Copyright and Trademark Law

What you can use and how you can use it legally.

Copyrights

Copyright: Definition

Copyright is protection for intellectual property.

Gives a copyright owner the exclusive right to control coping of a writing (or recording or picture or electronic transcription).

As a copyright owner, you may either allow or prevent anyone else from making copies of your work, making derivation from your work (such as a poster made from a photograph, or displaying your work publicly.

Intellectual Property

Intellectual property consists of anything an individual has written or created. It might be music, text, pictures, photographs, sounds, and so on.

Derivative Works

Derivative works are copyrighted materials that have been altered or changed. Such material is protected by copyright laws. If you alter a copyrighted photograph by using computer software, that photograph is still protected, and you may not use it without written permission.

Academic Standards

Academic standards for copyrighted material are higher than others. Because scholars and researchers study so many different ideas and are responsible for sharing those ideas with the world, they are required to satisfy higher standards of honesty. They must give credit not only when quoting someone else’s exact words but also for the ideas those words represent. As a researcher, you cannot paraphrase what someone else says and not give credit for it.

Bibliographies

Bibliographies are lists of sources that have been used in research. When using the Internet for research or for design work, you need to give credit where it is due. Often, people who use graphics and images from the Internet for publication on their own web page create a list of image credits rather than a bibliography.

Copyright:

Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code).

Copyright protection subsists from the time the work is created in fixed form.

The copyright in the work of authorship immediately becomes the property of the author who created the work.

Only the author or those deriving their rights through the author can rightfully claim copyright.

Copyright: Duration

Copyrights last for the author’s lifetime plus 70 years.

For works made for hire, and for anonymous and pseudonymous works (unless the author's identity is revealed in Copyright Office records), the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter.

Copyright: Work made for hire In the case of works made for hire, the employer and not the

employee is considered to be the author. Section 1 of the copyright law defines a "work made for hire" as:

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as: a contribution to a collective work a part of a motion picture or other audiovisual work a translation a supplementary work a compilation an instructional text a test answer material for a test an atlas

Copyright: Work made for hire

If the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire....

The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary.

Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole and vests initially with the author of the contribution.

Copyright: Two General Principles

Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.

Minors may claim copyright, but state laws may regulate the business dealings involving copyrights owned by minors.

Copyright:

An item is copyright protected by simply being written down. It does not have to be registered, but that affords it greater protection.

What is copyright protected: books websites and information on websites songs memos photos (either traditionally or with a digital camera) letters architectural works etc.

Copyright: The Rules

You cannot use copyrighted material without written permission from the creator of the material (or from its copyright holder).

Material can be protected even if it does not display the © symbol. Even if no mention is made regarding copyright, you must assume that all material from another source is protected.

Copyright: The Rules

Penalties for violating copyright laws can range from mild to severe. If you break the copyright law, you might simply receive an e-mail message from the author asking you to stop using the material. If you publish the material on a website, the webmaster might shut down your site. Or you could be sued by the author or prosecuted by federal authorities.

Copyright: The Rules

To make sure you are not violating any copyright law, it is important that you do the following: Write or send e-mail to the author or creator and ask

permission to use the material. Do not use it until you are given permission.

Follow the directions on the site regarding use of material. You might be asked to create a link on your page or to notify the author or creator.

Most important: Do not use any material if you don’t have written permission.

Copyright: The Rules

Copyright notice is no longer required to obtain protection, but it is often beneficial. Copyright notice for visually perceptible material should contain the following three elements: The symbol © (the letter C in a circle), or the word

“Copyright,” or the abbreviation “Copr.” The year of first publication The name of the owner of copyright

Example: © 2012 Adobe Systems Incorporated

Copyright: The Rules

Copyright notice for phonorecords and sound recordings should contain the following three elements.The symbol ℗ (the letter P in a circle)The name of the owner of copyrightThe year of first publication

Copyright: The Rules

The copyright notice should be affixed in such a way as to “give reasonable notice of the claim of copyright.”

For more information on copyrights, visit the United States Copyright Office on the Internet at www.copyright.gov.

Copyright: When is it coping

Saving a message in e-mail (may be coping). Downloading an article from a website. Xeroxing a document. When a work is translated into other languages. When a work is paraphrased, if they are close

enough to the original. Handwriting copies of other peoples work. Coping only part of a document.

Copyright: When is it coping

Note: some behavior by the created of the item can imply permission to copy.

For instance: A personal message from one person to another. It can be assumed that message could be forwarded to another. A message sent to a discussion group on the internet can be forward to the rest of the members of the discussion group.

Copyright: What is not protected Facts cannot be copyrighted. Ideas from other peoples work (could be patent

infringement); however, you cannot copy the words used to express the idea or the details.

Single words or short phrases. Copies you make of other people’s work. Works that have not been fixed in a tangible form of

expression (for example: choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded).

Copyright: Advantages of obtaining a registered copyright Registration establishes a public record of the copyright

claim.

Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.

If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.

Copyright: Advantages of obtaining a registered copyright If registration is made within 3 months after publication

of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies.

Copyright: Fair Use Doctrine

Fair use doctrine is part of the copyright laws. It states that limited portions of material may be used without written permission for certain purposes, such as reporting the news or schoolwork. It doesn’t define “limited,” though, so be

sure you don’t overuse material. The fair use doctrine requires you to give credit to the author or creator of any

material you use.

Copyright: Fair Use

For Fair Use to apply, you must be able to answer YES to a large proportion of these questions:

Is your use non-commercial? Is your use of purposes of criticism, comment, parody,

news reporting, teaching, scholarship, or research? Is the original work mostly fact (as opposed to mostly

fiction or opinion)? Has the original work been published (as opposed to it

being sent out only to one or a few people)?

Copyright: Fair Use

Are you copying only a relatively insignificant part of the original work (as opposed to the most important part)?

Are you adding a lot new to the work (as opposed to just quoting parts of the original)?

Does you conduct leave unaffected any profits that the copyright owner can make (as opposed to displacing some potential sales OR potential licenses of reprint rights)?

Copyright: Fair Use

A manipulated image become the "property" of the individual who made the changes to the image when the original image cannot be recognized by an "average observer."

Historically, artists creating "one-of-a-kind" works of art are permitted considerable latitude in fair use of copyrighted material.

Copyright: Obtaining Registered Copyrights

Copyrights applications are obtained from the U.S. Copyright Office, Library of Congress, Washington, D.C. 20559 (Phone 202 707-9100)

You can register a single item or a group for a fee of $30 (currently).

Photography and Privacy

Photos: Taking and Using Them Consent is never legally necessary to photograph

someone or something in public when the photographer does not intend to disseminate the image.

Permission is generally not necessary when the photograph is being used as fine art, or in an editorial context (when the photograph does not damage an individual's reputation or show a person in a compromising situation).

Consent IS necessary, when the photograph is being used for advertising or commercial purposes.

Trademarks and Service Marks

Trademarks: What are they

To be a trademark the items must past several test: It must be actually used as an identifier of particular goods

or services: you can’t get a trademark in some great new name you’ve come up with for you new product until you actually start using the name to identify that product.

It has to be in some way distinctive, not what courts call “ordinary” or merely descriptive” or “generic”; you can’t use trademark to protect the common name of your product.

The mark must not be “confusingly similar” to anyone else’s trademark that is already in use.

Trademarks: What are they

Words, symbols and designs, sounds, distinctive colors-virtually anything that can be used to identify specific goods or services and distinguish them in the market from other similar goods or services - is *potentially* a trademark.

Trademarks: Examples Coca-Cola Velveeta JiffyLube Xerox IBM Adobe Ford Motor Company Hewlett-Packard

Trademarks: Trademarks vs. Service Marks

A trademark—a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.

A service mark—the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product.

Trademarks: Obtaining a Trademark

You create a distinct item for use and begin using it.

It does not have to be registered, but that affords it greater protection.

To register a trademark, you apply to the US Patent and Trademark Office

http://www.uspto.gov/index.html

Trademarks: Registration Advantages

Constructive notice to the public of the registrant's claim of ownership of the mark;

A legal presumption of the registrant's ownership of the mark and the registrant's exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration;

the ability to bring an action concerning the mark in federal court;

Trademarks: Registration Advantagesthe use of the U.S registration as a basis

to obtain registration in foreign countries; and

the ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods.

Trademarks: When can you use someone’s trademark When advertising that a product can be used with

another product or be another product.

When writing an article that refers to a product name.

Market a VERY DISSIMILAR product under a name already used.

Examples: Lotus Automobiles/Lotus Software

Adobe Tiles/Adobe Software

Trademarks: TM and SM vs. ®

TM refers to and unregistered trademark.

SM refers to and unregistered service mark.® means that the trademark has been

registered with the US Patent and Trademark Office. It can only be used after the registration is approved.

References:

Cyberspace Law for Non-Lawyers by Larry Lessig. David Post. and Eugene Volokh

http://www.eff.org/legal/CyberLaw_Course/

US Patient and Trademark Office Website: Basic Facts about Trademarks

http://www.uspto.gov/web/offices/tac/doc/basic/

US Copyright Office Website:

http://www.copyright.gov/