My Instagram Dinner - December 17, 2014

[NOTE: Measurements are approximate. I eyeball everything, so no actual measurements.]

Sous Vide Salmon

Ingredients

2 portions of salmon

2 thin slices of lemon

2 sprigs parsley

¼ cup white wine

Olive oil

Salt

Pepper

Method

Use paper towel to dry salmon. Salt and pepper generously. Place in sealable bag (I used a vacuum seal, but you can use a freezer ziplock). Add lemon parsley, half of the wine, a Tbsp olive oil, and seal bag. Bring large pot of water to just under 120 degrees. Use a candy thermometer to keep track. My smallest burner kept temperature above 120, so I added a cup of cold water every few minutes to keep it around 118. Bathe salmon bags for about 30 minutes. Remove from bag and wipe off herbs and lemon, being careful not to break salmon. Use torch or pan sear to brown.

Curry Roasted Golden Beet

Ingredients

2 large golden beets

Olive oil

Curry powder

Salt

Pepper

Method

Remove skin off beets. Use 1.5” cutter (round) to push down centerline and create long beet tube. Slice into ½” coins. Toss in a bowl with a bit of olive oil, 1 Tbsp curry powder, and a little alt and pepper. Place in roasting pan and roast for 30-40 minutes at 450 degrees. You want soft give, but not mushy. You can roast the tomatoes at the same time on the same sheet if you want.

Blistered Tomatoes

Ingredients

8-10 small tomatoes, like cherry tomatoes or baby heirlooms

Olive Oil

Salt

Pepper

Method

In a small bowl, mix a little olive oil, salt and pepper all over tomatoes. Place on a roasting pan and roast 20-30 minutes at 400, or broil 5 minutes.

Edamame Wasabi Puree

Ingredients

1 Cup cooked edamame (shells removed)

1 small shallot, minced

1 clove garlic, minced

1 Cup water

Juice from ½ lemon

1 Tbsp wasabi paste

Salt

Method

In a small blender or processer, add edamame, shallot, garlic, wasabi paste, lemon juice, a pinch of salt, and a few Tbsp of water. Blend. Add water until it forms a smooth past. Stiff enough to hold form, but loose enough to plate with a squeeze bottle.

Green Apple and Red Jalapeno

Ingredients

½ Green Apple, sliced into matchsticks

½ Red jalapeno, sliced into matchsticks

Juice from ½ lemon

Olive oil

Method

Mix apple, pepper and lemon juice in a bowl. Add a small amount of olive oil.

Soy Sake Reduction

Ingredients

¼ Cup sake

2 Tbsp soy sauce

2 Tbsp sugar

Method

Add ingredients to small pot and boil down, stirring frequently, until reduced by ¾. Pour into bowl and let cool into thick syrup.

Intellectual Property and the #Hashtag

**THE INFORMATION IN THIS ARTICLE IS NOT LEGAL ADVICE AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. IT IS INFORMATION ONLY.**

Hashtags are social media’s soup du jour.

We’ve all seen them. Most of us have even used them. And people like Justin Timberlake and Jimmy Fallon are already over them. But it’s no surprise that even in the midst of the hashtag revolution, most people simply have no clue about the scope and extent of intellectual property rights in hashtags. Granted, I’m certain many of us don’t even care. But for the ones that do, this is for you.

Copyright Law Doesn’t Protect Hashtags

Let’s get this out of the way right now. Copyright law does not protect hashtags. There, I said it. You might not like to hear it, but it’s true. Hashtags lack sufficient authorship to warrant copyright protection. That doesn’t mean your hashtag isn’t witty, or that you’re not the first person to ever use that hashtag. To the contrary, it means there simply isn’t enough original “expression” extending beyond an idea. And in the copyright world, ideas are not protectable.

You might like a citation on my perspective, and the sensible reference would be to case law and a statute. Instead, I’ll point you to Section 102 of the United States Copyright Act, and the US Copyright Office’s simple, yet helpful explanation. It’s not really up for debate.

So now that I’ve disabused you of the notion that copyright can protect a hashtag, let’s get to the good stuff. Let’s talk about trademarks.

Trademark Law May Protect Hashtags

A trademark is a “word, phrase, symbol or design, or combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.” And hashtags fit in there pretty nicely- they’re a combination of a word and a symbol (#). So yes, trademark law may protect a hashtag.

But it’s not that simple. Nothing ever is.

First, to qualify as a trademark, your word/symbol must “identify and distinguish” the source of goods as between parties. What happens if your hashtag doesn’t identify a source of goods? What if there are no goods associated with your word/symbol? What if you’re in the service business? There are a lot of questions wrapped up in a pretty straightforward sentence.

For our purposes here, “trademark” will include a “service mark,” which is the designation for marks associated with services (instead of goods). And here’s another helpful note: for ease of understanding, I’m sticking with the atmosphere around federally registered trademarks, and not state or common law trademarks, or other unregistered words, phrases, symbols or designs, or combinations thereof, even if they might be treated as trademarks under the Lanham Act or other applicable law.

A Trademark Is Only A Trademark In Context

Now back to the first hurdle- what if there are no goods or services associated with my hashtag? Guess what: it’s not a trademark. #sunnydays, #sweetdreams, and #bigocean might all be trademarks, but then again, they might not. If I’m not using those hashtags to identify and distinguish between the source of a good or service, I’m not using a trademark. So when I post an image on Instagram of the sun and use the hashtag, #sunnydays, I’m not really using a trademark. Or, if I Tweet about the story I just read to my son at bedtime and use the hashtag, #sweetdreams, I’m not using a trademark either. Sure, #sunnydays and #sweetdreams might be trademarks, in another context, but they are not trademarks in the context I just described.

A Trademark Is Associated With “Trade”

Which brings me to my second point. Do I have to be in business to “trademark” a hashtag? Arguably, yes. It’s obvious that if I manufacture and sell t-shirts under the brand, #sunnydays, I’m identifying and distinguishing my company from others vis-à-vis my use of the trademark. My use is “in commerce,” to use trademark terminology. But what if I don’t have a business, and I’m just selling junk at a garage sale and I Tweet about it using the hashtag, #junk4dayz? I suppose there’s a crafty lawyer out there willing to seek protection for the trademark in that context, but I’m guessing you’re smart enough to see the issue. Let’s just be conservative and understand you probably need to be in “business” in order to establish trademark rights for the hashtag you’re hoping to protect using trademark law. That doesn’t mean you need to be successful or have a corporation. It just means you need to consider your activities as being in commerce.

And now we’ve established a couple of ground rules: 1) the hashtag should identify and distinguish your goods or services; and 2) the hashtag should be associated with a business or trade. What else do we need to know?

Truth Versus Trademark

“I went for a 22 mile run tonight. #nike”

I mentioned #nike because I was wearing a pair when I ran. Trademark protection doesn’t prevent people from speaking the truth about using the goods or services of a trademark owner. #apple, #addidas, and #sony. I’m looking at products with those brands (non-hashtag versions) right now. So if I post, “Feet up, kicking back, watching Breaking Bad on my #sony,” I’m not going to lose a trademark infringement lawsuit over that. It’s permitted.

But if I am a computer manufacturer using the brand, “Apple” on my products, chances are, I’m going to lose a trademark infringement lawsuit. Likewise, if I’m that same manufacturer Tweeting about my new tablet device, and I use #apple, after my Tweet, there’s a good chance I’m going to be in some hot water. It’s not truth, because I’m not actually Apple.

Using Theirs Versus Protecting Yours

Let’s get down to the nitty gritty. Sure, you’re interested in whether you can use an #apple or #google hashtag, but what you really want to know is if you can keep everyone else from using your #insertwittywordshere hashtag. That’s the real question. And here’s a real answer.

It depends.

Analysis of trademark protection for a hashtag is really no different than for any other type of mark. But that’s not the real issue. The real issue is that most hashtags are being used to describe something- a mood, a good, an event, a person, a characteristic, an emotion, etc., etc., etc. You think you’re the first person to use a particular hashtag, so you believe you’ve somehow established ownership over that hashtag. Instead, you need to assess the circumstances and see if your hashtag even qualifies as a trademark. Does it identify and distinguish your goods/services from another’s goods/services? If so, it may be a trademark and subject to protection. If not, it’s probably not being used as a trademark and is more akin to public domain and/or protected free speech: #rainingtonight, #itschillyoutside, “I drove my #BMW today,” “I’m wearing #Levi’s right now.”

What About the #

I honestly think this is where all the confusion lives. From a trademark law perspective, #Nike is really no different than Nike. Same with #Google and Google. Or, #Apple and Apple. Why? Because the law looks at the likelihood of confusion, not whether there’s an exact replication of the registered mark.

It’s really the same argument that happens with changes in spelling (i.e., Nike v. Nyke, etc.). Changing a letter or adding a symbol doesn’t change the conversation. If you thought we were talking about Apple (the brand) before, you’re not necessarily going to think we’ve changed topics if it’s spelled, Apl, or if it’s a hashtag, #Apple.

And this is really the point.

Can you protect your hashtag use with trademark law? Sure…if you have a trademark to begin with. But the mere fact that it’s a hashtag doesn’t automatically push you one direction or the other. The analysis of whether a hashtag is protected by trademark law is the same analysis for a non-hashtag mark. Are you using a symbol and word to identify and distinguish your goods (or services) from those of another? If so, we have something to discuss. If not, you’re probably out of luck.

Closing Thoughts

I submit to you that the hashtag environment is less suitable to trademark discourse simply because the context is often more about descriptions (e.g., I love my #TagHeuer, while listening through my #SkullCandy headphones, etc.), and less about identifying and distinguishing sources- at least with respect to your purpose in using the hashtag on your average social media post. But if you think you’re using something protectable, then by all means ask a qualified expert if you’re correct.

Here’s the other thing: This is a complicated area and I’ve given you a tiny little snapshot. Books could be written on the subject, so don’t waste your time with, “yeah, but what about…, what about…., what about…?” There are many, many more questions to answer before getting this all straight. Think of this is a primer on the subject.

© 2014 Brock Shinen, Esq. All Rights Reserved. Unauthorized Use Prohibited By Law.

Written by Brock Shinen, Esq.

Please send all queries to: info@shinenlaw.com

THE INFORMATION IN THIS ARTICLE IS NOT LEGAL ADVICE AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. IT IS INFORMATION ONLY.

Clarifying Fair Use and Convenience Copies in the Church

**Read Disclaimer at Bottom of Article**

I recently became aware of an interesting discussion on the Renewing Worship blog (blog.ncbaptist.org/renewingworship/), and thought I would jump into the conversation. Although I would love to provide a direct link to the thread, I believe it was removed to avoid further confusion in the church. For that reason, I will first provide you with some background.

Kenny Lamm is a dedicated blogger and senior consultant for worship and music for the Baptist State Convention of North Carolina. A few weeks ago, he posted a response to what seemed to be an innocent question: “Are Convenience Copies Legal?” His response, which first raised various scenarios when copying would be “convenient,” went on to site Patrick Watts, Internet Development Strategist at LifeWayWorship.com. Patrick states that:

Because copyright is based in law, the complete answer to the question is that each situation is slightly different, and there’s no one answer. And, because copyright law doesn’t define “convenience copies” or “in shipping copies” or “enlargement copies” or “page turn copies,” all of these uses are copying activity that, by the letter of the law, are activities that require us to ask, “does it require a license?

I can’t say I disagree with Mr. Watts so far (although I certainly wouldn’t have said it this way), but let’s continue.

Mr. Watts goes on to state that, “Fair Use attempts to give a framework for times when copyrighted material gets duplicated, but doesn’t necessarily need to be re-licensed for the activity.” He then cites Section 107 of the US Copyright Act and goes on to say that the statute, “doesn’t really tell us anything…except for #4.”

Pardon me?

A statute with at least four parts only has one relevant part? Mr. Watts’ opinion is, unfortunately, inconsistent with the law and policy of statutes drafting and interpretation. The statute is filled with relevance. More importantly, his opinion conflicts with court interpretations of the statute in likely every circumstance where the statute has been analyzed.

Not surprisingly, the balance of Mr. Watt’s analysis is erroneous and misdirected, both from a legal and logical perspective, which is why attorney Paul Schaffer, a self-proclaimed “intellectual property specialist” steps in to debunk the post.

After establishing himself as an authority on the topics of Fair Use and intellectual property, Mr. Schaffer goes on to analyze the Fair Use doctrine. And, although I agree in part, and disagree in part, with the presentation of his analysis, I think the more pressing issue is this: in the process of not answering the original question, all participants in the conversation have further convoluted the subject matter of Fair Use, including its application and interpretation.

Recently, I wrote an article explaining the Fair Use doctrine, including its application and interpretation. I’m reposting it here for your convenience. I believe this will bring clarification to an already difficult subject matter.

Now, let’s revisit the original question: Are Convenience Copies Legal? From a straightforward statutory analysis, the answer should be an obvious “no!” Why? Because “convenience” is not an intended purpose of the Fair Use doctrine. Sure, one could argue that making copies for ‘convenience’ to, for example, teach on the subject matter of the copy should fit nicely into the Fair Use paradigm, but there are two problems with that position. First, making a copy easier to read is not for purposes of teaching, or commenting, or news reporting, or any of the other concepts presented in the statute. Second, and this is where I certainly agree with Mr. Schaffer, if there’s a market for the types of copies you’re trying to make out of convenience (i.e., large print, etc.), the courts would be less inclined to determine that your use is, in fact, fair.

So, while the net result may be an encouragement to ask for permission, keep in mind that the idea of making a convenience copy is not completely misguided.  Back in 1984, the United States Supreme Court handed down an opinion concerning the copying of television programs on Betamax tapes [Wikipedia: Sony Betamax Case]. There, the Court determined that the particular conduct in question was for time-shifting purposes and fit within the paradigm of Fair Use. Applying the same logic and analysis, one could take a position that copying sheet music you already own with the sole intention of making the print larger is tantamount to time-shifting a television program you’re already entitled to watch. It should constitute Fair Use. It just might. Or it might not.

There’s one way to find out.

I hope this helps you in your decision making process.

~ Brock Shinen, Esq.

 **This article is for informational purposes only and does not constitute legal advice.**

Copyright Use in the Church - A Fair Use Analysis

Straight Forward Application
of the Fair Use Doctrine (If there is such a thing)


Most of us would like a simple answer. Am I permitted to use three minutes of a feature film in our church’s multimedia production? Can I quote three paragraphs from a famous book and incorporate them into a sermon? Can I download a picture from the Internet and use it on the church’s website? As much as any of us would enjoy a "yes" or "no" to any of these questions, the plain language of the Copyright Act is extremely instructive and apparently often ignored. By using a few simple tools to understand the "Fair Use" doctrine, virtually anyone can have enough information at their disposal to make a sound decision.**


Preliminary Questions


Before you venture into your Fair Use analysis, you must ask yourself two questions: (1) is the work I desire to use subject to copyright protection; and (2) did I obtain my copy of the work from a legal source and in a lawful manner. If you answered “yes” to both of these questions, you can move on to your Fair Use analysis. If you answered “no” to either one, Fair Use analysis may be inappropriate.
For example, let's say you want to use a passage from a book written in 1784 in your sermon written in 2003. Since that book would now be in the public domain, Fair Use analysis isn't necessary. The copyright in that book is now "owned" by the public, meaning essentially, you are permitted to copy, quote and otherwise use it at will. [Note: That doesn't necessarily mean you can copy it and attempt to pass it off as your own original work...but that's a whole different story.]


If, on the other hand, the work is subject to copyright protection, but you obtained it from an illegal source, Fair Use may not apply (even if your use is without a doubt a "fair"). Moreover, the topic of how you obtained your copy is becoming increasingly important in the digital age. That means that if you rented a DVD, decrypted it to make your own copy, then used a portion of your copy - that would otherwise clearly amount to Fair Use - you may still be liable for infringement. This is a much-debated topic, however, and is not yet fully resolved. In the meantime, make sure you obtain your copy of the copyrighted work legally and in a lawful manner.


One caveat to keep in mind relates to licenses that apply to copyrighted materials, such as VHS tapes rented from your local video store or library. When you start the video, you invariably see a message stating that the movie is for home use only and may not be copied, distributed, etc. While this is true in a literal sense, the Fair Use doctrine still applies, meaning that you may copy parts of the video if your use comports with the Fair Use doctrine. Note the difference between copying a portion of a VHS tape (which does not have copy protection controls) and copying a DVD (which has copy protection controls or “CSS”). Once you have determined that Fair Use may apply to your use, you can begin your Fair Use analysis.

The Statutory Criteria


At the outset, you should know that the owner of a copyright is granted certain exclusive rights, namely, the rights to copy, distribute, perform, display and make derivative works of the original work. Without the Fair Use doctrine, virtually all copying would be unlawful. Congress created the Fair Use doctrine, however, to allow people and institutions to exercise the rights of a copyright owner for the purposes of criticism, comment, news reporting, teaching, scholarship or research. As you might guess, the exception was probably carved out to enable news organizations and education institutions to use copyrighted material for the benefit of the public. The Fair Use doctrine, however, has grown well beyond its original purpose and now plays a significant role in other venues and industries.
In view of the purpose of the Fair Use doctrine, the Copyright Act sets forth four criteria for determining whether a use is “fair” and thus exempt from infringing the exclusive rights of the copyright owner: (1) the purpose of the use (including whether the use is commercial); (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect on the market of the original. To better understand the relationship between the four factors, we will address them one-by-one.


~The Purpose of the Use


You should always evaluate the real reason why you are using a part of a copyrighted work. If it is simply to exploit its commercial value or to avoid generating your own original work, then the courts will likely view your use as infringing. In addition, if your use is purely commercial in nature, the courts tend to find that the use is infringing. Note that whether the use is commercial or not is not determinative; rather, it is a significant factor considered by the court. On the other hand, if your use is truly to comment on or criticize an existing work and is not for profit, this factor will weigh heavily in your favor.


~The Nature of the Copyrighted Work


If an original work embodies mostly facts, the possibility that your use will be non-infringing increases. If, on the other hand, it is composed entirely of fictional expressions, more protection may be afforded. Likewise, if the original work is at the height of its commercial value, and part of that value relates to the fact that copies of the original are limited, your use is more likely to be infringing. This factor in the Fair Use analysis may be difficult to understand, but do not bypass it.


~The Amount and Substantiality of the Use


If you copy all of an original work, you are likely infringing. If you copy only a small portion, you are much safer. To say, however, that there is a hard-and-fast rule as to the amount of an original you can use without violating the copyright owner’s exclusive rights is without merit. Under the right circumstances, thirty seconds or two notes of a song may infringe an original; one picture from a book may infringe the whole; even a few frames from an entire film may be infringing. The reason for this is simple: the portion you copy may be the most important portion

of the original. An example of this took place when an Internet website began selling a handful of still frames from a full motion picture, without the consent of the copyright owner. The website did not sell the entire film. The website owners were sued for copyright infringement and argued the Fair Use applied; the court found the website owners liable for copyright infringement. The court, of course, considered the commercial nature of their use. It also considered, however, the fact that the still frames were probably the most valuable aspect of the film, since they could potentially generate more revenue than the film itself. This is a perfect example of why you should not rely on a belief that a concrete rule applies to this factor.
In evaluating your use, honesty is the best practice. Consider if the parts of the original you wish to use are the essence of the original work – even if only a small part. If the three notes of a song you want to include in your own song are readily recognized from the original work, then you may have used too much. If, on the other hand, you are only using a small portion of an original work, and that portion is not the “heart” of the original, then this factor will probably weigh in your favor.


~The Effect On the Market


Simple and to the point: Does your use of the portions of the original work effect the market for the original. If so, the odds are against you. If not, the odds are in your favor. This is relatively straightforward in the sense that you can evaluate from a common sense perspective whether your use will have any impact on the market for the original. If people will stop buying the original because of your use of parts of the original, the effect on the market of the original is negative and you will likely be infringing. If, on the other hand, despite your use, people will continue to purchase the original, the effect on the market for the original is not injured, and your use is probably fair.
There is one caveat here worth pointing out: simply because your use may decrease sales of the original work is not the determining factor. Rather, it’s whether your use supplants the market for the original, i.e., your work becomes a replacement for the original work.


Summary


Now that you have some tools to assist you in determining whether or not a use will be deemed “fair” without the copyright owner’s permission, think about the following examples:


You are the pastor of a large church. You just read a great book on living with purpose and would like to copy large portions of it for inclusion in your church’s newsletter. You instruct your secretary to make 1,000 copies of 35 pages of the best parts of the book. Result: Probably an infringement. Reason: Although the use is not commercial, you are copying substantial amounts of text from an original work that may result in lost sales to the owner of the copyright in the book, since your congregation may view your newsletter as the “cliff notes” and forego purchasing the book. Your purpose is to avoid creating your own original work and instead use without compensation a work created by someone else. You have copied much more than would be necessary to convey the thoughts and ideas you are trying to convey. Your purpose is improper, the nature of the original is presumably fiction, you copied a substantial amount, and the congregation may not purchase the book.

You are the worship pastor of your church. While driving along the highway, you hear a song entitled, “In This World,” on the radio. Although the song is clearly a secular song and was played on a secular station, you think you could change the words a bit and make it a “redemptive” song. You plan to write all new words for the versus, but plan to use the melody and the first line of the chorus, which reads, “In this world, there’s only one thing I need.” Since the song is about a man needing cigarettes and a bottle of alcohol, you think it would be great to rewrite the song to focus on how Jesus is the only thing we need. And, in keeping with the spirit of the original song, rather than go through the verses and talk about all the sins that keep you from living right, you will talk about how Jesus empowers us to overcome our sin. You write the song, and it turns out it’s a hit. You decide to record it and sell it for $15.00 at huge conference in the summer. Result: Probably not an infringement. Reason: Your purpose is most likely to comment on and/or criticize the original by showing how opposite life can be with Jesus in it (which is in striking contrast to the original song). You only use enough of the song to conjure up thoughts of the original, but you quickly use your own creativity to tell your story. Your use has become commercial, but you are not merely attempting to ride on the success of the original. Your use is unlikely to effect the market for the original (other than from a purely Christian perspective, in hoping that people might go out and by your song as a evangelistic means – and forego purchasing the original in the process), particularly since it is unlikely that the people buying your song would also be in the market for the original. Even if they were, however, it is conceivable that they would still purchase the original, since yours doesn’t replace it as much as it comments on it.


You are the director of music for a church. You have written down the names of ten songs you love and would like to record on a CD to be released by your church. Rather than record them live, you are going to simply “burn” each of the songs onto a single CD. The church is non- profit, and you will only be selling them for cost. Result: Probably an infringement. Reason: Your purpose is commercial (even though you are a non-profit entity and even though you are not making any money). Also, as in the first example, you are copying entire songs, which will certainly result in lost sales to the owners of the songs.


You are the editor of your church’s website. You have found some great photos on the Internet, and would like to include a few of them on the church’s website and in an electronic newsletter to be emailed to your congregation. The newsletter is free (although you have to subscribe to receive it) and you will give proper credit to the photographers in the newsletter and on the website. In fact, you will include a notice on the website that specifically states that the photos are copyrighted by someone else. Result: Probably an infringement, but depends on a number of factors. Reason: With respect to the website, you are taking entire photos and copying and displaying them without permission. Your copying and display are not for comment, criticism, etc. Rather, you are posting them simply because you believe that are great photos. Since a member of your congregation can now print off the pictures on his/her home printer, the market for those photos is diminished, notwithstanding your church’s non-commercial use. In addition, although you are not selling the electronic newsletter, courts often conclude in similar situations that your purpose is commercial in nature, since the use of copyrighted works will likely increase the value of your church (perhaps by increased membership/giving) – the commercial nature is indirect. You have also copied entire photos, making the amount copied substantial. On the other hand, if your purpose is to comment on or criticize the photos, then you are closer to a Fair Use. The photos are presumably a small portion of your article, preventing them from being the “heart” of your work. You giving proper credit does not help you, since you may still infringe even having given credit. In short, this is a tough call, and would depend on the nature of the article and the actual impact on the originals.

Hopefully you now have a better understanding on the nature of the Fair Use doctrine and its application.


~ Brock Shinen, Esq.


© 2012 Brock Shinen, Esq.
Law Office of Brock Shinen, Inc. 155 N. Riverview Drive, Suite #225 Anaheim Hills, CA 92808
Tel: 714.769.9120
Email: brock@shinenlaw.com


** The reader should keep in mind that arguments may be made for varying results, and additional factors could result in a variety of outcomes. This article is intended to provide general information and considerations in applying the Fair Use doctrine. It is not intended to be legal advice or a substitute for actual legal analysis of your particular circumstances.