copyright law class 1 why bother?. why is copyright law relevant? impacts on economy huge. affects...

Copyright LawClass 1

Why Bother?

Why is Copyright Law Relevant?

• Impacts on economy huge.

• Affects “artistic, cultural and moral sensibilities.”

• It’s interesting.

• It’s challenging.

• It’s cool.

Copyright Law – Class 1© 2011 Anne S. Mason

Reactions to Pretty Woman Montage

• Theft?

• Free speech?

• Mocking artistic work?

• Free ride?

• Fair use?

• Public interest/value?


Andy Warhol Images

• Did he need permission from Campbell’s?

• Did he need permission from Marilyn Monroe?

• Does it matter if she was dead or alive at the time?

• Famous person/rights of privacy?

• Rights of publicity?

• Original works versus copied?


Martin Luther King• I have a dream speech - copyrighted?

• The written speech versus the oral speech - different treatment?

• What about people taping it? Recording it? Tweeting about it?

• Is the oral speech fixed in a tangible medium?

• Why does that matter?


Zapruder Film of Kennedy Assassination


• Public interest?

• Who owns?

• Historical fact/event?

• Fact versus fiction?

• Why does that matter?

Landslide• How come one band can “cover” the

song of another?

• What is the process?

• Why is it different from Pretty Woman scenario?

• Public policy issues?

• How does CR come into play at all?


Brands• Why are famous brands famous?

• What do they do?

• What are the issues with brands that are not the same as CR?− Protection of expression versus source

ID

• Trademarks arise from use in connection with goods and services.

• Words, names, symbols or devices.


Trademarks and Service Marks cont’d

• Don’t need registration; registration bestows rights.

• Unlimited duration so long as there is use.

• Federal registration gives rights that are nationwide in scope where used.

• Not exclusive to federal law - can register trademarks with states - intrastate commerce versus interstate.


Trademarks and Service Marks cont’d

• Cannot be deceptive, cannot be confusingly similar to another mark, and cannot be merely descriptive or generic (lots of limitations).− aspirin, band aid brand, Xerox—please stop using our

mark as a noun!

• Infringement = likelihood of confusion.

• Dilution, especially of famous marks.

• Domain names - function as a mark?

• What about _______sucks.com cases? Issues?

• Relatively expensive especially with searches - some flat fees $1,500.

• Office actions can lengthen time but generally 9-15 months.


Patents• Functional features of products and

processes.

• Protection arises with government grant of patent.

• 20 years from date of application.

• Novel, not obvious, has utility.


Patents cont’d

• Federal law only - federal court only.

• Expensive.

• Time consuming to get.

• Infringement = one who makes, uses or sells.

• No innocent infringer excuse. No independent creation excuse.

• Very expensive to litigate; Markman hearings and experts.

• Very good protections for 20 years - that’s the trade off.


Trade Secrets

• What are they?

• State laws control = look for statute.

• Indefinite so long as secret.

• Objective evidence of secrecy.

• Not commonly known in the particular industry.

• Independent creation and reverse engineering protections not there.


Publicity

• Check state laws.

• Dead or alive?

• Rights of privacy interact.

• License.

• What happens when the celebrity falls from grace?


Other State Laws Offer Protection

• Contract

• Unfair competition

• Misappropriation

• In rem actions (take a domain name)


Copyright

• Covers expression and not ideas!

• Federal law - federal court.

• Preemption issues with state law complex.

• Covers certain works of authorship.

• In same clause as patents in the constitution.

• To promote the useful arts and sciences = goal; fosters conflict with individual rights.


Copyright cont’d

• Cheap and fast to procure ($35!)

• Can do on-line.

• Infringement is violation of exclusive rights - so know what those rights are.

• Defenses like fair use have been codified.

• Damages, treble damages, and impoundment and destruction of goods.

• US Customs assistance available.Copyright Law – Class 1© 2011 Anne S. Mason

1909 Act Versus 76 Act

• 1909 had dual track depending on whether published or not published.

• Federal system protected published works.

• State law protected unpublished works.

• 76 Act (effective 1/1/78) gives rights upon fixation not publication.

• Eliminates common law copyright.


Copyright cont’d• Original works of authorship.

• Now can grant rights in parts - don’t have to license all rights in a bundle.

• Duration under 76 Act is life + 70 versus two 28 year terms in 1909.

• Formalities - if no notice on work under 1909 Act you dedicate to public domain forever. Same with 76 Act. Changed with entry in Berne 3/1/89.

• Notice now not required.


International Issues• No universal copyright laws.

• Look to the laws of the country where the work is to be sold.

• Look to treaties between nations.

• Berne applies to published and unpublished works.

• Does not apply in the country of origin.

• Life + 50 years is minimum.

• Moral rights.


In Sum• Big three of intellectual property =

Patent, Trademarks and Copyright.

• State law protections may apply.

• National system at International level.


copyright law class 1 why bother?. why is copyright law relevant? impacts on economy huge. affects...

Documents