Copyright Law Archives - Omni Legal Group Blog

Do You Need a Patent Before Pitching Investors? What California Founders Should Know

Many startup founders assume they need an issued patent before approaching investors, while others rush into fundraising conversations without taking any steps to protect their invention. The reality lies somewhere in between. Although most investors do not expect an early-stage company to have an issued patent, they do expect founders to understand the value of their intellectual property and have a strategy for protecting it. For many startups, intellectual property is one of the company’s most valuable assets and often plays a significant role in determining valuation, competitive advantage, and long-term growth potential.

The challenge is that discussing an invention with investors frequently requires revealing information that could impact future patent rights if not handled properly. A pitch presentation, product demonstration, conference appearance, website launch, or even certain conversations with potential investors may constitute a public disclosure under patent law. Once an invention is publicly disclosed, the clock may begin ticking on important filing deadlines, and in some countries, patent rights can be permanently lost altogether. This creates a delicate balancing act for California founders who need to attract investment while simultaneously protecting the innovations that make their businesses valuable.

Before sharing proprietary technology, product concepts, or breakthrough innovations with potential investors, founders should carefully evaluate their patent strategy and understand the risks associated with early disclosure. Taking proactive steps before fundraising can help preserve valuable intellectual property rights, strengthen investor confidence, and position the company for long-term success.

Risks of Disclosing an Invention Too Early

Patent rights are based largely on novelty. Publicly disclosing an invention before filing for patent protection can create significant risks.

In the United States, inventors generally have a one-year grace period after certain public disclosures to file a patent application. However, many foreign countries do not provide a similar grace period. Public disclosure before filing may immediately destroy patent rights in those jurisdictions.

Investor presentations, product demonstrations, conference presentations, websites, social media posts, and marketing materials can all potentially qualify as public disclosures. Even conversations with potential investors may create risks if the information is shared without appropriate confidentiality protections.

For startups seeking global growth opportunities, preserving international patent rights is often a critical consideration.

Do Investors Expect a Patent?

Most early-stage investors do not expect a startup to have an issued patent before seeking funding. Patent prosecution often takes several years, making it unrealistic for many young companies to wait until a patent is granted before fundraising.

However, investors frequently want to see that founders have taken reasonable steps to protect their intellectual property. A patent filing can demonstrate that the company is thinking strategically about protecting its innovations and building long-term value.

In some industries, such as software, medical devices, biotechnology, artificial intelligence, and advanced manufacturing, a strong patent strategy may be particularly important to investors evaluating competitive advantages.

When to Consider a Provisional Patent Application

Many California startups choose to file a provisional patent application before beginning significant investor outreach.

A provisional application is generally less expensive and less formal than a nonprovisional patent application. It allows inventors to establish an early filing date while providing up to twelve months to further develop the invention, evaluate commercial opportunities, and prepare a full patent application.

For startups preparing pitch decks, attending accelerator programs, or engaging in fundraising discussions, a provisional application can provide an important layer of protection before extensive disclosures occur.

When a Nonprovisional Application May Make Sense

In some situations, filing a nonprovisional patent application before fundraising may be appropriate.

A nonprovisional application begins the formal examination process at the United States Patent and Trademark Office and may signal a greater commitment to patent protection. Companies with mature technology, strong supporting documentation, or immediate commercialization plans may choose this route from the outset.

The appropriate strategy often depends on factors such as budget, business goals, investor expectations, and the complexity of the invention.

Have Questions? Speak to a Patent Lawyer in Los Angeles About Protecting Your Innovation

For many startups, the decision of when to file a patent application can have a lasting impact on the company’s future value, fundraising opportunities, and competitive position in the marketplace. While an issued patent is not always required before approaching investors, failing to protect an invention before making disclosures can create significant risks that may be difficult, and sometimes impossible, to reverse. The right patent strategy can help preserve valuable intellectual property rights, strengthen investor confidence, and demonstrate that your company is taking proactive steps to protect its most important assets.

Investors often view intellectual property as a key component of a startup’s long-term growth potential. A well-planned patent strategy can signal innovation, create barriers to entry for competitors, and provide a stronger foundation for future licensing, partnerships, acquisitions, and investment opportunities. On the other hand, weak intellectual property protection, ownership issues, or poorly timed disclosures can raise concerns during due diligence and potentially impact valuation discussions.

At Omni Legal Group, our Los Angeles patent attorneys work closely with startups, entrepreneurs, inventors, and emerging companies to develop intellectual property strategies that align with both business goals and fundraising objectives. We help clients evaluate patent pathways, conduct comprehensive prior art searches, assess patentability, prepare provisional and nonprovisional applications, and develop filing strategies designed to maximize protection while supporting future growth.

Before you pitch your innovation to investors, make sure you understand how to protect it.

Contact Omni Legal Group today to schedule a confidential strategy session with one of our Los Angeles patent lawyers. Call 855.433.2226 to speak with our legal team and take proactive steps toward protecting your invention, strengthening your intellectual property portfolio, and positioning your company for long-term success. To learn more, visit www.OmniLegalGroup.com.

AI Voice Replication and Rights of Publicity: Who Owns Your Voice in the Age of Artificial Intelligence?

Artificial intelligence is changing the way we create content, but it is also raising important legal questions about identity and ownership. One of the biggest concerns today is AI voice replication, a technology that can clone a person’s voice with surprising accuracy. From celebrity impressions to virtual customer service agents, AI-generated voices are becoming increasingly common. However, when someone’s voice is copied without permission, it can create serious legal issues involving rights of publicity, privacy, and intellectual property law.

Recent headlines have shown just how real this issue has become. In 2024, actress Scarlett Johansson publicly raised concerns after a voice assistant developed by a major technology company allegedly sounded remarkably similar to her voice, despite her declining an offer to participate. Similarly, musicians, actors, and content creators have expressed concern about AI tools that can reproduce their voices from just a few seconds of audio. Even in popular culture, fans have used AI to generate songs featuring the voices of famous artists who never actually recorded them. While these creations may seem entertaining, they can blur the line between innovation and unauthorized exploitation.

The legal concept most often associated with AI voice cloning is the right of publicity. In simple terms, the right of publicity gives individuals control over the commercial use of their name, image, likeness, and in many cases, their voice. A landmark example came from the famous case involving singer Bette Midler, whose distinctive voice was imitated in a commercial without her permission. The court ruled that using a sound-alike voice could violate an individual’s rights when it is closely associated with their identity. Today, AI technology has amplified these concerns because it can create near-perfect digital replicas that are often difficult for consumers to distinguish from the real person.

Businesses should be especially cautious when using AI-generated voices in advertising, marketing campaigns, social media content, or customer-facing applications. Even if a company never directly uses a celebrity’s name, an AI-generated voice that resembles a recognizable public figure could expose the business to legal claims. Beyond celebrities, entrepreneurs, influencers, podcasters, and everyday professionals may also have valuable rights tied to their voice and personal brand. As AI technology evolves, lawmakers and courts across the country are actively examining how existing intellectual property laws apply to digital voice replication and whether additional protections are needed.

The rapid growth of artificial intelligence presents exciting opportunities, but it also creates new risks for businesses and content creators. Understanding rights of publicity, intellectual property protection, and AI compliance is becoming increasingly important for anyone using emerging technologies. Whether you are developing AI-powered products, creating marketing content, or building a personal brand, taking proactive legal steps today can help avoid costly disputes tomorrow. Working with an experienced intellectual property attorney can help ensure your innovations move forward while respecting the legal rights of others.

Concerned About AI Voice Cloning or Unauthorized Use of Your Identity?

As AI voice replication technology becomes more sophisticated, protecting your voice, identity, and personal brand is no longer just a concern for celebrities and public figures. Business owners, influencers, content creators, athletes, executives, podcasters, and professionals across virtually every industry may have valuable rights tied to their voice and likeness. When AI tools can recreate a recognizable voice from only a few seconds of audio, the potential for misuse, false endorsements, consumer confusion, reputational harm, and lost commercial opportunities increases dramatically.

Whether you are concerned about unauthorized AI-generated content, protecting your rights of publicity, safeguarding your personal brand, or ensuring your business complies with evolving AI regulations, proactive legal guidance can help you stay ahead of emerging risks. As lawmakers and courts continue to address the challenges created by artificial intelligence, individuals and businesses that take action now will be in a far stronger position to protect their interests in the future.

At Omni Legal Group, our Los Angeles intellectual property attorneys help clients navigate the rapidly evolving intersection of AI, publicity rights, intellectual property law, and brand protection. We work with entrepreneurs, creators, athletes, entertainers, influencers, startups, and businesses to develop legal strategies designed to protect identity-based assets, mitigate risk, and preserve valuable commercial rights in an increasingly digital world.

Your voice is part of your identity. Your identity is part of your brand. Protect both before someone else exploits them.

Contact Omni Legal Group today to schedule a confidential strategy session with one of IP lawyers in Los Angeles. Call 855.433.2226 to speak with our legal team and learn how proactive legal planning can help protect your voice, likeness, brand, and future opportunities in the age of artificial intelligence. Visit www.OmniLegalGroup.com to learn more.

What Every College Athlete Should Know About NIL Rights Before Signing a Deal

College sports have changed dramatically since student athletes gained the right to profit from their Name, Image, and Likeness (NIL). Today, college athletes can earn money through sponsorships, social media partnerships, brand endorsements, autograph signings, and other promotional opportunities. While these deals can be exciting and financially rewarding, they also come with legal risks that many young athletes may not fully understand. Before signing any NIL contract, it is important to know your rights, understand the terms of the agreement, and avoid mistakes that could impact your future opportunities.

One of the most important things college athletes should review is the scope of their NIL contract. Not all endorsement deals are created equal. Some agreements may appear straightforward but contain restrictions that limit an athlete’s ability to work with competing brands or pursue future sponsorship opportunities. For example, a local sports nutrition company may ask for exclusive rights that prevent an athlete from partnering with any similar brand for years. Without carefully reviewing the contract language, an athlete could unknowingly give up valuable future income. Understanding key provisions such as exclusivity clauses, payment terms, contract duration, and termination rights is essential before signing any NIL agreement.

Social media partnerships are another area where college athletes should exercise caution. Many NIL deals involve posting content on platforms like Instagram, TikTok, YouTube, or X. Athletes often focus on the compensation offered but overlook their responsibilities under the agreement. A contract may require a specific number of posts, approval of content before publication, or strict deadlines. Failure to meet these obligations could result in lost payments or even legal disputes. High-profile athletes and influencers have faced public backlash and contractual issues after failing to disclose sponsored content properly, highlighting the importance of understanding both legal and marketing requirements before promoting a brand online.

Student athletes should also be aware of how NIL agreements can affect their personal brand and long-term career goals. Consider how professional athletes such as LeBron James and Caitlin Clark have carefully built brands that extend far beyond their athletic performance. Even pop culture examples demonstrate the value of protecting one’s image. Characters like Rocky Balboa have become iconic brands through licensing, merchandising, and media rights. While most college athletes are not negotiating multimillion-dollar deals, every endorsement agreement contributes to their public image and reputation. Signing with the wrong company or agreeing to unfavorable terms can create challenges that follow an athlete long after graduation.

Perhaps the most common legal mistake student athletes make is assuming that NIL contracts are “standard” and do not require legal review. In reality, every agreement should be evaluated carefully to identify potential risks, hidden obligations, and opportunities for negotiation. Whether the deal involves a local business, a national brand, or a social media collaboration, obtaining legal guidance before signing can help protect an athlete’s rights and maximize the value of their NIL opportunities. As NIL rights continue to evolve, college athletes who take a proactive approach to contract review and intellectual property protection will be in the strongest position to capitalize on their success both on and off the field.

Ready to Secure Your Future and Protect What You’ve Built?

Your name, image, and personal brand are valuable assets. Taking the right legal steps today can help prevent costly disputes, protect future opportunities, and ensure you maintain control over the reputation you’ve worked hard to build. Whether you need guidance reviewing NIL contracts, negotiating endorsement deals, protecting trademarks, registering copyrights, securing patents, or safeguarding trade secrets, proactive legal planning is one of the smartest investments you can make.

At Omni Legal Group, our experienced Los Angeles intellectual property attorneys help entrepreneurs, startups, creators, and athletes develop strong legal strategies that protect their ideas, brands, and business interests. We work closely with clients to identify risks, secure legal protections, and create solutions designed for long-term success.

Do not wait until someone profits from your name, copies your work, or takes advantage of an unfavorable agreement. Contact Omni Legal Group today to schedule a confidential consultation with a trusted IP lawyer in Los Angeles and learn how to protect what matters most.

Call 855.433.2226 or visit www.OmniLegalGroup.com to learn more.

Top Legal Mistakes Athletes Make in NIL Agreements (And How to Avoid Them)

The landscape of Name, Image, and Likeness (NIL) has completely reshaped collegiate athletics, transforming student-athletes from amateur competitors into powerful personal brands with real commercial value. In today’s digital economy, athletes are no longer limited to earning opportunities after turning professional. Through sponsorships, endorsements, social media partnerships, licensing deals, and branded content, college athletes can now monetize their identity while still competing at the collegiate level. Nowhere is this shift more visible than in Los Angeles, where sports, entertainment, influencer culture, and business opportunities frequently intersect.

With these opportunities, however, comes a new level of legal and financial complexity that many athletes are unprepared to navigate. NIL agreements are often presented as “standard” contracts, but in reality, many contain aggressive provisions that can impact an athlete’s future earnings, brand control, transfer options, and long-term professional opportunities. A poorly negotiated agreement signed today can create lasting consequences long after the original sponsorship deal ends.

At Omni Legal Group, we have seen a growing number of athletes unknowingly sign contracts that heavily favor brands, agencies, or sponsors. From overly broad exclusivity clauses and perpetual usage rights to vague deliverables and hidden liabilities, these agreements can significantly limit an athlete’s flexibility and future value. Protecting your name, image, and likeness is not just about securing a deal, it is about protecting the business and long-term potential tied to your personal brand. Before signing any NIL agreement, athletes should understand the legal risks involved and take proactive steps to avoid the following common pitfalls.

The “Perpetual Rights” Trap

One of the most dangerous clauses we see is the grant of rights “in perpetuity.” This means the brand can use your name and image forever, even after you’ve gone pro or retired, without ever paying you another dime. This is why you should emphasize negotiating a fixed term (the duration of the deal) and an exhaustion period.

Overly Broad Exclusivity

Exclusivity is common, but it must be narrowly tailored. If you sign an agreement with a local car dealership that prohibits you from working with any “transportation company,” you might be legally barred from a much larger deal with an airline or a ride-sharing app later. You can help avoid this issue by ensuring non-compete clauses are specific to a product category (e.g., “domestic trucks”) rather than an entire industry.

Vague Deliverables and “Scope Creep”

Does the contract ask for “regular social media posts,” or does it specify “two 30-second TikTok videos and one Instagram carousel per month”? Vague language leads to “scope creep,” where a brand demands more of your time without additional pay.

You can help avoid this issue by defining the deliverables with surgical precision. Include the platform, format, length, and the number of allowed revisions.

Ignoring Tax and “In-Kind” Liabilities

Many athletes forget that NIL income is taxable. Even worse, non-cash compensation, like a free car lease, expensive apparel, or high-end equipment, is considered taxable income at its fair market value. If you receive $10,000 worth of gear, the IRS expects a cut of that value in cash.

You can help avoid this issue by setting aside roughly 25-30% of all cash earnings for taxes and keep meticulous records of all “free” products received.

Transfer Portal and Eligibility Conflicts

California law provides robust protections for athletes, but NCAA rules and school-specific policies still apply. Some NIL contracts include “loyalty” clauses that penalize you or require you to pay back money if you enter the transfer portal.

You can take actions to avoid this issue by ensuring your contract includes a “compliance clause” stating that the agreement is void or adjustable if it conflicts with evolving NCAA regulations or your school’s athletic department policies.

Why Legal Review is Essential

One of the biggest mistakes an athlete can make is assuming a contract is “standard.” In the NIL world, basically every provision in an agreement is negotiable. A professional legal review ensures that you aren’t just signing a deal for today but protecting your identity for tomorrow.

Before you sign on the dotted line, make sure you retain the services of a knowledgeable Los Angels business lawyer who understands the intersection of California contract law and sports regulations.

Have Questions About an NIL Agreement? Protect Your Brand Before You Sign Anything

NIL opportunities can create life-changing financial and branding opportunities for athletes, but the wrong contract can also create long-term legal and financial problems that are difficult to undo. Many NIL agreements contain complex language involving exclusivity rights, licensing terms, content ownership, compensation structures, renewal provisions, and restrictions that may impact future sponsorships, transfer opportunities, or even professional career options. What may appear to be a simple endorsement deal today can carry significant consequences for your future earning potential and personal brand.

Athletes should never assume a contract is “standard” simply because it comes from a recognizable company, agency, or sponsor. In reality, many NIL agreements are heavily drafted to protect the brand, not the athlete. Without proper legal review, athletes may unknowingly give away long-term rights to their name, image, likeness, social media content, or future commercial opportunities for far less than those rights are worth.

At Omni Legal Group, our Los Angeles business and intellectual property attorneys help athletes, influencers, creators, and entrepreneurs navigate the rapidly evolving NIL landscape with clarity and confidence. We work closely with clients to review NIL contracts, negotiate endorsement agreements, analyze exclusivity provisions, protect publicity rights, and develop long-term strategies designed to strengthen and preserve personal brand value.

Your NIL rights are not just part of your athletic career; they are part of your long-term business future.

Before you sign away valuable rights, make sure you fully understand what is at stake.

Contact Omni Legal Group today to schedule a confidential strategy session with a Los Angeles business lawyer. Call 855.433.2226 to speak directly with our legal team and take proactive steps toward protecting your brand, your opportunities, and your future earning potential. To learn more, visit www.OmniLegalGroup.com.

Can Someone Use Your Name or Image Without Permission? Understanding NIL and Publicity Rights

In today’s digital world, your name, image, and likeness can carry serious value. From athletes signing sponsorship deals to influencers building personal brands on TikTok and Instagram, identity has become a form of intellectual property. But what happens when someone uses your photo, voice, or persona without permission? That is where NIL rights and publicity rights come into play. These legal protections help individuals control how their identity is used for commercial purposes, especially in advertising, merchandise, social media, and entertainment. For business owners, creators, athletes, and public figures, understanding these rights is more important than ever.

NIL, which stands for Name, Image, and Likeness, became a national conversation after college athletes gained the ability to profit from their personal brands. For years, NCAA athletes could not legally earn money from endorsements, despite schools and video game companies making millions using their likenesses. One of the most well-known examples involved former college quarterback Sam Keller, who sued over a football video game that featured players closely resembling real athletes without compensation. The lawsuit helped reshape the conversation around athlete compensation and NIL rights. Today, college athletes can sign sponsorship deals, promote products on social media, and build businesses around their identity while still competing in sports.

Publicity rights extend beyond athletes and apply to entertainers, influencers, entrepreneurs, and even everyday individuals in certain situations. These laws generally prevent companies or individuals from using someone’s identity to promote products or services without consent. For example, celebrities like Kim Kardashian and Rihanna have taken legal action when brands used lookalikes or misleading advertisements implying endorsement. Even social media impersonation can create legal problems. Fake accounts using another person’s photos or pretending to represent a public figure can damage reputations and create consumer confusion. In some cases, these actions may violate trademark law, unfair competition laws, or rights of publicity protections.

Pop culture has also shown how complex these disputes can become in entertainment and technology. Video games, deepfake technology, AI-generated content, and virtual influencers are creating new legal challenges almost every year. Imagine a company creating a digital avatar that closely resembles a famous musician or athlete without permission. Or an AI-generated advertisement using a person’s voice to sell products they have never endorsed. These situations are becoming increasingly common, and courts are still adapting to the fast pace of technology. Businesses that fail to obtain proper licensing or consent can face lawsuits, financial damages, and serious reputational harm. At the same time, creators and influencers should proactively protect their personal brand before misuse occurs.

Protect Your Identity Before Someone Else Exploits It

Your name, image, likeness, and personal brand are no longer just personal attributes, they are valuable commercial assets. In today’s digital marketplace, where content spreads instantly across social media, streaming platforms, AI-generated media, and online advertising, unauthorized use of your identity can cause significant financial and reputational harm. Whether it is a misleading endorsement, fake social media account, AI-generated impersonation, or unauthorized commercial campaign, businesses and individuals alike need to take proactive steps to protect their rights before problems arise.

For athletes, influencers, entertainers, entrepreneurs, and creators, NIL and publicity rights can play a major role in protecting long-term earning potential and maintaining control over how their identity is used in the marketplace. At the same time, businesses and marketing agencies must ensure they have proper permissions and licensing agreements in place before using someone’s likeness commercially. Failing to do so can result in lawsuits, financial damages, and serious reputational consequences.

At Omni Legal Group, our Los Angeles intellectual property lawyers help clients navigate the evolving intersection of NIL rights, publicity rights, branding, AI-generated content, and digital identity protection. We work with athletes, creators, startups, agencies, and businesses to develop proactive legal strategies that protect commercial identity, prevent misuse, and support long-term brand growth.

Your identity has value. Make sure it is protected like one of your most important business assets.

Contact Omni Legal Group today to schedule a confidential strategy session with a Los Angeles IP attorney. Call 855.433.2226 to speak with our legal team and take proactive steps toward protecting your name, image, likeness, and brand in today’s rapidly evolving digital landscape. To learn more, visit Omni Legal Group.

AI, Copyright & Creativity in 2026: What Every Business Needs to Know Right Now

Artificial Intelligence is no longer “up and coming”, it’s here, it’s powerful, and it’s creating serious intellectual property questions for businesses of every size. As of February 2026, courts and lawmakers are still wrestling with one big issue: Who owns content created by AI? From marketing copy and digital art to music and software code, companies are using AI tools daily. But if you don’t understand how copyright law, trademark protection, and intellectual property rights apply, you could be building your brand on shaky legal grounds.

One of the most talked-about real-world examples involves lawsuits against companies like OpenAI and other AI developers over claims that their systems were trained on copyrighted books, news articles, and artwork without permission. Major publishers and creators argue that using protected content to “train” AI models may infringe copyright. On the flip side, AI companies argue this use qualifies as fair use. The courts are still sorting this out, and their decisions will shape the future of AI copyright law and intellectual property protection for years to come.

The music industry has also been front and center. When AI-generated songs began mimicking artists like Taylor Swift and Drake, questions exploded across social media: Is that copyright infringement? What about rights of publicity? Can someone legally profit from a song that sounds exactly like a famous performer? In simple terms, copyright protects the music itself, while publicity rights protect a person’s name, image, and likeness. If an AI track copies the style of an artist, that may be harder to prove. But if it uses their voice or identity directly? That’s where legal exposure increases dramatically. Businesses using AI-generated media must tread carefully to avoid costly disputes.

Even Hollywood has felt the impact. After industry strikes in recent years over AI use in film and television, studios now include strict contract language about digital likeness rights. Actors want assurances their faces and voices won’t be digitally reused without compensation. This shift shows how intellectual property law is evolving in real time. Contracts, licensing agreements, and employment policies must now address AI explicitly, something that wasn’t standard practice just a few years ago.

So, what does this mean for your business in 2026? Whether you’re using AI to create marketing materials, product designs, branding assets, or software code, you should: (1) review the AI platform’s terms of service, (2) confirm you have commercial usage rights, (3) avoid prompts that replicate specific living artists or competitors, and (4) register trademarks and copyrights where eligible. Proactive IP protection strategies, strong copyright compliance policies, and regular legal audits can prevent expensive litigation later. AI is an incredible tool, but innovation without legal protection is a risk no modern company can afford.

If your organization is integrating AI into its workflow, now is the time to evaluate your intellectual property strategy. The legal landscape is shifting quickly, and staying informed today can protect your competitive advantage tomorrow.

Don’t Let AI Put Your Intellectual Property at Risk

Artificial intelligence is transforming how businesses create, market, and compete, but it’s also reshaping the rules of intellectual property in real time. The companies that succeed in 2026 won’t just be the ones using AI creatively, they’ll also be the ones using it legally and strategically.

If your business is relying on AI to generate content, design products, write code, or develop branding assets, you need an intellectual property strategy that protects you from infringement claims, ownership disputes, and costly litigation. Waiting for the courts to “figure it out” is not a strategy. Proactive legal planning is.

At Omni Legal Group, our experienced Los Angeles intellectual property attorneys help businesses navigate the rapidly evolving intersection of AI, copyright, trademarks, and trade secrets. We work with startups, creators, technology companies, and established brands to audit AI usage, draft AI-specific contract language, secure copyright and trademark protection, and implement compliance frameworks that reduce risk.

If your organization is integrating AI into its workflow, now is the time to strengthen your legal foundation.

Contact Omni Legal Group today to schedule a confidential consultation with a knowledgeable Los Angeles IP lawyer. Call 855.433.2226 and ensure your business is innovating with confidence, not exposure.

To learn more, please visit www.OmniLegalGroup.com.

Tips on How to Obtain and Protect Your Intellectual Property

When you are building a business, it is important to establish an extensive intellectual property portfolio consisting of your registered trademarks, copyrights, and patents. Why? Because these are valuable assets that protect your products and branding from competitors. In addition, they represent your brand and often generate goodwill with consumers by developing your company’s reputation. Considering the value of your IP, you need to take affirmative steps to protect your IP. Here is some sound advice on how to effectively protect your IP rights.

Clear and Register Your Trademark with the USPTO

It is extremely important to select a strong trademark. This means you need to find a business name, unique logo, and catchphrase that is not immediately descriptive or generic for the goods and/or services that you offer under the trademark.

This strategic choice is most advantageous in that it can decrease the likelihood that another company may coincidentally use the same mark for similar products or service offerings. If you are not sure where to begin when selecting a strong trademark, it is in your best interest consult with an experienced and knowledgeable trademark lawyer to discuss your options. Retaining the services of a trademark attorney can also help expedite the process since it is their expertise to conduct clearance searches to determine which of your possible trademarks will have the greatest chance of successfully obtaining a registration.

Be Patient and Diligent

Once you select a strong trademark and submit the application, the timeline to achieve registration is generally between 8-10 months. Yes, you read that correctly. It can take close to a year to successfully register a trademark. Hence, why it is so important to be patient and diligent in your pursuit of valuable IP. Patience and persistence are also important because there is a chance that the United States Patent and Trademark Office will deny your application. You could even encounter opposition from a third party.

When your application is filed, it will take around three months for the initial review to be conducted by an examining attorney. From there, if your application is not denied or challenged, it will be forwarded for a publication period. During this period, which is usually thirty days, other parties have the opportunity to oppose your application should they have grounds to believe a registration may infringe on their trademark.

Following publication, your application returns to the examining attorney for a final review. Depending on the initial filing basis of your application, you will need to prove use of your mark for the registration certificate to be officially issued.

As you can see, getting a trademark registered is a fairly detailed and arduous process.

Be Prepared for a Similarly Complex Process to Obtain a Copyright

In addition to registering your trademark, it is important to obtain a copyright for your unique goods, services, and/or works. When you have a copyright, it protects creative works, including:

Writing
Photography
Audio
Video
Other forms of art or original expression.

However, it is important to understand that a copyright is somewhat limited. It does not protect an overarching idea within a work. Instead, a copyright is effective in safeguarding the expression of your idea in a particular medium. In addition, your copyright registration can help prevent unauthorized copying of an author or an artist’s creative works. Furthermore, it entitles the owner of the copyright to compensatory damages if an infringement occurs after your copyright is registered.

Federal copyright applications are filed with the US Copyright Office and, much like the trademark registration process, can be time-consuming and is fairly complex. That is why it is in your best interest to consult with an experienced and knowledgeable copyright lawyer.

Have Questions? Contact Omni Legal Group Today

For further information or to schedule a consultation with a leading IP lawyer in Los Angeles, please contact the highly reputable Omni Legal Group at 310.276.6664 or visit www.OmniLegalGroup.com to learn more. We possess the knowledge, resources, and experience to assist you in your efforts to secure and protect your IP.

Can libraries be held liable for e-book lending?

At the beginning of June, four publishing companies filed a lawsuit in the United States District Court for the Southern District of New York against the Internet Archive alleging direct and secondary copyright infringement. Specifically, the four publishing companies, including HarperCollins, Hachette Book Group, John Wiley & Sons, and Penguin Random House, allege Internet Archive’s “Open Library” and/or “National Emergency Library” infringes their respective copyrights.

Plaintiffs are four of the world’s preeminent publishing houses and collectively, they publish some of the most successful and leading authors in the world. Indeed, many of these authors are winners of the Pulitzer Prize, National Book Award, Newbery Medal, Man Booker Prize, Caldecott Medal and Nobel Prize. Plaintiffs are the copyright owners of each of the works upon which the lawsuit is based.

Founded in 1996, the Internet Archive is a non-profit digital library offering free universal access to books, movies, and music. Via its “Open Library,” Internet Archive distributes digitally scanned copies of over one million titles. Any Internet-connected user has the ability to access complete digital copies of copyrighted books in this manner. Moreover, Internet Archive has openly pledged to do the same for millions more. In March, at the outset of the global pandemic, Internet Archive created the “National Emergency Library” with a goal to render all scanned books immediately accessible to anyone with an account.

The plaintiff publishing companies allege the Internet Archive has engaged in willful copyright infringement by scanning print books, uploading these “illegally scanned books” to its servers, and distributing whole digital copies of the books to the public. Plaintiffs further allege the defendant has done so without any license or payment to the publishing companies or authors. Because these e-books are scanned from physical copies rather than purchased in their digital form, the project circumvents the typical licensing restrictions used by conventional libraries. As a result, plaintiffs argue the Internet Archive is conflating print books and e-books.

Under the United States Copyright Act, copyright owners have six exclusive rights, including reproduction, preparation of derivative works, distribution, public performance, public display, and digital public performance of sound recordings. The right to distribute copies of copyrighted works to the public includes offering copies for sale, lease, or auction. Direct copyright infringement occurs when a person, without authorization, reproduces, distributes, displays, or performs a copyrighted work, or prepares a derivative work based on a copyrighted work. On the other hand, secondary copyright infringement occurs when a third party enables or supports infringement, as Internet Archive has allegedly done in this matter.

The first sale doctrine provides a defense to copyright infringement. Under the first sale doctrine, this distribution right is extinguished when a copyright owner transfers ownership of a particular legal copy of a work to another person. To succeed on this defense, the accused party must prove that he lawfully owned the copy that was later distributed. This doctrine is premised on the user’s right to dispose of his or her particular copy of a copyrighted work but does not necessarily extend to a situation in which the user has made another copy or otherwise converted the work to another form.

To avoid problems related to unauthorized reproduction of electronic books, many publishers use Digital Rights Management (DRM), which broadly refers to any technological measure that limits the use of copyrighted electronic media. One basic example of DRM is copy protection, which limits a user’s ability to copy, transfer, or otherwise duplicate protected data files. As another example, DRM may restrict copies of a particular electronic file to reside on a limited number of devices simultaneously. However, DRM can be used to enforce virtually any limitation a copyright owner desires. Of course, circumvention of DRM is prohibited under United States copyright law, and the Digital Millennium Copyright Act (DMCA), in particular.

In this case, DRM is not at issue because the libraries never held digital rights to the copyrighted works. Instead, the libraries rightfully owned physical copies of the books at issue and scanned their copies to create a digital form. Indeed, in response to this lawsuit, the Internet Archive claims that it is merely acquiring books and lending them as libraries have always done. The Internet Archive further rationalizes that because schools and libraries remain temporarily closed, due to the ongoing pandemic, creating electronically accessible versions of these titles is the most reasonable option for continuing to lend books. However, Internet Archive has yet to formally respond to this lawsuit and has until the end of the month to do so.

Does livestreaming carry any copyright infringement risks?

Due to the coronavirus pandemic, many states, including California, have implemented strict shelter in place orders, under which people are forced to perform their daily activities out of their homes. As a result, use of livestreaming platforms, such as Zoom, Google Hangouts, WebEx, as well as, Instagram Live, Facebook Live, and YouTube, has significantly increased. Businesses of all types have also started using livestreaming platforms to provide services that were previously delivered in person. These services range from religious services, educational services, and fitness classes to weddings, funerals, graduations, and other social events. Because many of these livestreams include unoriginal audio or audiovisual content, copyright concerns exist.

As one example, legendary DJ D-Nice has been offering a daily “Homeschool at Club Quarantine” livestream series on Instagram Live in an attempt to bring a dance party into everyone’s homes. The now-viral stream started out as an attempt to change DJ D-Nice’s own feelings of isolation and now frequently features drop ins by famous celebrities, such as Drake, Jennifer Lopez, Michelle Obama, Dave Chappelle, Oprah Winfrey, and Mark Zuckerberg. According to DJ D-Nice’s representatives, Instagram arranged for broadcasting licensing for DJ D-Nice such that his use of copyrighted music does not constitute copyright infringement.

Copyright protects original works of authorship, including literary, dramatic, musical, and artistic works. Under the United States Copyright Act, copyright owners possess various rights, including the right to perform the work publicly. Copyright infringement occurs when someone publicly performs the musical composition, broadcasts an audiovisual work, such as a motion picture or television program, without permission from the copyright owner.

For musical works, there are two separate copyrights that are frequently held by different parties. The songwriting copyright is possessed by the songwriter while the sound recording copyright is often held by the record label. Performing rights organizations license, collect, and distribute public performance royalties for songwriters and publishers. Through these contracts, songwriters and publishers are entitled to collect a royalty each time their song is played on the radio, at a restaurant, retail establishment, fitness studio, park district facility, or online. In return, the performance rights organization provides a “blanket” license allowing the facility or service to broadcast the songs in the organization’s catalog. Livestreaming platforms typically do not have blanket licenses covering a user’s use or performance of a musical work over the platform. However, as mentioned previously, DJ D-Nice’s “Homeschool” livestream appears to be under such a license.

While a popular service, Instagram’s policies regarding copyright and the chance of being muted or interrupted in the middle of a livestream remain uncertain at best. Instagram’s computers detect each and every note that is played in a video that is posted, livestream or otherwise. When Instagram detects copyrighted material in a livestream video, the stream is cut off, and the streamer and the audience are both kicked out to the home page. This forces the streamer to start its stream over, undoubtedly losing audience members in the process.

For instance, various gyms and fitness studios have begun livestreaming classes which, almost invariably include, music. Instructors must be careful in selecting their tunes so as to avoid triggering Instagram’s copyright infringement algorithm. Kicking the instructor and the class members out of the feed kills the vibe and disengages the audience. As one solution, some instructors have decided to use only remixes or lesser-known music.

As another example, DJs that are lesser known than DJ D-Nice (and therefore are less likely to have a separate agreement with Instagram) constantly suffer the risk of any song clip they play triggering the algorithm. Some DJs have noticed that the takedowns are triggered by the duration of copyrighted content. These DJs have therefore avoided Instagram by quickly switching between songs and, also, playing less popular music. Notably, such “solutions” may still constitute copyright infringement but are less likely to cause an interruption in the livestream.

Penalties for copyright infringement can be expensive. In addition to actual damages for infringement, if the copyright is registered, the copyright owner may be entitled to recover statutory damages. Statutory damages range from $750 to $30,000 per work and even up to $150,000 if the infringement was willful. While this country follows the American rule that each party is responsible for paying its own attorneys’ fees, per statute, the copyright owner can also collect attorneys’ fees and court costs. Thus, if pursued to the fullest extent of the law, livestreamers could be subject to a number of severe consequences for copyright infringement.

Is a photographer owed a licensing fee in addition to compensation for time and labor for commissioned photographs to be used in the launch of a premium tequila brand?

Los Angeles-based photographer Anais Ganouna and her company, Frank & Anais, filed a lawsuit against The Colors You Like (TCYL) and Cincoro Spirits Group (doing business as Cincoro) for copyright infringement, fraud, civil conspiracy to commit fraud, and unfair competition. Ganouna claims the defendants knowingly and unlawfully exploited her creative work in connection with Cincoro’s highly anticipated launch of its premium tequila brand in 2019. Cincoro is owned by Michael Jordan and four other NBA owners.

Ganouna is a professional photographer and was commissioned to do a photoshoot for the defendants of the agave fields and plants in Mexico, the tequila production process, and the tequila bottles and barrels, as well as other instrumentalities, used for Cincoro’s tequila. Prior to contacting Ganouna, TCYL had used a staff photographer for the project but was dissatisfied with the quality of the images produced. According to Ganouna, her photoshoot was a “major success” and the defendants expressed their excitement at the prospect of using the images in their advertising campaign.

For her time, Ganouna was paid a discounted day rate of $1,000 with the understanding that licensing/usage rights would be negotiated at a later point. Indeed, Ganouna claims that such rights are typically negotiated separately from a photographer’s day rate, which merely serves to compensate the photographer for its time. When Ganouna later reached out to discuss usage of her photographs, a representative for TCYL responded that it had not been made clear that licensing the photographs would cost additional money. This same representative also represented that TCYL would be hiring another photographer to do reshoots and that none of Ganouna’s photographs would be used. However, Ganouna alleges defendants never engaged another photographer for this purpose and that no reshoots ever took place.

In September 2019, Cincoro officially launched. At this point, despite defendants’ representations, Ganouna discovered that Cincoro had indeed used a number of her images on its website, social media accounts, including Instagram, Facebook, and Twitter, as well as in paid advertising (i.e., sponsored advertisements) and by third-party vendors. As such, Ganouna, through counsel, sent a letter to defendants demanding compensation for their purported use of her photographs and requesting they cease using the same until after a resolution had been reached.

In response to Ganouna’s letter, defendants claimed that TCYL had meta data proving that every photograph used was pulled from a video shot by TCYL and not from Ganouna’s photographs. Nonetheless, Ganouna argues that even if this is the case, the photographs selected from the videos taken concurrently with her photoshoot appear to be identical to her photographs or “extremely close derivatives thereof.” Indeed, Ganouna claims to have dressed the sets, staged the shots, and placed or directed the subjects of the shots. Moreover, Ganouna claims that video was not shot to accompany every scene Ganouna shot. To date, Ganouna’s alleged photographs remain on Cincoro’s website and social media pages.

Ganouna’ first claim for relief, copyright infringement under 17 U.S.C. § 101 et seq., requires the use of works protected by copyright law without permission for such usage, thereby infringing the copyright holder’s exclusive rights. Under copyright law, authors of original works of authorship that are fixed in a tangible medium possess numerous rights, including reproduction, preparation of derivative works, distribution, public performance, and public display. For economic rights to a copyrighted work to be transferred, such as through a licensing agreement, the transfer must be in writing and signed by the copyright holder. Notably, such transfer does not require payment or any consideration in exchange for the granting of a license. That being said, copyright holders often do require payment or otherwise place restrictions or obligations on the licensee. Thus, in this case, the court will determine whether by accepting a $1,000 fee, Ganouna had licensed the rights to her photographs. In any event, though defendants have not responded to Ganouna’s lawsuit, defendants may maintain their position that none of Ganouna’s photographs was used, in which case no license would be required.

Copyright Law

Category: Copyright Law