Printstagram Gets Smacked by Instagram Over Trademark Dispute, Turns Lemons Into Lemonade

2014 has been a big year for me personally. As many of you know, Steph and I were happy to welcome our first child last month, a baby girl named Hannah. We also bought our first house back in June, which is what sparked today’s blog post.

With more wall space to cover than our two previous (and oh so tiny) apartments combined, Steph and I decided to frame a bunch of pictures and hang them up. We found Printstagram, a popular online service that - yup, you guessed it - allows you to upload your Instagram photos and print them on high quality photo paper. We gave it a shot last week and really fell for it.

Our timing was odd because the day after we placed our order, I got this email from Social Print Studio, the company that runs Printstagram.

The competition idea is a really clever way to deal with what must be a devastating legal blow. Starting last year, Instagram (and parent company, Facebook) began cracking down on apps and services that used any combination of “insta” or “gram” in their names in order to give a wide berth to Instagram’s valuable trademark. This is a switch from the company’s original policy which had encouraged derivative apps to use either word (but never both). But now that it’s a multi-billion dollar company, the MO has changed. Money will do that I guess.

Although to be honest, as tough as this must be for the Printstagram people, Instagram kind of has an argument. A central tenet of The Lanham Act (the law that governs trademark protection and infringement issues) is that similar marks that are "likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association” may be liable for trademark infringement. That is, if the general public could reasonably assume that Printstagram was actually affiliated with Instagram, that could cause confusion in the marketplace and, potentially, drive revenues away from Instagram. That would be enough to rise to a trademark infringement claim.

I’d be interested to hear the argument Printstagram could’ve mounted in its defense. However, considering the similarity between the names and the nature of Printstagram’s service, they probably would have lost... and they knew it, which is why they’re changing their name.

Anyway, kudos to them for turning lemons into lemonade. They got hit hard but decided to roll with it in a fun way, rather than get bogged down in messy litigation. The email lists several strict but hilarious guidelines for the contest, such as:

• Name must get us into legal trouble, but not for at least 2 years.
• Name must be a future failed band name.
• Name must be more beautiful in Spanish.
• Name must reference a Bill Murray role.
• Name must be something your mother once whispered into your ear.
• Name must be appropriate for the back of a boat.
• Name must have a corresponding gif.

The winning choice will end up with a bunch of free printing, so I might give the contest a shot. I still have some wall space available.

Ask Greg: Indemnification Clauses and You

Q: I am an industrial designer and I'm being asked to sign a contract with an indemnification clause. A lot of my peers suggest that it's inappropriate. What should I do?

A: I'm not familiar with any ban on indemnification clauses specific to the industrial design community, but I can say that they're fairly common in contracts across a wide variety of design and non-design industries. In fact, they're so common, so rote, that I'm hard pressed to remember a contract in recent years where I haven't seen one.

An indemnification or indemnity clause, for those who don't know, is a provision in a contract where one party (you) promises another party (your client) to cover them for losses if they're sued by a third-party for an issue arising out of your work. In other words, you act as an insurance company for the party being sued.  In most indemnification clauses, you're asked merely to pay or reimburse the client for the cost of defending that lawsuit (i.e. attorney and court fees). But in some cases, you may be asked to reimburse a party for actual losses they suffered. You may even be asked to mount the actual defense - i.e. hire a lawyer and defend the client yourself. The language of the clause should lay out clearly what your obligations are when it comes to indemnifying your client (vague indemnity clauses can be a real scourge). Typical indemnification clauses make their presence known through buzzwords like "indemnify," "hold harmless," and "defend."

Here's a real world example: Let's say you design a newfangled lamp with all kinds of amazing new design features and functions. A client sees your lamp on your Behance page and orders 100 to stock in her store with the option for more orders if the lamp is a success. You sign a contract with an indemnification clause and start stocking her store with your lamp. A customer buys your lamp in your client's store and soon after sustains second-degree burns. The customer sues your client for selling a defective product. Because you signed an indemnification clause, you now have to pay your client's attorney/legal fees and quite possibly defend her in court.

Whether or not you should agree to a specific indemnification clause is highly dependent on your situation and the language of the clause, and without seeing the whole contract I can't tell you whether to sign it. That said, you shouldn't sign any agreement where you feel the benefit to the client far exceeds the benefit to you. You also shouldn't sign any contract where you have to accept liability for someone else's negligence... that's why mutual indemnification is such a popular option (mutual indemnification is where both parties to the contract promise to defend each other from lawsuits arising only from their own actions or negligence).

This topic is a bit of a sticky wicket, so if you have any questions about it, don't hesitate to contact me or your own attorney. The last thing you want to do is sign an indemnification clause that puts you on the hook for something you shouldn't be responsible for.

Steven Soderbergh Turns Raiders of the Lost Ark Into Silent B&W Fan Film, No One Sues

A long time ago, I was a young aspiring filmmaker and wanted to learn - really learn - how to make good films. So I went to a family friend who had some connections in the entertainment business and asked him what to do. He said "watch a lot of films."

So I did. And I became a colossal movie nerd. And even though the filmmaking part of my life is over, I still watch movies to learn from them. It's nice to know I'm not alone.

The other day, Steven Soderbergh, one of the most interesting mainstream filmmakers working today, posted on his blog a version of Raiders of the Lost Ark that he recut into a silent B+W film as an exercise to learn about film staging from Steven Spielberg, a "filmmaker [who] forgot more about staging by the time he made his first feature than I know to this day." He also replaced the classic John Williams score with the score from The Social Network, by Trent Reznor and Atticus Ross to strip away everything familiar about the film and "aid you in your quest to just study the visual staging aspect." For Soderbergh, staging is important because it "refers to how all the various elements of a given scene or piece are aligned, arranged, and coordinated...I value the ability to stage something well because when it’s done well its pleasures are huge, and most people don’t do it well, which indicates it must not be easy to master."

In other words, "I operate under the theory a movie should work with the sound off, and under that theory, staging becomes paramount."

As a movie nerd, I love that Soderbergh did this. As a lawyer, I'm cool with it too. In his blog post, Soderbergh strikes a defensive, almost sheepish, tone, saying that he's aware he's not allowed to recut Raiders, but did it anyway as a learning exercise. This hedging caught me off guard a bit, since it stands in opposition to the confidence he displays in the rest of the piece. Nevertheless, if I was his attorney, I'd tell him not to worry; as far as I'm concerned, this is a classic fair use scenario. I've spoken about the pitfalls of relying on a fair use defense in the past. My chief concern is that it's not a cut and dried thing. You have to weigh different factors based on the particulars of your case. To complicate matters, fair use is an "affirmative defense" which means you have to wait until you're sued for copyright infringement in order to assert it. It's a tough legal doctrine to use and even tougher to use well.

That doesn't mean you always need to ground the flight before it takes off, however. There are some pretty useful questions you can ask ahead of time to gauge whether using someone else's work without their permission is a risk you want to take. For starters, understand that the issue is less "what" are you doing to the already copyrighted work than "why" and "to what end?" If you're trying to make money from it or impinge on the owner's right to profit from it, that's the kind of thing a court would smack you for. But if you're using the work to inform and educate, or if your use says something critical about the work, those are the classic fair uses scenarios. In this case, that's exactly what Soderbergh is doing. He recut the film in order to say something about a crucial aspect of filmmaking. The fact that he's using Raiders to comment and teach is critical to the analysis, and it helps douse a potential lawsuit before it ever arises.

Don't forget the politics of this either. It's doubtful that Paramount (the film's copyright holder) or Spielberg would want to drag him through a legal proceeding. Soderbergh is a respected and beloved filmmaker, still at the height of his power (The Knick, anyone?). He's a potential collaborator and some of his movies made real money - i.e. the Oceans Trilogy. That's not a gift horse you look in the mouth. And let's be honest, this is precisely the kind of nerding around that Spielberg would probably appreciate.

Raiders of the Lost Ark is my all-time favorite film and Steven Soderbergh relied on fair use to recut it and show us just how great it is. In some alternate universe where I'm still 19-years old, I'm over the moon excited to watch and learn from it. Hell, 34-year old me still is.

Apple Announces New iPhone, Smartwatch, and The End of Personal Privacy

Last Tuesday, we all sat glued to our twitter feeds and livestreams as Apple wowed us with the iPhone 6 and 6 Plus and the Apple Watch. But if you paid close attention, you may have noticed that Apple didn’t just grace us with some fancy new baubles. They announced a third big reveal… every iTunes account holder was given a free copy of U2’s new album Songs of Innocence. I think Apple was hoping that everyone would be like “Oh, some free stuff. Free stuff is great. Thanks Apple!”

Instead, everyone freaked the hell out because while it was intended to be a nice gesture, it actually said a lot about how Apple (and every other tech company and even the government) views our right to privacy. Namely, that it doesn’t. The problem, of course, isn’t that Apple gave everyone a free copy of a new U2 album (which I’m sure is perfectly fine). It’s HOW they did it. They could have given iTunes users a link to the free download, but instead they went ahead and automatically downloaded the album onto your iPhone and iPad!

Just to reiterate. Apple downloaded an album onto your phone without your consent. If you haven’t already, go ahead and check your phone. I’ll wait. You should see a screen that looks a lot like this:

If you’re like me, you didn’t put it there. This intrusion concerns me because it's such a brazen statement about the state of privacy in this country. Between Facebook’s repeated privacy grabs and manipulations, and the NSAs long-storied collection of personal data, our individual privacy has been under aggressive assault for some time. This is just the latest - albeit a mostly benign - example.

Americans heavily prize their privacy, which makes it ground zero for parties that view individual privacy as a barrier to financial ascendancy or homeland security. These parties use the contentious legal status of privacy as leverage to intrude into your life without your consent. And believe it or not, privacy is a contentious issue... In fact, the Constitution does not mention privacy as a given right. Our modern understanding of the right to privacy is implied from other rights, specifically the 1st Amendment (right of belief), 3rd Amendment (privacy of the home), 4th Amendment (privacy of person and possessions), 5th Amendment (right against self-incrimination), 9th Amendment (no denial of other implicit rights), and the liberty clause of the 14th Amendment.  These amendments all touch on privacy in their own way, but never address is explicitly. The Supreme Court calls these implications “penumbras” and “emanations.” That is, the right of privacy implicitly emanates from these other rights. And I think that lack of explicitness is why privacy is always a moving target.

And let’s face it, as a society, our sense of privacy (and it’s inextricable little brother, consent) is always shifting. A few weeks ago, the iCloud accounts of Jennifer Lawrence and other celebrities were hacked and their private nude photos leaked. When the photos were taken down from various sites, a cry rang out from certain corners of the internet who believed they should have access to those photos even though they were always intended to be private.

So I ask you, is privacy a relic of the 20th century? And if not, what can be done to curtail its utter demise? No one should be forced to own something just because it’s free, but soon enough it may not even be an option.