Copyrights © and

Trademarks ®

Lindsay GilsonRuthie Sherer

Intellectual Property

• Refers to creations of the mind

• Common types of intellectual property rights:• Copyrights

• Trademarks

• Patents

• Industrial Design Rights

• Trade Secrets

What is a copyright?

• Copyright – rights and protections granted by state to the author of an original work

• Work must be tangible; perceivable directly or by a device

• Gives the author of an original work exclusive rights for a certain time period, after which time the work is said to enter the public domain

• Lasts the life of the author plus 70 years

• Examples of original works of authorship include:

• Literary works

• Dramatic works

• Musical works

• Software

• Photographs

What “rights” are protected?

• Author decides who can:

• Adapt the work to other forms

• Perform or display the work publicly

• Financially benefit from the work

• By sale, rental lease, or lending

• It is illegal to violate any of the rights provided by the copyright laws

Questions• How’s this different than a patent?

• Patent – protects inventions and discoveries

• Copyright – protects authorship

• When is a work protected?

• Moment of creation (i.e. fixation in tangible form)

• Must a copyright be registered to be protected?

• No, rights apply to registered and unregistered works

• For a lawsuit to occur, work must be registered

• Why register?

• Establish proof of authorship

• Easier to protect

Quiz time: What’s Copyrightable?• a Website?

o Content (i.e. original text/art/graphics)

o Domain Name

• a Recipe?o List of ingredients

o Explanation of how to cook something

• Grandma’s Diary?o Did you inherit it? Was it willed to you? If so,

o Copyright is transferable

• I wrote something for my job. Do I own the copyrights?o .

• I’m an architect. What about my architecture?

Yes!

Yes!

Yes!

Nope!

No

Nope, your company owns it.

o Yep! As of 1990, architecture is copyrightable

History• Origins – 15th and 16th Century Europe

• Only became a concern after the invention of the printing press

• Church and government censorship

• Licenses required of printing presses

• Early US Law• “Nothing is more properly a man’s own than the fruit of his study, and protection and

security of literary property would greatly tend to encourage genius”

• Copyright Clause of U.S. Constitution- Initial Mention

• Copyright Act of 1790 – granted term limits for copyrights

• Copyright Act of 1976 – basis of present day copyright law

• Defined rights, fair use, transfer, and what’s copyrightable

• Extended Terms

Modern U.S. Law – The Details

Who can claim a copyright?

• The author

• Family – after author’s death

• Employer – work made for hire

• Coauthors

• Minors – state law may restrict business dealing with minors

Modern U.S. Law – The DetailsFair Use

•Allows limited use of copyrighted material without permission• Examples:

• Commentary

• Criticism

• News Reporting

• Research

• Library Archiving

• Considerations

• What is the purpose of your copying?

• How much are you copying?

• Does it affect the work’s value?

International Copyright Conventions

• Berne Union for the Protection of Literary and Artistic Property:

• Commonly called the Berne Convention

• International agreement governing copyrights

• First accepted in Berne, Switzerland in 1886.

• The Berne Convention requires its signatories to recognize the copyright of works of authors from other signatory countries in the same way as it recognizes the copyright of its own nationals.

• Establishes a system of equal treatment between members

• Requires member states to provide strong minimum standards for copyright law.

Minimum Standards

• Protection must be automatic; it is prohibited to require formal registration

• All works except photographic and cinematographic shall be copyrighted for at least 50 years after the author's death, but parties are free to provide longer terms.

• For photography, the Berne Convention sets a minimum term of 25 years from the year the photograph was created, and for cinematography the minimum is 50 years after first showing

Berne Convention signatory countries (in blue)

164 countries are currently Berne signatories

International Copyright Conventions

• Universal Copyright Convention (UCC):

• Developed by the United Nations

• Adopted at Geneva, Switzerland in 1952

• A UCC notice consists of the symbol © (C in a circle) accompanied by the year of first publication and the name of the copyright proprietor (example: © 2006 John Doe)

• This symbol is considered sufficient for legal protection of copyright by member nations

• The UCC ensured that international protection was available to authors even in countries that would not become parties to the Berne Convention

U.S. Copyright Registration

• Creates a public record about the details of a specific copyright.

• Is needed prior to filing an infringement suit.

• Can be made any time during the life of the copyright.

• Registration prior to infringement allows owner to seek compensation for statutory damages and attorney’s fees

• Registration after infringement only permits owner to seek compensation for actual damages and lost profit

Actual vs. Statutory Damages

ACTUAL DAMAGES• Loss of value of work

• Loss of revenue

• Money gained through infringement

STATUTORY DAMAGES• Sum of not less than $750 or more

than $30,000 [per work] as the court considers just.

• The court in its discretion may increase the award of statutory damages to a sum of not more than $150,000, [if willful infringement is proven]

According to US Code Collections Title 17, Section 504

Actual vs. Statutory Damages Example

Joel Tenenbaum vs. RIAA (Recording Industry Association of America)

• RIAA sued Tenenbaum for illegally downloading and sharing 30 songs (copyright infringement)

Actual Damages• Assuming court awarded $1

per song (actual cost per song)

• Tenenbaum owes $31

Statutory Damages• Assuming court awarded

$22,500 per song • Tenenbaum owes $675,000

How to Register Claims

•Paper Form

•$65 filing fee

•Electronic Copyright Office (eCO)

•$35 filing fee

Trademarks

• Four types

• Trademark

• Service Mark

• Registered Trademark

• Sound Mark

http://www.youtube.com/watch?feature=player_detailpage&v=Sfg9DVwOd9w

Trademark TM

• A distinctive sign or symbol used to identify the source of a certain product, distinguishing it’s product from similar products from other sources

• Can be used by an individual, a business or any entity

• Is a brand name

Requirements

• No similar marks in USPTO database

• Use in commerce

• Not Generic but Descriptive

• Non confusing with other existing products

Service Mark SM

•Similar to a trademark, but distinguishes a service provided by a certain source, rather than a product

Registered Trademark

• A trademark that is registered with the United States Patent and Trademark Office

• It is not necessary to register your trademark, but registration gives some advantages

• Public Evidence of ownership

• Can use outside your industry

• Ability to invoke jurisdiction of federal courts

• Can be used to obtain registration in foreign countries

• Registration may be filed with U.S. Customs Service to prevent importation of infringing foreign goods

Registered Trademarks

Sound Mark• A non-conventional trademark or service mark, a

sound mark is a trademark on an audio recording used to uniquely identify a company or service

• Popular examples of this include, the MGM “Lion’s Roar”, NBC’s chimes, and THX’s “Deep Note”

Maintaining Trademarks

• Unlike patents, which expire after a specific amount of time, trademarks are issued for 10 year periods, and can be renewed with no limit every 10 years.

Application Process

• First it must be determined whether Trademark rights are already being claimed by another group.

• TESS (Trademark Electronic Search System)

• Patent and Trademark Depositary Libraries (PTDLs).

• Trademarks including a design element will have to be searched for using a design code.

• Clearly state with what the trademark will be used.

• State if you are currently using the mark or intend to use it.

• Every application must include a clear representation of the mark that you want to register.

Application Process

• Trademark Electronic Application Service (TEAS) Form• Filing fee of $325 per class of goods and services

• Not as strict

• TEAS Plus Form• Lower filing fee of $275

• Stricter requirements

• Have to select goods and services directly from the listing provided by the USPTO

Application Process

• If the application passes, it is published in the Official Gazette, which allows others to see if it infringes on their trademarks.

• They then have 30 days to file opposition to the mark.

• If it passes this stage, you must start using the mark in commerce within 6 months.

• In order to keep the mark registered, you must continue to file maintenance documents.

Odd Trademarks

• “Yup”

• “Let’s Get Ready to Rumble” – Michael Buffer

• Super Bowl by NFL

• Police “brands” are trademarked

• Canadian Mounties have a TM on their uniforms

• NYPD filed lawsuits against any individual or organization bearing their name