If you created it, you should probably trademark it — even quarantine parties

By | Intellectual Property, Legal, Trademark | No Comments

In early March, at the very start of quarantine, D-Nice reminded us all of the power of music. What originally began as a way to connect with his friends (first Bun-B and Black Thought) and listen to music over Instagram live, grew into a series of historic, hours-long DJ sets for a crowd that has included Jamie Foxx, Timbaland, Rihanna, and Michelle Obama. Club Quarantine has become a much-needed escape from what’s going on around us; they are pure nostalgia, fun, and authenticity. It wasn’t long until D-Nice was approached by record companies and fast food chains to partner up with Club Quarantine, but he rejected their offers in hopes of building something bigger and new with Club Quarantine. And so he took the step of filing for a trademark for “Club Quarantine” and “Homeschool” in hopes of using the brand even after Coronavirus passes.

It was a smart move. Filing for a trademark is a key tool for artists and creators, but what exactly are trademarks?

A trademark provides intellectual property protection for any word or phrase, symbol, design, even colors and sounds. We all know famous trademarks, like the Nike Swoosh and Coca-Cola, but even if your creation isn’t known across the globe (yet), you should know how and when to file for a trademark. In short, a trademark is how you distinguish yourself to the world. It lets consumers know who you are and protects you from anyone who might attempt to infringe on your brand. When you see the Swoosh on a pair of shoes, you know who made them.

When deciding if you want (or need) to trademark your work, there are a few things you should consider.

The purpose of the trademark is to identify you, the creator, which meanstrademarks can’t be used to describe a single product. When Kim Kardashian filed to trademark “kimono,” she (rightfully) received a lot of backlash, but cultural appropriation aside, it is unlikely that the US Patent and Trademark Office would approve a trademark for the word “kimono” alone—it’s a product, not a brand.

Similar to copyrights, trademarks are only protected if they are registered, so it is important that you get your trademark before your creation makes it big. Generally speaking, the first to register is entitled to the trademark. You can file a trademark with the US Patent and Trademark Office, and you don’t even need a lawyer, though at times one can be useful (stop by one of our events if you want to get some free advice from one). Once you’ve registered, the trademark will last for 10 years, but it can be renewed, in theory, forever.

Sounds easy enough, right? Look, we know that once you start wading into the IP bureaucracy it can start to feel like more time, energy and confusion than it can possibly be worth. But it’s important. Whether you created Club Quarantine or a fashion label or the next big tech startup, in the eyes of the law your brand isn’t yours at all—not until it’s been trademarked.

TLDR: The hidden price of Instagram’s terms of use

By | Copywrite, Legal, Photography, Social Media, Terms of Use | No Comments

TLDR. Let’s be real, most of us did not read the terms of use before we downloaded Instagram. Or probably any other social media platform, for that matter.

For emerging artists, photographers, and influencers, deciding to opt out of social media because of its terms of use is impossible. Social media has become a routine part of our daily lives – an essential service if you will. It’s how we consume information, share our work, gain exposure to new audiences, make a living, and keep in touch. But for some, the “price” you pay to be online may be much greater than you anticipated. And then what? What are we to do?

Let’s back up:

Earlier this month, a court ruled that Mashable can embed a photograph that was originally posted on Instagram on their website without the photographer’s permission and without breaking any copyright laws. Their defense hung on Instagram’s terms of use. Stephanie Sinclair, a photojournalist, posted a photograph on Instagram. Mashable first reached out to Sinclair with an offer of $50 to use her photo in their article. Sinclair declined and Mashable went ahead and used it anyway. Later, Sinclair sued claiming copyright infringement.

Instead the presiding judge, U.S. District Court Judge Kimba Wood, ruled that because Sinclair “granted Instagram the right to sublicense the Photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the Photograph,” Mashable did not break any copyright laws. Within Instagram’s terms of use, they write: “you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). You can end this license anytime by deleting your content or account.”

This decision puts emerging photographers in an impossible position – either allow others to post your work without your permission or delete your account. Instagram is one of the world’s largest photo-sharing sites and has over one billion users. So what should we, as creators, do?

For starters, we can push Instagram to do more to protect creators. Most terms of use are long, unwieldy and chock full of legal jargon. Terms of use should be written in a way that is accessible to the general public. Hayleigh Bosher writes of a few ways Instagram can do better. For example, she argues that Instagram should adopt a “Notice and Takedown” process, similar to YouTube’s process, which offers users some control over their content” (Instagram’s terms of use says, “content will continue to appear if you shared it with others and they have not deleted it”). To learn more about copyright, check out TCC’s one-pager.

Drake Prevails In Copyright Case Against Jimmy Smith’s Estate

Drake Prevails In Copyright Case Against Jimmy Smith’s Estate

By | Copywrite, Hip Hop, Jazz, Legal, Music | No Comments

This month, Drake and his producers won a key battle in the fight for fair use. But what exactly is fair use? And what does it mean for artists and producers moving forward?

As artists and creators, we constantly take inspiration from our peers and our idols. But do you ever wonder, where is the line? How much is too much? Samples and mashups are commonplace in music and especially in hip-hop. Chuck D. once said: “We thought sampling was just a way of arranging sounds […] to blend sound. Just as visual artists take yellow and blue to come up with green, we wanted to be able to do that with sound.” The art of sampling is woven into the founding story of hip-hop along with the legal challenges that came with its commercial success. Read More