Copyrights: Online Copyright Application Tips

The U.S. Copyright Office ("USCO") may have implemented an online copyright application system a little more than a year ago, but there are still some serious bugs in the system that need to be worked out. Here are a few important tips to keep in mind when filing a copyright application online: print out and keep hard copies of (1) your copyright application; (2) the application filing receipt you receive by email from USCO after you file your application; (3) the fee payment receipt you receive from USCO; and the deposit specimen receipt you receive from USCO. Keep all the hard copies in a safe and easy-to-locate place until you receive your actual registration certificate. Why? Because it will probably take USCO anywhere from 12-18 months to process your application and issue the actual Copyright Registration Certificate. In the meantime you may need your complete copyright application package if you need to prove to anyone - including a court - when you filed your application and that you filed everything properly. Along those lines, be sure to keep an exact copy of the work (screenplay, novel, computer program, illustrations, etc.) you submitted to USCO with your copyright application. The reason: since authors and creators often develop different versions of the original work, it is vitally important to be able to prove exactly what version of your work you submitted with your copyright application.

Report From the Intellectual Property Front Lines

Having just returned from the three-day annual Intellectual Property Law Institute sponsored by the State Bar of California, we are still processing what we heard. As you might imagine, the odd combination of the ongoing growth of technology and the recession continues to create new intellectual property legal issues that simply did not exist ten years ago. We plan to provide more in-depth reports about the IP Institute in the days to come, but here is a short list of some of this year's highlights:
* Trademark and domain name disputes are continuing to explode and the landscape will only get more challenging for brand owners as the number and variety of top level domain names (.com, .net, .org, etc.) expand almost geometrically;
* Although the U.S. Copyright Office's efforts to implement an online copyright registration system have been well-intentioned, the Copyright Office is seriously underfunded and the online registration system is slower than the previous hard paper-only procedure;
* As the cost and difficulty of enforcing patents increases, so does the importance and value of using trademarks, copyrights and trade secrets to protect and exploit your brands, content and inventions; and
* In what may be more than just a nod to the explosion of social media/networking, Facebook's former privacy chief who is running for California Attorney General delivered one of the Institute's keynote addresses.

More to follow in the days to come; stay tuned.

Endorsements, Bloggers & The Federal Trade Commission: New Rules

The U.S. Federal Trade Commission ("FTC") has just released new rules and guidelines that will govern the disclosures advertisers must make about endorsements contained in their ads and any payments that are made by the advertiser for the endorsement. The rules include bloggers and place a greater duty on celebrity endorsers to be truthful about their connection to products they endorse. Here is a brief FTC summary of the new guidelines. Our initial thoughts about the new rules: be upfront and disclose who is really behind the advertisement, blog, etc. This is going to be interesting and challenging. More to follow.

Copyrights & Music:Does a Cell Phone Ringing in Public Violate Copyright Law?

In an important ruling for the millions of cell phone users whose ringtones play in public - and for the cell phone companies that provide the ring tones - a federal court in New York just ruled that merely playing the ring tone in public for personal (not commercial) purposes is not a "public performance" that would trigger a royalty payment to the copyright owner of the song the ring tone is based on. One of the keys to the decision was that it is limited to personal uses of ringtones "without any purpose of direct or indirect commercial advantage". Thus to the extent someone might be interested in playing ringtones in public for commercial purposes - let's say a "Battle of the Ringtones" contest - this ruling would not apply. Beyond that, one of the interesting tidbits that came out of the court ruling is confirmation of the amount of money the cell phone companies pay in royalties for reproducing the song to begin with: 24 cents. Here is a summary of the court opinion and for those who are really ambitious, here is a copy of the court opinion itself.

A New Kind of Musical Rhapsody: Brian Wilson Set to Complete Some of Gershwin's Unfinished Works

The L.A. Times reported today that Brian Wilson - the legendary songwriter and co-founder of The Beach Boys - has been granted permission to complete some of the unfinished musical works that George Gershwin left behind when he died prematurely at age 38 about seventy years ago. The newspaper story goes into some detail to explain how this came about after all this time and why Gershwin and Wilson may not be the strange musical bedfellows they appear to be at first. This kind of extraordinary creative endeavor holds great promise. We will look forward to the results with great anticipation. And....here is a link to one of our favorite Brian Wilson/Beach Boys compositions of all time which wasn't necessarily a hit: "The Warmth of the Sun". [Brian W. reportedly wrote it the day of the JFK assassination].

Veoh Video Website Defeats Copyright Infringement Lawsuit by Major Studios

In a decision that portends big problems for Viacom's lawsuit against Google's YouTube website, a federal court decided last week that Veoh's video posting website is not guilty of copyright infringement. This case is not only important because of the pending Viacom vs. Google lawsuit, but because it details WHY Veoh was not guilty of copyright infringement even though the website does post copyrighted material without permission. Although this Court's decision is not binding on other courts around the country, the decision essentially outlines possible ground rules for a video-sharing website business model that is legal. It is worth comparing and contrasting how Veoh operates as compared to Napster and Grokster and other music-sharing websites that have been declared illegal. It will also be interesting to compare and contrast Veoh's service to YouTube's to see how they line up and how they differ.

Copyrights & Music: Ellen DeGeneres Rolls Into Court

Last week - at virtually the same time she was named the new judge on "American Idol" to replace Paul Abdul - Ellen DeGeneres' production company was sued by several major record labels for regularly and routinely using music on her daytime TV show without a license. The lawsuit alleges that about 1,000 songs have been used without permission. We don't watch the DeGeneres show regularly, but we understand that she's a music lover and has a segment each show where she dances to a popular song selected by a DJ. But that's a use that requires a license and according to the lawsuit when the show's producers were advised the program needs a license, their response was "We don't roll that way". Perhaps not. But since the U.S. Copyright Act allows for damages of up to $150,000 per work infringed, the show could be exposed to up to $150 million in damages. We don't really think the production company is going to end up paying anywhere near that. But they probably will pay something and probably more than it would have cost them if they had gotten the licenses to begin with. This, of course, raises the age-old question: is it better to ask for permission or forgiveness?