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Daniel Nathan Ballard

Daniel Ballard’s Answers

7,323 total


  • I want to make a music video parody. If I state nonprofit intent and that I don't own the music, could I still get in trouble?

    I have written lyrics to the cadence of the instrumental track. The focus of the parody is of a very well-known crime case that occurred around 20 years ago and whose perpetrator is long dead. My concern is chiefly about the music, though. I inten...

    Daniel’s Answer

    Youtube has a "Content ID" program that permits copyright owners to identify and take action against those who use their works without permission. Visit the link below to learn more. The rights owner can demand that the infringing work be taken down OR it can monetize the video [without notice to the uploader] by inserting advertising links. If your video includes music that is well-known then you can be assured it will be flagged via Content ID and some action taken. You can then respond to Youtube -- which will consider whatever "fair use" or other defense that you can muster. At the end of the day Youtube will very likely side with the rights owner. In short, this is -- as a practical matter -- not really a legal matter. Your display of your video depends on how the rights owner and Youtube react.

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  • Would these designs be classed as transformative enough to fall outside of copyright?

    Hey Team, Having second thoughts around the legality of the campaign with designs of famous people that I've launched and thought you could put my mind to ease or throw it into chaos. The designs and campaign can be seen at https...

    Daniel’s Answer

    As my colleagues note, your main concern is not copyright infringement but, rather, misappropriating the celebrities' "right of publicity" by selling products bearing their image -- that is, misappropriating those persons' exclusive right to commercially exploit their name and likeness.

    Now, if you sell ONLY the image of a celebrity that conduct does not, at least under California law, misappropriate the celebrity's state law right of publicity because it is preempted by federal copyright law and, perhaps, also the First Amendment [for a case that discusses the former, visit the link below]. But your images are displayed on products, and that is [generally] unlawful without a license from the person shown.

    You ALSO have a copyright concern because your altered versions of the images are "derivative works" based on pre-existing photographs that are protected by copyright. And, no, your altered versions are very likely NOT sufficiently "transformative" to get out from under an infringement claim.

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

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  • Is the purchase of copyright infringing works considered illegal?

    If someone were to sell a piece of merchandise based on a popular movie, TV show, or video game for profit and therefore infringe on the owner's rights, would the individual purchasing the illegitimate item in question be liable for damages to th...

    Daniel’s Answer

    I agree with Attorneys Ivey and David.

    I know of no statute or legal theory that makes it unlawful for an end-user with no relationship to the seller to buy something that infringes a copyright. It is not direct infringement and absent control over the seller or a contribution to the infringement or a business model that induces the infringement there can be no indirect infringement. That being said, I think law enforcement can seize the infringing product during any investigation that it makes into the seller's infringement. But even then I see no liability -- civil or criminal -- on the part of the buyer.

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  • What types of amendments to goods and services description are OK in response to TM final action?

    I've read tmep 1402.06(a) and still don't understand what types of amendments are OK. For example, can the description be changed from "non-downloadable software for medical practice management" to "non-downloadable software for practice managemen...

    Daniel’s Answer

    Normally, the only proper responses to a Final Action are:
    1. Request for reconsideration,
    2. Notice of appeal to the TTAB,
    3. Compliance with an outstanding requirement,
    4. [if appropriate] Petition to the Director
    5. [if appropriate] Request registration on the Supplemental Register,
    6. [if appropriate] Request registration on the Principal Register under §2(f).

    Only your own trademark attorney can determine which course is best for you.

    If you’re trying to come into compliance with an outstanding requirement then the Examiner has very likely provided you with the amended language he or she would accept in the description of goods or services. If not, and in any event, only your own attorney can decide whether that, or any amended description, is appropriate in light of your commercial activities. If your application has been rejected in light of an already-existing, federally registered mark then be warned: this registration challenge may not be your major concern. You need to be concerned about infringing that already-existing trademark. Speak with your own trademark attorney.

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  • If one were to purchase assistance from an online legal company such as ABCzoom for the filing of a provisional application...

    ...what guarantee(s) does one receive that the information provided will not be usurped?

    Daniel’s Answer

    Someone taking and commercially exploiting the information you provide is the least of your worries. But, yes, it can happen -- especially because ABCzoom is merely filing the application and is not acting as your attorney. Your attorney has fiduciary, ethical and legal obligations to maintain the information you provide in confidence. The filing company you use has no such obligations. At best, it may promise by contract to keep that information in confidence.

    Your larger worry, however, is fundamental: How do you know you need or even qualify for a patent? Even assuming both are true, do you think you can properly draft provisional patent application?

    You need to speak with a Georgia-licensed intellectual property attorney about your business plans. It's quite likely you have some of the fundamentals wrong. Good luck.

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  • Copyright vs patent?

    I have this app idea and I want to protect the idea as well as the app and myself. The software developer mentioned that it may just be a copyright instead of a patent, to copyright the coding, which would be way quicker, easier and cheaper! I a...

    Daniel’s Answer

    In addition to the good suggestions already provided by Attorney David, you and your own intellectual property attorney must draft a contract between yourself and the programmer who will actually be creating the application. In addition, because you're now engaged in a business, you and your attorney need to consider the most appropriate business structure for you to form from which to do business. You should, of course, also read two or three or ten books on how to start and run a business [visit the first two links below].

    As for the potential patentability of the application -- which is simply a computer program -- your own attorney needs to review how the courts and the Patent Office have been ruling on that question lately [visit the third link below]. In short, ecommerce-related and other processes are now routinely held unpatentable. He or she -- and you -- should also read about the current state of the law regarding the patentablity of software [visit the fourth and fifth links].

    Yes, this is all information that you, as the business owner, must know. You can and should have a legal advisor but, at the end of the day, you will be paying the piper. You should know what you're paying for. My suggestion is to speak with a savvy intellectual property attorney -- who may not be a patent attorney. Your business will require far more attention than the mere question of whether you should apply for a patent. While I am a patent attorney, most of the business and intellectual property legal work a start-up needs has nothing to do with patents. Good luck.

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  • Got a letter for trademark infringement. They're asking for information. What am I obligated to provide?

    I have been sent a letter claiming that I have infringed on a trademark, but that they will attempt to pursue an amicable resolution to this matter, but if I do not comply with their demands, they will pursue further legal action. Demand one is to...

    Daniel’s Answer

    You've already recieved very good information. I write only to add that if you have been infringing someone's trademark then you have very little, if any, leverage in this situation. You are the bad guy and can be forced to defend yourself against, at least, trademark infringement claims. Perhaps in a courtroom in a far away state. You and your own attorney need to consider submitting a claim to your insurance carrier and then, very nicely, persuade the rights holder that you're not a front for a larger counterfeiting operation [if that's true]. Also, please be aware that selling counterfeiting products is a crime. Do not discuss this matter with the complaining party yourself. Speak through your attorney.

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  • Intellectual property rights abused?

    Hello Attorney, I feel that my intellectual property rights are being abused by the company that I worked for. I am a coupon uploader for a coupon or deal website. My job is to search coupons, analyze them, and upload them to their database. I am ...

    Daniel’s Answer

    "Intellectual property" is merely a label, like the word "color" -- neither mean anything unless you specify which property or which color. An "intellectual property" is either a patent, copyright, trademark, trade secret or a right of publicity.

    So which of these property rights of yours is "being abused"? None.

    As my colleague notes, you apparently have an employment contract matter that you think needs attention. You need to speak with an Illinois-licensed employment attorney.

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  • Dmca took my IMVU account away from me, saying that I abused the dmca act but I did no such thing. They said I cant appeal

    Dmca said I can not appeal what has happened and they took away my account which I make real money off how can I fight against this?

    Daniel’s Answer

    "DMCA" is not a person. The acronym stands for "Digital Rights Management Act" -- a part of the Copyright Act. A rights owner has apparently complained that you have infringed, at least once [likely more] its copyrights via your conduct on IMVU.com. You and your own copyright attorney need to read IMVU's "Counter-Notification" section of its Terms of Service and decide whether to send one [visit the link below]. Do NOT simply send one yourself because if you have infringed then sending the counter-notice adds to the unlawful conduct for which you can be sued. So speak with your own copyright attorney.

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  • First to use rule enough to overcome a federal trademark registration?

    Want to federally register a trademark with the USPTO, but have come upon the "first to use" rule in California which says that even if I file and my trademark is registered, if someone has a common law mark (unregistered), which they can establis...

    Daniel’s Answer

    What is unfair about trademark rights going to the person who first uses the trademark in commerce? Nothing. Second comers like you need to be creative and come up with your own branding. Just like the first user did.

    As for registering trademark rights, what is unfair about denying a second comer a registraton for the rights developed by and owned by the first user? Nothing. Registration is voluntary, not mandatory.

    Speak with your own trademark attorney to learn more about these fundamentals.

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