Inside Asian Gaming

JUNE 2015 inside asian gaming 37 Sometimes, however, negotiating the use of copyright protected works can be a complex, and pricey, proposition. Acquiring the right to use musical recordings, for example, can be particularly expensive and complicated. And the copyright owner has the exclusive right to create derivative works. If the holder of the copyright is able to show that you copied or without permission used a substantial, legally protectable portion of the original work, you could be found liable for copyright infringement. Trademarks pose a similar problem. The test for trademark infringement is whether there is a likelihood of confusion among consumers as to the product’s source, sponsorship or affiliation. Thus, if the purchasing public confuses your modified trademark— no matter how or to what extent you modify it—with the original, you could be found liable for trademark infringement. Altering the design, changing the spelling or even translating someone else’s mark into another language can all land you in hot water if there is a chance consumers will associate your mark with, or mistake it for, the one you “borrowed.” What steps do we need to take for original work or to use someone’s work? Never use someone else’s original, protected work without first obtaining the proper license or other right of use from the artist. Often, your agency will handle these steps for you. And, it can be as simple as paying a licensing fee while purchasing a photograph on the Internet. Sometimes, however, negotiating the use of copyright- protected works can be a complex, and pricey, proposition. Acquiring the right to use musical recordings, for example, can be particularly expensive and complicated. Do not shortcut this step, however. Litigation will always be more expensive, and more cumbersome, than negotiating the use of the work. And, even if you do not end up in court, you will probably pay more to use the work after you’ve been caught… and having lost any leverage to bargain for a lower price. Can I just ask for forgiveness? Sure, if you are willing to risk statutory damages, actual damages and the legal fees incurred by the trademark owner or copyright holder for enforcement of their legal rights. And that’s just the result of the legal proceeding. Practically speaking, if someone objects to your use of their trademarks or copyrighted work, you could be forced to kill an advertising campaign, destroy retail merchandise, cancel a promotion or worse. Should marketing departments oversee these issues themselves or get a lawyer? It depends on your needs. If you regularly require trademark searches, or need help consistently enforcing a family of trademarks, the help of a lawyer can be invaluable. Lawyers can also be helpful in negotiating significant licensing agreements. On the other hand, if you only rarely need to use someone else’s original artwork, and your agency manages the licensing for all of its creative, you may be able to navigate the legalities yourself. Either way, you will definitely need a lawyer if you wind up in court. Stay vigilant from the start, and you should be able to avoid that result. GUIDING LIGHT As you can see, being a creative marketer takes more than just pure creativity. You must navigate some legal waters that you never expected, but partnering with someone who knows the way is always the key to success. Like most good things, it may take longer to get to your goal, but it will be well worth the effort. Julia Carcamo is the chief brand strategist at J Carcamo & Associates consultancy. She has held executive marketing positions at Isle of Capri and other medium to large casino companies. She can be reached at Julia@ jcarcamoassociates.com . Abigayle Farris is a casino marketer turned lawyer. In her marketing career she has worked on the brand development teams at Harrah’s Entertainment and Wynn Resorts. She joined Stone Pigman in 2010 and is an associate of the firm. Since joining the firm, she has primarily worked in the areas of gaming law, class action and mass litigation, as well as products liability. Legal Matters