Law Office of Elizabeth T Russell LLC

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It’s springtime. According to my inbox, graphic designers consider this the best of times to “refresh” your logo.

Cool.

Before relegating the old, though, consider the trademark implications.

United States trademark registrations can be “standard character” — which means the registration covers words in the mark regardless of how they are depicted visually — or, they can be “design” registrations. That means the registration covers only the particular design as depicted in the original drawing file.

And US trademark…
Continue Reading How the ‘Logo Refresh’ Can Wreck Your Trademark

I do not practice in the field of estate planning.
I do work with estate planning professionals, when their clients’ estates include intangible assets such as copyrights. So I’m kind of estate planning-adjacent.
This post by RBT CPAs very thoughtfully examines some common myths surrounding revocable living trusts (“living trusts”). I’ll stay in my lane and consider its points only in connection with copyright and other intangible assets. But I will say, the points made me sit up and…
Continue Reading Living Trust Myths

The Copyright Office has implemented a new registration option called Group Registration of Two-Dimensional Artwork (GR2D). It may be used to register between two and twenty works of two-dimensional art.
There are requirements:
1. The works must all have been published within the same calendar year  (make sure you get advice about what “publication” means under US copyright law)
2. The works must be eligible types of artwork. Check that list carefully; many types of visual art cannot…
Continue Reading Copyright: New Group Registration Option for 2D Artwork

If only you could get ethics credit for reading this post.

For years, the estate of Leonard Cohen has been embroiled in litigation involving Cohen’s former attorney-turned-manager, and the law firm that allegedly forged trust documents in order to bestow power upon that individual. The saga continues, with a new lawsuit accusing the firm of malpractice. Read the details at your leisure and, misconduct aside, contemplate the inherent conflict of an artist’s attorney also serving as the artist’s manager.
Continue Reading Arts and Entertainment Law: Attorney as Manager?

If you’re in a rush, that title is all you need to know.

If you crave explanation, here it is.

One does not “copyright” (verb) one’s work. Copyright rights attach automatically, when sufficiently original works of authorship are fixed in tangible media of expression. That is, for example, when the poem is written on paper; the paint is applied to canvas; the recording or photograph is fixed in a digital file; the training materials are typed into Word or…
Continue Reading Copyright Is Not A Verb

Kerson v. Vermont Law School, Inc. (2023 WL 5313521, 2d Cir. August 18, 2023)

Artist Samuel Kerson painted two large murals directly onto the walls inside a building on the campus of Vermont Law School. Kerson intended the works to depict the United States’ sordid history with slavery and Vermont’s participation in the abolitionist movement. Community members, however, perceived the works as depicting enslaved African people in an offensive, stereotypical style. Beyond that, some also took issue with the…
Continue Reading Second Circuit: VARA Permits Building Owner to Hide Visual Art

In 1981 Andy Warhol used a photograph made by Lynn Goldsmith as reference for an illustration of the musician Prince. Vanity Fair magazine had hired Warhol to make the illustration; it was to accompany an article about Prince in the magazine’s November 1984 issue. Goldsmith had issued a limited license for this purpose. The license stated her photograph could be used for reference, “one time only.”

Turns out – in addition to the Vanity Fair illustration – Warhol made…
Continue Reading U.S. Supreme Court: Warhol Foundation’s Use of Prince Photograph Not Fair Use

Have you ever convinced yourself that something is simple…just because you want it to be simple?
 
You’re not alone. In the context of applications for US copyright and trademark registration, people decide every day that do-it-yourself (DIY) is an acceptable option because, to their wishful eyes, “it’s just paperwork.”
 
Or maybe they think, “maybe I shouldn’t do this completely on my own,” so they fork over a small fee to an online Service that offers to take…
Continue Reading US Copyright Applications: Not As Simple As You Think

During these joyous holiday times, thoughts turn to peace on Earth, goodwill toward all and, of course, data scraping.

The United States Supreme Court is presently deciding whether to review a Second Circuit case that gave Google a free pass to scrape the content from another business’ website. The business that got scraped (Genius Media Group, “GMC”) provides an online platform for music enthusiasts who transcribe song lyrics. GMC invested millions of dollars to build its technology and to…
Continue Reading Fighting Back Against Data Scrapers

Let’s start with five fundamental concepts:
 

  • Copyright protects original expression.
  • To qualify for copyright protection, that original expression must be “fixed in a tangible medium.” (For example: painted on canvas; sculpted in stone; captured on film; written on paper.)
  • The tangible media (the canvas; the stone; the film; the paper) are, for estate planning purposes, “tangible personal property.”
  • Copyright rights that attach to original expression are, “intangible personal property.”
  • The intangible copyright rights and the tangible media are

    • …
    Continue Reading Estate Planning: Copyright and the Limits of Digital Property

    The other day I was learning about a fellow lawyer, by reviewing her website. Her trademark practice is similar to mine. The site was inviting. She has a sense of humor.
    “Nice,” thought I, “we should connect.”
    I was reviewing her website because she’d made a mistake in a matter before the Trademark Trial and Appeal Board. Suddenly, my respect for this lawyer circled down the drain.
    Because of the mistake? Absolutely not. We all make mistakes.
    I lost…
    Continue Reading Working on Vacation

    You’re a visual artist. You sell a work for $1000. Over time the value appreciates. Your buyer re-sells the work for $50,000. You get nothing (except requests to speak about your work, for no money!)
    There is no law permitting artists to share in “resale royalties” when their works change hands. I discuss this in Conversation #31 (Droit de Suite) in my book, Arts Law Conversations: A Surprisingly Readable Guide for Arts Entrepreneurs.  
    One way around this

    …
    Continue Reading Getting a Cut When Your Work Re-Sells

    The US Copyright Office is establishing a new option for registering multiple “online short literary works” as a group, with a single application and a single fee.
    In plain English, that means: blog entries; social media posts; and short online articles.
    They’re still rolling out the details — which I’ll describe here when they become available. For now, here is the official announcement.
    Continue Reading New Copyright Registration Option for Blog Entries; Social Media Posts

    Many of us, sheltered in place, are using video and web-conferencing services such as Zoom. How fortunate we are, to have such tools at our disposal.
    While keeping physically healthy, here are three tips for staying legally healthy in your web-conferencing environment.

  • Don’t play music or display visual art in the background. The last thing you or your company needs is a lawsuit for copyright infringement, on top of everything else you’re dealing with.
  • Be mindful of your

    • …
    Continue Reading Three Tips for Web-Conferencing

    “Please don’t copy my work.”
    They do it anyway.
    Is it plagiarism or is it copyright infringement?
    Plagiarism is a question of attribution. Let’s say GoodGuy actually created The Work.  BadGuy not only copies The Work, but passes it off as his own. BadGuy is “attributing” authorship of The Work to himself rather than to the actual author, GoodGuy. Bottom line, it’s a lie. It’s telling the world, “I created this” when that’s not true. This is plagiarism.
     …
    Continue Reading Plagiarism v Copyright Infringement. What’s the Difference?

    TIP #1. In recorded music there are almost always two separate copyrights:
  • The musical work (the composition); and
  • The sound recording (the fixation of  sounds that were produced during a particular performance).

    • TIP #2.  Until recently, sound recordings that were fixed before 1972 were not eligible for US copyright protection.
    TIP #3.  There are new procedures for protecting pre-1972 sound recordings. This new scheme is not technically copyright protection, but it’s very similar. The new law itself appears here

    …
    Continue Reading 3 Copyright Tips About {old} Sound Recordings