Can I Use Ex-Employer's Customer List?

Dear Rich: Simple question: Can my ex-employer stop me from using the customer list I developed when I worked for him? Sorry, but it's not that simple. You should check out this article to determine whether your customer list qualifies as a trade secret.  If it doesn't, it's unlikely that it can be protected by state trade secret law or an NDA you may have signed. On the other hand, state laws vary and most states honor noncompete agreements (not California) which may affect your ability to compete against your ex-employer by soliciting his clients. So, if you signed paperwork with your ex-boss, now's the time time to review it (or have an attorney review it).

Somebody Took My Dot-Org

Dear Rich: A company has copied our domain name but used it with a dot-org, not dot-com like we do. I thought you had to be a nonprofit organization to get a dot-org domain name. Can anybody be a dot-org? The Dear Rich Staff is sorry to hear that you are no longer the master of your domain ... and yes, anybody can be  a dot-org.
The skinny on TLDS. When top level domain names (TLDs) such as .com, .org, .gov, .net, and .edu were created by the Internet Corporation for Assigned Names and Numbers (ICANN), the intention was that each TLD would cater to a specific type of domain name holder. For example, .org was intended for nonprofits, and .net for network related entities. But only some TLDs are really restricted--for example, .edu for educational institutions, .gov for government agencies,  and .mil for military agencies. To get one of these you must qualify. But that’s not the case with .org, .net, and .com. all of which can be obtained freely by just about anyone, for any purpose.
What can you do about the interloper? If someone has taken your company’s trademark and is using it in bad faith to compete against your business as a .org, you can either sue for cybersquatting in U.S. federal court (very expensive), or you can request ICANN arbitration (approximately $1500 if you use only one arbitrator). We discussed cybersquatting in a recent post.
P.S. Coming Soon: Custom TLDs. ICANN has announced that companies can – commencing January 12, 2012 -- buy custom TLDS. For example, Nike can buy exclusive rights to .NIKE and Apple can buy .APPLE. Supposedly these custom domains will sell for $185,000, so it's for serious players only.

2012 Mehndi Styles

2012 Mehndi Styles
2012 Mehndi Styles
Best Mehndi designs 2012 for indian and pakistani girls

Arabic Mehndi Designs 2012

Stylsih Mehndi Designs for Legs 2012

Best Mehndi Designs 2012

Can We Use Cars in CD Cover Art or Movie?

Dear Rich: On music CDs and in the movies I see images of different kinds of cars, and I wonder if the artist has had to pay any royalty to the car manufacturer. For example, the Beatle's Abbey Road album has a white Volkswagen Beetle right behind George Harrison. Does this imply endorsement of Beatle's music by Volkswagen Motor Company? And remember Walt Disney's use of a Volkswagen in the movie, The Love Bug. There are many classic old Fords and Chevys seen in movies all the time. Also, there is a musical group called REO Speedwagon. Using a car's image or trademark may (or may not) trigger problems on a CD cover or in a movie ... it depends on a few factors.
The Abbey Road Cover. The image of a VW on the Abbey Road cover (above) is unlikely to trigger any trademark issues because the usage is primarily editorial -- that is, it's an incidental use and no particular attention is drawn to the car. Of course, at the time, fans saw hidden meanings in the presence of the car (Beetle =  Beatle) but it turns out the car was simply a vehicle owned by someone in a nearby flat. (BTW, the license of the car was stolen soon after the album came out). If consumers were likely to be confused into thinking that Volkswagen (or any other car manufacturer whose vehicle appears on the street) endorsed the Beatles (or vice versa), the car company never saw fit to take action. After all, if the world's most popular band at the time is including your product on a popular album, that's not something you're likely to complain about. (In general, it was a less litigious world back in 1970.) BTW, an editorial use of a trademark -- for example, a picture of a Ford truck in a documentary about trucks -- is not infringing.
Herbie and VW Marks. As for Herbie and the Love Bug movies, Disney removed the name and logos (scroll down) from Herbie in the first movie in the series. Apparently the company was concerned about claims of trademark infringement. But several years later when the sequel appeared (Herbie Rides Again) in 1974, VW sales were down and the VW company insisted that Disney put the trademarks and names back. (The names and marks stayed on Herbie for the subsequent four Love Bug sequels.)

REO Speedwagon. The band, REO Speedwagon, was able to get away with using the name and logo of the REO Speed Wagon company probably because the auto company had likely abandoned any claims to the mark when it ceased production in 1936 (or some time in the later 1940s -- we're not sure) or perhaps when the later owners of the REO Motor Company declared bankruptcy in the early 1970s. An abandoned mark is free for anyone to use, although ceasing production of an automobile is not always a clear sign as to the status of the mark.
As a general rule, you want to avoid making people think the car company is affiliated or endorses your product or service -- for example, calling your band Miata -- or diluting a famous mark by tarnishing its reputation in a commercial context. However, we also note that there's plenty of leeway in these standards as the Caterpillar company found out when they tried unsuccessfully to prevent the use of their villainous tractors in a George of the Jungle movie.

Will Disclosure Docs Help Under First-to-File?

Dear Rich: Once the change is made to “First Inventor to File” under the America Invents Act, will the USPTO still accept filings of invention disclosure documents, as these would still be relevant and useful in derivation proceedings? Hey, welcome back everybody. It's 2012 and we're starting our fifth year of helping creative types answer pressing intellectual property questions. Sure, we never get selected for any "Best of" blog lists, and our Google Analytics are embarrassing, but hey, that's what happens when you're down in the trenches answering questions about Disney princess costumes, Miami Heat logos, and the copyrightability of reuben sandwich recipes. We're not sure how many zillions in dollars we've saved our readers in legal fees (or if we've actually saved anybody any money). But the important thing is that we think we're doing something worthwhile and so we continue on, paving a course that's punctuated by moments of unobscured clarity and unsuspected profundity. Did we say, "Welcome Back?"
Right, you had a question. Yes, disclosure documents might be helpful in the soon-to-come "derivation hearings" -- a process whereby the true creator of an invention is determined. However, if you are referring to the government's official Disclosure Document Program, that's been discontinued and so would not be available when first-to-file (and derivation hearings) kicks in on March 16, 2013. Patent it Yourself author David Pressman agrees with you that a record of conception and testing will be vital in a derivation proceeding, but in the absence of disclosure document filings, inventors will have to keep their own records. By the way, we've posted a series of articles on invention ownership issues at our Patents and Business site.

Midwinter Style

Chilly weather can be the fast-track to a fashion rut. Cozy boots, long coats and dark colors galore define winter style, but lately, they seem like external manifestations of severe seasonal affective disorder. That's no fun. I stumbled across two options for spicing up cold weather wear:

1. High-top sneakers: I could probably get away with wearing these to the office. For those who don't work in an environment where things like snakeskin-print trousers are acceptable, they're ideal for running weekend errands. Why? High-top sneakers are surprisingly great at enduring all sorts of precipitation. My Nike Dunks made it through three Chicago winters. Just add luxe touches like fur and leather to keep them from looking too grungy.

2. Khakis: If winter's mild (read: not Chicago, but maybe New York), khakis are such a cute and unexpected alternative to denim and knit tights. Pair them with a short wool jacket and booties. Plus, I feel like so much winter style has a black or navy palette—brown's a little more fresh. To avoid looking like you're confused and think it's still October, make sure everything else is a warmer, darker tone.

Which look do you like best? (I'm all about #1 myself).


[photo cred here and there]

The Wildy's World Top 40 albums of 2011

Yes, we're on the cusp of a new year, with new experiences out in front of all of us.  But before the tide turns again, let's take a look back at the top 40 albums we reviewed on Wildy's World during 2011.  No big fanfare or drawn out countdown this year.  Just the facts, ma'am.

Rank	Artist	Title
40	Amy Black	One Time
39	Anna Atkinson	Mooniture
38	Monika Borzym	Girl Talk
37	Andy Statman	Old Brooklyn
36	Ron Sexsmith	Long Player, Late Bloomer
35	Jeneen Terrana	See The Light
34	Hannah Miller	O Black River
33	Gattis	E.P.
32	OST	Catch Me If You Can - Original Broadway Cast
31	Laura Roppe	I'm Still Here
30	Renee Wahl	Cumberland Moonshine
29	OST	Anything Goes - New Broadway Cast Recording (2011)
28	The 23 String Band	Catch 23
27	Beth Bombara	Wish I Were You
26	Tally Hall	Good & Evil
25	Imelda May	Mayhem
24	Sarah Jarosz	Follow Me Down
23	Eric Church	Chief
22	Sutton Foster	An Evening With Sutton Foster: Live At The Café Carlyle
21	Forrest Day	Forrest Day
20	John Shipe	Villain
19	Abbie Barrett & The Last Date	The Triples: Volume I [EP]
18	Mark Erelli	Little Vigils
17	Jason Plumb And The Willing	Alive & Willing
16	Skyler	Take You Away
15	Zaz	Zaz
14	Sierra Hull	DayBreak
13	Shayna Zaid & The Catch	Lighthouse
12	Seth Glier	The Next Right Thing
11	Jeannine Hebb	Whileaway
10	Bruce Cockburn	Small Source Of Comfort
9	Bess Rogers	Out Of The Ocean
8	Grace Stumberg	To Whom It May Concern
7	Sunday Wilde	Whay Man!? Oh That Man!!!
6	Emmanuella Grace	London Stories
5	Tommy Shaw	The Great Divide
4	Brandon Schott	13 Satellites
3	Marian Call	Something Fierce
2	Paul Simon	So Beautiful Or So What
1	Ron Hawkins	Straightjacket Love

A New Year

I've been thinking a lot about the new year lately. Usually, it stands as a fresh start, the opportunity for growth. Everyone makes resolutions in order to spark some sort of change in their life, whether that be flossing more often (for me, yes) or drinking less gin and tonics (for me, never).

But for 2012, I don't even know what I should resolve to do. There's been so much change in 2011 that I'd appreciate some sort of stasis in the next year. My life was turned upside-down: I left Evanston for a NYC (read: miniscule) apartment surrounded by pigeons and litter, somehow landed a wonderful job for which people pay me to write (I know, right? And you're getting this for free!), and my best friends either moved to Africa or stayed in Chicago. Do you know what it's like when your best friend is in the Tanzanian jungle? It feels horrible. I don't wish it on anyone but my very worst enemies.

So I'm just going to do what I should have been doing anyway. I'm going to floss because my dad's a gum surgeon who went on a long lecture about gingivitis the last time I let him look at my teeth. I'm going to keep my network of scattered friendships as close as possible, given the circumstances. And most of all, since I already have that New York City shoebox, I'm going to explore the city. Really, really explore it. This means walk outside the radius between my apartment and my office.

Hope you have the happiest New Year ever!


[photo cred here, here, and there]

Does Provisional Trump Regular Patent Application?

Dear Rich: Can you answer a question about provisional patent applications? We've invented an automobile accessory and we filed a provisional patent application. Then we filed a regular patent application. We recently learned that someone else has filed a regular patent application before ours (but after we filed our provisional). Do we lose the race because they filed a regular application before us? Under current patent law (first-to-invent) there is no race to the patent office. The issue is who invented the device first. That said, filing dates are important because they often reflect the date of invention (or constructive reduction to practice). Your filing of a provisional patent application, assuming it accurately reflects the invention in your regular application, can be used as prior art to stop a later inventor (or filer in this case) from obtaining a patent. In summary, if you wrote a good provisional patent application, you're probably the winner. This rule was demonstrated in a court case about a year ago. An inventor, Giacomini, filed a patent application claiming a method of selectively storing sets of electronic data. Another inventor, Tran, filed a patent application after Giacomini for a similar invention. However, Tran’s application was based on a provisional patent application that accurately described the invention and was filed before Giacomini’s application. In that case, the Federal Circuit held that Tran as “first inventor,” could claim patent rights and use his patent application as prior art against Giacomini. In re Giacomini, 612 F.3d 1380 (Fed. Cir. 2010).
Would the outcome be any different under the America Invents Act? On March 16, 2013, the U.S. switches to a first-to-file system. Under that system, the first inventor to file gets the patent. So, the outcome would likely be the same as your provisional patent application would be considered the first filing. Again, that's assuming your provisional patent application accurately reflected the invention claimed in your regular application.

Adam Cross - Sirens

Adam Cross – Sirens
2011, Adam Cross

Aiken, South Carolina singer/songwriter Adam Cross has seenhis heartbreak.  This is evident on Cross’self-released debut album, Sirens.  Whether you take the title as a warning, orperhaps as a treatise on the things that draws us out of ourselves (andsometimes pushes us back in), Sirensis a remarkably mature and subtle disclosure of vulnerability and strength,healing and pain. 

Sirens opens withthe pure pop rock of “Dance”, a catchy-yet-reserved statement of intent that isthe perfect intro to Sirens.  Cross has an appealing voice; staying withina comfortable range that doesn’t restrict his ability to deliver a quietlydynamic performance.  “A Feeling” is amelancholic reflection on love as faith, in a love that, if not requited,certainly isn’t available.  Cross buildsthe song nicely throughout, growing in intensity through the final bridgebefore drawing back.  “Scared To Pieces”is a love ballad written from a less than tenable romantic position.  The smooth, radio-ready chorus is full ofsound and sonically appealing.  Cross isreminiscent of an edgier Rob Thomas here, both for his sound and for his pop sensibilities.

Cross engages in a confessional style on the stripped-down“Save Me”, punctuating the effort with a jump into his upper vocal register onthe chorus.  This last leaves him a bitexposed with a sound that’s less than ideal, but the song has great flow andworks on many levels.  “Time Of OurLives” is a wonderfully upbeat love song, although the verse has a stilted feelthat’s somewhat distracting.  Theexecution here doesn’t quite match the intent, but it’s a solid, pop-friendlyeffort.  “Thursday” is a song of loss,written through the perspective of time, although Cross’ deliberate vocal styleoffers the impression of a suitor who is choosing his words carefully.  He’s still in love, you see, and still pursuingher even if he isn’t certain what it is he wants from the pursuit.  There’s a stylistic grace to this song thatworks, even with its somewhat awkward pace, as he struggles with the competingfeelings of love and hatred.

“Burning Castles” wants to a big pop/rock song but neverquite lives up to its pretensions.  It’sa solid tune, but just never fully becomes. The chorus is mildly catchy, and Cross builds the musical tensionappropriately, there’s just never a payoff. “Time Wasted” laments a relationship that didn’t work out, seen again,through the lens of time.  This one has anice, Adult Alternative sound that will play well with radio programmers andfans alike.  “Tragedy” finds Crossintroducing more of an electronic element into the arrangement.  The result is a somewhat uninspired soundthat seems ripe for pop radio but fails to live up to either the melodic orcreative potential Cross seems to possess. Sirens closes with “Lost”, asix-minute acoustic number that’s among the best on the album.  There’s a prayerful melancholy that pervadesthis number, as Cross laments both a past lost and a seeming lack of future.  The chorus is gorgeous and slow, dressed indark musical timbres.

Adam Cross impresses with Sirens, even if he doesn’t always hit his mark.  There’s a distinctive musicality in Cross’songwriting that has an edgy, Indie-feel, yet a melodicism that pop sensibilitythat make him accessible to the commercial market.  Musical melancholia fans will enjoy Cross’tales of love lost, just missed or never gained.  All of this is delivered without a sense ofself-pity, but rather with a clinical eye that has assessed the past andpresent, and in spite of the pain, taken something of a logical approach toeach heartbreak.  If Sirens is any indication, there are great things to come from AdamCross.

Rating: 3 Stars(Out of 5)

Learn more about Adam Cross at www.adamcrossmusic.com or www.myspace.com/adamcrossmusic. 

Project Progress: the RestoBar

so i have been working on this project for quite some time now, and construction will start as soon as the holiday has finished :)

Reality is, you can squeeze your brain out every time you have to design for something but you also have to consider the (1) Budget (2) Market (3) Period of Lease (4) Maximum Capacity (5) Kitchen Space (6) Food/Drinks that will be served etc. etc. so restraining one's self should be observed.

Initially, we had to go Modern + Minimalist since the idea was to mix Asian + Western (Burgers +Milk Tea + Beer at night) so I had this in mind...

 

Moodboard: White Brick walls, Cement finish, Oak Wood, Tom Dixon inspired drop lights, and suspended bulbs...

And another option with the flooring and walls...

   

And here was the Layout...

I was already excited with the execution of the design, but after some thoughts the partners decided to skip with the "Milk Tea" and go straight with "Burgers + Bar + Beer". So I have to revise everything again (STRESS- was already done with the elevations, rcp, and shop drawings, but ohwell :)

and this is what we have agreed upon to :)

 

Some items were retained, but the furniture went from Modern to Masculine. Also the ambiance got a little rustic and old-feel. While the suspended light accents MUST stay :)

 

Then Option 2 without the divider between the bar and booth seat :)

I'm already excited (and scared) at the same time with the outcome of this project :) We would be expecting that the Opening would be before Valentine's Day :) But after meeting with the contractors and clients again, we have to expect some changes... cost-wise. But anyway, I hope its nothing major, and I hope it would still look great with the revisions of materials and some layouts they were suggesting. But as always, whatever the client says, stays. And our role as designers is to help clients get what they want, not ours (unless given the opportunity, why not :)

but for now, i have to enjoy the Holiday and will keep you posted :)

Happy New Year Everyone :)

Can I Reproduce Images From Crystal Bridges Museum?

Dear Rich: I live near Crystal Bridges, America's newest art museum. Crystal Bridges is the brain child of Wal-Mart Heiress, Alice Walton and is a billion dollar museum. We here in Northwest Arkansas are so excited to have access, free access in fact, since the museum has been given an endowment by Wal-Mart that will allow the non profit museum to be forever free to the public, to see great American art from colonial times to the present. Many of these artworks are early works (pre 1923) and are part of the public domain. I have a new website I’m developing for public domain images. Crystal Bridges allows photographs to be taken of the art as long as a tripod or flash is not used. However, their photography policy states that photos of the art are only to be used for personal use. I take this to mean that they can not be used on my site which shares images with the whole wide web world. Am I correct in my assumption that they don’t have the right to restrict the use of my photographs of their public domain artworks? I am not trying to claim copyright of the photographs, since they will be merely reproductions of public domain works. Whether you can reproduce imagery that's in the public domain really depends on one thing: Did you enter into an agreement with the museum not to reproduce the images? You're probably thinking, "I didn't enter into any agreements with Crystal Bridges." But obtaining an admission ticket, if the ticket contains certain terms and conditions, may qualify as the type of agreement we're talking about. This may seem incredibly creepy -- to condition admission into the museum based on your promise not to reproduce public domain imagery -- but it's not uncommon in the copyright world and these so-called licenses are generally enforceable. Here's what public domain expert Steve Fishman has to say about the practice in his excellent public domain guide.

Many copyright experts believe that licensesimposing copyright-like restriction on howthe public may use public domain materialsshould be legally unenforceable. This isbecausethe federal copyright law preempts(overrides) state contract law and preventspeople from using contracts to create theirown private copyrights. Moreover, thereare sound policy reasons for holding suchlicenserestrictions unenforceable—theirwidespread use diminishes the public’saccessto the public domain.However, almost all courts have ignoredthe experts and enforced these licenses. 

What's a valid license? To have a valid license, you and the museum must assent to the terms and conditions, typically at the time when you enter. If the admission ticket contains no restrictive provisions and you never assented knowingly to such conditions, there probably is no license in place. For example, it's unlikely that an after-the-fact assertion of rights -- a sign on the way out of the museum that tells you that you cannot reproduce the imagery --  is legally enforceable as a contractual license.
What about the Crystal Bridges website? Each page of images at the Crystal Bridges website contains the statement:

Works of art in Crystal Bridges' collection are protected by copyright and may not be used without permission. For more information visit Rights and Reproductions. 

That sounds foreboding but we're not sure that statement creates a binding license. It reminds us more of a tip jar, left in view in the hopes that its presence will trigger a hoped-for result. The museum would have a much stronger argument that its terms and conditions are binding if the user had to assent to these terms and conditions -- that is, click a "Yes, I Agree" button to access the works. The fact that the site includes "copyrighted" photographs of public domain artworks also doesn't affect your ability to copy and reproduce that artwork. Courts have held that "slavish copying" of public domain works does not make the photographs protectible under copyright law. Although we're not a betting blog, if we had to bet, we'd place our money on the fact that currently public domain images at the site can be copied and reproduced without permission.
One last thing. Just because a painting was created before 1923 doesn't mean it's in the public domain. It must have been published before 1923. You may be surprised to learn that displaying a painting in a museum, for example, does not amount to publication. Publication (scroll down) refers to reproduction of the image, for example in a magazine, post card, or book.  To learn more about these tricky public domain rules, check out Fishman's tome.
One other last thing. We're not encouraging you to get chased by the museum and we appreciate the fact that great art is being made available to the masses at no charge. But is it really free? The driving force behind these efforts to restrict reproduction is a desire to jack up gift shop sales and generate licensing revenue. We hope the museum rethinks its desire to reclaim and restrict rights to artwork that our government has designated to be freely available to the public.

Can I Use Artwork Created from Coloring Books?

Dear Rich: My daughter, who has Down syndrome, loves to color design coloring books such as Ruth Heller's Designs for Coloring. She has a good eye for color and puts hours into each picture. She would like to submit her work to a book compiled by Woodbine Publishers about Down syndrome artists. Is she allowed to? We think you should try to get permission first. Assuming you can get in touch with the copyright owners, we believe they are likely to grant permission. We think that because the reproduction won't harm their sales, it's the right thing to do, and it's good public relations. If you can't get permission, we think you can probably get away reproducing the imagery without permission (though we can't guarantee that result).
How do you get permission? The copyright is likely held by the Ruth Heller Trust Fund but we think the place to start your request is with Grosset and Dunlap/Penguin Putnam Books for Young Readers, the publisher. They have an online permission system and a set of FAQs explaining the process and their online database indicates they control about a dozen Ruth Heller books. If the coloring book you are using is not covered, perhaps G&P can lead you to the proper source or to the trust.
Can you use it without permission? We think including one or two images (with proper attribution) would probably not trigger a cease and desist letter. Although the copyright pages of the coloring books don't specifically grant permission for uses like yours, a coloring book is an implied invitation to create a derivative work. It can also probably be argued that the sale of a coloring book implies a limited right to post and reproduce the resulting "colored-in" works. And for what it's worth, the company has not objected to the posting of colored-in versions of their imagery at Amazon. Again, we can't guarantee that the copyright owner won't object to your use, but it's difficult to imagine that they would.

Jeremy Schonfeld – Iron & Coal

Jeremy Schonfeld –Iron & Coal
2011, Jeremy Schonfeld Music

Growing up in a family of Holocaust survivors, JeremySchonfeld has a different perspective on life than many Gen-Xers.  His understanding of the world around him isshaped by the tales of suffering of an entire generation of European Jews atthe hands of Nazi Germany.  This darknesshas occasionally entered into his songwriting over the years, but Schonfeld hasshown a remarkably bright side as well. His musical Drift (writtenwith Craig Pospisil) had a two-year run at the New York Musical Theater Festival.  He is also a founding composter and lyricistsfor A-Train Musicals.  Schonfeld’sperformance style is enigmatic and powerful, as audiences at such venerated NewYork venues as Joe’s Pub, Birdland, B.B. King’s, CBGB’s and Lincoln Center havecome to know.  Schonfeld’s must recentwork, Iron & Coal, is his mostpersonal to date, however.  It is arecast of his father’s memoirs of Auschwitz; a highly personal and powerfulstory born of his father’s experiences, his own emotions, and that fine linebetween fact and art that breeds the best of stories.

Schonfeld himself is an enigma.  If Gordon Lightfoot had gone into musicaltheater instead of folk/rock they’d sound quite similar.  Whatever imperfection you might perceive in Schonfeld’svoice become a part of his larger persona, i.e. Randy Newman or Bob Dylan.  The theatrical flair in his songwriting isalso never far from the surface. Schonfeld knows how to create moments in song.  Opening with “I Gotta Song”, Schonfeld offersup an exultant and beautiful prayer of thanksgiving for “borrowed time”.  The song is in movements like a classicalpiece, but is a folk/pop/Broadway blend than runs nine minutes without everfeeling tired.  “Story Of Love” is aninspired tune that thrums with Schonfeld’s persona.  This is a true performer’s moment that makesyou wish you could take in the song from the third row of a concert hall withthe lights low and just Schonfeld and a piano on stage.  “The Mourner’s Kaddish” opens in Hebrew butturns into story-song full of the oft-complicated love of a song for hisfather.    Love and the drive todifferentiate are at war here, but it’s not the sort of battle that does harmto anyone other, perhaps, than the one writing it.  It’s a powerful tune that will cut deep forthe male listeners in the audience.

“Dead Beat Heart” finds Schonfeld moving more into a 1980’srock sound.  Big guitars and even biggermelody are built around a mellow groove for a very enjoyable listeningexperience.  “Good Stuff” is a rock androll party song, pure and simple.  Verycatchy and danceable, this one is likely to become a guilty pleasure for fansof Kim Mitchell of Cheap Trick.  “SaveMe” is an angry and argumentative number that asks for succor but seems tofight it with every note and every word. Schonfeld uses the percussion here to give the song a deeply unsettledfeel – a theatrical contrivance that’s quite effective.  “Yedid Netesh – Good Man” fades quickly intothe glam, funk and soul of “Bad Man”. While the song itself is catchy and entertaining, Schonfeld’s backupsingers provide the perfect counterpoint that makes the song fly.

Schonfeld is emotionally lost on “Piece Of Me”, a solidpiece of pop/rock songwriting that is sonically pleasing: a high quality albumtrack that holds its place by advancing the story and very quietly holding moreof your attention than you might at first expect.  “Nothing Really Matters – Stop, Stop” begins asa musical soliloquy and turns into a frenetic rockers.  This one will get stuck in your head with itsmanic feel.  “If Ever” opens with anintriguing pizzicato string arrangement and turns into one of the bestnon-traditional ballads to come out of 2011. Don’t be surprised if this song gets covered many times over down theroad.  “Time”, the penultimate track onthe album, advances the story, but feels like its simply holding place.  This isn’t inappropriate in the story line,but it is something of a pause musically that’s simultaneously distracting andpossibly necessary to the story line. Schonfeld brings down the curtain with “Yet”, a song of self-convictionabout moving forward and remember that things will somehow be okay.  It’s a quietly powerful moment that exploresthe resilience of human heart in the wake of inescapable tragedy, wrapped up ina stunning arrangement that’s perfect for the Broadway stage, but easilytransmutable to the pop/rock/folk world.

Jeremy Schonfeld lives on the edge of death for much of Iron & Coal, but like hisprotagonist he truly lives.  The factthat the lines at times become blurred between protagonist and story-telleronly makes the story more powerful. Schonfeld’s compositions are golden – everything flows as if time itselfwere the driver.  You could easilyimagine this cycle being reworked into a show, although it perhaps flows bestas it is.  A successful musicalpresentation would force too many changes, but as a single work of art, Iron & Coal is a thing of beauty.

Rating: 4.5 Stars(Out of 5)

Learn more about www.jeremyschonfeld.com or www.facebook.com/jeremyschonfeldmusic.

Making Merchandise from Video Game Characters

Dear Rich: For a while I have been making digital merchandise based off of famous movie and video game characters. At first I wasn't really making any money off of them. I know now that not making a profit doesn't change anything as far as trademark violations, but I thought it did before, so I stopped selling the merchandise a while ago because I had started making real money and didn't want to make money off of other people's creations without their permission. But now, after so many months, I find myself still wanting to make and sell that merchandise, and other people are asking me to as well. Its a bit frustrating, because I see other people creating things based off of trademarked characters, both in my market and in other markets on the internet. Like all of the Star Trek merchandise you see on Etsy. What's the likelihood of a small one-person business like me getting permission to create merchandise like this? If it's possible, how do I do it?  The likelihood of getting permission is very slim. Owners of video game characters usually only deal with established merchandisers (with serious sales voodoo). Also, they often enter into exclusive licenses. That means they can't grant permission to you without violating their license with someone else. It's possible that if you were offering a new product category, you might have a chance. But that's tough to pull off. (PS. Here's the lowdown on trademark licensing.)
How do other people get away with it? It's a matter of odds. The owners of valuable character properties usually put their resources into pursuing the bigger fish, and for the most part, that often bypasses individual sales at Etsy or eBay. So, unless the trademark owner is intending to make an example of a small fry infringer, a cease and desist letter may be sent, and that's sometimes the end of it.
What should you do? We wish it wasn't frustrating to get permission. Like, wouldn't it be great if you could pay "per impression" for reproductions of licensed characters.  Of course, that may blow any standards of quality ... but hey, merchandise happens. Anyway, infringement is always a gamble and we'll leave the risk assessment to you.

Snafu Caused Loss of Domain Name: Now What?

Dear Rich: I had a URL (domain name), connected to a network of 3 sites. Due to an email account error, the registration was lost. The day it went public and I found out it got bought. I have been running the domain name for a mortgage network and I've owned this site since 2004. I noticed the place-holder page put up for the domain is for a company that is in the Cayman Islands so I am sure it is a crook who bought it for cybersquatting or to steal it. I have sent the company a letter saying they must release it or they will get a cease and desist and I will file with ICANN. What are my rights, what can I do? We're sorry to hear about your domain name loss. Apparently there are companies out there who wait for domain names to expire and then snap them up. Sometimes, the purchase is made in order to sell it back to the previous owner (who is often unaware that the domain has even expired). Sometimes, it's purchased because the new buyer believes that the domain still has some SEO value and so, it can be sold to a third party who can milk it for a few percentage points in Google Analytics.
Is it cybersquatting? Cybersquatting is when someone buys and sells a domain name with the bad faith intent to profit from another company's trademark. (We explain it in more detail, here.) For example, it would likely be cybersquatting if (1) the company set up a site that diverted your customers, (2) the company, in advertising the domain name for sale, mentioned that the potential buyer could trade off your previous traffic, or (3) the company set up a page with Google Ads listing you and your competitors. If the company contacted you, unsolicited, after buying the domain and offered to sell it back to you at a much higher price, that would likely be cybersquatting, too. It would not be cybersquatting if the company set up a non-competitive site for another company or if the company did nothing but set up a  blank page. That's because there's no proof of bad faith intent. After all, it's not illegal to simply buy and sell domain names (without bad faith).
Should you proceed to ICANN? You are unlikely to get the domain name back by sending threatening letters. Most domain name dealers are not cowed by legal letters. They know you can only get the domain name back by (1) filing a federal cybersquatting lawsuit (probably way too expensive for you), or (2) by seeking domain name arbitration at ICANN. If you go the ICANN route, your filing expenses are, at minimum, $1500. It takes six months, requires a considerable amount of paperwork and documentation and may cost more if lawyers are involved. Remember, it's not enough to say that the company bought your domain name, you need to prove bad faith. And of course, there's no guarantee you'll prevail (although complaining parties prevail in 84% of the cases). Many people don't want the wait or the uncertainty of ICANN so they simply contact the new owners and pay for the domain name -- often forking over a sum between $2,000 and $3,000 because that's how much they would likely end up paying in time and money for an ICANN arbitration.

Can We Use European Poster?

Dear Rich: I am an author in the process of publishing a book about modern day Europe. There is a poster (left) which was issued years ago by the Council of Europe, with a slogan which says "Many Tongues One Voice." We would really like to include this in our book but the publisher says we must first get permission from the Council of Europe since the poster is copyrighted. Could you advise as to the proper procedure to get this done? In case you're not aware, there are many who believe that Satan had a hand in the creation of this poster. We don't know if that contribution rises to co-authorship but we sure wouldn't want to run up against the Evil One in a federal court case.
Right, you had a question. The typical procedure for getting permission would be to contact the apparent owner of rights -- the Council of Europe -- and to ask for permission. Here's their contact information. Although the Council of Europe is a multinational organization --  a bit like the United Nations -- it can retain copyrights. For example, the Council of Europe is listed as copyright claimant for seven U.S. copyrights (although there is no registration for the poster). You can review their U.S. copyrights by searching at the Copyright Office. Click "Search the Catalog" and filter your search by "Name." If you can't get a response for your requests, document your attempts in the event that you decide to claim fair use. As we've indicated before, there are a line of cases that make thumbnail reproductions, whether in books or on the web, more likely to be excused as a fair use, especially when accompanied by commentary or criticism.

Does the VEOH Case Affect My Website?

Dear Rich: We're a web startup (a pre-startup, actually).  Can you explain the effect of the recent VEOH ruling regarding website infringement? Wow, a pre-startup! That sounds hopeful!
The case you're referring to -- UMG Recordings v. Shelter Capital, Partners -- has to do with the level of policing required by a website when users post infringing content. Veoh, a site that permits users to upload video content, was sued by Universal Music, after infringing videos were discovered on the site. Veoh had complied with all requests to remove content and had used software to seek out and identify infringing content, but some infringing music videos still made it on to the site.
DMCA as a shield. Universal argued that Veoh (our source for the kitty video) must have known of the "apparent" infringements and should not be able to use the Digital Millenium Copyright Act (scroll down) as a shield. The 9th Circuit Court of Appeals -- the first appeals court to rule on this issue -- held that the burden was on Universal to report the infringements to Veoh, stating,"Copyright holders know precisely what materials they own, and thus are better able to identify infringing copies than service providers likeVeoh." The ruling doesn't shield websites from liability for infringement but it does permit websites to use the DMCA as a shield when the website has anti-infringement policies and has otherwise responded to all requests for takedowns.

Fur Better

Ann Taylor has fluffy and adorable fur pillows ($78; anntaylor.com). YOU ARE WELCOME.

[photo cred here]

Does Filing For Patent End NDA?

Dear Rich: If company A and company B have both signed a legal nondisclosure agreement (NDA) and then company A applies for a patent on the business plan covered in the NDA, does that make the information public and therefore make the NDA null and void? Information in a patent application becomes public when the USPTO publishes an application 18 months after filing. If the applicant does not plan on filing in foreign countries, the applicant can opt out of the 18-month publication program. If the applicant has opted out, the application will only become public if the application issues (or the applicant changes position on foreign filing). (We've discussed that previously, here.)
What happens after publication. Whenever the information is published, that information can no longer be protected as a trade secret and will not be subject to an NDA. That doesn't necessarily make your NDA "null and void." If other nonpublished information has been included as part of the NDA, that should still be protected. For more on the subject, check out our NDA site.