Intellectual Property Archives - Page 3 of 4 - Joshua D. Waterston, Esq.

Copyright Law Doesn’t “Heart” New York

Joshua D. Waterston, Esq.2021-08-24T10:31:12-04:00May 29th, 2020|Copyright, Intellectual Property, Trademark|

Why is the famous "I [heart] New York" logo protected by trademark and not copyright? At first glance, you'd think that it's artwork, and therefore can be protected by copyright. However, the Copyright Act protects "original works of authorship." The "I [heart] New York" logo is simply the phrase "I love New York", with the word "love" replaced by a red heart. As the Supreme Court held in Feist Publications, Inc. v. Rural Telephone Service Co., [t]he sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. … Original, as [...Read More...]

Post a Photograph to Social Media and License it to the World?

Joshua D. Waterston, Esq.2020-04-30T04:00:50-04:00April 30th, 2020|Contracts, Copyright, Intellectual Property|

Authors, beware! The next time you post your work on social media, you may lose significant ownership rights. A core principle of U.S. copyright law is that the author controls how their work is used, and can earn money from that use if they wish. But what happens when a photographer posts her work on Instagram and a large corporation uses it without compensating the photographer? This is exactly what happened to Stephanie Sinclair, a Pulitzer Prize-winning photojournalist, who has been published in National Geographic and the New York Times Magazine. On September 22, 2015, Sinclair posted a photo to [...Read More...]

During coronavirus, Pennsylvania issues first ethics opinion for lawyers working remotely

Joshua D. Waterston, Esq.2020-10-30T14:52:18-04:00April 13th, 2020|Intellectual Property, Privacy|

Pennsylvania has long been a leader in ensuring that its lawyers can use technology responsibly and ethically. The 2011 Pennsylvania Bar Association (PBA) opinion on cloud computing was among the first of its kind across the country, preceding the American Bar Association (ABA)'s efforts by six years. Today, the PBA distributed its April 10, 2020 opinion on "Ethical Obligations for Lawyers Working Remotely". In this Formal Opinion 2020-300, it cites its 2011 cloud computing opinion and cites the ABA's 2017 opinion, while building on both. Some key takeways: From the 2011 opinion: Cloud computing is allowed, as long as the [...Read More...]

Force Majeure Clauses and the Coronavirus Pandemic

Joshua D. Waterston, Esq.2020-03-27T22:21:17-04:00March 27th, 2020|Contracts, Intellectual Property|

A month ago, we were at work and school. Grocery stores were full of toilet paper, hand sanitizer, flour, and milk. “Flattening the curve” meant that I needed to lose a few pounds. The coronavirus (COVID-19) pandemic has now swept through the United States like a hurricane. Businesses have been shuttered, supply chains are stretched or broken, and employees are required to work at home – if they haven’t been laid off completely. During this pandemic, what do you do if your business can’t pay its rent, ship an order, or otherwise fulfill contractual obligations? Most business contracts include a [...Read More...]

Have DMCA Takedowns Gone Rogue?

Joshua D. Waterston, Esq.2020-03-03T19:22:37-05:00March 3rd, 2020|Copyright, Intellectual Property|

In 1998, the Digital Millennium Copyright Act (DMCA) became law. That year, Chumbawamba's "Tubthumping" topped the charts, Mark McGwire broke the home run record, Google, Inc. was formed, and smartphones didn't yet exist. The Web was in its infancy, but online service providers were concerned about their potential liability for hosting users' content. The DMCA added a new section 512 to the Copyright Act, limiting the liability for online service providers who hosted unmodified user content, adopted methods to terminate access to repeat copyright infringers, didn't interfere with copyright protection technology, and complied with copyright owners' requests to remove infringing material. This [...Read More...]

Google v. Oracle – the Supreme Court’s copyright case of the decade?

Joshua D. Waterston, Esq.2020-07-31T00:05:22-04:00January 30th, 2020|Copyright, Intellectual Property|

Photo by Mr. Kjetil Ree. [CC BY-SA] Newsweek has called it the "copyright case of the decade" and they may be right. Google and Oracle are software titans battling over whether the freely available connections between software platforms (Application Programming Interfaces, or "APIs") can be protected by copyright law. What's an API? APIs are bits of software code which enable developers to quickly and easily build programs that integrate with a specific platform or piece of software, saving the developer from needing to write the code for commonly-used functions. For example, both Android and iOS have APIs that enable [...Read More...]

The KosherSwitch Patent: Protecting malfunction by design

Joshua D. Waterston, Esq.2019-12-27T19:19:49-05:00December 27th, 2019|Intellectual Property, Patent, Trademark|

Here's a challenge for these modern times: How do observant Jews follow the Biblical commandment to observe the Sabbath? Rabbis generally agree that driving is prohibited, and that using electricity is not prohibited - but using switches to manually turn the flow of electricity on or off is prohibited. This is why you may have seen refrigerators or ovens with a "Sabbath mode", which prevents certain functions from working on the Sabbath. By contrast, light switches don't have such a mode; they are either on or off. Which brings us to the KosherSwitch and the concept of random chance. In [...Read More...]

No, You Can’t Trademark “OK Boomer”

Joshua D. Waterston, Esq.2020-10-30T15:00:26-04:00November 20th, 2019|Intellectual Property, Trademark|

You may have heard that the generational battle between "milennials" and "baby boomers" now has a catch phrase: "OK Boomer". It's a dismissive phrase by those darn youngsters who are loitering on your lawn and forgetting to pull up their pants. I'm kidding about the loitering and the pants, but the catchphrase is a real thing, and it's also become a meme. If you don't know what a meme is, then chances are that you're a boomer and may be more interested in other articles on this site instead. But I digress. "OK Boomer" has become so popular that there's [...Read More...]

Tales of unclean hands and stolen trade secrets

Joshua D. Waterston, Esq.2021-08-31T17:58:02-04:00November 1st, 2019|Intellectual Property, Trade Secrets|

How far can businesses go to protect their intellectual property, and what is the minimum that they need to do to protect it? Two cases highlight the boundaries of trade secret law. This past February, the Third Circuit Court of Appeals held that the trade secret owner's own lack of trade secret policies did not prevent it from prevailing in trade secrets litigation against a former employee. In Scherer Design Group v. Ahead Engineering LLC, there was a question as to whether the employer secretly monitored the employee's Facebook Messenger conversations, or whether the employee had just coincidentally not logged [...Read More...]

The Laughable Non-Disclosure Agreement

Joshua D. Waterston, Esq.2020-09-29T23:11:07-04:00May 4th, 2018|Contracts, Intellectual Property|

Summary: Update Non-Disclosure Agreements (NDAs) to match the new digital reality. Businesses should be proactive to address outdated provisions in NDAs before problems occur. Remember the olden days of fax machines? You’d receive a fax with a long disclaimer at the bottom, saying something like, “This fax may contain super-secret information which could endanger our company, our world, and even our universe, if it should fall into the wrong hands. If you receive this fax by accident, you must immediately return the fax to the sender, or we will send our goons to find and severely punish you.” The question [...Read More...]