Copyrights
Copyright laws protect different types of original expressions including art, sculpture, literature, music, songs, choreography, poetry, software, photography, crafts, movies, video games, videos, websites, architecture and graphics. Protection is automatic when you place it into a medium. However, this automatic protection is increased when you register your work with the U.S. Copyright Office for a fee which currently is $30.
What is Copyright?
A copyright gives the owner the right to keep others from unauthorized use of the work. Under copyright law, a creative work must meet all of the three criteria to be protected:
1. It must be original in that the author had to create it rather than copy it.
2. It must be fixed in a tangible medium of expression such as expressed on paper, recorded, filmed, painted on canvas, written or recorded onto a computer disk.
3. It must have at least some creativity produced by an exercise of human intellect. There is no hard, fast rule as to how much creativity is enough.
Copyright does not protect ideas or facts. It protects only the unique way in which ideas or facts are expressed. For instance, copyright may protect an author’s science fiction novel about a romance between an earthling and a space alien, but the author cannot stop others from using the underlying idea of an intergalactic love affair.
How is a copyright created?
A creative work is protected by copyright the moment the work assumes a tangible form referred to as “fixed in a tangible medium of expression.” It is not necessary to obtain basic copyright protection by registering with the U.S. Copyright Office but there are two steps that can be taken to enhance the creators ability to sue or stop others from copying:
1. Place a copyright notice on a published work. This is commonly done by placing a © 2007 (the year of publication followed by the author’s name or other basic copyright owner. On your keyboard, in order to make the © sign, hit the left parenthesis sign, followed by the letter c, then the right parenthesis sign.
2. Register the work with the U.S. Copyright Office. Timely registration within three months of the publication is important in that any infringements can be easier to prosecute allowing for the copyright owner to recover up to $150,000 and possibly attorney fees without proving actual monetary damage.
How long does copyright protection last?
In 1998, Congress passed the Copyright Term Extension Act which allows most works published after January 1, 1978 to last for the life of the author plus 70 years. The exceptions to this rule are:
- The work belongs to the author’s employer under work-made for hire principles
- The work was commissioned under a work made for hire agreement and fits within one of the categories of works that qualify for work made for hire treatment
- The author published and registered the work anonymously or under a pseudonym.
After a copyright expires, the work goes into the public domain, meaning it becomes available to everyone. For works created before 1978, there are a multitude of rules that guide their legal use:
- If published before 1923, it is in the public domain
- If published between 1923 and 1963 and not renewed, it is in the public domain
- If published between 1923 and 1963 and renewed, the copyright last 95 years from the renewal date
- If published from 1964 to 1977, the copyright last for 95 years from the published date
- If created before 1978 and published before
- If created before 1978 and not published before
Copyright Resources on the Internet
- www.nolo.com (click Legal Encyclopedia and click “intellectual property”)
- www.findlaw.com (click “intellectual property” and then click “copyright”)
- www.copyright.gov (offers forms, circulars and huge amounts of helpful info)
- www.benedict.com (offers actual examples)
- http://fairuse.stanford.edu (provides a thorough overview of copyright and fair use)
Trademarks and Service Marks
Trademarks are a legal set of rules by which businesses protect the names, logos and other commercial signifiers used to identify their products and services. One of the principle goals of trademarks is to prevent consumers from being confused in the marketplace. Although not necessary to register your unique name or logo to establish ownership, it can become an expensive legal case if there is question to its legitimate owner. The cost to register a trademark is $325 through the website of the U.S. Patent and Trademark Office.
What are Trademarks, Service Marks and Trade Dress?
- A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods or one party from those of others.
- A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product.
- A trade dress is a distinctive shape of a product such as a Coca Cola bottle, the yellow color of Kodak or the distinctive motif of Levi’s.
What is Trademark Law?
Trademark law addresses the overlapping and conflicting use of trademarks, service marks and trade dress by different businesses. Usually, trademark laws are applied to resolve disputes when competing businesses adopt similar product names or logos. The rules for resolving these disputes usually favor whichever business was first to use the name, logo or trade dress. Trademark laws are governed by both state and federal regulations.
What kinds of trademarks and service marks receive protection?
Trademarks become distinctive in two ways: they originate as inherently distinctive or they achieve distinction through sales and marketing. Inherently distinctive trademarks don’t necessarily describe the goods or service for which they are used such as Google for the Internet or Brooks Brothers for clothes.
- Inherently Distinctive Trademarks consists of:
Ø Unique logos or symbols
Ø Words that are created specifically as a mark such as Google, Xerox, Kleenex
Ø Common words that are used in a surprising or unexpected manner such as Amazon for retail services and Diesel for clothing
Ø Words that cleverly connote qualities about the product or service without literally describing these qualities such as Slenderalla for diet foods or Netscape for browser.
- Achieve Distinction through sales and marketing consists of:
Ø Terms that attempt to literally describe the product or its characteristics such as ComputerLand for a computer store, DiscoLandia for a music shop.
Ø Surnames such as Newman’s Own, Charles Schwab
Ø Geographic terms such as Pacific Gas and Electric, Southwestern Bell Corporation
Distinctive marks become distinctive if they achieve significant public recognition through exposure in the marketplace. A mark that has become distinctive in this way is said to have acquired a “secondary meaning.”
How is trademark ownership determined?
As a general rule, a mark is owned by the business that is first to use it in a commercial context. After the first use, the owner may be able to prevent others from using it or a similar trademark as long as the first owner continues to use it in connection with its goods and service. The rights of the trademark owner – especially for a trademark that is not registered with the federal government may be limited by the geographic extent of the use.
First use can be established by filing an “intent-to-use” trademark registration application with the U.S. Patent and Trademark Office. The filing date of the application will be considered the date of first use fi the applicant puts the mark into actual use within required limits – usually between six months and three years depending on the reason for the delay and whether the applicant seeks and pays for extensions) and follows up to obtain an actual registration.
Trademark Resources on the Internet
- www.nolo.com (click onto Legal Encyclopedia and click on Intellectual Property)
- www.findlaw.com (click Intellectual property link and click on trademarks)
- www.uspto.gov (the federal website where you can get latest info, fill out an application)
- www.inta.org (the International Trademark Association provides online resources)
Patents
A patent is a grant issued by the United States government giving an inventor the right to exclude all others from making, using or selling his or her invention within the United States, its territories and possessions. Patents were established to help various industries develop and expand, and thus, building a vibrant national economy. Every industrial country encourages innovations and the opportunity for its inventors to have exclusive rights to their intellectual property.
For a patent to be protected outside of the United States, the patent holder must file in each country he wants his patent protected. In addition, the patent holder must show that he has a “working” model that is produced for use either privately or publicly. Holding onto a patent without producing anything may be considered an invalid patent in some countries. An imitator may win patent rights if it’s proven that you, as the inventor, has yet to (or showed no intention) of putting your patent to commercial use.
The Three Kinds of Patents
- Utility patents are for new and useful processes, machines, manufacturing, composition of matter or any new and useful improvement of existing utility patents.
- Design patents are granted to any new, original and ornamental design for an article of manufacture.
- Plant patents are granted on any distinct and new variety of asexually reproduced plant.
Utility and plant patents are effective for 20 years from the date of application. Utility patents are subject to payment of maintenance fees. Design patents are effective for 14 years from the date of issue. The basic filing fee for filing an application is dependent on the type of patent application and whether or not the applicant is entitled to status as a small entity (independent inventor, small business or nonprofit organization). Maintenance fees on utility patents are due 3.5, 7.5 and 11.5 years from the date of a patent is granted.
Applications are assigned to examiners who are experts in various fields of technology. The examiner researches previous patents and technical literature to determine whether a patent should be granted. The procedure usually takes more than two years. Before filing an application, you or your representative may search previous patents at the California State Library Patent and Trademark Depository search room.
The Patent and Trademark Office strongly advises consulting a patent attorney before filing an application. Names of patent attorneys may be found in a publication called “Attorneys and Agents Registered to Practice Before the U.S. Patent and Trademark Office.”
Details Necessary for a Patent Application
The applicant must make full disclosure on his invention in order to receive eligibility for the patent. The information needed includes:
- Background information on the invention
- The nature of any technical problem solved by the invention
- A detailed description of the invention and how it works
- Illustrations of the invention where appropriate.
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