MediaTech Law

By MIRSKY & COMPANY, PLLC

Fair Use and Trademarks: Domain Names

Posted August 5, 2010 by Andrew Mirsky 0

An automobile brokerage operating online under the web domains “buy-a-lexus.com” and “buyorleaselexus.com” got sued by Toyota Motor Sales for trademark infringement, first losing in trial court on a trademark “fair use” argument, then winning on appeal.  The case opinion can be found here.

The domain name question in trademark is whether and how one can use established trademarks in domain names, in other words using the “LEXUS” trademark in your website URL when the use is anything but incidental but rather intentionally drawing on the value of the valuable brand.

Toyota, owner of the Lexus car brand, had sued to stop the auto brokerage from using the “LEXUS” trademark in the brokerage’s websites listed under “buy-a-lexus.com” and “buyorleaselexus.com”.  The brokerage defended its actions by arguing that the use of “LEXUS” was permitted (that is, non-infringing) as a fair use of the trademark.  Or as Judge Alex Kozinski explained in his appeals court opinion, the trademark was used to “refer to the trademarked good itself”.

This is the “nominative fair use” doctrine of trademark law.  In (hopefully) plain English, the defendant makes no argument to counter a trademark owner’s typical claims of trademark infringement such as likelihood of confusion or dilution of trademark and so forth.  Instead, the use of the trademark is permitted as a fair use since the use simply (and only) identifies the trademark.  Toyota did not dispute the legality of the brokerage’s business nor its authority to broker and sell Lexus vehicles.  The Lexus auto brokerage could therefore successfully argue that use of the “Lexus” was necessary to identify the product being sold.

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NPR’s Bleeding New Media Music Edge

Posted July 8, 2010 by Thomas Yarnell 0

NPR’s “All Songs Considered” is a show representative of the station’s embracing all things new media. Through digital tools like podcasts and streaming video, and social media sites like Facebook and Twitter, the show has gained serious clout with both fans and musicians. While much of NPR’s older audience may stumble upon “All Songs Considered” between radio news programming, the new media tools enable NPR to reach a younger audience. This audience comprised of multiple generations attracts musicians to the show, as they see the potential for new fans and national exposure.

“All Songs Considered” was recently featured in The Washington Post as gaining the reputation of an indie rock tastemaker. Though perhaps not as scientifically sound as other methods, a comparison of the show’s Facebook page to that of other indie music blogs affirms this characterization. Indie music blogs Indie Rock Café and Stereogum respectively have 4,098 and 3,622 “Likes” on their Facebook pages. “All Songs Considered” has 12,839.

Is such a comparison even fair when considering NPR’s advantages? Probably not. Most indie music blogs do not have national radio shows, fully equipped studios, and salaried employees. NPR has clearly learned, though, from how these popular blogs engage an audience. Both Facebook and Twitter enable fans to comment on what songs they love or which new artist should be featured, while web polls allow NPR to track what listeners are enjoying the most. One recent episode of “All Songs Considered” focused on listeners’ picks for the best music of 2010 so far. Fans cast thousands of votes on the NPR Music website.

With “All Songs Considered” embracing a new media model and receiving a good deal of exposure for it, NPR helps to bridge a generational gap between young people and their parents. For those of older generations who do not download podcasts to their iPhone, they may end up reading about “All Songs Considered” and NPR music in The Washington Post or The New York Times (read the New York Times article here). Both these articles discuss the prominence of the website, podcasts and a new iPhone application, which may lead members of an older generation to put down the paper, go to their children or grandchildren, and ask, “How can I download a podcast?”

In this way, the rise of “All Songs Considered” represents a recurring cycle in our society today: the new media attracts the traditional media and the traditional media audience is intrigued to learn more about new media.

Stay tuned to see whether or not this leads to 20-year olds and their parents listening to the same music.

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Online Content – When is Content “Conduct”?

Posted May 18, 2010 by Andrew Mirsky 0

I wrote last week about the proliferation of the law of libel on the internet, but the same explosion of opportunities for litigation – and risks to would-be publishers – applies via the internet to all forms of speech.  Libel is still libel, but more cases are pushing arguments that speech is conduct that can be sanctioned and criminalized.  And for much the same reasons.

As I wrote:

Because like a lot of things that the internet did not change, it did not change the law of libel.  In terms of what the internet did change, two things in particular are striking: First, the now potentially worldwide audience for anything published.  And second, and sometimes of even more significance, the removal of barriers to entry.  Or put another way: Everyone is a prospective publisher.

Several recent stories vividly illustrate the point, including an article in last Thursday’s New York Times about suicide chat rooms and prominent recent lawsuits in New Jersey and Louisiana involving attempts to “out” the names of anonymous online authors.

The Times reported that a Minnesotan named William F. Melchert-Dinkel was charged with aiding the suicide deaths of a British man in 2005 and a Canadian woman in 2008.  

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Intern for Mirsky & Co!

Posted May 16, 2010 by Andrew Mirsky 0

Mirsky & Company is looking to hire an intern. Here’s the type of person we are looking for:

The candidate must be interested in new media and social media and communications.  Our business is a small law firm, so an interest in law is nice, but the individual need not be a lawyer (nor even a law student).

The internship would be paid, and part-time but on a regular weekly basis beginning as soon as possible and continuing into the summer and most likely beyond that into the fall as well.

We are looking for someone to assist with various social media and communications functions for the firm, as well as the more typical research and writing projects and various innovative things we’re trying to do.  We are not really looking for a lawyer because this will not typically be legal work.  We are looking for someone smart but creative, someone obviously looking for some work and to do some innovative things.  We can also tailor the job a bit to the personality of the person who does it, thought we do have some specific needs.

There will definitely be some tedious parts to this, involving boring research and legwork on various projects, but we intend to also make this attractive.

Interested people should please contact Andy Mirsky via the contact points on this site.  Thanks so much!

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Apple App Store Rejects Content – There’s More!

Posted May 7, 2010 by Andrew Mirsky 0

I recently wrote about the dust-up following the awarding of a Pulitzer for political commentary to online cartoonist Mark Fiore, when it was revealed that Apple had rejected Fiore’s proposed iPhone App several months before Fiore’s Pulitzer fame.  As had been widely reported, Apple subsequently invited Fiore to re-apply, which Fiore promptly did and now, evidently, Fiore’s cartoon app is available for download through the store.

Commentary on the episode leaned heavily to the view of “what gall!” of Apple to presume rights to regulate content.  So, for example, Rob Pegoraro wrote in the Washington Post last week:

If this conduct seems arbitrary, that’s because Apple gives itself that liberty.  The Cupertino, Calif., company’s iPhone developer agreement, as published by the Electronic Frontier Foundation, says Apple can reject an application “at any time” if it thinks rejection would be “prudent or necessary.”

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Online Libel – Reviews, Comments – Libel: It’s Real and It’s Spectacular!

Posted April 30, 2010 by Andrew Mirsky 0

Eric Felten brilliantly skewers the supposed credibility of the online “marketplace of ideas” when he recently wrote last week in the Wall Street Journal:

Spend any time on the Internet and – like the naif in the ‘Casablanca’ gambling room dumbfounded when the wheel comes up 22-black twice in a row – one’s bound to ask, ‘Say, are you sure this place is honest?’

This sort of thing seems oddly hilarious and at the same time naïve in the same way as the fool in Casablanca, in whose defense one could at least say it was a different time.  Last I checked, there was no giant sign over the entrance to the internet saying “tread warily here”, although Felten’s point about the sensitivity of individuals to words being written about them is hardly a new concept.  Just one small point of reference: I handle a fair amount of pre-publication review of publications for libel (i.e. in advance of actual publication), and one thing I usually drill into my publishing clients is being somewhat sensitive to the litigatory likelihood of the person about whom words are being published.

I’m not saying shy away from controversial journalism, and it’s advice that probably did not compel the muckracking vision of Woodward and Bernstein or the “American Century” mantra of Henry Luce.  Nonetheless, don’t ask a libel lawyer for advice unless you’re willing at least to consider whom you’re writing about if one of your goals is simply to avoid getting sued.

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Apple’s Apps and the Pulitzer Cartoonist: Right to Ban Content?

Posted April 21, 2010 by Andrew Mirsky 0

Trumpets Ryan Chittum in the Columbia Journalism Review, “Yes, this is that serious. [The news media] needs to wrest back control of its speech from Apple Inc.  It’s easy to do it now while the press has leverage over Apple.  If the iPad becomes a significant driver of media revenue, and Apple decides to crack down, it will be too late (yes, the iPad has a Web browser, but the monetary leverage it could gain with apps is what’s concerning).”

Here’s an interesting dilemma for a potentially dominant technology or communications platform: Early Twentieth Century Supreme Court cases found a “public” (and therefore “government” and therefore subject to regulation) role of company towns and their attempts to enforce “private” laws through company-supported police powers.

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Andy Speaking at Politics Online 2010!

Posted April 17, 2010 by Andrew Mirsky 0

I will be moderating 2 separate panels on Monday and Tuesday at the 2010 Politics Online conference spectacular here in Washington.

The first will be Monday April 19th at 2pm, and called “Is this Barack Obama’s Real Facebook Page? Domains, Twitter Handles, Online Presence – real or fake? Intellectual Property, Cyber Identity, and More!”.  I will be joined on the panel by Jason Torchinsky of Holtzman-Vogel, Matt Sanderson of Caplin & Drysdale and Neal Seth of Baker Hostetler.

The second will be Tuesday April 20th at 10:30am, and called “Laws Affecting Digital Communications – Copyright, Privacy, Elections/FEC, Advertising, Libel, Contract Law, etc.  Rules, Regs, Fines and Community “Standards” Applicable to Communicating in Digital Media.”  On this panel, I will be joined by Jason Torchinsky of Holtzman-Vogel and John Stewart of Crowell & Moring.

Details at polc2010.com/.

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E-Books and the Cost of Publishing – What Value? Why the Big Price?

Posted March 18, 2010 by Andrew Mirsky 0

NPR’s Lynn Neary reported last week on the value of e-books (“No Ink, No Paper: What’s The Value Of An E-Book?”), illuminating the nuance about pricing of electronic books. Because books – electronic or otherwise – are still almost entirely issued by old-line publishing houses under the same decades-old operational model, a publisher’s cost of operations still has to be recouped. And for publishers, the sole source of that recoupment remains the consumer purchaser of a book, regardless of the medium of a book’s distribution or purchase or presentation. From this perspective, a more alarming (from the publishing industry’s perspective) competitive threat on the market today is the low-cost pricing of hardcover books (including current bestsellers) at places like Target, Costco and Walmart.

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Do Teachers Own the Copyright to Course Materials?

Posted February 18, 2010 by Andrew Mirsky 0

Can college and university teachers take their course materials, presentations, notes, slides, PowerPoints, syllabi and other teaching resources with them when they leave their current positions?  Can they sell or license these materials to online universities or market them through Amazon?

For a group that tends to dispute everything even a position that would presumably only side in their own interest, academics too must concede the legal ambiguity of the copyright law’s “work for hire” doctrine when applied to the academic setting.  What is probably not in dispute is, as one commentator describes it, that “Traditionally, it was presumed that educators owned copyrights to academic work they have authored or created.”

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Copyright: Work For Hire Doctrine

Posted January 27, 2010 by Andrew Mirsky 0

“Work Made For Hire”, 17 USC §101: An original, copyright-able work (meaning: a work that falls within the subject matter of copyright protection) qualifies as a “work made for hire” if the work either (1) is created by an employee within the scope of his or her employment or (2) qualifies as “work made for hire” under the established evaluative criteria described below.

Significance of “Work Made for Hire”: The significance of a work being deemed “work made for hire” is that the beneficiary of that designation owns full copyright in the work outright and exclusively.  Thus, as between an employee an employer, the employer owns the copyright to any works created by that employee within the scope of his or her employment.  Likewise for a party contracting for the creation of a work from a non-employee.

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A Sherlock Holmes Copyright Mystery?

Posted January 20, 2010 by Andrew Mirsky 0

Sherlock Holmes is still under copyright, even though his author Sir Arthur Conan Doyle died almost 80 years ago.  Actually, some of Conan Doyle’s stories are or appear to be under copyright protection in the United States (not in the UK and not elsewhere), by virtue of an oddity in US copyright laws.  Ordinarily, US copyright protection for works published prior to no later than 1930 (the year of Conan Doyle’s death would have expired well before today).

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