Saint Patrick’s Day Intellectual Property

Saint Patrick’s Day started as a religious holiday for honoring the patron saint but is now a more general celebration of Irish culture. Certain items commonly associated with the holiday are subject to intellectual property protection. Indeed, in 1993, shamrock shaped sunglasses, worn by many celebrators, were patented. Additionally, “Green Coloured Beer and Method for Production Thereof” is also the subject of a patent using blue food coloring to transform the golden color of beer to green. Guinness has also taken steps to protect its iconic Irish product by trademarking their signature Irish harp logo. The company was also the first to patent the “beer widget” as “Improved Method of and Means for Dispensing Carbonated Liquids from Containers.” The widget is a small sphere, similar to a ping pong ball, aimed at achieving the perfect carbonation and consistency of beer. Lastly, every child’s favorite leprechaun, “Lucky” of Lucky Charms cereal has been registered as a trademark in addition to the cereal’s slogan “they’re magically delicious.” Moreover, the “Multi-Colored Aerated Confectionary Products,” or marshmallow candy, have been patented. #omnilegalgroup #patents #trademarks #StPatricksDay

Omni Legal Group Would Like to Congratulate Lara Petersen on Passing the Patent Bar!

Omni Legal Group would like to congratulate Lara Petersen, its newest attorney to pass the Patent Bar examination. The United States Patent and Trademark Office Registration Examination, or Patent Bar, tests the applicant’s knowledge of applicable patent laws, rules, and procedures, and ability to analyze factual situations and properly apply these principles. Passage of this exam allows individuals to practice before the USPTO in the presentation and prosecution of patent applications. To sit for the test, each applicant must possess the legal, scientific, and technical qualifications necessary for him or her to render valuable service to clients seeking to obtain patent protection. With an average pass rate of about 50%, the Patent Bar ranks among standardized tests with one of the highest failure rates. As such, it is worth noting that Ms. Petersen passed the exam on her first attempt. She now joins the three other experienced patent attorneys at Omni Legal Group.

Did you know?

Not only is California an ideal place for filmmakers due to the temperate weather conditions and beautiful scenery, in the early 20^th century it also provided a safe haven from patent owners like Thomas Edison. In 1908, Edison helped form the Motion Picture Patents Company (MPPC) which held 16 major film patents. Representing a virtual monopoly on the movie industry, these patents covered nearly everything including projectors, cameras, and film stock. Further, the MPPC vigorously protected its patents by suing any pirates who screened or produced films without its permission and without paying for a license to use the patented equipment. In response to this negative environment, independent filmmakers including Carl Laemmle of Universal Pictures and Adolph Zukor of Paramount Pictures migrated to Hollywood, California ushering in a new era of American film. Judges in California were known for being unfriendly to patent owners and enforcement across the country otherwise proved burdensome. By 1915, Laemmle completed construction of his movie metropolis, Universal City, which is now home to the largest film production facility in the world and a theme park.

Just Sue It: Nike Faces Copyright Infringement Lawsuit

In 2015, photographer Jacobus Rentmeester sued Nike, Inc. alleging copyright infringement for the company’s use of its iconic “Jumpman” logo. Last week, the Ninth Circuit Court of Appeals affirmed the District Court’s dismissal of the action.

The photograph of Michael Jordan was first captured by Rentmeester in 1984 and appeared in Life Magazine as part of a photo essay. Inspired by ballet’s grant jete pose, Jordan’s unusual stance is similar to a dancer’s leap with legs extended, one foot forward and the other back. The photographer entered into a limited license agreement with Nike whereby Nike was provided with color transparencies of the photograph for “slide presentation only.” Nike went on to reproduce its own version of the photographer, this time with Michael Jordan donning Nike shoes and the Chicago skyline in the background as a nod to his team, the Chicago Bulls. Later, the signature “Jumpman” logo emerged featuring a solid black silhouette that outlines Jordan’s figure as it appears in the Nike photograph.

To establish copyright infringement, a plaintiff needs to prove (1) that he owns a valid copyright in the work and (2) that the accused copied protected aspects of that work’s expression. While the Ninth Circuit agreed Rentmeester owns a valid copyright in the photograph, the court found he cannot copyright the pose itself, thereby preventing others from photographing a person in the same pose. Instead, Rentmeester is entitled to protection only for the way in which the pose is expressed in the photograph. Otherwise unprotectable elements such as camera angle, timing, and shutter speed, are protectable only to the extent of the photographer’s selection and arrangement thereof. Thus, while both photos embody a similar idea or concept, they express it in different ways so Nike cannot be liable for copyright infringement.

Oscar Nominee Sued For Copyright Infringement

Less than one week before the Academy Awards, Guillermo del Toro, Fox Searchlight and others associated with the nominated film “The Shape of Water” are being sued for copyright infringement. Specifically, the children of late Pulitzer Prize-winning playwright Paul Zindel claim the film is “indisputably derived” from the 1969 play “Let Me Hear You Whisper.” The play’s main narrative focuses on a lonely cleaning woman who bonds with then attempts to rescue a dolphin from a research facility where she works. Identically, an inter-species romantic relationship develops between the main character of “The Shape of Water,” Elisa, and “The Asset” in the film. The complaint also cites shared minor but memorable elements. Plaintiffs allege the film’s producer Daniel Kraus has previously stated on the record that he envisioned the concept for the movie the same year an adaptation of “Let Me Hear You Whisper” aired on national television. Moreover, Guillermo del Toro collects original drawings by Stephen Gammell, the illustrator for the 1974 publication of the play. However, del Toro claims to have never read nor seen the play. The complaint alleges defendants never sought to obtain a license from plaintiffs of motion picture and ancillary rights to the play nor was Zindel credited. Fox Searchlight issued a statement asserting the baselessness of the claims and noting the interesting timing right before the Oscars voting cycle ends, suggesting the suit is a mere attempt to pressure the studio to settle quickly. #omnilegalgroup #copyright #academyawards

Taylor Swift Shakes Off Copyright Infringement Suit

A California District Court judge granted a motion by Taylor Swift to dismiss the action against her for failure to state a claim upon which relief can be granted, suggesting the singer may be able to shake off this lawsuit. Songwriters Sean Hall and Nathan Butler brought this copyright infringement suit against Swift alleging she stole the lyrics to their 2000 song “Playas Gon’ Play” and included them in her 2014 hit song “Shake It Off.” The songwriting duo, who have collaborated with the likes of Justin Bieber and Pink, do not allege any musical elements, such as rhythm or melody, were usurped by Swift. In particular, “Playas Gon’ Play,” written for the girl group 3LW, includes the lines “Playas, they gonna play” and “Haters, they gonna hate,” while “Shake It Off” features the iconic chorus “Cause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate.” In dismissing the action, the judge asserted neither of the respective lyrics were creative enough to warrant copyright protection. The Copyright Act protects only “original works of authorship.” According to the Court, “by 2001, American popular culture was heavily steeped in the concepts of players, haters, and player-haters…The concept of actors acting in accordance with their essential nature is not at all creative; it is banal. The alleged infringed lyrics are short phrases that lack the modicum of originality and creativity required for copyright protection.” The plaintiffs have been allowed leave to amend their complaint to include more cited similarities between the two compositions but the Court expressed it “is extremely skeptical” as to their ability to do so successfully. #omnilegalgroup #copyright #TaylorSwift #ShakeItOff

All You Need Is Love…And IP

Roses are Valentine’s Day’s signature flower. Indeed, these are the most often sent flower on the holiday and the subject of the first plant patent issued by the USPTO. This “Climbing Rose,” invented by Henry F. Bosenberg of New Jersey, is characterized by its champagne-colored roses and everblooming quality. Interestingly, Mr. Bosenberg was not even a plant breeder but rather, a landscape gardener. Under patent law, the inventor of a plant is the person who first appreciates its distinctive qualities and asexually reproduces it. Since this first plant patent in 1931, the USPTO has granted nearly 6,000 plant patents overall. Overall, roses account for over 4% of issued plant patents. In 2016 alone, 80 plant patents were granted for new and distinct types of roses. In 1944, John H. Bonhard from Illinois was the first to patent a carnation. The invention began as a pink carnation and was propagated through multiple generations to achieve a new variety known for early blooming, a rich bright “Castillian Red coloring,” and “unusually large blooms with heavy petalage.” Flowers and other Valentine’s-themed intellectual property constitute a popular category at the USPTO in the form of not only patents but also a number of trademark registrations. Hallmark owns trademark rights for its signature gold crown emblem. Moreover, Godiva and Russell Stover chocolates, and Sweethearts conversation heart candy are all covered by trademark registrations. Turns out, for these individuals and entities, all they need is love…and intellectual property rights. #omnilegalgroup #patents #trademarks #ValentinesDay

Omid Khalifeh Selected As a Top 3 Patent Attorney in Los Angeles by ThreeBestRated

Omid Khalifeh, Omni Legal Group’s Principal Patent Attorney, was recently selected as a Top 3 Patent Attorney in Los Angeles by ThreeBestRated®. Three Best Rated is an independent, third party business review site that utilizes a 50-point inspection system to identify top businesses in a city. This system compiles its ratings based on reputation, history, complaints, ratings, satisfaction, nearness, trust, cost, and general excellence. Three Best Rated focuses on purely local businesses rather than large corporations with local offices. Moreover, the service is free and companies do not pay to be listed. As a result of being awarded this top honor, Omid Khalifeh is near featured on his own profile page on the ThreeBestRated.com website and Omni Legal Group has been provided with a badge indicating it is a top-rated law firm in Los Angeles.

Did you know?

Amazon was recently awarded two patents for a wristband capable of pinpointing the location of warehouse workers and their hand movements in real time. Originally filed back in 2016, the invention proposes to utilize ultrasonic technology placed around a building, such as a warehouse, and on the wristband itself allowing a management module to provide haptic feedback in order to steer the employee toward the proper area. While commentators are concerned that Amazon is merely trying to track employees’ toilet breaks, the tech giant claims the invention is designed solely to facilitate the process of checking inventory and fulfilling orders by “free[ing] up their hands from scanners and their eyes from computer screens.”

AI and IP

Artificial intelligence is quickly propagating across all industries. With these technological advances comes the requirement that businesses refocus their intellectual property strategies to accommodate these changes. While the situation is not quite as dire as that depicted in Blade Runner’s dystopian future where bioengineered humans are running about, the futuristic world of AI is here. Indeed, Aiva is an artificially intelligent music generator capable of composing emotional soundtracks for films, video games, commercials, and the like who learned the art of music composition by reading through works created by Mozart, Beethoven, Bach, and other great composers. Aiva, in addition to other AIs, will likely generate millions of original works. However, the current United States legal regime does not provide clear protection for works created by a computer.

The Intellectual Property Clause of the U.S. Constitution expressly aims “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Thus, this idea of encouraging the production of creative works by incentivizing authors is embedded in our nation’s legal framework. The issue then becomes to whom inventorship can be attributed when it is in fact a computer doing the creating, filming, and ordering of literary, audio, and visual content. One option is to place the works created without human input in the public domain, allowing all to benefit therefrom. Another option includes crediting ownership to those who are most responsible for the arrangements that led to the output by the AI. This latter option would mimic the Copyright, Designs, and Patent Act in the UK which explicitly recognizes computer generated work as copyright protectable and interprets the statute to provide rights to the person who made the arrangements necessary for the work to be produced. It remains clear that the U.S. will need to evolve its IP laws to clarify the position of AI in its regime.