legal issues for writers

8/12/2019 Legal Issues for Writers

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Legal Issues for

WritersPacific Northwest Writers Conference

July 2014


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What will you learn? Basic knowledge of Trademark and Copyright law

Social Media issues

Libel, Defamation and Slander

Right of Publicity


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What is a Trademark? Via the United States Patent and Trademark Office web site:

o A trademark is a brand name. A trademark or service mark includes

any word, name, symbol, device, or any combination, used or intended

to be used to identify and distinguish the goods/services of one seller or

provider from those of others, and to indicate the source of thegoods/services. Although federal registration of a mark is not

mandatory, it has several advantages, including notice to the public of

the registrant's claim of ownership of the mark, legal presumption of

ownership nationwide, and exclusive right to use the mark on or in

connection with the goods/services listed in the registration.


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What is a Copyright? Copyrights are works of authorship fixed in any tangible medium of

expression, now known or later developed, from which they can be perceived,reproduced, or otherwise communicated, either directly or with the aid of amachine or device.(U.S. Copyright Act, 102)o Literary Works;

o Musical Works, including any accompanying words;

o Dramatic works, including any accompanying music;

o Pantomines and choreographic works;

o Pictorial, graphic and sculputural works;

o Motion pictures and other audiovisual works;

o Sound recordings; and

o Architectural works

What is not protected?o Ideas

Grosso v. Miramax, 383 F.3d 965 (9th Cir. 2004) (Rounders case)

o Facts


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More on Copyrights When is my work protected?

o The moment it is created and fixed in a tangible form.

Do I need to register with the Copyright Office to be protected?

o No, but it helps. Cost $35.

Certificate of Registration.

Statutory damages ($200-$150,000) and Attorneys Fees

o Poor Mans Copyright

How long does my Copyright extend?

o Post -1978life plus 50 years

o Published between 1964-197828 years from date of publication; 47 year renewal term is

automatic = 75 years


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What is CopyrightInfringement?

copyright infringement occurs when a copyrighted work isreproduced, distributed, performed, publicly displayed, ormade into a derivative work without the permission of thecopyright owner. (from the U.S. Copyright Office)

o Derivative workis an expressive creation that includes, majorcopyrighted-protected elements of an original, previously created firstwork. (Obama Hope poster)

Key is without the permission of the copyright owner.

Defense to Copyright Infringemento Fair Use


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Fair Use U.S. Copyright Act 107

o the fair use of a copyrighted work, including such use by

reproduction in copiesfor purposes such as criticism, comment, news

reporting, teaching (including multiple copies for classroom use),

scholarship, or research, is not an infringement of copyright. Types of cases:

o Work causes copyright holder to lose money.

o Copyright owner is offended by your use.


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Fair Use Factors The purpose and character of the use, including whether such use is of a

commercial nature or is for nonprofit educational purposes;

The nature of the copyrighted work;

The amount and substantiality of the portion used in relation to the

copyrighted work as a whole; and The effect of the use upon the potential market for or value of the

copyrighted work.


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Social Media Issues Facebook

o Terms of ServiceCheck Privacy Settings

Instagram

o Use of Photos

Twitter

o Who owns a Tweet?

Agence France Presse v. Morel, 769 F. Supp. 2d 295 (2011)

Ellen selfie Who owns it?

o

Bradley Cooper?


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Ellens Selfie


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What can you use forfree?

Wikimedia Commons, Flickr, etc.

o Know the rules

Stock Photos

o Release? Underlying rights?

Personal Web sites

o Ask nice and confirm in writing

Remember Attribution


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Libel, Defamation andSlander

Libel

o A false statement of fact that inures or harms the reputation of a

living person or an existing business.

o A statement mustbe published and read by someone other than

the person defamed.

Defenses to Libel

o Truth


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Defamation and Slander,cont.

Defamationo Communication of a false statement that harms the reputation of

another (individual, business, group, etc.)

Elements of Defamation

o False statement

o Defamatory meaning

o Identification of the Individual

o Publication

Public vs. Private Figure

Exampleo Jesse Ventura case


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Ventura v. Estate of Chris Kyle


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Defamation and Slander,cont.

Defenses to Defamation

o Truth

o Opinion

o Reviews and Critiques

o Consent

o Privilege

SlanderSpoken Defamation


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Right of Publicity The right of publicity gives every individual the right to control and profit from

the commercial use of his or her name or likeness.

o Right of publicity protects against the loss of financial gain by giving a person the

right to prevent the unauthorized use of his or her name for commercial purposes.

o The Help case

First Amendment protection

o Free Speech v. Right of Publicity

Newsworthiness Exception

o Unauthorized biographies

o LimitsDisclaimer needed

Incidental Use Exception

Faction Be careful

Right of Publicity law varies from state to state

o Revised Code of Washington 63.60, et seq.


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Best Practices Ask for a release

Attribution

Document your work


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Questions For further inquiries, do not hesitate to contact me.

Phone: (206) 684-9462

Email: [email protected]

Twitter: @jasoncruzlaw

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