Dear Rich: Nolo’s Patent, Copyright & Trademark Blog

Dear Rich: If you snap a photo with a celebrity in your place of business can you then use that photo in a documentary to show that the business attracts celebrity patrons? We don't have a written release from the celebrities. The short answer is, "yes," assuming you have the photographer's permission. You should not use the photos in ads for the restaurant -- that is, implying the celebrity endorses the restaurant -- and you probably shouldn't use the celeb photos in ads for the documentary, either. But if you're using them within the documentary simply to show that the celebrity ate at the restaurant--and the celebrity was aware the photo was being taken (no hidden cameras)  -- there shouldn't be a problem. 

Dear Rich: Over 13 years ago I purchased MC Hammer's storage units which contained all his personal property such as awards, costumes, music, wedding pictures, business records, tons of mementos, etc. I want to do a blog and put pictures of the items daily on the blog so everyone can see what I have. I would like to someday sell it all to someone who will donate it back to him and they can use it somehow as a business promotional write off. In the meantime, I have about 10,000 brand new albums and tapes of his that I would like to sell on the blog site. I have a catchy name for the blog with part of it being MC Hammer. I collect memorabilia but have never hit it big like I did with this. Apparently you purchased the goods during Hammer's 1996 bankruptcy, one of several setbacks suffered by the man many once considered too legit to quit. As for your questions, the short answers are: (1) Reproducing the personal photos, business records, and perhaps some of the related mementos, at your blog would be an infringement of copyright (and may be a violation of privacy of the persons involved); (2) selling the stuff back to someone who will give it to MC Hammer sounds fine (though we're not clear on how this would qualify as a business deduction); (3) Selling the albums and tapes is fine though as far as we can tell, you might have a challenge moving the albums (and little luck with the tapes); (4) Using MC Hammer's name in your blog may be okay provided it doesn't create the impression that the performer endorses or is any way associated with what you are doing.Taking the other recommendations into consideration, the Dear Rich Staff notes that you can probably reproduce photos of items that you are selling for example, costumes and various mementos.

Dear Rich: I have questions: is it legal to sell jewelry with Michael Jackson's pictures? The images are all over and I wonder if it is legal. What if the seller is just charging for the craft and not for the image? Is that OK and legal? Final question, is it OK to buy these jewelry items or is the buyer breaking the law as well?  (1) Selling MJ jewelry probably violates Jackson's trademark rights (hey, if you're in D.C., check out the USPTO tribute), his right of publicity (which passed to Jackson's estate under California law) and may also violate copyright law, unless permitted as a fair use.  (2) We don't understand your second question and we don't think a judge would either. If a crafts artist includes an infringing work on its product, it's an infringement no matter how the price is explained. Otherwise, bootleg DVD sellers could claim the buyer was only paying for the DVD not the pirated movie. (3) In some instances the buyer of an infringing work may violate copyright law depending on the intent and use of the purchase -- for example, if the buyer resells it, displays it or in any way contributes to or encourages the infringement. The pursuit and prosecution of buyers is not common. Copyright owners are more interested in sellers of infringing merchandise. So, if it's illegal, you may be wondering why the estate doesn't do something to stop the tsunami of infringements. Probably it's so overwhelming that if enforcement is taking place, it's for the most egregious and damaging offenses. 

Dear Rich: I'm trying to get a trademark for a nickname. The nickname has been seen in newspaper articles and media referring to different individuals who accomplished similar feats throughout the years -- imagine it is a nickname like "Home Run King" (although this is not the nickname). I have done an unprofessional trademark search and it seems that nobody has claimed it as a trademark. My friend is the original record holder of the feats referred to by the nickname. Although others have been called by this nickname over the years, and they have come close, nobody has broken the records earned by my friend to achieve the nickname. Now my friend wants to start selling pictures and memorabilia and he wants the nickname to be only related to his name. (My friend has already got the domain name. What class should my friend file in when seeking a trademark. He may be selling lots of things with his autograph: sports equipment, clothing, and my friend also wants to protect his nickname for writing books and making movies. My friend can only afford to start with one class at the moment. Which one would give the most protection? By the way, is LegalZoom a decent company to use? The short answer to your first question is that you should pick the goods or services that you believe will be most lucrative (and for which you wish to preclude competitive use). It all comes down to how you are currently making money, and the ways in which you have a bona fide intent to make it in the future. For example, if your friend is currently entertaining at sports memorabilia shows then perhaps you should seek a registration for entertainment services. If you're selling a lot of t-shirts, then that's the way to go. As for books and movies, you cannot obtain a trademark for the single title of a work, so you would not be able to obtain a registration for those goods unless your friend is writing a series of books. 

Dear Rich: Here's a celebrity question for you. I have a blog that serves as an entirely fictitious journal about growing up with a particular celebrity. I am not selling anything and I don't plan to do so.  I'm also not portraying the celebrity in any sort of negative light. Can I run into trouble using the celebrity's name?  What about a picture of the celebrity?  Can I add a disclaimer of some kind to avoid problems? I'm so glad you asked. In fact, that gives me an idea, since I always wondered what it would be like to grow up next door to Totie Fields (a funny woman and an inspiration to us all). Uh, right... back to your question. The short answer is that you can use the celebrity in your blog because most courts consider fictional uses of celebrities to be protected under the first amendment -- a right that trumps the right of publicity. You will run into problems if you make a factual misrepresentation which could reasonably be misinterpreted as being true and damaging to the celebrity ("reckless falsehoods") -- for example, you write an entry stating the celeb's in rehab and readers might reasonably infer this is true (when it's not). In that case, you could be liable under defamation, false light privacy laws. Your lack of commercial benefit (we're assuming you're not running Google Adsense or Amazon Affiliate sales), would help your claim as would providing a prominent disclaimer (scroll to bottom of this page for an example). The Dear Rich staff suggests a disclaimer something to the effect that the blog is fictional and is not approved or endorsed by [name of celebrity]. Running a picture will only cause problems if you don't have permission from the copyright owner. In any case, the Dear RIch staff advises that if you're a fearless writer with few assets, you can dispense with all this advice and do what you want. The worst that's likely to happen (no guarantees, of course) is that you'll be asked to take your blog down.