Legal, copyright, trademark, or intellectual property rights confusion? Notes guest author and legal expert Jean S. Perwin is taking questions.
Jean is a Miami-based lawyer specializing in Intellectual Property Law, Entertainment and General Corporate Law for a wide range of clients, including graphic design firms, advertising agencies, visual artists and photographers. Her firm handles copyright and trademark registration, copyright, trademark and patent licensing, entertainment, computer, internet and general business contracts, partnerships, and corporate matters. She is co-author of The Artist’s Friendly Legal Guide, a columnist for HOW magazine, and has a forthcoming featured industry interview on the Notes on Design blog.
If you have questions for Jean, go ahead and post them as comments below. Jean will reply to questions frequently under the “Legal, Copyright & Trademark” Category of Notes on Design.
Hi Jean,
I was wanting to make large scale “replica” nastalgic logo designs (from the 1950′s and 60′s). Some of the company’s are no longer in business while others remain viable. Some of the logos/graphics have the company names as an integral part of the graphics too which is an important part of what makes it nastalgic. I was wondering about copyrights and trademarks in regards to these old graphic designs. I am not competing with the company. Is there an infringement? If so, can I just change the design a little and be koshure?
thanks,
Tom
I live in TN and in 2004 created my own freelance graphic design company. I did research on the name that I chose and found nothing similar. This weekend, I started checking around and now found one lady who has named her “craft” company/blog Blue Cricket Designs and another graphic design website. Should I as a sole proprietor invest in the $325 trademark filing fee? Most of my work is located in the state of TN, but it irritates me because of all the work that I put into my name. The irritation was especially apparent when the craft blog lady refused to stop using the name. She creates cards and other things that could become confused with what i do. Any advice would be helpful.
Thanks from a frustrated freelancer!
Hello Jean,
I am an attorney who handles trademark matters from time to time. Have you ever had a client ask you to register their trademark in outside the US (Say in Brazil, Venezuela or other South American countries etc.)?
Considering the fact that you would have to hire local counsel, how much did you I think is a reasonable charge?
Thanks!
Dear Jean,
If I start a website/blog that answers fashion questions and evaluates and critiques fashion currently on the market, can I use images from online stores like, say, Neiman Marcus if I give them credit (“Photo courtesy of http://www.neimanmarcus.com“)? People wouldn’t have to pay to access my site or receive answers to their fashion questions, though I will probably have advertisements on the site that I could potentially make profits off of. Thanks!
I am an attorney who practices intellectual property law (see Legal Questions post above). I’ll offer you my humble opinion until Jean has a change to elaborate on your hypothetical.
Your question involves copyright law and specifically the fair use doctrine. It is an affirmative defense to a claim of copyright infringement which allows people to do things they normally would not be able to do unless they are doing it for a non-commercial manner.
Good Luck.
Ryan S.
http://onlineconsultation.com/main_index.php
[...] You asked your legal, copyright, and trademark questions, and Jean has answered! All questions are culled from the comments section attached to the original ‘Ask Jean’ post. We invite you to ask more questions. [...]
Hi jean,
I have a small company and I hired a freelance graphic designer to create logo, artwork and other items for my company. I paid her fully for the work she has done. There was no written contract. I have now hired a full time graphic designer and I have asked the freelance graphic designer to give me the original artwork so that I can have the in house graphic designer use it. She refused to turn over the original files (7 years worth of work for which she was paid very well). A few days later she called me and said she would turn over the files for a fee (substantial I might add). I told her that the logo’s belonged to my company and she was already paid for her work. Do I have any legal rights to obtain these from her?
Hi Jean –
Thanks for keeping up to date such a great resource.
My question relates to work I did for a client in late ’05-’07. During this time I performed a number of strategic and creative (i.e. product naming and initial logo mocks which were communicated to client via email). Since, the relationship has gone sour.
The former client filed federal trademark registration a week after our name suggestion and it is currently published for opposition for the past year (another brand is opposing). The product has just launched.
My question is, does my firm own the copyright or common law trademark to the name? What legal rights does that give us over the usage of the name, if any?
My question, who owns the cop
hi there! i’m a student at sessions… and came across a story re: copyright and family photos on blogs… how they can become public domain. is it true? here’s the link where i read about it! thanks! http://claudinehellmuth.blogspot.com/2008/05/do-you-post-your-family-photos-online.html
[...] You asked your legal, copyright, and trademark questions, and Jean has answered! All questions are culled from the comments section attached to the original ‘Ask Jean’ post. We invite you to ask more questions [...]
I recently sold a package of CPA review materials to a private party. The package was from the year 2005 and I sold it for $500. It has been two weeks since the sale and now the private party is asking to return the package and that I refund his $500. He is threatening to take me to small claims court and file an ‘injunction’ if I do not refund the money. He is claiming that the package is “not what he was looking for”. Personally, I believe he may have just read/copied the pages that he needed, and now he wants his money back to get out of the deal. What recourse do I have if he files in small claims court? Thank you! -Katie
Hi Jean, I’m a graphic designer who has recently done some campaign work for a local (county) race. The initials of the client are M.M. and this person desperately wanted to include some M&M candy type reference in the campaign materials. The final design includes a quarter-circle with a slab-serif lowercase m (not the actual M&M typeface, but similar), stuck up in the corner. It’s not the main image, but it is there. Is this ok under trademark law? I *think* so since it’s not really a commercial use, but can’t find a definitive answer anywhere. Thanks!
Hello Jean,
I have created some 3D digital for commercial sale. The work shows the guitars and amps a famous musicial group used during a typical recording session. You can clearly see the manufactures logos on the guitar and amplifiers and the scene is in the studio they recorded all their work. The logos are from several different recognized name brands.
I want to make sure Im not violtaing any copyright or trademark laws. Will I have an issue with the guitar and amplifier makers and the perhaps even the venue that is being depicted.
What are my rights/limitations for this kind of work. Thank you.
Here’s a tough one…Please help! sorry for so many questions! My small home based company is in the verge of being sued for patent infringing. The Patentee is a Spanish company and its NOT the inventor of the idea/apparatus. A very similar apparatus was invented (BUT NOT patented), publicized and put “on sale” in 97 by another european company. Patentee then started to sell the apparatus on 1999 through their website to Europe and USA markets. On april 2003 (4 years later) they finally filled a patent application in, Europe first, for the product. A little LESS than 1 year after they filled an application here in USA for it. It was pending approval until Oct 2007!!In February 2007 I started to sell similar product on my website. Now they claim infringement. Can I claim invalidity of their foreign patent due to time span between “on sale” and “reduced to practice” and subsequently the invalidity here in USA? Also can I represent myself in court or do I have to hire a lawyer? They are litigating against my Incorporated company. Not myself. And if I can’t afford a lawyer…are there public (for free) ones? Does the Patentee have a weak case?
Chris,
See Jean’s recent post Trademark Fair Use http://www.sessions.edu/notes-on-design/resources/intellectual-property/trademark-fair-use/#more-1208 which deals with a case similar to yours. That might answer your question.
For the past six years I’ve developed the print design department of a small company. There was just me and the computer doing the creative and production work, and the boss facilitating with infrastructure and a wage. I got tired of the office politics, left that company and started my own. Many customers have come with me.
My question is, who owns the customer files? If the old company wants to sell them, is that legal, and what are they worth?
This is a small community and a lot of goodwill is at stake here. But I don’t want to sacrifice more than I have to.
Thanks for any help you can provide.
Hi Jean,
I am an artist and have some designs that I would like to sell. My question is this: How do I protect myself from someone taking my design and calling their own and saying that they would not have to pay for the design.
Jenny
Can a cell phone company charge for a phone that is in suspencen
I have a long dragged out story with a family member being insane and is threatening me with all sort of nonsense. long story short and to the main point, I designed a website for an inn, without a contract or a set price to build it OR to maintain it. this person would call me screaming like a maniac numerous times over the last year to DROP WHAT IM DOING AND FIX THIS AND THAT—leaving insane threatening voicemails —-but then doesnt pay me anything to put up with such abuse. again we had nothing in writing. now there are threats being made to my disabled mom and saying a lawyer will be involved. I deleted the files from the host and have shut down my email with the host. I am not a web designer. I just learned how to do my personal site, was doing a favor and was hoping to make a few dollars. it was nothing but agrovation and working for free. I allowed time to run out and then deleted the files. my question, I created and uploaded the files. do I own the html files and am I required to give them over? each page had my name at the bottom and I personally just didnt want to be associated with anything to do with any of it, nor do i wish to do ANY work on any of it. and I also do not think that a new web designer would want to take over a novices web design. If someone would want to take on the job- good luck.. I felt that I was already owed me money, let alone trying to be paid each time something more was being demanded. so I stopped working on it and now its being demanded I put it back up and hand over the files. I have that right to not reply. NO CONTRACT….CRAZY PERSON…… stay away. am I right? any advice.
I have not replied at all despite threats that have been made by phone calls to my friends and family- saying how terrible I am…. I want to have nothing to do with any it, and Im just wondering if there is any case against ownership. any opinions would be great.
A year ago, a friend gifted me with two checks -each for a $1000 when I was struggling financially. At the time I told her that I was unable to take on any additional loans as I finish my Phd studies and was working as much as I could manage. I did not ask for her to financially help – she offered. Over this year – our relationship had changed substanstially and I realized I did not want to continue a friendship with her. I did not have any contact with her for the past 3 months when I realized I was carrying the bulk of the emotional connection in the relationship. Last week I received an email requesting a repayment schedule of the “loan” she gave me for $200 a month. There was no agreement to this money being a loan and nothing ever signed or verbalized that she expected repayment!
She knew at the time that it was extremely difficult for me to emotionally accept money from her (I was raised in extreme poverty). I think her main reason in hindsight is that she is angry I have chosen to end our friendship. She has now sent three emails – each increasing in threats to involved lawyers and courts demanding payment in full. What legal action can she take? How does the court view gifts of money ? I have nothing to prove it was a gift and not a loan. She is angry enough to pursue this legally and has quite a lot of money at her disposal – she is independently wealthy and I am still stuggling on a monthly student stipend. Any advice is appreciated.
I am selling old LPs on line at a popular auction site (not ebay) When I offer them, I include a backup copy of the LP on a CD for $5 extra. I do not and will not sell ‘just the cd’ as some request. I only sell the CD when they buy the legally purchased LP. I believe that is fair use and legal. What do you say?
hi Jean,
a question regarding ownership of copyright and branding:
i am a freelance graphic designer.
over the course of 5 years, i conceptualized and designed all the branding, corporate identity, website design and illustration work for COMPANY A – at a reduced hourly rate. it was a small startup company with a website product, and i had a somewhat personal relationship with the owner.
now, there was money exchanged for design services, with this set hourly rate paid for the work.
there was also – however – a COMPANY A promise of a lot of future work once the COMPANY A product was sold.
no agreement was ever signed, and ownership of the copyright was never discussed. there was an inherent promise to compensate us once the product was acquired, but that has not materialized.
COMPANY A was recently acquired by a major Magazine, which will bundle the COMPANY A product into their features on their website.
so basically the product was sold, but i’ve been cut out of any profit or promise of continuing work. the Magazine’s creative director is now requesting original art files from us as well, so they can take over the maintenance and further marketing of the product.
my questions are as follows:
1. from what i have read and researched, COMPANY A never really held the copyright for all of this creative work. would that be the case in this scenario?
2. the COMPANY A product was sold in it’s entirety to this Magazine. would they have gotten assurances from COMPANY A that it did indeed have full rights to the copyright ownership?
3. i would like to approach COMPANY A and ask them for compensation for the rights to that ownership. i really just want to obtain a fair settlement that might be based on retroactively paying me my full rate for all the hours i had put into the past work. not sure how to do the calculation…
thanks you very much for any help and guidance with this matter.
thomas
Hi Jean,
I am designing a christmas card to send to my friends via email. However, my card uses images from the movie, “The Dark Knight”. I’m am in no way selling these cards nor marketing the movie but am doing them for fun and thought it would be a creative way of saying Merry Christmas to my friends whose favorite movie happens to be the said movie above. Is this in any way against the law or approaching copyright infringement? Thank you very much for your help!
Joshua
Jean,
I had a lease on a building for 3 Years (April 2006 – April 2009) for 900.00 Per Month. In July 2008 the leasor Sold the Property thru Public Sale. He ask he if I could move by 20 July so He could Sell the Property, which I did. New he sent a letter stating I am in default of the contract and owe Sum $9000.00 to him on the Lease. Can he do this?
Is it illegal to ask for a student’s race on an enrollment application?
Q: Can I get a copyright and trademark on my logos, designs and idea’s for my internet based variety show, even if we haven’t air a broadcast or created any merchandise to sell?
Q: Is a copyright and trademark expensive? Is there a fixed price or dose the prices vary?
Q: If I get a copyright or trademark on a name and logo, will everything I release from that name and logo be covered under the copyright/trademark that I got for the name and logo?
Q: If someone decides to copy off of media that someone else has created and it’s an obvious rip off but the original creator dose not own a copyright or trademark to the work, and the party copying from the original gains profits from the copied media, then can the original creator sue for copying off someone else’s original material?
Q: Can a person use samples from other copyrighted or trademarked material for an original project that does not generate direct income from the copyrighted/trademarked material owned by someone else?
Q: Is scenery owned by anyone? If you film a storefront or take a picture of a mountain do you have the right to use the said footage in a project that might generate income?
Q: Are you allowed to photograph or film manmade landmarks, and alter the footage or pictures into something else and then use that to make money? Or not to make money but to just show off or use in something else that might generate money?
Thank you for your time, any information you have would be very helpful to me.
Hi Jean,
I’ve been asked to write for a charcter in a series of comic books. Should the publisher and I do a licensing agreement or writer-for-hire? When I decide to spin-off from that charcter to the charcter of my own creation what type of agreement should I obtain under those conditions?
-Rochelle
Hi Jean,
I’ve done a variety of artwork – package cards, catalogs, flyers, etc for a company of the past 12 years.
Below is their request:
“I am requesting that you supply us with CD’s containing the artwork for all our package cards, in your possession. This work was done several years ago and copies of the original artwork was not supplied to us at the time. This artwork is the our property and should be released to us.”
So…. I gave them a quote and this is their reply:
“I have reviewed your quotation and can not accept this charge. The original artwork should have been provided us when the Package Cards were originally completed. ”
Jean – When I designed the cards –
1. I did not charge customer for a lot of the work – billing isn’t my
strong point).
2. I didn’t register copyright.
3. I put ©customer name on the cards vs. ©mycompany name. Does this mean I transferred my rights?
Do I have to give them the artwork?
Thank you – Patty
Hello, I have a question that I really hope you can help me with. I am opening up a business and we are having a logo created. However, we really want to incorporate a smiley within the logo and the drafts look great. However, is it legal to use a smiley within our logo? Is there a trademark on a smiley? I have tried to research this online, but can’t find an answer. It seems as if the smiley is trademarked in other countries, but the United States will now allow it, or am I misinterpreting the information? If it is allowed, can it be your typical smiley, or should be alter it a little (as in put a hat, mustache, or something like that on it?) Thank you so much. We really want to get our business up and going with a catchy logo!
I want to sell photographs that I have taken of action figures (toys) that I took and own. However, these action figures are of course representations of copyrighted characters such as popular heroes like superman, or from movies such as the matrix.
Is this infringing on the rights of the toy manufacturer to sell images of their products?
Does it make a difference if I don’t use written or spoken word that references their product, just the image?
We purchased an original piece of art from our neighbor. Last sunday she asked to borrow it back to make prints. My spouse and I orally said ok, and the neighbor took the piece from our home. Due to other issues with this neighbor my spouse and I have decided against letting this neighbor use our piece of art. I have called her home and her cell and informed her that we have revoked our permission, and request immediate return of our art. I understand she owns the copyright to this piece, I have do not intent to copy or redistribute it. Do I have to let her copy it for prints after we have purchased it from her? Thank you in advance for your response. be well. cath
Hello,
Any suggestions where we might find a generic terms of service disclaimer for use on our website? Thanks.
Would you know if a single word can be trademarked if that word is already trademarked in conjunction with another word? For example can I trademark “Dapper” if there is already “Dapper Clothing”? Thanks so much.
What are some of the legal issues involved in the use of illustrations and typefaces
My mom died 17 years ago. My brother is a lawyer. He Handled probate. I received “Partial Distributions” from my moms estate in the amount of $200/month for less than a year with the understanding that I would receive the rest at another time. my sister was given the house. She’s an attorney also. Meanwhile my brother continues to thrive. He just bought a 55 foot boat with a slip in Marina Del Rey. I on the other hand have struggled all my adult life. Additionally, I have a 14 daughter with special needs. We live in a residential hotel. I receive $242/every two wks frm unemployment insurance.
This is a great way to reach out to those who really need legal help the most. It’s hard to find someone credible in the internet, but your qualifications do speak for themselves. All these people have a lot of questions. I do hope you help them find the best resolution possible. Hope more and more professionals like you help out and reach out those that need you.
Hi Jean… I have heard about this legal case in US where the CEO took some XXX amount of money from his own company.. probably a listed company and so was not legal, however there was a suit filed against the CFO for actually being the mastermind or being the person who actioned the above without the knowledge of the CEO. I believe the name is warfield but I am not sure.. Could you please help me out as I want to do a case study on the same.
It would really be a great help for me…. and would really really appreciate if you could help me with this case study or if you could suggest where I can look for similar cases or get help…
Thks a ton
Hi Jean,
I had an idea for a website. How do I go about protecting my idea and brand name from anyone I hire from taking the website idea? How do I make sure I have ownership of the brand name and website idea? So when I go ahead and get someone to help design the website I will still have ownership of it.
Hello
A literary agency has an online contract tht if they run across something silimar or identical to the story you have submitted they are not liable
Is it wise to sign the contract?
I was asked by a friend to redo his family business logo. After I did a complete redesign he loved it, but was met with opposition from his father because they didn’t want to change the logo.
Having done the work already, I published the (completely new design not resembling the old one at all) on my personal Design company Portfolio website as well as on my Design company facebook portfolio photos.
I just got an email from the Dad stating…. (i replaced his company name with ‘name’ where he quoted it in various forms.)
“I have recently seen an adaptation of a logo titled “name”, that you have posted on facebook.
Please be advised that the terms “name”, “name”, “name” and “name” are registered and protected trademarks owned by the name Corporation. Any images or use of these brand names may not be published, printed, distributed or used without written permission of the corporation officers.
Please remove any postings or references you have made in this regard. Thank you.”
Is there a law I can hit him back with that allows me as an Artist to simply display my ORIGINAL work in my portfolio even though it contains his copyrighted name? This logo is not for sale, it is merely my new interpretation of his company’s name. This just seems crazy to me and I was always under the impression that as an Artist as long as my work is completely original i am free to express myself as I please. And Once again, the logo is not for sale nor is it being used by another business.
Normally I would just take it down, but this guy is being a bully and I feel like I should defend myself.
thanks for any advise on the matter.
Hi, is it possible to register a partially finished novel with the US copyright office? It’s roughly 30% to 40 % typed up. I can add a synopsis for most of the rest of it to the end if that would help.
Thanks
I enjoyed some of the comments made – Tucson AC, Manor Drive
I am attempting to write a book. I would appreciate it if you could answer the following questions: Do I need to get permission to quote words from various famous entertainers? Also, do I need permission to use folklore quotes?
Detroit Michigan!!!!!! I am so excited. When? I have to get my tickets!
I am in Africa and somethings such as american series and games are not available here and if i want to purchase them online my country is not included,is it illegal if I download this movies,series or games for free online.
Marvelous! It’s very cool! Thanks! :)
hi jean i live in houston and would like to ask a question, i have an idea on a movie but i realize that the phillapins made the movie i had an idea on, but not the same way i wanted to do. i have different ideas and if its the name issue i can name it a little different . can i remake the movie with different name so that way i dont have to get permission?