1. Legal Challenges of
Successful
Entrepreneurship in
an Internet Age

2. The Creative Entrepreneurship
Track is made possible through
the generous support of
Morgan Lewis.

3. Fred Koenig, Moderator
Shareholder, Volpe and Koenig
Renee Hobbs
Professor of Communication, Temple University
Tanya L. Bridges
Vice President, Legal & Business Affairs,
Dada Entertainment
Michael Snyder
Shareholder, Volpe and Koenig

4. 2009 Global Creative Economy
Convergence Summit
Challenges of Successful
Entrepreneurship in an Internet Age:
IP Issues for Creative Professionals and Entrepreneurs

5. IP Issues for Creative Professionals
and Entrepreneurs
Moderator: Fred Koenig, Volpe and Koenig
Part 1: Conquering Copyright Confusion
Renee Hobbs, Temple University
Part 2: The Impact of New Technology and Social
Networking on Music
Tanya Bridges, Dada Entertainment
Part 3: Trademarks, Trade Secrets and the Internet
Michael Snyder, Volpe and Koenig

6. Renee Hobbs
Media Education Lab
Temple University

11. To promote creativity,
innovation and the
spread of knowledge
Article 1 Section 8
U.S. Constitution

12. Use and Share
Copy
Modify
Repurpose
Distribute
Excerpt/Quote from

13. Restrict
Limit
Charge high fees
Discourage use
Use scare tactics

14. Copyright Confusion

15. See no Evil Close the Door Hyper-Comply

16. with
accurate
knowledge

17. When I use the creative work of others in my own
work, which concepts apply to my situation?
Attribution: Citing your sources
Public Domain: Materials available
for anyone to use freely
Fair Use: Using copyrighted works
without permission or payment
under some conditions
Licensing: Asking permission and
paying a fee

18. --Section 107
Copyright Act of 1976

19. Criticism, comment,
news reporting,
teaching, scholarship,
research
… but also many forms
of creative work that
advance and spread
innovation
--Section 107
Copyright Act of 1976

20. Fair use of copyrighted
Fair use prevents
materials is allowed when the
copyright law from becoming
benefits to society
a form of
outweigh the private costs
private censorship
to the copyright holder
--Section 107
Copyright Act of 1976

21. Bill Graham Archives vs. Dorling
Kindersley, Ltd. (2006)

22. An Example of Transformative Use
The purpose of the original:
To generate publicity for a
concert.
The purpose of the new
work: To document and
illustrate the concert
events in historical
context.

23. Transformative Use is Fair Use
When a user of copyrighted materials adds
value to, or repurposes materials for a use
different from that for which it was
originally intended, it will likely be
considered transformative use; it will also
likely be considered fair use. Fair use
embraces the modifying of existing media
content, placing it in new context.
--Joyce Valenza, School Library Journal

24. http://mediaeducationlab.com/index.php?page=295

25. 1. Did the unlicensed use “transform” the material taken from
the copyrighted work by using it for a different purpose
than that of the original, or did it just repeat the work for
the same intent and value as the original?
2. Was the material taken appropriate in kind and amount,
considering the nature of the copyrighted work and of the
use?

26. MYTH:
FAIR USE IS TOO UNCLEAR AND COMPLICATED FOR ME; IT’S BETTER
LEFT TO LAWYERS AND ADMINISTRATORS.
TRUTH: The fair use provision of
the Copyright Act is written
broadly because it is designed to
apply to a wide range of creative
works and the people who use
them. Fair use is a part of the law
that belongs to everyone.

27. Communities of Practice Assert
Their Fair Use Rights

28. The Code of Best Practices Helps
• To educate educators themselves about how fair
use applies to their work
• To persuade gatekeepers, including school
leaders, librarians, and publishers, to accept well-
founded assertions of fair use
• To promote revisions to school policies regarding
the use of copyrighted materials that are used in
education
• To discourage copyright owners from threatening
or bringing lawsuits
• In the unlikely event that such suits were brought,
to provide the defendant with a basis on which to
show that her or his uses were both objectively
reasonable and undertaken in good faith.

29. Educators can:
1. make copies of newspaper articles, TV shows, and other
copyrighted works and use them and keep them for educational
use
2. create curriculum materials and scholarship with copyrighted
materials embedded
3. share, sell and distribute curriculum materials with copyrighted
materials embedded
Learners can:
4. use copyrighted works in creating new material
5. distribute their works digitally if they meet the
transformativeness standard

30. Organizations Supporting the
Code of Best Practices
Association of College and
Research Libraries (ACRL)
National Association for Media
Literacy Education (NAMLE)
Action Coalition for Media
Education (ACME)
Visual Studies Division
National Council of Teachers
International Communication
Of English (NCTE)
Association (ICA)

31. What is the Relationship between
Fair Use and Creative Commons?

32. 1201
ANTI-CIRCUMVENTION
RULEMAKING PROCESS
When encryption
interferes with fair use

33. The Impact of New Technology and
Social Networking on Music
Tanya L. Bridges
VP, Legal & Business Affairs, Dada Entertainment

34. Music and Copyright
• Each song has two copyrights
– Musical Works: notes and lyrics
– Sound Recording: the actual recording of
the song by the producer and musicians

35. Streaming Music
• Streaming Music = Public Performance
– What is public performance?
• Broadcast, over the air, Internet

36. Licensing
• Publisher
– Blanket license from a performance
society: ASCAP, BMI, SESAC
– Direct license from copyright holder or
publisher
• Master
– Direct license from master owner: typically
the record label
– Statutory license: Sound Exchange

37. Licensing
• How and where to file for a license
• Fee for licensing and calculating
royalties

38. Social Networking
• Effect of Social Networking and New
Technology on Streaming
– Online and mobile radio stations
– YouTube
– Facebook and MySpace

39. Music Stream Law Evolving
• United States V. ASCAP
– Whether streamed previews of ringtones
and ringback tones require licenses
– ASCAP suits against AT&T and Verizon
• Claims that when a ringtone is played in a
public place, it constitutes a public performance
in violation of copyright law.

40. Trademarks, Trade Secrets
and the Internet
Michael F. Snyder
Shareholder, Volpe and Koenig

41. Trademarks

42. Trademarks
• A distinctive word, phrase, logo, symbol, design,
picture, styling or a combination of one or more
of these elements.
• A trademark is used by a business to identify
itself and its products or services to consumers,
and to set itself and its products or services
apart from other businesses.
• The essential function of a trademark is to
indicate source or act as a “badge of origin”

43. “Registered” Trademark
FEDERAL “COMMON LAW”
REGISTRATION

44. Spectrum of Trademark Distinctiveness
• Fanciful/Coined • Suggestive
• Arbitrary • Descriptive
• Generic

45. Trade Dress
• The totality of elements in which a
product or service is packaged,
such as the shape and
appearance of a product or
container, the cover of a book or
magazine, and the distinctive and
recognizable shape of an
automobile. These elements
combine to create the visual
image presented to customers
and can acquire exclusive legal
rights as a type of trademark or
identifying symbol of origin.

46. Test for Trademark Infringement
• Whether there is a likelihood of confusion
between the marks
1) strength of the mark;
2) degree of similarity between the marks;
3) degree of similarity between the goods/services;
4) likelihood that owner will “bridge the gap”;
5) evidence of actual confusion;
6) good faith in adopting mark;
7) quality of products/services; and
8) sophistication of buyers; cost of goods/services

47. Trade Secrets

48. Trade Secret
• A “trade secret” is a confidential practice,
method, process, design, formula, or other
information used by a company to
compete with other businesses.
– Must be kept secret
• NON-COMPETE/NON-DISLOSURE
AGREEMENTS

49. Examples of Trade Secrets
• Software, customer identities and
preferences, vendors, product pricing,
marketing strategies, company
finances, manufacturing processes and
other competitively valuable information,
testing (successes and failures),
technical information and specifications.

50. Trademarks and the Internet

51. Trademarks and the Internet
• Domain Names
– May or may not be trademark use
• www.sanyoresellersstore.com
• www.harrypottercollectors.com
• www.rollingstones-tribute.com
• Sometimes difficult to predict if
trademark owner will object
– Could drive trademark owner’s business
• UDRP even if no trademark
infringement

52. Trademarks and the Internet
• Metatags
– HTML code intended to describe the
contents of the web site
– Picked up by search software (spiders) to
return “hits” on search engines

53. Trademarks and the Internet
<meta name="description" content="books,
magazines, music, DVDs, videos, electronics,
computers, software, apparel ***************;
accessories, shoes, jewelry, tools &amp;
hardware, housewares, furniture, sporting
goods, **********; personal care,
***************** CDs, DVDs, Videos,
Electronics, Video Games, Computers, Cell
Phones, Toys, Games, Apparel, Accessories,
Shoes, Jewelry, Watches, Office Products, Sports
&amp; Outdoors, Sporting Goods, Baby
Products, Health, Personal Care,
**********************>

54. Trademarks and the Internet
• Keywords/Adwords
– Term for triggering advertising or
displaying links
– Banner ads
– Pop-ups

55. Trademarks and the Internet
• Virtual Worlds
– “Second Life”
• Massive Multiplayer Online Role-Playing Game
(MMORPG)
– Virtual “store-front”
• Real money at stake

56. Special Types of Trademark
Infringement on the Internet
• Framing
– Putting a “frame” around the target
• Appears to be the work of the “framer”
• “Deep” linking
– Providing a direct link to the inner
content of a target website to display
content
– Not a copy; a direct link to third party
content without clicking a hyperlink

57. Trademark Fair Use
• an affirmative defense of fair use is
available to a party whose "use of the
name, term, or device charged to be an
infringement is a use, otherwise than
as a mark, . . . of a term or device
which is descriptive of and used fairly
and in good faith only to describe the
goods or services of such party, or their
geographic origin . . . ." § 1115(b)(4).

58. Trademark Nominative Fair Use
• Using a trademark to describe a third
party’s (such as a competitor)
• Protects using another's trademark or
trade dress for the purposes of
comparison, criticism, or point of
reference

59. Internet Trademark “Traps”
• Failure to perform clearance search
• Falling prey to easy copying
• Following “internet advice”
– “urban legends,” e.g., if you mail something
to yourself and never open it….etc.

60. Trade Secrets and the Internet

61. Trade Secrets and the Internet
• Can anything be kept a secret on the
internet?
• FTP sites
– Password protection
– Encryption
• What are adequate precautions to
protect trade secrets being lost to the
internet?

62. Trade Secret Internet “Traps”
• Circulation/Distribution
• Publication
• Failure to protect secrecy
• Inadequate steps to protect

63. Thank You!
Questions???

64. Please complete the survey being
distributed by the volunteers.
Surveys may be returned to the
volunteers or at the Registration
Desk in Ballroom A.

65. Thank you to our sponsors