Wednesday, July 19, 2017

Instagram Re-Photographer's Copyright Lawsuits

Can you "steal" other people's art and pass it off as your own? U.S. law says yes, if you transform it at least a little bit. Just how "little" you can get away with is what NY fed court considered on Tue, in a case about photographer who makes whole exhibits out of other people's Instagram photos. Richard Prince, a photographer who incorporates other people's photographs into his own exhibits lost his bid in federal court in New York on Tuesday to have a copyright lawsuit against him dismissed.

Tuesday, July 18, 2017

Initial Coin Offerings: High-Risk Big Money for Startups

Initial Coin Offerings (ICO's) have been raising record funds at mind-blowing speeds. A browser startup raised $35M in under 30 seconds. Last week, Tezos, a new blockchain project, raised $232M, making it the largest ICO to date. Startups have raised over $1,3 billion in digital coin sales this year.

An ICO is an unregulated process that allows to raise funds for new cryptocurrency ventures. An ICO's big advantage for startups is that it allows to bypass the rigorous regulated capital-raising process required by banks or venture capitalists. There is no need to register an ICO with the SEC, no obligation to deal only with accredited investors, no need to verify the source of funds. In an ICO campaign, some of the new cryptocurrency is sold to early backers of the project in exchange for other, more established, cryptocurrency (usually Bitcoin) or actual money. In other words, they give you some new crypto bucks in exchange for real bucks or Bitcoins. You buy because you hope the new crypto offering will have value as currency.

Sunday, July 16, 2017

Should You Sign Contracts With Business Name or Real Name?

It's simple: if you own a company, then you have to make sure that it's your company, not you personally, is "signing" the contract. Otherwise, you can be personally liable with your own assets.

This rule applies even if your company is hired to perform personal services and you are the one performing them. For example, you are a programmer, a sole owner of an LLC. Somebody hired you to do some programming. The contract can say "LLC's Owner will perform services under this Agreement." However, it must still be clear that:

1) the LLC is the contracting party, not the owner. The LLC is responsible to dispatch its owner to do the actual services. Throughout the contract, avoid using your personal name, and
2)  the signature block shows that the LLC is a party to this contract, not the owner personally.

Friday, July 14, 2017

Monkey Selfie Sued Photographer for Copyright. Legal Arguments.

Federal appeals court is about to decide whether animals can own the copyright to their selfies.  On Wednesday, the 9th US Circuit Court of Appeals heard a case that involves a monkey who grabbed photographer’s camera and snapped some selfies. Aminal rights group PETA brought a lawsuit claiming that the monkey, not the photographer, owns copyright to the resulting viral photos. Here is what happened.

In 2011, British nature photographer David Slater photographer a group of macaques in Indonesia. One of them grabbed a remote and started clicking it. Camera on a tripod shot hundreds of photos, some of which became viral because of how hilarious they are and how unique the story is.

But PETA sued the photographer on behalf of the monkey named Naruto who apparently had the remote. PETA alleges that the monkey Naruto owns copyright.

Who holds copyright to photos?

Here is what U.S. copyright law states. Copyright belongs to the “creator” of the work who fixed it in any tangible medium. In case of photographs, copyright normally belongs to the one who clicked the shutter, unless the clicker was hired for “work for hire” or otherwise transferred the copyright. It is irrelevant who owns the camera.  Photographer Slater did not hire the monkey and it did not assign any copyrights to him. U.S. copyright law did not specify that the “creator” must be human. It was, thus, possible that the monkey could hold copyright. But even if it didn't, then the photos would still not belong to photographer Slater because he was not the one who fixed the photo in a tangible media. He did not click the shutter. If neither the photographer nor the monkey could claim copyright, that would mean the photos would fall in a public domain. That's why Wikimedia published the monkey selfie photos claiming that they were in a public domain.

Wednesday, July 12, 2017

How to Draft a Photo Services Contract

As a published photographer and a lawyer who represents other photographers, here are the issues I recommend thinking about when drafting a photo services contract.

This is just as important as pricing. You need to spell out what is it your clients should expect to receive. How many photos will be edited? How many pages in the album? Will there be an additional charge for a fancy album cover?

Your Rights to Photos
Very important, if you know the photos will turn out super interesting. E.g., if you are photographing at a gorgeous location, somebody well-known, unique props, etc. Then you will want the right to use the photos for your own portfolio, social media, books and advertising materials.

I have photographed lots of college beauty pageants. If you negotiate the right to host official pageant voting on your social media account or website, it will drive lots of traffic of potential clients to you.

I have photographed Miss Universe candidates swimming underwater with the whale sharks in the Philippines. Needless to say, photos like that are useful in any photographer’s career, so make sure you get the right to use them in your contracts and/or model releases. Otherwise, you could be missing out on great professional opportunities.

Sunday, July 9, 2017

How To Draft An Ecommerce Return Policy

Here are some tips on drafting a simple, yet effective, refund policy for your e-store.

1. Plain English. No legalese
Your return policy needs to be friendly and understandable. Write as you speak.

2. Can you copy a refund policy from another site? 
No, but you can reword it enough so that it doesn’t constitute plagiarism. Refund policies and legal documents have same or similar provisions but it’ll make you look unprofessional to just copy-paste. Same goes for templates that are available online. If you use those, chances are, you'll be using something that is already posted on multiple other e-stores.

3. What can be returned for refund?
Custom-made, worn or used items, clearance products and digital ones are usually treated differently from other products. They are often ineligible for a refund or refunded for in-store credit only.

4. How many days do they have to return a product or cancel a service? 
It’s important, so that you don’t have to issue refunds months later.

5. Acceptable reasons for return? 
Can they return just because they are not happy with the product or do they have to offer a more substantial reason?

6. Do you require upfront approval before return?

7. How will they receive the refund? 
Full/partial refund, credit or replacement?

8. In what condition do they have to return? 
E.g., original packaging, unworn, unused, unbroken, with an authorization number, proof of purchase, etc.

9. Who pays for shipping?
You or the customer? Who pays to ship a replacement to the customer?

10. What happens if the customers return never arrives back to you?
Customer should bear responsibility for getting the return to you. Ideally, this needs to be spelled out in your policy.

Monday, July 3, 2017

Как получить SSL-сертификат в США (How to Obtain SSL Certificate in USA)

С января 2017 года Firefox и Chrome маркируют как "небезопасные" сайты, требующие пароли и номера карт оплаты, без SSL-сертификатов. Что это за сертификат и где его достать?

Sunday, July 2, 2017

Europol: China Exports 86% of the World's Fake Goods

Chinese mainland and Hong Kong currently export approximately 86% of the world’s counterfeit goods.   This is according to Europol’s latest 2017 Situation Report on Counterfeiting and Piracy in the European Union. This was prepared in cooperation with the European Union Intellectual Property office. The report states that “China has long been recognized as the engine of the global counterfeiting industry” and that counterfeit goods amount to “approximately 12.5 % of China’s total exports and over 1.5 % of its GDP.” Altogether, 49 % of all seizures of fake goods made in the United States in 2015 emanated directly from China. These numbers come from the US Customs and Border Protection Office of Trade, Homeland Security and the US Chamber of Commerce. According to Europol, the development of the Silk Road and the corresponding increasing use of rail and maritime transport between China and the EU support also new threats in the intellectual property rights crime landscape.

China’s official press agency, Xinhua, has called the Europol’s report “an excuse for protectionism” claiming that “[i]nsiders say there is no method of calculating figures on fake products worldwide.”

Saturday, June 3, 2017

Effective Minimum Advertised Price Policy


Your brand may benefit from the Minimum Advertised Price policy because it:

- Avoids downward pressure on pricing from large retailers.

- Allows for better control of margins.

- Keeps authorized distributors happy.

- Decreases the “showrooming” effect when prospective buyers go to the brick and mortar store just to check out the product, knowing they can get a lower price online.

Are MAPs Legal?

Most business people know that “price fixing” is illegal. However, "price fixing" is illegal, under the Sherman Act, when it is between competitors, not by a single entity. In other words, you cannot agree with your competitors to minimum prices but you can have a “vertical” price fixing that applies to dealers of your own company. The Federal Trade Commission states that:

"Reasonable price, territory, and customer restrictions on dealers are legal. Manufacturer-imposed requirements can benefit consumers by increasing competition among different brands (interbrand competition) even while reducing competition among dealers in the same brand (intrabrand competition). For instance, an agreement between a manufacturer and dealer to set maximum (or "ceiling") prices prevents dealers from charging a non-competitive price. Or an agreement to set minimum (or "floor") prices or to limit territories may encourage dealers to provide a level of service that the manufacturer wants to offer to consumers when they buy the product... If a manufacturer, on its own, adopts a policy regarding a desired level of prices, the law allows the manufacturer to deal only with retailers who agree to that policy. A manufacturer also may stop dealing with a retailer that does not follow its resale price policy. That is, a manufacturer can implement a dealer policy on a "take it or leave it" basis."

The FTC also notes that "[t]hese benefits must be weighed against any reduction in competition from the restrictions." So, while the MAPs are legal, when drafted and implemented correctly, it is important to be wary of the antitrust laws that can still bite a negligent company.

That is why it is important to note that the MAPs are not actual contracts. It is one of the important distinctions from an antitrust scrutiny perspective.

Elements of the Effective MAP

What to include in your MAP?

Purpose. Appeal to your dealers' self-interest, not some pompous mission statement about your company's important "principles" which nobody except you cares about. If you want your MAP to motivate your dealers, state that the purpose of your MAP is to allow your authorized dealers to make profit by cutting out dealers who try to lowball other members of your team.

Consequences of violation. Termination at your sole discretion. You can also have a sort of “three-strike” rule, which is basically termination after a series of warnings.

Price list. You reserve the right to update it, at your sole discretion, when you feel it appropriate. 

Excluded products? Out of season, discontinued, used, etc.

Advertised or actual selling price?  Indicate if the MAP policy includes the actual selling price, or simply the price advertised on different media. Do rebates violate your MAP?

Channels. Does your MAP apply to all or only some channels? 

FAQ section can be helpful.

Does “click for price” or anything similar violate your MAP? What about product bundling? Perhaps, dealers may not bundle your products if the bundling is more than a certain percentage lower than the combined price of both products price?

MAP Enforcement

So, after you have competently drafted your great MAP, how will you know when it is violated Automated price monitoring is the industry's preferred method. A good system will include:

- Automated real-time alerts 

- Historical data, statistics and trends. Info on who is selling your products, reports on your market, dealers, and violation status, detailed sales information on each of the websites carrying your brand

- Screenshots 

- Automated MAP enforcement to send violation notifications at the frequency you select.

- Grey market seller detection to allow you to receive data outside of your authorized dealer network. 

Saturday, April 8, 2017

Как зарегистрировать торговый знак в США (How to Register U.S. Trademark)

Торговая марка может быть словом, фразой, символом, рисунком или комбинацией этих элементов. Не обязательно быть резидентом США, все можно сделать по интернету через сайте Ведомства по патентам и товарным знакам США (U.S. Patent and Trademark Office - USPTO). Регистрация в USPTO закрепляет за собственником эксклюзивные права на торговую марку на всей территории США. Бывает еще регистрация на уровне отдельных штатов, но такая регистрация дает права только на территории этих штатов. Поэтому, в большинстве случаев, лучше сразу регистрировать федеральный знак.

Регистрация ТМ предоставляет следующие преимущества:

- Исключительные права на использование этой марки и на подачу исков о ее защите.
- Является официальным публичным уведомлением о ваших правах.
- Возможность регистрации на таможне (U.S. Customs and Border Protection Service) в целях предотвращения импорта товаров со схожими марками.
- Право на использование значка (R), уведомляющего о том, что марка зарегистрирована.
- Является основанием для упрощенной регистрации идентичных торговых марок в других странах.

Основные особенности в США:

- Необходимо предоставить доказательство использования знака в коммерческих целях ("specimen").  В случае регистрации торговой марки на програмное обеспечение, например, таким доказательством может быть скриншот страницы, на которой оно продается.