Intellectual Property 3 Categories Patent Trademark Copyright Intellectual

Intellectual Property • 3 Categories – Patent – Trademark – Copyright

Intellectual Property • Patent – A grant made by the government to the inventor conveying the exclusive right to make, use and sell the invention for a term of 20 years.

Intellectual Property • Trademark – A distinctive mark of authenticity (such as a word, name or symbol) through which the products of manufacturers may be distinguished from those of others. 10 -year term; renewable indefinitely.

Intellectual Property • Copyright – a right granted by statute to the author or originator of certain literary or artistic productions, whereby that person has the exclusive privilege of multiplying, publishing and selling them. Term: Life of the author plus 70 years.

Copyright • Congress has amended the copyright law from time to accommodate new technology. • First U. S. Copyright legislation -- 1790. • Comprehensive revisions to the law --1909 and 1976

Copyright • Copyright protection extends to: – Original works of authorship fixed in any tangible medium of expression. . – Generally, slightest amount of originality confers protection under the law. • Neither artistic merit nor novelty required.

Copyright • “Fixed” requirement is easily met if it is embodied in a medium sufficiently permanent or stable to permit it to be perceived, reproduced or otherwise communicated.

Copyright • 8 types of works of authorship are protected: – 1. Literary works – 2. Musical works, including accompanying words. – 3. Dramatic works, including accompanying music. – 4. Pantomimes and Choreographic works.

Copyright – 5. Pictorial, graphic and sculptural works. – 6. Motion pictures and other audiovisual works. – 7. Sound recordings. – 8. Architectural works.

Copyright • The Copyright Act recognizes 6 exclusive rights of the copyright owner: – 1. Reproduction. – 2. Preparation of derivative works. – 3. Public distribution. – 4. Public performance. – 5. Public display. – 6. Public digital performance of a sound recording.

Copyright Formalities Copyright Extension Act of 1998 • Duration: Life of the author, plus 70 years for all works created on or after Jan. 1, 1978. • Old term: Life of the author, plus 50 years. • For company held copyrights: 120 years from date of creation or 95 years from date of publication, whichever is shorter.

Copyright Formalities • Notice – copyright symbol. Required in ‘ 76 Act, but changed with 1989 Berne Convention Implementation Act. Now optional but welladvised, especially in connection with online works.

Copyright Formalities • Registration – the Copyright Act strongly encourages registration. • No action (lawsuit) for infringement can be maintained unless the subject work is registered. – Note that registration could be done after the infringing activity and prior to filing the suit. But the plaintiff cannot claim attorney’s fees or statutory damages.

Copyright • The Certificate of Registration, if obtained in a timely fashion (w/in 5 years of creation), constitutes prima facie evidence of the validity of the copyright. • Even a late registration of a copyright may serve as effective evidence of copyright ownership.

Copyright Formalities • How to register your copyright: • 1. Complete and submit an application to the Copyright Office. • 2. Pay the application fee. ($30) • 3. Deposit copies of the work.

Copyright Formalities Suit for infringement Plaintiff must prove: 1. Ownership of a copyright for the work. 2. That the defendant violated one or more exclusive rights, such as unauthorized copying… A. Access B. Substantial Similarity

Copyright--Specialized Works • The Copyright Act provides for protection for Collective Works-- created from the assembly of other works. • Examples: anthologies, magazines, and ads (must have permission of individual copyright holders) newspapers.

Copyright--Fair Use • Fair Use is a limitation on the exclusive rights of the copyright owner. – It is not an infringement to use a copyrighted work for purposes such as criticism, comment, news reporting, teaching (includes copies for the class), scholarship or research.

Copyright--Fair Use • Fair use is determined by analyzing four factors: • 1. The purpose and character of the use. • 2. The nature of the copyrighted work. • 3. The amount of the work. • 4. The effect of use on the potential market.

Copyright • Campbell v. Acuff-Rose Music (1994) – Is Campbell’s use considered a fair use? – Analyze the 4 factors…

Copyright • Works Made for Hire (two types): • 1. A work prepared by an employee within the scope of employment. • 2. A work specially ordered or commissioned for a collective work if a work-for-hire agreement is signed.

Copyright--Freelancers • Freelancers: – Writers, musicians or artists who are not under full-time work contracts but whose writings or services are sold to individual publishers.

Copyright--Freelancers • • • Some rights publishers might buy: 1. All rights 2. First serial rights 3. First North American serial rights 4. Simultaneous rights 5. One-time rights

Copyright--Freelancers • Common Practice: – Publisher buys all rights to an article or photographs but agrees to reassign the rights to the creator after publication.

Copyright--Remedies • Injunctive relief--includes preliminary and permanent injunctions • Preliminary may be granted on proof of valid copyright and the infringement. • Monetary Awards--3 categories: • 1. damages • 2. profits • 3. statutory damages

Copyright--Remedies • Statutory damages: – minimum: $250 and maximum $10, 000, according to what the court finds “just. ” – court can award up to $50, 000 if infringement is found to be willful. • (essentially punitive damages)

Copyright--Remedies • Criminal penalties – infringement qualify as a federal misdemeanor… up to $10, 000 in fines and a year in prison. – Prosecutions have been infrequent.