+
5 Things Every Artist (and All Businesses)
Should Know About The Law
Shireen Marshall, Elevated IP, LLC
David Rein, Erickson Kernell IP
+Disclaimer
• These materials are solely for educational purposes.
• No individualized legal advice is being given today.
• The presentation of these materials does not establish an attorney–client relationship with the presenters, Elevated IP, LLC, or Erickson Kernell IP
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+Real vs. Intellectual Property
Real estate/vehicles/equipment vs. copyrights/trademarks/patents/trade secrets
Both real and intangibleproperty can be bought, sold, traded, pooled, mortgaged, gifted, etc.
Due diligence on IPshould be as rigorous as diligence on real property
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“Only one thing is impossible
to God: to find any sense in
any copyright law on this
planet”
Mark Twain
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+How Do You Spot A Copyright?
An Original Work
Not Novelty
“Spark of Creativity”
Author
Fixed, Tangible Medium
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+Look For . . . (non-exhaustive list)
Literary
Musical
Dramatic
Pantomine & Choreograph
Picture, Graphic & Sculpture
Film & Other Audiovisual
Sound Recordings
Architectural
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+
Artist Owns Exclusive Rights
Reproduce
Adaptation/Derivative
Distribution
Performance
Display
(These are all separate from the work itself!)
For Visual Rights: Moral Rights Attribution; integrity
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+ Register!
www.copyright.gov
Inexpensive ($50)
Advantages
Sue
Remedies
Prima Facie Evidence
Register If Consider
Commercialization
Ideal w/in 3 months
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+Poll Question
Question: True or False: Works must be marked with the
© symbol to receive copyright protection.
Answer: False
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+Online Content
#socialmediaisIP
Company should own internet domains and
social media accounts (not the IT person,
founder, etc.)
Procedures are available for transferring
domain ownership from cybersquatters to
rightful owners
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+Online Rights/Digital Rights
- Place a Copyright, Trademark or Patent Number Notice
- Register
- Low-resolution images
- DMCA/Website Notice or IP Complaint Resolution Process
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+ What Is A Trademark?
A source identifier; a recognizable word, logo or expression
that identifies the goods or services of a particular person or
company
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+Strength of a Trademark
Weakest Strongest
Generic Descriptive Suggestive Arbitrary/Fanciful
Thermos
Aspirin
Xerox
Kleenex
Apple
Kodak
Sno-Rake
Greyhound
Playboy
Bed & Breakfast Registry
Camper Depo
Recycler
Early clearance searching and filing of an intent-to-use
(ITU) application can avoid rebranding nightmares
later
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+Benefits of Federal
Trademark Registration
Exclusive nationwide right to use the mark
Presumption of validity
Ease in notifying to potential infringers
Ability to claim incontestability
Right to sue in federal court
Statutory and treble damages
Ability to enlist U.S. Customs to restrict
importation of infringing goods
Ability to prevent cybersquatting
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+Poll Question
Question: Yes or No: Will the U.S. Trademark Office
register offensive marks?
Answer: Yes
(Matal v. Tam, 582 U.S. ______, 2017.)
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+ IP Ownership Usually Author/Inventor
Work for Hire/Employment Contract
Joint Authors/Inventors
Intend contributions merged inseparable
Joint ownership
Either grant non-exclusive rights
Assignment
Grants
Contests
Work Policies
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+Work For Hire Contracts
Employer is the legal author
Limited to 9 categories: (1) a contribution to a collective
work, (2) a part of a motion picture or other audiovisual
work, (3) a translation, (4) a supplementary work, (5) a
compilation, (6) an instructional text, (7) a test, (8) answer
material for a test, (9) an atlas
Work must be specially ordered or commissioned
Must be a written agreement, signed by both parties,
specifying that the work is a work made for hire by use of
the phrase "work for hire" or "work made for hire”
Retroactive work for hire is not permitted
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+Business Structure
Limited Liability Company
(LLC)
Corporation
Non-profit Corporation
Secretary of State
Some protection from liability
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+Poll Question
Question: True or False: Generally, only one type of
intellectual property is applicable for a given product.
Answer: False
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+Licensing Basics
Transfer of Ownership by
Assignment
License an Infinite #
Exclusive v. Non-exclusive
1 or more of rights
Limit purpose, geography,
time etc.
Third party use
Transfer or Exclusive MUST be
in Writing if Copyright or
Patent
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+Licensing Basics
What IP?
Who can use? Exclusive?
Where is it licensed?
When? Term.
How? Restrictions?
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+IP Appears In Many Contracts
Employment Agreements
Assignments
IP Licensing Agreements
Joint Development Agreements
Independent Contractor Agreements
Non-Disclosure Agreements
Model Releases
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+Model Releases
If people are unrecognizable, no model release is needed
Using someone’s name or likeness in reporting is
considered Fair Use
Famous people have a right of publicity
Will probably charge for using their name or likeness for
commercial purposes, or sue you for violating their right
of publicity
Non-famous people have a right of privacy
Might sue you for invading their privacy, if you use their
likeness for commercial purposes without permission
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+Poll Question
Question: Which type of IP is not acquired automatically
by creation or use?
Answer Choices: Patents, trademarks, copyrights
Answer: Patents
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Thank You
Shireen Marshall, Ph.D.
Elevated IP, LLC
720-507-1255
4845 Pearl East Circle
Suite 101
Boulder, CO 80301
www.elevatedip.com
Dave Rein
Erickson Kernell IP
913-499-1306
1301 Arapahoe St.
Suite 105
Golden, CO 80401
Twitter: @daverein
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