cathyweeksMay-22-2013 5:24pm
Are you ready for the launch of new internet domains (gTLDs)?
Blog post submitted by: Vanessa Kaster, Esq., LL.M.
The internet as we know it is poised to change drastically with the launch of new generic Top-Level Domains (gTLDs). Currently, there are roughly two dozen gTLDs in use (.com, .net, .gov… etc); however, over 1,800 applications have been submitted for new gTLDs. The first 27 were scheduled to launch and go live last month. These first 27 new gTLDs appear to all be in non-Latin scripts such as Arabic, Japanese and Chinese. Later this year, many other new gTLDs are scheduled to go live. Among the applied for gTLDs are well known brands and also generic terms. For example, .apple (applied for by Apple Inc.); .coach (applied for by Coach Inc.); .fedex (applied for by Federal Express Corp.); .tires (applied for by Goodyear); .fashion (applied for by 4 entities) and .books (applied for by 9 entities including Amazon).
The launch of these new gTLDs could impact brand owners because of the possibility of abuse and misuse of trademarks in the new domains.
It is uncertain how these new gTLDs will impact the Internet. However, if you are a brand owner your defense mechanism against possible abuse and misuse of your marks in the new domains will be your USPTO trademark registrations (or trademark registrations in other countries). A legitimate concern for brand owners could be the use of their brand within a new gTLDs without permission. Web-traffic could be diverted and adversely impact brands. This is a valid concern for all brand owners, as well as creators, businesses, blogs, municipalities and many others.
Here are a few details about the new gTLDs:
- PRICE: $185,000 to apply for a new gTLD (plus ongoing maintenance and other fees).
- ICANN is the not-for-profit entity reviewing and approving applications.
- ICANN is an acronym for “Internet Corporation for Assigned Names and Numbers”
- PURPOSE: to increase competition and choice in the internet domain space (as stated by ICANN).
- OPEN & CLOSED DOMAINS: The new gTLDs will be a mix of open and closed domains. As the name implies, the closed domains will be controlled by the owner of the gTLD (including control of all content). Open gTLDs, on the other hand will be open domains, with broader access.
- Link to search the new gTLDs which have been applied for: https://gtldresult.icann.org/application-result/applicationstatus
Stay tuned for future posts as the gTLDs launch and this new technology exposes new legal issues.
See also, ICANN website for more information at: http://newgtlds.icann.org/en/about/program and www.kasterlegal.com.
BY: Vanessa Kaster, Esq., LL.M.
For more personalized legal services contact me at vk@kasterlegal.com
Unleashing viral whiplash instead of a lawsuit
Blog post submitted by: Vanessa Kaster, Esq., LL.M.
An online following of over 617,000 folks can be a powerful negotiation tool. I read recently that a NY street-photographer leveraged his online following by “unleashing a viral whiplash” on DKNY for using some of his photographs in a Bangkok window display without permission.
Evidently, DKNY approached the photographer for permission to use some of his photographs… but the parties couldn’t agree on a price and the deal fizzled out. Yet… some of the photographer’s photographs ended up being used anyway in the window display of a DKNY store in Bangkok. Someone who happened to be familiar with the photographer’s work (possibly one of the 617,000 folks who follow the photographer online) saw the images in Bangkok and notified the photographer.
This is where it gets interesting! In response, the photographer launched the following online campaign by posting this on Facebook at 9:01am on 2/25/13 [The Facebook page for HUMANS OF NEW YORK]:
I am a street photographer in New York City. Several months ago, I was approached by a representative of DKNY who asked to purchase 300 of my photos to hang in their store windows “around the world.” They offered me $15,000. A friend in the industry told me that $50 per photo was not nearly enough to receive from a company with hundreds of millions of dollars of revenue. So I asked for more money. They said “no.”
Today, a fan sent me a photo from a DKNY store in Bangkok. The window is full of my photos. These photos were used without my knowledge, and without compensation.
I don’t want any money. But please SHARE this post if you think that DKNY should donate $100,000 on my behalf to the YMCA in Bedford-Stuyvesant, Brooklyn. That donation would sure help a lot of deserving kids go to summer camp. I’ll let you guys know if it happens.
The online campaign quickly transformed into viral whiplash. The Facebook post garnered over 4,500 comments the same day that it was posted and was noticed and “liked” by over 41,000 folks and was shared over 30,000 times. Within four hours, DKNY issued a prompt apology and pledged to make a $25,000 charitable donation to the YMCA in Bedford-Stuyvesant Brooklyn in the photographer’s name. [Click to read DNKY’s statement issued at 12:52pm on 2/25/13 and the photographer’s response accepting the donation as a settlement issued at 1:18pm on 2/25/13].
Not the full $100,000 donation that was asked for… but a creative an interesting negotiation and resolution within FOUR hours. In support of this creative negotiation I “liked” the Facebook page for HUMANS OF NEW YORK, becoming follower number 617,012.
See also, a creative resolution to a trademark infringement between Franklin & Marshall college and a hot European Brand at http://wp.me/p10nNq-lu and www.kasterlegal.com.
BY: Vanessa Kaster, Esq., LL.M.
For more personalized legal services contact me at vk@kasterlegal.com
Licensing a Cover Song (Be Happy… it’s easy)
Blog post submitted by: Vanessa Kaster, Esq., LL.M.
If you want to cover a song on an album you will need to obtain a MECHANICAL license. The good news is that user-friendly tools are available to help you get the licenses you need. If you are an indie artist, attorney with a hankering to release an album, church group, or other musical group… you can use the online licensing services offered by Limelight (at https://www.songclearance.com/) to obtain mechanical licenses.
A FEW POINTS ABOUT MECHANICAL LICENSES VIA LIMELIGHT:
- You need a mechanical license before distributing a recording containing a song or composition that you didn’t write.
- The most common mechanical uses are digital downloads, CD’s and ringtones.
- You need to secure mechanical licenses even if you are giving your CD’s, downloads and ringtones away for free.
- Limelight’s Pricing Calculator estimates that the cost to license a song for 100 CD’s is $24.10 and for 100 CD’s + 100 digital downloads is $48.20. (this cost includes the royalty fee and Limelight’s service fee) – check out the calculator at https://www.songclearance.com/clearance/calculator
A FEW OTHER POINTS TO KEEP IN MIND:
- Good idea to check with Limelight even if you think that you are using a work that is in the Public Domain… because, you want to make sure that you are not using a copyrighted arrangement of a Public Domain work
- If you wish to license a song or Master recording to use with a film or other visual content (including YouTube videos), the type of license that you need is a SYNCHRONIZATION license. (Contact the publisher directly for a synch license).
- If you are including a recording of someone else’s music in your album (for example within a track or as an instrumental line) you need a MASTER USE license, need to clear the publishing/composition rights AND secure a mechanical license.
See also, https://www.songclearance.com/faq/; Rights Flow at htsflow.com/what-we-do/mechanical-licensing-and-royalty-services/; Three Myths About Music Sampling at http://wp.me/p10nNq-4U; Copyright Is Valuable – The Happy Birthday Song Earns $2 Million a Year at http://wp.me/p10nNq-cl and www.kasterlegal.com
BY: Vanessa Kaster, Esq., LL.M.
For more personalized legal services contact me at vk@kasterlegal.com
Saving America’s Recorded Sound Heritage
Blog post submitted by: Vanessa Kaster, Esq., LL.M.
It’s amazing to think about the vast treasure trove of sound recordings archived at the Library of Congress — historic speeches, music, radio
broadcasts and other recordings. Early recordings of Gershwin and Judy Garland; Alexander Graham Bell’s earliest sound recording experiments; a recording of a Blackfoot tribal song made in 1906; and a wire recording made in the cockpit of the Enola Gay during the bombing of Hiroshima in 1945. Evidently, these are just a few pieces of American history captured in sound recordings and archived within the Library of Congress.
This week, the Library of Congress unveiled an extensive plan (called the Library of Congress National Recording Preservation Plan) to help libraries and archives nationwide preserve historic sound recordings. Unfortunately, it seems that many of the oldest recordings which were recorded on cylinder records may have already been lost… although, hopefully this new preservation plan can help to save whats left of America’s recorded sound heritage for future generations. In a statement released this week, James H. Billington, Librarian of Congress stated:
The publication of this plan is a timely and historic achievement…. As a nation, we have good reason to be proud of our record of creativity in the sound-recording arts and sciences. However, our collective energy in creating and consuming sound recordings has not been matched by an equal level of interest in preserving them for posterity. Radio broadcasts, music, interviews, historic speeches, field recordings, comedy records, author readings and other recordings have already been forever lost to the American people.
Collecting, preserving and providing access to recorded sound requires a comprehensive national strategy. This plan is the result of a long and challenging effort, taking into account the concerns and interests of many public and private stakeholders. It is America’s first significant step toward effective national collaboration to save our recorded-sound heritage for future generations
The Library of Congress and the Smithsonian Institute have been awarded a grant of $750,000 to preserve the irreplaceable sound recording treasures in their archives and they are trying to raise an additional $750,000 in matching funds. (for more on Save Our Sounds http://www.loc.gov/folklife/sos/index.html)
The vast treasure trove of America’s recorded sound heritage is awesome and awe inspiring. With any luck, the preservation efforts may also start making some of these historical recordings available to the public.
See also: News update from the Library of Congress at http://www.loc.gov/today/pr/2013/13-014.html; quotes from the National Sound Preservation Plan at http://www.loc.gov/today/pr/2013/files/SoundPreservationPlanQuotes.pdf; the Save Our Sounds initiative at http://www.loc.gov/folklife/sos/index.html; http://www.cbsnews.com/8301-201_162-57569264/library-of-congress-unveils-plan-to-save-historic-recordings/; and http://iplegalfreebies.wordpress.com/
“Founded in 1800, the Library of Congress is the nation’s oldest federal cultural institution. It seeks to spark imagination and creativity and to further human understanding and wisdom by providing access to knowledge through its vast collections, programs and exhibitions. Many of the Library’s rich resources can be accessed through its website at www.loc.gov.”
BY: Vanessa Kaster, Esq., LL.M.
For more personalized legal services contact me at vk@kasterlegal.com
Crowdfunding – How Crowds Are Funding Ideas
Blog post submitted by: Vanessa Kaster, Esq., LL.M.
Crowdfunding has taken off with websites like Kickstarter which allow entrepreneurs, inventors and creators to pitch their innovative ideas to potential funders/investors to raise start-up money for their projects. Kickstarter is an example of REWARD based crowdfunding which offers a reward to investors for their financial sponsorship. While reward crowdfunding may be the most well known and popular type of crowdfunding… another type of crowdfunding is EQUITY crowdfunding. As the name suggests, equity crowdfunding gives investors equity in the business being funded instead of a reward.
Here are a few noteworthy points on crowdfunding:
- The two types of crowdfunding are regulated differently because giving a reward verses a security or equitable interest invokes different laws and regulations.
- Some of the popular reward crowdfunding websites are: http://www.kickstarter.com, http://www.indiegogo.com, http://artistshare.com/v4, http://www.quirky.com/
- Each reward funding website operates differently. For example, the fees charged by the sites (generally in the range of 4%-9% of the money raised) as well as the sites policies for what happens to pledged contributions if the target goal isn’t met… vary website by website.
- Once an idea is posted to a crowdfunding website… it CAN be copied! (You must protect your Intellectual Property!)!!
- A few of the most funded reward crowdfunding projects earned over $1-$2 million dollars (the projects were for: a video game headset, an LED light bulb controlled with a smart phone and a 3D printer).
- Reward crowdfunding websites do not necessarily regulate fulfillment of the promised rewards. (In Quest v. Singh, the entrepreneur who wasn’t able to deliver promised rewards was sued by a funder and ended up going bankrupt).
- It can be argued that equity crowdfunding over regulates initial offerings by requiring a licensed intermediary, limiting the capitol raised to $1million a year, and placing significant burdens on the intermediary and issuers. (Title 3 of the JOBS ACT).
- SEEDERS (http://www.seedrs.com/ based in the UK) is the first equity crowdfunding platform to be granted regulatory approval anywhere in the world.
This post is dedicated to my dear departed colleague and mentor, D. Caplan, who was an incredibly entrepreneurial attorney with his eye on the development of crowdfunding.
See also: JOBS ACT: http://www.gpo.gov/fdsys/pkg/BILLS-112hr3606enr/pdf/BILLS-112hr3606enr.pdf; JOBS ACT Q&A http://www.sec.gov/divisions/marketreg/tmjobsact-crowdfundingintermediariesfaq.htm; Proposed Amendments to the Prohibition Against General Solicitation and Advertising in Rule 506 and Rule 144A Offerings: http://www.sec.gov/rules/proposed/2012/33-9354.pdf; CROWDFUND ACT: http://www.opencongress.org/bill/112-s2190/show; http://money.cnn.com/galleries/2012/technology/1204/gallery.crowdfunding-startups/index.html; Medstartr – a health and medical focused crowdfunding platform: http://wp.me/p10nNq-mN and www.kasterlegal.com
BY: Vanessa Kaster, Esq., LL.M.
For more personalized legal services contact me at vk@kasterlegal.com
Looking back at posts to keep in mind for the New Year
Blog post submitted by: Vanessa Kaster, Esq., LL.M.
As we kick off a new year, let’s refresh resolutions and keep these points in mind:
- Copyright Law: Using quotes from someone else in your book, blog or website - Using Dr. Martin Luther King Junior’s famous ‘I Have a Dream’ speech as an example of a copyrighted work filled with famous quotes… we take a look at the fair use doctrine and how evaluations are made regarding use of copyrighted content.
- Music Royalties will start being paid for plays on YouTube – In 2012 YouTube started paying royalties for plays on their website.
- How to write a © copyright notice and why to use it – Writing a copyright notice on your original work is free and easy to do. (if you aren’t already in the habit of doing this, make it a new years resolution!)
- Copyright Law: Using quotes from someone else in your book, blog or website (part two) – Remember that the HEART of a work is heavily protected by copyright law.
- Copyright is valuable – ‘The Birthday Song’ earns $2 Million a year in royalties – We all know it… it’s only eight measures long, spans an octave and was written for children …but it’s a big money maker.
- Understand How You’re Getting Paid – ROYALTIES on GROSS vs NET REVENUE and an ADVANCE – Seeing these words in a contract or agreement will impact payment… become familiar with the meaning of these terms.
- ‘NAME Brand’ – Using your name as a brand and trademark – Paul Revere may have been the first American entrepreneur to use his name to brand his products. Are you considering it too?
Happy New Year! Thank you for reading. Wishing you all the best with your creative and entrepreneurial endeavors.
For the latest post see: http://iplegalfreebies.wordpress.com and www.kasterlegal.com
BY: Vanessa Kaster, Esq., LL.M.
For more personalized legal services contact me at vk@kasterlegal.com
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