Category Archives: Intellectual Property

Artist Profiting off of other People’s Instagram photos

Earlier this week, the Washington Post published an article about the Richard Prince Exhibit at the Frieze Art Fair in New York City. In his exhibit, Prince enlarged screenshots of Instagram posts by other people.  Then, he sold all the artwork with some individual pieces going for $90,000.

Apparently, the proceeds are not going to the original Instagram poster.  One of the original Instagram posters stated that she did not give express permission to Prince to duplicate her work.  That being said, did the original poster have the right to exclusive use of her photo regardless of whether or not it was posted on social media?  Would the same Instagram photo have been sold for as much as it did if it was sold by the original poster?  Keep these rhetorical questions in mind the next time you post a photo on your social media feed.

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FTC’s Unanimous Vote Against Snapchat for Privacy Rights

To round out the year, the Federal Trade Commission (FTC) released their final order involving Snapchat. The unanimous vote, 5-0, reprimanded Snapchat for misrepresentation to consumers and orders changes to encompass more of user’s privacy rights. The FTC pointed out that Snapchat failed to fully disclose the amount of data it was collecting from its users. The full press release is available here. The charges against Snapchat are now settled.

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Discovery Related to Facebook and Social Media

Litigation News, associated with the American Bar Association, published a list of cases and the impact of these cases on discovery practices.  The courts’ analysis for these specific cases further defines the parameters of social media evidence.  Furthermore, the discovery practice guidelines mentioned are relevant to anyone dealing with clients who regularly use Facebook.  Read more by clicking on the article here.

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European Commission Pursuing Microsoft for Non-Compliance with Browsers

On October 24th, 2012, the Competition arm of the European Commission announced that they are holding Microsoft accountable for non-compliance with browser choice commitments.  In layman’s terms this means that the European Commission is going after Microsoft.

In December 2009, the European Commission made Microsoft’s browser commitments legally binding.  The press release regarding the European Commission’s acceptance of Microsoft’s commitments to give users browser choice is available here.

In the current investigation and enforcement action, the European Commission holds that Microsoft failed to “comply with its commitments to offer users a choice screen enabling them to easily choose their preferred web browser.”  The first step in this process was the release of the European Commission’s Statement of Objections to Microsoft.  The press release detailing the Statement of Objections is available here.  Most notably, the press release emphasizes that Microsoft “failed to roll out the browser choice screen with its Windows 7 Service Pack 1, which was released in February 2011.  From February 2011 until July 2012, millions of Windows users in the EU may not have seen the choice screen.”  It will be interesting to see if this enforcement has an impact on Microsoft in the United States.

A video of the official European Commission press conference, with Joaquin Almunia making the statement, is available here.

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Safety in Numbers

Novak Druce + Quigg LLP plans on merging with Connolly Bove Lodge & Hutz before January 2013 to create a larger intellectual property firm.  Novak Druce was originally founded by former Howrey lawyers in 2005.  The ABA Journal writes about the upcoming merger, and read more about the law firm change here.

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Louboutin Wins Trademark Protection, But Loses Injunction

Fashionistas and stylistas are familiar with the trendy, expensive, red soles and high heeled shoes designed by Christian Louboutin.  Earlier this week, the Second Circuit U.S. Court of Appeals in New York granted trademark protection to Louboutin’s red-soled, high heeled shoes.

Initially, Louboutin’s brand name filed a preliminary injunction against Yves Saint Laurent America Inc. (“YSL”) from selling shoes that are all red because the YSL shoes include an outer red sole which Louboutin alleges as their trademark.  In August 2011, Judge Marrero in the Southern District of New York denied Louboutin’s injunction.  On appeal, the preliminary injunction was again denied and the case was sent back to district court.

However, the Second Circuit judges clarified that Louboutin’s shoes are entitled to a limited trademark protection.  Specifically, the trademark protection applies to the “red lacquered outer sole that contrasts with the color of the rest of the shoe and not to shoes that are monochromatically red.”  Read the full Bloomberg Businessweek article by Don Jeffrey and Cotten Timberlake here.  Jeffrey and Timberlake quote the decision,

The district court’s conclusion that a single color can never serve as a trademark in the fashion industry was based on an incorrect understanding of the doctrine of aesthetic functionality,” U.S. Circuit Judge Jose Cabranes wrote in today’s decision. “We conclude that the trademark, as thus modified, is entitled to trademark protection.

Chad Bray of the Wall Street Journal expounds upon the decision by stating,

Louboutin may have lost the fight against Yves Saint Laurent’s monochromatic shoe, but won a much broader battle over the use of its iconic color, according to trademark experts.

The full article is available here.

Since the justices believe that granting broad rights to the color red harms competition in the fashion industry, the injunction was denied and YSL will continue to produce red shoes with red outer soles.

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FTC and Facebook Finalize Privacy Settlement

On Friday, August 10th, the Federal Trade Commission listed a press release regarding a settlement with Facebook.  The press release is available here.  Facebook was initially charged with sharing private user information with third parties and thus deceiving consumers on privacy settings.

As the press release states:

The settlement requires Facebook to take several steps to make sure it lives up to its promises in the future, including by giving consumers clear and prominent notice and obtaining their express consent before sharing their information beyond their privacy settings, by maintaining a comprehensive privacy program to protect consumers’ information, and by obtaining biennial privacy audits from an independent third party.

The original settlement talks between the FTC and Facebook were publicly announced in November 2011.  The FTC posted the eight counts of privacy violation charges against Facebook and the proposed settlement here.  Nine months later, the agency and company are closer to changing the future of privacy laws and enforcement.

Dan Rowinski published an article on ReadWrite Web with additional comments on the settlement available here.

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Perks of Legal Tweeting According to LOMAP

When I graduated from law school, one of the first organizations I interacted with was the Law Office Management Assistance Program (LOMAP).  They offer great seminars for anyone interested in becoming a soloist.  They are also superb at helping attorneys network with each other.  Many people say that they are a hidden gem among the Massachusetts legal field for soloists or small firms.  Recently, Jared Correia, the Senior Law Practice Advisor at LOMAP, published a piece about the perks of tweeting to help get clients.  Check out his article here.

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Facebook Alters Email Addresses in Users’ Contacts

Has Facebook gone too far in the hopes of becoming more efficient?  Has Facebook crossed the proverbial line of messing too much with users’ stuff and invading their privacy?  Or, was Facebook justified in making alterations to users’ contacts and address books because users gave permission to Facebook to access these features?

Yesterday, CNet published an article about how Facebook attempts to unify user email and user contacts resulted in replacing people’s work and other email addresses in their contacts with Facebook’s user assigned email addresses.  The full article is available here.  To make matters worse, some emails accidentally sent to the user’s Facebook email address were never received by the intended recipient.

Violet Blue, the author of the CNet article, writes,

Facebook users say contacts’ e-mail addresses on phones and personal devices have been altered without their consent — and their e-mail communication is being redirected elsewhere, and lost.

I did not have my Facebook contacts synced with the other apps on my iPhone or home computer which may have prevented contacts alterations from occurring.

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Search Engine Land Submits Letter to FTC Regarding Disclosure Compliance

In early June, Search Engine Land writer, Danny Sullivan, submitted a letter to the Federal Trade Commission readdressing disclosure compliance of search engines.  The letter is available here.

Sullivan included strong language in his letter, such as:

The idea that a CEO could pen a letter about a competitor’s supposed lack of consumer transparency without a concern that his own company doesn’t follow your guidelines suggests that those guidelines either aren’t taken seriously by some in the search engine industry or aren’t considered applicable to them. I’d like the FTC review to address this.

When the guidelines were drafted, the concern was that consumers might not know what was paid for or not within search engines and assume everything was listed without payment being a factor, since that’s how search engines had historically operated. Compliance with paid placement listings generally seems good. But when it comes to paid inclusion, which was always the trickier issue, compliance seems to be poor.

The letter also included definitions of relevant actors within the search engine field.

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