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Copyright: “Registration” vs. “Application” Finally Solved

Posted: March 19th, 2019

Published In: The Suffolk Lawyer

Tags: intellectual property, Supreme Court

A copyright gives the creator of a work an exclusive legal right to reproduce, and authorize others to reproduce, the protected work. Before a copyright owner can enforce this right with a civil lawsuit, he must register this work with the U.S. Copyright Office.[1] Surprisingly, however, ownership of a copyright exists apart from registration.[2] The creator of a work becomes the owner of the copyright of the work upon its creation. If this sounds inconsistent, then you’re right. Although someone may have the ownership rights to copyrightable work, he or she may not enforce this right until the work is “registered.” U.S. Copyright law establishes the prerequisite of “registration” prior to bringing an action for copyright. The problem over the last couple of years was that no one was entirely sure what “registration” meant.

For decades, copyright litigants were treated differently across the nation depending on which jurisdiction the litigant sued in. Some courts construed the “registration” requirement to be satisfied after the Copyright Office acted upon a copyright owner’s application, otherwise known as the “registration approach.” Other courts deemed “registration” to be satisfied after the copyright owner merely submitted an application, materials, and fees to the copyright office, otherwise known as the “application approach.”

The issue has finally been resolved in Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC.[3] The Supreme Court deemed the “registration approach” to be the correct approach based the plain language of the statute. Fourth Estate is a news organization that licensed its work to Wall-Street. Fourth Estate sued Wall-Street after Wall-Street failed to remove the Fourth Estate’s works after canceling the parties’ license agreement. Fourth Estate had filed applications to register the works with the Copyright Office; however, the Copyright Office had not acted upon the applications. The trial court dismissed the complaint stating that Fourth Estate had not satisfied the registration requirement and the appellate court affirmed the ruling. Fourth Estate appealed again to the Supreme Court.

The thorough opinion written by Justice Ginsburg on behalf of the unanimous Court decides that the correct way to construe the law is by requiring a copyright owner’s application to be acted upon by the Copyright Office before bringing a civil action for infringement. The Court comes to this conclusion by analyzing the plain language of each sentence within the statute and finally resolving the split in the lower courts. The “registration approach” will be used in every copyright infringement suit from here on out, putting an end to the inconsistency.

The takeaway: copyright owners should begin registering works that are vulnerable to infringement sooner rather than later. Although plaintiffs are entitled to damages, including those that occur prior to registration,[4] some of the harm suffered from infringement can be irreparable. Owners should make sure they are able to bring suit as soon as they are aware of infringement to best protect their works.

[1] 17 U.S.C. § 411(a)
[2] 17 U.S.C. § 408(a)
[3] No. 17-571, 2019 WL 1005829 (Sup. Ct. Mar. 4, 2019).
[4] 17 U.S.C. § 504

On Leadership and Ownership

Posted: March 15th, 2019

By: Joe Campolo, Esq. email

Published In: HIA-LI Reporter

Tags: management

This year at CMM, our theme is leadership and ownership. I recently presented “Leading Your Business the Marine Corps Way,” and I’d like to share some of these principles here. I hope they inspire you to lead effectively no matter where your personal and professional travels take you.

Create a Sense of Mission

“As America’s expeditionary force in readiness since 1775, the Marines are forward deployed to win our nation’s battles swiftly and aggressively in times of crisis.” As a Marine Corps veteran, this mission is in my blood. The challenge facing the Marine Corps is to continue to make Marines feel as if they are doing the most important job in the world. What’s your personal and company’s mission? How are you keeping yourself and your team motivated? These answers are critical to keep your team moving forward.

Attract the Best

The Marine Corps is famous for effective recruitment; fortunately, businesses of all sizes can employ these techniques. Recruitment begins with the recruiter, who symbolizes “The Few, The Proud, The Marines.” Are you using your “best and brightest” to conduct your interviews? What are your recruiters/staff saying to potential recruits? Are they engaging with the recruit, or merely reading from a resume?

Basic Training

Every year, 40,000 civilians walk through the gates of the Recruit Training Depot and emerge three months later as professionals schooled in the arts of war, embodying Marine Corps tradition. For your team to achieve this level, you must create your own boot camp. Knowing that the best trained managers and people usually win, skilled leaders embrace the Marine Corps saying that “the more you sweat in peace, the less you bleed in war.”

Tell Them They’re Elite

Starting on Day One, the Marine Corps recruit is told repeatedly that he/she will soon be a member of the greatest fighting organization on earth. There’s nothing more powerful to incentivize your team to succeed than if they believe they are part of something truly unique and special. Spend your time telling your people how special they are, and if they are not special, replace them.

Set Realistic Goals

While there are no guarantees, Marines are confident that they can achieve their assigned goals. In the business world, some managers believe that setting unreachable goals will still encourage their teams to put forth their best. But this can be destructive; if your workforce never meets its goals, each new expectation you set will be considered unreachable. Let your employees taste victory for victory to become a habit.

Instill a Fighting Culture

I served in the infantry at Camp Pendleton with the First Marine Division, Fifth Marine Regiment, the most decorated in the Marine Corps. Our mantra was “Make Peace or Die.” Every Marine is a warrior. How do your managers supervise those on the front lines of your business? Promoting a “fighting culture” encourages competition, boosts performance, and creates a common experience that inspires individuals to work as a team.

There Is No “Peacetime”

As the first to fight, Marines must prepare tirelessly every day to fight for our nation’s survival, even between conflicts. In business, it’s always go-time. You can’t wait for the next problem to reveal itself; you must constantly work to be better.

Teach Leadership (in Little Steps)

The Marine Corps firmly believes that leaders are made, not born. How can you turn unlikely employees into leaders? Recruits learn to lead by degrees, building up through a course of progressive resistance. Baby steps are key to creating leaders in business and on the battlefield. Every person in your organization should be getting trained for the next position up the rung; those who embrace this challenge are the keepers.

Encourage Peer Pressure

Marines are built through peer pressure, learning the hard way that the mistake of one person can affect an entire unit. This approach instills personal responsibility into each recruit (or employee) and helps them see their role in the bigger picture. When you manage your team, use words like “we” and “us,” and remember that when individuals succeed or fail, they rarely have acted alone. Teams should share in the praise or the blame.

Build Common Experiences

What ties together those who wear or have worn a Marine Corps uniform? Each of them has undergone the most rigorous basic training in the world. Similarly, a challenging shared experience among employees develops their respect for one another and the organization. Building common experiences and stories about your company and incorporating your employees into them builds an esprit de corps that can’t be manufactured any other way.

For further reading, check out Semper Fi by Dan Carrison and Rod Walsh.

Common Fraud Schemes Against the Elderly

Posted: March 10th, 2019

By: Martin Glass, Esq. email

Tags: elder law

Have you received phone calls lately from Lithuania? The IRS? Someone claiming that unless you share your social security number right now, the police will be there in five minutes? A couple of years ago I wrote about scams, mainly those perpetrated against seniors. I feel compelled to write again since it’s a topic that continues to have relevance and, in fact, sadly appears to be growing in both scope and audacity in response to technological advances.

Healthcare Scams

One scam that remains prevalent involves healthcare – a topic in which seniors have greater need and interest than most other segments of the population. For example, a person calls and tells you that if you have Medicare, you can get a back brace for free. Now what senior doesn’t have Medicare? And what senior doesn’t have some type of back pain?

Sometimes the caller will use the name of an actual company and sometimes just one that sounds real. The catch is that the phone number they provide is not the number for any legitimate company.

Once they’ve got you on the phone, the person will explain all the marvelous benefits of the brace. And since you have Medicare, you don’t have to pay a thing. You just have to give the person on the phone the last four digits of your social security number. You have to do what!?! If it hasn’t already, that’s when a humongous red flag should go up. No company should be asking for any part of your social security number over the phone.

If these scammers called you, that means they have not only your name and phone number, but probably also your address – all the things needed to “check your identification” when calling your bank to move money, etc. Therefore, it is very important that you do not give any part of your social security number out to someone over the phone.

Legal Scams

Another type of scam making the rounds recently involves convincing the elderly that their children or grandchildren have become caught up in the legal system. For example, someone will call an elderly person’s home claiming to be their granddaughter or grandson’s lawyer, stating that they were arrested for being in the wrong place at the wrong time, i.e., being in an Uber when the driver was also transporting an illegal substance.

The “lawyer” will convince the elderly person that they need to wire bail money to a specific (usually out-of-state) account immediately to help their grandchild. They’re asking you to do what!?! This is another red flag. No one should be asking you to wire money to them over the phone. They will usually also tell the senior not to call the police or inform anyone else in the family, allegedly to avoid shaming the grandchild and to prevent the offense from going on their “permanent record.”

Sometimes – if the senior is hard of hearing or just to alarm the senior further – they might even put a young person on the phone who pretends to be the grandchild. It is important for the senior to ask their grandchild a question only they would know the answer to. This is the easiest way to determine the truth.

What’s scarier, if unscrupulous parties successfully obtain money from a senior, they’ll likely continue to perpetuate the scam, calling back to ask the elderly person for more money for a variety of reasons; i.e., the bail was more expensive than they thought, they need money for legal fees and expenses, they want to start a lawsuit, etc.

IRS Scams

This brings me to another scam that isn’t just limited to seniors – in fact, many attorneys at our firm have gotten this call, myself included. I received the call on my home phone from someone claiming to be from the IRS. He said that I owed back taxes and would be arrested if I did not call back to settle my account. The caller ID was just some random number, so I didn’t answer. The reason that I know about it is that they left a voicemail. No, I did not call back. I simply erased the message and never heard from them again.

The fear of being arrested is pretty strong. This can be even truer for seniors who grew up in other countries. You need to assure them that the IRS does not call you on the phone and they certainly don’t arrest people for owing taxes.

Why the Elderly?

Why are seniors so frequently targeted? According the a recent FBI report, senior citizens are more likely than the general population to have assets – own a home, have excellent credit, etc. – which make them attractive to con artists; they were raised to be polite and trusting; they’re less likely to report fraud and/or don’t know who to report it to; they often make poor witnesses due to the effects of aging on memory, as well as the fact that it often takes weeks to months for them to realize they were scammed; and they are more susceptible to certain types of scams, usually those involving health, healthcare, and the wellbeing of their family (https://www.fbi.gov/scams-and-safety/common-fraud-schemes/seniors).

What Can You Do About It?

What can you do if you or a loved one falls victim to a scam? You need to inform your local authorities (police, local representative, state senator). Getting scammed is not a crime and there is no way for the authorities to bring the perpetrators to justice unless they are aware of the situation.
You also need to contact the financial institutions that you deal with. Let them know what happened. They can put an alert on your account or add additional security such as a secondary password. You should also call one of the three credit bureaus (Equifax, Experian, or TransUnion). They have an automated service that will put an alert on your account and let you know if anyone is trying to access your credit.

You can also put a withdrawal limit on yours or a loved one’s accounts, requiring another person to sign off on/or be made aware of amounts that are above a certain limit. This is a way to allow seniors to retain their dignity but prevents large sums from being withdrawn without at least a notification to a trusted family member.

How can you prevent this to begin with? That is a harder question because it deals with the nature of seniors. One habit seniors should try to break is the need to always answer the phone. I’ve found this extremely difficult for many seniors. They just have to know who’s calling them.

Getting a phone with Caller ID will help, but that doesn’t always work because of 800 numbers and cell phones. So the other thing the new phone needs is memory. Enter everyone’s phone number into the memory. That way, when the senior looks at the ID, it will say “Bill’s Cell” and not just the phone number.

The third thing the phone needs is a voicemail system that even the least tech-savvy senior can operate. Many seniors will never use a system where they have to dial into the service to retrieve their messages. My philosophy is that if someone really wants to speak to me, they’ll leave a message.
Another suggestion is to get a phone that actually speaks and says who’s calling. It’s a neat little feature (but the text to voice conversion is not always the greatest).

The biggest thing is to get your loved one to understand that if they do not know who’s calling, DON’T pick up the phone. Let it go to voicemail.
There are countless scams out there. Most of them prey on the senior’s fears, love of their children or grandchildren, or their innocence in thinking that something is free. As hard as it is to say, help your loved ones understand that the world we live in is just not that way. Keeping them informed on the ways to remain safe is the best gift you can give them.

Thank you to Michelle Toscano for her research, writing, and editing assistance.

If It Makes You Happy: Emotional Expression in Negotiation

Posted: February 8th, 2019

By: Joe Campolo, Esq. email

Think you can tell when someone is faking?

I’m referring to emotions, of course – and how well you can read a person’s expressions, or fake your own, may make or break your next negotiation.

Emotional expression (displaying emotions) is distinct from emotional experience (how you actually feel). According to some fascinating studies, that difference has important ramifications at the negotiation table. In a Stanford University study, Marwan Sinaceur and Larissa Tidens observed that negotiators facing opponents who expressed anger – even if they were not actually angry – made more concessions than when their opponents did not express anger. Even more interesting, those who expressed anger not only received more concessions, but also retained their ability to create value.

No, this finding doesn’t mean that you should angrily yell your way through negotiations. But this study suggests that whether you tend to have a poker face or wear your emotions on your sleeve, knowing when and how to display emotions can be a powerful negotiation strategy. The results also show the importance of taking a step back, rather than automatically reacting, when your adversary displays a strong emotion of any kind. He or she may be strategically displaying an emotion to elicit a response from you.

Understanding the tremendous impact of emotional expression on negotiation can also give you the tools to turn a negotiation around, as Fritz Strack, Leonard Martin, and Sabine Stepper learned in a well-known study. They found that subjects rated cartoons as funnier when they held a pen in their teeth (an action using the same muscles as smiling) than when they held a pen with their lips (which makes smiling virtually impossible). It’s no wonder that something as simple as smiling, even if you force it, is known to reduce anxiety and stress.

How does this finding translate to the negotiation table? Since it’s human nature for people to mimic one another’s facial expressions, body language, or speech, your smile can help put your adversary in a better mood. Your positive expression (even if you’re screaming inside) can help put your adversary in a more positive frame of mind – which may make him or her more likely to see things your way.

Let’s be frank: suddenly flashing a big smile in the middle of a heated negotiation won’t work (and would probably be creepy). But as suggested in a recent post by the Harvard Program on Negotiation, these lessons can help you frame your negotiation by expressing warmth and friendliness at the start, to set a positive tone. Then, as the negotiation goes on, you may display frustration or anger to tip the scales your way. When it comes to emotional expression in negotiations, honesty isn’t always the best policy.

Hospitality and Events with Hillary Needle and John Robertson

Posted: November 28th, 2018

In this episode, CMM Managing Partner Joe Campolo spoke with Hillary Needle, President of Hillary Needle Events, Inc. about how to maximize your event potential. Next Joe met with John Robertson, CEO of The Sexy Salad, to discuss office culture and why it’s important.

Eat First, Negotiate Later! (And Other Overlooked Negotiation Tips)

Posted: November 14th, 2018

By: Joe Campolo, Esq. email

Tags: negotiation

Before you take your seat at the negotiation table, invest some time at the breakfast table.

That’s the takeaway from research conducted at Cornell University (reported by the Harvard Program on Negotiation) that suggested people feel a greater sense of entitlement when they are hungry vs. when they are not. (The study defined “entitlement” as “the sense that one is more deserving of positive outcomes than other people are.”)

In the first experiment, researchers asked students questions as they were either leaving or entering a college dining hall. Those who had not eaten lunch yet supplied more “entitled” responses such as “I honestly feel I’m just more deserving than others” and “People like me deserve an extra break now and then.” In the next experiment, undergraduates were shown to one of two rooms, one of which smelled like pizza. Those exposed to the smell of pizza reported being hungrier than the students in the scentless room, and their subsequent answers to questions on a personality test demonstrated a greater sense of entitlement.

It’s no surprise that food (or lack thereof) would have such a strong impact on the negotiation process. After all, there’s a reason that the Oxford English Dictionary added the word “hangry” (“bad-tempered or irritable as a result of hunger”) to its 2018 update. Surely, we’ve all experienced the crankiness that a too-long phone call or meeting causes when we’re starving. But in the context of an important negotiation, the impact can really be devastating. A sense of entitlement (whether from being hungry or any other reason) can tear a negotiation apart by limiting a negotiator’s ability to see other perspectives and find win-win solutions. With so many ways a negotiation can derail based on the actual details, it would be foolish to set yourself up to fail due to being “hangry.”

“Eat before you negotiate” may sound trivial, but it’s part of a larger point: the stakes in a negotiation are just too high to wing it. As I’ve previously blogged about, preparation in negotiation is critical. Fleshing out the issues, doing your homework, creating a list of possible outcomes, determining your BATNA and, yes, eating properly beforehand to put yourself in the best possible frame of mind are all vital. With the holiday season upon us, no complaints here!

Power in Negotiation: Why You Need It and How to Get It

By: Joe Campolo, Esq. email

Published In: HIA-LI Reporter

Tags: negotiation

pow·er
/ˈpou(ə)r/
noun
the capacity or ability to direct or influence the behavior of others or the course of events

Negotiation research is a real thing – and this evolving area of study is fascinating. Recent research has revealed not only some of the key ways that channeling power makes negotiators more effective, but also that attaining that power in the first place is within any negotiator’s reach.

After analyzing negotiation research from around the world (sounds like my dream job), the Program on Negotiation at Harvard Law School recently outlined four of the critical ways that power impacts negotiations:

Power Prompts Action. Power, whatever its source, pushes negotiators to be more proactive throughout their negotiations – whether it’s making the first offer, deciding to negotiate a received offer rather than accept it as-is, or working through an impasse. (Not coincidentally, these qualities not only benefit the “powerful negotiator” but also his or her adversary, who can also enjoy the more creative win-win solutions often uncovered by such persistence.)

Power Prompts Risk-Taking. Berkeley professor Cameron Anderson’s research has shown that psychological power pushes people to think more creatively about problems and resist the constraints of their adversary’s position. “Powerful” negotiators worry less about potential dangers and focus more on potential payoffs (the “act first, apologize later” mentality) – freeing them to take risks that often reap rewards in negotiation.

Power Is Protection. No one enjoys being on the receiving end of a scream-fest, but negotiators who feel powerful are less influenced by their adversary’s displays of anger than those who feel powerless (and thus too quick to make concessions just to bring an end to an unpleasant interaction). University of Amsterdam researcher Gerben Van Kleef found that the other side’s anger barely registered for the more powerful negotiators, who maintained focus on their own interests and made concessions only to reach a deal, not to end an ugly situation.

Power Prompts Perspective…If You Let It. In fact, research has shown that the more powerful a negotiator feels, the less perspective he or she has into the other side’s point of view – and of course, being able to empathize and understand your opponent’s perspective is critical to achieve a good result. The key is marrying power with perspective to enjoy the benefits of both. “Perspective taking” may not come easily to the “powerful” negotiators among us, so make a point to focus on it.

So, the benefits of power in negotiation are clear, but how do you get it? Negotiation research has revealed that power has everything to do with psychology. The Program on Negotiation identifies power as stemming from three sources:

A Strong BATNA (Best Alternative to a Negotiated Agreement) – You could show up to the negotiation table naked (and afraid) and still achieve power by having a strong alternative to your desired scenario. A solid Plan B empowers you to walk away if the negotiation goes south. It’s all about preparation.

Role/Position – The semantics of titles in today’s workplace is a subject for another day, but many negotiators derive power simply from their high rank or title. If you’ve got it, flaunt it if the situation warrants it.

Psychology – The phrase “Fake it til you make it” comes to mind here. If you feel that you’re powerful, you will be more powerful during the negotiation, according to research by Stanford University’s Deborah Gruenfeld, along with Adam D. Galinsky and Joe C. Magee. If you need a boost, think back to an experience that made you feel good about yourself and channel that feeling into this negotiation.

If you focus on building your power from as many sources as possible, you can help steer any negotiation your way. At a minimum, before entering into any negotiation, make sure to focus on these three sources to help increase your power.
For further reading, check out the Program on Negotiation’s blog here and look back at my prior posts about BATNA, preparation, empathy, and psychology.

A Word of Caution with Use of Olympic Marks

Posted: July 25th, 2024

Tags: intellectual property

With the upcoming arrival of the 2024 Summer Olympics Games, a friendly reminder to all Olympic enthusiasts that any unauthorized commercial use of the Olympic trademarks, logos, images, or symbols is prohibited. Because the United States Olympic & Paralympic Committee (“USOPC”) does not receive government funding to support its athletes, the USOPC has broad discretion to vigorously enforce its intellectual property.

Federal law gives the USOC exclusive rights to the symbol of the five interlocking rings, the Olympic flame and torch, and to the words, inter alia, “Olympic,” “Olympiad,” “Team USA,” “Paris 2024,” “Los Angeles 2028.” The statute is further extended to prohibit any advertising that tends to suggest a connection with the Olympics or the USOPC. The USOPC’s rights, however, are limited to situations where these words or symbols are used (1) to offer goods or services for sale; or (2) to promote a theatrical exhibition, athletic performance, or competition. In addition, it does not include trademarks or logos owned by the National Governing Body for specific sports.

Moreover, the USOPC holds trademark rights to Olympic-related words, images, and symbols. Section 43(a) of the Lanham Act prohibits the use of trademarks when they (1) are likely to deceive or create a false impression of affiliation or endorsement; or (2) misrepresent in advertising certain aspects of the product.1 Unauthorized use of the trademarks could subject a user to possible claims of false endorsement or affiliation, which operate separately from USOPC’s exclusive statutory rights. Although there are certain exceptions to infringement based on fair use, news reporting, news commentary, or any noncommercial use, the USOPC is not afraid to object to the use of its trademarks by a non-licensed party.

Creative marketers have attempted by “ambush marketing” to find a route around USOPC’s rights by creating advertising materials with some Olympic flavors without using the protected marks. For example, by taking photographs of national flags or competing athletes; by advertising near event locations; adopting themes and color palettes similar to the event; and real-time social media marketing. Such imagery could be eye-catching to consumers; however it is only acceptable if the attempts are not in violation of any anti-ambush marketing laws.

One instance of piggybacking off Olympic sponsors was when Michael Phelps, the face of the Olympics, began appearing in Subway commercials. Subway, not an Olympic sponsor, ran a commercial featuring Michael Phelps swimming to “where action is this winter.” The USOPC characterized the ad as “ambush marketing” and an attempt to falsely associate Subway with the Olympics as a sponsor. Another famous example of capitalizing on real-time events with media marketing arose during the 2013 Super Bowl, when after a power outage at the Superdome, OREO cookies seized the opportunity by tweeting the message “Power Out? No problem” which was accompanied by an ad showing a single, starkly lit OREO cookie beside the caption, “You can still dunk in the dark”. The tweet quickly went viral allowing OREO to capitalize on the event without being an official sponsor.

In short, the USOPC has a reputation for aggressively policing their exclusive rights to certain words, phrases and symbols, and they have a special federal law to back them up. Be cautious of the use of Olympic trademarks by knowing and understanding where the boundaries are. If you’re thinking of advertising your business with an Olympic-themed promotion, you might want to find another Gold Medal-winning strategy.

Click here for additional information on the USOPC’s logos.

1.15 U.S.C.S. § 1125