Tag: Business

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World Social Media Legal News Roundup

Law professor says social media can pose legal problems in Courtroom
Winnipeg Free Press
SASKATOON – The dean of law at the University of Saskatchewan says using social media can have negative consequences in the Courtroom – Business – Winnipeg Free Press.

Eight Ways Your Employee Social-Media Policy May Violate Federal law
AdAge.com (blog)
All employees have certain rights under federal law that social-media policies can’t restrict.

New Law to Force Identification of Trolls Set to be Unveiled
Technorati
Home / Social Media / Articles / New Law to Force Identification of Troll. … is behind the attacks on them online without having to resort to expensive legal action.

A blue wave of change Cleveland County law enforcers join move toward social media alerts
Norman Transcript
Lauri Stevens, a social media strategist at LAwS Communications, a Boston-area company, said law enforcement agencies nationwide are beginning to embrace social media.

Social media helped, hurt in hunt for suspect in triple shooting
Washington Post
Social media at times was a help, other times a hindrance in the search and eventual arrest of a suspect in the triple fatal shooting at an Alabama apartment complex.

Use social media, but use it responsibly, UAE conference hears
gulfnews.com
He said, “We do not monitor social media networks. People have the freedom to speak within the legal framework. There is no law specifically for twitter, but …

Police: Street gangs embrace social media, too
Kansas.com
Beard gave a presentation on gangs, the Internet and social media at last week’s Midwest Law Enforcement Conference on Gangs and Drugs, held in Wichita.

And…don’t forget to check out my presentation on the Law & Social Data panel at #TechWeek Chicago 2012.

The past few years have witnessed an explosion of legal and regulatory activity involving social and other new media. This session will examine several key areas, including copyright, trademark and related intellectual property concerns; defamation, obscenity and related liability; false advertising and marketing restrictions; gaming; data privacy issues presented by social media; and impacts of social media on employees and the workplace. Attendees will learn how to identify legal risks and issues before they become full-scale emergencies and how to develop appropriate policies and guidelines covering social media activity.

If you can’t make it, check out the Slideshare presentation here.

Advertising, Branding, Cloud, Compliance, Computing, Content Development, Data, Entrepreneurs, Facebook, FTC, Internet, Litigation, Media, Networks, Platforms, Privacy, Security, Technology, Uncategorized

Cloud Commerce Best Practices

The Tech industry is nothing without acronyms. Here comes cCommerce (e.g. Cloud Commerce) an obvious outgrowth of eCommerce. As companies move more aspects of their business to the “cloud,” beyond their own data storage, such as customer data and transaction processing, it is imperative to implement best practices to minimize risks and ensure customer trust.

Advertising, Branding, Content Development, Creative Content, Design, Entertainment, Entrepreneurs, Facebook, Finance, Internet, Marketing, Media, Mobile, Monetizing Content, Networks, Platforms, Production, Small Business, Social Media, Start-ups, Technology, Uncategorized

Socail Media, Search & Mobile Issues Discussed at ISSMM.org’s Converge2012

The Future Of Social Is Moving From Mere Participation To Analysis & Strategic Initiatives

I had the opportunity to attend and participate in Converge 2012 run by the Institute for Social, Search & Mobile Marketing. The theme was mastering the Business of Social Media. The Conference had a great selection of speakers (yours truly included) and topics that really resonated with the audience. I hope to summarize here some of the take-aways I learned at this conference.

Business Is Now Social

The last few years have seen an unprecedented shift in the adoption of social platforms for businesses to reach and interact with customers. What started as a “dipping our toes into the water” excerise has now matured into jumping in with both feet. Not surprisingly, the first few presentations of the conference focused on the effect of so much participation: greater focus on ROI. The presentations covered a lot of ground, but here are the key take aways from Day 1:

  • Businesses that fail to integrate the social channels may not exist in five years
  • Analytics are maturing in terms of both measurement tools and metrics
  • Better analytics are driving innovation by putting companies ahead of emerging issues instead of simply reacting to them
  • Creating a Social Media culture must come from the top and flow down
  • The growth of mobile platforms Is blurring the line between online and in-store experiences because of anywhere/anytime andpersonalized access

Day 1 concluded with the panel presentation in which I participated “Social Media “Venture Heaven” Money is flooding into social media, It’s time to understand why.” Key take-aways from this panel include the followig Data about the growth in Mobile:

  • As of May, 2012, mobile comprises 10% of Internet traffic, up from just 4% less than a year and a half ago
  • Mobile = ~8% of ecommerce
  • Monetization growing rapidly 79% is Apps, 21% is from ads
  • There has been a rapid increase in time spent relative money spent on ads; TV is roughly at parity while Mobile ad spend is about 1/10 of that
  • Drivers of growth in Mobile:
    • Devices
    • Platforms
    • Improved user interfaces
    • Sharing
    • More emphasis on design aestheticS

In a world of ubiquitous fast Internet,  mass blogging and micro-blogging, minute-by-minute status updates and customer complaints and recommendations, businesses need to focus on tailoring their product for their customers desires, rather that merely tolerating customer requests. Whatever device/platform customers use most will get the most attention from developers, accessory makers and potential new customers.

Advertising, Branding, Chicago, Compliance, Content Development, Copyright, Creative Content, Design, Entertainment, Entrepreneurs, Facebook, Fashion, Fashion Design, Fashion Law, Finance, Infringement, Internet, Legislation, Litigation, Marketing, Media, Production, Regulation, Small Business, Social Media, Start-ups, Technology, Uncategorized

Fashion Law: Legal News Roundup

Israel’s Ban on Ultra-Thin Models

FASHION-SAFRICA-NIGERIA-BAKARE
FASHION-SAFRICA-NIGERIA-BAKARE (Photo credit: Bohan Shen_沈伯韩)

 

The Atlantic

By Talya Minsberg A new Israeli law prohibits fashion media and advertising from using Photoshop or models who fall below the World Health Organization’s standard for malnutrition. When a 14-year-old girl delivered a 25,000-signature petition this week to Seventeen asking them to curb their use of Photoshop, the magazine issued a press statement that congratulated the girl on her ambition but was conspicuously silent on changing their editorial practices.

An Impossible Conversation About the Met’s Spring 2012 Costume Institute Exhibit

Huffington Post (satire)

So, culturally and historically, the reason women care so much about fashion is that until very recently, we weren’t allowed professional, legal or vocal ways of expressing ourselves. Fashion was a way of articulating our feelings about ourselves.

Small Aussie fashion label turns George Lucas legal threat into ‘Star …
Dallas News Small Aussie fashion label turns George Lucas legal threat into ‘Star Wars‘ clothing deal.

AsianFashionLaw | Page 5
Fashion lawyers are legal experts too. Sometimes I feel as though people think I am in design studios all day twiddling my thumbs as I look at models wearing …
www.asianfashionlaw.com/page/5/

Adidas-India’s ex-MD slaps legal notice on company – Fashion United
The Adidas-saga in India seems to be taking a different turn. – Fashion India News, Network, Business Community, fashion industry, international, platform for …
www.fashionunited.in/…/adidas-indias-ex-md-slaps-legal-notic…

Branding, Broadway, Chicago, Content Development, Copyright, Creative Content, Entertainment, Entrepreneurs, Marketing, Media, Monetizing Content, Musicals, Production, Theater

David Adler to Speak on Legal Issues In The Life Cycle of Theatrical Production

David M Adler, noted entertainment and creatival arts lawyer will be participating in the Visiting Artist Series with Reginald Lawrence (Shepsu Aakhu).

Tuesday, April 10, 2012 11:50 – 1:30 pm
DePaul Center – Room 80051 E. Jackson Blvd.Chicago, IL 60604
Lunch will be served.

Visiting Artist Reginald Lawrence (Shepsu Aakhu) will discuss the legal issues that he has faced in his multi-dimensional career as a playwright, producer, director, and arts educator.  In particular, he will focus on the life cycle of a theatrical production from dealing with authors to hiring actors, directors, and crew to mounting the finished production.  He will share his perspective on legal questions related to collaboration, intellectual property, and production credit.
Leading Chicago arts lawyer David Adler will join in the conversation, and Professor Margit Livingston will moderate.
For more information on the Visiting Artist Series, please click here.

Registration: General registration is $25 for the 1.5 hour CLE discussion.  To register, please visit http://www.regonline.com/reginaldlawrence.
DePaul students, faculty, and staff can register to attend for free by emailing Cecelia Story at cstory@depaul.edu.

DePaul University College of Law is an accredited CLE provider. This event has been approved for 1.5 CLE credits.

 

Advertising, Branding, Certification Marks, Compliance, Content Development, Copyright, Creative Content, Design, Entertainment, Entrepreneurs, Facebook, Fashion, Finance, Greenwashing, Infringement, Internet, Legislation, Litigation, Marketing, Media, Monetizing Content, Privacy, Production, Regulation, Small Business, Social Media, Start-ups, Technology, Trademarks

RSA 2012 Conference Podcast: Social Media Legal & Regulatory Compliance

The past few years have witnessed an explosion of legal and regulatory activity involving social and other new media. This session will examine several key areas, including copyright, trademark and related intellectual property concerns; defamation, obscenity and related liability; false advertising and marketing restrictions; gaming; data privacy issues presented by social media; and impacts of social media on employees and the workplace. Attendees will learn how to identify legal risks and issues before they become full-scale emergencies and how to develop appropriate policies and guidelines covering social media activity.

The RSA® Conference 2012 is coming up: February 27 – March 2, 2012 at the Moscone cEnter in San Francisco, CA.

Can’t make the Conference? Listen to the podcast here to get a sense of what you need to know.

Advertising, Branding, Content Development, Copyright, Creative Content, Design, Entertainment, Internet, Marekitng, Media, Social Media, Technology, Uncategorized

How Can Lawyers Use the Social Media Site Pinterest?

For those of us who try to immerse ourselves in technology and more recently, Social Media, the new “kid on the block” seems to be Pinterest. According to their site, “Pinterest lets you organize and share all the beautiful things you find on the web. People use pinboards to plan their weddings, decorate their homes, and organize their favorite recipes. Best of all, you can browse pinboards created by other people. Browsing pinboards is a fun way to discover new things and get inspiration from people who share your interests.”

Not surprisingly, Pinterest is receiving a lot of coverage on B2B and B2C blogs that provide guidance on the how and why Pinterest can be used by business. The next logical question for me is should Lawyers use Pinterest? if so, how?

Should Lawyers Use Pinterest?

The answer to the first question is simple: Yes, if it is useful to you. Pinterest is a social bulletin board allowing users to “pin”, or save, useful information. It leverages social networks and enables users to track, organize and share products or other content discovered online.  The site allows users to subdivide content by category such as travel, books or food. Finally, axiomatic of all social media is the interaction, allowing friends to follow and view your boards and comment on the items that you’ve posted, or re-pin them on their own boards.

How Can Lawyers Use Pinterest?

The answer to the second question is less simple:

Pinterest
Image by stevegarfield via Flickr

Simply put, Pinterest is an image content curation site where one can create “boards” to which they can add images and comments around a common theme. What’s really interesting is that once one begins using Pinterest, this pen up a whole new way to dialogue with people. Users will “re-pin” your items and it creates an opportunity to contact the user and ask what it about your content that prompted them to re-pin it.

While I am still new to Pinterest, I see it as another valuable social media tool to engage and interact with people. My Pinterest page can be found here.

Advertising, Branding, Content Development, Copyright, Creative Content, Design, Entertainment, Entrepreneurs, Fashion, Infringement, Legislation, Marekitng, Media, Social Media

Congress Close to Protecting Fashion Designs under Copyright Law

Fashion design
Image by London College of Fashion short courses via Flickr

On July 13, 2011, Congress once again took up the the so-called “Fashion Bill” a/k/a the “Innovative Design Protection and Piracy Prevention Act,” H.R. 2511 (“IDPPPA”). This version of the Bill would amend the Copyright Act to extend certain protections to fashion designs.

Extension of design protection to fashion designs

The major effect of the law would be the extension of design protection to fashion designs, by amending § 1301(a) to provide that “A fashion design is subject to protection under this chapter” and by amending § 1302(b) to include “an article of apparel” in the definition of “useful articles” subject to protection. The bill would make clear that for purposes of Chapter 13 a fashion design is the appearance as a whole of an article of apparel, including its ornamentation. The bill elaborates on what would constitute “apparel” for purposes of Chapter 13:

  1. an article of men’s, women’s, or children’s clothing, including undergarments, outerwear, gloves, footwear, and headgear;
  2. handbags, purses, and tote bags;
  3. belts; and
  4. eyeglass frames.

Term of protection will be limited

The term of protection for fashion designs would be only 3 years. Proponents of the legislation have explained that the purpose of the legislation is to protect designs of haute couture during the period of time in which such high-end clothing is sold at premium prices of thousands of dollars and to prevent others from marketing clothing with those designs at substantially lower prices during that initial period, thereby undercutting the market for a hot new fashion design. Because the peak demand for such designs is relatively short-lived, a 3-year term is considered adequate to satisfy the designer’s reasonable expectation of exclusivity.
Advertising, Branding, Certification Marks, Content Development, Creative Content, Entrepreneurs, Infringement, Litigation, Marekitng, Small Business, Technology, Trademarks, Uncategorized

Trending @ The Trademark Office: Bona Fide Intent

Nintendo of America HQ headquarters
Image via Wikipedia

Recent Decisions Highlight Need For Objective Evidence of Intent to Use Mark

Two recent decisions at the Trademark Trial & Appeal Board (TTAB) indicate what may be an emerging trend in Trademark practice: challenges based on lack of evidence of a “bona fide” intent to use a mark for which a Section 2(b) Intent-to-Use (ITU) application has been filed. The two relevant decisions are Kaplan v. Brady and Nintendo of America, Inc. v. Adar Golad.

Every ITU Applicant makes a legal averment, under oath, that it has a “bona fide” intent to use the mark in commerce. “To show a bona fide intent to use, there must be ‘objective evidence,’ that is evidence in the form of ‘real life facts and by the actions of the applicant.’ J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, Sec. 19:14 (4th ed. 2009). There should be some ‘definite’ (if not necessarily ‘concrete’) plan by applicant. For example, ‘written plan of action for a new product or service,’ or a ‘re-branding of an existing line of goods or services.’ Id.”  In the two cited cases, lack of such definite evidence proved fatal.

The first decision is a Cancellation action where one party (Kaplan) sought to have the registration of another party (Brady)  cancelled. Kaplan’s claim for cancellation of Brady’s FUNNY-FACE mark was based on the existence of Kaplan’s ITU application for the mark FUNNY FACE FIZZY BLAST!  Although the parties exchanged several motions, of interest here is the Board’s determination that Kaplan lacked standing to prosecute the cancellation because Kaplan had “produced no documentation supporting his alleged bona fide intent to use such mark other than a “completely phony” and undated business plan that is merely a “slightly altered version” of a business plan for use of the mark BAKE OFF! on a “cleansing product.”

The second decision is an Opposition proceeding where one party (Nintendo) sought to prevent the registration of another party’s (Golad) mark by opposing the application.  Golad filed an ITU application to register the mark FLASHBOY for “plug and play interactive video games … comprised of computer hardware and software.” Nintendo opposed the registration on the ground that FLASHBOY is likely to cause confusion with its Registration for the mark GAMEBOY for game equipment, etc.

During discovery, Golad admitted that he did not have a business plan or any other documentation reflecting plans to “advertise, manufacture or otherwise use the mark FLASHBOY in commerce on the goods for which applicant seeks registration.” That was enough to establish a lack of bona fide intent.

Summary: Practice Tip

Both applicants and trademark counsel need to be aware of the requirement that an ITU application be supported by at least some definite evidence of the applicant’s bona fide intent to use the mark. While it remains unclear whether  a business plan alone is sufficient to meet this burden, an applicant must be able to produce some type of evidence, through documents or testimony, indicating plans to advertise, manufacture, distribute, license or otherwise use the mark.

Advertising, Branding, Chicago, Content Development, Copyright, Creative Content, Entrepreneurs, Infringement, Litigation, Media, Monetizing Content, Production, Small Business, Start-ups, Technology, Trademarks, Uncategorized

Create a “Watertight” Software Application Design & Development Contract

Careful Planning Yields Dependable Results

Rapid growth in the high-tech sectors, specifically regarding the Internet, mobile computing and related software and hardware, presents complex issues for small-business owners and their lawyers. Not surprisingly, many issues arise in contract negotiations between Web site or Application owners and their contracted developers.

Application development and hosting contracts are at the core of today’s new media practices. With the exponential growth of ecommerce and mobile computing, these agreements are tailored to cover all critical aspects of the online experience for all involved parties.

Negotiated poorly, contracts can open a Pandora’s box of unintended, unforeseen and unfortunate consequences. Negotiated wisely, Application development and hosting agreements provide predictable boundaries in a medium in flux. Risks, rights and responsibilities are constantly being redefined.

Well-drafted licensing agreements address both today’s realities and tomorrow’s possibilities.

Spell it out:

  1. Deliverables
  2. Project Schedule
  3. Intellectual Property Rights
  4. IP Registration
  5. Confidentiality
  6. Disclaimers
  7. Warranties

Once design and functional elements of an Application or web site have been defined, some businesses develop the Application internally with full-time programmers and project managers. However, the vast majority of small business owners hire third-party Application or software development firms to refine their visions into an interactive, reliable online entity.

An Application development agreement is used to define the development, performance, ownership and service expectations of the parties. Critical issues include understanding by both sides of short- and long-term expectations, designers’ proficiency with technical issues such as software and hardware interoperability, and ensuring project goals are clearly stated.

Key elements include:

Deliverables. The agreement must set forth, in as much detail as possible, deliverables expected to result from the developer’s efforts.
This includes, but is not limited to, a description of functional and design specifications; user interface requirements; operational flowcharts; software descriptions; training materials and documentation; network accessibility information such as passwords; interactive elements; information-capturing capabilities; browser and platform compatibilities; electronic commerce requirements; audio/video format requirements; linking structures; database structure requirements; code standards; screen and file layouts; general “look and feel” elements.

Project schedule. After the scope of the project is defined and mutually understood, parties need to address the schedule. This schedule should set forth development milestones, testing and acceptance periods, and payment timelines.

For example, the first phase usually entails completion of the coding of an Application or Web site’s basic functional components. After coding, the parties test the functional components for defects or errors. If the product thus far is accepted, then either the developer is paid for the completed portion or the client pays a deposit toward completion of the next phase.

The Web site owner needs to be realistic when establishing a schedule for milestones and testing, and acceptance procedures. Time periods for defect corrections need a built-in payment reduction component. In other words, if certain functional aspects do not test properly and the site owner provides written notification to the developer of the defect, the developer shall have a specified time — for example, one week — to correct the defect. If a correction is not made, total development costs will be reduced incrementally.

Intellectual property. Creation of an Application or Web site typically involves a variety of intellectual property rights issues. From purely aesthetic design elements to the structure, sequence and organization of database systems, user interfaces and graphics, the rights are ultimately very valuable. For this reason, ownership must be clearly established in the development agreement.

Although developers prefer contract language that exclusively grants them ownership rights to their creations, the Application or Web site owner should secure ownership of most of these rights through negotiation. Notably, under 17 U.S.C. Section 101 (Copyright Act of 1976), project deliverables can be designated “works for hire” in the Web development agreement. The Application or site owner may acquire rights to all customized creations, while the developer receives a license to use certain scripts and/or tools developed that are likely to be reused on future projects.

In addition, development also often involves the third-party intellectual property rights. In these circumstances, the site owner’s legal counsel should seek to secure the broadest possible scope of the license grant. In particular, the owner should seek a license grant that won’t create restrictions concerning how, where and by whom the licensed rights can be used. Licenses to software updates released during a specific period of time should also be sought.

On a related note, if a site owner obtains a license to use particular software, a source code escrow should be secured from the licenser. This enables the site owner to access the source code under certain defined circumstances, such as the licensor’s failure to perform or the licensor’s bankruptcy. Source code escrows ensure the site owner can correct and/or modify the software under circumstances in which the licensor itself is unable to do so.

Brand/Trademark/Domain name  registration. If the developer will register the domain name, the site owner should insist on being identified as owner of the domain name. In addition, the owner should be designated as administrative, technical and billing contact. If the application will be “branded” or if it the owner feels the name should be protected, the owner should consult with a qualified lawyer to determine whether the name can be protected and the requirements of securing the broadest range of protection.

Confidentiality. Development of an Application or Web site is integral to an ecommerce business, and the process involves an exchange of confidential information between the Application or Web site owner and the developer. Confidential information should be defined. The agreement should set forth the obligations of the receiving party not to disclose or otherwise use the specified information.

Disclaimers and limits of liability. Developers often demand extensive liability disclaimers and/or limits. For example, a developer might disclaim liability for failure to protect credit card or other sensitive user information. A developer can also seek to limit total liability under all circumstances to the amount paid under the development agreement for any damage resulting from the developer’s negligence, intentional acts and/or omissions.

These disclaimers are usually one-sided and overly broad. Therefore, legal counsel should scrutinize these provisions to ensure the Application or Web site owner is not exposed to unfair risks.

Disclaimers or liability limits for intentional conduct — as well as broad disclaimers regarding permanent data loss — should almost never be accepted.

Warranties. Both parties should be required to warrant that content used, including software, links, meta tags, frames and business models, does not infringe copyrights, trademarks and/or patents of any third party.

Regarding this, the developer should specifically warrant that all necessary third-party licenses in third-party products incorporated into the Application or Web site have been secured.In light of recent patents for business models — such as Amazon.com’s one-click buying method — this warranty provision should be carefully examined. In fact, where appropriate, the Web site owner should seek patent counsel advice to ensure third-party patent rights are not infringed.

No surprises

A savvy Application or Web site owner will ask the developer to warrant that the Application or Web site or specific applications will operate “free from any substantial defects” for a specific period of time, such as 90 days after final delivery. In such cases, the developer should be required to warrant that any additional efforts to correct the problem will not materially alter the Web site owner’s original goals.

The developer should also be required to warrant that industry “best practices” have been followed in development, safety and security measures and performance criteria — for example, optimal loading time of Web pages.

Finally, as with all services contracts, the developer should warrant that:

  • The services will be performed in a professional and workmanlike manner and that none of such services or will be inconsistent with any obligation the developer might have to others.
  • The developer will employ adequate personnel and deliver the services in accordance with the specifications set forth in the agreement.
  • All work shall be the developer’s original work, and none of the development, use, production, distribution or exploitation thereof will infringe, misappropriate or violate any intellectual property or other right of any person or entity.
  • The developer has the authority to provide the Web site owner with the necessary assignments and rights.
  • The developer is duly-organized, fully-licensed, validly exiting and “in good standing” in the jurisdiction of its operation and every jurisdiction within which it provides services.