Assignment Task:
Explain through writing, a memo to the owner explaining the issues of 1) potential copyright infringement of Chris Click's photo and if there are any defenses; 2) whether the Wombats are in breach of contract with Danielle; and 3) whether there might liability for the sweepstakes run by the Wombats. Hypothetical for Memo: Mark Salesman is the director of marketing for a professional minor league baseball team - the Wyoming Wombats. The budget is small but Mark wants to put together a new advertising campaign to build local interest. The old logo is ...old and he doesn't think fits with the team. He really wants to strengthen the brand and to get people to buy merch. He can't hire afford to hire anyone to do design, so he decides the best way to get some new ideas and content for cheap is with some user submissions and content through running a contest. The contest calls for individuals to submit their best design for a new logo for the team. The winner will get season tickets in the stadium executive seating for the next decade, including catering provided by the team. Everyone who submits a logo but is not selected as a winner will be entered into a random sweepstakes drawing to win season tickets for the upcoming season for one year, also in an executive box with catering provided by the team. There are also various other prizes that can be won by subsequent random drawings. Mark put out a press release, a blog post, cross posts across all social media platforms with the logo contest and directs everyone to see the terms and conditions for participation in the contest on the website. Mark specifically set up a web page for the contest with the terms and conditions. The terms and conditions specifically state that if the logo is chosen, that the artist agrees to assign all rights of ownership in the work to the team. It also says that the artist warrants they are the sole owner and original author of the design they submit. Submissions pour in. There are some really great ones making it hard to decide which one Mark wants to use. Mark decides on one that really stands out and contacts the artist, Danielle Derivative, to let them know that she's won and Mark will be sending them a contract for her assignment of rights. She signs the contract which assigns all rights in the logo for any and all usage forever and in any medium, now known or discovered hereafter and warrants her sole and full ownership of the logo to grant these rights. Mark sends the ticket package for the first season. Mark orders tons of new shirts, hats and other merch to be sold at the stadium and online. He submits the logo to the owner for their approval to also put it on the team uniforms. The owner asks Mark if he ran it by legal. He hadn't but he used the form contract they have for assignment of rights for works-for-hire that he uses with all contractors. The owner says if legal is okay with it, then she is fine with it. Mark has used this contract before and never had an issue, so doesn't run it by legal and orders new team uniforms. Mark also doesn't request anyone register the new logo with the USPTO or the US Copyright Office. Mark orders some local ad time which features the new logo and advertisement for the new season. After these ads run, new orders for merch start pouring in. The owner congratulates Mark on a successful project. 3 months after the new logo is launched, Mark gets a strange email from Chris Clicks saying that the logo is infringement of a photo taken by him. Chris Clicks is a famous nature photographer and makes his living solely as a photographer. There is an attachment of the photo. Mark immediately sees the resemblance with the photo. The only difference is the logo submission by Danielle was a cartoon generated version of the photo. Mark contacts Danielle and she admits to pulling the photo off the internet and using a computer program which turns photos into cartoons. Mark tells Danielle that the contract she signed required her to warrant that she was the sole and original author of the work. Danielle says she changed the photo by adding her own touch to it and therefore it IS her sole work. Mark says that she is in breach and he is revoking her decade of season tickets. Danielle tells Mark she will be suing Mark for breach of contract and also reporting Mark to the state AG for running an illegal lottery for his sweepstakes giveaway.