face a class action lawsuit from consumers who claim that they were deceived into buying your product.
When you are working on your marketing campaigns, be careful that your marketing team doesn’t create content that crosses the line from mere puffery into false advertising. If you haven’t done so yet, review the FTC’s Truth in Advertising website. They have useful information about required disclosures, using endorsements and testimonials, and making health or “green” claims about your products. If you have legal counsel, consider inviting them to your marketing meetings or at least have them review your materials to make sure that your team doesn’t inadvertently cross the line into false advertising.
8/52 My Shadow by Scarleth Marie from Flickr (Creative Commons License)
Governor Brewer recently signed HB 2515, which made “revenge porn” a felony in Arizona. The official name for this law will be Unlawful Distribution of Private Images and it will be added to the Arizona criminal code as Arizona Revised Statute § 13-1425.
This new law, “Prohibits a person from intentionally disclosing, displaying, distributing, publishing, advertising or offering a photograph, videotape, film or digital recording of a person in a state of nudity or engaged in specific sexual activities if the person knows or should have known that the depicted person has not consented to the disclosure.” It also amends the domestic violence law (A.R.S. § 13-3601) by stating that revenge porn can be a type of domestic violence.
If you are arrested for violating this law, you will be charged with a Class 5 Felony (punishable by at least 6 months’ imprisonment and up to $150,000 fine), unless the person in the image or videos is recognizable, then you’ll be charged with a Class 4 Felony (punishable by at least 1 year in jail and up to $150,000 fine). When I first saw these punishments, I thought they were overly harsh, but then I noted that these are the same penalties for people who are found guilty of voyeurism in Arizona.
This law goes into effect on July 24, 2014. Arizona law enforcement has until then to develop their policies regarding how these crimes will be investigated and train their staff. Arizona already has a law against cyberharassment, so I suspect the policy for the new law will be similar to the procedures they have in place for this.
These are some of my thoughts about this new law:
I suspect the distribution of revenge porn applies to sending images or videos from person-to-person via text or email as well as widespread postings on websites. I can easily see a group of high school kids being accused of violating this law for passing around a naked selfie of one of their classmates that the victim meant for only their significant other to see. It could also be a felony just to show the image to one person.
Did you notice that the law applies to “offering” an image or video? I think that means you could be guilty even if you just offer to share someone else’s naked photo without the person’s consent, even if the potential recipient declines. These situations would probably be hard to prove unless the conversation was recorded or documented via text messages or email.
I’m curious to see how this law will impact existing revenge porn. If someone posted a photo of you on a revenge porn site this month and it’s still up when the law goes into effect in July, can the victim turn the alleged perpetrator in at that time with the claim that by staying on the internet, the crime is ongoing? Or will the victim have to wait until someone posts or sends the photo/video again after the law goes into effect to file a claim?
My rule of thumb is, “Think before you post.” Once an image or a message is sent, you can never fully take it back. Even if you have a revenge porn claim and the person is justly prosecuted, that image of you is still out there and you have no control over who’s seen it and it’s hard to chase down every place it might be posted to try to get it removed.
(Note: This video was made in March 2013, before the revenge porn law was passed, and not every state has a specific law about revenge porn.)
If you think you’ve been a victim of cyberharassment or revenge porn, please contact your local law enforcement agency.
Punking Neal’s Office: The glow of the prankster god by Jake Sutton from Flickr (Creative Commons License)
This is the time of year that high school seniors are scheming about their senior prank instead of studying for finals. If you’re going to do a senior prank, think about all the things that might go wrong (especially if people show up drunk or high or get carried away) or that you might be accused of doing wrong and try to mitigate those types of problems in advance.
Just being on the school property after hours might be enough to get you arrested for trespassing and the charges could be worse if you break into the school. Your state or city may also have a catch-all law like malicious mischief or disturbing the peace. Your city might have a curfew law so you want to be careful if anyone participating is under 18. On the flip side, if you’re 18 and you get arrested, you will be charged as an adult and your name will likely appear in your local newspaper.
Regardless of your age, getting arrest curing your senior prank could result in you incurring legal fees and fines, being banned from graduation activities, having your college acceptance rescinded, and being fired from your job if you’re at-will employee.
If you’re going to do a senior prank, do your homework in advance. Look around your school for security cameras, motion sensors, and security guards. And talk with your fellow conspirators in advance about your plans, what you need to do to stay out of trouble, and not sharing pictures and videos of your shenanigans if you take any at all (which I don’t recommend).
So here’s my list of senior prank dos and don’ts as a prankster and a lawyer:
Be innocuous
Be funny – You’re less likely to get in trouble if the alleged victims are laughing
Be witty
Be creative – What if you filled the principals’ office with canned goods and at the end of the day, it all went to a food bank
Be easy enough to clean up
Be safe – Don’t create a hazard with oil, bouncy balls in the hallways
Be temporary – Don’t graffiti the school
Be clean – Don’t spill trash cans or spray silly string everywhere
Don’t steal anything – This includes stealing keys to get into the school
Don’t destroy, damage, or vandalize anything
Don’t be gross – Don’t do want those kids in New Jersey did and pee on the floor.
For full disclosure, I participated in my class’ senior prank when I was in high school. We had to be super cheesy and harmless because the previous two years’ classes were destructive and people got arrested. I was 17 at the time (and breaking curfew) and my parents explicitly told me not to call home until after breakfast if I got arrested. We had fun and nothing bad happened.
If you have any questions about the legalities of flash mobs or pranks, feel free to contact me. If you want a resource about the legal dos and don’ts about these topics, please check out my book, Flash Mob Law.
Mannequin Mob Group Photo by Arin Sang-urai, used with permission
Recently Improv Everywhere organized a group of 40 agents who donned white MorphsuitsTM to do a prank where they posed as mannequins in the Gap. They all wore Gap-style clothing over their Morphsuits and walked in the store with their masks off. At the designated time the group simultaneously put on their masks and froze in place like the mannequins in the store which are also all white.
Some of the employees seemed to think it was funny but one concerned employee called 911. The police showed up and put many of the performers in handcuffs. Charlie Todd, the founder of Improv Everywhere, explained the situation and everyone was released without incident. It was pretty funny overall – even the police were laughing by the end.
Let’s look at the legal questions behind this prank.
Is It Legal to Enter a Store to do a Prank?
That’s an interesting question. Stores are open to the public, even for people who are just browsing and have no intention of buying anything. So it’s legal to enter a store during business hours for reasons other than making a purchase. If you’re not interfering with the store’s operations or others’ ability to shop, you are less likely to have any problems.
This is not the first prank that involved messing with store employees. Improv AZ definitely raised some eyebrows when we did the Apple Store Flash Mob and Improv Everywhere had to deal with the police during their Best Buy Prank.
Did the Group Commit Trespassing?
Probably not. You’re usually not trespassing in a store where the public is welcome to be until you refuse to obey a request that you leave. From what I heard, the group was told to leave the store immediately and peacefully if requested to do so, but the employee called 911 instead.
Charlie Todd in Handcuffs by Arin Sang-urai, used with permission
Did the Gap Employee Overreact by Calling 911?
I think so. A more reasonable reaction would have been to use the store’s PA system to announce that everyone who was dressed up like a mannequin needed to leave the store and then call the police if they didn’t comply.
Is There a Problem with Wearing a Mask in a Store?
Possibly. Most businesses don’t have a sign that says “No Masks,” but they are often not allowed. Apparently robbers wear them. Improv AZ ran into a problem with this rule when they tried to walk through a mall (just walking, not doing anything wrong) during the first Epic Super Hero Battle. The group was not allowed to proceed until everyone removed anything that was covering their faces.
Is There a Problem with Filming or Taking Photos in a Store?
Perhaps. Each store sets its own rules about whether photography or filming is permitted. If you’re doing a prank in a mall, the entire mall may have a rule against shooting photos or videos so do your homework in advance. Be sure to check out Arin Sang-urai’s photos from this prank to see images of the hidden cameras Improv Everywhere used.
Could the Group have been Arrested for Disturbing the Peace?
Probably not. The group didn’t excessively disrupt the store. I would say the employee did when they called 911. There didn’t appear to be any problems while the police were sorting out what was going on and most people, if not everyone, was smiling by the end.
Could the Group be Banned from the Gap?
Sure. The store has the right to refuse service to anyone. The have the prerogative to ban problematic patrons. This banning would likely only apply to that particular store, not every Gap, and probably it wouldn’t preclude them from shopping at the Gap online. If anyone was banned from the store, and they entered the premises after the banning began, then they would be trespassing. Some of the members of Improv AZ ran into this problem when we were banned from a mall for three months following the Coroner Prank 2.
If you have any questions about the legalities of flash mobs, pranks, or any type of guerrilla marketing, feel free to contact me. If you want a resource about the legal dos and don’ts about these topics, please check out my book, Flash Mob Law.
New Aduafruit Office – Moving In by Becky Stern from Flickr (Creative Commons License)
It’s not uncommon for people to move from state to another. If you’re a business owner with an LLC, you have to deal with the question of if and how you should move your business to your new state. There are four main ways to move an LLC to a new state.
Option #1: Maintain your LLC in your Old State and Register as a Foreign LLC in your New State.
This is a particularly good option if you plan to continue doing business in both your old state and your new state. You will have to file state taxes in both states and you may have to file an annual report in your old state. (Arizona LLCs don’t have to file annual reports with the Arizona Corporation Commission.)
Option #2: Close your LLC in your Old State and Open a New LLC in your New State.
You’ll have to dissolve and liquidate your old LLC and start a brand new LLC in your new state. Filing paperwork for an Arizona LLC is fairly straight-forward, but a bit redundant to put the same information on each of the forms. If you have a single-owner LLC, the process mainly involves closing the bank accounts for the old LLC, filing the proper paperwork with your old state, filing the old LLCs final taxes and starting anew by filing LLC paperwork in your new state and opening new accounts for the new LLC.
Option #3: Create an LLC in your New State and have each Member Transfer their Ownership Interest from the Old LLC to the New LLC.
LLCs are owned by Members. (I encourage all my clients to create manager-managed LLCs where every manager is a member but not every member is a manager). Each member owns a portion of the business and they can use what they own from the old LLC to essentially buy-in to the new LLC. This should be accomplished with contracts. Talk with your accountant about any tax implications in doing this and whether a business valuation should occur on the old LLC before the transfer occurs.
Option #4: Create an LLC in your New State and Merge it with the Old LLC.
If you merge two LLCs, the IRS considers it a continuation of the old LLC and allows you to keep the same EIN. You must create a plan of merger and each LLC must vote to approve the merger based on the LLC’s operating agreement or that state’s laws. If the merger is approved, you must file an Articles of Merger with the new state’s corporation commission.
The Arizona Corporation Commission does not have a form for Articles of Merger. You must create a document that complies with the state’s LLC merger laws along with the Commission’s cover sheet and pay the $50 filing fee ($85 for expedited filings). Before you proceed with the merger, discuss your plans with your accountant to understand the tax implications for each member.
If your business plans involve moving to a new state, discuss your plans with your accountant and lawyer to determine what the best course of action is for you. Even if you have a business that solely exists online, there may be good reasons to move your business to your new state.
Kelli Johnson Orioles Media Pass by Keith Allison from Flickr (Creative Commons License)
The debate over whether bloggers are journalists or members of the media continues. This has been an issue since the inception of blogging and it’s probably going to be an ongoing issue and here’s why – most laws that apply to journalists (like the shield laws) are state-level laws. They’re generally similar but it comes down to how each law was written to determine whether bloggers are journalists in a specific situation. And unless a state revises its laws to specifically address whether bloggers can be journalists, we have to wait until there’s a problem and the blogger who claims to be protected the same as a journalist challenges a situation where they’ve been denied that right.
So far, the courts in California and New Hampshire have said that bloggers can be journalists under those states’ shield laws and the courts in Oregon and Illinois have said that they’re not based on how those states’ laws are worded and the specifics of those cases. I believe that bloggers should be treated the same as journalists under the law when the bloggers are engaged in the same activities. With so many publications becoming only available in digital formats and many legit respected niche blogs being created, it would be foolish to try to categorize as a journalist or a blogger when in essence it’s their activities that matter more than name of the outlet where their work appears.
Here are some recent developments in the blogger/journalist debate:
Florida
Florida’s defamation law says you must give a media outlet five days’ notice before filing a defamation lawsuit against them. Florida businessman Christopher Comins sued blogger Matthew Frederick VanVoorhis for defamation and lost because VanVoorhis successfully argued that blogs are part of the media and therefore the case had to be thrown out because Comins failed to give him five days’ notice about the lawsuit.
I was impressed by how well the court articulated the role of bloggers in news reporting and public commentary: “The impact of blogs has been so great that even terms traditionally well defined and understood in journalism are changing as journalists increasingly employ the tools and techniques of bloggers – and vice versa.”
I was also pleased to see that the court added that not all blogs and bloggers are protected under the law in question. I think that would be overreaching. You can read the full case here. Thanks for posting it Techdirt.
U.S. Senate SCOTUSblog is generally regarded as a go-to place for news from the U.S. Supreme Court. They’re the main blog I follow via Twitter for updates on rulings. (Did I mention they’ve won a Peabody Award for excellence in electronic media?) Lyle Denniston writes for SCOTUSblog and had a press pass for the Senate Press Gallery. Historically the U.S. Supreme Court recognizes those credentials. However, they said they’d have to review their credentialing policy when he tried to use it at the Supreme Court. (SCOTUSblog writers can get in to Supreme Court proceedings by requesting a public seat.)
Denniston was recently informed that his press pass for the Senate Press Gallery would not be renewed. Attorney Tom Goldstein, founder of SCOTUSblog, said he intends to appeal the decision, and if it’s denied, he’s going to file a lawsuit.
I hope SCOTUSblog doesn’t have to litigate this issue but I’m glad they’re willing to. When I first read this story, my reaction was they were being denied a press pass because someone at the Senate or the Supreme Court doesn’t like them and is trying to use semantics to keep them out. This is going to be a fun situation to watch and an issue worth keeping an eye on in general.
If you want to know more about blogger rights, I strongly recommend two of my books:
