Zamani Thomas Archives | Miami IP, Trademark & Entertainment Lawyer

Civil Rights, Copyright, and Owning a Movement

When Dr. Martin Luther King Jr. said, “ I Have a Dream,” I’m pretty sure he wasn’t considering for one second the copyright implications. There will be many posts today celebrating his great achievements, but why not also talk about some copyright law. All his iconic speeches are still under copyright and not free for the public domain to access as yet. So the bigger question then, who owns the IP of social movements?

I probably spend too much time thinking about the legal side of history when it comes to too many things, especially IP law. I’ve noticed a battle that’s been brewing for years between protecting someone’s IP and making sure the public can learn and be inspired by their work. What’s even more complicated is when the work and that person happens to be a civil rights legend who reshaped history.

Things have gotten tricky in the digital age; Tik Tok, Instagram, X etc. can reach millions each day. The advent of these platforms have made it more difficult for the estates of these social movement pioneers to keep the messages authentic.

Add in AI to this and you get a barrage of deep fakes, voice cloning and you may see Dr. King giving a speech he never gave.

Here are a few ideas on how to keep Dr. King’s legacy (and others like his) safe from misappropriation while allowing people to learn and share his message freely for proper usage in our 24/7 digital world.

Limited-Term Copyright for Social Impact Works – Possibly let crucial civil rights speeches and works enter the public domain faster (currently life span of the author + 70 years), while still protecting the financial interests of the estates.
Open Licensing for Educational Use – Give teachers, historians and educational institutions the ability to teach the content without having to jump through hoops.
Fair Use Expansion – Allow educators and activists to use more of the speeches and works and not have to worry about a copyright takedown for every little snippet posted.
AI Ethical Guidelines – Create some concrete laws and ground rules so we are not facing a future where all our heroes and icons aren’t selling toothpaste or coffee mugs, unbeknownst to their estate.

As an IP Attorney, I admit I’m biased to keeping the law relevant and with the speed of social media and AI, we need to seriously consider how we protect important social messages. We need to try our best to keep history accurate. Should social movement speeches and texts remain locked behind copyright, or free for the public to share? And how does AI fit into this?

Drake v. UMG: From Booth to Courtroom, a New Style of Rap Battle

By Zamani Thomas Blog Roll

What started as a threat a month or so ago has now become an actual case. I guess this is what happens now when the two biggest names in rap clash. While I am not here to pass judgement on either side, there was a time, in which I grew up, not long ago when rap beefs never entered the courtroom (admittedly they still too frequently end in the streets with violence).

Leaving the hip hop cultural taboo of bringing this clash to the courts rather than the booth aside, I thought it would be interesting to look at the legal issues involved here. Many of these issues I’ve litigated or been involved in during my career and I am looking forward to seeing how they play out.

Without opinion nor bias, below are the legal issues Drake is bringing to the table in his lawsuit against Universal Music Group (UMG):

Defamation (Libel):

– Drake alleges that UMG knowingly published and promoted the song “Not Like Us” which accuses him of being a pedophile.

– Drake must prove that false statements were made and they cause reputational harm and were made with negligence or malice.

– UMG can claim as a defense that the lyrics were artistic expression and protected under the 1st Amendment.

Negligence & Duty of Care:

– Drake can argue that UMG owed him the duty of care as an artist on their label

– If UMG published the song and knew the lyrics were harmful, negligence could be considered..

– UMG may posit the question of whether they owed Drake a duty to prevent reputational damage caused by another artist signed to them.

Breach of Fiduciary Duty:

– Labels owe artists a duty of good faith and fair dealing.

– Drake will try to show that UMG prioritized Kendrick’s success at his expense and breached this duty.

Misrepresentation & Fraud:

– Drake could argue fraudulent representation if UMG assured him of label support but promoted damaging content.

– Drake must prove intentional deception and financial or reputational harm.

Contractual Violations:

– Depending on the contract between Drake and UMG, there may be violations constituting breach.

Tortious Interference:

– Drake could look to argue UMG interfered with his career and led to some lost business opportunities.

– Drake must prove UMG’s actions intentionally harmed him professionally and earnings wise.

First Amendment Defense by UMG:

– UMG will argue “Not Like Us” is artistic expression and thus protected speech under the 1st amendment.

– In most cases courts are likely to lean on the side of protecting lyrics as free speech unless proven to be statements made intended to cause harm.

This isn’t the first time a recording artist has sued their label, it is the first time to my knowledge that a hip hop artist is suing his/her label over a diss-track by a label mate. If successful this landmark case could have a chilling effect on rap beefs going forward and would alter the competitive sport of rap battles in the future.

Disclaimer

THE INFORMATION CONTAINED IN THIS WEBSITE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE ON ANY MATTER.

The transmission and receipt of information contained on this Web site, in whole or in part, or communication with Zamani Thomas PA via the Internet or e-mail through this website does not constitute or create a lawyer-client relationship between us and any recipient. You should not send us any confidential information in response to this web-page. Such responses will not create a lawyer-client relationship, and whatever you disclose to us will not be privileged or confidential unless we have agreed to act as your legal counsel and you have executed a written engagement agreement with Zamani Thomas PA. The material on this website may not reflect the most current legal developments. The content and interpretation of the law addressed herein is subject to revision. We disclaim all liability in respect to actions taken or not taken based on any or all the contents of this site to the fullest extent permitted by law. Do not act or refrain from acting upon this information without seeking professional legal counsel.

6 Differences Between U.S. and Canadian Trademarks

By Zamani Thomas Blog Roll

Canadians should consider trademarking their brands in the U.S. due to its much larger consumer market, for protection against cross border infringement and to secure their brand’s identity in cross-border trade (particularly now with e-commerce etc.). Without a U.S. trademark, many Canadian brands risk losing their competitive advantage in the United States. Below are some differences between the two country’s processes.

The Use Requirements for Registration & Filing Basis
- U.S.: An applied for trademark in the United States has a requirement that it is currently being used in commerce for it to be registered with the USPTO. Applicants are able to file for a trademark with an “Intent to Use” 1(b) filing basis, however, the examiner will not register the mark until there is evidence of that mark in use with a 1(a) filing basis.
- Canada: Trademarks in Canada are not required to be “In Use” in order for the registration to occur, thus no filing basis is required. However, in order to maintain your trademark long term, the mark must be In Use or the trademark could be removed from the Register of Trademarks

Trademark Duration and Renewal
- U.S.: Registered marks in the United States must be renewed every 10 years and a declaration of continued use must be filed between the 5th and 6th year to maintain the registration.
- Canada: Registered marks in Canada must be renewed every 10 years, however do not require any midterm declarations

Distinctiveness
- U.S.: The USPTO maintains that distinctiveness is a critical element of a registered mark. If your mark is generic or descriptive it is not registerable. If your mark is descriptive the USPTO may ask for proof of “Secondary meaning”
- Canada: Distinctiveness is important in Canada but is not as narrowly monitored as in the States. The Canadian Intellectual Property Office (CIPO) may accept broader descriptive elements than its U.S. counterpart.

Trademark Opposition
- U.S.: Oppositions in the U.S. are filed with the Trademark Trial and Appeal Board (TTAB) which operates as a semi-judicial body.
- Canada: Oppositions in Canada are handled by the CIPO itself and not as formal as the TTAB procedure.

Examination of Applicants and Scope of Protection
- U.S.: The USPTO has a stricter and more in depth examination process; Particularly their assessment of “likelihood of confusion” analysis with existing registered (and times applied for) marks.
- Canada: The CIPO process is not as rigorous overall, but does include a broader assessment of descriptiveness and registerabilty.

Nationwide Protection
- U.S.: Federal and State registrations are available in the U.S.. However federal registrations are considered superior and only available if the mark is being used in interstate commerce.
- Canada: Registered trademarks in Canada enjoy federal protection even in cases where there is no inter-provincial or international trade.

Disclaimer

The information contained in this website is provided for informational purposes only, and should not be construed as legal advice on any matter.

Protecting Your Brand #1: Establishing Your Brand Identity

By Zamani Thomas Blog Roll

Building Your Brand: The Legal Foundations for Entrepreneurs

Trademarks: What They Are and Why they Matter.

Based on the Oxford Dictionary definition a Trademark is a symbol, word, or words legally registered or established by use as representing a company or product (or service). It connects you and/or your business to the market with a simple logo, expression or catch phrase to name a few. It associates your brand’s identity and helps people link your items with quality and trust.

Why Trademarks Matter:

Legal Protection: Trademarks grant you the exclusive rights to use your brand’s elements in commerce relating to your industry and imposes limitations and more importantly recourse if others attempt to benefit from your mark.

Brand Recognition: A trademark allows customers to gain instant recognition with your brand‒ building trust and loyalty.

Business Value: A well branded and protected trademark increases your business valuation (in some instances being the most valuable asset of a company) ‒ making it more appealing to investors and partners.

E.g. Famous trademarks like McDonald’s golden arches or Nike’s swoosh have become symbols of their brands ‒ driving customer loyalty and market power.

How to Select a Strong and Distinctive Brand Name or Logo

When deciding on a brand name or logo you must go further than just creativity; the legal implications are also integral. A strong name or logo with distinctiveness offers more protection, while being easier to enforce and protect as a trademark.

Ideas and Tips for Brand Names:

Distinctiveness: Try your best to avoid generic or descriptive names like “Best Body Lotion” or “Burger and Fries.” Instead, businesses should be aiming for uniqueness such as “Nivea” or “Wendy’s” respectively.

Be Memorable: Choose a name that connects with your target audience and is easy to remember, spell or pronounce while also being relevant to your brand identity. Testing potential names with your audience if possible is a good strategy.

Think about the Future: When selecting your name, be sure that it is resilient and versatile enough to grow as your business grows. Consider the path of the industry you are entering and how the name will age with time.

Ideas and Tips for Designing a Logo:

Be sure that the design is clean and original. Make sure it is done with professional quality and you are in possession of the original design file.

Stay away from common symbols and elements that may cause brand confusion and reduce your ability to trademark the logo.

Keep it simple and versatile for use across various media and platforms.

Arbitrary and suggestive names like (Burger King or Lexus) are easier than descriptive ones to trademark, thus making them easier to protect.

Steps to Conducting a Thorough Trademark Search

It’s crucial to conduct a thorough trademark search to be sure your preferred brand name or logo is not already in use. A quality search may prevent expensive and lengthy legal disputes and ultimate rebranding costs.

Search the USPTO Database: The United States Patent and Trademark Office’s online database is the first stop any business should make when looking for existing trademarks. The database allows visitors to search based on a number of criteria and is invaluable to potential registrants. (Canadian Trademark Office has a similar database)

Check Search Engines, Social Media and Websites: See if your desired brand name is available as a website domain and on social media platforms.

HIre an IP Attorney: Trademark attorneys perform detailed searches and are able to uncover subtle differences or similarities in potential marks and existing ones that may make the difference between a viable trademark or not.

Final Thoughts and Advice for Starting Their Brand Journey

Define Your Brand:

Have a clear mission, and a clear vision and be sure all of them reflect your business’ values and intended brand ideals.

Have a target market in mind and consider how your name/logo will resonate with them.

Create a unique brand narrative that differentiates you.

Prioritize Early Legal Protection:

Apply for registration of your business name and logo with the USPTO or appropriate jurisdiction.

Start with your name, logo and catchphrases. These will be the IP assets most likely to be infringed.

If possible, apply for the trademark before launching your brand. Rhe application alone gives a limited amount of protection.

Invest in Professionals:

Find a trademark attorney for assistance with the ins and outs of trademark law to avoid pitfalls.

Work with professional designers and artists if you have creative limitations.

Conclusion:

The steps above, while not a fully exhaustive list, if followed will assist entrepreneurs build a resilient brand to capture the essence of their brand, while covering the legal and marketing complexities it may face.

Disclaimer

The information contained in this website is provided for informational purposes only, and should not be construed as legal advice on any matter.

The Challenges of AI in the Legal Profession

By Zamani Thomas Blog Roll

AI is in the midst of reshaping industries world wide; the legal field is no exception. While it offers many exciting possibilities like streamlining document review and the possibility of enhancing case outcome models, its integration into law comes with significant challenges. A few of these are as follow:

Ensuring Accuracy: many times AI miss subtle nuances of legal precedent and context, which can have enormous consequences.
Bias in Decision-Making: AI systems inherit the biases of their training models, which could lead to biased analysis instead of objective ones.
Confidentiality Concerns: Maintaining client confidentiality is a foundational principle to law and granting the LLM chats access to client data may violate this fundamental principle.
Shifting Career Paths: AI automates routine tasks that once provided hands-on experience for young lawyers, potentially narrowing opportunities for skill development.
Regulatory Gaps: As with all new technology, the regulatory controls always trail the innovators, creating uncertainty around ethical standards.
Preserving the Human Touch: Law and its core is a human to human industry and machines, regardless of their efficiency, don’t (yet) have the human touch necessary to handle clients looking for a lawyers counsel.

As AI continues to evolve, the profession must adapt responsibly, balancing its benefits with its risks. By focusing on ethical use, addressing biases, and keeping the human element at the forefront, lawyers can harness AI to enhance—not diminish—their work.

Rules and Regulations of NIL

By Zamani Thomas Blog Roll

If you’re a college athlete, you may have heard the term NIL (name, image, and likeness) thrown around a lot lately. It refers to the ability of college athletes to profit from their own name, image, and likeness. However, the rules and regulations surrounding NIL can be a bit confusing. In this article, we’ll break down everything you need to know about NIL.

What is NIL?

NIL stands for name, image, and likeness. It refers to the ability of college athletes to profit from their own name, image, and likeness. This means that if you’re a college athlete, you can make money by selling autographs, promoting products on social media, or appearing in advertisements, among other things.

Who can take advantage of NIL?

As of July 1, 2021, all college athletes can take advantage of NIL. This includes athletes in all sports, regardless of whether they play at a Division I, Division II, or Division III school.

What are the rules surrounding NIL?

There are a few key rules and regulations surrounding NIL that you need to be aware of:

You cannot receive compensation for athletic performance. This means that you cannot be paid to play your sport or to win games.
You cannot enter into NIL agreements that conflict with your school’s existing contracts. For example, if your school has an apparel contract with Nike, you cannot enter into an NIL agreement with Adidas.
You must disclose all NIL agreements to your school. This includes providing your school with a copy of the agreement and any compensation you receive.
You cannot use your school’s logos or trademarks in your NIL activities. This means that you cannot use your school’s name, logo, or mascot in your social media posts or advertisements.
You cannot use your school’s facilities or equipment in your NIL activities. This means that you cannot use your school’s weight room or practice field to film a commercial or photoshoot.

How can you take advantage of NIL?

If you’re a college athlete looking to take advantage of NIL, there are a few steps you should take:

Educate yourself on the rules and regulations surrounding NIL. Make sure you understand what you can and cannot do.
Build your personal brand. This means creating a strong social media presence and cultivating relationships with brands and businesses that align with your values and interests.
Seek out NIL opportunities. Look for brands and businesses that are interested in working with college athletes and reach out to them directly.
Disclose all NIL agreements to your school. Make sure you provide your school with a copy of the agreement and any compensation you receive.

In conclusion, NIL provides a new and exciting opportunity for college athletes to profit from their own name, image, and likeness. However, it’s important to be aware of the rules and regulations surrounding NIL and to make sure you’re following them closely. By educating yourself, building your personal brand, and seeking out NIL opportunities, you can take advantage of this new landscape and potentially earn some extra income as a college athlete.

Disclaimer

THE INFORMATION CONTAINED IN THIS WEBSITE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE ON ANY MATTER.

IP differences between NFTs and Traditional Art

By Zamani Thomas Blog Roll

When it comes to the legal issues surrounding intellectual property (IP), there are many similarities between non-fungible tokens (NFTs) and traditional art. However, there are also some key differences that you need to be aware of if you are buying, selling or creating either.

Ownership and Copyright

In both cases, the owner of the artwork owns the copyright, which gives them exclusive rights to reproduce, distribute, and display the work. However, with NFTs, the ownership of the digital artwork is recorded on a blockchain, which can make it easier to prove ownership and track any transactions related to it.

Licensing

Both traditional art and NFTs can be licensed to others for reproduction or display. However, the terms of the license should be clearly stated and agreed upon by both parties to avoid any disputes later on.

Fair Use

Fair use is a legal doctrine that allows for the use of copyrighted material without permission in certain circumstances, such as for criticism, commentary, news reporting, teaching, scholarship, or research. However, the boundaries of fair use can be complex, and it is important to seek legal advice if you are unsure whether your use of a work falls under fair use or not.

Plagiarism

Plagiarism is the act of passing off someone else’s work as your own. This is a serious issue in both traditional art and NFTs, and can lead to legal action being taken against the plagiarizer.

Contracts

Contracts are an important tool in both traditional art and NFTs. They should be used to clearly outline the terms of any transaction or license, including the rights and responsibilities of each party. It is important to have a lawyer review any contracts to ensure that they are legally sound and protect your interests.

In conclusion, while there are many similarities between the intellectual property legal issues of traditional art and NFTs, there are also some key differences that you need to be aware of. By understanding these issues and seeking legal advice when necessary, you can protect your rights and interests when dealing with both traditional art and NFTs.

Disclaimer

THE INFORMATION CONTAINED IN THIS WEBSITE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE ON ANY MATTER.

The importance of IP protection in the Crypto World

By Zamani Thomas Blog Roll

If you’re involved in the world of cryptocurrencies, you likely know how important it is to protect your digital assets. But what about your intellectual property? In this article, we’ll explore the significance of intellectual property protection in the crypto space and provide practical advice on how to safeguard your creations.

What is intellectual property?

First, let’s define intellectual property. It refers to intangible assets that are created by human ingenuity, such as inventions, literary and artistic works, designs, symbols, and names. Intellectual property can be protected through legal means, such as patents, trademarks, copyrights, and trade secrets. These protections are designed to give the creators of intellectual property the exclusive right to use, distribute, and profit from their creations.

Why is intellectual property protection important in the crypto space?

The crypto space is a hotbed of innovation, with developers creating new and exciting products every day. However, this innovation also creates a need for intellectual property protection. Here are some reasons why:

Crypto products are easily replicable: Digital assets are easily copied and replicated, which means that without proper protections, your innovations can be stolen and profited from by others.
The crypto space is largely unregulated: The lack of regulatory oversight in the crypto space means that intellectual property theft can go unpunished. Without legal protections in place, there is little recourse for those whose intellectual property has been stolen.
Intellectual property is often the key to success: In the highly competitive crypto space, intellectual property can be the difference between success and failure. Protecting your creations can give you a competitive edge and help you stand out from the crowd.

How to protect your intellectual property in the crypto space

Now that we’ve established the importance of intellectual property protection in the crypto space, let’s look at some practical steps you can take to safeguard your creations.

Register your intellectual property: The first step is to register your intellectual property with the appropriate authorities. This might include patents for inventions, trademarks for logos and names, and copyrights for literary and artistic works.
Use open source licenses: If you’re developing open source software, consider using a license that protects your intellectual property. There are many open source licenses available, such as the MIT License or the Apache License, that allow you to share your code while still retaining some control over how it is used.
Monitor for infringement: Keep an eye out for intellectual property infringement in the crypto space. This might include monitoring social media, forums, and other online platforms for unauthorized use of your creations.
Enforce your rights: If you do discover infringement, take action to enforce your rights. This might include sending cease and desist letters or taking legal action against the infringing party.

In conclusion, Intellectual property protection is crucial in the crypto space. Without it, your innovations can be easily stolen and profited from by others. By taking steps to register, license, monitor, and enforce your intellectual property rights, you can safeguard your creations and give yourself a competitive edge in the fast-moving world of cryptocurrencies.

Disclaimer

THE INFORMATION CONTAINED IN THIS WEBSITE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE ON ANY MATTER.

How to (possibly) overcome a Likelihood of Confusion Trademark application refusal

By Zamani Thomas Blog Roll

Are you struggling with a Likelihood of Confusion Office Action from the USPTO? Don’t worry – with the right approach, you can overcome this obstacle and secure your trademark registration. Here are some steps you can take to respond to a Likelihood of Confusion Office Action:

Understand the issue: First and foremost, it’s essential to understand what the issue is and why the USPTO has raised a Likelihood of Confusion Office Action against your trademark. You should review your application and the cited mark that the examiner has identified as potentially conflicting. This will help you to identify the specific reasons why the examiner believes there may be a likelihood of confusion.
Analyze the marks: Once you’ve identified the specific issues, you need to analyze the marks and identify the similarities and differences between them. This will help you to determine whether the examiner’s concerns are valid or not.
Determine the scope of protection: Next, you need to determine the scope of protection for your mark and the cited mark. This involves analyzing the goods and services associated with each mark and determining the degree of similarity or overlap.
Develop a response strategy: Based on your analysis, you can then develop a response strategy. This may involve amending your trademark application, submitting evidence of acquired distinctiveness, or arguing that there is no likelihood of confusion. You may also consider negotiating a coexistence agreement with the owner of the cited mark.
Submit a response: Once you’ve developed your response strategy, it’s time to submit your response to the USPTO. Be sure to include a clear and concise argument that addresses the examiner’s concerns and provides evidence to support your position.

Remember, the key to overcoming a Likelihood of Confusion Office Action is to be proactive, thorough, and strategic in your response. By taking the time to understand the issues, analyze the marks, and develop a response strategy, you can increase your chances of securing your trademark registration.

Disclaimer

THE INFORMATION CONTAINED IN THIS WEBSITE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE ON ANY MATTER.

Why Creatives should Trademark their Brands?

By Zamani Thomas Blog Roll

Artists invest a lot of time, effort, and resources into building their brand, which sets them apart from others and makes them recognizable to their fans and customers. Trademarking is important for artists because it:

Provides legal protection: Trademarks provide legal protection to the owners of brands and products by preventing others from using the same or similar marks in a way that may cause confusion or deception among consumers.

Establishes identity: Trademarks help artists establish their unique identity and build a loyal following of fans and customers.

Prevents infringement and dilution: Unauthorized use of an artist’s trademark can result in brand dilution, which occurs when the mark loses its distinctiveness and becomes associated with a wider range of products or services. Trademarks prevent infringement and dilution of an artist’s brand.

Provides stronger legal protection: Registered trademarks are afforded stronger legal protection than unregistered marks and can be enforced through legal action in case of infringement.

Provides international protection: Trademark registration provides artists with a means of international protection, which is particularly important for artists who operate in multiple countries or sell their products online.

Helps control the use of the mark: Licensing agreements can provide artists with an additional revenue stream and help control the use of their mark.

Overall, trademarking is crucial for artists who want to establish and maintain a strong.