Beverly A. Berneman
Two Federal Appellate Courts are duking out whether putting your own spin on someone else’s copyrighted work is enough for a fair use defense. The Copyright Act gives us four factors to look at for fair use: (1) the purpose of the use; (2) the nature of the work; (3) how much of the work is used; and (4) the effect the use has on the market for the original work.
The Second Circuit Court of Appeals says that any transformative use of a copyrighted work is fair use (Cariou v. Prince). I've included a comparison of one of Cariou's original photos and Prince's changes to the photo. Do you think the second photo is fair use of the first?
The Seventh Circuit Court of Appeals thought the Second Circuit went too far in hinging everything on transformative use. In a more recent case, the Seventh Circuit says that fair use isn’t designed to ‘protect lazy appropriators’ (Kleintz v. Sconnie Nation LLC).
So you shouldn't let transformative use trump all of the other factors.
TAKE AWAY: Here’s a quick quiz:
- Can you use a photo you got from Google Images on your website?
- Can you quote someone else’s book?
- Can you use a movie clip you got from YouTube in your PowerPoint presentation?
- Can you copy your competitor’s catalogue but change the name of the company and the contact information?
Answers: (1) Probably not. Just because it’s on the Internet doesn’t mean it’s free. If you’re using it on your website, you’re making commercial use of someone else’s work without their permission; (2) Probably. It will depend on what you’re using it for and how much you’re using; (3) Maybe or maybe not. It will depend on what you’re using it for and how much you’re using; and (4) No.
As you can see, the answers aren’t always easy. If you’re serious about using someone else’s images, photos, content etc., it’s worth getting a right to use opinion.
Beverly A. Berneman
McDonalds Corporation won a victory before the Trademark Trial and Appeal Board (TTAB) against a food company named McSweet LLC. McSweet wanted to register its name for pickled vegetables. McSweet argued that the mark was a play on the company founder’s name, Leo McIntyre. The TTAB rejected the argument. It held the public is likely to associate “McSweet” with McDonald’s family of “Mc” marks. The TTAB also rejected McSweet’s argument that no one would be confused between fast food and pickles.
TAKE AWAY: Trademark law protects the consuming public from a likelihood of confusion about the source of products and services they buy, use or consume. This case is a good example of a likelihood of confusion. If you saw “McSweet” on a grocery shelf, you’d probably think that McDonald’s is selling the warm pickles they put on their burgers. This case also points out that a trademark protects not only the specific goods and services associated with the mark, but any overlapping goods or services. Food is food.
Beverly A. Berneman
Intellectual Property. Patents, copyrights, trademarks, trade secrets, domain name, right of publicity! I know what you’re thinking. What do these things have to do with my business? This blog is going to answer that question. In short bites, I want to let you know what’s going on in the legal world around Intellectual Property. For an Intellectual Property geek like myself, that can be enough. But, I’m going to take it one step further. I’m going to give you a TAKE AWAY that shows how this news helps your protect your business and make it more productive. My posts will be relevant to your business whether your revenues are $500,000 a year or $5 million a year.
But first, a little about myself. I’m attorney who practices primarily in the area of Intellectual Property. I hold a legal masters in Intellectual Property and also teach at John Mashall Law School in Chicago. Over the years, I have found that an informed client is the best client. A well informed client can make better decisions about their business in the short term and long term. In order to promote that, I started a column in my firm’s quarterly newsletter that has now evolved into this blog. I look forward to sharing information with you.
Interested? Read on. I've posted a few starter items for you.