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Maricopa County Chamber of Commerce

Welcome to the Maricopa County Chamber of Commerce. Every business member who joins our chamber has a fully functional, Search Engine Optimized Blog at their fingertips. We want to empower our Maricopa County Business Owners with the tools to market their business and drive more traffic to their front door. So now you can not only keep up to date on what the Maricopa County Chamber is doing but you can follow all our Business Members, and Charitable Organizations and what they are doing as often as you like! It's all about empowering our Maricopa County Community!
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Tattoos and Copyrights

Tattoos and Copyrights

Everything You Want To Know About Copyrights and Tattoos.


I just read a very interesting article at https://www.jdsupra.com about IP rights of a Tattoo Artist and their work. A copyright is defined as "a person's exclusive right to reproduce, publish, or sell his or her original work of authorship (as a literary, musical, dramatic, artistic, or architectural work)" that is fixed in a tangible form of expression.


So, can a tattoo be considered an original work fixed to a tangible form? To be an original work the tattoo must be independently created by a human with at least some minimal degree of creativity, and it must be "fixed" when it is captured in a permanent medium such that the tattoo can be "perceived, reproduced, or communicated for more than a short time." A tattoo is usually designed by a tattoo artist or is designed under the direction of the individual receiving the tattoo requiring the tattoo artist to interpret the individual's request requiring the artist to have a minimal degree of creativity. The second requirement is met by fixing the Tattoo Artist's work to your body for life.


Since, tattoos meet both requirement and according to the law are copyrightable, how can an artist own a copyrightable image that is on someone else's body? Currently there is no clear jurisprudence regarding this issue, and most cases settle out of court. Nimmer on Copyright  discusses this issue by referring to Mike Tyson and the suit surrounding his facial tattoo which states, "[t]he tattoo qualifies as an original "work of visual art" that may gain "recognized stature," with the result that a court may enjoin its destruction. See 17 U.S.C. § 106A(a)(3)(B). After a court invokes that provision to bar him from removing his tattoo, Mr. Tyson literally may not show his own face to the world; that is, he will be required to keep Mr. Whitmill's handiwork spread across his face, regardless of his own desires. Copyright law thereby becomes the instrument to impose, almost literally, a badge of involuntary servitude, akin to the mark with which ranchers brand the cattle they own." Nimmer


Currently there is a case in New York District Court in front of Judge Laura Taylor Swain involving LeBron James' tattoos on a video game created by Take-Two the publisher of NBA 2K video game franchise. Take-Two argues that LeBron James' tattoo is de minimis or fair use and therefore the case should be dismissed. However, Judge Swain denied their motion and further stated that "[t]he Court finds that, with respect to the video game at issue, it is not possible to apply the qualitatively-focused 'average lay observer' standard." In addition, Judge Swain states, "[b]ecause of the difficulties inherent in conducting a side-by-side comparison of the video game and the Tattoos, further evidence must be considered in connection with the fact-intensive question of the applicability of the fair use defense. As the differences between the Tattoos and Defendants’ use in the video cannot be resolved with assurance on a visual comparison of the works alone, Defendants’ fair use of the Tattoos is not so clearly established on the face of the [SAC] as to support dismissal."



From Judge Swain's statements it sounds like she is even unclear on how to rule on this issue, and needs more evidence and fact-finding in order for her or the jury to make a proper decision regarding this controversial issue. So, it looks like we are waiting a little longer to finally get a ruling regarding tattoos and copyrights. However, in the meantime we can still argue the issues and attempt to see what would happen if tattoos are ruled copyrightable. Nimmer gives a great discussion on the weird and awkward outcomes that we might see if tattoos are ruled copyrightable:



1. An overlapping tattoo may be considered a derivative work would could infringe the original artist rights.


2. "Even when the tattooist assigns away by contract all right, title, and interest in the copyright, he can still return 35 years later to assert an inalienable right to terminate the grant."


3. Celebrity and athlete tattoos on film, documentaries or magazines would need to obtain a license from the tattoo artist to show their work, and if no license is obtained the celebrity or athlete could be liable for contributory infringement.


4. You are now walking around with someone else's copyrighted material on your body and have to get a license to show it publicly in a picture or movie.



We will eventually have a ruling regarding tattoos being copyrightable. However, in the meantime we can only postulate what the courts will rule, and apply current copyright law to those "copyrightable" images.


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Provisional Patent Application - Here is What you Need to Know!

 

 

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We are asked all the time what is a provisional patent application (PPA), and what are the benefits of filing a PPA. A PPA is a patent application that can be used to secure your filing date without having all the added costs associated with filing and presecuting a non-provisional patent application. If a non-provisional patent application is filed within one year of filing a PPA you may claim the benefit of the filing date of the PPA. In other words it is a place holder for you to be able to determine whether your invention is commercially viable before spending a lot of money on filing fees, and prosecution of a non-provisional application. Another key point is that a PPA will not lead to public disclosure, it does not get published unless its application number is noted in a later published application or patent.
 
A PPA gives you the application the ability to have an additional year to experiment, perfect your invention, find venture capitalist, market it, license it, or test the market before filing a non-provisional application. In addition, you can put "Patent Pending" on your invention, business plan, pitch deck, or marketing materials helping you keep the "Wolfs at Bay" until you are able to file the non-provisional and eventually get it issued into a patent.
 
A PPA has a time limit of one-year. If a non-provisional application is not filed within that year then there are no extensions available and you lose that priority date. By law you have to file a non-provisional application within the year or lose the benefit of the filing date. In addition, at the year mark you will have to file your International or Foreign Application at the same time claiming the benefit of the PPA. One risk you take by filing a PPA is that if during the year you add new matter, or new material to your invention that is not covered in your PPA, the new material may not rely on the PPA filing date, which could affect patentability if a reference disclosing the later-described invention is published after the filing of the PPA, but before the filing date of the non-provisional application.
 
So the question is what do I need to file a PPA? www.uspto.gov/forms
1. A written description of your invention that meets the requirements of 35 USC 112. What is it, how does it function, how do the parts work together. This should be clear enough to enable someone skilled in the art the ability to make and use your invention;
2. Drawings as Necessary; and
3. Fees.
 
The USPTO gives a great summary of a PPA as listed below:
  1. A PPA expires after one year.
  2. You cannot extend a PPA.
  3. You cannot renew a PPA.
  4. A PPA will never become a patent.
  5. You cannot file a PPA for a design .
  6. The USPTO does not examine PPAs .
  7. The USPTO does not conduct a prior art .search on PPAs
  8. The USPTO does review PPAs to make sure they meet minimum filing requirements.
  9. PPAs are not published by the USPTO (unless claimed as priority in a later-issued or published non-provisional application).
  10. You can use the term "patent pending" for the duration of the one-year pendency of a PPA
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Trade Secrets...What are They?

 

The Uniform Trade Secrets Act ("UTSA") defines a "trade secret" as: "information, including a formula, pattern, compilation, program, device, method, technique, or process that: Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy." The United States Patent and Trademark Office states that a trade secret must be used in business and must be used to gain an economic advantage over your competitors who do not know or use it.
 
Trade Secret laws can vary from state to state, however, there are similarities among the laws because almost all states have adopted some form of the Uniform Trade Secret Act ("UTSA"). In addition the U.S. has passed the Defend Trade Secrets Act which created, "federal civil cause of action, strengthening U.S. trade secret protection, with a choice for the parties between localized disputes under state laws or disputes under federal law, heard in federal courts." USPTO. Courts can protect your trade secrets as long as they remain secret. If the trade secret hold fails to main its secrecy or if it is independently discovered by a third party, or generally released to the public then the trade secret is lost, and your company cannot receive any protection for what you think is proprietary information. One of the best examples of a trade secret is Coca Cola's recipe for Coke, which is kept in a vault in Atlanta, Georgia.
Coca Cola Vault
 
 
Coca Cola Vault
Coke's trade secret has lasted for over 100 years and continues to be a trade secret today.
 
Courts can protect your trade secret by enjoining misappropriation. Misappropriation is defined as acquiring the trade secret "through improper means, or where it is disclosed or used without the express or implied consent of the trade secret owner after having been acquired under circumstances giving rise to a duty to maintain its secrecy. ‘Improper means’ include theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means." IPO.org. If your trade secret has been misappropriated the courts can award you damages, court costs, and reasonable attorneys' fees.
 
For your trade secrets to be upheld in court you must take reasonable security precautions. This helps provide evidence that your information has and will remain a trade secret. Investment in these precautions shows the courts that the information has value to your company and is a viable trade secret. These security precautions notify the employees and others that your information is confidential, and any unauthorized use or disclosure is improper.
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