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Daniel Nathan Ballard

Daniel Ballard’s Answers

7,438 total


  • Can I give away free music downloads of me playing my own version of other artists' songs without paying mechanicals?

    I'm a jazz musician. On my first released album, there was 1 cover song. It was my own arrangement, but still not my composition. I paid for the rights to use it. I paid for the number of CD's I was going to create, and I paid for the number of do...

    Daniel’s Answer

    You already know the answer -- you just don't want to hear it. Of course you may NOT distribute, even for free, your performance of someone else's copyright-protected musical composition.

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  • Trademark Application Exclusionary Language

    If I exclude lollipops in my description of goods does that prevent me from using the mark on freezer pops/ popsicles. Or are lollipops and freezer pops recognizebly different products. The definition of lollipop is "a piece of hard candy attached...

    Daniel’s Answer

    Only your own trademark attorney can evaluate your application and the Examiner's office action to provide you with actionable advice -- which will include advice on both trademark registrability and advice on use in commerce for common law rights development and infringement purposes. Those two bodies of advice are very, very different. In short, the scope of registration rights you end up with will not confine your trademark use rights. Moreover, just because an Examiner suggests an amendment does not mean it's legally necessary. Speak with your own Arizona-licensed trademark attorney.

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  • Are the rights to Amalgam Comics up for grabs since Marvel Comics and DC Comics aren't using them anymore?

    My uncle and I have been thinking of making a video game and we would like to use some Amalgam Comic book characters in it. I cant find who currently holds the rights so I suppose we could just use them freely but I'm not sure and I don't want to ...

    Daniel’s Answer

    DC Comics and Marvel Characters, Inc. co-own the copyrights to the various Amalgam comics.

    Visit copyright.gov, click on "search records," then on "post-1978 records" and enter "amalgam age" in the search box for "keyword." Then speak with your own copyright attorney who will tell you that there is lttle, if any, chance that you will be able to license the characters in the comics for a video game. Good luck, though.

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  • Can I import cellphone case brand imitations?

    I am looking to import certain cellphone cases from China that look a lot like branded cases in the US. The difference is they would not have their logo nor will they have their packaging, the case itself is identical to an original branded case i...

    Daniel’s Answer

    As my colleagues note, a cell phone case can be protected by a patent -- usually a design patent. Visit the link below to view some of those that are currently-in-force. Speak with your own patent attorney for a "freedom to operate" opinion. Good luck.

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  • Copyright date

    I have photographs that I want to upload to the web and license under an Creative Commons Attribution license (http://creativecommons.org/licenses/by/4.0/). Should the copyright I put on the images be dated as the date I took the photograph, or th...

    Daniel’s Answer

    As Attorney Vaccaro notes, the date on the copyright notice is the date the work was first published.

    Note that displaying a work on the internet, without more, is NOT a "publication" under Copyright Law. See Compendium of U.S. Copyright Office Practices, Third Edition at Section 1008.3(B). For a work to be "published" via the internet [as opposed to merely "displayed"] the author must offer to distribute the work to a group of persons for purposes of further distribution, public performance, or public display. Which you would very likely be doing if you display the works on the internet with a CC license that permits reproduction.

    The distinction between displaying a work on the internet and publishing via the internet is important because it's much easier and inexpensive to register the copyright in unpublished works [of the same sort and authored by the same person]. Speak with your own copyright attorney before you post your photographs online to discuss these matters. Good luck.

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  • Do I have Intellectual Property Rights or do I have to TM my business name?

    I created a business MGS Products and had a website mgsproducts.com and mgsproducts.net for a very long time. I was with a company that I didn't like to host my domain and I allowed them to keep it until it expired. As soon as it was expired I was...

    Daniel’s Answer

    Well, your problem is of your own making. Why on earth would you conduct an internet-based business using a domain name that someone else owned? It makes NO business or legal sense for a web host to own the domain name registration that its ecommerce customer is using to do business. That was a fundamental mistake on your part. Don't do that again.

    As for whether you can legally compel the new registrant of mgsproducts.com to transfer that registration to you the answer is likely -- but it will cost about $5,000 and you'll have to initiate a Uniform Domain-Name Dispute Resolution Policy ("UDRP") arbitration proceeding. As between you and the new registrant, you have the senior common law trademark rights in the phrase "MSG Products" and you owned them before the new registrant registered mgsproducts.com.

    Speak with your own Wisconsin-licensed intellectual property attorney, of course, but expect to be told that the new registrant will not transfer ITS mgsproducts.com registration over to you for free and that it will cost you far less to simply buy it back -- which will be a relatively inexpensive business lesson about domain names that you should have learned long ago. Good luck.

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  • How much should I charge a person whose mark is so closely related to mine potential Trademark Infringement applies! I

    I am seeking seasoned lawyer to write up documents that protect my mark and at the same time create documents that generate monies through licensing under my brand. Time is of the essence.

    Daniel’s Answer

    You're asking for legal services that you don't know -- indeed can't know -- that you need without your own trademark attorney evaluating the situation. The other party may not be infringing your trademark [the same mark may lawfully be used by more than one company] and, even if he is, a licensing arrangement may very well NOT be in your company's best interest. Willy nilly licensing is how "accidential franchises" are formed or trademark abandonment occurs. So back way up. The legal services you need FIRST is an evaluation of what's happening in the marketplace. Then you and your own attorney can move on from there. Good luck.

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  • Will I be infringing on the name Sherlock Holmes?

    I have a friend who has a company called "House Hunters USA". He came up with the concept of using a spin on "Sherlock Holmes". Since he his "Hunting for Homes". We named him "Sherlok" (Minus the "C", "HOMES" (minus the "L") Since it's ...

    Daniel’s Answer

    I think you want to know whether you [and others] can lawfully call your real estate investor friend "Sherlok Homes." Of course. You can call him anything you like.

    The more difficult question is whether your friend can, in commerce, lawfully call himself or his business "Sherlok Homes."

    Maybe. The fictional character Sherlock Holmes as portrayed in certain public domain books is no longer protected by copyright. There are, however, other Sherlock Holmes books and movies that are not yet in the public domain. But the copyrights to those works do not preclude others from using the name "Sherlock Holmes" [or any variation] in commerce. So the question, as noted by my colleagues, is whether someone else is already using that name or one similar to brand real estate investment services or other, related services. Your friend's own trademark attorney will have to investigate. Good luck.

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  • Patent rights when inventor accepts employment to implement his invention

    Hypothetical example: Mr. G filed provisional patent application for his razor and blade invention. He was not able to raise capital, decided not to pursue patenting and accepted employment to oversee production of the razors that he invented. Lat...

    Daniel’s Answer

    First, and perhaps foremost, a patent application drafted and prosecuted by a non-patent attorney will very likely never issue as a patent or, if it does, the claims will be so narrow that making a non-infringing version will be relatively simple.

    But let's entertain the fantasy that G is issued a useful patent. G, therefore, has a "negative" property right -- that is, he owns the right to sue others for infringing the patent. A patent lawsuit, however, costs about a million dollars. So G's threat to sue someone is, charitably, very, very weak.

    But let's assume that G's employer is making a product that infringes G's patent and G can afford an infringement lawsuit. Is the emplloyer liable? The answer will depend upon, among other things, the employment agreement between G and his employer. It could, and should, address each party's rights with regard to the invention G brought to the company when hired. Even if it doesn't, G could be found to have granted an implied [or even express] license to his employer via his employment and conduct while employed. Or he could be found to have "unclean hands" by not disclosing the two patent applications -- and so he loses the right to enforce the patent.

    You need to speak with your own California-licensed intellectual property attorney.

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  • Dispute over an image on our website

    An image database provider is claiming that we are using one of their images on our website in violation of copyright law. The reality, however, is that we downloaded the image from a free online provider over 3 years ago. The complainant is say...

    Daniel’s Answer

    First, you and your own attorney should investigate whether the infringement claim against you is a covered event under the "advertising injury" prong of your insurance plan.

    Second, you need to realize that everyone claims they innocently downloaded the allegedly infringing photograph. In your case you can't even prove from where -- which, even if you're telling the truth, bodes very poorly for you.

    Third, photography archive companies that license their works are quite good at registering the copyrights in their photographs. Which means that the rights holder can seek its attorneys' fees and statutory damages for the infringement -- and that is very serious leverage against you because it increases the likelihood it will file suit.

    Fourth, yes, the onus does fall on you to prove where and how you obtained the photograph. You admit you didn't create it and so you own no rights in it -- but, now, faced with someone who does claim ownership you feel offended as if that person has done something wrong. Wow. I suggest you re-think your position.

    Fifth, if the "image database provider" is Getty Images then you should query Google for [ site:avvo.com/legal-answers getty copyright ] and read the numerous other questions and answers published over the years about how to handle its infringement claims. Getty sues only rarely, but it does. So speak with your own Florida-licensed intellectual property attorney.

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