SOCIAL MEDIA Archives - Martin IP Law Group

BRANDING, COPYRIGHTS, ENTREPRENEUR, INNOVATION, INTELLECTUAL PROPERTY, INVENTORS, PATENTS, SOCIAL MEDIA, TRADEMARKS

Twitter Trademark – Is It Legal?

When you see a little blue bird, what’s the first thing that comes to mind? If you’re an active social media user, it’s probably Twitter. Since March of 2006, the distinctive emblem coupled with its bright blue hue, has become widely recognized.

However, Elon Musk, Twitter’s newest owner, has changed its branding – a logo and name that’s stuck with the company for the past 17 years. Now, it’s just X with a white “X” logo inscription on a black background. Musk also altered Twitter.com to X.com.

Before Musk’s ownership, Jack Dorsey, Evan Williams, and Christopher Stone were the company’s co-founders. During this time, the logo was only changed three times. While Dorsey and his colleagues were no strangers to controversy, Musk’s recent rebranding has sparked debate about whether this was a logical choice – and the legality of it.

Trademarking the Alphabet

Because the logo is just the letter “X”, trademarking is tricky. Nondescript marks, which include letters and numbers, are trademarkable but require substantial proof for acceptance. The most important thing to prove is that the mark is distinctive enough from other businesses’ trademarks. The letter or number must give a second meaning (apart from the original) associated with a business or organization. If it’s too general, the chances of acceptance are slim.

Potential Complications Ahead

According to the United States Patent and Trade Office (USPTO), trademarks protect a business’s name, logo, and designs related to its products or services. It also stops other businesses from using your name in any form of fashion. This is where things get tricky.

Take McDonalds™, for example. Kantar reports that the fast-food chain is one of the world’s most valuable businesses, coming in 5th place after other large companies like Google and Amazon. Despite its size, the name wouldn’t be protected without a trademark. The company also owns the rights to the golden arches logo and the phrases “Egg McMuffin,” “Happy Meal,” “McNugget,” and more, making these designs and terms off-limits for others in the restaurant industry.

If another business were to market or profit off these terms in any way, they would be committing trademark infringement. According to the USPTO, this is an “unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services.” When this happens, the offender can be sued, served a court order to remove anything with the stolen trademark, or other legal consequences.

Our blog about the 2022 Bridgerton trademark and copyright infringement debacle details how this looks in real-time.

Limited Protections, Higher Liability

In short, Twitter’s trademark is legal, but it’s complicated. Since the “X” design is so simple, it may be hard to distinguish it from other businesses’ use of the same branding. This limits the amount of protection Twitter has over its new name and logo, narrowing opportunities for future use.

It’s going up against other tech giants like Microsoft and Meta (formerly Facebook) – plus the thousands of other, smaller businesses that have already trademarked some form of the letter X. Currently, this number is estimated to be almost 900. Because of these numbers, the company will likely experience challenges with its trademark.

Either way, trademarks this broad open the door to potential legal action from other businesses. And because Twitter’s biggest competitors are already using similar branding, although, for lesser-known branding projects, the consequences of this latest rebranding might come more quickly than expected.

Trademark Specialists at Martin IP Law Group

While we don’t know the future of Twitter and its rebranding, we do know we can help you with your trademark ideas. If you’re looking to gain exclusive rights to your brand’s logo, designs, and more, the Martin IP Law Group is ready to get you started.

ARTISTS, BRANDING, INTELLECTUAL PROPERTY, SOCIAL MEDIA, TRADEMARKS

FIVE TIPS TO CREATE A GREAT LOGO FOR YOUR BUSINESS

Your logo is the thing that oftentimes people first see about your company. It’s their first impression, so you want to make it a good one. If you look at companies like Apple, like McDonald’s, they have very recognizable logos that you’ve seen, and you associate with their product or their service. That’s what you want to design – something that’s memorable, something that’s lasting and makes a good impression. Apple’s trademark portfolio is reported to be worth nearly a trillion dollars as of 2022. Your branding and your logo are important to your company, and you want to take the time to do it right. Below are 5 tips and tricks to ensure that your logo is not only great for you and your business, but also protectable.

TIP #1: ESTABLISH A BUDGET

If you’ve looked online for someone to design a logo for your business, you’ve most likely seen prices ranging anywhere from $25 to $2,500. With logo designers, like attorneys and other businesses, oftentimes you get what you pay for. The ones on the lower end of that price range often times cut corners. They may not provide actual professional design work. Instead, they may just take some clipart from here and clip art from there, put some (very little sometimes) thought into it, and design your logo based on some things that are already publicly available. We’ve seen that happen here at Martin IP law group. Clients have come to us seeking protection for logos they paid someone to design, only to find out that the designer they hired to design their logo, took images from publicly available sites like iStockphoto and used that in their logo. The problem is, there’s no originality there, there’s nothing really that you can protect. And there’s nothing to differentiate you from other people because that mark and that that image is publicly available. Companies like iStockphoto have specific disclaimers on their site, saying that you cannot use these images as part of your logo, so you certainly cannot register them. If you hire a qualified designer, they’re going to know better, they’re going to design something on their own, and they certainly won’t take it from someone else.

TIP #2: ESTABLISH A TIMELINE

Designing a really good logo isn’t something that happens overnight. A claim to be able to give you a logo, at least one worth having, in 48 hours is not realistic. The designer needs to get to know you, and your business. They need to get to know your culture, so that they can design a logo that fits you and your business. So spend the time to sit down with a qualified designer and make that happen. We’re talking weeks or months, not just days or hours. So make sure you do it right.

TIP #3: CHECK OUT THE DESIGNER’S PORTFOLIO

Most graphic artists and logo designers are going to have a portfolio publicly or privately available where they can show you other work that they’ve done – other logos they created. Make sure to take a look and get a feel for what their style and effect is, and see if that matches your style.

TIP #4: CHECK OUT THE REVIEWS

Everybody has online reviews these days. That’s a good way to find out who they’ve worked for before and what these prior clients have to say about the process and working with that designer.

TIP #5: MAKE SURE YOU OWN THE IP!

Finally, you want to make sure that you own the intellectual property that’s created as part of this process. Make sure to document who owns the trademark and copyright for the logo, and get it in writing! It may be part of the designer’s standard contract language or something you put together that acknowledges that you own the IP, not the designer. Either way, make sure it gets put down in writing somewhere.

A lot of people go online to have their logo designed, through sites like Upwork, or Fiver, or other common sites where you can go and you can contract somebody to design your logo. If you go to either Fiver or Upwork’s website, their Terms of Service, specifically state that it’s up to the agreement between the two parties – the designer and the purchaser (you) – to determine who owns the intellectual property. It also goes on to specifically say that the designer shall transfer or assign those rights to the purchaser, but ultimately there still needs to be a written agreement.

Typically, when you pay someone else to design a logo for you, it will be considered a work for hire which you, not the designer, would own. But in that small fraction of cases where there is a dispute as to who owns it, having a written agreement will save you a lot of headaches, and money too!

We have put together a handy checklist for you to use to ensure that you have not missed anything is designing your logo the right way. If you have any further questions about designing your logo, or protecting those rights, contact us here. We’d be happy to help!

WORKING WITH FREELANCE LOGO DESIGNERS: A CHECKLIST

ARTISTS, COPYRIGHTS, INTELLECTUAL PROPERTY, SOCIAL MEDIA, SONGWRITERS, TRADEMARKS

A BRIDGERTON TOO FAR – WHEN FAN FICTION BECOMES COPYRIGHT AND TRADEMARK INFRINGEMENT

On Christmas Day 2020, in the midst of a global pandemic, Netflix debuted “Bridgerton”, a new series based on a collection of novels by author Julia Quinn. The series is set in Regency-Era London during the social season, and revolves around the fictional Bridgerton family. The show got generally good reviews in its first season, and in it’s second season became a worldwide sensation. As with anything or anyone famous these days, this resulted in a number of fan pages and “tributes” on social media sites. Among those was a TikTok tribute by started by fans Abigail Barlow and Emily Bear in early 2021. That fandom grew into a 15 song album, The Unofficial Bridgerton Musical, which was released in September 2021 and won a Grammy Award for best musical theater album in 2022. The songs on that album include verbatim lyrics, plot elements and scenes and characters that are lifted from Netflix’s Bridgerton series.

Then, on July 26, 2022, Barlow and Bear performed a live, for-profit stage show entitled “The Unofficial Bridgerton Musical Album Live in Concert” before a sold out audience at the Kennedy Center in Washington, DC. Three days later, Netflix filed suit alleging copyright infringement and trademark infringement in that Barlow and Bear have “taken valuable intellectual property from the Netflix original series Bridgerton to build an international brand for themselves.”

There can be little argument that the Unofficial Bridgerton Musical album and the live performance are derivative works based on the copyrighted Bridgerton series. Likewise, Barlow and Bear’s use of the term “Bridgerton” in its title, absent some other justification, is clearly a violation of Netflix’s trademark rights, notwithstanding the use of the word “Unofficial”. To hold otherwise would be akin to Ricky Bobby’s argument that he could say whatever he wanted so long as it was prefaced by “with all due respect”.

On it’s face, this would appear to be an open and shut case of copyright and trademark infringement. However, there are at least three legal theories upon which Barlow and Bear could prevail – fair use, latches and estoppel.

Does the Unofficial Bridgerton Musical constitute “Fair Use”

The doctrine of fair use permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is often applied where the subsequent work is being used for purposes such as criticism, commentary, news reporting, teaching, scholarship or research. Four factors must be considered in determining whether the fair use exception applies:

The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
The nature of the copyrighted work;
The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
The effect of the use upon the potential market for or value of the copyrighted work.

While no one factor alone is determinative, the first and fourth factors are generally given the most weight. Looking at the first factor, the fact that the live performance was for profit makes it less likely to qualify as fair use. Unless the live musical performance can be considered “transformative” – a use that adds something new, with a further purpose or a different character”, the first factor is likely to weigh heavily in favor of Netflix. With regard to the fourth factor, Netflix alleges that the live performance adversely affects its ability to profit from its own planned release of a live event entitled “The Queen’s Ball: A Bridgerton Experience.” Given the commercial nature of the live performance, it is difficult to imagine a court siding with Barlow and Bear on a fair use defense.

Laches and Estoppel – Did Netflix waive its right to object to continued and/or further use?

Even according to the complaint filed by Netflix, they took little more than token efforts to stop the infringing actions of Barlow and Bear for more than a year and a half. The doctrines of laches and estoppel provide for the denial of claims of infringement where the claim is not acted on in a timely manner.

When asked about the impending release of the Unofficial Bridgerton Musical Album in a September 2021 interview, Barlow stated “Ask and you shall receive. Netflix was very, very supportive” suggesting that Netflix may have given permission. Netflix’s own complaint admits that they knew about Barlow and Bear’s Bridgerton inspired TikTok posts as early as December 2020. Although Netflix alleges that they repeatedly told Barlow and Bear that their works were not authorized, Netflix did nothing to stop those unauthorized works until after the live musical performance in July 2022. The complaint specifically states that Netflix believed that it “would be consulted before Barlow & Bear took steps beyond streaming their album online in audio-only format.” Is that an acknowledgement of permission? Time will tell.

How will the outcome of this case affect fan fiction in the future?

If the case proceeds to trial, which is rare in intellectual property litigation, the court’s decision could have a significant affect on fan fiction activities in the future. If the court sides with Brown & Barlow and finds that the doctrines of laches and estoppel prevent Netflix from asserting claims of copyright and trademark infringement, you can expect movie and music producers like Netflix to be far more aggressive in pursuing posts on TikTok and social media that make unauthorized use of their materials. On the other hand, if the court rules in favor of Netflix, there may be a chilling effect on fan fiction posts on social media in the future. While this may better protect the intellectual property interests of companies like Netflix, the support from fan fiction posts is certainly good for their brand too. In the end, the best interests of both parties is likely better served by maintaining the status quo rather than having the courts draw a line in the sand that may not be good for either.

ARTISTS, AUTHORS, COPYRIGHTS, INTELLECTUAL PROPERTY, Photography, SOCIAL MEDIA

SOCIAL MEDIA POST MAY FORFEIT COPYRIGHT PROTECTION

Posting your artwork or photographs to social media sites Instagram and Facebook (and possibly others) may forfeit your ability to prevent copying by other users. Best case scenario – you give control to the social media platform (Instagram or Facebook) as to how, where, when and under what circumstances the image can be reused. Worst case scenario – you grant a license to any other user on that platform to use the image and the works depicted therein without paying you or getting your approval as to how, where and when the image will be used.

BEST CASE SCENARIO – INSTAGRAM OR FACEBOOK HAS CONTROL OVER HOW, WHEN AND WHERE OTHERS CAN USE YOUR WORK

Copyright protection for a work of authorship (photographs, videos, graphic designs, paintings, sculptures, songs, etc.) attaches upon creation of the work and the author owns the exclusive right to control the use and reproduction of that work. Copyright ownership gives the holder of the copyright in an original work of authorship the following exclusive rights:

The right to reproduce and make copies of an original work;
The right to prepare derivative works based on the original work;
The right to distribute copies to the public by sale or another form of transfer, such as rental or lending;
The right to publicly perform the work; and
The right to publicly display the work.

The author may, by agreement, transfer that right to another party or parties. This is typically done by way of an assignment, where the author transfers ownership of a work to another party, or a license, where the author retains ownership but authorizes another party to use or reproduce the work. In the case of social media platforms such as Instagram and Facebook, the Terms and Conditions of Use, which every user must agree to before being granted access, have provisions governing the ownership and license of intellectual property rights, including copyright. The relevant portions of the Terms & Conditions for Instagram and Facebook as of the date of this blog are as follows:

INSTAGRAM Permissions from Terms of Use:

When you share, post, or upload content that is covered by intellectual property rights (like photos or videos) on or in connection with our Service, you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). This license will end when your content is deleted from our systems.

FACEBOOK Permissions from Terms of Use:

Specifically, when you share, post, or upload content that is covered by intellectual property rights on or in connection with our Products, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). This means, for example, that if you share a photo on Facebook, you give us permission to store, copy, and share it with others (again, consistent with your settings) such as service providers that support our service or other Facebook Products you use.This license will end when your content is deleted from our systems.

TRANSLATION OF LEGALESE:

Note that in both permissions, the license is described as being royalty-free. That means Instagram and Facebook don’t have to pay you a dime for authorized use. The language in both also indicate that the licenses are transferable and sub-licenseable. That means that Instagram and Facebook may, without the author’s further permission, authorize others to use the work at its discretion. Moreover, the rights granted by the license – hosting, using, distributing, modifying, running, copying, publicly performing or displaying, translating, and creating derivative works – when compared to the rights listed above that are granted to the author upon creation, strongly suggests that the licenses applies to ALL rights of the author. Bottom line – by posting on Instagram or Facebook, you are allowing them (for free) to do anything with your work that you otherwise could do yourself, AND you are allowing them to authorize anyone else they choose (also for free) to do the same.

COURT CASES DO NOT FAVOR THE CREATOR

This is not just my interpretation. Last year, in two separate cases, the United States District Court for the Southern District of New York came to the exact same conclusion! The first case, Sinclair v. Ziff Davis, LLC and Mashable, Inc., involved the use of professional photographer Sinclair’s copyrighted photograph entitled “Child, Bride, Mother/Child Marriage in Guatemala”. Sinclair posted the image on her Instagram account. Mashable contacted Sinclair to request a license, and Sinclair refused. Shortly thereafter, Mashable published an article on its website which included a copy of the copyrighted photograph by way of an embedded link to Sinclair’s Instagram post. Mashable filed a motion to dismiss the complaint for copyright infringement, alleging that it used the photograph pursuant to a valid sub-license from Instagram. The court agreed, finding that Sinclair, by creating an Instagram account, agreed to Instagram’s Terms of Use, and therefore “granted Instagram the right to sublicense the photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the Photograph.” In the second case, McGucken v. Newsweek, Inc., McGucken, a photographer who focuses on landscapes and seascapes, operated a public account on Instagram where he posted some of his photographs. One day after he posted a photograph depicting a large lake in Death Valley National Park, Newsweek published an article on its website incorporating the photograph from McGucken’s Instagram post through embedding. In ruling against McGucken, the court made flattering reference to the judge’s decision in Sinclair, and went on further to say that “insofar as [McGucken] contends that Instagram lacks the right to sublicense his publicly posted photographs to other users, the Court flatly rejects that argument. The Terms of Use unequivocally grant Instagram a license to sublicense [McGucken’s] publicly posted content.”

WORST CASE SCENARIO – ANY USER OF INSTAGRAM OR FACEBOOK CAN USE YOUR WORK HOWEVER, WHENEVER, AND WHEREVER THEY CHOOSE

In its original opinion, without any evidence of an agreement between Instagram and Mashable beyond the Terms of Use, the Court in Sinclair further concluded that “Instagram granted Mashable a sublicense to embed the Photograph on its website, and Mashable exercised its right pursuant to that sublicense.” After Sinclair moved for reconsideration, the Court took a step back from this ruling, but did not foreclose the possibility that such a license may exist solely on the basis of the Terms of Use. The Court on the request for reconsideration concluded that although Instagram’s Terms of Use clearly authorized Instagram to grant a sublicense to users like Mashable, the pleadings in that case did not contain sufficient evidence that Instagram exercised its right to grant a sublicense to Mashable. Similarly, the Court in McGucken denied Newsweek’s motion to dismiss on the grounds that “there is no evidence before the Court of a sublicense between Instagram and Defendant.” Both the Mashable and McGucken cases are still active and further rulings on this issue are expected in the forseeable future. It is interesting to note that the Court in McGucken specifically stated “that it may be possible to read Instagram’s various terms and policies to grant a sublicense to embedders”, leaving open the possibility that an artist or photographer who posts his or her works on Instagram automatically grants a blanket license to the copyrighted work to all other users!

HOW DOES AN ARTIST OR PHOTOGRAPHER PROTECT HIS OR HER WORKS IN LIGHT OF THESE RULINGS?

With roughly one billion active monthly users, Instagram is almost certainly the most popular public photo sharing platform in the world. This creates quite a dilemma for artists and photographers. Posting to Instagram and Facebook is a very inexpensive way to get their works in front of billions of potential patrons and customers. However, based on the Sinclair and McGucken decisions, the photographer or artist may be giving up his or her rights to receive royalties from other users who copy that work. Moreover, the artist or photographer clearly abdicates control over the work to the social media platform and/or other users of the platform. So what can an artist/photographer do to protect his/her rights? Click here to get our FREE REPORT with details and suggestions on actions that you can take to protect your rights.

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