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Daniel Nathan Ballard

Daniel Ballard’s Answers

7,564 total


  • Which country's copyright law shall be applicable in this case?

    If we find a company in another country using our footage in its video without our authorization and we want to suit it, which country's copyright law should be applicable to? Can we suit it in our home country or their home country?

    Daniel’s Answer

    The issue is not really which country's law will apply -- all the countries that are Berne Convention signatories have essentially the same copyright infringement law -- the issue is in which country could you file suit. The general rule is that a rights holder can file suit only in the country where the infringing conduct is occurring. Determining where that infringing conduct occurs can, unfortunately, be quite involved. Only your own copyright attorney can assist you after reviewing all the facts. And note: Sometimes it's far smarter, and economically more beneficial, to try to work with the infringer so you both can make money via the infringer's conduct. Good luck.

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  • What is the possibility of the USPTO granting trademark to a name of a business already exists with similiar services.

    I am looking to file a state trademark that is the exact same (name wise) as a current federally registered trademark. The federally trademarked company, with the exact same name as my proposed company, provides "retail distributorships featuring ...

    Daniel’s Answer

    I agree with Attorney Lang that "[r]etail sales of windows and doors is quite different from cleaning of windows and other portions of the building" and, so, your adoption of the already-in-use name may not infringe the Illinois-based company's trademark rights in that name.

    This would especially be true if that Illinois company is not doing business in Georgia where you will be using the name [trademark rights, even federally registered trademark rights, being geographically limited]. In that circumstance acquiring a Georgia state trademark registration is worthwhile. That would preclude all others in Georgia from competing with you under that or a confusingly similar name.

    As my colleagues note, however, IF the Illinois-based company does do business in Georgia, or when it begins to do business in Georgia, then the issue of whether your use of the name infringes that company's trademark rights will be teed up. As noted, your services and that company's goods may not be sufficiently related to create a likelihood of marketplace confusion.

    ONLY your own Georgia-licensed intellectual property attorney can evaluate all the facts in play to provide you with actionable advice. Speak to one in private. Good luck.

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  • I have a question about films rights and ownership of raw footage

    Our agency hired a production company to shoot and edit a few corporate videos. Our contract does not state "work for hire" but it does also not have any specific usage or copyright provisions. We contend that it was our creative direction and aut...

    Daniel’s Answer

    If the video shot by the production company was indeed the result of your agency employee's "creative direction and authorship" then your company owns the copyright in the video. A mere technician who helps create a work but adds none of his own creativity is NOT an "author" of that work. More likely, however, your agency is a joint author because the production company quite likely added some creativity. If so then your agency is a joint owner of the copyright in the video -- in all the footage, even that which didn't make it into the final version.

    Disclose all the facts to your own Oregon-licensed intellectual property attorney in private to get his or her take on this authorship issue.

    If your agency is the sole author, and therefore sole owner, the production company has no say in what you do with the raw footage. If your agency is a joint author, and therefore joint owner of the copyright, then you both have the right [at least under copyright law] to exploit the footage subject to compensating the other joint owner a pro rata share of any profits earned.

    Good luck.

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  • When does a copyright start?

    I drew something in 2010 but I never submitted it to the copyright office. I want to copyright it now. Does the copyright start now in 2015 or will it be retroactive since 2010?

    Daniel’s Answer

    As my colleagues note, copyright automatically protects a copyrightable work as soon as the work [and each draft and version] is created. No registration is required. The copyright term for your drawing, therefore, began in 2010.

    When the term ends depends on facts you haven’t disclosed.

    For works created by a single author the copyright term lasts for the life of that author plus 70 years.

    For works created by two or more authors the term lasts for the life of the last-living author plus 70 years.

    For works that were “made for hire” and all anonymous and pseudonymous works, the copyright term is 95 years from the first publication of the work or 120 years from creation, whichever is shorter.

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  • Can I review competitor's product on my website?

    I'd like to review competitor's products on my site so readers could make an educated buying decision. My option #1 is to review a product (or products) and compare it to my products. Option #2 is to review product WITHOUT comparing it to my produ...

    Daniel’s Answer

    You should query Google for [ FTC "comparative advertising" ] and read some of the legal information provided -- especially the information from the Federal Trade Commission and the advertising attorney authors. Then you should discuss the matter with your own New York-licensed intellectual property attorney or advertising attorney.

    In short, comparative advertising is lawful if done correctly and accurately. Good luck.

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  • Effect of going out of business on intellectual property and on financial claims against an LLC.

    I am a member of a very small LLC . We own software code that we will soon assign to a independent non-profit. We will then close the LLC. What happens if, after closing, business "A" asks for a refund based on services that they claim were not pr...

    Daniel’s Answer

    As a matter of contract law, by adapting your software for "A''s particular use and by delivering it and accepting payment your LLC has already granted "A" a license to use the modified software -- it's just not in writing.

    On these facts your LLC very likely has no obligation to sign a written license agreement and, therefore, no obligation to return "A"s payment.

    Absent your LLC signing "A"s version of a license it's demanding "rescission" of the contract -- that is, returning you both to the time before the contract was formed and as if the contract never existed. The problem with that, of course, is that your LLC has already performed its obligations by adapting its software for "A"s use. Your side cannot return to a time before the contract was formed.

    Your own North Carolina-licensed intellectual property attorney needs to explain all this to "A." This license matter is controlled by tate contract law -- not federal copyright law -- so you need a North Carolina-licensed attorney. Moreover, that attorney will also need to help you with dissolving the LLC under North Carolina law [which likely cannot be lawfully done while the dispute with "A" is ongoing]. In addition, state law will also control the copyright assignment between your LLC and the non-profit company.

    In short, you really need to get some significant legal advice to resolve this situation. Good luck.

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  • A film company is streaming our film on their YouTube page for free; they have no rights but are benefiting from it. How to sue?

    A film company is streaming our film on their YouTube page for free; they have no rights but are benefiting from it. How to sue?

    Daniel’s Answer

    A better question is how can you monetize the company's streams of your film.

    You can, of course, simply demand that YouTube take the film off the company's channel [visit the first link below].

    Or, if you have a substantial amount of other material that's being infringed, you can apply to join YouTube's "Content ID" program which, if approved, will permit you to insert advertisements in the infringing material [visit the second link below].

    Yes, you can sue. But your own Massachusetts-licensed intellectual property attorney should first consider a non-adversarial approach. Like sharing the revenue earned. Good luck.

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  • Can I patent yet or no?

    Okay so I have an idea for a product(I won't disclose much info about it so no one can take it) but its a pack for back to school. I haven't done anything for it yet but is it possible to patent it or anything like that so when I so go to make it ...

    Daniel’s Answer

    Your FIRST concern is whether the sales of your product would infringe a currently-in-force patent. Your own Michigan-licensed patent attorney can perform a "freedom to operate" patent search and then advise you on whether your product is currently patent-protected. If so, you can't lawfully sell the product [without a license from the patent owner].

    If it's not currently patent-protected, then your attorney will discuss with you whether your product is patentable in light of all the other analogous products that have EVER been made public through sale or disclosure in a printed publication. If it could be then you can file a patent application. If not, then you can still sell your product -- but so can everyone else. The "protection" for your product would, in that situation, be its snazzy product name, product quality, availability, and price.

    In short, speak with a Michigan-licensed patent attorney. Good luck.

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  • I had a copyright infringement lawsuit on my LLC. Can they involve my New LLC under the lawsuit.

    I had a copyright infringement lawsuit on my LLC where I was sole owner and started another LLC with a partner... New LLC is totally separate entity with no connection to old LLC, other than I am part owner... Under what circumstances (if any) can...

    Daniel’s Answer

    I assume the copyright infringement lawsuit is still proceeding against LLC #1. If so, then you already have an attorney handling the matter. So why not ask him or her your question? In fact, you NEED to ask the question to your current attorney because the answer may affect the ongoing lawsuit -- and because that attorney will have far more facts than you've disclosed here.

    If the copyright infringement lawsuit against LLC #1 is over [that is, a final judgment or dismissal has been entered] then it's over and the rights owner cannot "include" LLC #2 in the suit. The rights owner can, of course, initiate a new infringement suit against LLC #2 if that company is infringing its copyright. Perhaps that second lawsuit can be successfully defended based on the argument that the rights owner should have joined LLC #2 in its first lawsuit. Or perhaps not.

    Speak with your current attorney or, if you don't have one, speak with a Texas-licensed intellectual property attorney. Good luck.

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  • Can an ex-partner from my LLC copyright work and IP after his voluntary withdrawal?

    After withdrawing from our 3 partner LLC, an exiting partner has threatened to copyright his work and IP. We have an operating agreement but there were no documents drafted that cover ownership of rights. In this case do the rights and IP for work...

    Daniel’s Answer

    Federal law creates the general rule that the copyrightable work product of a partner, LLC member, or employee created within the scope of his or her duties and for the benefit of the hiring party is owned by the hiring party -- not by its creator.

    Partners, LLC members and employees can alter this general rule by way of a written agreement with the hiring party. Absent that written agreement, however, the general rule applies.

    Your own Oregon-licensed intellectual property attorney needs to review the facts of your particular situation but expect to be told that the former LLC member does not have the right to claim ownership of the copyrightable works he created while working on behalf of the LLC. Good luck.

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