Category Archives: DMCA

CLE Course: Sex, Drugs, and Rock ‘n’ Roll – How Modern Lifestyle Industries Push the Limits of IP Law

Can a rock band named the “Slants” get a trademark on their band name? Can Apple get a patent for a device that can be used to vaporize marijuana? Does the owner of a “tube” website featuring adult content get immunity from user uploaded videos under the Digital Millennium Copyright Act (DMCA)?

While most of us have a basic understanding of copyright, trademarks and patents, we don’t always think about how intellectual property law can protect our client’s products, brands and services in the context of modern lifestyle industries.

This CLE course is a fascinating review of the specific rules that are triggered by clients who are in industries that push the edges of social norms – such as medical marijuana, adult content and the Rock n’ Roll music industry. Peter Afrasiabi also addresses the fascinating morality standards that apply and are deployed in the trademarking and patenting process to limit the scope of trademarks and patents in matter that is deemed scandalous by the government. To access this please click here: Sex, Drugs, and Rock ‘n’ Roll: How Modern Lifestyle Industries Push the Limits of IP Law.

We will start with an IP overview for the general practitioner and then explore the copyrighting, trademarking and patenting rules that are being tested by these industries.

From battles with Madonna over the “Material Girl” brand to fair use disputes with the Eagles’ Don Henley to protecting such iconic brands as Bettie Page in trademark and trade dress disputes, Peter R. Afrasiabi primarily handles copyright, trademark, and entertainment disputes. He is also the Chair of the Appellate Practice Group for One LLP and co-director of the Appellate Litigation Clinic at the University of California, Irvine School of Law.

This CLE course is offered in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • Missouri (MO)
  • New Hampshire (NH)
  • New Jersey (NJ)
  • New York (NY)
  • North Dakota (ND)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers CLE for attorneys in California and around the country. For more information about CLE in California please click the following link: CA CLE.

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CLE Course on Publishing & Writing Law


While the Internet and digital technologies have wreaked havoc on copyright & Intellectual Property law the last decade, many of the same fundamental legal principles continue to apply to publishing industry and writers. At the end of the day, attorneys still need to help writers to make money from the works that they create. This requires the attorney to see down the road with vision and realize that decisions made today have major implications for the writer’s future project and legal rights. The attorney should have one mantra when counseling writers – own everything, the entire “bundle of rights.”

In the over 4 decades that I have been practicing law, I have seen that rights owners or other contracting parties frequently fail to exhibit a wide vision of the market for their product or service. As a result, they often make deals that manifest that lack of vision and end up giving away or failing to ask for rights that can turn out to be very valuable down the line, if not in the immediately foreseeable future. Thus the need for vision.[1] – Ivan Hoffman

In this broad overview of writing and publishing law, Los Angeles attorney Ivan Hoffman covers many of the key issues faced by writers in the publishing industry. The main topics discussed include the relationship between contracts & copyright, the interplay of Internet & copyright law, the legal nuances of book publishing contracts, the relationship of trademark law and writing & publishing law, authors & contributors and the Internet & children (COPPA). To access the course please click here: Publishing and Writing Law.

Further topics addressed in this CLE course include:

  • Focusing on the contract
  • Registering copyrights
  • Works made for hire
  • Cover art & illustrations
  • Joint works & authors
  • The fair use defense to copyright infringement
  • Termination of transfers
  • The publisher/author relationship
  • Submission agreements
  • The Digital Millennium Copyright Act (DMCA)
  • The Communications Decency Act (CDA)
  • Website designers & developers
  • Permission forms & third party materials
  • Failure to publish provisions
  • Royalty provisions
  • The author’s warranties & indemnities
  • Owned & controlled provisions
  • Older contracts
  • What trademark law protects
  • Ghostwriters
  • The Children’s Online Privacy Protection Act of 1998 (COPPA)
  • Operating with vision

Ivan Hoffman has practiced law for over forty years. Based in Los Angeles, California, he concentrates his practice on Entertainment Law, Publishing & Writing Law, Copyrights, Trademarks, Internet Law, Web Design Law, Sports Law and IP Law. Mr. Hoffman believes in practicing preventative law and he tries to advise clients in this regard so that they may possibly be able to avoid the very significant costs and fees of remedial law. Preventative law is about doing proactive, effective and thorough legal work in a manner that seeks to avoid problems that can arise later on. Preventative law is when rights are well documented, agreements are well drafted and when a longer-term view is used.

This course on publishing & writing law is offered in these states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • New Hampshire (NH)
  • New Jersey (NJ)
  • New York (NY)
  • North Dakota (ND)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in California and around the country. For more information about CLE in California please click the following link: CA CLE.

[1] The Need for Vision, Ivan Hoffman, B.A., J.D.

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Pinterest Spawns Copyright Issues

First there was MySpace.  Then there was Facebook and Twitter.   And then came Google+.  Now Pinterest is “the next big thing” in social media – but it may go the way of Napster soon.

Here is an excerpt of a statement that Pinterest sent the Wall Street Journal:[1]

The protection of copyrighted content is by no means unique to Pinterest — virtually every site on the web that allows users to express themselves contends with copyright complexities. As a company we care about respecting the rights of copyright holders and have outlined on our site best practices that people should abide by when adding pins to make them useful to themselves, the community, and the content owners.

The Information Age has been harsh on Intellectual Property and the laws that protect it in this country and abroad – just ask the entertainment industry about Napster, LimeWire and  Now, Pinterest – a website which calls itself an ‘online pinboard’ – also threatens to run afoul of U.S. copyright laws.

On the Pinterest website users basically create virtual bulletin boards by pinning content ‘found’ across the Internet.[2]  This content includes pictures, recipes and bedroom designs – but what if this content does not belong to the user?

Along with many business and marketers, photographer and attorney Kirsten Kowalski was among the masses that have flocked to Pinterest to create her own virtual scrapbook.[3]  However, one day as she was pinning photos on the website she had an epiphany.  Because she did not own the content that she was pinning, her virtual scrapbook may potentially violate U.S. copyright laws and could subject her to legal liability.[4]

That’s because while Pinterest enjoys DMCA (Digital Millennium Copyright Act) protections for user-generated content, website users themselves don’t have the same legal protections afforded under the DMCA.  Therefore, users may be exposing themselves to a significant legal risk and could face severe penalties such as monetary damages.[5]  Further, under the “Legal & Copyright” section of the website, Pinterest makes no mention to their users that they could be violating copyright laws by posting content that does not belong to them.[6]

The easy solution to this copyright issue?  Advise your clients not to post anything they don’t own and create on Pinterest.  Make sure your clients aren’t posting celebrities photos or pinning pictures that don’t belong to them.  Otherwise, they must go through the arduous process of clearing the rights with the copyright holder.

Pinterest did offer this to the Wall Street Journal Law Blog:[7]

Moreover, we strongly encourage people to pin from the original source or permalinks, give credit to the content owner, and include a thoughtful pin description. If a user notices that a pin is not sourced correctly they should leave a comment so that the original pinner can update the source. Many publishers have also added “Pin It” buttons to their site, making it easier to identify content that is okay to add to Pinterest.

Finally, content owners who do not want their material shared on Pinterest can add a small piece of Pinterest-provided code to their site that prevents Pinterest users from sharing that site’s content. We also strictly follow the Digital Millennium Copyright Act (DMCA) to ensure we are in compliance with all copyright laws and respond rapidly to infringement reports.

[1] How to Use Pinterest without Breaking the Law

[2] Is Pinterest the Next Napster?

The social media website lets their users collect ideas they run across on the Internet for such things as recipes, home décor and gardening. Each user then maintains a board of photos and other users can then click on the links to the original source and choose to re-pin the image on boards of their own.

[3] Founded in 2009, Pinterest attracted 17.8 million unique users in the month of February, according to comScore Inc.

[4] Last month Ms. Kowalski wrote a blog post that went viral.  In the blog post she explained why she was taking down photos from others that she had pinned to her virtual bulletin board.

[5]  Illegally downloading one song can net you a $75,000 fine.  That would be a pretty hefty fine for illegally pinning pictures you don’t own on your virtual scrapbook.

[6] See:

[7] How to Use Pinterest without Breaking the Law

New Free Music Site – 5 Years Too Late?

After just completing a text course detailing the entertainment industry’s battle against online piracy, I was pretty surprised to wake up this morning to find this one: FreeAllMusic Strikes Deal With EMI For Ad-Supported Downloads.

Finally a common sense approach (indeed it’s almost the Hulu model for music) to the illegal downloading of music! We all knew that the digital revolution was coming. We all knew that it would changes our lives in unforeseen ways, and numerous commentators knew that it would greatly affect the framework of our Intellectual Property regime and copyrights specifically. But it’s as if someone forgot to tell the entertainment industry that this digital revolution was coming.

Instead of innovating and adopting novel legal solutions to the illegal downloading of music, movies, and television, the entertainment industry (through the RIAA and MPAA) has simply chosen to sue everyone under the sun! In the abscense of legal alternatives, of course people were forced to turn to illegal downloading, and the RIAA ended up suing 12 year old kids and 83 year old grandmas. Until the iTunes music store came along a few years ago, there was no real alternative to illegally downloading music.

The MPAA didn’t take much notice about the problem (not until a few years ago) because at the time that music files were being pirated across the world, the technology was not good enough to transmit massive movie files. Well, now that technology has caught up and broadband allows the transfer of massive amounts of information (including movie and TV shows) the MPAA has adopted the same approach as the RIAA – sue everyone in sight!

That is why it was so refreshing to read about’s deal with Universal Music and EMI. Albeit the deal is about 5 – 7 years too late to make any real difference, it does show that the music industry has finally realized that IP commodities will never be the same again. Simply put – the days of gauging consumers for $20 CDs is over, and if you want to continue to be viable in the marketplace you better find ways to innovate to stay ahead of the competition.

The MPAA realized this a few years ago when they launched in March 2008, a website that offers commercial-supported streaming video of TV shows and movies fromNBC,Fox, ABC and many other networks and studios. Hulu is a joint venture of NBC Universal, Fox Entertainment Group (News Corp), and ABC Inc. (The Walt Disney Company), with funding byProvidence Equity Partners, which made a $100 million equity investment and holds a 10% stake. Basically, it is a streaming video website that is owned by the content owners – this is how they were able to get the necessary licenses to host and display the content.

According to Dallas Mavericks owner and entrepreneur Mark Cuban, Hulu will eventually run YouTube into the ground. Its been over three years since he posted a declaration on his blog that only a moron would buy Youtube and that Google was crazy for actually going through with it, and he is starting to look more prophetic by the minute. Further he claims that while YouTube “hides behind” the safe harbor of the DMCA, Hulu has s superior advantage because it is able to license its content:

“Hulu has one HUGE advantage over YouTube, it has the right to sell advertising in and around every single video on its site. It can package and sell any way that might make its customers happy. YouTube on the other hand, has that right for only the small percentage of the videos on its site that it has a licensing deal with. For probably 99% or more of the videos on the site, YouTube isn’t supposed to know what they even are.

How can that be? Because YouTube hides behind the Digital Millennium Copyright Act. Hulu is a media site that presents videos with advertising. It can do whatever it wants. YouTube is a hosting service. It’s not allowed to know what videos are uploaded by users and its not allowed to generate revenue against those videos. It can only sell advertising around videos it has licenses to.”

One downside to all of this – if Cuban is right, and it looks like he is, content holders themselves will just about have exclusive control over their content online. This is especially true if Google and YouTube lose their upcoming $1 billion legal battle with Viacom. While some feel that YouTube may be protected by the safe harbor provision of the DMCA and the recent decision in Veoh, others feel that YouTube is destined to lose the case because there are reports that YouTube employees may be uploaded some of the ingringing content with the knowledge of their managers – this would be fatal to their case, and maybe their existence.

You can read more about the story of the entertainment industry’s battle for online supremacyThe Entertainment Industry’s Battle Against Online Piracy and Copyright Law in the Digital Age.