You Better Watch Out: How to Avoid a Fa-la-la-la-Lawsuit this Holiday Season

Everyone knows that the best way to spread Christmas cheer is singing loudly for all to hear. But, before preparing your Christmas music repertoire this season, take a minute to think about who owns the rights to the music and how you are performing it. Unless the song is in the public domain, you may need a license in order to play or perform certain songs.

Unlike any other time of year, the holiday season brings into rotation arrangements of public domain works, cover songs of classics, and updated renditions of favorite holiday tunes. In addition, every year dozens of musicians seek to create the next Christmas classic. 

When it comes to Christmas music, you’d think many timeless classics must be in the public domain. While this is the case for some, such as “Jingle Bells” and “Silent Night” (while the composition is in the public domain, recent sound recordings of these songs are still protected by copyright), others—like “Santa Claus is Coming to Town,” “White Christmas,” and “Little Drummer Boy”—have been around for decades but are still protected.

A Guide to GIFs

While nothing new, GIFs (an acronym for Graphics Interchange Format) have become a fundamental form of digital expression. GIFs were created in 1987 by Steve Wilhite, a programmer at CompuServe, as a new way to present a moving image. In an age of social media, they have morphed into a means of expressing complex feelings and thoughts more effectively than words and photographs.

Public interest in GIFs has increased dynamically over the past five years and is still on the rise. In 2017, the GIF celebrate its 30th anniversary. According to some digital marketing experts, it was also the year when the GIF reached its highest potential yet in the digital marketing industry.

Very few things (other than, heaven forbid, actual human interaction) can convey emotion like an animated GIF. The entertainment value of GIFs is pretty obvious and in recent years, brands have also recognized the business value. When compared to photos, GIFs are more appealing and more effective in digital marketing strategy. When compared to videos, GIFs take less time to create and are cheaper and easier to make.

The most used websites and apps for finding and creating GIFs include Giphy, GifBin, Gifmaker, ExGif, MakeAGif, ImgFlip, Phhhoto, and Boomerang (owned by Instagram). Giphy, leading GIF database and search engine, serves more than 1 billionGIFs per day  to over 100 million active daily users! Twitter, Facebook and many other popular social media and messaging platforms integrate native GIF searching into their platforms and sites like BuzzFeed have built content marketing empires by using GIFs in their infamous listicles.

But, using someone else’s content when creating and sharing GIFs has the potential to invite intellectual property infringement issues, especially given that many popular GIFs draw content from players like Disney and the NFL, which are notorious for being aggressive when it comes to protecting their intellectual property. Studios and sports leagues could decide to file lawsuits against GIF-based businesses, or they could use copyright notices to remove GIFs from websites and social media accounts. This has already occurred in the case of major sports events like the World Cup and the Olympics. Celebrities could also invoke right of publicity laws, which allow people to control how their image is used in public.

So, what does this mean you if you want to use GIFs in your brand/marketing strategy?

• Be wary. The use of GIFs in digital marketing campaigns can be a bit of a minefield. There is a higher risk when the use is commercial and companies in the public light also make a much better target for a lawsuit.

• Make your own. Instead of using other parties’ GIFs, the better option is to make your own using your own copyrighted material.

• Get permission. When using GIFs that you do not create, get the permission of everyone featured in the clip, the copyright holder of the original image(s), and the person who created the GIF. There should also be appropriate licenses in place for commercial use.

• Link to content. When using third-party GIFs, consider linking to those GIFs rather than embedding them in your own content.  

Just because other brands may get away with using GIFs in their digital marketing campaigns doesn’t mean it’s safe. Using GIFs without permission could surely invite a cease and desist from the original creators, copyright holders, or featured parties. It could create disruption (e.g. recreating and taking down content) and, if you’re really lucky, spending time (and money) with intellectual property lawyers!

Fearless Commerce: A Showcase of Local Black Female Entrepreneurs

With an increase of 322% since 1997, the State of Women-Owned Business Report named Black women as the fastest growing group of entrepreneurs in the United States. A recent Nielson Company study, African-American Women: Our Science, Her Magic, further quantifies Black women’s power to influence the economy, media, and politics. Much like most of the country, the Twin Cities local community is rich with minority female entrepreneurs that represent a diversity of industries. 

But despite the impact this group has on the local and national economy, it has struggled to gain visibility and has largely gone unrepresented in entrepreneurial publications. Fearless Commerce seeks to change this. A nationally recognized company co-founded by two local Black female entrepreneurs, Fearless Commerce showcases local Minneapolis-Saint Paul minority women business owners by featuring their stories and highlighting their successes in industries ranging from medicine to architecture to entertainment and fitness. 

The inaugural issue of the Fearless Commerce publication launched in October 2017, and has since continued to foster innovation within the local entrepreneur community and communities of color. Keep an eye out for the next issue, available this spring. 

Trade Secrets: Tips for Protecting the “Other” IP Right

Ask an entrepreneur what type of intellectual property protections are most used by businesses to help create competitive advantages and they’ll probably answer with some combination of patents, copyright, and/or trademarks. But they would be wrong. The most common form of protection used by businesses is actually secrecy.

Until recently, trade secrets received less attention than other forms of IP. The recent passage of the Defend Trade Secrets Act (“DTSA”) in 2016 has more companies thinking about trade secrets as a tool to protect intellectual property. Although the DTSA created more robust trade secret protections, businesses must still take active measures to protect and prevent the unwanted spread of their trade secrets. 

The ADA in the digital age: Is your website compliant?

The Americans with Disabilities Act (“ADA”) prohibits discrimination on the basis of disability in all aspects of society. Whether, under the ADA, websites must be accessible to people with disabilities has been a hot topic in the legal and disability communities for some time. Before the internet became so pervasive, it was assumed that the ADA applied only to physical structures. But because the law doesn’t specifically state whether it applies to brick-and-mortar vs. digital “places,” its applicability to websites has been open to interpretation. 

A string of lawsuits brought against private companies for inaccessible websites, web services, or digital communications, has created a precedent that the ADA does apply to the internet, although the precedent is not entirely consistent across all jurisdictions.

Data Privacy: Is It On Your Holiday Wish List?

The holiday season is upon us! And with the familiar Christmas music and winter wonderland decorations comes the holiday shopping season. Holiday marketing campaigns enjoy a rich history dating back at least 150 years. Some of the most memorable include: 

• Macy’s Holiday Window display (1874);
• The Budweiser Christmas Clydesdales (1931);
• Campbell’s Soup “Breeze Through the Holidays” (1948); 
• Starbucks Red Cups (1997); and
• American Express “Small Business Saturday” (2010).

With online shopping on the rise, these marketing campaigns have transitioned to the Internet and have come to have a serious impact on where consumers shop and what they buy. Although online marketing provides many benefits, businesses offering online retail services must be aware of the host of data privacy issues that go along with e-commerce, including the need for a clear and accurate website privacy policy. 

MN Made

A growing body of research is now corroborating something that many of us have already observed: “small-scale, locally owned businesses create communities that are more prosperous, entrepreneurial, connected, and generally better off across a wide range of metrics.”

There is no question that the “shop local” movement is on the rise. More and more entrepreneurs are opening local businesses, and an increasing number of consumers are seeking out local retailers. Eighty-two percent of consumers across all generations report that they have shopped locally in the last year and nearly all of them (98%) will continue or increase shopping locally in the future.

Digital Health Startups: How IT (and IP) Entrepreneurs Are Redefining Health care

From virtual care platforms and digital therapies to wearable health devices and precision medicine, digital health startups are creating innovative products designed to change the face of health care. 

As these startups are increasingly seen as opportunities to help reduce costs and increase process efficiencies and revenues for consumers, health care practitioners, and service providers, hospitals and medical institutions are shifting from partnerships with academic institutions to investing in and partnering with tech startups. A couple of examples:

• Children’s Medical Center in Dallas is one of the first children’s organizations to adopt a new digital health pill created by Proteus Digital Health, a Silicon Valley-based startup. It also acquired interest in another health startup called Mend, which provides a service that delivers high-quality, on-demand urgent medical care to your doorstep.
• Boston Children’s Hospital, which has teamed up with startup accelerator Rock Health to advise companies for the pediatric market, has also produced some promising digital health startups, including Act.md, providing a collaboration technology platform for patients and health care providers, and Epidemico, a health analytics company.

Is Your Food Label “Naturally” Misleading?

What do the farmers’ market movement, non-GMO foods, and the Paleo diet have in common? All are aspects of a sweeping trend favoring healthy food products.

While health fads and trends have historically been fleeting (think “low-fat” everything in the 1990s), recent survey evidence suggests that rather than opting for fad diets, more and more consumers are committing to making healthier food choices in the long term. Amazon.com currently offers over 1,000 titles devoted to “clean eating.” Companies such as Blue Apron, Plated, and Hello Fresh are emerging to offer consumers healthy ingredients and cooking instructions each week. New food services such as Origin Meals and Power Supply offer meal preparation and delivery services to meet consumer demands for sustainable, fresh, convenient, quality meals. And global sales of healthy food products are estimated to reach $1 trillion by 2017.

Freeing the Textbooks: Open-Source Textbooks and the Next Generation of Education

Sticker-shock isn’t just something that happens at a car dealership. Each semester, college students across the country are faced with an increasingly expensive tab at their school bookstore as they struggle to afford the textbooks that are required materials for their courses. While financial aid helps millions of students afford college, the funds often don’t cover expenses such as textbooks and course materials, even if they are required.

Many students with limited financial resources are forced to make a tough choice – depend on high-interest credit cards to pay the bill, or try and get by without buying the textbooks for certain courses, which can put their academic performance in jeopardy.