• Patents
• Trademarks
• Plagiarism

• An area of the law that deals with intangible property--property that a person cannot touch or hold or lock away for safekeeping.
• Trademark protection is based on marketplace use; patents and copyright are statutory creations. Trademark protection can last forever; copyright and patent protection is limited by law to specific terms.

• inventions that have utility--such as a machine or a process
• designs--the appearance of an article of manufacture
• certain kinds of plants

• Any word, symbol, or device--or combination--that differentiates an individual's or a company's goods and services from those of their competitors.
• Brandname™

• 1. To identify one seller's goods and distinguish them from the goods sold by others.
• 2. To signify that all goods bearing the trademark come from a single source.
• 3. To signify that all goods bearing the mark are of an equal level of quality.
• 4. To serve as a prime instrument in advertising and selling goods.

• The owner of a trademark must be constantly vigilant to insure that his or her rights are protected. There is no government agency to stop others from illegally using the name or phrase. If the company does nothing to stop others from using the mark, it can become generic.

• Until 1996, U. S. trademark law only forbade the use of a registered trademark on a product that was similar to the product produced by the owner of the trademark. Since then the Congress added more muscle to its protection when it adopted the Federal Dilution Trademark Act.

• The statute only prohibits the use of the mark by another in commerce, and does not apply to its use in news reports or commentary, or in parody, satire, or other forms of expression.

• The act of taking ideas, thoughts, or words from another and passing them off as your own. Copyright law protects "all works of authorship fixed in a tangible medium of expression." Copyright does not protect ideas, but the specific expression of those ideas.

• Roots of the Law
• What May Be Copyrighted
• News Events
• Misappropriation
• Duration of Copyright Protection

• The printing press was the first technological development that provided the inexpensive means of copying the work of others. As each new mass communications form has developed, the problem of protecting intangible property has arisen anew.

• Copyright law developed in Great Britain in the 16th century as the government sanctioned the grant of printing privileges to certain master printers in exchange for their loyalty and assistance in ferreting out anti-government writers and publishers. The rights of authors, as opposed to printers, were not protected until 1710 when the British Parliament passed the nation's first copyright law.

• American copyright law derives directly from the U. S. Constitution. Article I, Section 8: "The Congress shall have Power. . . 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."

• The 1976 federal copyright law preempted virtually all state laws. Hence copyright law is essentially federal law. After the 1976 revision, U. S. law had only minimal differences from international treaty and in 1988 Congress finally approved American participation in the Berne Convention.

• 1. Literary works
• 2. Musical works, including any accompanying words
• 3. Dramatic works, including any accompanying music
• 4. Pantomimes and choreographic works

• 5. Pictorial, graphic, and sculptural works
• 6. Motion pictures and other audiovisual works
• 7. Sound recordings

• The law specifically says that only "original" works can be copyrighted. In interpreting this term in the 1909 law, courts ruled that the word "original" means that the work must owe its origin to the author. It need not be of high quality or new or novel.

• The 1976 statute clarifies the law regarding compilations by identifying three distinct elements required for a compilation to qualify.
• 1. The collection and assembly of preexisting material, facts, or data.
• 2. Selection, coordination, or arrangement of these materials.
• 3. The creation, by virtue of the particular selection, coordination, or arrangement, of an original work of authorship.

• The second element is the key element and must display some level of creativity.

• Facts cannot be copyrighted. Other stations cannot rebroadcast an exclusive interview, nor can newpapers publish a transcript, but they can inform their viewers and readers what a public figure said in the interview.

• Copyright only protects the way the story is told, not the story itself. The U. S. Court of Appeals for the 5th Circuit has ruled that there is no rational basis for distinguishing between facts and the research involved in obtaining the facts.

• Misappropriation or unfair competition is sometimes invoked as an additional legal remedy in suits for copyright infringement. Misappropriation remains largely a creature of the common law.

• It's intended to stop:
• 1. A person trying to pass his or her work off as the work of someone else, and
• 2. A person trying to pass off the work of someone else as his or her own work.

• Depends on when the work was created.
• The 1976 revision included an extension of the duration of copyright protection, so there are two sets of guidelines.
• Any work created after January 1, 1976 is protected for the life of the creator, plus 50 years.
• Under the earlier law (1909), works could be copyrighted for only 56 years--two 28-year terms.

• A "work for hire" is protected for 75 years after publication. Works for hire include books written by an author for a publisher, most motion pictures, sound recordings, television programs, and other works created through a collaborative effort.

• Purpose and Character of Use
• Nature of the Copyrighted Work
• Amount of a Work Used
• Effect of Use on Market

• Criticism, comment, news reports, teaching, scholarship, and research are protected
• Traditionally, limited use of copyrighted material for educational purposes is fair use
• There is a public-interest dimension to fair use--the public has a right to be informed regarding matters of public interest
• Such use not protected if other suitable material is available

• Is the copyrighted work still available?
• Is the work a consumable work? (to be used just once)
• Is the work an informational work or a creative work?
• using informational work more likely fair use
• Is the work published or unpublished?
• courts tend to protect author’s right to first publication

• Absolute amount not as important as relative proportion
• Courts will consider exact copying and close paraphrasing
• Parody leads to difficult cases
• even commercial parody may be okay
• to be protected, a parody must do more than achieve a comic effect, it must also make a critical comment or statement about the original work
• copying limited to what’s necessary to recall original

• Usually given greater weight than other three factors
• Not fair use if such use would be damaging if widespread
• Court should consider not only direct impact, but also derivative uses

• Copyright Notice
• Registration
• Infringement
• Copyright Infringement and the Internet

• Copyright notice should contain the word "copyright" (or the abbreviation copr. or symbol of letter C within a circle - ©)
• The year of publication must also be included
• The notice must contain the name of the copyright holder or owner
• The notice can be anywhere that "can be visually perceived" on all public copies

• Before the copyright holder can sue for infringement under the law, the copyrighted work must be registered with the federal government
• Author has 90 days to register a work and protect all rights
• May still sue for infringement if registered late, but cannot win statutory damages or win compensation for attorney’s fees

• The law simply states that anyone who violates any of the "exclusive rights’ of the copyright holder is guilty of infringement.
• Three criteria for the courts:
• is the copyright on plaintiff’s work valid? (originality)
• did the defendant have access to the work prior to the infringement?
• are the two works the same or substantially similar?

• Where common sources exist or the alleged similarities, or the material that is similar is not original with the plaintiff, there is no infringement
• The fact that something has not been done before does not necessarily mean that the idea itself is novel

• Plaintiff must prove that defendant had access to the stolen work

• Two-part test from U. S. Court of Appeals for 9th Circuit ruling in 1977:
• Are the two works about the same thing? If the ideas are not similar, there is no infringement.
• is there substantial similarity in the manner in which the ideas are expressed in the two works?

• The descendents of the road agents and highwaymen of old stalk the unwary along the information superhighway today.
• Digitized information can be copied quickly, easily and cheaply, with the copy quite literally every bit as good as the original.

Copyright Infringement and the Internet

• A federal court in Virginia ruled in 1995 that posting copyright material on the Internet was a copyright infringement
• The two major music rights organizations ASCAP and BMI do not grant rights for the use of their music in multimedia products.

• Plaintiffs may ask court to assess for any damages they have suffered, plus the profits made by the infringer.
• Plaintiff must prove the amount of loss or defendant’s profit.
• Plaintiff can ask the court to assess statutory damages (prescribed by law).
• Plaintiff may ask to impound or destroy copied works.
• Defendants may also be charged in criminal court.