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Daniel Nathan Ballard

Daniel Ballard’s Answers

8,198 total


  • What are typical counter claims a plaintiff may receive in a lawsuit against a defendant? See written details for full question

    Unauthorized people are using my copyrighted materials against my copyright terms. Before moving forward with my potential claims, I want to see what type of liability I may subject to regarding counter claims. What are typical "counter claims"...

    Daniel’s Answer

    You assert that "[u]nauthorized people are using my copyrighted materials against my copyright terms." That means you're licensing your copyrights and that someone is violating a term in the license.

    Which raises the question whether you have a breach of contract claim or a copyright infringement claim -- you can't have both.

    The general rule is that the violation of a covenant in a copyright license agreement gives rise to breach of contract claim while the violation of a condition precedent gives rise to copyright infringement claim. Said another way, a copyright owner who grants a nonexclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement and can sue only for breach of contract. If, however, the license is limited in scope and the licensee acts outside the scope, the licensor can bring an action for copyright infringement.

    So ... you need to back way up and speak with your own Florida-licensed intellectual property attorney to determine what claim, if any, you can properly assert. Only by knowing that answer can your own attorney determine what counterclaims could potentially be filed in response.

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  • How can I legally protect myself on a film project?

    I am a documentary filmmaker in Los Angeles. Over a year ago my partner and I came up with an idea for a film. We have been in constant contact with the essential "characters." We have done all of the work with research. Recently we pitched the id...

    Daniel’s Answer

    You should buy and read a few books about film law and business [visit the link below] and then speak with your own California-licensed entertainement attorney. Good luck.

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  • How does the fact that the domain name for my company website being offered for a high price affect me?

    I am incorporating a company which is an Entertainment channel that will be shared on online video platforms. I noticed that the domain name for my company e.g. swagsurfing.com is not being used but held for $5,000+. If my channel gains momentum w...

    Daniel’s Answer

    Q: "If my channel gains momentum will this price rise?"
    R: Maybe, maybe not. The price of anything varies depending on the needs and expectations of the two parties and on the buyer's alternatives -- all of which often changes. Query Google for [ "domain broker" ], speak with a few, and have your own negotiate a purchase price anonymously [which will very likely not be $5K]. And, as we all noted in response to your last question, make sure you clear the trademark rights to "Swag Surfing" before you move forward. And stop discussing your real-world business plans in public -- make up hypotheticals. Good luck.

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  • Can I re-use video from "You Tube labeled Standard You Time License" w /out infringing on copyright for a new video news report?

    I am a video news reporter, who reports on sport of Mixed Martial Arts. My news reports air on "You Tube" not on broadcast TV. I'm extremely familiar copyright infringement regarding photos. My Q is the re-use of video from YT. Some of the vi...

    Daniel’s Answer

    I think you're operating under a fundamental misunderstanding. YouTube does NOT own the copyrights in the videos its users upload to the site and YouTube does not own the right to license those copyrights to anyone. There is no such thing as a "You Tube labeled Standard You Time License." From its FAQ's: "YouTube cannot grant you the rights to use content that has already been uploaded to the site. If you wish to use someone else’s YouTube video, you may want to reach out to them via our messaging feature."

    You need to speak with your own Florida-licensed intellectual property attorney about your plans -- but before you do you should query Google for [ copyright "fair use" "news reporting" ] and read about how news organizations think about their unlicensed uses of others' works for news purposes. Good luck.

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  • Can I legally print and sell my shirts with the verbage Addicted2?

    I want to print and sell t-shirts with the word "Addicted2" on them with various types of addictions. For example Addicted2 Sports or Pizza etc. However there is a company with a trademark for Addicted2shirts. They are also in the business of prin...

    Daniel’s Answer

    You'll need to have your own Texas-licensed trademark attorney review your plan and to discuss with you why the already-existing trademark rights in "Addicted2Shirts" to brand a t-shirt company may very well preclude all others from lawfully creating their own trademark rights in "Addicted2" to brand a different t-shirt company.
    Good luck.

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  • Can I quote a statement made in public on a t-shirt if I am making a parody of it?

    I am considering creating a t-shirt for commercial use. This t-shirt would include the reason two-sentence quote from Marco Rubio: "Let's dispel with this fiction that Barack Obama doesn't know what he's doing. He knows exactly what he's doing...

    Daniel’s Answer

    Your plan is very likely lawful. That two sentence quote is very likely not copyrightable and, even if it is, who owns the copyright is unclear [Senator Rubio doesn't just because he said it] and, in any event, the First Amendment protection afforded to speech is at its strongest when the speech is directly political. When so protected, displaying and distributing such speech is a lawful fair use. Speak with your own Georgia-licensed intellectual property attorney to review your particular plan and to clear the rights to the other designs you intend to display. Good luck.

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  • Is it true that I have to obtain a "Copyright License" in order for a DJ to play music in my club?

    I own a restaurant/bar and I thought I had all the necessary licenses. But I contacted by ASCAP to inform me that if I have a DJ playing music in my club, I have to a "Copyright License" just to play the music. Is this true? If it is then why don'...

    Daniel’s Answer

    Yes, you need a "public performance" license from ASCAP -- and from BMI and SESAC as well.

    SESAC explains why: "SESAC, ASCAP, and BMI are three separate and distinct Performing Rights Organizations (PRO). Each organization represents different copyright holders (songwriters, composers, publishers) and licenses only the copyrighted works of its own respective copyright holders. Licenses with ASCAP and BMI do not grant you authorization to use the copyrighted music of SESAC represented songwriters, composers and publishers. Since a license with ASCAP and/or BMI does not grant authorization to publicly perform songs in the SESAC repertory, most businesses obtain licenses with all three to obtain proper copyright clearance for virtually all of the copyrighted music in the world."

    Visit the links below to learn more and acquire the licenses. Good luck.

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  • What should I do in the present case? Can I publicly reveal the conversation I had by email?

    I was asked to close my website because some of my users shared copyrighted content on it. They threatened me and said they were going to sue me if I didn't close the website. Since it's a website that I was maintaining for the past 4 years,...

    Daniel’s Answer

    In your comments to my colleague's responses you explained that the allegedly wrongful conduct was that third party's posted hyperlinks on your website. Publishing a hypertext link does NOT infringe the copyright in the linked-to material and, even if that material is itself infringing, none of the copyright owner's various rights granted by his copyright are infringed by the link.

    In short, publishing hypertext links is LAWFUL. You very, very likely do not need to take down your website and you are very, very likely NOT liable to the copyright owner for anything.

    So ... you need to discuss this matter with your own California-licensed intellectual property attorney. Perhaps there is a good reason to take down the links -- but perhaps not. In any event, there will be more facts in play that should only be discussed in private. Good luck.

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  • Can I name my Youtube channel the same name as another channel that only has 20 subscribers?

    Can I name my Youtube channel the same name as another channel that only has 20 subscribers? The channel name I want is Swag Surfing. There is already a channel that goes by that name with very few subscribers. My channel will be extremely well ma...

    Daniel’s Answer

    There are tens of millions of YouTube channels. Only a small percentage are commercial -- that is, relatively few offer products or services for sale, or advertise or promote the owner's products or services, or embed advertisements for others' products or services in their channel or videos. Most are simply archives of funny videos, and family and friends videos. The name of such a channel is NOT a trademark. The name of that video archive is legally equivalent to the name of a non-commercial website or, even, a book. In short, there is a very real possibility that the YouTube subscriber who created the Swag Surfing channel owns NO trademark rights in "Swag Surfing."

    However, before you adopt "Swag Surfing" as a trademark to brand your commercial YouTube channel you will need to "clear the rights" to that name because there are very likely others who already use that name, or one confusingly similar, to brand their particular products or services [on or off YouTube]. Speak with your own New York-licensed intellectual property attorney to clear those rights [and to discuss the many copyright and other legal issues you'll have to address]. Good luck.

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  • Trademark Disclaimer Clarification on common words

    If you search for the trademark "VARIAN MEDICAL SYSTEMS" (serial# 85003630) There is a disclaimer field that reads: "NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "MEDICAL SYSTEMS" APART FROM THE MARK AS SHOWN" Question #1: What is the ...

    Daniel’s Answer

    Q1: "What is the purpose of trademarking entire 'VARIAN MEDICAL SYSTEMS' when 'MEDICAL SYSTEMS' is not claimed?"
    R: Your premise is wrong. "Medical Systems" IS claimed as part of the registered trademark. It's disclaimed ONLY as used seperate from the phrase "Varian Medical Systems" as a whole.

    Q2: "Does this mean if someone else uses just 'VARIAN INC' or 'VARIAN HEALTH' operating similar business, then 'VARIAN MEDICAL SYSTEMS' cannot enforce/sue for infringement?"
    R: No. The disclaimer means that if someone else uses just "Medical Systems" as a brand-identifier or part of one in commerce then the company Varian Medical Systems cannot assert that that phrase infringes its trademark rights in the phrase "Varian Medical Systems." If someone else uses "Varian" or "Varian Health" as a brand-identifier in commerce then the company Varian Medical Systems can, and likely will, assert that such a use infringes its trademark rights in "Varian Medical Systems."

    If you have a real-world branding need then you need to speak with your own California-licensed intellectual property attorney. Good luck.

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