COPYRIGHTS & TRADEMARKS OUTLINE
Long – Fall 2008
INTRODUCTION
I INTELLECTUAL PROPERTY à 4 forms of IP protection in US
A. Patentsà protection for any new and useful process through machinery, composition of matter or mfg, or any new and useful improvement
1. 3 Requirements:
a. Noveltyà not been anticipated in previous publications or inventions
b. Non-Obviousnessà invention would not be obvious to a person having ordinary skill in the relevant art to which the subject matter pertains; AND
c. Usefulnessà must perform whatever task it alleges to perform.
2. Rights Grantedà merely granted the right to prohibit others from using her invention without authorization.
3. Duration à 20 yrs only
B. Copyrights à to qualify the work must be an original work of authorship fixed in a tangible medium of expression.
1. 3 Requirements:
a. Fixedà must be expressed, not an idea
b. Originalà certain level of creativity = modicum of originality
1. Less than novel from patent law
2. Must come from the author
c. Authorizedà Works of authorship
2. Rights Grantedà exclusive rights to authorize or:
a. Reproduce the work or make derivative works
b. Display the work publicly including performance and distribution through digital medium.
3. Durationà lasts for 70 years after the death of the author.
Copyright – 17 USC 102(a)
Derivative Work – 17 USC 101
Public Domain – 17 USC 102(b)
Requirements:
(1) Original
(2) Fixed
(3) Authorized
Def: artistic creation that includes major, basic copyrighted aspects of an original, previously created first work
Standard: copyrights for derivative works are a higher standard than normal works = substantial variation = higher than modicum of originality
Too Old;
Ideas;
Facts and research;
C. Trademarks à protect expression that serves as a source designator for goods and services. Extends to any word, name, symbol, or device, or any combination.
1. 4 Requirements:
a. Symbol is distinctive;
b. Symbol is source designation;
c. Currently in use; AND
d. In interstate commerce (if you want federal TM protection).
2. Distinctivenessà mark must be capable of distinguishing the goods or services of one undertaking from those of another.
3. Rights Granted à exclusive right to use the mark in connection with those goods or services for which the mark has been used.
4. Duration à for as long as the mark continues to serve as a source designator
D. Trade Secretsà any info that is kept secret and not generally known in the Indus.
1. Requirementsà the info must not be generally known in the relevant Indus. And must have been subject to reasonable steps under the circumstances by the person in control to keep it secret and it must have value due to its secret nature.
2. Duration à for as long as the owner keeps it secret
II PREEMPTION
A. Supremacy Clause = Federal Law Prevailsà Supremacy clause states that state laws that conflict with federal laws are void.
B. COPYRIGHTS
1. Copyright Act §301à Congress sought to unify copyright protection and federalize it, thus, the Copyright Act expressly preempts state causes of action that duplicate copyright protection.
a. Preemptionà state cause of action is preempted by federal law if it:
1. Protects matter that is within the subject matter of copyright as set forth in the Copyright Act; AND
2. Provides rights that are equivalent to the economic rights specified in 17 USC §106 of the Copyright Act.
C.
t
d. Sections Outline:
1. 101 = Definitions
2. 102 =
3. 106 = what are the rights you get
4. 107 = fair use
5. 200 = who owns the work for hire
6. 1978 Digital Millennium Copyright Actà added significant private protection mechanisms to control the access and use of digital works.
7. March 31, 1989 – No Notice à no more notice required
B. CONSTITUTIONAL BASIS FOR COPYRIGHT PROTECTION IN US
1. Patents and Copyrights Clause – Art I, Sec. 8, Cl. 8àpromote progress of science and the useful arts, by securing for ltd times to authors and inventors the exclusive right to their respective writings and discoveries.
a. 3 Goals of Copyright Law:
1. Promotion of Learningà promotes public access to knowledge because it provides an economic incentive for authors to publish books and disseminate ideas to the public.
2. Protection of the Public Domainà serves dual purpose of ensuring that work will enter public domain and ensuring that the author has received a fair return for his labors.
i. Motivate creativity of authors and allow public access to the genius
3. Grant Exclusive Right to Authorà grants author limited rights in order to encourage creation of orig works
i. Guarantee copyright to author for limited time, but author never owns the work itself
