All posts by Lizbeth Hasse

About Lizbeth Hasse

Lizbeth Hasse is the founder of Creative Industry Law. Her practice encompasses intellectual property, media, entertainment and business counseling for corporate and individual clients. She is also a neutral expert in these areas, negotiating and resolving IP, business and media matters. View all posts by Lizbeth Hasse →

California Attorney General Provides Mobile App Privacy Checklist: Guidance for App Developers, Distributors, Advertisers

by Lizbeth Hasse

As discussed in a previous Creative Industry Law blog post, California Attorney General Kamala Harris began a two-pronged enforcement strategy last year to bring mobile app developers, platform providers, and mobile ad networks in line with California’s Online Privacy and Protection Act (“COPPA”).

The AG sent notices of non-compliance to offending entities (a sample notice letter can be found here). In December, selected lawsuits were filed (e.g., Harris’ action against Delta). Recently, the Attorney General’s office released Privacy on the Go, a set of guidelines to help those involved in mobile app development, distribution platforms, and advertising to better understand how to meet California’s OPPA’s requirements.

Trademark Applications Web Specimens: the USPTO Releases New Guidelines

by Lizbeth Hasse

Because so many companies market their goods and services online, owners and management naturally expect that their branded websites will be good specimens to support their applications for trademark registration and extensions.

Websites are usually excellent and appropriate demonstrations of the use of a trademark. But, companies are well-advised to use extra care when submitting a website sample as a supporting specimen for trademark registration; the USPTO’s examination of them is especially exacting. If it finds the specimen insufficient, the consequence may be long delays in the application process and possible rejection of the mark.

Mobile Apps and Terms of Use: the Instagram Debacle

by Lizbeth Hasse

Mobile app developers frequently need to update their Terms of Use, prompting the familiar but often ignored, “Terms & Conditions Have Changed” iPhone alert.

The updates usually accompany new technologies and services, and do not represent policy shifts or noticeable service changes; hence the heedless recipient. But as the recent Instagram controversy shows, providers should avoid hiding big changes in small print.

Instagram is a mobile application downloaded by more than 80 million users to date. It allows users to stylize and share photographs and other images using a variety of preset filters. Late last year, Instagram unveiled its new Terms of Use policy that included the following clause:

Mobile Apps and Consumer Privacy: California is Setting a New Standard for App Developers

by Lizbeth Hasse

Do your mobile apps run afoul of California’s privacy laws? About one hundred mobile application developers are discovering that their products might be “illegal,” and many others now have to worry.

California Attorney General Kamala Harris, consistent with her commitment to consumer privacy interests, has begun to send non-compliance letters to companies like United Airlines and OpenTable, whose applications not only offer consumers the convenience of tracking their flights or making dinner reservations, but also collect information about their preferences through their smartphones.

The Lively Jurisprudence of Dead Celebrities: Albert Einstein, New Jersey, and the Post-Mortem Right of Publicity

by Lizbeth Hasse

Will your image live longer than you do? Artists, celebrities, and other creatives often invest substantial time and effort cultivating a personal brand image, and most likely anticipate its longevity.

The law recognizes a person’s right to profit from this investment by preventing third parties from “free riding” on a famous individual’s name or likeness. A majority of states recognize this “right of publicity,” but vary as to whether this right should outlast its initial rightsholder and for how long.

In some, like New York, the right is extinguished with the death of the individual. But in others, including California, the right of publicity constitutes personal property that can be passed on to ones’ heirs.

Big News for Small Copyright Claims?

by Lizbeth Hasse

Copyright Office considers new proposals for a copyright small claims court, but specifics are still lacking.

The story is familiar to many artists. A freelance photographer is surprised to find that an online service has reproduced a number of copyrighted images from her website. She reaches out to the organization with phone calls, offers to license her work for what she considers a reasonable fee, and drafts her own “cease and desist” letter. These all go unanswered. Realizing that her only remedy may be to sue, she seeks out an attorney who will file her case in federal court. But the case is too small; attorneys’ fees are high; it would take at least a year to litigate; and the recovery, if she wins, is uncertain. In the end, she simply gives up.

Color Trademarks and Fashion: Branding That “Pops”

by Lizbeth Hasse

Color trademarks are those which use a color alone as the brand for a product, what trademark experts call a “source indicator.” Color marks are considered non-traditional trademarks, and they are generally disfavored by the U.S. Patent and Trademark Office. Nonetheless, some color marks have achieved “distinctiveness,” that is, the degree of public recognition as a source indicator compels the USPTO to allow owners to register the color as a mark in their field of commerce.

An Expanded Scope for the Copyright Misuse Defense?

by Lizbeth Hasse

We are often reminded that the basis for U.S. copyright law is the short provision of the Constitution giving Congress the “Power…To Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” [Art. 1, Section 8]

This constitutional source says that the “monopoly” granted must be temporary, and that the restraints (under copyright and patent law) should serve a particular purpose, the promotion of knowledge and art.

Still, over the years, the duration of those “temporary restraints” (exclusive rights) has been increasing. It is also not apparent that the constitutional purpose is a consistently observed guiding principle.

Expanding the Internet: What do ICANN’s New gTLD Applications Mean for Trademark Owners?

by Lizbeth Hasse

One year ago, as part of a plan to expand the capacity of the Internet’s domain name system, the Internet Corporation for Assigned Names and Numbers (ICANN) began accepting applications for more generic top-level domain names (gTLDs). Currently, the well-known gTLDs include .com, .org, and .net, as well as some of the country indicators that have been repurposed, such as .tv and .es. Adding gTLDs will allow for exponentially more domain names. During the new gTLD application period, ICANN opened the door to any combination of three or more letters in most major alphabets: .blue, .school, .mcdonalds, .law or .商城. The possibilities might seem almost endless, but, on “Reveal Day,” ICANN disclosed a list of 1,930 applications for new gTLDs

President or Pirate? The DMCA Takedown War of the Presidential Campaigns

by Lizbeth Hasse

In what has been described by some as over-zealous enforcement of copyright, BMG (the large German publisher) forced YouTube to take down a Mitt Romney campaign video because it included footage of President Obama singing Al Green’s “Let’s Stay Together.”