Linda J. Zirkelbach

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Linda Zirkelbach has extensive experience representing prominent media companies and brand owners, best-selling authors, book and software publishers, scholarly journals, and nonprofits in intellectual property matters. Linda focuses on leading copyright and trademark enforcement actions for major companies, publishing law, strategic copyright counselling and clearance work, digital rights and complex Digital Millennium Copyright Act (DMCA) issues, and trademark strategy and disputes. She regularly counsels clients on complex copyright and trademark issues; litigates copyright and trademark actions; negotiates and drafts copyright and trademark license agreements and a wide variety of publishing industry agreements; and clears publications and productions prior to release.

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Join us as we spotlight select chapters of Venable’s popular Advertising Law Tool Kit, which helps marketing teams navigate their organization’s legal risk. Click here to download the entire Tool Kit, and tune in to the Ad Law Tool Kit Show podcast, to hear an author of this chapter dive deeper into copyright counseling and protection in this week’s episode.

A properly maintained copyright portfolio is essential to any successful brand owner. Copyright can extend to advertisement copy, manuals, visuals, art, photography, storyboards, scripts, film, video, online components, mobile apps, social media posts, websites, music, developed characters appearing in ads, and logos.

From the outset, it is vital to ensure that you will own the rights to the intellectual property (IP) being created. If any content is created by someone who is not an employee operating in the scope of employment, you need a written agreement in place to ensure ownership, through either a work-for-hire agreement or an assignment, with special nuances in some states, such as California.Continue Reading Copyright Counseling and Protection: An Excerpt from the Advertising Law Tool Kit

On February 6, 2024, in Philpot v. Independent Journal Review, the U.S. Court of Appeals for the Fourth Circuit issued a copyright fair use decision in a photograph infringement case that is noteworthy for a number of reasons. Those who plan to use photos based on a fair use defense should take heed of this decision.

In this case, photographer Larry Philpot sued news website Independent Journal Review for using Philpot’s photo of singer Ted Nugent in an online article. One of the more interesting facts here was that Philpot uploaded his photo to Wikimedia Commons, which is governed by a Creative Commons license requiring attribution. In other words, he simply required that users of his photo give him attribution, not pay him. Users could use Philpot’s photo free of charge, provided they included the following attribution: “Photo Credit: Larry Philpot of www.soundstagephotography.com.” Instead, Independent Journal Review hyperlinked to Mr. Nugent’s Wikipedia page, where the photo was featured.Continue Reading Fourth Circuit Hands Photographer a Clean Sweep Victory in Copyright Fair Use Appeal Over News Website’s Use of Free of Charge Photo

The perfect addition to any project is music. Whether you are making a video advertisement for your product; including music in your posts on your company website, TikTok, or YouTube; posting an at-home workout video for your clients; using music at corporate events; or playing music at your bar or restaurant – music is a vital part of society. Music is also the most common reason your content may be muted or taken down from social media, in addition to being exposed to potential liability for copyright infringement and related monetary damages. When you use someone’s music without their permission, absent a few extremely limited exceptions, you are infringing on their copyright.1

For the vast majority of music uses, you will first need to obtain permission. In this article, we lay out some fundamentals to assist in determining the type of license an average company would need and some potential alternatives. Bottom line: when you are planning and budgeting for music in a project, make sure you get the proper rights and permissions in place before pressing “Play.”Continue Reading Conducting Your Way Through Music Licensing: The Most Common Issues

Have you renewed your DMCA Designated Agent designation with the Copyright Office yet? (If you are unfamiliar with a DMCA Designated Agent, read below for an explanation.) Any company that may have previously qualified for the safe harbor from liability for copyright infringement under Section 512 of the DMCA will lose any ability to claim this safe harbor if the company does not renew its designation of agent within three years of the last online filing (or amendment), assuming you did this correctly between December 1, 2016 and December 31, 2017.

In late 2016, the Copyright Office issued a rule that everyone needed to file new online Digital Millennium Copyright Act “DMCA” agent designations between December 1, 2016 and December 31, 2017. Any DMCA agent designations that were filed at the Copyright Office prior to December 31, 2016 expired on December 31, 2017 if not renewed online. If you did not file any new DMCA agent designation online between December 1, 2016 and December 31, 2017, then your designation has expired and your company would not qualify for the safe harbor under the DMCA. If applicable to you, your company should file one immediately and hope that you had no copyright liability exposure during the intervening time.

If you did file a new online designation of your DMCA agent between December 1, 2016 and December 31, 2017, then you are required to file a renewal within three years of the date you filed your original online designation (unless you already amended in the meantime, in which case your three-year clock runs again from the date you amended it). This means that many companies have these renewals due between December 1, 2019 and December 31, 2020, depending on when they filed the original online designation. Simply put, if you filed your online designation of agent December 15, 2016, then your renewal is due no later than December 15, 2019. If filed your designation of agent December 15, 2016, but then amended your online designation in the meantime on January 1, 2018, then your renewal is not due until January 1, 2021.Continue Reading ‘Tis the Season: Make Certain That You Renew Your DMCA Designated Agent with The US Copyright Office or Say Goodbye to Your Potential Safe Harbor from Copyright Liability

Supermodel Jelena Noura “Gigi” Hadid was not the first celebrity to be photographed by paparazzi and then to post the resulting photo to social media, nor was she the first to be subsequently sued for copyright infringement for doing so. Other celebrities, including Jennifer Lopez and, most recently, Victoria Beckham, have made news for the same situation.

This trend falls into an interesting intersection of two significant tenets of law: a celebrity’s right of publicity in their own image and a photographer’s right to copyright their artistic work. The district court dismissed the case due to a lack of a copyright registration. In addition to that defense, though, her attorneys also raised the defenses of fair use and implied license. The second may have begun paving the way for future legal challenges to clarify these issues by raising a novel argument—implied license—alongside the more typical defense of fair use.Continue Reading #StrikeAPose #CopyrightInfringement

beerPerhaps some readers once (or still do!) enjoyed some Natty Light while listening to the Beastie Boys. Some time ago, we blogged about the ongoing Beastie Boys litigation against Monster Energy over copyright and right of publicity issues for a video Monster Energy posted on its website. The next case to watch is Kraft v. Anheuser-Busch, LLC where individual Kayla Kraft sued Anheuser-Busch for copyright infringement, invasion of privacy, and violation of her right of publicity for using her image in an advertising campaign. This quite delightful photo shows Ms. Kraft drinking a beer and wearing a fake mustache and was allegedly used by Anheuser-Busch on posters and coasters in its “Every Natty Has a Story” Natural Light campaign. According to Kraft’s complaint, a friend took the picture of Ms. Kraft with Kraft’s phone in February 2013. Ms. Kraft then posted the photo to Facebook. Her friend later assigned her copyright in the photo to Ms. Kraft who registered the photo with the U.S. Copyright Office, and Kraft sued on February 20, 2016. Anheuser-Busch’s Answer is due by April 7, 2017.
Continue Reading A Timely Reminder to Re-Examine Your IP Clearance Protocol: Anheuser-Busch Sued by Individual for Use of a Photo She Posted to Social Media

When launching any type of marketing, advertisers should be on the lookout for potential Intellectual Property (“IP”)  claims, in addition to potential exposure based on advertising-related laws.  This is often referred to as “IP Rights Clearance.”  Some of our previous blog posts have discussed various lawsuits and court decisions that underscore the importance of IP Rights Clearance in your sales and marketing activities.  Below is a non-exhaustive list of some practical tips we recommend as a starting point as you develop your own guidelines for IP Rights Clearance:
Continue Reading Practical Tips for Clearing Intellectual Property Rights in Your Advertisements

Did you know that, under the U.S. copyright law, if a third party uploads or posts copyrighted material to your website, and the third party did not have authorization to do so from the copyright owner or exclusive licensee of that material, your organization can be held strictly liable for copyright infringement as the operator of the website where it was posted or uploaded?

This is alarming but true – there is strict liability in copyright law.  This means that, even if your organization did not put the infringing content on your website, or did not even know it was there, you can be held strictly liable for infringing content uploaded to your website by another.Continue Reading Website Owners: No Safe Harbor from Copyright Liability for Infringing Content Posted by Third Parties on Your Site If You Are Not Following DMCA Formalities

Launching an advertisement, production, or publication without obtaining the necessary third-party intellectual property (IP) rights can have costly consequences. A jury recently awarded the Beastie Boys and related plaintiffs $1.7 million in a lawsuit against Monster Energy for using Beastie Boys music and references to the Beastie Boys in a promotional video on Monster’s website without proper permission after finding Monster Energy’s actions to be willful copyright infringement and a false endorsement under the Lanham Act.  The court recently denied Monster Energy’s post-trial motions for judgment as a matter of law, a new trial, and a reduction in damages. The Beastie Boys are now seeking an additional $2.4 million in attorneys’ fees and costs. Capitol Records, LLC, and Universal-Polygram International Publishing, Inc., have now sued Monster Energy in a related case.
Continue Reading Beastie Boys Win $1.7 Million Verdict, Underscoring the Importance of Clearing IP Rights