Category Archives: Copyright

Upcoming Lunch Seminar: If I Owned A Marketing Firm – Insights From a Trademark and Copyright Attorney.

The Amarillo Advertising Federation is hosting their next meeting on Wednesday, March 25, 2015. The speaker for this lunch meeting will be Chris Stewart, a brand strategy attorney who regularly collaborates with marketing professionals.  He will share his experiences with the biggest legal issues that face marketing professionals.  This discussion will touch on trademark, copyright, clearance, advertising and social media law.  Chris will be providing lots of free tips and pointers that you won’t want to miss.   

This meeting will be held at the Amarillo Club on the 30th floor of the Chase Tower in Downtown Amarillo. The lunch starts at 11:45 a.m. along with some club announcements. This will then be followed by the presentation beginning around 12:15 – 12:30 p.m. and lasting until about 1 p.m. Afterwards, there will be a brief question and answer portion at the end.

The members of this club are advertising professionals that represent nonprofits, ad agencies, TV, higher education, print companies, design studios, etc. and are all interested in what is going on in the industry.  Non-club members can join the seminar for a $25 entrance fee. The Amarillo Advertising Federation website can be found here.

Intellectual Property & Computer Law for Businesses

Chris Stewart, partner with Burdett, Morgan, Williamson & Boykin, LLP will be presenting a seminar on Intellectual Property and Computer Law on Tuesday, July 22nd 2014. The seminar will run from 6:00 p.m. – 8:00 p.m. at the WT Small Business Development Center at 701 S. Taylor Ste. 118, Amarillo, TX, located in the Happy State Bank building. This seminar is not a bunch of lawyer-speak.  Chris really focuses on the practical tips in an easy-to-understand manner. See the flyer below for more information, or sign up here.

Website Development Contracts (and tips for software development deals too) 

Many companies do not have the capabilities, resources or desire to produce a website.  They need help with their website efforts.  They must necessarily rely on independent website developers. 

Companies (and individuals) often move forward with an independent website developer without a written contract to govern the relationship.  I’ve been asked to get involved as a lawyer in numerous website projects gone wrong in which the only signed writing is a vague set of specifications and a bottom-line price. 

Before hiring a website developer, the company should first develop a clear vision of what the website will do.  A company that knows what it wants typically gets it.  Open-ended or vague specifications do not benefit the ongoing relationship at all.  Someone is generally unhappy when the website project is ill-defined. 

The starting point for developing a clear vision for the website is to consider what the website will do.  Does the company merely wish to use the website for advertising? Or does the website sell a product or service through the company’s online catalog?  Will users of the website generate the content—like what happens on Pinterest, Facebook or YouTube?  Knowing in advance what the website will do shapes the agreement between the company and the website developer.

A website development agreement may, and probably should, address the following:

  • Services. The agreement should describe the scope of services that the developer will provide.  The company may want detailed schedules that describe the work to be done and the time frame for delivery. Some contracts or incorporated exhibits have layouts of the entire website.  I saw one recent contract in which the layout of each page was put into a PowerPoint presentation and attached to the agreement.     
  • Cost. The project could be billed hourly or by the task.  Some deals say that the developer gets paid at the conclusion of certain periods of time—like the end of each month.  When I represent businesses that want a new website, I generally draft the agreement so that payments are tied to specific objective milestones, and not the passage of time.  I have generally found that such projects move forward faster.  
  • Intellectual property ownership and protection. The agreement should specify who will own the website content.  Work made for hire language that addresses the critical issue of copyright ownership may be appropriate.  The issue of ownership is often overlooked to the frequent detriment of the company.  Generally, in the absence of a written contract providing otherwise, independent website developers (independent contractors by definition) own the intellectual property they bring to a website even if the company pays for the website work.  A detailed discussion of the intellectual property issues involved in the typical software and website development deal exceeds the scope of this article.  The attorney who drafts website development deals will want to have a good understanding of the relevant issues.     
  • Technical considerations. The agreement may set forth the software the developer will use.  Websites need to be readable and glitch-free on all of the major Internet browsers, including Explorer, Chrome, Firefox and Safari.  Websites should be smartphone-friendly too. 
  • Advertising and promotion. The agreement may provide that the developer will promote the website, place advertising on the website, or both. Many people use search engines to find websites, and the agreement could obligate the developer to list the website with search engines or perform tasks that make the website “search engine optimized.”  The website developer may want to include an acknowledgement on the website to highlight its work.
  • Hosting services. Some website developers possess the capability to host the website. If so, the agreement should set forth the terms of the hosting arrangement.
  • Updates and new features. Companies often wish to change the content, functions and features available on their websites. If the website developer will retain responsibility for updates and modifications, the agreement should set forth payment terms and schedules appropriate to the circumstances.

These are just a few of the terms a company may want to include in the website development agreement. Ultimately, the agreement should be tailored to the company’s specific needs and preferences and anticipate the issues that may arise during the life of the website. 

The Emerging Copyright and Publishing Law for Writers seminar

This Saturday (May 18) I will be giving a seminar on copyright and publishing law to the Panhandle Professional Writers organization in Amarillo.   The seminar is titled “The Emerging Copyright and Publishing Law for Writers.”  This seminar will be held on Saturday, May 18, 2013 from 10:00 a.m. to 3:00 p.m. at the Amarillo Senior Citizens Center, 1217 S. Tyler, Amarillo, Texas.  Check-in starts at 9:30 a.m.
PPW always inspires me.  I really enjoy being around creative people!  This seminar has been an annual event for PPW for four consecutive years.  The audience participation and questions are always great.
If you are interested in attending, there is a $10.00 charge for the meeting plus an additional $10.00 fee for lunch.  You can make reservations by calling Donna Otto at (806) 681-4181 or by e-mail to  I hope to see you there!  
You can learn more about the program by clicking here:
You can learn more about the Panhandle Professional Writers by going to their website at
Thank you to PPW for making this happen!  

Can Someone Own the Copyright To the Batmobile?

I’ve been looking for an excuse to blog about the upcoming third-installment of the Batman movie series directed by Christopher Nolan.  The Dark Knight Rises is set for 
a July release   Here is the trailer from YouTube.  I put Nolan’s first two films in the series, Batman Beginsand The Dark Knight, on my personal list of Top 10 Movies.  Yes, I like these movies that much.
Here is my excuse for blogging about Batman: a federal judge has ruled that Batman’s techno-ride, the Batmobile, may be subject to copyright protection.  Click here for the story.

Righthaven Copyright Suits and the Fair Use Defense

In a major setback to Righthaven, LLC in one of its copyright infringement cases, a federal judge recently ruled that defendants Kayse Jama and the Center for Intercultural Organizing (“CIO”) engaged in fair use as a matter of law when they posted an article from the Las Vegas Review-Journal (“LVRJ”) that was copyrighted by Righthaven (For background on Righthaven and its business model, see “Copyright Infringement in the Digital Age: Is Righthaven Using the Right Solution?”).
Using the four-factor legal standard for fair use (purpose and character of the use; nature of the copyrighted work; amount/substantiality of the portion used in relationship to the work as a whole; and effect of the use upon the potential market), Judge James Mahan ruled that Jama and CIO met all four criteria necessary to constitute fair use. One of the most surprising aspects of this ruling involves the third factor. Even though the defendants copied the article in its entirety, the judge ruled that the amount was reasonable. Mahan reasoned that because the purpose of the use was to educate the public, and the work was factual, “it would have been impracticable for defendants to cut out portions of the article or edit the article down.”

Regarding the fourth factor of fair use, the opinion also questions whether Righthaven, which is not itself a newspaper and is merely using the copyright to file infringement lawsuites, can claim LVRJ’s market as its own.

It remains to be seen how this ruling will affect the numerous other cases that Righthaven has filed against bloggers who have posted LVRJ content, but if the posting of an entire article can be considered fair use, and if Righthaven does not have an actual market to base its claims upon, this could jeopardize its other claims of copyright infringement.

Righthaven Copyright Suits – An Update

Several months ago, we published a blog post entitled “Copyright Infringement in the Digital Age: Is Righthaven Using the Right Solution?” discussing a spate of lawsuits filed by Righthaven, LLC against bloggers who posted content copyrighted 


by Stephens Media, the publisher of the Law Vegas Review-Journal.

Copyright and trademark attorney Ron Coleman, owner of the “Likelihood of Confusion” blog, recently posted an update on this topic.  Coleman, along with Las Vegas attorneys Marc Randazza and J. Malcolm DeVoy, filed an amicus brief on behalf of the Media Bloggers Association in one of these lawsuits.  This brief, which is posted in its entirety on Coleman’s blog, calls into question the propriety and scope of copyright statutory damages in this type of lawsuit. Much is at stake because statutory damages can greatly simplify the Plaintiff’s task of having to otherwise prove up actual damages.

Copyright Infringement in the Digital Age: Is Righthaven Using the Right Solution?

Before there was an Internet, wholesale infringing on someone’s copyright could be a time consuming and capital intensive endeavor. Through most of the last century, would-be infringers needed a printing press, and even with the advent of the mimeograph and copy machines, paper and distribution channels were required.  But today, a copyrighted work that is posted online can be easily copied and distributed throughout the world with a few clicks of a mouse.  In the case of pirated software and other high-ticket items, it may make sense to go after the infringers. But what about infringers that cut and paste articles from online newspapers and 


magazines on their own websites or blogs?  Is it cost effective to take them to court?

In March 2010, Stephens Media, publisher of the Las Vegas Review-Journal, began selling copyrights to that paper’s content to Righthaven, LLC, a company whose CEO, Steve Gibson, is an attorney practicing law in Nevada. Since then , Righthaven has been scouring the Internet for Review-Journal articles that have been posted without permission from the copyright holder. By the end of July 2010, Righthaven had filed at least 80 copyright infringement lawsuits in Nevada federal district court against a variety of website owners and bloggers.

Gibson’s strategy for going after copyright infringers is a bit unorthodox. The standard procedure before filing a copyright infringement suit is to send a cease and desist letter, giving infringers an opportunity to stop their activities before taking them to court. In addition, under the Digital Millennium Copyright Act (“DMCA”), there are provisions for sending a “takedown notice” to an infringing website before taking further legal action. Righthaven has apparently done neither, choosing instead to serve its infringers with federal lawsuits without prior warning. Faced with the prospect of going to trial on Righthaven’s turf, many of the defendants have chosen to settle early in the case.

Since few of these infringers make any money from their websites or blogs, and even fewer, if any, operate online publications that directly compete with the Review-Journal, some argue that such cutting and pasting could be defended under the “fair use doctrine” of the U.S. Copyright Act. Under this doctrine, some copying without permission is considered “fair use” (and therefore not infringement) depending on the purpose and character of the use, the nature of the copyrighted work, the amount of the copyrighted work being copied, and the effect of that copying has on the potential value of the copyrighted work.  Since many of the website owners and bloggers seek only to inform and educate their readers and not to turn a profit, fair use might be a viable defense in some cases.  But from Righthaven’s point of view, the unauthorized posting of its copyrighted content greatly reduces the potential value of that content by driving traffic away from the Review-Journal’s website and decreasing its advertising revenues.

It remains to be seen whether Gibson’s strategy will prove profitable for Righthaven over the long haul. In a similar move against music file sharing, the Recording Industry Association of America (RIAA) sued approximately 20,000 infringers over five years, spending $64 million in legal costs but only recovering $1.3 million in damages and settlements. However, if suing for infringement of Review-Journal content turns out to be a money making operation, Stephens Media controls over 70 other newspapers in nine states which could join the fray, with the possibility of other media groups to follow. In the meantime, website owners and bloggers can avoid possible liability to linking to articles of interest rather than copying the entire content directly onto their sites.  Getting permission to use content is the safest course.

Update on J.D. Salinger and The Catcher in the Rye

In an earlier post entitled “J.D. Salinger, The Catcher in the Rye & Intellectual Property Rights”, we discussed a pending case (Salinger v. Colting) in which a U.S. district court granted the estate of J.D. Salinger a preliminary injunction against Swedish author Fredrik Colting, his publishers and distributors concerning the 


book 60 Years Later: Coming Through the Rye. In a recent decision concerning this case, the Second Circuit Court of Appeals ruled that the district court used the wrong standard for granting the preliminary injunction, vacating the order and remanding the case back to the district court.

The court of appeals said that the correct standard for a preliminary injunction in a copyright infringement case is the four-factor test outlined in the Supreme Court decision eBay, Inc. v. MercExchange, L.L.C. The four factors are: (1) the plaintiff suffered an irreparable injury; (2) remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) the public interest would not be disserved by a permanent injunction.

This ruling is significant, because it may mark the first time in a reported case that the so-called eBay factors are being applied to a preliminary injunction in a copyright infringement dispute.  The eBay case involved a permanent injunction in a patent dispute.  However, the decision did nothing to immediately change the situation for the defendants. The preliminary injunction (which barred Colting, his publishers and distributors from advertising, publishing or distributing Colting’s book) will stay in place for ten days following the issuance of the mandate. This will give the estate of J.D. Salinger the opportunity to apply for a temporary restraining order pending the rehearing of the motion for a preliminary injunction.