Kent State eMedia Lecture 7-March-2011

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Advanced EMedia Management
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Anti-Cybersquatting Consumer Protection Act

• Creates a cause of action that is confusingly
  similar to or dilutes a trademark or name.
• Must show a bad faith intent to profit from
  similar domain.

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Anti-Cybersquatting Consumer Protection Act
Evidence of Bad Faith

• Intent to divert consumers
• Domain is not used with legitimate business
• Offer to sell domain with no intent to use it
• Distinctiveness of original mark or name

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Bad Faith Diverting Customers
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Bad Faith For Sale
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Anti-Cybersquatting Consumer Protection Act No
Bad Faith

• Consists of same name, e.g. McDonaldsPlumbing.com
  
• Prior use in bona fide offering of service

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Why is this OK?
http//www.nydailynews.com/index.html
http//www.dailynews.com/
http//www.thedailynews.com/
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Advertising KeywordsProblems with Buying
Keywords,and selling Keywords
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Buying Keywords Sample

• Automobiles, Akron, hybrid, fuel-efficient

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Keywords Results

• Automobiles, Akron, hybrid, fuel-efficient

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1-800 Contacts vs. Lens.com
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1-800 Contacts
Keywords Contact lenses
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1-800-Contacts v. Lenses.com

• Mark used in commerce, even though invisible.
• If link did not incorporate 1-800 Mark, likely no
  confusion.

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1-800-Contacts

• Here are the problems
• 1-800 Discount Contacts wwwLens.com Great
  Prices. Huge selection. Free Delivery.
• 1-800 Contacts Simple online ordering of lenses.
  Compare our prices and save. www.JustLenses.com.

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1-800 Contacts Review

• Lens purchased 8,016 keywords
• 800c Contacts, 800 Lense, 1-800-Lens
• Agency bought 1800 contact lenses, etc.
• 1800Contacts. Heres the ad
• Name brand contacts, low prices.
  www.justlenses.com.

No use of 1800Contacts in ad!
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Buying Keywords

• Binder vs. Disability Group

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Exception to Copyright Infringement

• Fair Use

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Exception to Copyright Infringement

• Fair Use
• the purpose and character of your use.
• Is it used for commercial use?
• Is it uses for news or criticism?
• Is it used for education?

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Exception to Copyright Infringement

• Fair Use
• the nature of the copyrighted work.
• Are you copying expression?
• E.g. Fiction novel?
• Song?
• Are you copying facts fact?

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Exception to Copyright Infringement

• Fair Use
• the amount and substantiality of the portion
  taken.
• Most significant portion?
• Only small portion to make a point?

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Exception to Copyright Infringement

• Fair Use
• the effect of the use upon the potential market.
• Original author could have monetized it.
• Transformative. It doesnt compete.

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Exception to Copyright Infringement
Is it TRANSFORMATIVE?
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Satire is NOT Fair Use
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Exception to Trademark Infringement

• There is no way to readily identify a kind of
  product without using the trademarked name AND
• Only as much of the mark is used as is reasonably
  necessary AND
• There is no suggestion of sponsorship or
  endorsement by the trademark owner.

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Summary - ExceptionsTrademark Nominative or
fair Use of mark a defense
Is reproducing the screen shot OK?
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Summary Exceptions
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Summary Exceptions

• Digital Millennium Copyright Act
• Protects Internet Service Providers if
• Involves user generated content
• No actual knowledge
• Notice and take down process
• Prompt take-down
• Did not have direct commercial benefit with
  direct control over activity

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(No Transcript)
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Summary Excceptions

• Communications Decency Act
• Immunity for Tort liability (defamation, invasion
  of Privacy, etc.) for
• User generated content
• No actual knowledge
• It does not apply to copyrights and trademarks

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Conveying Rights
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Contracts

• Meeting of the Minds
• Offer and Acceptance
• Mutual Consideration
• Performance
• Note Action can create contract

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Step One Conveying Rights in Content

• Three Models
• Assignment Selling it.

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Step One Conveying Rights in Content

• Three Models
• Assignment Selling it.
• Owners sells copyright to a new owner.
• Hybrid Commission Work (assignment included)

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Step One Conveying Rights in Content

• Three Models
• Assignment Selling it.
• Owners sells copyright to a new owner.
• Hybrid Commission Work (assignment included)
• License Rents the Work, but keeps ownership.

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Model 1 Assignment

• Exclusive rights transfer of ownership, or
  giving an exclusive license, must be in writing.
• No writing required for non-exclusive right, but
  you should do it anyway.

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Assignment

• When used? A commissioned work, e.g., an artist
  creates a logo for a company that will be used as
  a trademark.
• Photographer or writer is creating a custom item
  of content.

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Sample Assignment Language

• FOR GOOD AND VALUABLE CONSIDERATION, receipt
  John Doe ("Assignor"), located at 123 Main
  Street,
• hereby irrevocably transfers and assigns to Jane
  Doe ("Assignee) all right (whether now known or
  hereinafter invented), title, and interest,
  throughout the world, including any copyrights
  and renewals or extensions thereto, in the
  manuscript It Aint Love But It Aint Bad

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Work Made for Hire Idaho

• Author and College intend this to be a contract
  for services and each considers the products and
  results of the services to be rendered by Author
  hereunder (the Work) to be a work made for
  hire.

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Work Made for Hire

• If for any reason the Work would not be
  considered a work made for hire under applicable
  law, Author does hereby sell, assign, and
  transfer to College, all right, title and
  interest in and to the copyright in the Work

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Model 3 Licenses

• License An agreement that gives a user the right
  to use copyright work.
• In other words, a lease, or rental.

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Types of Licenses

• Exclusive.
• Must be in writing.
• Non-Exclusive.
• Can farm out content to multiple users.
• Implied (by actions).

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Exclusive License

• 2. GRANT OF LICENSE. Subject to the terms and
  conditions of this Agreement, LICENSOR hereby
  grants to LICENSEE the exclusive license to use,
  market, distribute and sell the EDUCATIONAL
  MATERIALS in the TERRITORY and the exclusive
  right to sublicense others to market, distribute
  and sell the EDUCATIONAL MATERIALS in the
  TERRITORY. This grant is to the exclusion of
  others, including the LICENSOR.
• Why Exclusive?
• Right to control use and misuse of works.
• Could be for limited time, get all rights back.
• Get paid more for exclusive right.

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Non-Exclusive License

• Owner hereby grants Organization a non-exclusive
  right to copy certain materials described in
  Attachment A (the Material), in whole or in
  part, and to incorporate the Material, in whole
  or in part, into other works (the Derivative
  Works) for Organizations internal use only.
• Why Non-Exclusive?
• Useful for republishing rights content may
  already have appeared elsewhere.
• Pay less for non-exclusive use.

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Implied License
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Tribune Freelance Agreement
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Tribune Freelance Agreement

• Step 1 The Recital
• BACKGROUND

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Tribune Freelance Agreement

• 1. PROVISION AND PUBLICATION OF THE WORK. The
  Photographer shall provide the Work to KRT via
  email, FTP, or any agreed-upon electronic method
  by the deadline set forth above.

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Tribune Freelance Agreement

• 2. GRANT OF LICENSE. . . . You agree that your
  works are works for hire, and you hereby assign
  and transfer to the Publisher an undivided,
  one-half ownership interest to your works that
  you submit to the Publisher from time to time..

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Tribune License Agreement

• The Publisher will not be obligated in any way to
  pay or otherwise account to you for any
  royalties, fees or other payments received by the
  Publisher in connection with the Publishers use,
  sale, license, distribution or other transfer of
  the works covered by this letter. (Hmm..Joint
  Author language??)

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Tribune Freelance Agreement

• Similarly, you will not be obligated in any way
  to pay or otherwise account to the Publisher for
  any royalties, fees or other payments received by
  you in connection with your use, sale, license,
  distribution or other transfer of the works
  covered by this letter that are permitted by the
  terms of this letter.

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Tribute License Agreement

• You agree not to assert any moral rights or
  similar rights against the Publisher with respect
  to such works.

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Tribune Freelance Agreement

• The Photographer grants KRT a worldwide
  non-exclusive, perpetual, royalty-free license to
  
• (i) reproduce, distribute, publicly perform and
  publicly display the Work, in any media, whether
  now known or hereafter created (including,
  without limitation, electronic distribution and
  inclusion in archival databases) etc.

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Tribune Freelance Agreement

• Section 3 In every copy of the Work, KRT agrees
  to give credit to the Photographer, in the same
  manner as it accords credit to all other artists
  and copyright owners whose works are included in
  KRT services.

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Tribune Freelance Agreement

• 4. PHOTOGRAPHERS REPRESENTATIONS AND WARRANTIES.
  The Photographer represents and warrants that
• (i) he or she has the right and authority to
  enter into this Agreement (Legal capacity)
• (ii) . . . the Work . . . will not infringe upon
  or misappropriate the intellectual property or
  other proprietary rights of any third party

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Tribune Freelance Agreement

• 4. PHOTOGRAPHERS REPRESENTATIONS AND WARRANTIES.
  The Photographer represents and warrants that
• (iii) the Work does not contain any matter that
  is defamatory or that otherwise violates the
  privacy or publicity rights of any person
• (iv) the Photographer will use his or her best
  efforts to ensure that the Work is true and
  accurate and
• (iv) the Photographer is not now, nor will he or
  she be during the term of this Agreement, under
  any obligation to a third party that prohibits,
  limits or otherwise adversely affects his or her
  ability to perform his or her obligations under
  this Agreement.

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Tribune Freelance Agreement

• 5. INDEMNITY. Each party will defend, at each
  partys expense, any claim, suit, or proceeding
  brought against the other based on a claim that
  arises out of or is related to its breach of any
  warranty or representation under this Agreement,
  and will pay all damages, costs, and expenses
  incurred by the other party in connection with
  such claim.

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Tribune Freelance Agreement

• 6. PAYMENT TO PHOTOGRAPHER AND EXPENSES. In full
  and final consideration of the rights granted to
  KRT in this Agreement, KRT will pay the
  Photographer the fees, if any, set forth in
  Exhibit A on the terms set forth therein.

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Tribune Freelance Agreement

• 7. TERM AND TERMINATION. This Agreement shall
  remain in effect for one year from the effective
  date, and shall renew for additional one-year
  periods, unless
• terminated by either party upon 30 days written
  notice prior to the end of the then-current term.
  
• Either party may terminate this Agreement with or
  without cause, upon 30 days prior written notice.
  
• Note short, 30-day cut means theres no need to
  have breach of contract provision.

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Tribune Freelance Agreement

• Boilerplate Terms Choice of law
• 8. MISCELLANEOUS. This Agreement shall be
  governed by and construed in accordance with the
  substantive laws of the United States and the
  State of California, without regard to or
  application of Californias conflicts of law
  principles.
• Note Parties can agree to venue.

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Tribune Freelance Agreement

• Merger Clause
• This Agreement constitutes the entire agreement
  between the parties with respect to the subject
  matter of this Agreement . . .

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Tribune Freelance Agreement

• Amendment Clause
• Any . . .amendment or other modification . . . of
  this Agreement shall be effective only if in
  writing and signed by both parties.

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Tribune Freelance Agreement

• Independent Contractor
• This Agreement shall not be construed as creating
  an agency, partnership, joint venture or any
  other form of legal association between the
  parties and each party is an independent
  contractor.
• Why? No vicarious liability right to control.

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Tribune Freelance Agreement

• Successor clause
• This Agreement shall be binding upon and inure to
  the benefit of the parties and their respective
  successors . . .
• (Assignment Clause) that Photographer may not
  assign any of its rights, obligations, or
  privileges under this Agreement without the prior
  written consent of KRT.

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Tribune Freelance Agreement

• Severability Clause.
• If any court of law, having the jurisdiction to
  decide on this matter, rules that any provision
  of these Terms is invalid, then that provision
  will be removed from the Terms without affecting
  the rest of the Terms. The remaining provisions
  of the Terms will continue to be valid and
  enforceable.