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Copyright LawClass 1
Why Bother?
Why is Copyright Law Relevant?
• Impacts on economy huge.
• Affects “artistic, cultural and moral sensibilities.”
• It’s interesting.
• It’s challenging.
• It’s cool.
Copyright Law – Class 1© 2011 Anne S. Mason
Reactions to Pretty Woman Montage
• Theft?
• Free speech?
• Mocking artistic work?
• Free ride?
• Fair use?
• Public interest/value?
Copyright Law – Class 1© 2011 Anne S. Mason
Andy Warhol Images
• Did he need permission from Campbell’s?
• Did he need permission from Marilyn Monroe?
• Does it matter if she was dead or alive at the time?
• Famous person/rights of privacy?
• Rights of publicity?
• Original works versus copied?
Copyright Law – Class 1© 2011 Anne S. Mason
Martin Luther King• I have a dream speech - copyrighted?
• The written speech versus the oral speech - different treatment?
• What about people taping it? Recording it? Tweeting about it?
• Is the oral speech fixed in a tangible medium?
• Why does that matter?
Copyright Law – Class 1© 2011 Anne S. Mason
Zapruder Film of Kennedy Assassination
Copyright Law – Class 1© 2011 Anne S. Mason
• Public interest?
• Who owns?
• Historical fact/event?
• Fact versus fiction?
• Why does that matter?
Landslide• How come one band can “cover” the
song of another?
• What is the process?
• Why is it different from Pretty Woman scenario?
• Public policy issues?
• How does CR come into play at all?
Copyright Law – Class 1© 2011 Anne S. Mason
Brands• Why are famous brands famous?
• What do they do?
• What are the issues with brands that are not the same as CR?− Protection of expression versus source
ID
• Trademarks arise from use in connection with goods and services.
• Words, names, symbols or devices.
Copyright Law – Class 1© 2011 Anne S. Mason
Trademarks and Service Marks cont’d
• Don’t need registration; registration bestows rights.
• Unlimited duration so long as there is use.
• Federal registration gives rights that are nationwide in scope where used.
• Not exclusive to federal law - can register trademarks with states - intrastate commerce versus interstate.
Copyright Law – Class 1© 2011 Anne S. Mason
Trademarks and Service Marks cont’d
• Cannot be deceptive, cannot be confusingly similar to another mark, and cannot be merely descriptive or generic (lots of limitations).− aspirin, band aid brand, Xerox—please stop using our
mark as a noun!
• Infringement = likelihood of confusion.
• Dilution, especially of famous marks.
• Domain names - function as a mark?
• What about _______sucks.com cases? Issues?
• Relatively expensive especially with searches - some flat fees $1,500.
• Office actions can lengthen time but generally 9-15 months.
Copyright Law – Class 1© 2011 Anne S. Mason
Patents• Functional features of products and
processes.
• Protection arises with government grant of patent.
• 20 years from date of application.
• Novel, not obvious, has utility.
Copyright Law – Class 1© 2011 Anne S. Mason
Patents cont’d
• Federal law only - federal court only.
• Expensive.
• Time consuming to get.
• Infringement = one who makes, uses or sells.
• No innocent infringer excuse. No independent creation excuse.
• Very expensive to litigate; Markman hearings and experts.
• Very good protections for 20 years - that’s the trade off.
Copyright Law – Class 1© 2011 Anne S. Mason
Trade Secrets
• What are they?
• State laws control = look for statute.
• Indefinite so long as secret.
• Objective evidence of secrecy.
• Not commonly known in the particular industry.
• Independent creation and reverse engineering protections not there.
Copyright Law – Class 1© 2011 Anne S. Mason
Publicity
• Check state laws.
• Dead or alive?
• Rights of privacy interact.
• License.
• What happens when the celebrity falls from grace?
Copyright Law – Class 1© 2011 Anne S. Mason
Other State Laws Offer Protection
• Contract
• Unfair competition
• Misappropriation
• In rem actions (take a domain name)
Copyright Law – Class 1© 2011 Anne S. Mason
Copyright
• Covers expression and not ideas!
• Federal law - federal court.
• Preemption issues with state law complex.
• Covers certain works of authorship.
• In same clause as patents in the constitution.
• To promote the useful arts and sciences = goal; fosters conflict with individual rights.
Copyright Law – Class 1© 2011 Anne S. Mason
Copyright cont’d
• Cheap and fast to procure ($35!)
• Can do on-line.
• Infringement is violation of exclusive rights - so know what those rights are.
• Defenses like fair use have been codified.
• Damages, treble damages, and impoundment and destruction of goods.
• US Customs assistance available.Copyright Law – Class 1© 2011 Anne S. Mason
1909 Act Versus 76 Act
• 1909 had dual track depending on whether published or not published.
• Federal system protected published works.
• State law protected unpublished works.
• 76 Act (effective 1/1/78) gives rights upon fixation not publication.
• Eliminates common law copyright.
Copyright Law – Class 1© 2011 Anne S. Mason
Copyright cont’d• Original works of authorship.
• Now can grant rights in parts - don’t have to license all rights in a bundle.
• Duration under 76 Act is life + 70 versus two 28 year terms in 1909.
• Formalities - if no notice on work under 1909 Act you dedicate to public domain forever. Same with 76 Act. Changed with entry in Berne 3/1/89.
• Notice now not required.
Copyright Law – Class 1© 2011 Anne S. Mason
International Issues• No universal copyright laws.
• Look to the laws of the country where the work is to be sold.
• Look to treaties between nations.
• Berne applies to published and unpublished works.
• Does not apply in the country of origin.
• Life + 50 years is minimum.
• Moral rights.
Copyright Law – Class 1© 2011 Anne S. Mason
In Sum• Big three of intellectual property =
Patent, Trademarks and Copyright.
• State law protections may apply.
• National system at International level.
Copyright Law – Class 1© 2011 Anne S. Mason