Podcast

Ethan

Hey there welcome to the social media law cast I am your host Ethan Wall social media lawyer here to talk about all things social media and the law and with me is my producer Dave.

Dave Kushner

Hi How's it going. Thanks for having me. Yeah I'm basically your idiot friend who knows nothing about intellectual property law. So this is my opportunity to ask you.

Ethan

Ah, yeah man, Thanks for being here.

Dave Kushner

A lot of questions that may benefit me or may not and you won't charge me for it. Ah awesome. So um I guess really just to give me um, the really start Square one. What is intellectual property.

Ethan

Ah, sounds good fire when ready.

Ethan

Yeah, so intellectual property is property that you you cannot see touch or taste so right over here is my iphone. This is a piece of property. It's physical. It's tangible so this is personal property a house would be considered real property under the law.

Dave Kushner

Yes.

Ethan

And then intellectual property is any type of property that has value but you can't see touch taste live in it. So think of things that you can't see like a brand for example or music on the other hand. That has some sort of a value but cannot be touched or moved around or transferred like regular property would.

Dave Kushner

Oh Okay I got you I got you So That's when I see the the little Tm or I see this the the circle see next to something. Um and I know enough to know that those are copyrights and Trademarks. What. Give me a brief explanation of like what the difference between those are please.

Ethan

Yeah, so if you see a tm or an r with a circle around it which stands for registered trademark those are trademarks trademarks are any names logos and slogans that help to identify a particular product or service. So think about the word Nike is a trademark. The Swoosh check is also a trademark and the phrase just do it is a trademark itself same thing you can have burger king the whopper mcdonald's and Ronald Mcdonald all these different names symbols or slogans have it your way for example are trademarks because it helps to separate Mcdonald's. From burger king on the other hand a copyright where you typically see the letter c in the circle is when you are protecting some sort of tangible medium of expression. This could be a book a song a dance a composition. Ah, piece of artwork a movie film photos videos here. It's some sort of a creative work that is protected under the law. So only the author or the person who creates that creative work gets the right to be able to make money off of it.

Dave Kushner

Okay I see so just to um, extend your your your comparison a little further than you told me what? um what trademarks Nike owns would can you give me an example of a copyright that Nike might own.

Ethan

Um, yeah, totally so let's say that you are on television and you see one of these cool commercials like a spot that's created a thirty second commercial that has athletes running around I think there was a recent one where people were struggling playing sports and it was like hey it's okay to suck. But just do it just get out there. That's like part of the fun Nike would own a copyright over that video so that a competitor like Reebok wouldn't be able to take specific clips from that video and use it in their own marketing campaign and they probably couldn't create. Like a very visually similar work as well. That would be too close to Nike's another example might be Nike would have like an advertisement in a magazine about let's say you know Michael Jordan in that air. Jordan um, you know flying logo or something like that. And maybe they have copyrighted the imagery over the ad itself. So those would be examples of how Nike might be able to copyright something and maybe if I don't know the executives of Nike created some lame Jingle that was like a small song or something like that for Nike as well. That might be copyrighted to.

Dave Kushner

I Feel like they would come out with an awesome jingle So that's just what my opinion is now wood would would um, specific sneakers be copy written or copy. What is what is the past was it copy wrote by. Ah.

Ethan

Ah.

Ethan

Ah, yeah.

Dave Kushner

Would those be copyritable by Nike as well I would assume right like the Airmax Ninety Reebok can't come out with.

Ethan

Um, yeah, so okay, so a couple things there. It's actually a really cool creative question because you blend a trademark and copyright together. So the airm Mas or the air Jordan those would actually be a trademark over a type of shoe. So that Reebok couldn't come out with a similar name for a shoe.

Dave Kushner

Aha wow.

Ethan

But now let's say that you have a shoe with a really unique aesthetic or design I'm not really big in a pop culture but Kanye West I think created some weird looking moon shoes or sandals that he the aqua socks. Okay that he allegedly designed.

Dave Kushner

I call them I call them Aqua socks. Um, the easyies.

Ethan

Under Copyright Laws. It's a real interesting nuance. Actually you can protect um design elements in a product like a shoe that don't serve any Utilitarian function meaning that the design itself doesn't help the function of it. Um, and you can get copyright protection over it. An example might be the ant Jemima syrup bottle that might not be the best example because that's kind of off the shelves at the moment but the bottle itself is shaped like a woman so it doesn't have anything to do with the function of the bottle. It's just a copyrightable design so that if somebody else came up with with a design that looked like that they wouldn't be able to do it. Um, let me give you another example of how something could be copyrighted um from a design perspective. Um, let's think about.

Ethan

What's like some unique product packaging. That's not enchmima. Ah ah, okay, hold on. Yeah so 1 prime example of this is a syrup bottle shaped like a woman.

Dave Kushner

You know you can hit you can hit pause right? now you can hit pause.

Ethan

So if you go into the supermarket. For example, you'll see five six seven different types of syrup bottles. But 1 of them has the shape of a female body. The shape of the female body itself is different from all of the other bottles and is protectable as a copyright or sometimes even considered a trade dress because. It doesn't serve any particular function. It doesn't help to make the syrup go out of the bottle faster and so that creative element to the bottle itself could potentially be copyrighted because it's an artistic element that doesn't have a utilitarian or purposeful function for the product itself.

Dave Kushner

Interesting, interesting and um, how do like patents work into that or any of these things. Um, yeah, what were would they You know you always hear about patents. Ah you know how does that felt working to us. Let me right on. We're run that back.

Ethan

Yeah, so sure we were to be ready.

Dave Kushner

Okay, patents take to following in right now. Um, so are any of these would would these be examples of patents or how do patents fit into this.

Ethan

Yeah, so patents are a third type of intellectual property while copyrights are creative works and trademarks are names slogans and logos patents are inventions. Um, these are usually some new non-obvious.

Ethan

Inventions that are brought into the workplace or brought into the universe that people create. So an example of a patent might be a new computer chip that is bigger or smaller or does something different from something else or like a brand new product that didn't exist before that somebody brought into the market that's going to be different from a name. Different from a creative work. It's like a new unique invention of itself. So if you were to think of like patents copyright and trademarks as characters from the Simpsons. You might think of the mad scientist. Yeah, as a patent. He's someone that's like creating new stuff in a lab that's bringing something to life. Ah, Lisa Simpson might be an example of a copyright. She plays the saxophone she dances. She's artistic and unique and who would a trade bark. Be oh I don't know I didn't think of that one. Um, what's I don't know. Ah.

Dave Kushner

Um, ah, um, but um, duff beer Duff beer duaf beer. Ah.

Ethan

Yeah, tough beer tough man and tough beer there we go would be a great example of a trademark. So there we go just use the simpsons to explain intellectual property and probably committed copyright infringement in doing so sorry Fox Tisney

Dave Kushner

Um, yeah, ah I I think I'm now a lawyer. Um, um, so just to be clear. So if I invented my flying um nacho maker which you know just makes nachos out of Adams. I would get you're in the air like I've been talking work where I've been working on it for years I would get a patent on that invention now if I called it. Let's say nothing. You know the ah flying Nacho Miracle and nothing I would trademark that name and then if I stuck. My head on it like doing like 1 of these double thumbs up like just as an ornamental thing I could copyright that.

Ethan

Um, yeah I don't know if I would buy that product but all of that is exactly right? That's the right use of a patent a trademark and a copyright for your flying Nacho Miracle machine.

Dave Kushner

Well um, get to work on that please? Um, yeah you know filing sending sending I Guess what do you? you send a letter to the the government. How does that work. It's not and it now it's trademarked.

Ethan

Yeah, for sure, it's fat that says that easy. You know what that that is a discussion that that deserves its entire whole episode. So I think we're going to cover that on an episode but let's just say it's a little bit more complex and just sending a letter to the government saying patent it.

Dave Kushner

And. Is.

Dave Kushner

Um, sounds good. Sounds good now now I know that you are a social media lawyer. You have um, a pioneer in this field. Um, how does this exactly fit in to.

Ethan

But but you're not that far off and we'll cover that for sure.

Dave Kushner

You know, intellectual Property law social media.

Ethan

Yeah, so first of all, thanks for calling me a pioneer that's awesome I feel like as you were one of those like raccoon cat like caps with the little furry tale that kind of comes out of it like a real pioneer that is true.

Dave Kushner

But to be fair, you travel by covered wagon. So ah.

Ethan

With great wi-fi by the way which is how I serve my clients while traveling the world. Ah through the Oregon trail. Um, So how does this how does play with social Media. What makes it really interesting is social media has made it so much easier. For people to both bring new businesses to life and also to copy other people's work and piggyback off of their success with the drop of a hat. What I mean by that is let's say going back to your flying nacho machine if you were selling these the flying Nacho Miracle machine.

Dave Kushner

It's miracle.

Ethan

If you were selling these at a local store and they became popular and a competitor wanted to steal your design steal your name and start selling them themselves. They'd have to like get a lease build a building um start selling these things on a street corner or something like this and then you would have to go find out who these people are. Send them a demand letter sue them the whole nine yards it's a much more complex and big process and yes I know you look shocked that someone's going to be stealing your nacho machine but just let me take this hypothetical where I'm taking the hypothetical.

Dave Kushner

Who leaked my designs I Want to know I have to root them out was it you okay good.

Ethan

There was not me because it's not me I'm lactose intolerant as you know So I'm not creating a nacho cheese machine. Um, that's a debate for another day because another that you don't believe in lactose intolerant because I never really had a doctor tell me that I'm lactose intolerant but trust me, it hurts my stomach when I eat cheese Anyway, going back? Yeah well I'm a glutton for Punishment. So ah, but now in the age of social media.

Dave Kushner

Which is what you do often. And.

Ethan

I can immediately start. Let's say making a knockoff of your product and selling them online I can create a fake Facebook page in a matter of minutes pretending to be your brand and be able to sell those products and if I'm trying to ah stop this person from being able to sell these machines. How am I going to find the person on the internet. Makes it so much more difficult there could be somebody in like hiding in an island somewhere with a server that is copying my content taking my photos and using them and I just can't send them a demand letter anymore. It changes the landscape of how we protect and grow our businesses and so trademarks. Copyrights become so incredibly important in the age of social media because if your business wants to succeed. You have to be proactive rather than reactive once you find who the infringer is you're already behind the eight ball and the damage has been done.

Dave Kushner

And.

Ethan

So once you do start a new business. You have to think about before I even adopt a name let me run a trademark search see if it's available to be trademarked and go ahead and file it once I create my creative nacho machine. Let me go ahead and file the copyright application or if I'm hiring somebody to create the website for me.

Dave Kushner

I.

Ethan

I Want to make sure that I own the copyright to that website to those photos to those videos by having a contract that says I own the copyright laws. So that's how social media has had a tremendous impact on businesses trademarks copyrights and intellectual property.

Dave Kushner

Ah, all right? Well that is very Interesting. You know I see a lot of times. Um, artists just being ripped off on social media and I always report it where like I'll see an artist post something to their personal account and then some shady t-shirt manufacturer where it would just Like. Have a very low res ah photo of it and then just sell that without the artist's knowledge and I always tell the artists so this is very interesting how this cuts in and maybe I should start to send these artists towards you because you know you're the expert in this and if I wanted to send any artists. To or anybody who is interested in learning about. Um, just you know, um, advice and social in social media and intellectual property law which I know that you love to give out and you love to um you know. Help people understand what their rights are and what their responsibilities are so um, you know where would somebody reach out to you like this.

Ethan

Yeah, you can find us with a social media law firm so you can find us on social media. Of course you could just search for the social media law firm we're on Instagram Facebook Linkedin we're on Twitter but we really don't tweet that much to be honest, but.

Dave Kushner

Um, yeah.

Ethan

Following our Instagram account is always the best way to get in touch with us because you could just slide it into our Dms ask us some questions and we're always creating new types of content videos and even like ask Ethan lives all the time where we field your questions about social media law intellectual property trademarks copyrights, etc. So. Would just follow the social media law firm on social media and also I would subscribe to this podcast share it with a friend give us a 5 star review tell everybody how great Dave was and how even needs do a better job of coming up with Simpson's characters on the fly. Um, but those would be the best ways to learn more get a hold of us and follow along with all the cool things we're talking about.

Dave Kushner

All right? Well thanks so much. This is a bit of Blast I Um, going to think of some more social media law questions some more copyright questions and I'm going to come at you soon with them. How about that see this again.

Ethan

All right, bring it on. Thank you Dave! Thank you guys and hope to see you again soon.

Dave Kushner

But bye.