Sunday, July 30, 2017

Taking Names (And Violating Authors' Human Rights For Profit?)

By "taking names", I mean "taking" in the sense of misappropriating famous authors' and artists' real names or pen names, and without permission or compensation, taking and selling those names as advertising keywords.

In 2013, according to Penny Sansevieri of Author Marketing Experts, Amazon took the moral highground when debut authors attempted to exploit the names of celebrity authors (without permission) in order to market books.

Now, I hear, Amazon is cashing in, and selling celebrity author names as advertising keywords. Perhaps Jeff Bezos has (allegedly) lost his morals because Mark Zuckerberg is (allegedly) doing it? And getting away with it.

I am fairly confident that Amazon indeed may be selling names as keywords, because the Kindle advice forum is replete with advice on, for instance, how to pay Amazon to suggest to readers that ones writing is comparable to that of  JK Rowling.

I took Mark Zuckerberg's name in this context because Hypebot suggests that Facebook sells celebrity musicians' names as advertising keywords, and Hypebot quotes the "litigation risks" paragraphs from Facebook's own  2015 disclosures to investors as proof.

Facebook allegedly warns stockholders that American and international laws about the use of (presumably copyrighted) content, and the rights of publicity (that is persons' rights to their own names and likenesses) etc. etc. are still "evolving", and Facebook could be sued and lose--presumably massively-- in court(s).

Hypebot quotes Article 27 (2) of the Universal Declaration of Human Rights

Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” 
In my opinion, that suggests that Facebook may violate artists' and creators' human rights for profit.  If that's what Facebook is getting away with, it looks like Amazon is getting away with it, too.

Facebook and Amazon probably have a high-placed friend in Senator Sensenbrenner (R WI ) who, according to The Trichordist, is proposing to strip copyright owners (at least, the beleaguered musical authors) of the right to statutory damages and to legal fees, even if they prevail in court in a copyright infringement action.

That will put an end to copyright infringement class action lawsuits against permissionless innovators!

In my opinion, authors and songwriters and musicians should be explicitly granted the right to opt in to having their names sold as advertising keywords (opt out is more onerous, and leads to problems of payment if the search engines "cannot find" someone) and they ought to be paid royalties every time their name is sold as a keyword.

Since that is rather unlikely, and might even require an Act of Congress, what's to be done about it?

The legal blog of FR Kelly discusses reasons to trademark your name, or the names of your children.

As they say, there may be money to be made from a name, so it is wise and prudent to make sure that the rightful owners of the name own the trademark. Otherwise, someone else could trademark the name first, and not only exploit it for profit, but also, prevent the rightful owner of the name from using it.

All the best,
Rowena Cherry

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