Legal Issues for

Writers
Pacific Northwest Writers Conference
July 2014


What will you learn?
Basic knowledge of Trademark and Copyright law
Social Media issues
Libel, Defamation and Slander
Right of Publicity


What is a Trademark?
Via the United States Patent and Trademark Office web site:
o 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.
What is a 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)
o Literary Works;
o Musical Works, including any accompanying words;
o Dramatic works, including any accompanying music;
o Pantomines and choreographic works;
o Pictorial, graphic and sculputural works;
o Motion pictures and other audiovisual works;
o Sound recordings; and
o Architectural works
What is not protected?
o Ideas
Grosso v. Miramax, 383 F.3d 965 (9th Cir. 2004) (Rounders case)
o Facts


More on Copyrights
When is my work protected?
o The moment it is created and fixed in a tangible form.
Do I need to register with the Copyright Office to be protected?
o No, but it helps. Cost $35.
Certificate of Registration.
Statutory damages ($200-$150,000) and Attorneys Fees
o Poor Mans Copyright
How long does my Copyright extend?
o Post -1978 life plus 50 years
o 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)
o Derivative work is an expressive creation that includes, major
copyrighted-protected elements of an original, previously created first
work. (Obama Hope poster)
Key is without the permission of the copyright owner.
Defense to Copyright Infringement
o Fair Use


Fair Use
U.S. Copyright Act 107
o 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:
o Work causes copyright holder to lose money.
o 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.
Social Media Issues
Facebook
o Terms of Service Check Privacy Settings
Instagram
o Use of Photos
Twitter
o Who owns a Tweet?
Agence France Presse v. Morel, 769 F. Supp. 2d 295 (2011)
Ellen selfie Who owns it?
o Bradley Cooper?
Ellens Selfie
What can you use for
free?
Wikimedia Commons, Flickr, etc.
o Know the rules
Stock Photos
o Release? Underlying rights?
Personal Web sites
o Ask nice and confirm in writing
Remember Attribution

Libel, Defamation and
Slander
Libel
o A false statement of fact that inures or harms the reputation of a
living person or an existing business.
o A statement must be published and read by someone other than
the person defamed.

Defenses to Libel
o Truth

Defamation and Slander,
cont.
Defamation
o Communication of a false statement that harms the reputation of
another (individual, business, group, etc.)
Elements of Defamation
o False statement
o Defamatory meaning
o Identification of the Individual
o Publication
Public vs. Private Figure
Example
o Jesse Ventura case



Ventura v. Estate of Chris Kyle
Defamation and Slander,
cont.
Defenses to Defamation
o Truth
o Opinion
o Reviews and Critiques
o Consent
o Privilege

Slander Spoken Defamation

Right of Publicity
The right of publicity gives every individual the right to control and profit from
the commercial use of his or her name or likeness.
o Right of publicity protects against the loss of financial gain by giving a person the
right to prevent the unauthorized use of his or her name for commercial purposes.
o The Help case
First Amendment protection
o Free Speech v. Right of Publicity
Newsworthiness Exception
o Unauthorized biographies
o Limits Disclaimer needed
Incidental Use Exception
Faction Be careful
Right of Publicity law varies from state to state
o Revised Code of Washington 63.60, et seq.
Best Practices
Ask for a release
Attribution
Document your work
Questions
For further inquiries, do not hesitate to contact me.
Phone: (206) 684-9462
Email: jason@cruzlawpllc.com
Twitter: @jasoncruzlaw