Copyright

original works fixed in a tangible form

ex. it is not ideas, theories, facts or news

an incentive to be creative and a way to protect the creator's ability to profit

how is it protected?

by granting monopoly rights for a fixed period of time

new technologies are stretching intellectual property laws

used to protect distinctive words, symbols, devices that clearly identify a business firm and its products (and its also a form of consumer protection)

seeks to reduce the likelihood of confusion

the first person to fix the trademark controls it (not the first to register)

however, to enforce the trademark (sue for infringement) the trademark must be registered

in addition, the holder must make an effort to prevent unauthorized use (ex. Spam)

trademarks exist only with respect to some commercial activity

trademarks have no set lifespan (first time for 5 years, renewals for 10 years)

can lose a trademark by not using it or not protecting it (typically 2 years)

can be a word(s), slogan, title, design, color, sound, device, style, etc. as long as it is distinctive (doesn't apply to parody)

the same trademark used to be able to be used if the similarity was not likely to cause consumer confusion (it used to be that it only applied to the same industry/field/product)

now, trademark holders have a greater ability to limit "dilution" of the trademark

when it is fixed in a tangible form

have the option to register

search the copyright office files

the © is not required, so the lack of a symbol doesn't mean it's not registered

can't sue for infringement without registration

registration is simple and the fee is small

life of the author plus 70 years

if a work for hire (a company holds the copyright) 95 years from publication or 120 years from creation, whichever is shorter

once a copyright expires, the work goes into the public domain

these rights can be sold (and bought), traded, inherited, leased, licensed etc. (like property)

thus, permission is required to use

there is no protection for federal publications (they belong to the public)

titles, slogans, phrases (but if used in commercial activity...)

News events - can't copyright facts or the substance of the story (but can copyright your presentation of those facts)

implications for historical movies, biographies etc.

substantial similarity

was the "fundamental essence" of the work appropriated?

I. Immaterial Property (Intellectual Property)
what is intellectual property?
original works fixed in a tangible form
ex. it is not ideas, theories, facts or news
why protect it?
an incentive to be creative and a way to protect the creator's ability to profit
how is it protected?
by granting monopoly rights for a fixed period of time
copyright, trademark, patent

Article I, Section 8, Clause 8 (Constitution)
The Congress shall have power... (8) to promote the progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive right to their respective Writings and Discoveries;

new technologies are stretching intellectual property laws

A. Trademarks (`TM`)
Federal Trademark Act
United States Patent and Trademark Office
used to protect distinctive words, symbols, devices that clearly identify a business firm and its products (and its also a form of consumer protection)
seeks to reduce the likelihood of confusion
the first person to fix the trademark controls it (not the first to register)
however, to enforce the trademark (sue for infringement) the trademark must be registered
in addition, the holder must make an effort to prevent unauthorized use (ex. Spam)
trademarks exist only with respect to some commercial activity
trademarks have no set lifespan (first time for 5 years, renewals for 10 years)
can lose a trademark by not using it or not protecting it (typically 2 years)
can be a word(s), slogan, title, design, color, sound, device, style, etc. as long as it is distinctive (doesn't apply to parody)
the same trademark used to be able to be used if the similarity was not likely to cause consumer confusion (it used to be that it only applied to the same industry/field/product) now, trademark holders have a greater ability to limit "dilution" of the trademark

"Greeking"


Case: Taco Tuesday

B. Copyright
Copyright Act of 1976
1998 Digital Millennium Copyright Act
U.S. Copyright Office
Technology change pushes copyright law

when is a work copyrighted?
when it is fixed in a tangible form
have the option to register

How can I tell if something is registered (copyrighted)?
search the copyright office files
the © is not required, so the lack of a symbol doesn't mean it's not registered


why register?
can't sue for infringement without registration
registration is simple and the fee is small

how long is a copyright good for?
life of the author plus 70 years
if a work for hire (a company holds the copyright) 95 years from publication or 120 years from creation, whichever is shorter
once a copyright expires, the work goes into the public domain


What may be copyrighted?


what rights does the copyright holder have?
1. The right of reproduction of the work
2. The right of preparation of derivitive works
3. The right of public distribution of the work
4. The right of public performance of the work
5. The right of public display of the work
6. The right of public digital performance of a sound recording

these rights can be sold (and bought), traded, inherited, leased, licensed etc. (like property)
thus, permission is required to use

copyright clearance houses - ASCAP, BMI (CCLI for churches)
music - compulsory license - allows radio stations (and others) to play music without getting permission for each and every song
layers of rights (ex. music)
publishing rights vs. performance rights
there is no protection for federal publications (they belong to the public)

what's not protected?
titles, slogans, phrases (but if used in commercial activity...)
News events - can't copyright facts or the substance of the story (but can copyright your presentation of those facts)
implications for historical movies, biographies etc.

C. Fair Use
in order to "promote the progress of Science and useful Arts" it may be necessary to permit someone to borrow limited amounts of material from a copyrighted work without seeking permission
ex. movie reviews, teaching etc.

There are four factors that are used in considering if "copying" is considered a fair use
1. The purpose and character of the use
favors noncommercial or nonprofit use (education!)
for commercial use - criticism and comment is critical

2. The nature of the copyrighted work
is it still available? if not, infringement is less likely
is it consumable? if so, infringement is likely
is it informational or creative? if info, infringement is less likely
is it published or unpublished? first publication is highly protected

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
proportion is key
parody is an issue (since parody reflects the content of the original work)
ex. Weird Al

4. The effect of the use on the potential market for or value of the copyrighted work
would the plaintiff be harmed by the use? (economically)
derivitive works are often an issue

D. Infringement
1. Was the work "original"?
2. Did the defendent have access to the work?
3. was the work copied?
substantial similarity
was the "fundamental essence" of the work appropriated?
Disturbia lawsuit

What about downloading MP3s?