Copyrights 101


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A presentation to IABC Houston Entrepreneurs SIG on 14 April 2011 by Sunisha S. Choksi, Attorney at Law

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Copyrights 101

  1. 1. Provided by courtesy of:The Law Office of Sunisha S. Choksi 4601 Washington Ave., Suite 200 Houston, Texas 77007 Phone: (832) 319-6724 Fax: (832) 319-6714
  2. 2. WHAT IS A COPYRIGHT?An original, creative expression (work ofauthorship) affixed to a tangible medium.A type of intellectual property protectionestablished by the U.S. Constitution.... Article I, Section 8, Clause 8 Empowers the United States Congress “ 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.”
  3. 3. A COPYRIGHT PROTECTS ORIGINAL & CREATIVE...Literary worksMusical works, including any accompanying wordsDramatic works, including any accompanying musicPantomimes and choreographic worksPictorial, graphic, and sculptural worksMotion pictures and other audiovisual worksSound recordingsArchitectural worksComputer programsMaps Author has to have exercised some independent, intellectual effort to claim a copyright in a given work.
  4. 4. A COPYRIGHT DOES NOT PROTECT... Works not fixed in a tangible form Facts Ideas Concepts Systems Methods of operation Short phrases, slogans, titles and names Mere listing of ingredients Familiar symbols & designs Typographical ornamentation, lettering or coloring Information that is common property- ex. lists or tables taken from public documents from Fed. Govt.
  5. 5. WHEN COPYRIGHT PROTECTION VESTS At the moment creation + original work of authorship fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device. Ex. Print copy, digital fileThe copyright immediately becomes the property of the author(s)who created the work. Registration of work of authorship withthe Copyright Office not required to establish a copyrightprotection.
  6. 6. "BUNDLE OF RIGHTS" AFFORDED TO COPYRIGHT OWNERS The exclusive right to... Reproduce the work (make copies), Prepare derivative works, Distribute copies of the work, Publicly perform the work & Publicly display the work.
  7. 7. WHAT IS A DERIVATIVE WORK?Defined in 17 U.S.C. § 101: A work based upon one or more pre-existing works, such as- translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.A work consisting of editorial revisions, annotations, elaborations,or other modifications which, as a whole, represent an originalwork of authorship, is a “derivative work”.
  8. 8. HOW LONG DOES A COPYRIGHT LAST?It Depends... All works published in the U.S. before 1923- In the Public Domain Generally, works published after 1922, but before 1978: 95 years from the date of publication For an Individual- All works published after 1977: Life of the author + 70 years For Corporate Authorship under “Work for Hire” or specifically commissioned, after 1977: 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first For works published anonymously or under a pseudonym, after 1977: 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first
  9. 9. CORPORATE AUTHORSHIP- WORKS MADE FOR HIRESection 101 of the copyright law defines a “work made for hire” as A work prepared by an employee within the scope of his or her employment or A work specially ordered or commissioned for use as a Contribution to a collective work, Part of a motion picture or other audiovisual work, Translation, Supplementary work, Compilation, Instructional text, Test, Answer material for a test, or Atlas, And if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
  10. 10. COPYRIGHT NOTICEConsists of the symbol or word “copyright (or copr.),” thename of the copyright owner, and the year of firstpublication: © 2011 Company, Inc.Once required as a condition of copyright protection; nowoptional though highly recommended to give actualnotice of copyright claim.DO NOT require registration with, the Copyright Office touse copyright notice.
  11. 11. THE BENEFITS OF REGISTERING COPYRIGHTS Registration not required, but a # of advantages...1. Establishes a public record of the copyright claim.2. Before an infringement suit may be filed in court, registration necessary for works of U.S. origin.3. If made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.4. If registration is made within 3 months after publication or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.5. Can record registration with U.S. Customs Service for protection against the importation of infringing copies. GIVES COPYRIGHT OWNER BETTER ENFORCEMENT MEANS TO PROTECT COPYRIGHTED WORKS
  12. 12. COPYRIGHTS AS BUSINESS ASSETS- ASSIGNMENTS AND LICENSESAny or all of the copyright owner’s exclusive rights may betransferred. The transfer of exclusive rights (exclusivelicense or assignment) is not valid unless that transfer is inwriting and signed by the owner of the rights conveyed orthe owner’s authorized agent.Copyrights may also be conveyed by operation of law andmay be bequeathed by will or pass as personal property bythe applicable laws of intestate succession.Types of transfers: Licenses – Owner retains copyright but allows 3rd parties the right to use copyrighted content under certain terms and conditions. Assignment- Owner transfers all rights, title & interest to a 3rd party.
  13. 13. COPYRIGHT INFRINGEMENTViolation of the “bundle of rights” afforded to the copyright owner.Alleged Infringer- Anyone who, without the permission or consent of the copyright owner... Reproduces the work (make copies), Prepares derivative works, Distributes copies of the work, Publicly performs the work &/or Publicly displays the work.Prove infringement by showing: 1) infringer had access to the copyrighted work & 2) infringer’s work is substantially similar to the copyrighted work.
  14. 14. INFRINGEMENT-FAIR USE (SECTION 107 OF THE COPYRIGHT LAW)Reproduction of a particular work may be considered fair when: Criticism Commentary News reporting Teaching Scholarship ResearchParody (often found by courts to be “fair use”)Section 107 also sets out four factors to be considered indetermining whether or not a particular use is fair: The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes. The nature of the copyrighted work. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. The effect of the use upon the potential market for, or value of, the copyrighted work.
  15. 15. DMCA TAKE DOWN NOTICE PROVISION Created under the Digital Millennium Copyright Act as a “Safe Harbor” provision to shield Internet Service Providers (ISP) from contributory infringement. ISP required to maintain and record information with the U.S. Copyright Office regarding their DMCA agent designated to address copyright infringement issues. Copyright owners can demand removal of allegedly infringing content by sending a take-down notice to ISP’s designated DMCA agent. If complete, ISP will either remove or disable website containing alleged infringing work.
  17. 17. WHAT IS A TRADEMARK?A Trademark can be… a word, ex: “EXXON” for oil products a phrase, ex: “JUST DO IT” for sports apparel a symbol, ex: the NIKE “Swoosh” for sports apparel a design, ex: The DISNEY “Cinderella Castle” for children’s toys
  18. 18. WHAT IS A TRADEMARK?As well as… sounds, ex: NBC chimes 3D objects, ex: the Coca-Cola bottle or a combination of the above, that identifies and distinguishes the source of the goods of one party from those of others.
  19. 19. WHAT IS A SERVICE MARK? Like a trademark, except that it identifies and distinguishes the source of a service rather than a product. Throughout this presentation, the terms "trademark" and "mark" refer to both trademarks and service marks.
  20. 20. A trademark is never a word or logo by itself…itis used to identify specific goods and services.Helps your customers to make purchasingdecisions regarding your goods and servicesbecause of a prior experience with the products orfrom recognition of a marketing or advertisingcampaign.There is an expectation by the customerregarding the quality associated with thebranded products or services. (Good Will)
  21. 21. KEY POINTS TO REMEMBER ABOUTTRADEMARKS: Function as a source identifier of the goods and/ or services that your business offers in the market place. Create tangible business assets related to the goodwill and reputation generated by the use of mark. Is a type of property right that can be sold, transferred, and/or licensed creating additional streams of revenue for your business. An important business asset that you want to protect from competitors. Want to avoid a likelihood of confusion by consumers with competitors’ brands.
  22. 22. WHEN CAN I USE THE TRADEMARK SYMBOLSTM, SM AND ® IN THE UNITED STATES? "TM" (trademark) or "SM" (service mark): Use any time you claim rights in a mark, in order to alert the public to your claim, regardless of whether you have filed an application with the USPTO. Be aware of conflicts with prior, senior users. Federal Trademark Registration symbol "®": Use only after the USPTO actually registers a mark, and not while an application is pending. Also, you may use the registration symbol with the mark only on or in connection with the goods and/or services listed in the federal trademark registration.
  23. 23. IS REGISTRATION OF MY MARK REQUIRED INTHE UNITED STATES? No. You can establish rights in a mark based on legitimate, actual use of the mark in commerce. This is based on common law rights you develop in a mark if you are the senior user of the mark in conjunction with specific goods and services in the commerce. However, there a number of benefits to registering you trademarks.
  24. 24. REGISTERING YOUR BUSINESS’TRADEMARKS- LOCATION MATTERS You can also register your trademarks at the state level, federal level, as well as in foreign markets, depending on the type of commerce your business is engaged in. If just selling goods and services in Texas to Texas customer…engaging in intrastate commerce…can file for a state trademark registration. If selling goods over seas markets, such as UK or Mexico…may want to register for trademarks in those countries.
  25. 25. BENEFITS OF REGISTERING YOUR TRADEMARKS— U.S. FEDERAL TRADEMARK REGISTRATIONOwning a federal trademark registration on the Principal Register provides several advantages: constructive notice to the public of the registrants claim of ownership of the mark; a legal presumption of the registrants ownership of the mark and the registrants exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration; the ability to bring an action concerning the mark in federal court; the use of the U.S registration as a basis to obtain registration in foreign countries; and the ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods.
  26. 26. FIRST STEP IN THE TRADEMARK PROCESS-BRAND SELECTION…NOT ALL TRADEMARKS ARECREATED EQUAL. Marks that are made-up, fanciful, arbitrary, or suggestive marks are inherently distinctive, and are given greater weight in enforcement of trademark rights. Ex: KODAK for film products. With some exceptions (secondary meaning & acquired distinctiveness), descriptive words or designs that convey an idea about the quality, characteristic or ingredient of the good or service the mark is used in conjunction with are weak trademarks and are afforded little protection. Ex: COMPUTER-FIX-IT for computer repair services.
  27. 27. Generic words or designs that are the common words or designs for the good or service offered or sold have NO TRADEMARK PROTECTION.Ex. WINDOW CLEANERS offering window cleaning services will not be afforded any trademark protection because the word elements are essentially the generic or common words to describe the service offered.
  28. 28. HELPFUL WEBSITESU.S. Copyright Office- www.copyright.govUnited States Patent & Trademark Office- THANK YOU!