Suppose that you are willing to pay for a license to reproduce a copyrighted work, but you have no way to contact the owner of the copyright – perhaps, even, no way to identify who the owner is.
The resulting uncertainty leaves you with two unattractive alternatives: Either abandon your nascent business idea, depriving yourself of revenue and depriving potential customers of a valuable product, or proceed, always fearful that the copyright owner might appear from nowhere and bring a suit for copyright infringement.
This problem was created by the Copyright Act of 1976, which took effect on January 1, 1978. The Act removed the requirement that a copyrighted work be registered with the U.S. Copyright Office; instead, copyright subsists in a work as soon as it is reduced to a tangible medium of expression.
As a result, orphan works are a constant problem. Legislative efforts to provide a remedy have failed.
Sometimes there is a work-around, such as fair use or using another work for which the copyright owner can be located. But way too often, the orphan works problem smacks us right in the face, and there is nothing we can do about it.
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.
Most startups and early-stage companies have limited cash. As a result, they often are eager to use stock as a major component of compensation. They need to make sure, however, that personnel stick around long enough to make the contributions for which they are being compensated.
In some instances, the corporation creates a tax-qualified incentive stock option plan. Employees are granted options to purchase stock, and they do not have to pay any tax on the stock (actually, on profits from their sale of the stock) until they exercise the option (purchase the stock, presumably, at a low price) and, later, sell the stock. (Tax law is less favorable to independent contractors.)
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Non-immigrant foreign entrepreneurs who want to start businesses in the U.S. often – and rightly – have visa-related concerns. A typical question: “What kind of visa do I need to start my business?”
This post provides a brief answer to that question.
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In an article published today (After Dry Year, Start-Ups Are Poised to Get Cash), the Wall Street Journal reported that venture capitalists will resume funding startups in 2010.
The major reasons for this development:
- During much of 2009, VCs were hoarding cash to protect their existing companies. With the economy and the stock market stabilizing, VCs are returning to investment mode.
- Whereas initial public offerings were almost nonexistent this year, investment bankers see IPOs returning in 2010.
Some additional points made in the article:
- During 2009, the vast majority of the (modest) VC investment that did occur was in information technology or health care.
- For 2010, VCs are looking for opportunities in social networking, mobile technology, health-care technology, and clean technology.
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This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.
Last week, the U.S. Patent and Trademark Office confirmed that the service mark “High-touch Legal Services” has received Registration No. 3,726,914. The registration pertains both to legal services and to blogs that feature the law and legal matters.
The mark is on the Supplemental Register, rather than the Principal Register, because “high-touch” is descriptive of the services that I provide but has not yet acquired secondary meaning. With this registration, I have the right to use the ® symbol and to bar use of confusingly similar marks.
After five years, I can apply to have the mark moved to the Principal Register. If I were to bring an infringement suit, registration on the Principal Register would confer such benefits as (a) prima facie evidence that the registration is valid and (b) elimination of any good-faith defense.
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.
Let’s assume that several authors co-write an article or a book. Who owns the copyright in the jointly-created work?
The answer is that the authors are equal co-owners of the copyright (17 U.S.C. Section 201[a]). Each copyright co-owner can exploit the copyright as he or she wishes (for example, by granting one or more nonexclusive sublicenses), but is obligated to share any profits from such activities with the other co-owners (see, e.g., Thomson v. Larson).
Please note that the situation is different for jointly-owned patents, where there is no obligation for one owner to share profits with another (see I’m One of Several Inventors – Who Owns the Patent?).
There is a similar, but different, situation that must be distinguished. Let’s assume that an individual creates a book, arranging for each chapter to be written by a different author (referred to as a “collective work”). Absent any agreement to the contrary, each author will own the copyright in his or her chapter, but the individual who created the collective work will own the copyright in it and will have the rights to reproduce, distribute and revise it (17 U.S.C. Section 201[c]).
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This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.
In Bridgeport Music v. UMG Recordings, the United States Court of Appeals for the Sixth Circuit held that the song “D.O.G in Me” by Public Announcement willfully infringed Bridgeport’s copyright in the 1982 song “Atomic Dog” by George Clinton.
What intrigues me is that the finding of infringement was based the substantial similarity of only a limited amount of the lyrics: Use of the phrase “Bow wow wow, yippie yo, yippie yea”, repetition of the word “dog” in a low tone of voice at regular intervals, and the sound of rhythmic panting.
The court rejected UMG’s assertion of a fair use defense, noting, in particular, that although the substantial similarity pertained to relatively small elements of “Atomic Dog”, they were the most distinctive and recognizable elements of the song.
What this case teaches us: Using even a small portion of someone’s copyrighted work can constitute infringement if that portion is sufficiently distinctive and recognizable.
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.
Dana Shultz is a business-savvy lawyer located in Northern California's San Francisco Bay Area (in the East Bay, near Oakland) who has in-depth knowledge of law, business, technology, and the needs of startup and early-stage companies.