Can a pun be copyrighted?

T-Shirt from Gymboree

Novelty t-shirts displaying witty sayings and clever puns are quite the trend nowadays. The children’s clothing company Crazy8, a subsidiary of Gymboree, is offering these types cleverly-phrased t-shirts to tots around the country. However one particular shirt (seen to the left) containing the phrase, “lettuce turnip the beet,” has Gymboree facing a suit for copyright and trademark infringement.

Artist Elektra Gorski has been selling t-shirts (shown on the right) containing the same phrase on Etsy  for several years now, longer than Gymboree. Gorski claims that Gymboree has violated her copyright and trademark rights and has brought suit in the Northern District of California.

T-shirt from Elekra Gorski

Gorski argues that Gymboree’s t-shirt overall has substantially similar design elements. However, the Court held that the only commonality among the shirts was the phrase, “Lettuce Turnip the Beet.” According to copyright law, a short phrase cannot be copyrighted no matter how distinctively it is arranged.

In regards to the trademark claim, Gymboree argued that their use of the phrase falls under the fair use rule doctrine. Essentially, this doctrine states that a mark may be used to describe the product it is associated with so long as it does not create confusion about the product source OR imply an endorsement of the product or brand the mark represents.

The case has been scheduled for dispositive motion practice in June 2015, and the trial will be held in Decemeber 2015.

Trademark Attorney for the East Bay Area

trademark attorneyA good Trademark Attorney has specialized education and training in areas of the law created to protect  original designs and works.  A Trademark is a sign or a symbol that is easily recognizable and identifies products or services as belonging to a specific source.  An example of this would be the classic “Fruit of the Loom” trademark… used to identify the company responsible for t-shirts, underwear, socks, sweaters and more as being a product of “Fruit of the Loom”.

Trademark Attorney – Filing a Trademark

When you contact a Trademark Attorney to help you file for a trademark, they will:

  • Ensure your mark can legally be protected
  • Evaluate the strength of your mark
  • Assist with all of the paperwork
  • Search for existing or similar filed trademarks
  • Inform you of your rights as a trademark holder

One of the most important things you want to avoid is trademark infringement.  A professional-strength trademark has the potential to be seen on products, advertisements, coupons, even in giant lights on a skyscraper!  Using a name or mark that has already been trademark or is very similar to an existing trademark can result in legal troubles, which will cause you to have to destroy any marketing materials or inventory that contains the trademark and potentially having to pay damages.

Armand M. Estrada – Trademark Attorney

Trademark Registration is not a simple task, which is why it is always a good idea to seek the services of a Trademark Attorney like Armand M. Estrada!  Armand is located in Walnut Creek, and is available to help you file for a trademark!

Armand M. Estrada will not rush the job and risk exposing you future legal troubles!  There are happy clients all over the East Bay area who proudly display their registered, protected trademarks on their goods and services everyday… chances are you’ve driven by a client and didn’t even realize it!

Call Armand NOW and see why he is the best in Walnut Creek!

Music Piracy is Serious Business

music piracyMusic Piracy is serious business, especially in The United States of America.  The USA leads the entire world in music piracy, and it is estimated that almost 95% of all digital music files in existence are illegally obtained copies.

It is hard to imagine that an industry that makes billions of dollars a year can sustain damage from two friends sharing music, but it is severe.  Experts estimate that billions of dollars are lost every year due to casual and high-traffic file sharing in the United States… and those effects are seen in various territories around the world.

Record Sales are Down… and Falling

One of the now-known long term effects of the invention of online digital music distribution is the decline of physical album sales.  In a very short window of time, digital versions of songs and albums alike started to account for more than 20% of all music sales combined!

Neither the rise in popularity of digital music nor the decline in popularity of physical albums show any signs of slowing down.

As of this time, the effects of music piracy on the American economy have been:

  • 70,000 American Jobs LOST
  • $422,000,000 in Tax Revenue LOST
  • $2,700,000,000 in Worker Earnings LOST
  • $12,000,000,000 in Global Revenue LOST

As time goes on and music piracy goes unchecked, these figures will only rise to more incredible heights.

What is the Music Industry Doing to Respond?

The Recording Industry Association of America (famously referred to as the RIAA) has certainly taken notice of the music piracy problem.  In recent years, the RIAA has issued close to 3,000,000 copyright infringement notices to individual internet subscribers and to the offices of colleges and universities in America.  Violators face penalties of several thousand dollars PER SONG.

If you need help with copyrights in the East Bay area, I can help you with you get filed away quickly according to your needs.  Call Armand Estrada right now – (925) 944-9700

What is Public Domain?

Public Domain


What is public domain you may wonder? Public domain is a phrase that came into being in the mid-17th century. It is a term used to describe creative materials which do not fall under normal intellectual property laws. Works in the public domain are not protected by:

  • Copyright
  • Trademark
  • Patent laws

When a work enters the public domain it is literally owned collectively by the public. No single individual is allowed to take ownership of something in the public domain. If a work is in the public domain it can be used by anyone without any permission being required. There is no license or fee needed to use a work that is part of the public domain.

How does something become public domain?

handwriting-317033_640A work becomes public domain through a myriad of ways. A creative piece can become part of the public domain for any of the following reason:

  • An expired copyright (including cases were the owner fails to follow copyright renewal rules)
  • The original owner dedicates it to the public domain by choice
  • Work created by a government employee as a part of their official duties
  • A work that is not copyrightable (i.e. facts like the date of a war, processes, systems, names, short phrases, numbers, etc.)

How can a work from the public domain be used?

If a work falls under public domain it can be used freely in any way. It can be altered or used exactly as it stands. Remember though, if you are uncertain about the copyright laws of a work, you should consult with a copyright attorney who has a better understanding of copyright laws. If not you could be culpable for copyright infringement. Public domain works can be a great asset for a business, but works should only ever be used if you are truly certain they belong to the public domain.

The California Celebrities Rights Act of 1986

Did you know that the California Secretary of State has a registry of the names of the successor in interest of deceased personalities? The California Celebrities Rights Act of 1986 created an inheritable right to a person’s name or likeness for 70 years after death. Legislation passed in 2007 extended that right retroactively to all persons who have died since January 1, 1938. This right was recognized by the California Supreme Court after an eleven year court battle between the heirs of Bela Lugosi and Universal Studios.

The Act provides that a deceased personality’s name, voice, signature, photograph, or likeness, is intellectual property and belongs to his/her heirs unless contracted to someone else and may not be used on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from the successors-in-interest.

A person who violates California Civil Code Section 3344.1 is liable to the successors-in-interest(s) in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by the injured party or parties, as a result of the unauthorized use. Any profits derived from the unauthorized use must also be disgorged. In establishing such profits, the successors-in-interest(s) are required to present proof only of the gross revenue and the person who violated the section is required to prove his/her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party is also be entitled to attorney’s fees and costs.

There are other provisions under the Act relating to priorities and permitted uses without consent. To be on the safe side, however, you should try to get permission from the successor-in-interest and/or consult an East Bay intellectual property attorney.  

The “Fair Use” Rule

Many people wonder if there are certain circumstances in which they can use the copyrighted work of another without permission. When it comes to using an entire work, or a significant portion, the short answer is no—you cannot use someone else’s work without their explicit consent. However, limited use of that work may be permissible given the circumstance under the “fair use” rule.

“Fair use” refers to the belief that the public should be able to take snippets of copyrighted work and use them for the purpose of commentary and/or criticism without having to obtain permission. However, it can be tricky when trying to determine when the fair use rule is applicable. Therefore, it is highly advised that you consult an intellectual property lawyer before using any copyrighted material. For a copyright attorney in East Bay, contact Armand M. Estrada.

The following examples generally follow under fair use:

  • A college professor photocopies an article from the local newspaper and hands them out to his students for a class discussion over the article.
  • A stand-up comedian parodies a movie by reenacting a small scene from the movie.
  • An internet user posts a 3 sentence excerpt from an online news source with a link back to the news site.
  • A college student quotes a statistic from a research study made public to support a theory she is writing about in a research paper.

The examples given above are not conclusive and only apply to works that have been published. If the creator hasn’t authorized the release of their work to the public, fair use no longer applies regardless of how the material is used. The purpose being that you are infringing on the copyright holder’s right to decide when their work will be published.

To be on the safe side, you should try to get permission from the creator of the work you want to use if plausible. If not, you should consult an East Bay copyright attorney to see if fair use may be applicable.

Why are employee handbooks important?

One of the most important communication tools between you and your employees is the employee handbook. It establishes a set of expectations and standards for your employees to follow as well as educates them on company policy and culture. But it can also be an important legal tool as well.

Outlined in an employee handbook should be both the employee’s rights and the legal obligations of the employer. Important topics to cover include:

Non-Disclosure Agreements: This is a legal contract the employee signs agreeing not to disclose any private or proprietary company information that is covered by the agreement.

 Anti-Discrimination Policies: All employers must comply with the equal employment opportunity laws and they should be outlined in the employee handbook. These laws were enacted to protect employees from harassment and discrimination in the workplace.

Compensation: This section should indicate the required deductions your company will make based on federal and state taxes. You should also explain your legal obligations as they relate to pay schedules, overtime pay, salary increases, workers compensation, bonuses, breaks, and time keeping records.

These are just a few of the legal topics you should cover when drafting an employee handbook. For best measures, you should consult a qualified business attorney to assist you in the creation of an employee handbook. For a business lawyer in East Bay, call Armand M. Estrada today.

Armand Estrada – Serving East Bay Businesses for over 30 Years

For the past 30 years, Armand Estrada has been representing businesses in the Bay Area, specializing in business law. If you’re in need of help with property and real estate law, construction law, intellectual property laws, and more, then give us a call at our office. (925)944-9700

Don’t get the run around from forms and paperwork. Armand can help guide you and your business through what can be a confusing legal landscape.