Being in business means dealing with everything that comes up. That includes copyright issues.

“Copyright is almost a four letter word for many in the world of business these days. While it’s something they know they need to deal with, they would rather not. This is largely due to the fact that this particular area of the law is complex, complicated and ultimately, a royal pain to deal with without the help of an attorney with experience in this area,” commented David Alden Erikson, a Los Angeles business litigation attorney with extensive background in this area of the law.

“To sum it up, copyright protects authorship of original works and that includes artwork, music and the written word, not to mention intellectual property. But, for now, I’m only going to deal with copyright to try and simplify things,” added Erikson.

Copyright actually protects more than just published works – meaning things you may read, write, etc. – it is applicable to “things” put out there in the public domain, such as exhibited, performed or made accessible by the Internet. This is where any similarities between countries ends. Every country has its own copyright laws. “If you don’t know what laws apply in your country (area), make tracks to talk to a lawyer with experience in this area. Better to be safe than find yourself being sued for violation of copyright,” Erikson remarked.

“Think copyright doesn’t apply to you because you don’t dabble in the creative arts? Think again, and then go take a look at your website copy, brochure copy and your flyers. All of those materials are affected by copyright,” explained Erikson. “You hopefully wouldn’t ‘borrow’ someone else’s copy from their site and call it your own, and you sure wouldn’t want someone pinching copy off your website either. If someone did swipe your copy without your express permission or giving you credit, this breach may result in a lawsuit,” he added.

What if the website owner did not write the copy for the site, but had someone do it for them? In a case like that, the copyright would still vest in the business. This is due to the fact that the owner would hold the copyright under “work for hire.” Work for hire is a section in the copyright act that covers situations like this where the copy is written by another person.

“While you might not develop an appreciation for the finer points of copyright law and copyright infringement, you really should have a passing acquaintance with the general highlights. Put another way, you’d likely want to know what to do if someone stole your copy and vice versa, should you make the same mistake,” suggested Erikson, a Los Angeles business litigation attorney. “If you find that copyright is about as clear as mud, give me a call for a more in-depth explanation,” he offered.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

The US Supreme Court has said the NFL can’t avoid antitrust laws when dealing with team jerseys.

“The last place one would expect to find the US Supreme Court is on the football field, but there they are, dealing with the sale of NFL team jerseys and hats. It was actually an interesting case and may well set precedent for the future,” remarked David Alden Erikson, a Los Angeles business litigation attorney.

The core nugget of the case decision was that the National Football League isn’t exempt from antitrust laws relating to the sale of team jerseys and hats. The decision said the NFL could be sued by someone who formerly supplied the NFL with clothing who alleged the NFL participated in “illegal restraint of trade” because they gave an exclusive licensing agreement to one company for their 32 teams.

At first, it looked like the case may have been lost at a federal appeals court when they ruled the 32 teams were acting as a single entity in offering a licensing agreement. That meant the league as a whole was then protected from restraint of trade accusations. The supplier, American Needle, took their case to the Supreme Court because they did not agree with the Chicago Federal Court ruling.

“As it turns out, that was a smart tactical move, as the Supreme Court reversed the lower court by indicating that the teams don’t just compete on the field. Indeed, they compete when it comes to dealing with trademark issues and with intellectual property. Put another way, every team has/is a source of a valuable trademark, as they are not all the same,” explained Erikson.

“So the bottom line here is that the initial idea by the NFL to license their 32 separate trademarks in a collective manner to just one person ultimately took away the independence of each team’s decision making and quashed any actual or potential competition,” Erikson clarified.

This case is also interesting for the fact that it is the first time a private plaintiff won an antitrust case since 1992. Having said that, this isn’t over yet because the case has now been shuttled back down to the lower courts to take a look at whether the NFL acting collectively to create jerseys, hats, and other items complies with antitrust laws. The NFL may still pull a goal out of this situation.

What we can say for sure here is that the NFL isn’t granted immunity, but they do ultimately get a chance to present an argument saying that the anticompetitive benefits of joint licensing outweigh anticompetitive harms.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

The online world is indeed getting more and more sophisticated, particularly when it comes to using open-source collaborative efforts to develop programs. The most well-known example of that would be Open Office, much the same as MS Word, but users seem to feel it’s easier to use. In addition to that observation, it is also constantly updated, because it’s open source, and it’s free. You can’t beat that as a major motivator to use it.

Over ten years ago, Linux was the first company to drive the revolution to open source technology and now, a drug company is dipping its toes into the open source waters for developing a new drug. GlaxoSmithKline PLC (GSK) is on the cutting edge of what may be the latest in creating new drugs quickly in response to perceived threats to humanity.

Just recently, GSK allowed the public to access the designs for about 13,500 chemical compounds that it feels may inhibit the parasite that causes malaria. The idea here is that by sharing information and partnering with others, scientists may find the right combination faster than if they were trying to do it by themselves.

It’s certainly not too far-fetched to think that everyone who sees the chemical compounds are going to see them they same way GSK scientists do. Often innovation and success comes from pooling the ideas and expertise from others with different approaches. At the moment, two government websites and one private one will act as hosts for the data.

This step forward into sharing what has previously been a deep, dark company secret may open the doors to the creation of drugs that are not owned by a single company. That in itself would be a giant step forward for the global community. Would it mean they would lose money or are we seeing the greening of a global sense of community responsibility for everyone affected by disease?

Interestingly, drug formulas are typically tightly guarded trade secrets and often end up being blockbuster sellouts with billions being made for the drug company. Is GSK about to give that potential up in this experiment? Chances are the answer is no, largely because malaria usually plagues poor countries and drugs for those countries aren’t famous for providing a large payback, thus reducing the drug company’s risk.

Just when you’d think Microsoft would have nothing to do with a venture of this type, up pops the information that one of the three websites hosting this open source effort is called Collaborative Drug Discovery, an Eli Lilly & Co spin off with funding from the Bill and Melinda Gates Foundation and Flounders Fund.

While the current drug information sharing is being done to experiment with “neglected” diseases, there is some speculation this process may be viable for developing commercial drugs. That might be a bit of a stretch for the simple reason that intellectual property issues would need to be dealt with before anyone could proceed. No matter what the outcome of “this” experiment in camaraderie, it may turn out to be “the” way of doing business in the future.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

There is one exception to the general rule of copyright vesting in an author’s work. It’s called “work for hire.”

In a nutshell the concept of work for hire is meant to let a company train, share ideas and educate the people they employ without the underlying fear that they are creating their own future competition. Generally speaking, this is an exception to the general rule of copyright where it vests in the author of a work.

Let’s take a closer look at this doctrine. A company employer is assumed to own copyright on any work created by their workers during the scope of their job. Along with this assumption is the fact that businesses will usually also lay claim to ownership of work produced by independent contractors (if they commissioned the work); if both parties agree in writing the work was work for hire, and that the work itself fits in one of nine categories enumerated in federal law.

As you may expect, the language in the statute leaves the door fairly wide open for vigorous arguments. Let’s look at an example. What if you had a tech support person working for you during the day that went home at night and created software applications? Is that person now working outside the scope of their job at your company? What if the person used skills or ideas learned at your workplace? While you might have thought to put scenarios like this in a work for hire document, the vital question is whether or not “you” will own the work.

There is no right or wrong answer to those questions because an answer is dependent on the facts of each case individually. This is why it is critically important to speak to a Los Angeles business litigation attorney with expertise in this area to outline what you would need to protect your company.

Now, here comes the fly in the ointment – startup tech companies who need their software developed for them and they hire out work as they need it done and when they can afford it. The fly in the ointment is that computer code isn’t really in any one of the nine federal work for hire categories, which puts a crimp in what the company is supposed to do. Put another way, this means the company almost has to hope the programmer’s ethics are superior, and that they won’t use what they’re working on to start their own firm.

The good news is that a recent court decision, JustMed, Inc. v. Byce offered this area of the business world a bit of elasticity when dealing with work for hire issues. The court held that a software developer was an employee and that meant any code developed belonged to the company that hired the developer.

This is an interesting case for another reason as well. The court came to this verdict by almost flying in the face of considerations that would usually lead courts to classify a relationship as being that of an independent contractor. Those factors included: the parties never having a written employment agreement; the business didn’t withhold taxes, provide benefits or a W-2; the company didn’t offer much in the way of direction for the job; the contractor used their own equipment and worked remotely.

The bottom line here is that this area may yet be open to further interpretations as new cases develop for consideration. In the meantime, each case is based on and dealt with on its own merits virtually guaranteeing different results every time. When in doubt about the work for hire doctrine, talk to a Los Angeles business litigation attorney. It could save you some grief later.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

Internet law is a bit like a Wild West frontier town without a sheriff in sight. Trademark infringement is common online.

“Trademark infringement online is not that well understood, nor do people comprehend that what they are using from someone else’s site without express permission, amounts to stealing,” Los Angeles Internet law attorney David Alden Erikson outlined.

“When it comes right down to it, trademark infringement on the Internet is out of control. Quite regularly you will see third parties using established trademarks and domain names, etc. with the trademark holder’s permission. Furthermore, the usage of third party trademarks as keywords in ads on MSN, Yahoo, Google and other ad networks is very controversial, as is using those marks in the text of ads triggered by keywords,” added Erikson.

This brings up the need to know about keyword trademark infringement. “Basically it works like this,” outlined Erikson. “Trademark law prevents third parties using established trademarks when using them would confuse consumers about the origin, sponsorship, source or affiliation between the rightful trademark holder and the third party using the mark,” he explained. Of note is that fact that keyword infringement lawsuits have been launched against companies using a trademark and companies like Google who offer the software that people use to advertise.

In a nutshell, bidding on trademarks as keywords will trigger an infringement threat letter from the holder of the trademark; which makes eminent sense, because bidding on their trademarks as a keyword for advertising competition acts to divert their consumers to the competition by taking advantage of the trademark holder’s good will.

On the other side of the fence, the person bidding for the trademark sees using it as a bonus to give consumers even more choices. In other words, the issue is whether or not keyword advertising is an illusory business or valuable marketing. The courts haven’t really delved into this issue a whole lot. Those that have agree that none of the general rules apply.

“What it all comes back down to is whether or not – the ultimate test – is whether the use of the keywords by others (than the original holder) would confuse buyers. This also brings up the concept of ‘initial interest confusion.’ This means most buyers wouldn’t be confused once they got to the competing website, but allows for a trademark infringement claim if the buyer would ‘reasonably’ have been deceived before clicking on the ad,” said David Erikson, a Los Angeles Internet law attorney.

“When push comes to shove, if you go ahead and use trademarks as keyword triggers and also use them in ad text for keyword ad programs, watch your step to avoid being sued. If in doubt, give me a call and we’ll figure it out,” offered Erikson.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

]]> http://www.daviderikson.com/2010/05/keyword-infringement-common-in-cyberspace/feed/ 0 http://www.daviderikson.com/2010/05/gina-has-something-to-say-in-the-workplace-about-discrimination-in-employment/ http://www.daviderikson.com/2010/05/gina-has-something-to-say-in-the-workplace-about-discrimination-in-employment/#comments Sun, 23 May 2010 16:16:15 +0000 jferris http://www.daviderikson.com/?p=78 Just recently the Genetic Information Nondiscrimination Act (2008) went into effect. There is the potential to use genetic information to discriminate in employment.

The Genetic Information Nondiscrimination Act (GINA) gives the nod to the fact that advances in genetics is crucial, indeed critical, to medical progress. Unfortunately, these advances held the potential to have the information misused against employees. In order to avoid this possibility, Congress passed GINA to ostensibly protect genetic information of workers and ban employment discrimination that may be based on genetic information.

What does genetic information include? Typically, it is a sign of the possible manifestation of a disease or disorder that may run in an employee’s family. Genetic testing usually takes place in clinical research or other areas that examine human RNA, DNA, proteins, chromosomes and/or metabolites which detect chromosomal changes, mutations or genotypes.

Just to avoid some confusion here, according to the Act, it is against the law for employers to fire, not hire or discriminate in other ways against a worker. This would apply to circumstances dealing with pay and the conditions and terms or privileges of their employment based on genetic information. It is also against the law for employers to refuse workers opportunities or use genetic information against them to affect their employment status.

It would seem logical that GINA would also make it illegal for an employer to ask or demand genetic information from an employee or their families. There are, however, some exceptions to the rules, and this is certainly an area you will want to speak to an experienced attorney about if you find yourself in the position of having been requested to provide genetic information.

The exception to the rules come into play when an employer – by accident – asks or requires a family medical history; when a company offers health or genetic services as a component of a wellness program and worker’s provide their written consent; when an employer asks for or requires a family medical history from workers under the FMLA; where the company buys material publically available that includes a worker’s family medical records; and where the genetic information is used for monitoring biological effects of toxic substances in the workplace.

It may seem like there are just too many exceptions that an employer could use to get the prohibited information and if that is the case, then what was the point of the Act in the first place? Fair question and a valid one too. This Act does address this by saying that even if the employer gets genetic information under an exception, they are still prohibited from using it against a worker for any reason.

While there are other safeguards built into this Act that are intended to protect workers whose employers to happen to get their genetic information, it still raises questions about violation of secrecy and privacy. If the employee happens to be dead set against that kind of information being at the hands of their employer and they say so, the company may not retaliate against them.

As you can see, this is a new area and largely untried and untested in the legal arena. It will be interesting to see how the rules are interpreted, if a case that’s filed under a breach of the provisions of this Act makes it to court.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

Most people tend to think of knockoffs in terms of the fashion industry: a knockoff of a famous designer’s dress, shoes, handbag or jacket, etc. “Think McQueen vs. Madden, a rather famous shoe knockoff lawsuit. While clothing seems to have been the major source of the latest knockoff lawsuits, it looks like other companies are getting fed up with people copying their designs and trying to pass them off as their own. Witness this latest case of lighter-making giant Zippo Manufacturing Company who is suing four Chinese companies,” suggested David Alden Erikson, a Los Angeles fashion law attorney.

It’s not just the lawsuit that is making headlines in this case; it’s the fact that Zippo is going to be laying off about 15% of their production line workers, in part because of the knockoffs of their lighters. The country really doesn’t need any more layoffs in these tough economic times, but that appears to be what will happen soon. The company has filed a complaint with the U.S. International Trade Commission to stop the manufacturing and sale of the knockoffs from the biggest source of knockoffs in China.

Along with a downsizing in their workforce, Zippo also cites a 30% drop in their business, due to the knockoffs. If they can stop the flood of fake lighters and business picks up, the out-of-work employees will be called back. “While a lighter is hardly an item of clothing, the principal behind it being ripped off is quite similar to a fashion designer seeing their creations sold at cheap prices to anyone who wants a look alike,” added Los Angeles fashion law attorney Erikson.

Sick of being knocked off, fashion designers have started to fight back and are working with the Council of Fashion Designers of America to get their fashions copyrighted. Those who can’t afford the big ticket original designs appreciate getting the almost originals for less money, but fashion designers have had it with the rip-off artists cutting into their bottom line profit.

If designers are able to register their designs with the U.S. Copyright Office, they would then be protected for three years, and it would be illegal for anybody to make anything even remotely similar. “Would this solution, should it come to pass, work for knocked off lighters? It may, but only time will tell who will win the war of the similar looking product with a similar (but misspelled) name at the cheaper price,” speculated Erikson.

The whole question here is the rights of designers and original makers of various items (purses, jewelry, watches, etc.) to have their product protected from someone else who would steal it and profit from it. This problem isn’t really new, but the time has come when the original makers are fighting back and taking action.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

Unfortunately, they can’t.

Copyrighting a fashion design is not possible because it does not provide the creator of that design with the kind of protection they really want – protection from knockoffs. In fact, the converse is true when a fashion designer gets ready to launch a new design; they expect they will be copied. Often, they get knocked off before their product even hits the market; such is the cutthroat competition within the industry.

Until recently, this dire state of affairs has caused a great deal of angst among designers who want to go places but want their creations to remain their own and not show up under someone else’s label as a “less than perfect copy” of the original. There may be good news on the horizon in the form of the Design Piracy Prohibition Act – if it actually passes into law. This bill would offer copyright protection for fashion designs widely defined as eyeglass frames, duffel and tote bags, handbags, purses and clothing. Admittedly, clothing is a tad vague, but chances are that would be sorted out in the courts when push came to shove and a lawsuit was filed.

This Act actually amends Chapter 13 of the Copyright Act, which you may find rather interesting since that chapter provides protection to one category of useful articles, boat hull designs. Wondering what boat hull designs have to do with clothing, et cetera? The key here is the term “useful article.” Currently, fashion designs are classified as “useful articles” and have what is referred to as an intrinsic utilitarian function. There is more to that definition, but you have the key element.

Right now, designs of useful articles may be protected under copyright law “only if such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” In addition, there is very limited protection to be had under trade dress (trademark) and design patents (patent) law. The problem with those two “protections” is that they’re not practical for the fashion industry.

The proposed Act suggests a three year protection for fashion designs. Why? It’s limited because typically fashion trends are rather short-lived at the best of times. You’ll also find out that applications for protection may be filed at the U.S. Copyright Office, where it would be put on a database of protected designs and images of that design.

The Act also aims to narrow the definition of innocent infringement so that the courts are able to impose liability on those who had reasonable grounds to believe a design was protected. It would also boost damages for infringement, something the fashion industry would be enormously happy to see.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

The Design Piracy Prohibition Act stalled in Congress over the last few years. While it’s been around in various forms since 1957, it’s never really seen the light of day.

The whole point of this Act, should it get passed, is to extend intellectual property rights and concepts and related litigation to the world of fashion and design. The Act has been kicking around for some time, but because it evidently has some teeth, it’s been viewed as being controversial and thus put on the back burner, until now.

The latest attempt to stop knock-offs, the stalled Design Piracy Prohibition Act, aims to provide sui generis protection to fashion designers for a period of three years. Sui generis is a Latin expression, meaning of its own kind or unique in its characteristics. Design piracy legislation is already in place in Japan, India and Europe.

The Act would extend protection to “the appearance as a whole of an article of apparel, including its ornamentation,” with ‘apparel’ defined to include men’s, women’s, or children’s clothing, including undergarments, outerwear, gloves, footwear, and headgear; handbags, purses, and tote bags; belts, and eyeglass frames. To get the protection for three years, a designer would have to register with the US Copyright Office within three months of going public with a design.

“Fashion piracy and knock-offs are extremely unfair and economically hurtful for emerging designers. This is because many may see their designs knocked off before their own creations get to stores. While there needs to be a way to stop this, I worry that the legislative approach may have some unintended consequences,” said David Alden Erikson, a Los Angeles fashion law attorney.

With the advent of more and more knock-offs and rip-offs of aspiring designer’s creations, and the subsequent more frequent legal battles this has engendered, this issue has come to the forefront once again. While the general public doesn’t think much about it, other than what they are ultimately paying for an item, designers are quite fed up with being knocked off. It costs them money and prestige.

Currently, fashion only has the protection of copyright if its shape is non-functional enough to be classified as a creative sculpture; or that a design, pattern, or image on the clothes qualifies as pictorial/graphic. The law does offer some protection against counterfeiters, but this only if the trademark defense is used and not when a knock-off is copied under a different label. There is also patent protection of sorts available that only applies to an ornamental design that is new, original and not obvious. The definition for new, original and non-obvious is pretty tough to pin down.

The prevailing opinion is that the “new” law would have the right kind of impact and clout, plus have the potential to drive many small fabric and apparel companies out of business because they don’t have the money to hire a lawyer and fight the bigger firms knocking off their creations. As with many things when it comes to infringement and how to stop it, there are pros and cons, each with valid arguments, but no middle of the road compromise seemingly ready and waiting in the wings. Typically, that would then leave the courts as the referees.

“This is one of the things that worries me,” outlined Erikson, “as this new Act may do little more than create a cottage industry for fashion lawyers who would work on (patent) registrations and on the possible flood of litigation over what counts as original and who started a trend,” he added. This sounds a little like the sitcom, Desperate Housewives – lots of fighting and very little gets resolved, unless revenge counts.

In one corner is the Council of Fashion Designers of America, the face of big-name fashion, and they want the Act to pass. In the other corner is the American Apparel and Footwear Association who isn’t thrilled with the idea, as they feel it will lead to never ending lawsuits between legitimate companies. “Will it come to pass? No one is certain, but there is certainly a lot of lobbying going on to push the Act back into the limelight and make sure it does see the light of day this time,” Erikson commented.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

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