Page 47 - EDM Today Winter 2025

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MB: I do not understand the intricacies of the technology,
ET: Are the pictures we see on “Google Images” some-
but I do know there are various electronic tracking and
one’s intellectual property?
fi nding tools to catch “copycat” thieves. It may be a
MB: Most defi nitely, unless we want to consider divine
beacon or e-tag put onto a digital fi le, or some other
intervention for their creation! But even then, someone
identifi er that the owner or a service they hire can use
would still have created them because they did not
to troll the internet and see who took what, and know
appear out of thin air. Additionally, now in the age of AI
created works, this question has gotten a bit murky. The
Additionally, in the age of AI, such investigation is made
current legal trend in copyright and patent circles is that
more possible as even larger volumes of data can be
a purely created AI work may be everyone’s and no one’s that the taking is with or without permission to so do.
reviewed and appropriate action taken.
intellectual property. In the interest of time, let’s leave
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AI for another time, because we have plenty of pre-AI
ET: If a photo is taken of an EDM machine that includes
a customer’s part, must permission be obtained from the
intellectual property points to consider.
customer before using the image in my own marketing
ET: How can a person determine whether the picture they
materials?
are looking at is protected?
MB: It depends. Starting with a more lawyerly answer
MB: This is a tough one, so let’s try and lay some broad
here, because there are several facts to consider to get
guardrails to identify what is likely okay and what is likely
to an answer. A machine “part” in and of itself is not likely
not okay. That probably covers 70% of the landscape,
protectable by copyrights, trademark or patent in regard
leaving the other 30% for a discussion way beyond what
to taking a picture of the “part.” However, the act of
we can cover today.
keeping the inside of another party’s machine confi den-
tial may be protected by a confi dentiality agreement
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First rule, if I created it or I know who created it and they
(aka a non-disclosure agreement), and maybe even trade
have given me permission to use it, then it is okay to use.
secret rights, and that too would rely upon some type
Second rule, if I didn’t create it or know who created it
of confi dentiality obligation. If there is no separable
and therefore don’t have permission to use it, I have to
intellectual property right protecting the part, and if no
assume the creator is NOT okay with me using it.
obligation of confi dentiality, then it should be free for
Sometimes there may also be a “legend” on a work like
you to use in marketing materials.
a “C” in a circle (©), and then a year of creation and an
owner’s name, words like “All Rights Reserved,” or a
ET: What should I do if I think someone is using my IP
legend like a TM, SM or “R” in a circle (®) that sits on
the shoulder of a mark/brand designator (Amundsen
Davis®). Any of this legend language broadcasts that
MB: A fi rst step is to try and verify they are doing so.
someone owns the work and you need to get their without my permission?
What leads you to believe they took some protected
intellectual property from you? Then, you can either
permission to properly use it and avoid stepping on
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someone’s intellectual property ownership toes. However, engage an attorney to help assess the matter and
consider sending a cease and desist letter, or you can
for a vast majority of the works you will encounter,
reach out on your own to verify that the infringement
especially on the internet, there is no such helpful legend
and you have to resort to guardrail rules 1 and 2.
activity is or is not happening. If you reach out on your
own, operate on a “less is more” approach; keep to the
ET: Can I be sued for copyright infringement if I pull and
facts and fi nd out what you can without sharing any
repost a picture without permission? Does that ever
more info than needed. Use caution, however, as if you
actually happen?
ultimately decide you want/need to bring litigation
MB: Yes and yes! Fortunately, if it is an act of innocent
process leading up to that decision. So, it is never too
infringement, while still very much liable, you likely will
soon to get your attorney involved.
not have to go to court and be involved in a formal you don’t want to have compromised any rights in the
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lawsuit. However, it could cost you real money to avoid
ET: What tips can you give our readers to protect
getting pulled into a litigation. I have helped clients
themselves, their IP, and avoid trouble?
“amicably” resolve such situations and it usually costs
MB: While there are lots of nuances to consider in each
them several hundred to a few thousand dollars, for
case, no matter what, it is important to know what you
attorney fees and a payment to the intellectual property
created and can use and what you did not create and
owner, to fully resolve the matter, plus weeks to
months of time wondering if it will get resolved before
thus likely need permission to use. And then, you will be
prepared to have a more fruitful discussion with your
a lawsuit is fi led.
ET: The internet is a big place; how would I ever get
infringement-avoidance strategies and tactics.
caught for grabbing someone’s artwork/picture online
without the proper license or permission? intellectual property attorney to discuss protection and
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(Continued on next page)
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EDM Today, Winter 2025 Issue