Intellectual Property Copyright and Trademark

What Can be Copyrighted?

1. Literary works 2. Musical works and accompanying music 3. Dramatic works and accompanying music 4. Pantomimes and choreographic works 5. Pictorial, graphic, and sculptural works 6. Motion pictures and other audiovisual works 7. Sound recordings 8. Architectural works

4 Part Test

1. The purpose and character of the use 2. The nature of the copyrighted work 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole 4. The effect of the use upon the potential market for or value of the copyrighted work.

Transfer

A copyright ownership may be transferred, but it must be in writing and signed by the transferor. In some cases, one may transfer non-exclusive rights to a work, which would not be a transfer of copyright ownership, but rather the granting of a license. The granting of a license can be either through writing or verbal.

What Cannot be Copyrighted

Any "idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied."

Fanciful, Arbitrary, and Suggestive Trademarks

Are inherently distinctive.

Starbucks Corp v. Lundberg, 2005

Coffee shop owner in Oregon operated a business called "Sambuck's Coffeehouse" Starbucks Corp. filed a lawsuit against the owner of Sambuck's alleging trademark dilution. The Federal District Court for the District of Oregon held in favor of Starbuck's because it created confusion for consumers.

Federal Trademark Dilution Act of 1985

protects "distinctive" or "famous" trademarks and allows trademark owners to bring suit in federal court against unauthorized use of an identical or similar mark.

Service Mark

trademark that is used to distinguish the services (rather than the products) of one person or company from those of another.

Fair Use Exception

In some cases, individuals or organizations can produce copyrighted works without paying royalties to the copyright holder.

Collective Mark

Mark used by members of a cooperative, association, or other organization.

Generic Terms

Never receive trademark protection, even if they acquire secondary meaning.

Copyright

Protects the property rights of authors and originators of original work that is "fixed" in a durable medium of expression.

Lanham Act

Protects trademarks at the federal statutory level.

Who owns copyrights?

The author of a work owns the copyright in it, but can transfer some or all of the rights associated in it. If it is a "joint work", both authors own a single copyright in the work. - Exception : "work for hire"

Certification Mark

Used by one or more persons, other than the owner, to certify the region, materials, mode of manufacture, quality, or other characteristics of specific goods or services.

Collective Works

Where a work consists of separate, independent, individual works of authorship. Each of the authors in a collective work enjoy copyright in their individual work.

Duration of Copyrights

Works created after January 1, 1978, are given protection for the life of the author plus 70 years.

Secondary Meaning

Descriptive terms, geographic terms, and personal names are not inherently distinctive and do not receive protection under the law until they acquire a secondary meaning.

Trademark

Distinctive mark, motto, device, or implement that a manufacturer stamps, prints, or otherwise affixes to the goods it produces so that they can be identified on the market and their origins made known. Essentially, a trademark is a source indicator and must be distinctive.