LEGAL ISSUES FOR

WRITERS
THE PNWA 2016 WRITERS CONFERENCE
JASON CRUZ, CRUZ LAW,PLLC
WWW.JASONCRUZLAW.COM
WWW.SEATTLECOPYRIGHTANDTRADEMARK.LAWYER
JASON@CRUZLAWPLLC.COM
@JASONCRUZ

WHAT WILL YOU LEARN?

- WHAT IS A TRADEMARK?
- WHAT IS A COPYRIGHT?
- HOW FAIR IS FAIR USE?
- PUBLICITY AND PRIVACY RIGHTS
- NAVIGATING TERMS IN A CONTRACT

WHAT IS A TRADEMARK?
VIA THE UNITED STATES PATENT AND TRADEMARK OFFICE WEB SITE:
A TRADEMARK IS A BRAND NAME. A TRADEMARK OR SERVICE MARK INCLUDES ANY
WORD, NAME, SYMBOL, DEVICE, OR ANY COMBINATION, USED OR INTENDED TO BE
USED TO IDENTIFY AND DISTINGUISH THE GOODS/SERVICES OF ONE SELLER OR
PROVIDER FROM THOSE OF OTHERS, AND TO INDICATE THE SOURCE OF THE
GOODS/SERVICES.
ALTHOUGH FEDERAL REGISTRATION OF A MARK IS NOT MANDATORY, IT HAS SEVERAL
ADVANTAGES, INCLUDING NOTICE TO THE PUBLIC OF THE REGISTRANT'S CLAIM OF
OWNERSHIP OF THE MARK, LEGAL PRESUMPTION OF OWNERSHIP NATIONWIDE, AND
EXCLUSIVE RIGHT TO USE THE MARK ON OR IN CONNECTION WITH THE
GOODS/SERVICES LISTED IN THE REGISTRATION.

MORE ON TRADEMARKS
WHAT RIGHTS DO YOU HAVE?
EXCLUSIVE RIGHT TO USE THE MARK IN CONNECTION WITH PARTICULAR
GOODS OR SERVICES
TRADEMARK HOLDER MUST BE ONE TO ENFORCE
WHAT IS THE PURPOSE OF USE?
BRANDING PURPOSES
RETAIN THE RIGHTS TO THE TITLE OF YOUR WORK
HOW TO FILE?
- FEDERAL REGISTRATION: USPTO.GOV

WHAT IS COPYRIGHT?
COPYRIGHTS ARE WORKS OF AUTHORSHIP FIXED IN ANY TANGIBLE MEDIUM OF
EXPRESSION, NOW KNOWN OR LATER DEVELOPED, FROM WHICH THEY CAN BE
PERCEIVED, REPRODUCED, OR OTHERWISE COMMUNICATED, EITHER DIRECTLY
OR WITH THE AID OF A MACHINE OR DEVICE. (U.S. COPYRIGHT ACT, 102)

LITERARY WORKS;

MUSICAL WORKS, INCLUDING ANY ACCOMPANYING WORDS;

DRAMATIC WORKS, INCLUDING ANY ACCOMPANYING MUSIC;

PANTOMINES AND CHOREOGRAPHIC WORKS;

PICTORIAL, GRAPHIC AND SCULPUTURAL WORKS;

MOTION PICTURES AND OTHER AUDIOVISUAL WORKS;

SOUND RECORDINGS; AND

ARCHITECTURAL WORKS

MORE ON COPYRIGHTS
WHEN IS MY WORK PROTECTED?

THE MOMENT IT IS CREATED AND FIXED IN A TANGIBLE FORM.

DO I NEED TO REGISTER WITH THE COPYRIGHT OFFICE TO BE PROTECTED?

NO, BUT IT HELPS. COST $35.

CERTIFICATE OF REGISTRATION.

STATUTORY DAMAGES ($200-$150,000) AND ATTORNEYS FEES

HOW LONG DOES MY COPYRIGHT EXTEND?

POST -1978 LIFE PLUS 50 YEARS

PUBLISHED BETWEEN 1964-1978 28 YEARS FROM DATE OF PUBLICATION; 47 YEAR RENEWAL TERM IS
AUTOMATIC = 75 YEARS

WHAT IS COPYRIGHT INFRINGEMENT?

COPYRIGHT INFRINGEMENT OCCURS WHEN A COPYRIGHTED WORK IS REPRODUCED,
DISTRIBUTED, PERFORMED, PUBLICLY DISPLAYED, OR MADE INTO A DERIVATIVE WORK
WITHOUT THE PERMISSION OF THE COPYRIGHT OWNER. (FROM THE U.S. COPYRIGHT
OFFICE)
DERIVATIVE WORK IS AN EXPRESSIVE CREATION THAT INCLUDES, MAJOR
COPYRIGHTED-PROTECTED ELEMENTS OF AN ORIGINAL, PREVIOUSLY CREATED
FIRST WORK.
KEY IS WITHOUT THE PERMISSION OF THE COPYRIGHT OWNER.
DEFENSE TO COPYRIGHT INFRINGEMENT
FAIR USE

WHAT IS FAIR USE?

U.S. COPYRIGHT ACT 107
THE FAIR USE OF A COPYRIGHTED WORK, INCLUDING SUCH USE BY
REPRODUCTION IN COPIESFOR PURPOSES SUCH AS CRITICISM, COMMENT,
NEWS REPORTING, TEACHING (INCLUDING MULTIPLE COPIES FOR CLASSROOM
USE), SCHOLARSHIP, OR RESEARCH, IS NOT AN INFRINGEMENT OF
COPYRIGHT.

TYPES OF CASES:
WORK CAUSES COPYRIGHT HOLDER TO LOSE MONEY
COPYRIGHT OWNER IS OFFENDED BY YOUR USE

FAIR USE FACTORS

THE PURPOSE AND CHARACTER OF THE USE, INCLUDING WHETHER SUCH
USE IS OF A COMMERCIAL NATURE OR IS FOR NONPROFIT 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.

FAIR USE EXAMPLE THREES COMPANY

THREES COMPANY VS. 3C

DAVID ADJMI V. DLT ENTERTAINMENT, LTC., 97 F. SUPP.3D 512 (SDNY 2015)
ADJIMI WROTE 3C, A PLAY BASED ON THE 1970S TV COMEDY

SOUGHT DECLARATORY JUDGMENT THAT PLAY WAS NOT COPYRIGHT INFRINGEMENT CITING
PARODY

DLT ENTERTAINMENT (DLT) OWNS THREES COMPANY COPYRIGHT

FACTS

3C BEGAN RUN OFF BROADWAY PLAY IN JUNE 2012

AGREED THAT THE PLAY COPIES THE PLOT PREMISE, CHARACTERS, SETS AND SCENES FROM TV SHOW

DLT SENT CEASE AND DESIST LETTER TO ADJMI

ADJMI FILED LAWSUIT IN JANUARY 2014

CASED DECIDED ON PLEADINGS (NO DISCOVERY) IN FAVOR OF ADJMI

COURT EXAMINES 7 EPISODES OF TV SHOW AGAINST PLAY

COURT RULES IN
PARODYS
HUMOR
FAVOR OF
3C IS

ENTIRELY CONTINGENT ON
RECOGNIZABLE ALLUSION
TO THE ORIGINAL
WORK

THE PLAY IS HIGHLY

TRANSFORMATIVE
PARODY OF THE
TELEVISION SERIES THAT,
ALTHOUGH IT
APPROPRIATES A
SUBSTANTIAL AMOUNT OF
THREES COMPANY, IS A
DRASTIC DEPARTURE
FROM THE ORIGINAL THAT
POSES LITTLE RISK TO
THE MARKET FOR THE
ORIGINAL

FAIR USE EXAMPLE:

THE AUTHORS GUILD V. GOOGLE

AUTHORS GUILD V. GOOGLE, INC.,

804 F.3D 202 (2D. CIR. 2015)
CLASS ACTION LAWSUIT BROUGHT BY ORGANIZATION REPRESENTING
MULTIPLE WRITERS
GOOGLE HAS SCANNED MORE THAN 20M BOOKS
DELIVERED DIGITAL COPIES TO PARTICIPATING LIBRARIES, CREATED AN
ELECTRONIC DATABASE OF BOOKS AND MADE TEXT AVAILABLE FOR ONLINE
SEARCHING THROUGH THE USE OF SNIPPETS.

MANY OF THE BOOKS WERE UNDER COPYRIGHT. GOOGLE DID NOT SEEK
PERMISSION
QUESTION OF FAIR USE WAS EXAMINED BY THE COURT

MORE ON AUTHORS GUILD V. GOOGLE

COURT LOOKED AS TO WHETHER WORK IS TRANSFORMATIVE
DOES THE WORK ADD SOMETHING NEW, WITH A FURTHER PURPOSE OR
DIFFERENT CHARACTER, ALTERING THE FIRST WITH NEW EXPRESSION,
MEANING, OR MESSAGE?

COURT FOUND THAT GOOGLES USE WAS HIGHLY TRANSFORMATIVE.

USE OF BOOK TEXT TO FACILITATE SEARCH THROUGH DISPLAY SNIPPETS WAS
TRANSFORMATIVE

COURT CONCLUDES GOOGLE DID NOT ENGAGE IN DIRECT

COMMERCIALIZATION OF WORKS
U.S. SUPREME COURT DENIED TO HEAR APPEAL

OTHER LEGAL ISSUES TO CONSIDER

RIGHT OF PUBLICITY
RIGHT TO PROTECT LIKENESS FROM COMMERCIAL EXPLOITATION WITHOUT CONSENT AND
POTENTIALLY COMPENSATION
CAN YOU NAME A FICTIONAL CHARACTER AFTER A REAL PERSON?

WINTER VS. D.C. COMICS, 69 P.3D 673

WASHINGTON STATE STATUTE: RCW 63.60, ET AL.

RIGHT OF PRIVACY
YOU GET TO CONTROL INFORMATION

UNREASONABLE INTRUSION, APPROPRIATION OF ONES LIKENESS, UNREASONABLE PUBLICITY IN ONES

PRIVATE LIFE, AND PUBLICITY THAT UNREASONABLY PLACES ANOTHER IN A FALSE LIGHT BEFORE THE PUBLIC
(SECOND RESTATEMENT OF TORTS SEC 652)

RIGHT OF PUBLICITY/PRIVACY VS. COPYRIGHT

THE RIGHTS OF PUBLICITY AND PRIVACY ARESEPARATE FROM COPYRIGHT. WHILE COPYRIGHT
PROTECTS A COPYRIGHT HOLDERSPROPERTYRIGHTS IN THEIR WORK, PRIVACY AND PUBLICITY
RIGHTS PROTECTPERSONAL INTERESTSOF THE PEOPLE WHO ARE REPRESENTED IN, OR BY, THE
WORK.

WHAT TO LOOK FOR IN A

CONTRACT?
- PARTIES
- DURATION
- ASSIGNMENT
- JURISDICTION
- ARBITRATION
- ATTORNEYS FEES

THANK YOU !
FOR MORE INFORMATION:
JASON CRUZ
CRUZ LAW, PLLC
(206) 684-9462
JASON@CRUZLAWPLLC.COM
@JASONCRUZLAW
WWW.JASONCRUZLAW.COM
WWW.SEATTLECOPYRIGHTANDTRADEMARK.LAWYER