Tattoo Artist Claims Copyright Infringement For Use of Tattoos in Video Games

Prominent tattoo artist, James Hayden, recently filed a lawsuit in federal district court against the creators of the video game series “NBA 2K” for reproducing his copyrighted tattoo works on the digital versions of famous basketball players without his permission. Specifically, the complaint alleges copyright infringement, unjust enrichment, and violation of the Visual Artists Rights Act against 2K Games Inc. Hayden further claims the defendants’ reproduction of his copyrighted works is so detailed that the “NBA 2K17” version includes a “MyPlayer” feature allowing users to move, scale, rotate, and place over 3,000 customizable tattoos. Thus, Hayden’s copyrighted tattoo works are reproduced each time the game is played.

Hayden’s client roster includes superstars such as LeBron James, Shaquille O’Neal, Danny Green, Tristan Thompson, and Kyrie Irving. The complaint provides by way of example several of the designs he has created for famous clients. For instance, many fans of LeBron James are clearly able to recognize his classic tattoos including “Gloria” and “Lion Design” appearing on his right shoulder and the stars on his left shoulder. Danny Green’s tattoo of a basketball player emerging from flames beneath the words “I Hold My Own” is another example. Further, Tristan Thompson’s replica of Michelangelo’s “The Creation of Adam” readable beneath the words “I Am My Brother’s Keeper” is yet another iconic work visible in the game.

There is minimal case law involving tattoos and copyright law. At a minimum, however, tattoos are protectable works of art under U.S. copyright law. As such, artists presumably own the copyright to any original work created by that artist. A tattoo artist thereby has the exclusive right to control the reproduction, distribution, and public display of its copyrighted work.

General Motors Patents Pedestrian Airbag

General Motors received a patent last month for an exterior airbag. The invention is aimed at providing protection to pedestrians. The airbag is mounted to the “fender region” and before the side door “to provide protection to a pedestrian from impacting the frontal area of a vehicle structure.” In particular, when an impact is detected, the airbag expels from the fender flap to cushion the windshield wipers and “other sharp pieces” on the front of the vehicle. While the most recent, GM is not the first to introduce pedestrian protection airbags. In 2012, Volvo showcased its V40 five-door hatchback featuring a pedestrian airbag spanning the windshield in a similar fashion. This past August, Mercedes-Benz received a patent for a similar A-pillar airbag. The development of this technology is unsurprising in light of the fact that pedestrian deaths account for roughly one-in-seven U.S. traffic deaths.

‘Tis the Season to Patent Christmas Decorations

As Americans are expected to spend nearly $6 billion on Christmas decorations this year, inventors flock to the patent office to carve out market exclusivity for their own renditions of the same. Indeed, the first patented artificial Christmas tree was issued in 1911 claiming a trunk upon which twisted wires are attached and arranged to simulate natural tree branches. In 1927, another tree patent was issued that depicts an artificial tree resembling those sold today. There also exists a number of patents relating to live trees. One entitled “Trunk Mounted Christmas Tree Water Level Measuring and Alarm Device” indicates to users when the tree is in need of water and includes an alarm that sounds when the water falls below the “low water” level. A recent patent issued in 2016 for a Christmas tree stand capable of accepting a range of sizes and shapes, which holds water and also stabilizes the tree. Moreover, one inventor patented a tinsel gun in 1970 claiming “devices for dispensing tinsel and the like adaptable for decorating Christmas trees.” While not many mistletoe-related patents have been filed, there is one for a “mistletoe supporting headband” which consists of a strip of material fastened to the head of the wearer and includes a “fork member” that allows the mistletoe to attach. Lastly, for atop the Christmas tree, a light-up star was patented in 1936 on an ornament comprising “a plurality of substantially conical sections joined together at their lower extremities to form a unitary body” and which also contains an electric light bulb within its body. #omnilegalgroup #patents #Christmas

Disney Tries to Knock Out Knock-Off Characters

In a two year-long battle with Disney, Marvel, and Lucas Film, Characters for Hire recently filed a motion for summary judgment asking the district court to find in its favor. The internet based entertainment-for-hire company was sued by Disney back in 2016 for allegedly infringing its iconic character trademarks. More specifically, Disney claims Characters for Hire is a “knock-off business…built upon the infringement of Disney’s highly valuable intellectual property rights.” The party entertainment company uses characters such as Mickey Mouse, Snow White, Iron Man, Captain America, Luke Skywalker, and Chewbacca in its appearances at themed events. Characters for Hire particularly disclaims any authorization by Disney of its promotion and sale of its characters. Rather, the company claims a reference to characters such as Frozen’s Elsa is “merely descriptive” of the services the consumer receives, that is, an actor hired to dress and behave like a famous animated character. Interestingly, back in 2003, Disney utilized a similar argument when it was sued by Caterpillar for using its distinct logo on construction equipment in “George of the Jungle 2.” Indeed, Disney contended its use was not intended to create a likelihood of confusion that the construction equipment company either endorsed or sponsored the film. Trademark tarnishment occurs when an infringing mark portrays the protected trademark in a negative way or is placed upon low quality goods. Disney argues Characters for Hire is thereby tricking the public into believing its characters are authorized by Disney and will be Disney-quality. Thus, tarnishment of a trademark threatens to diminish the commercial value of the mark as consumers associate the inferior quality of the infringer’s products with the trademark owner’s unrelated goods. #omnilegalgroup #trademark #Disney #Marvel #LucasFilm

Omni Legal Group would like to welcome Lara Petersen to its practice

After being sworn in to the California Bar earlier this week, Ms. Petersen will join the firm full-time as an Associate Attorney. Ms. Petersen earned her Juris Doctorate from Chapman University Dale E. Fowler School of Law, where she served as a Student Ambassador, Associate Editor of the Nexus Journal of Law and Policy, and two-term President of the Intellectual Property Law Society. While at Chapman, she was awarded a full-tuition merit scholarship and the CALI Excellence for the Future Awards in Patent Law & Practice, Pre-Trial Intellectual Property Litigation, Information Privacy Law, Legal Analysis Workshop, Torts, and Selected Topics in American Law. She received her Bachelor of Science in Neuroscience and Psychology and Bachelor of Science in Health Science in Physiology from The University of Arizona. In her spare time, Ms. Petersen enjoys staying active, going to the movies, and riding her beach cruiser along Venice Beach.

Did you know?

A company called NKOR is currently in the process of raising capital and developing a new application of blockchain technology and intellectual property. Blockchain technology allows registration of information in a secure, transparent, and efficient environment. Participants can transact data directly between one another without the need for intermediaries. The system first authenticates the uploaded data, which is then linked to a particular transaction and timestamped. The system also tracks any sharing of the data by other entities, providing a system for artists and inventors alike to share their works and immediately detect any infringing use. Copyright infringement is prominent as China has the highest online piracy rate of 91%, followed by Columbia with 90% and Russia with 80%. Moreover, 67% of digital piracy sites are hosted in North America and Western Europe and more than 75% of computers have at least one illegally downloaded application. This technology would decrease incidents of copyright infringement because artists and inventors can directly monitor the sharing of their works. Blockchain technology is being applied to many different industries as a means of effectively and safely conducting business. Indeed, the Blockchain Sharing Alliance is aimed at creating a blockchain patent sharing pool, which would both provide a system of licensing and trading certain patented blockchain technologies and also allowing the blockchain community to build and innovate with the IP assets.

TiVo and IP Protection: 1, Comcast: 0

A recent decision by the United States International Trade Commission constitutes a victory for the country’s intellectual property system. The ITC found set top boxes used by Comcast to be infringing TiVo’s patent rights. TiVo sued Comcast when the cable provider decided it would no longer pay to license TiVo’s patented technology but would instead use it for free. Meanwhile, other cable companies would continue to pay to license this technology from TiVo.

The technology at issue is based on two patents that essentially allow viewers to use their smartphones to control their set top boxes. U.S. Patent No. 8,006,263 for an “Interactive Television Program Guide with Remote Access” provided for a system for selecting television programs over a remote access link. This permits users to access program guide system features, such as parental controls and program reminders, without being physically present in their home. U.S. Patent No. 8,578,413, by the same name, discloses a similar system that allows users to adjust settings of multiple program guides at different locations within the home from a single remote device. Initially, TiVo alleged Section 337 infringement of 6 total patents but the ITC ultimately found only these two patents to have been violated. Accordingly, TiVo received a ruling for an exclusion order forbidding the importation of Comcast’s cable boxes into the United States as long as they contain the infringing technology.

The International Trade Commission is a quasi-judicial body whose duty is partially to investigate claims regarding intellectual property rights violations by imported goods. The Commission is comprised of U.S.-appointed commissioners and judges. Comcast manufactures its set top boxes outside the United States so the ITC has jurisdiction to impose such an exclusion order on the cable giant. Had Comcast manufactured its products in the United States rather than overseas, the ITC would have no jurisdiction over the dispute. However, TiVo would still have other legal remedies available for protection.

The United States has long been a leader in innovation across the globe. This is in part due to its strong patent system, written directly into our Constitution, which bolsters creativity and invention. Inventors want to reap the benefits of their work and protect it when someone steals it. Thus, they desire to be able to enforce their rights and protect their intellectual property. Without sufficient protection, innovation slowly withers away.

Apple Patents Smart Flip Phone

Apple recently filed an application with the United States Patent and Trademark Office for a bendable electronic device with a flexible display. This application suggests the tech giant is keen to manufacture a foldable smartphone but mentions the technology can be used on any type of electronic device with a display including laptop computers, tablet computers, wristwatches, or other gadgets. The claimed device contains a display that would fold along its axis allowing it to bend in two ways allowing it to be opened like a book or propped up on half of its screen. This application is amongst news that other technology rivals are planning to release similar foldable gadgets. Before Apple released its iPhone 8, Samsung announced plans to release a Galaxy X handset that is capable of folding out into a full-size tablet in 2018. Nokia also received a patent earlier this month for a smartphone capable of folding, which looks like a pocket mirror. Similarly, Lenovo and Xiaomi have showcased bendable devices in the last year. Moreover, Microsoft was granted a patent for a tablet that folded up to become a cellular phone. It is unclear whether Apple will actually make use of this patent as the company is known for filing decoy patents in order to throw competitors off its tracks. Indeed, the tech company previously obtained a patent for a screen that retracts into itself like a Fruit Roll-Up but has yet to bring such a device to the production stage. #omnilegalgroup #patent #Apple #smartphone #Samsung #Nokia #Microsoft #Lenovo #Xiaomi

Carving Out Patent Rights for Turkey-Related Inventions

After a year of struggle following their initial arrival at Plymouth Rock in 1620, the Pilgrims finally had a fruitful harvest due to the help of the Native Americans. To celebrate, the Pilgrims invited their Native American friends to a feast and Thanksgiving was born. In the spirit of this struggle faced by the Pilgrims, many inventors have concocted various methods and apparatuses to ease the struggle facing modern chefs. For instance, Alan B. Rogers et al. disclosed a method for preparing a frozen stuffed fowl in U.S. Patent No. 2,928,748, describing a poultry-stuffing process. Similarly, Peter A. Sieczkiewiz patented a method of preparing edible fowl (U.S. Pat. No. 2,844,844). People have also invented various ovens and containers for cooking the holiday’s signature fowl. In 1909, Joseph Mathy patented the first roasting oven that creates a steam essentially basting the turkey without the need for continual basting by the cook. U.S. Patent No. 4,700,618 depicts a meat smoker containing a fire box and smoker oven offset from the fire box. In the more recent trend of frying the bird, U.S. Patent No. 5,896,810 covers a turkey frying apparatus and U.S. Patent No. 5,758,569 involves a poultry frying apparatus designed such that the user is able to raise and lower the turkey without burning themselves. People have also applied for design patents covering ornamental aspects of the turkey cooking process. One such design patent is for a “stand for cooking chicken or turkey” disclosed in Publication No. D612693. Given the many products and services associated with Thanksgiving, the abundant number of turkey-related patents is unsurprising. #omnilegalgroup #patents #thanksgiving #turkey

Lululemon’s Design Patents v. Amazon’s New Line of Athleisure Attire

Amazon.com Inc. recently announced its intention to make a foray into private-label athletic attire. While Lululemon already faces competition from brands such as Nike, Under Armour, Athleta, as well as others, the e-commerce company may pose a novel threat with its price-driven strategy. Moreover, in order to manufacture this new line of sportswear, Amazon has contracted Eclat Textile Co., a top Lululemon supplier that helped the yoga-pant giant create its signature Luon fabric as well as newer materials. This may prove problematic for Lululemon as it lacks the proper intellectual property protection to halt Amazon from invading its market. Not only is Lululemon known for its high-end technical athletic apparel, the Canadian retailer has previously been deemed “the fashion industry’s biggest patent troll” due to its aggressive acquisition of design patents and protection of its product line therewith. While the athletic retailer owns over 45 patents on its sports gear, most of these patents are focused on design aspects rather than the actual fabric used in the garments. Design patents cover the ornamental, nonfunctional aspects of a product’s design and provide 15 years of exclusive use. In contrast, utility patents cover the useful features of a product, that is, the way it is used or how it works, and provide for 20 years of exclusivity. With primarily design patents in its portfolio, Lululemon cannot stop Amazon from manufacturing and selling fabrics that are nearly identical to Lululemon’s signature materials at a fraction of the price. While many industry experts have opined Lululemon will likely see its market share and profit margins diminished by Amazon, Lululemon’s CEO, Laurent Potdevin, dispelled such concerns through assurances that the athleisure company would continue to focus on innovation and the high-end of the market. Potdevin further claimed, “I think Amazon is mostly around commodity product. That’s not our sandbox.” #omnilegalgroup #patents #lululemon #amazon