What is this case really about? Judge Colleen McMahon notes in her opinion that “this case is not about whether Jack Kirby or Stan Lee is the real ‘creator’ of Marvel characters, or whether Kirby (and other freelance artists who created culturally iconic comic book characters for Marvel and other publishers) were treated ‘fairly’.” Rather this case is about “whether Kirby’s work qualifies as work-for-hire under the Copyright Act of 1909, as interpreted by the courts.”
On Thursday, Judge McMahon ruled that the heirs of the late Jack Kirby, creator and co-creator of the well-known Marvel Comics superheroes such as Fantastic Four, X-Men, the Hulk and more, have no legal claim to the copyrights of those characters.
Despite press efforts (including two pieces in the New York Times) to characterize the proceeding as “unfair” to the artists and creators upon whose labors companies profited, the decision reflects long-standing law that vests ownership of certain creative works in the company that commissions them as a “work-made-for-hire.”
ABOUT THE AUTHOR
David M. Adler, Esq. is an attorney, author, educator, entrepreneur and partner at the boutique intellectual property, entertainment & media law firm LEAVENS, STRAND, GLOVER & ADLER, LLC based in Chicago, Illinois. My responsibilities include providing advice to business units and executives on copyright, trademark, ecommerce, software/IT, media & entertainment and issues associated with creating and commercializing innovations and creative content, drafting and negotiating contracts and licenses, advising on securities laws and corporate governance and managing outside counsel. Learn more about me here: http://www.ecommerceattorney.com and here: Leavens Strand Glover & Adler, LLC
October 22, 2010
How I do to stop others from using my Trademarks on eBay?
eBay is one of the world’s leading online marketplaces. It’s a place where “anyone can trade practically anything.” As a result, eBay has enjoyed widespread use from both legitimate and illegitimate merchants. eBay does not authenticate merchandise before sale. Unfortunately, unscrupulous sellers use eBay to auction off inferior branded-products, whether passing them off as genuine or claiming that they are fake, faux, replicas or look-alikes. Manufacture and sale of these goods can constitute counterfeiting, a crime and a civil action punishable under federal and state laws with steep penalties.
eBay has created a program to help rights owners report auction listings that infringe their rights. This program is called the Verified Rights Owner (VeRO) Program, and includes “companies and individuals representing every type of intellectual property – from major software companies to video game developers to rock bands to luxury good manufacturers.” Any intellectual property (such as a copyright, trademark or patent) rights holder whose rights may be infringed by listings or items sold on eBay may participate in the Program.
If you have a good faith belief that a listing on eBay infringes your copyright, trademark, or other intellectual property rights, download eBay’s Notice of Claimed Infringement (NOCI) form, fill it out, and fax it to eBay.
Create an About Me page. You can create a free “About Me” page on eBay to communicate directly with eBay users about your company, your products and the intellectual property rights you own. eBay will include it in its list of VeRO Participant About Me pages.
Here are some suggested statement that should be on your eBay VeRO page:
- BUYER BEWARE: Most of the purported YOUR BRAND NAME HERE products and packaging available on eBay is counterfeit.
- Genuine, new BRAND merchandise is available only through BRAND stores and boutiques, BRAND catalogs and via the web at http://www.——.com. BRAND carefully controls distribution of its high-quality merchandise.
- Unfortunately, unscrupulous sellers are auctioning on eBay inferior products marked with the BRAND trademarks, whether passing them off as genuine or claiming that they are fake, faux, replicas or look-alikes. Manufacture and sale of these goods in any such case constitutes counterfeiting, a crime and a civil action punishable under federal and state laws with steep penalties.
- BRAND marketing materials are graphically distinct, appealing and copyrighted.
- Unauthorized use of BRAND photography and graphics constitutes copyright infringement.
- BRAND has established a worldwide reputation for its products. It has invested significant time, effort and money over more than ##### years to promote its trademarks and trade name BRAND and its distinctive packaging. As a result of these efforts, the BRAND trademarks and copyrights have enjoyed widespread fame and recognition throughout the world.
- The Company works diligently to protect its reputation for providing the highest quality products and to protect its customers from duplicitous sellers who offer fake merchandise that is inferior to genuine BRAND merchandise. BRAND files lawsuits and works closely with law enforcement, the F.B.I., customs and investigative agencies to protect its intellectual property rights.
- BRAND RIGOROUSLY PROTECTS ITS TRADEMARKS AND COPYRIGHTS.
- Frequently Asked Questions (FAQ)
- Q: Why was my auction suspended/cancelled? A: BRAND has a good faith belief that the merchandise that you posted for auction or sale is counterfeit or otherwise infringes BRAND trademarks or copyrights.
- Q: Why did eBay allow me to post my auction? A: eBay does not authenticate merchandise before sale.
- Q: How can I tell if the item I offered or purchased is real? A: The only way you can be certain that you are purchasing a genuine BRAND product is to purchase it from a BRAND retail store, via our website (www.—–.com) or though a BRAND catalogue. BRAND stores do not authenticate merchandise. A good jeweler or appraiser may be able to do this for you.
- Q: Why can’t I use BRAND graphics to sell my merchandise? A: BRAND marketing materials are protected under copyright law. Unauthorized use or reproduction is strictly prohibited.
About The Author
Safeguarding Ideas, Relationships & Talent®
Executives face an often confusing and changing set of challenges trying to ensure that their business remains legally compliant. Yet few can afford the highly-qualified and versatile legal staff needed to deal with today’s complex and inconstant legal and regulatory environment. Adler & Franczyk is a boutique law firm created with a specific mission in mind: to provide businesses with a competitive advantage by enabling them to leverage their intangible assets and creative content in a way that drives innovation and increases the overall value of the business.
We approach our relationship with each client as a true partnership and we view our firm as an extension of their capabilities. Our primary value is our specialization on relevant and complex issues that maintain the leading edge for our clients. We invite you to learn more about the services we offer and how we differ.