Monday, May 17, 2010

Trademarks and Pepper Potts - Is Iron Man a good or a service?


Warning: this may be one of my more nonsensical posts.

After seeing Iron Man 2 this week, I felt compelled to speak out about the misinformation propagated by Pepper Potts. During a scene in which Tony comes into Pepper's office, we overhear Pepper talking to an unidentified party about the suit. In the conversation (which I am editing to avoid spoiling it for anyone who went to see Robin Hood this weekend instead), Ms. Potts repeatedly references the intellectual property right in the suit being based on trademark law. My beef? It is clear from the story line, that the issue is one of patent law, not trademark.

Trademarks generally serve two purposes: 1) to provide consumers with an assurance as to the source of goods or services; and 2) to protect the value that a business receives from creating and marketing a product. Patents, on the other hand, are intended to protect inventors by giving them the sole ability to utilize or license their creations. While the suit could serve as a trademark for Tony Stark's services as a super hero, it should be clear to anyone that has seen the movie that the discussion in question was more properly framed as an issue of patent law.

Am I being nit-picky? Well . . . Yes. But as a copyright and trademark attorney, Pepper's lack of understanding ruined the entire film for me - or at least it distracted me for 5-10 seconds.

Wednesday, May 5, 2010

Does theTwitter ToS dedicate everything you post to public domain?? - NO!

I use to say that it was a myth that if it was on the Internet it was free to use. While still a myth, photojournalist Daniel Morela may have reason to question whether this in fact still true.

Morla was recently sued by Agence France Presse (AFP) for “antagonistic assertion of rights” for accusing AFP of violating his copyright in several photos taken following the January earthquake - Morela has counter sued for copyright infringement. AFP has asked for summary judgment that it did not infringe on Morela's copyrights (complaint). AFP's claims are interesting because, in part, they note that since Morela used Twitter to distribute the photos (which he did not - he used Twitpic), the Twitter Terms of Service (ToS) granting Twitter the right to distribute the photos should be extended to AFP as well. Besides the fact that AFP appears to have little understanding of the facts of their own case, this reading of the Twitter ToS is a little odd.

The Twitter ToS provide that:
    You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

    You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

While it is possible that AFP is making the argument that the second clause which allows Twitter to make the content available to partners and that they in fact are partners, it is clear from anyone's reasonable reading that this scenario is not what is intended by this agreement.

The much sparser Twitpic ToS has a similar clause, but its sparser writing style makes the intent of these types of clauses much more clear. The Twitpics Terms of Services specifically notes:

    By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on Twitpic.com or affiliated sites

    All images uploaded are copyright © their respective owners
While I believe that AFP's arguments are weak (though other claims raised by AFP may have more merit), they do help to illustrate that Creatives that use various forms of social media or SaaS solutions related to the creation or distribution of their work should be aware of, and understand, the ToS for those sites. Otherwise, you risk obscure boilerplate agreements giving away your work for free - or at least claims to that effect by multinational corporations.