There are laws in place in order to protect one's physical property in addition to one's intangible property. Intangible property is considered under the law as intellectual property. Trademark laws protecting branding such as product names, ads, movies, books, and cartoon characters. Patent laws protect inventions. Patent, trademark, and copyright laws are all categorized as intellectual property laws. These laws serve to ensure that individuals will benefit financially from their creations and continue to do so.
Defining Key Terms
Intellectual Property Laws: The legal category including copyright, trademark, and patent laws.
Copyright: An exclusive legal right used to protect intellectual creations from unauthorized use.
Plagiarism: Using another's work or ideas without attribution.
Work made for hire: Work created when working for another person or company. The copyright in a work made for hire belongs to the employer, not the creator.
Public Domain: The sphere that includes material not protected by copyright law and therefore available for use without the creator's permission.
Infringement: The unauthorized manufacture, sale or distribution of an item protected by copyright patent or trademark law.
Statutory Damages: Damages specified in certain laws. Under these laws, copyright being an example, a judge may award statutory damages even if a plaintiff is unable to prove actual damages.
Fair Use: A test courts use to determine whether using another's copyrighted material without permission is legal or an infringement. Also used in trademark infringement cases.
Trademark: A word, name, symbol, or design used to identify a company's goods and distinguish them from similar products other companies make.
Types of Marks: A trademark is only protected if it is distinctive. There is a spectrum of distinctiveness in trademark law. The more unique or distinct a mark, the more likely it will be eligible for trademark registration.
Intellectual Property Laws: The legal category including copyright, trademark, and patent laws.
Copyright: An exclusive legal right used to protect intellectual creations from unauthorized use.
Plagiarism: Using another's work or ideas without attribution.
Work made for hire: Work created when working for another person or company. The copyright in a work made for hire belongs to the employer, not the creator.
Public Domain: The sphere that includes material not protected by copyright law and therefore available for use without the creator's permission.
Infringement: The unauthorized manufacture, sale or distribution of an item protected by copyright patent or trademark law.
Statutory Damages: Damages specified in certain laws. Under these laws, copyright being an example, a judge may award statutory damages even if a plaintiff is unable to prove actual damages.
Fair Use: A test courts use to determine whether using another's copyrighted material without permission is legal or an infringement. Also used in trademark infringement cases.
Trademark: A word, name, symbol, or design used to identify a company's goods and distinguish them from similar products other companies make.
Types of Marks: A trademark is only protected if it is distinctive. There is a spectrum of distinctiveness in trademark law. The more unique or distinct a mark, the more likely it will be eligible for trademark registration.
- Fanciful marks - invented marks, including made up words (for example, Lexus) most likely receive trademark protection.
- Arbitrary marks - words that have ordinary meanings unrelated to the product or service (for example, Apple).
- Suggestive marks - marks that suggest a product's source or manufacturer's business but do not describe what the product is (for example, Playboy).
- Descriptive marks - marks that describe the product or service and leave little to a consumer's imagination and that must attach a distinctive meaning to the product or service (called secondary meaning) to be trademarked.
Tacking: Allows a trademark owner to slightly alter a trademark without abandoning ownership of the original mark.
Important Cases
Metro Golden Mayer Studios Inc. v. Grokster Ltd. (2005): The Court ruled in favor of MGM. In a unanimous decision the Court ruled that companies that distributed software and promoted software to infringe copyrights, were liable for the resulting acts of infringement. Secondary liability doctrines.
American Broadcasting Companies Inc. v. Aereo Inc. (2014): The Court ruled in favor of ABC. Deeming Aereo to be broadcaster not just an equipment provider, thus violated copyright laws.
Metro Golden Mayer Studios Inc. v. Grokster Ltd. (2005): The Court ruled in favor of MGM. In a unanimous decision the Court ruled that companies that distributed software and promoted software to infringe copyrights, were liable for the resulting acts of infringement. Secondary liability doctrines.
American Broadcasting Companies Inc. v. Aereo Inc. (2014): The Court ruled in favor of ABC. Deeming Aereo to be broadcaster not just an equipment provider, thus violated copyright laws.
Relevant Doctrine
Statute of Anne: The first copyright law, adopted in England in 1710, protected authors' work if they registered them with the government.
Fair Use Defense: For what purpose was the copyrighted work used without permission?
Current Issues or Controversies
Statute of Anne: The first copyright law, adopted in England in 1710, protected authors' work if they registered them with the government.
Berne Convention: The primary international copyright treat6s adopted by many countries in 1888. Later adopted by the US in1988.
The 1976 Copyright Act: Copyright protection applies to "original works of authorship" that are "fixed in any tangible medium of expression". The U.S. Copyright Office suggests viewing these categories broadly. For example, computer software is considered a literary work and is protected.
Works that are protected by copyright:
- Literary works
- Musical works, including any accompanying works
- Dramatic works, including any accompanying music
- Pantomimes and choreographic works
- Pictorial, graphic and sculptural works
- Motion pictures and other audiovisual works
- Sound recordings
- Architectural works
Exclusive Rights in Copyrighted Works: The copyright holder with exclusive rights may do the following:
- Reproduce the copyrighted work
- Prepare derivative works based upon the copyrighted work
- Distributed copies of the copyrighted work to the public by sale or other transfer of ownership, or by retail lease or lending (except for CDs and Computer Software)
- Perform the copyrighted work publicly in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual works.
- Perform the copyrighted work publicly by means of a digital audio transmission int he case of sound recordings.
Moral Rights: Under U.S. copyright law, the rights of certain artists - creators paintings, drawings, prints, sculptures, and art photographs - to require that their names be associated with their works, to forbid others from claiming to be creators of the works and to prevent intentional harm to or modification of a work that would harm the artists' reputation.
First Sale Doctrine: Once a copyright owner sells a copy of a work, the new owner pay possess or transfer or otherwise dispose of that copy without the copyright owner's permission.
Infringing Copyright: A copyright plaintiff must prove the following:
- The work used is protected by a valid copyright - meaning it is an original work fixed in a tangible medium
- The plaintiff owns the copyright
- The valid copyright is registered with the Copyright Office
- And either:
- There is evidence the defendant directly copied the copyrighted work, or
- The infringer had access to the copyrighted work, and the two works are substantially similar
- What was the nature of the copyrighted work that was used without permission?
- How much and what portion for the copyrighted work was used without permission?
- What effect did the unauthorized use have on the copyrighted work's market value?
Transformative Use: Transformative Use is on the primary defenses used today when arguing fair use. Courts must also apply the other fair use factors (discussed in this section) to transformative use, but often it is the transformative use determination that carries the most weight. Transformative use is generally fair use if the answer to two questions is "yes":
- "Has the material you have taken from the original work been transformed by adding new expression of meaning?"
- "Was valued added to the original by creating new information, new aesthetics, new insights, and understandings?"
Safe Harbor: The takedown notification provision of the Digital Millennium Copyright Act that protects interest Service Providers and video sharing websites from claims of infringement when:
- They did not know the content infringed someone's copyright
- Did not earn money directly from the posted material
- Promptly complied with a takedown notice.
Lanham Act: Protects trademark from infringement. Under the Lanham Act, trademark confusion occurs when the mark is likely to cause consumer confusion in the marketplace.
How new technologies will be dealt with in the eye of the law.
My Questions & Concerns
1. Does copyright/patents extend to other countries? Is there copyright jurisdiction?
1. Does copyright/patents extend to other countries? Is there copyright jurisdiction?
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