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Intellectual Property 101

COPYRIGHT

Copyright issues arise in many situations, among them are:

  • A developer wants to protect his work, or
  • A developer wants to incorporate a protected work

Copyright is a form of protection afforded to authors of “original works of authorship” fixed in a tangible medium of expression including: literary, dramatic, musical, artistic, and certain other intellectual works.

Copyright protection arises automatically when an “original” work of authorship is “fixed” in a tangible medium of expression.

An idea cannot be copyrighted. Rather, it is the author’s expression of the idea that can be protected.

Registration is optional, but must be done before you file an infringement suit. Registration may also entitle you to receive attorneys’ fees, increased damages from intentional infringement.

1. The Copyright Act gives the copyright owner the exclusive right to do, and to authorize others to do, the following:

  1. To reproduce the original work;
  2. To prepare derivative works based upon the copyrighted work;
  3. To distribute copies of the copyrighted work;
  4. To perform the copyrighted work;
  5. To display the copyrighted work publicly; and, in with regard to certain works of art,
  6. To prevent any intentional distortion, mutilation, or modification of a work of visual art. Specifically: VISUAL ARTISTS RIGHTS ACT Prohibits:
    1. Intentional distortion, mutilation, other modification of work that would be; prejudicial to artist's honor or reputation;
    2. Destruction of work of recognized stature;
    3. Use of author's name on work not created by author;
    4. Use of author's name on work created by author, but modified in such a way that would be prejudicial to artist's honor or reputation.

  7. In the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

2. Determining the Copyright Owner:

  1. Generally, absent a writing to the contrary or a specific relationship between the parties, the copyright is owned by the person who creates the work. In the case of works “made for hire,” the employer, rather than the employee is the legal owner in and to the copyright.
  2. Works Made For Hire include:
  3.     
    1. a work created by an employee within the scope of his employment; and
    2. a work specially ordered or commissioned for use as:
      1. a contribution to a collective work;
      2. a part of a motion picture or other audiovisual work;
      3. a translation;
      4. a supplementary work;
      5. a compilation;
      6. an instructional text;
      7. a test; h) answer material for a test; or
      8. an atlas

3. The rights granted by copyright are subject to certain limitations, among which are:

  1. The Doctrine of Fair Use, which protects
    1. criticism;
    2. comment;
    3. news reporting;
    4. teaching;
    5. scholarship; or
    6. research
  2. Compulsory Licenses
  3. Public Domain
  4. Failure to register the copyright prevents an infringed party from sueing in Federal Court.
  5. The duration of the copyright is increasingly complex. For works created on or after January 1, 1978, as of 2004, for works created by an individual, life of the creator plus 70 years in the U.S. and Europe; for a Work Made For Hire, 120 years from creation, or 95 from publication, whichever expires first.  Works created under the 1909 law, before January 1, 1978 can achieve a term of up to 95 years.

TRADEMARK

A trademark is any word, name, symbol, or device, or any combination thereof used by a person or company to identify and distinguish its goods from those sold by others. Others may not, whether innocently or by intent, employ trademarks which are likely to confuse or deceive that merchant’s customers into buying something they did not want.

Can’t take credit for other’s work . . . Reverse palming off.

Obtaining Protection:
Federal trademark protection is available under the federal trademark statute, the Lanham Act. Application in the United States Patent and Trademark Office.

Federal Trademark Dilution Act/Cal. B&P Code §14330

State TM reg. Irrelevant to Web

Domain Names:

42 international trademark categories –v- 1.com?

Trademark/Domain Name disputes (McDonalds.com)

Current Domain Name dispute policy implemented by ICANN; see icann.org  legitimate registrars sign on.

RIGHT OF PUBLICITY

A multimedia developer must also be familiar with the several other areas of law that deal with the right of the individual to control his image and reputation

The right of publicity is the most important area of law for a multimedia developer. The right of publicity gives the individual the right to control the use of his name, face, image or voice for commercial purposes.

Example: Ford’s advertising agency tried to persuade Bette Midler to sing during a Ford television commercial. She declined. The agency hired Midler’s backup singer. The performance of the backup singer was so similar to Bette Midler that viewers thought Bette Midler was singing. On the basis of that confusion, she sued and won $400,000 in damages.

UNFAIR COMPETITION

However, a multimedia work may also take on a form that outpaces, or is outside the legal protection offered by these three traditional types of intellectual property protection. The law of unfair competition is an area of law that is important to today’s developer in that many of the newest multimedia works (e.g. virtual reality) are stretching the envelope of today’s technology, and consequently, traditional intellectual property laws. Should current statutory law fail to keep pace with these changes, and the author finds his work being exploited by others, the only protection that may be available is a claim under the law of unfair competition.

Example: A “virtual” world

Is the virtual world original for purposes of copyright?

Is the virtual world fixed for purposes of copyright?

TRADE SECRETS

In multimedia development, a trade secret may arise if the company develops a new type of software or hardware, or even a unique algorithm that is used in developing a multimedia work. Although these items may also be protectable by patent or copyright laws, trade secret protection offers something the others do not: potentially perpetual protection as long as the trade secret remains a secret.

Example: The Formula for Coca-Cola syrup

If the Coca-Cola Company had patented the formula (assuming that it had been patentable), it would have had to disclose the formula in its patent application, and that disclosure would have become a public record on issuance of the patent. Furthermore, patents expire. Instead, the Company decided to keep the formula a secret and force its competitors to try and reverse engineer the formula. To this day it is still a trade secret and is the basis for a multibillion-dollar business. In general, however, trade secrets are difficult to maintain.

Works Protected:
There are six factors used to determine whether information is a trade secret:

The extent to which the information is known outside the claimant’s business

The extent to which the information is known by the claimant’s employees

The extent of the measures taken by the claimant to guard the secrecy of the information.

The value of the information to the claimant and the claimant’s competitors

The amount of effort or money expended by the claimant in developing the information.

The ease with which the information could be acquired by others

Examples: Customer lists, instructional methods, algorithms, manufacturing processes, and methods of developing software.

PATENTS

Patent law protects a new and useful process, machine, manufacture or composition of matter, or any improvements thereof. A patent lasts from the date of issuance until twenty years from the date of filing and, in effect, gives the holder a monopoly over that invention for the term of the patent. Unlike copyright, independent discovery is not a defense to a patent infringement claim. Inventions and processes that are not patentable may be able to protected under trade secret law. As a matter of fact, patent applicants generally rely on trade secret law to protect their inventions while the patent applications are pending.

Multimedia Example: A design patent may be used to protect certain elements, such as the ornamental features of the screen display or user interface icons, provided the feature otherwise meets the requirements for patentability.


Copyright 1999

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