Celebrating 2014 - Lawyer Tamera Bennett Shares the Fun From 2014

From a business and personal perspective, 2014 has just been a ton of fun. Making some decisions and implementing them on reducing stress and increasing productivity actually worked! I want to extend a big thank you to my friends, colleagues, referral sources and family for making it a fantastic year.

Here's a quick look at the fun stuff:

January - A great time at the Grammy Awards with my husband and son. And, the first ever Entertainment Law Update Podcast Happy Hour in Beverly Hills with my co-host, film and TV lawyer Gordon Firemark.

February - Great kick-off to hosting lunches in and around Dallas for Women In IP. Our group usually meets in Frisco/Plano. Let me know if you are female attorney, paralegal or support staff in trademark, copyright or patent law. You are always welcome to join us.

March - I took a sabbatical from SXSW (scary, but I did it) and had an amazing Spring Break vacation with my husband, son and family friends.

April - My first article in the TEXAS LAWYER was published. I attended the Christian Women In Media Annual Conference.

May - The long-awaited new website launched that combines my blog and website all in one spot. And, adds Law Pay as a great service to our clients for paying their bills online. Woot!

June - Hosted Third Annual Beach Chic party for a group of wonderful ladies.

July - Paris and London, baby. From the Beatles to Harry Potter to the Eiffel Tour. Trip of a lifetime. Honored to speak at the Roaring Lamb's Christian Writer's conference on copyright law and book publishing.  Second article published in the TEXAS LAWYER.

Grammy Future Now - 2014 - Austin

Grammy Future Now - 2014 - Austin

August - In a crazy pursuit to prepare to hike at Philmont Scout Ranch in July 2015, I committed myself to getting in shape with Crossfit Coppell Central.  I'm still going strong and actually really love it. Personal best bench press is 100 pounds. Honored to moderate a panel for the Texas Grammy Chapter at the annual professional development event.

September - Had a fun time presenting to the Flower Mound Bar Association on "Yes, Your Clients Own Trademarks (copyright and patents, too)".

October - Shooting hoops on the Dallas Mavericks practice court as "team building" for the Texas Chapter Grammy Board.

November - Watching our son's high school marching band compete at the Texas UIL State Marching Band finals and winning 6th at the Bands of America Marching Band Grand Nationals. Speaking at the TexasBarCLE Entertainment Law Institute CLE on trademark fair use and publishing an article on the same topic in the TEXAS LAWYER newspaper.

December - Teaching the Law Merit Badge to a group of Boy Scouts that cannot wait for the Mock Trial that I know will be a highlight of January 2015! Preparing my heart during Advent and celebrating Christmas.

Celebrating 8 Years of Create Protect - Current Trends In IP and Entertainment Law Blog

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Eight years ago, in December 2006, music and trademark lawyer Tamera Bennett wrote her first blog posts.

More than 460 posts later, her blog covering current trends in IP (trademark & copyright) and entertainment law matters is still going strong.  Thank you to the readers. Feel free to drop us a note in the comments section or from the Contact Us page on any topics you would like to see in 2015 on the Create Protect blog.

What Gift Do You Buy A Lawyer?

With the holiday season literally around the corner, I'm often asked "what do you think a lawyer would like for a gift?" As a lawyer myself, and someone who often buys gifts for other lawyers, let me share some favorite gifting ideas.

My all time favorite gift to give and receive:  A hand written thank you note. Sound a little sappy? I know. But, it has meant so much to me over the years when a client or referral source has dropped me a note that simply says thank you and we appreciate you. It's always the perfect gift.

For the newly minted lawyer out there, a nice business card wallet is always a great choice. I've carried this wallet from Levenger for the last 15 years. It still looks wonderful and I'm never embarrassed to say "let me get a card for you." You can also emboss it with initials.

All lawyers work too hard and need some comic relief. "My Cousin Vinny" should be required viewing for every law student and every lawyer should watch it once a year. If you've got a hard-working lawyer, send him or her a DVD (along with that note of appreciation).

I've never met a lawyer that wouldn't love a hardback copy of "To Kill A Mockingbird." It's a classic and it will be appreciated.

Happy gifting and happy holidays!

 

 

This post contains affiliate links. That means I may receive a benefit if you purchase something from a link.

Episode 57 - Entertainment Law Update Podcast - Tamera Bennett & Gordon Firemark

Click the arrow below to play the Entertainment Law Update Podcast Episode 57

Dallas Music and Trademark lawyer Tamera Bennett and LA Film and TV lawyer Gordon Firemark bring you the updates on copyright, trademark and entertainment law matters in their monthly podcast by entertainment lawyers for entertainment lawyers. Listen this month to see if there are any "Blurred Lines" or blurred photos.  You might hear the strains of "Rocky Top" and decide you need some sassy new shoes.


Do I Need A Facebook Disclaimer?

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Have you noticed your friends posting a disclaimer on Facebook saying it will protect their rights? Do you need one? Does it work? Post updated September 28, 2015.

Do I Need a Disclaimer?

If you want to control your intellectual property, think twice about what you post on social networking sites.

Hate to tell you that nothing you post on Facebook or any other social networking site will override or negate the terms and conditions you agree to each time you post on that particular site. It is important to read all the updates to the privacy policy and terms and conditions of each social networking site. I've written more in depth on the topic at this blog post.

While it sounds like a good idea to post something like this on Facebook:

Due to the fact that Facebook has chosen to involve software that will allow the theft of my personal information, I state: at this date of November 27, 2014, in response to the new guidelines of Facebook, pursuant to articles L.111, 112 and 113 of the code of intellectual property, I declare that my rights are attached to all my personal data drawings, paintings, photos, video, texts etc.... published on my profile and my page. For commercial use of the foregoing my written consent is required at all times.

It actually does nothing to change what Facebook has the right to do. In fact, there is no "code of intellectual property" that I am aware of in the United States.

Think Twice Before You Post

If you want to control your intellectual property, think twice about what you post on social networking sites. The current Facebook policy as of January 30, 2015 allows the following in relationship to intellectual property:

For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

If you don't want Facebook to have the potential of using your IP, then don't post.

Feel free to contact me if your company needs assistance developing a social networking policy or a better understanding of the terms and conditions for the various social networking sites.

We like to be social. So, please use the share links below to re-post.

 

Image CC2.0 Robert Couse-Baker

What Is The Difference Between A Trademark and A Copyright?

The terms trademark and copyright are often used interchangeably. In fact, they refer to two distinct types of intellectual property. It's important for a business owner to know the difference between a trademark and copyright because the law protects them differently.

A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. Examples of well-known trademarks include NIKE, CHANEL and ZYRTEC.

A copyright is an original work of authorship fixed in a tangible medium of expression. This includes a song, book, photograph, painting or sound recording.

In the United States, you begin to have common law rights in a trademark when you use the trademark on your product or to promote your service. Click for more details on the trademark selection and registration processes.

A copyright is only protected once you express your idea in a tangible way. Meaning you write down the music and lyrics to your song or you paint your masterpiece.  Click here to learn more about copyright protection.

Neither trademark or copyright law protect an idea. 


Flower Mound High School Band - 6th In Grand Nationals

Flower Mound HS, TX placed 5th at Music for All's 2014 Bands of America Grand National Championships. Click picture to watch video.

Congratulations to the Flower Mound High School marching band for taking 6th place in the 2014 Bands of America Grand Nationals competition held in the Lucas Oil Stadium in Indianapolis, Ind. Nov. 12-15. -- an amazing accomplishment for the band's first appearance in the national competition.

According to the Bands of America website, "vividly shocking colors wrapped the band in harmonic tapestries, inspired by the environmental artwork of Christo and Jeanne-Claude, who famously wrapped buildings, islands and large expanses of nature and apparently, a large box of nine bassoonists. Colors of the most famous wrappings by the artists permeated the show, making even the most colorblind person see in technicolor."

Vividly shocking colors wrapped the band in harmonic tapestries...

In fact, the artist Christo reached out to the band via a letter to wish them well in the competition just days before the event!

Great job FloMo. You brought the MoJo.

(Yes, I'm a proud band parent and thrilled our child had the fantastic opportunity to march at Grand Nats.)

Denton Trademark Lawyer Tamera Bennett Guest On Marketing Podcast

Texas trademark lawyer Tamera H. Bennett joins host Nick Augustine on the LawTalkRadio Podcast and shares tips for marketing and branding firms who want to avoid trademark pitfalls and lawsuits.

Topics covered in the 30 minute interview:

  • Tell us a little about yourself and why you chose to practice trademark law;
  • Describe a typical client and the trademark services your firm provides;
  • For marketing and branding firms, what are some trademark pitfalls?
  • What can happen if a creative firm/client gets sued for TM infringement?
  • How do you help trademark owners learn how to leverage their marks?
  • Do creative firms frequently use trademark lawyers for their client work?
  • Are there any resources you recommend to people who want to learn more?

Tamera H. Bennett is a wife, mom, lawyer, mediator, blogger, podcaster, and legal writer. With fifteen years in law practice, Tamera guides clients in licensing of materials to and from third parties. In addition to music licensing, trademark application prosecution and trademark licensing agreements, Tamera advises clients on co-branding, product placement, endorsement and sponsorship agreements. 

Bennett Law Office, PC , 132 West Main Street, Lewisville, Texas 75057, Phone: (972) 244-3210, Website Link

Sponsor: Members’ Choice Federal Credit Union on Unicorn Lake Boulevard.  You may be eligible to join if you live, work, worship or attend school in Denton or Argyle, Texas.

Learn more about Nick and Lone Star Content Marketing by clicking here.

Catwoman Wipes a Clean Slate - Trademark Fair Use

Originally published as "Weighing Trademark Claims When Real Products Appear in Movies and TV" in the TEXAS LAWYER on November 10, 2014. Reprinted with permission.

By: Tamera H. Bennett

Anyone who has watched an episode of "The Big Bang Theory" is sure to hear about "Star Wars" and "Star Trek." Do TV or film producers need permission to include trademark references in the program or movie? From "The Big Bang Theory" to Batman movies, the debate over trademark infringement and fair use in media properties is a hot topic.

A trademark is a word, phrase, symbol or design, or a combination of those things that identifies and distinguishes the source of the goods of one party from those of another. Trademarks enable the public to recognize goods or services as originating from a particular source. A trademark owner can stop others from using its trademark in order to prevent confusion about the source of the goods or services. Use of another's trademark can be permissible as a "fair use."

The legal standard for trademark infringement is measured by a likelihood of consumer confusion. In its simplest terms, the standard asks whether a consumer will be confused as to the source of a product or service. A number of factors may be reviewed in making a determination of likelihood of consumer confusion in a trademark infringement case.

In the Aug. 14, 2014 ruling in Fortres Grand Corp. v. Warner Bros. Entertainment, the U.S. Court of Appeals for the Seventh Circuit stated "only confusion about 'origin, sponsorship, or approval of ... goods' supports a trademark [infringement] claim."

The legal dispute in Fortres Grand arose from The Dark Knight Rises, in which Selina Kyle (Catwoman) seeks to erase her criminal record from every computer database around the world. To erase herself, she had to get her paws on the fictional "Clean Slate" software. Fortres Grand Corp., a very real company, has a software product called the "Clean Slate" and a registered trademark for "[c]omputer software used to protect public access computers by scouring the computer drive back to its original configuration upon reboot."

According to the Seventh Circuit ruling, Fortres Grand noticed product sales were declining after the 2012 movie release and sued Warner Bros. for trademark infringement. In a 2013 ruling on a motion to dismiss, the Northern District Court of Indiana held for Warner Bros., finding no likelihood of consumer confusion as to the source of origin of the two products since Warner Bros. is in the business of making movies and Fortres Grand makes software.

The District Court relied on the 1989 U.S. Court of Appeals for the Second Circuit opinion in Rogers v. Grimaldi which held creative works, as compared to purely commercial endeavors, are protected as free speech by the First Amendment. Because of the First Amendment protection, the Rogers court concluded a balancing act must occur between the rights of the trademark owner and the First Amendment rights arising in the creative work. The court only reaches the balancing act after finding a likelihood of consumer confusion.

The balancing test used by the Second, Seventh, Ninth and Eleventh circuits, is the two-prong Rogers test: 1. whether the use of the third-party trademark has artistic relevance; and 2. if so, is it deliberately misleading as to the source or content of the work.

While there’s always a risk of a client getting sued if their next film references a third-party trademark, a client’s risk is reduced if it is only a passing reference and is not deliberately misleading to consumers.
— Tamera H. Bennett

The District Court found there was no plausible claim for consumer confusion between the Fortres Grand product "Clean Slate" and Warner Bros.' movie The Dark Knight Rises. The District Court, in applying Rogers, found artistic relevance in the film. And, that using the term "Clean Slate" was not explicitly misleading as to the source or the content of the movie. The District Court held that Warner Bros.' use was protected by the First Amendment. Because the Seventh Circuit affirmed the motion to dismiss on the grounds of no likelihood of consumer confusion, the Seventh Circuit had no reason to address the First Amendment question.

If Warner Bros. is OK to reference a fictional product that just happens to be a real product name and registered trademark, can clients use "Coke" or "Star Wars" in their films or TV shows without concern?

The sitcom "The Big Bang Theory" is centered on the lives of four geeky friends. The storyline revolves around their geekdom that includes "Star Wars," "Star Trek," and "Dungeons and Dragons." While the references to third-party trademarks flow in and out of the storyline, it's hard to imagine the trademark owners could succeed in a trademark infringement claim. Even if the court found there was a likelihood of consumer confusion between the source of the TV show and the source of the trademark, the Rogers test should trump.

Under prong one, the referenced brand names and trademarks tie into the show and have artistic relevance to the subject matter. And, under prong two, the producers of "The Big Bang Theory" don't seem to be deliberately misleading consumers to a connection between the source of the show and the owners of the trademarks. In fact, the show references so many different trademarks in the normal course of conversation between the characters it seems unlikely a consumer would consider each brand had a connection to the show.

While there's always a risk of a client getting sued if their next film references a third-party trademark, a client's risk is reduced if it is only a passing reference and is not deliberately misleading to consumers. So, Catwoman gets to move forward with a clean slate on trademark infringement. And, it's just a theory, but "The Big Bang Theory" probably shouldn't worry, either.

Tamera H. Bennett is a trademark, copyright and entertainment attorney and mediator practicing law in Texas and Tennessee as president at Bennett Law Office in Lewisville.


Read more: http://www.texaslawyer.com/id=1202675768561/Weighing-Trademark-Claims-When-Real-Products-Appear-in-Movies-and-TV#ixzz3Ihm30Lea

Sued For Trademark Infringement - Now What?

The U.S. Patent and Trademark Office has a couple of great resources to guide you in your next steps after being sued for trademark infringement or receiving a cease and desist letter.

The USPTO "I've Received a (Cease and Desist) Letter" flyer answers:

  • What is a trademark infringement cease and desist letter?
  • What are my options if I receive a trademark infringement cease and desist letter?
  • Does receiving a cease and desist letter from the trademark owner mean that I'm being sued or will be sued?
  • What if the trademark is not federally registered, or the registration expired or was cancelled?
  • How can I use USPTO records to find out more information about the claimed trademark and who owns it?
  • How can I challenge a trademark registration or application?
  • Do I need an attorney to respond to a cease and desist letter?
While you are not required to have an attorney to respond to a cease and desist letter, an attorney can help you understand the scope of your trademarks rights and the strengths and weaknesses of the allegations against you.
— U.S. Patent & Trademark Office

The USPTO "I've Been Sued" flyer answers:

  • How does a trademark infringement lawsuit begin?
  • What are my options to respond to the trademark lawsuit?
  • How do I find a trademark lawyer?
  • How do I know whether I'm actually infringing a trademark?
  • How can I use USPTO records to find out more information about the claimed trademark and who owns it?
  • How can I challenge a trademark registration or application?

Contact Lewisville, Texas Trademark lawyer Tamera Bennett with any questions.

 

 

 

 

 

 

 

 

 

 

How A Short Story on reddit Might Nix Your Next Book Deal

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You publish your story, script, song or treatment on reddit, Facebook or Twitter and low-and-behold, a producer reads it and wants to sign a contract for the exclusive rights to what you wrote. Sound far-fetched, yet it happened with !@#$ My Dad Says in 2009 and again in 2011 with Rome, Sweet Rome.  And, Nathan W. Pyle has a 2014 New York Times Bestseller that started from a series of animated GIFs he posted on reddit.

Why would a book publisher or tv/film producer want to pay you for an exclusive right to reproduce or distribute your content if they will have to compete with someone that has the non-exclusive right to do the same thing?

In July 2014, Cloud Atlas author David Mitchell released a short story 140 characters at a time on Twitter.  And, Mitchell did this with the consent of his book publisher.

Is it possible the non-exclusive license you grant the social networking site when you post your story could some how keep you from getting an exclusive deal? That's the question author James Erwin and Warner Bros. pondered when Erwin signed an exclusive deal with Warner Bros. arising from several short stories Erwin posted on social sharing site reddit.

Reddit's Current User Agreement (May 15, 2014) states:

You retain the rights to your copyrighted content or information that you submit to reddit ("user content") except as described below.

By submitting user content to reddit, you grant us a royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to reproduce, prepare derivative works, distribute copies, perform, or publicly display your user content in any medium and for any purpose, including commercial purposes, and to authorize others to do so.

In short, reddit has the ability to do anything they want with what your post, so long as reddit doesn't claim an "exclusive" right in your content.

And from Twitter's User Agreement (September 8, 2014):

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

Tip This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.

It sure does sound like Twitter can do anything they want with your content. Yet, there's this little "tip" sentence that says we just want to let the rest of the world see your Tweet. But, does that sentence somehow narrow the grant?

Here's what Facebook (November 15, 2013) has to say:

You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition:

For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

That language really makes me think Facebook can do what they like as well with my content. It is interesting that Facebook doesn't mention text/written words, but specifically mentions photos and videos. With sufficient originality, the words you share on Facebook may also have copyright protection.

So what's the big deal if the social networking sites can grant a non-exclusive license? There are a few issues, actually.  1) Why would a book publisher or tv/film producer want to pay you for an exclusive right to reproduce or distribute your content if they will have to compete with someone that has the non-exclusive right to do the same thing?  The non-exclusive license(s) may devalue your exclusive rights.  2) You may being losing control, little-by-little, over your content. Tracking down possible infringers becomes more difficult when you don't know who granted a license and when.

At the end of the day, it boils down to risk-tolerance. Is the risk that you might lose some control more powerful than the potential gain of the deal you've always dreamed of?

You might also like the post by Texas media and copyright lawyer Tamera Bennett, "Do I Need A Facebook Disclaimer?"

Entertainment Law Update Episode 56 - Tamera Bennett & Gordon Firemark

Click the arrow below to play the Entertainment Law Update Podcast 56

From magic tricks to Dungeons and Dragons, TV lawyer Gordon Firemark and Texas Trademark/Music lawyer Tamera Bennett provide a timely run-down on entertainment, media, trademark and copyright law matters. Gordon and Tamera are a little too old for band camp, but they still talk about marching band in this episode.  Click here for show notes and case links.