Gavin Law Offices

Entertainment Law FAQs

Posted on by Gavin Law Offices

Are you an artist, musician, author, or party who publishes music or other content? You may need to brush up on some legal basics in the entertainment world. For #FAQFriday, we’ve compiled 3 common Q&A’s about entertainment law:

1. What is entertainment law?

Entertainment law encompasses a field of legal services for those in the entertainment industry.  These services may include intellectual property law (copyrights, trademarks, trade secrets, etc.), privacy law and rights of publicity, and general business law such as contracts.

2. What type of services do I need?

Each individual that works in the field of entertainment has unique legal needs and assets to protect.  An experienced entertainment attorney can tailor services directly to such needs and assets, including ensuring necessary copyright protections are in place, agreements are negotiated with your best interests in mind, takedown notices are filed if necessary, and more.

3. If I am not a singer, actor, or any type of “entertainer” or media creator, does any of this apply to me?

It might! Many businesses use media, such as music, videos, or artwork, or may hire entertainers at some point for their own marketing projects. An experienced entertainment attorney can help set entertainers and those that work with them up for success.

 

For more information check out our services or contact us today.

(This is not intended as legal advice. Contact a lawyer for assistance in your particular situation.)

Trademark Mistakes: 5 Common Ways You May Be Losing Value

Posted on by Gavin Law Offices

Whether you are just starting out or have a large portfolio of protected names, logos, and slogans you know the value of protecting your brand. However, it is common for businesses to overlook their intellectual property. When it comes to trademark registration, there are ways to get the most out of your IP strategy. Below are some of the most common trademark mistakes that may be costing your business:

Top 5 Trademark Mistakes

1. Not Choosing a Strong Mark:

Picking a weak mark that is descriptive or generic can result in consumer confusion and be difficult or impossible to register with the U.S. Trademark Office. A weak mark can set you up for a lifetime of headaches trying to protect and enforce your mark. However, a strong mark can make you stand out in the marketplace, and it is often easier for owners to register and enforce their rights in a strong mark. We can help you choose a distinctive mark that will set your business up for success!

2. Failing to Pre-Clear Your Trademark:

Pre-clearance is important! We can conduct a preclearance search for two reasons. First, it helps you determine the full scope of rights available to you for a mark. It also ensures that your mark does not infringe any third-party rights. According to the U.S. Trademark Office’s data from 2019, nearly 83% of trademark applications received an Office Action.  Having an attorney guide you through an initial preclearance process can reduce the likelihood of your trademark application receiving an objection.  Understanding the potential risk surrounding your use of a particular mark can decrease the chance of another trademark owner initiating an infringement action against you as well. As the saying goes, an ounce of prevention is worth a pound of cure!

3. Not Thinking About Future Expansion:

It is not uncommon for businesses located in different geographic areas (such as on the east coast vs. the west coast) to start using the same mark. However, when either business attempts to expand or to federally register its mark, conflict can arise.  Sometimes a business that initially starts using a mark in connection with specific goods and services later wishes to expand such offerings, only to find that someone else is already using and has registered the same mark in connection with the new goods or services.  Thinking these issues through with an attorney on the front end can make expanding into new territory, whether geographically or in the marketplace, much smoother.

4. Not Enforcing Your Rights:

The U.S. Trademark Office does not monitor for trademark infringement – it is up to owners to police and enforce their own marks. Failing to properly monitor your mark and to take action against potential infringers can lead to big problems. These include the potential for trademark dilution and even losing rights in your mark. We can monitor your marks and help you protect your rights!

5. Missing Maintenance Filings and Renewals:

Federal trademark registrations require maintenance filings after 5-6 years of registration, and renewal filings every 10 years to keep the registration “alive.” If you miss a maintenance filing or renewal deadline, your federal registration will be cancelled. We understand the time and expense our clients put into their trademark registrations, and can help track upcoming maintenance and renewal filings so that you never miss a deadline!

It can be tricky to know all the steps and possible hurdles in trademark registration. Although doing it yourself may save time and money in other instances, taking a “DIY” approach with valuable aspects of your business could lead to more headaches than it’s worth. Trademark mistakes may be common but it doesn’t have to happen for you.

— Courtney Reigel, Esq. & Lily Taggart

(This is not intended as legal advice. Contact a lawyer for assistance in your particular situation.)

If you’re ready to move your business forward, ask about our branding optimization session or trademark focused consultation!

 

Celebrating St. Patrick’s Day the Trademark Way

Posted on by Gavin Law Offices

Although St. Patrick himself is steeped in hundreds of years of legend, there are a few remaining things that we know today. Many scholars credit him with bringing Christianity to the Irish people. We celebrate him on the 17th of March, the date that supposedly marks his death. One of the most common legends that most people may know revolves around the shamrock, a symbol of Ireland frequently used with the holiday and with Irish products and services. The tale holds that St. Patrick used the three leaves on commonly found Irish clover, the shamrock, to explain the Holy Trinity of Father, Son, and Holy Spirit. Since his death, the tales of St. Patrick’s life have grown and become strongly tied with Irish culture.

The modern holiday began on the small island years ago but it has now grown into a major celebration with economic opportunity. No shortage of green items are available to enhance the festivities. This St. Patrick’s Day, our team took some time during our regular Thursday afternoon meeting to host a Skribll.io tournament. The Irish theme meant drawing prompts such as shamrock, rainbow, pot of gold, and the classic green beer.

Speaking of Irish symbols, there are several Irish and St. Patrick’s-related examples of protected intellectual property. The U.S. Trademark Office has thousands of registrations and pending applications that feature a shamrock as part of the design. One product somewhat synonymous with the holiday is the classic pint of Guinness. Guinness first trademarked its iconic harp in 1876. The same type of Irish harp is actually the Republic of Ireland’s official national emblem. In order to differentiate between the two, the Irish government turned the harp the opposite direction! Trademark complexity is as old as the protections themselves, but that’s where we can help. Gavin Law Offices is here for all your trademark needs.

 

(This is not intended as legal advice. Contact a lawyer for assistance in your particular situation.)

 

 

Virginia Becomes 2nd State to Pass Comprehensive Data Privacy Law

Posted on by Gavin Law Offices

On March 2nd, Governor Ralph Northam signed into law the Consumer Data Protection Act (“CDPA”), making Virginia the second state to enact comprehensive data privacy legislation.  The new law, which will go into effect on January 1, 2023, combines concepts from the California Consumer Privacy Act (“CCPA”) and California Privacy Rights Act (“CPRA”), as well as Europe’s General Data Protection Regulation (“GDPR”).  The CDPA grants numerous rights to residents of the Commonwealth to provide them with greater control over their personal data, and places new obligations upon covered businesses.  Specifically, the law gives Virginia residents (“consumers”) the right to access, correct, delete, and obtain a copy of their personal data, as well as the right to opt out of the sale or processing of their personal data by covered businesses for purposes of “targeted advertising.”[1]  The CDPA broadly defines “personal data” as “any information that is linked or reasonably linkable to an identified or identifiable natural person,” and excludes de-identified data or publicly available information.  Virginia’s new law also creates a special sub-category for “sensitive data” that includes: “(1) personal data revealing racial or ethnic origin, religious beliefs, mental or physical health diagnosis, sexual orientation, or citizenship or immigration status; (2) the processing of genetic or biometric data for the purpose of uniquely identifying a natural person; (3) the personal data collected from a known child; or (4) precise geolocation data.”

Who is Covered?

The CDPA applies to businesses, whether physically located in Virginia or not, that conduct business in or target residents of the Commonwealth, and that either: (1) control or process the personal data of at least 100,000 consumers, or (2) derive over 50 percent of their gross revenue from the sale of personal data and control or process the personal data of at least 25,000 consumers.  In addition to excluding small business from its scope, Virginia’s law includes several other exemptions and provisions making it generally more business-friendly than Europe’s and California’s laws.   For example, the CDPA excludes non-profit organizations and institutions of higher education, as well as businesses that meet the above thresholds but are already subject to federal privacy laws such as the Gramm-Leach-Bliley Act and HIPPA.[2]  The law also defines “consumer” as “a natural person who is a resident of the Commonwealth acting only in an individual or household context. It does not include a natural person acting in a commercial or employment context.”  While California passed temporary business-to-business (“B2B”) and employment-related exemptions to lessen the burden of businesses’ compliance with the CCPA, the Virginia law considers and includes built-in exceptions for these types of personal data.

Requirements for Covered Businesses

Businesses subject to the provisions of the CDPA will need to develop processes to allow consumers to exercise the above-mentioned rights.  Covered businesses should also prepare to comply with the following obligations under the new law:

  1. The requirement that covered businesses provide a reasonably accessible, clear, and meaningful privacy notice (often referred to as a “privacy policy”) that includes specific information as outlined by the law.
  2. The requirement that covered businesses considered “controllers” put contracts in place with third party “processors” of personal data containing specific provisions related to the handling of consumers’ personal data.[3] Thus, businesses subject to the CDPA should adopt standard contractual language to include in any agreements with vendors that will touch personal data.
  3. The requirement that covered businesses limit the collection of personal data to what is “adequate, relevant, and reasonably necessary in relation to the purposes for which such data is processed, as disclosed to the consumer,” and that such businesses “establish, implement, and maintain reasonable administrative, technical, and physical data security practices to protect the confidentiality, integrity, and accessibility of personal data.”[4]
  4. The requirement that covered businesses conduct and document a formal “data protection assessment.” The assessment must include specific information related to businesses’ processing of personal data.  The Office of Attorney General may request a copy of a business’s data protection assessment under its investigative authority (which, for example, is likely to occur during its investigation into a covered business’s data breach).
  5. The requirement that covered businesses obtain affirmative consent from consumers before collecting and using “sensitive data.” Because affirmative consent is not currently required under California’s data privacy laws, many covered businesses will likely need to consider how they will obtain such consent and if/why they are processing sensitive data, specifically.

Enforcement

The CDPA will be enforced by Virginia’s Office of the Attorney General, which will have investigative authority and may seek injunctions and/or impose civil penalties of up to $7,500 per infraction for covered businesses that violate the law.  Any penalties and fees collected will go into a “Consumer Privacy Fund” used to support the work of the Office of the Attorney General to enforce the provisions of the CDPA.  Like the CCPA, Virginia’s new law also provides for a 30-day cure period for violations.  However, quite notably and unlike the CCPA, the CDPA does not include any private right of action.  Further, while the Virginia law does not contain language regarding rulemaking authority or procedures, it creates a “work group” to review the CDPA and issues related to its implementation.[5]  The work group’s findings, best practices, and recommendations regarding the implementation of the CDPA shall be submitted to the Chairmen of the Senate Committee on General Laws and Technology and the House Committee on Communications, Technology and Innovation no later than November 1, 2021.

Generally, the CDPA avoids several areas of uncertainty that lawmakers and California’s Attorney General, as well as covered businesses seeking to comply, encountered during the rollout of the CCPA.  Thus, Virginia’s law may provide a clearer model for consumers and businesses to follow, as well as for other states and possibly the federal government when developing their own data privacy legislation.  Gavin Law Offices, PLC will continue to monitor updates regarding the CDPA and other U.S. data privacy laws.

(This blog post is not intended as legal advice.  Please contact us for more information and assistance regarding your particular situation.)

[1] “Targeted advertising” means displaying advertisements to a consumer where the advertisement is selected based on personal data obtained from that consumer’s activities over time and across nonaffiliated websites or online applications to predict such consumer’s preferences or interests.  “Targeted advertising” does not include: (1) Advertisements based on activities within a controller’s own websites or online applications; (2) Advertisements based on the context of a consumer’s current search query, visit to a website, or online application; (3) Advertisements directed to a consumer in response to the consumer’s request for information or feedback; or (4) Processing personal data processed solely for measuring or reporting advertising performance, reach, or frequency.

[2] This language is considerably more favorable for businesses than a similar exception under the CCPA, which applies to only “personal information” collected, processed, sold, or disclosed pursuant to a specified federal law such as GLBA or HIPPA, and does not exclude the entity as a whole like the new Virginia law.

[3] Under the CDPA, “controller” means the natural or legal person that, alone or jointly with others, determines the purpose and means of processing personal data.  Meanwhile, “processor” means a natural or legal entity that processes personal data on behalf of a controller.  Both terms will be familiar to those acquainted with data privacy legislation, as they are borrowed from the GDPR.

[4] This “reasonable” safeguard standard is also included in the CCPA/CPRA and the GDPR.  The CDPA also includes language that “such data security practices shall be appropriate to the volume and nature of the personal data at issue.”  Thus, like existing data privacy law, Virginia’s will allow businesses to determine their own “reasonable” security practices and does not obligate covered businesses to put in place any specific data security measures.

[5] Specifically, the “Chairman of the Joint Commission on Technology and Science shall create a work group composed of the Secretary of Commerce and Trade, the Secretary of Administration, the Attorney General, the Chairman of the Senate Committee on Transportation, representatives of businesses who control or process personal data of at least 100,000 persons, and consumer rights advocates.”  Interestingly, this does not include representatives of businesses who derive over 50 percent of their gross revenue from the sale of personal data and control or process the personal data of at least 25,000 consumers.

 

–  Courtney Reigel, Esq.

2021 JOLT Symposium: Emerging Technology in Law

Posted on by Gavin Law Offices

Rina Van Orden recently attended the University of Richmond’s Journal of Law & Technology Spring Symposium. The event focused on “Emerging Technology in Law” and included topics such as artificial intelligence, blockchain, and bridging the access gap.

One panel covered “The Future of Law Post-Pandemic” presented by Sharon Nelson and John Simek. Nelson and Simek covered the many ways that the past year has changed the ways we work. Legal considerations for modifying operations represent their own opportunities for creative solutions. Web-based solutions like electronic signature and document services have helped maintain integral professional processes. Similarly, telecommunicating services provide safe ways to consult with coworkers and clients.

The event concluded with an engaging panel focused on Women in Technology Law. A highlight of the event, this topic was particularly relevant to our firm. The panel included attorneys, educators, and other professionals who were able to give perspective on what it’s like to be a woman in this field and ways to increase future technology law opportunities.

We want to thank the Journal of Law & Technology for a wonderful program. As the legal industry grows and adapts, we continue to stay informed of the ways to better serve you.