Hey everyone! I thought I’d mix things up a little bit on Etsy Stalkers and introduce you to Michael Prywes from Prywes Schwarz, PLLC. Who is this Michael you ask? He’s an attorney dedicated to helping others start and run their own businesses. And he has a creative background. And he’s an all-around good guy who has some amazing tips to share with Etsy shop owners.
So without further ado, I bring to an article that actually contains actionable information…
Why Do Entertainment Stars Like Katy Perry and Taylor Swift Go After Small Businesses for IP Infringement?
The short answer? Because they can. You may have heard that Etsy sellers have been sent “Cease and Desist” letters for incorporating Taylor Swift’s lyrics, or that an entrepreneur sculpting a 3-D likeness of the “Left Shark” from Katy Perry’s Super Bowl performance has been accused of copyright infringement. But, really, why go after the “little guy?”
Even if musicians and other entertainers make a lot of money, they often see legal fees as the cost of doing business in a “360 degree” world. They want to make more money and may not want their personal brands co-opted by strangers. But intellectual property law–copyright, trademark, patent, and licensing–is complicated, and small business startups are often surprised when they hear from lawyers from other parts of the country. There are a few issues in intellectual property law that have made small businesses ripe for C&D letters and actual litigation (lawsuits) from entertainers.
The Rules for Copyright, Trademark, and Patent Differ
It seems everywhere you look, big name artists are embroiled in litigation or some sort of legal dispute. Most of these battles settle before trial, so the outcome rarely affects “case law.” However, a disturbing trend of late is the tendency of lawyers to try to make trademark out of copyright cases, copyright out of patent cases, and generaly shoehorn one type of law into another. For instance, Taylor Swift is making claims for trademark infringement of lyrics. To try to make sense of this, let’s take one of her big hits “Shake It Off.” Now, it would be impossible for Ms. Swift to claim she created the phrase “shake it off,” so she would find no refuge in copyright law. But she may claim that the phrase has become so distinctively associated with her song–maybe even has acquired “secondary meaning”–and she may use the phrase in commerce.
Trademark law requires quick response from the holders of trademark, as a failure to oppose someone else’s use of the mark (name, design, or phrase) may be seen as a tacit surrender of any claim to the mark. Trademark law is meant to be a battleground; it often becomes an area where the deep-pocketed claimant can attempt to shut down the poorer defendant. One recent example is the letter clothing entrepreneurs received from a lawyer for Seattle’s Space Needle, claiming trademark infringement for a black-and-white drawing of the Space Needle from a photo taken by one of the entrepreneurs. The idea that the owner of a building can claim a monopoly on the use of any image of that building may be anathema to creativity and innovation, but a successful defense would not be a slam dunk for a tiny retail business and is often just not worth it. A cease and desist letter for trademark infringement can be written for next to nothing, yet forces a small business into submission if it doesn’t know how to fight back.
On the other hand, lawyers sometimes try to force a square trademark or patent peg into the round hole of copyright. Copyright law is old, in need of serious updating, and comes with riders such as the Digital Millenium Copyright Act (DMCA) that can sometimes do more harm than good. Because Katy Perry and the NFL likely did not anticipate the meme of the “Left Shark,” it had not registered the Left Shark with the United States Patent and Trademark Office (USPTO). Since a creative work’s copyright begins at the moment of creation, a copyright cease and desist was sent instead. However, it does not sound like a valid claim, because the costume was not created by Katy Perry, and the sculptor selling the shark has not copied the creative expression of the Left Shark’s Super Bowl performance.
IP Law Evolves and Becomes More Difficult to Navigate
But why are lawyers using different forms of IP law to go after unsuspecting defendants? For one thing, IP law is constantly being reshaped and re-defined by the dizzying progress of technology. Google has found itself a defendant in two lawsuits that demonstrate the apparent uncertainty of copyright law: one by an actress who sent a DMCA takedown notice for film in which she appeared, claiming she had a moral right to her performance, and another by tech titan Oracle, which claimed copyright in Android source code (usually, software disputes are fought in patent court). The DMCA is likely to be overhauled. If case law is not settled as to whether an actress can claim copyright for her own performance in another person’s film and a computer company can claim that source code is a creative work, creative lawyers can find multiple opportunities and causes of action to extract money from businesses.
Music Contracts and Royalties Schemes Have Changed
In fact, the Copyright Office is aware of all of the changes technology brings to the world of music and has recently issued a 2015 report on Music and Copyright. The report, a massive 200+ page tome, acknowledges the challenges and changes of the music landscape, including the distribution of royalties to the indie artist. However, even though royalties schemes and copyright law are due for overhaul, indie labels, musicians, and agents are more likely to be focused on the fundamental and practical realities of the music business: now, more than ever, the music business is not about the music. It’s about the whole package.
Just as theatrical distribution of film is a loss leader for DVD, digital, and merchandising, a song is just the beginning of an entire branding blitz. For instance, artist management contracts and music contracts often involve a “360 deal” or “multiple rights deal” which gives music labels profit participation in all aspects of an artist’s income, not just income from recordings. While we may not be privy to the particulars of their different relationships and contracts, and the 360 deal may not be applicable in these situations, you can be sure the lawyers for celebrities such as Perry and Swift recognize that the brand is so much bigger than the music. However, as a practical matter, cultivating goodwill is also a part of their brand, and if a little entrepreneur makes big waves in the press and social media, celebrities may back down. A good lawyer knows the law AND practical consequences in the “real world.”
Sometimes, when a company or celebrity is powerful enough, a simple letter is all that is necessary to destroy the creative impulse. In the end, a small business can successfully fight cease and desist, but would be wise to investigate potential intellectual property pitfalls before making rash responses to the war drums of “Big Law.”
Note: The embedded images are screenshots taken from the websites Etsy.com and Thingiverse.com.
Is it wrong that all I want for Valentine’s Day is to have my face peeled off? Seriously people, there’s no better way to say ‘I Love You,’ than to give your loved one a chemical peel (performed by a licensed esthetician of course). P.S. My husband thinks I’m insane (per usual).
I’m assuming not all of you want your face peeled off on the day of love…maybe just half of you? No? Well if you don’t, you’re probably searching high and low for gifts (and making your own list too). So without further ado, I bring to you Etsy Stalkers’ 2015 Top 10 Must-Haves For Valentine’s Day:
For the fiery little girl in your world:
For your naked, yearning neck:
For the post-it note organizer in your life (OMG…love me a new pack of post-it notes):
For your puppy-lovin’, chocolate-eatin’ kids:
For the highly-caffeinated love in your life:
For your main hunk (or sports loving lady):
For those that like it hot and personalized:
For those that like it cold and covered:
For the purse loverrrrrr in your life (AKA everyone, ever):
For those of you out on the prowl this Valentine’s Day…call me (rawwwrrrr):
I could spit out every excuse in the book about why I haven’t been blogging but here’s the truth (dramatic pause)…I just haven’t felt like it.
Call it lazy. Call it the holidays. Call it having two kids, a job, husband, cat, dog, etc. But I’m back. Hey, I got to keep you on your toes somehow in 2015. Since it’s been a while I thought I’d catch you up on what’s been going on:
(1) I found out what happens when you don’t make it to the bus stop on time after school. FYI: The driver takes them back to school and the mom (ahem) has to take the walk of shame into the school to get them. AWKWARD.
2) My kids drew this picture of my butt. Favorite quote from my friend, “At least it looks firm.” True ‘dat.
(3) Even though I’m in advertising, my kids are the biggest suckers for it. Seriously, over winter break they asked for every. Single. Thing. On. TV. Hideaway Pets, Hover Ball , Bright Light Pillow…the list goes on and on. Personally I blame it on their grandfather who has been known to order a thing or two (everything from every Infomercial ever). I mean really, no one needs a flashlight that you have to wind up… yet every single person in the family has received one.
(4) Here’s a deep thought I had while traveling: Why does everyone suddenly get narcolepsy once they’re on a plane? Do you normally fall asleep at 11AM if you weren’t on an airplane? I didn’t think so.
(5) A 2-year-old looked me up and down in Target and shouted, “Ewwwwww.” This is a true story people. Kid, I see your parents pushing your cart around and they’re no super models themselves. Ewwww yourself.
So when will I write again? To be continued…
The Fox Theatre in Atlanta was AMAZING enough to send tickets for my family to attend this year’s Nutcracker show. It’s actually become a tradition for us, being our third year attending with the kids. At first we were nervous if it would hold their attention but they LOVE it again and again every year. And they also love getting to pick out a different nutcracker to add to their collection after the show.
Here are my highlights in no particular order:
- The lambs shaking their booties. I love a good lamb booty.
- My daughter asking me over and over when the lady in the big dress with kids hiding in it was coming on stage (I love that she remembered this scene from last year).
- The snow falling on our heads at the end of Act I.
- The Sugar Plum Fairy.
- Looking up at the amazing stars in a night sky at The Fox Theatre.
Connect social media this Nutcracker season and make sure you use #NutcrackerATL whenever you post about the show!
Did you know?
- Atlanta Ballet premiered George Balanchine’s Nutcracker – second act only – in April of 1959, not December, making it one of the first companies in the U.S. to perform what would soon become a holiday classic.
- More than 8 tons of scenery, lighting, and props are used in each Nutcracker production
- 300,000 watts of electricity are used during each performance of Nutcracker, more than enough to light a stadium
- The (Dr.) Evil Rat King is 8 feet tall
- The Petrov Christmas tree grows from 13 feet to 38 feet tall, equivalent to a three-story building
Did you know?
- There are 20 pounds of snow during used each performance.
- Atlanta Ballet’s female dancers wear out more than 2,000 pairs of Pointe Shoes each season.
- Mother Matrushka is always played by a man.
- More than 2,000 hours are needed to prepare the costumes for opening night of
- Nutcracker. Preparation begins in early August and goes through November to ensure every detail is in place for opening night in early December.
First of all, I know I’ve been posting a lot of sales lately. Is it annoying? Helpful? I just get so excited when I get notified of a big sale going on and I want to share them with you.
Anyhooo, back to me. Yesterday my daughter got off the school bus and immediately told me she wasn’t feeling well and then proceeded to throw up for the next four hours. Major sad face. The good news is she’s feeling better today. But the best news is she only threw up in the toilet the entire time she was sick.
Should I be happy? Proud? Concerned that she’s destined to be a tidy bulimic? I’m going to go with impressed (with a side of worry). Now that she’s on the mend, I’m going to get her one of these awesome ‘You make me sick’ Hankies from Urban Bird and Co.
And most definitely a dress or two from Tea’s adorable new Citizen Blue collection because I (and you) will get a free gift (exclusive Tatcha Indigo Skincare Travel Set) after spending $100 . Yipppeeee!
Shop Girls Citizen Blue Styles at Tea Collection
Shop Boys Citizen Blue Styles at Tea Collection
Shop Baby Girls Citizen Blue Styles at Tea Collection
Shop Baby Boys Citizen Blue Styles at Tea Collection
**This post contains affiliate links and I will be compensated if you make a purchase after clicking on my links.
I know, I know, so many holiday offers. I seriously can’t stop sharing them, so here’s another one that will leave you flabbergasted (I love a good flabber). A customized phone case like this one:
Or the literally hundreds of designs you can choose from for your iPhone or Samsung phone at Tiny Prints.
And today only, Tiny Prints is offering these cases for 50% off! Getting this offer is super easy:
1. Check out Tiny Prints phone cases and choose from iPhone or Samsung and if you want photos or not.
2. Add photos, select your fonts, type in your message, choose your colors. Make it personal (But don’t be gross. I personally don’t care which pictures you choose but your coworkers are going to see your phone case.)
3. When checking out, use the code EARLYBIRD1210 to save 50%. Easy peasy.
Also, check out all their other gifts and cards and use the code SWDEAL30 to save up to 30% on your order. And code FREESHIP49 will get you free shipping if your order is more than $49.
Pretty awesome… check it out today.
Choose One of Four FREE Gifts from Tiny Prints Promo code: CHOOSEGIFT
Each day between now and 12/11, you can get one of four gifts, a free personalized notepad, free personalized magnet, free personalized mug, or $16.99 off home decor. Yahooooweee!
Still need Holiday cards that don’t suck?
Check out Tiny Prints, who are having their best sale of the entire year…but it ends today!
These aren’t cards you can buy at the store. You can completely personalize the cards, upload your own photos, change the font and text, and make the cards uniquely YOU.
The clock is ticking…it only takes a few minutes to create and send the perfect cards. Just follow these simple steps:
1. Choose from 100′s of Tiny Prints Holiday / Christmas card designs.
2. Add your photos and tweak the text to your liking.
3. Use the promo code CYBER40 to save 40% on your cards.
It’s not too late to send amazing cards at an amazing price. Head on over to Tiny Prints now.