Wednesday, September 26, 2007

It's the Most Infringing Time of Year!


It is hard to believe that the season most of us in the industry work all year for is coming again. Our firm has been reviewing agreements for Christmas 2009 recently...talking about planning ahead.

This time of year tends to be an busy one in regards to copyright infringement. Giftware and Decorations can be found in almost any type of store and handpainted items are popular at the holidays. With the increase in merchandise, comes the increased potential for copyright infringement. Our firm has already received 2 cases of infringement based on the 2007 Christmas lines from various retailers.

Honestly, there is no way to truly stop copyright infringement. Watermarks, passwords, etc. are great ways to slow infringers down, but not stop them! An active copyright registration program and a keen eye are your best defenses (or offense!) in the copyright infringement arena.

If you do see a case of infringement - on the internet, in a catalog, in a store, etc. We recommend a few steps to help you in the process:

1) Before you confront anyone - secure a copy of the item with a receipt.
2) Do not make matters worse with an immediate confrontation. It is better to pull all of your documentation (which will be asked for), consult legal counsel, and determine a "plan of attack."
3) Note what other items are being sold with the infringing item - is it part of a special launch, a coordinating line.....
4) Document, document, document - who, what, when, where, how
5) Seek Legal Advice - it may not be as costly as you would think

Many artists and inventors try to handle the infringement by himself or herself to save money. Please know that is VERY understandable. However, many cases have been seriously compromised with self help. Remember, even if the infringing item is removed from a shelf, you may still be able to seek compensation.

An attorney's job is to keep her client OUT of court. That is what our firm believes. With a copyright registration in hand along with your evidence, there are many opportunities for settlement or even licensing arrangement. Even if you did not register your copyright according to the law, you still have options.

It is very important to point out that not all copyright infringement is willful. However, liability may still exist.

The best ways that artists and inventors are going to stop infringement is by registering their works appropriately and being willing to hold the infringer responsible. Our firm sees the legal community's responsibility as providing artists and inventors with all the tools necessary to help them win the battle.

Is this a controversial subject - ABSOLUTELY!? However, that's what the comments section of this blog is for. Also, our next few blogs will be discussing copyrights and their registration in greater detail. Something was started and I'm on a roll. If you can't tell, when it comes to copyrights - I'm pretty darn passionate.

The weekend is almost here and so is Christmas! It's hard to believe!
Create with your heart and your head!

Monday, September 24, 2007

Safely Blogging Along

The Wonderful World of Blogging!

One of my greatest hesitations about blogging was security and safety. So many fail to realize that when one blogs, the information is out for EVERYONE to see as a general rule. That can be great and that can be HORRIBLE! Since I work daily to help people protect ideas and my father was a police officer, I thought I would make one of my first blogs about "Blogging Safety." Safety from a personal standpoint and an intellectual property standpoint.

1) Publication. Bloggers and Comment Posters need to realize that generally everything is open to the world. If one is sharing an idea, adding to an idea, sharing a technique, showing artwork, etc., the time will start "ticking" for any registration.

2) Connecting The Dots. It is very easy for someone to connect the dots on the Internet these days. Even if one does not post his or her hometown or contact information, sometimes with an accumulation of information, it is as if you posted your full name, address, phone and the like. Remember, most people think nothing of information and love learning the small stuff about someone. Some people will take the small stuff to do big things. Not only from a personal safety issue, but the same is true in regards to trade secrets, marketing, etc.

3) Register It! If one posts something on a blog and would be furious if someone took it or copied it, then it should be registered. I can guarantee you that once a month I will be registering my blogs as a collection with the US Copyright Office. Patentable ideas, processes, and the like are even more dangerous to post without first registering.

4) Be Kind! This is from a business perspective, when it goes into the written word - it could come back and bite you. If you are talking about a product or a person and it is not complimentary - I highly suggest you avoid it. It could come back to get you. There are varying laws for slander, defamation, intentional infliction of emotional distress, and the like. There is the 1st Amendment in the US, but commercial speech does not fall under the biggest blanket of protection.

5) Watch the Use of Names. I know this sounds like a safety issue, but it can also be an endorsement issue and Right of Publicity Issue. Therefore, get permission before you use someones full name or a products full name if you are going to do more than mention it in passing, discuss it and/or its features, etc.

This list is not comprehensive, but it is "food for thought." The greatest tip I can give is:


Therefore friends - go forth and!

Have a great week and enjoy!
Create with your heart and your head!

Sunday, September 23, 2007


Thanks to the encouragement of numerous friends (check out my links), I now have a blog. I've always tried to stay away from them as many people don't really want to hear the ramblings of an attorney. However, I've been told over and over again - I'm not like your typical attorney.

Since I practice in a unique field of law, I decided to give it a try. Some days, it will just be ideas or what is going on in the office. I can guarantee you that some times it will be things like "Don't do this at home" or "Look what you can do!" No matter what, you will not find a list of my clients unless I get specific permission. However, you will find lots of fun stories, etc. I'd love to hear your ideas and what you'd like to see.

Here's to a GREAT adventure!

The Fine Print!

Since there may be legal discussions going on...there must be a disclaimer!

This blog is for educational and information purposes only. It does not constitute the practice of law. The attorney who writes this blog is only licensed in the State of Ohio and Michigan. There is NO attorney-client relationship of any type. You must sign appropriate documenation and have appropriate new client counseling to be a client of Browning-Smith, P.C. Each and every situation is different and all readers must seek his or her own legal counsel. The information on this blog is not guaranteed for any purposes nor is it to be relied on.