Legal Issues In Graphic Design ver. 2

Jeffrey M Glazer
Attorney, Glazer Legal Services
jmg@glazerlegal.com
608-277-1778
Erin R. Ogden
Attorney, Murphy Desmond, S.C.
eogden@murphydesmond.com
(608) 268-5595

Disclaimer
Not Legal Advice – this presentation is for informational purposes
All quoted prices are approximate and subject to change
You may get bored

Legal Issues in Graphic Design
Trademarks
Copyrights
(Design) Patents
Artist Releases

Trademarks
Anything that designates source of origin
Tradenames (International Business Machines)
Brandnames (iPod)
Logos

Trademarks
More obscure mark types
Slogans (“The World Needs A Coke”)
Colors (UPS/Brown)
Sounds (Harley Engine)
Even More Obscure Mark Types
Family of Marks (“Mc”)

Trademarks
How do I protect this awesome designator of source of origin?
Preliminary Search (3-5 “top designs”)
$150-300
Full Availability Search (final design)
$600-800; $500 fees

Trademarks
Protection, Pt 2
™
Application to USPTO
Typically about $750; with about $350 of that in USPTO fees
Office Action Responses
Publication
Opposition
Registration
®

Trademarks
How Long Is My Registration Good For?
Forever
But…
Section 8 and 15 Application in the 5th year
Section 8 and 9 Application in the 9th year
Section 8 and 9 Application every 10 years after that

Trademarks
So what does all this money get me?
Prevent Consumer Confusion

Trademarks
Market differentiation (Polaroid Factors)
Relative strength of the marks in question
Degree of similarity of the marks
Proximity of products
Products will “bridge the gap” between each other
Actual confusion
Good faith in adopting the marks
Quality of the products in question
Consumer sophistication

Trademarks
When is not infringement, infringement?
“Famous” marks
Dilution
Tarnishment
Victor/Victoria: Victoria’s Secret and Sex Toys

Copyright
Does protect: “original works of authorship”
Does not protect: the idea itself
Examples:
Books
Non-trade art and design
Music/video (script/song v performance)
Websites/software (code v design/GUI)
Layout

Copyright
Bundle of Rights
Reproduction
Distribution
Public Performance
Public Display
Derivative Works
How
© Date. Owner.
Registration

Copyright
Why protect copyrights?
Grant of monopoly for life of copyright within the bundle of rights
Life of Copyright
Life + 70 yrs (last surviving author)
95 years from publication or 120 years from creation; whichever is shorter
Infringement: any action within the “bundle of rights” taken by anyone without permission
Includes: copying, distributing, performing, displaying, or creating “derivative works”

Copyright
Derivative Work: Based upon one or more pre-existing works
Examples
Movie versions of books
“Cliffs Notes”
Dramatization
Elaborations and condensations

Copyright
“Substantially Similar”
Direct copying: photocopy/exact reproduction
Indirect/unconscious copying: not knowing about prior work is not a defense
Derivative Works: escape liability if prior work is “unrecognizable” in the new work

Copyright
Fair Use Defense
It is a defense, which means that absent fair use it is infringement; as opposed to uses which are not infringing at all
Purpose and character of use
Nature of the copied work
Amount and substantiality of copied work
Effect on work’s value
Very difficult to determine ahead of time
Parodies and satire
Reviews and education
Time-shifting

Case Study

Design Patents
Ornamental design of a functional item
A design consists of the visual ornamental characteristics embodied in, or applied to, an article of manufacture.
The subject matter of a design patent application may relate to:
The configuration or shape of an article,
To the surface ornamentation applied to an article, or
To the combination of configuration and surface ornamentation.
Protects only the appearance of the article and not structural or utilitarian features
Like what?
Fonts
Coca-Cola bottle
Signs

Design Patents
Ornamental design of a functional item
May be embodied in an entire article
Bottle
Only a portion of an article
Part of a sign silhouette
Ornamentation applied to an article.
Patterns on item
A design patent application has a single claim
In general terms, a “utility patent” protects the way an article is used and works. A "design patent" protects the way an article looks
Both design and utility patents may be obtained on an article

Design Patents
First Sale Doctrine and Exhaustion
The first unrestricted sale of a patented item exhausts the patentee's control over that particular item
Downstream use may be restricted by contract
Implied License
A license to practice an invention will be implied when the patentee (or its licensee) sells a device that has "no non-infringing uses" under circumstances that "plainly indicate that the grant of a license should be inferred.“
Both are affirmative defenses

Artist Releases
Invasion of Privacy
Intrusion upon seclusion (invade physical quarters)
Public disclosure (disseminate private information)
False light (not defamatory because it’s true)
Appropriation of name/likeness
Requires person’s consent to use for commercial gain
“Artist Release and Consent” – allows image/name to be used for commercial gain

Thank you!
Any Questions?
Feel free to e-mail or call.

http://www.glazerlegal.com	19
http://glazerlegal.com	8
http://madisonbeerreview.com	8
http://www.slideshare.net	4
https://p3slhsccweb.secureserver.net	3
http://legal.glazerlegal.com	2
http://www.demarblaw.com	1

Legal Issues In Graphic Design ver. 2

by Jeffrey Glazer on Mar 01, 2010

Accessibility

Upload Details

Usage Rights

7 Embeds 45

Statistics

Legal Issues In Graphic Design ver. 2 — Presentation Transcript