LEM: Intellectual Property

legal environment and business notes for intellectual property

what is copyright and what does it cover

the right to copy; covers ideas fixed in a tangible form

what is a trademark and provide examples

a symbol, phrase, word, etc. that identifies a business and differentiates them in the marketplace; covers, logos, slogans

what are trade secrets and give an example

formula, pattern, method, technique, or process that a business uses that is kept secret from all outsiders; Coke-a-cola recipe

what do patents do

give the owner of a machine used to create and display films, recordings, broadcasts, etc. the right to decide how and if their inventions can be used by others

how do you get a patent and how long do they last

owner must publish a patent document stating publicly all the technical information about the invention; lasts 7-18 years (kinda)

are broad ideas (like tropes) protected under Intellectual Property laws

no; they have to specific

what is an express contract

a contract where a document exists that defines what is being disclosed and the compensation

what is an implied contract

the conduct of the parties establishes the relationship (DO NOT DO THESE)

what do releases do, when are they most commonly used, and who chooses them

they define the relationships and remedies in the event of a dispute; most used during disputes between partners of a contract; they are used through arbitration or mediation, generally chosen by the party with the most money

english copyright is more about _________ than protecting ___________

power; intellectual property

what is the statue of anne

copyright act in 1970 that allowed 14 years of protection with a 14 year renewal (28 years total)

how long do the current copyright protections last

life of the author plus 70 years

what are the copyright requirements

must be something that can be protected by copyright (books, movies, scripts, compositions, etc.), must be in a tangible form of medium or expression (can be touched and reproduced), and must be an original work of authorship

what is the term wilbur uses to describe the amount of originality that must be in a work of authorship that is trying to get copyright protected

“peppercorn’s worth of originality”

what must derivative works do in order to become copyright protected

must add something to the original and get approval from the owner of the original stuff

what is the Berne convention

made it to where pieces of work were automatically protected when fixed into a tangible form, to where all countries must protect the copyrights of authors from other countries in a similar way they protect their own citizen’s work, and a no notice requirement (no little symbol)

what has to happen with a piece of authorship for it become copyright protected

must be registered with the library of congress

first best evidence that would be used in court to prove something

prima facie evidence

can copyright ownership be given to multiple people for the same authorship

yes; the creator is considered the “owner”, but joint authorship and work for fire also exist

what is joint authorship

two or more authors create an inseparable work

what are the six copyright ownership grants

• the right to copy/reproduce

• the right to derivative works

• the right to distribution

• the right to public display

• the right to publicly perform

• the right to digitally distribute and transmit

• EXTRA: the right to license these rights to another party or company

describe the right to copy/reproduce

• nobody besides the copyright owner may make any reproductions or copies of the work, allowing them explicit access to who can make copies of their work.

• this gives the owner of the copyrighted material the ability to sue for infringement if anyone steals or copies their work.

• it is crucial for incentivizing creativity and ensuring that creators can benefit form their work,

describe the right to create derivative works

• the exclusive right of a copyright holder to adapt, modify, or transform their original work into new creations like translations, sequels, or adaptations

• is only permitted with the copyright owners permission.

• allows the owner the right to sue whoever uses the work without their permission for infringement.

• allows the original creator the ability to benefit financially and artistically from any new creations based on their original work and protect the integrity of their work

describe the right to distribute

• exclusive right of the copyright owner to control how and where their work is made available to the public by sale, rental, lease, or lending

• the copyright owner can control the first public distribution of their work

• the copyright owner can prevent unauthorized distribution of copies of their work

• ensures that the creator of the work can benefit from their work through sales or licensing agreements

• combats piracy and protects the creators intellectual property

describe the right to public display

• an exclusive right of a copyright holder that allows them to control how their work is visually presented to the public

• this includes in public spaces, on websites, etc.

• grants the holder the right to sue for infringement when someone publicly displays their creation without their permission

• ensures the copyright holder can profit from their work

• prevents unauthorized use

• incentivizes artists to produce new works and protect their existing works and income

describe the right to publicly perform

• legal right granted to copyright holder to authorize the public performance of their work, such as movies, music, or plays

• gives the owner the ability to control who can show and perform their creations

• a license must be obtained to perform the creation publicly

• allows the owner to control where they content is shown allowing them to protect their image if it is shown somewhere without their permission

• gives the owner the right to collect a performance fee if their copyrighted material is performed (played) in a public place (collected by PROs; ASCAP, BMI)

describe the right to digitally distribute and transmit

• the exclusive right of a copyright holder to control the digital publication of their creation

• right to publish a digital copy of something, whether its online, CD, or DVD

• copyright holders most likely have to have licensing agreements with digital distribution platforms

• allows the creator the right to control which platforms to distribute their work on, set pricing, and manage geographic restrictions

• allows the creators to easily share their work with larger audiences without worrying about their music getting pirated or stolen

• gives copyright owners the ability to earn income off their work from digital distributions

how long did copyrights last before 1978

28 years with possibility of renewal for an additional 67 (95 total)

what happens after copyright expires

the work enters the public domain and can be used by anyone

how do courts prove infringement

• the work is indeed available for copyright

• the plaintiff owns the copyright

• the defendant infringed on one of the rights that the copyright holder has over the work

• the plaintiff must prove that the defendant has access to the work in question

• the plaintiff must prove that the defendant’s work is substantially similar to the plaintiff’s work

what is infringement

when someone exercises any of the rights granted to the copyright holder without permission (copying, distributing, etc.)

what is fair use

it allows limited use of copyrighted works with permission for purposes like criticism, commentary, news reporting, teaching, scholarship, or research

what four factors do courts use to determine fair use

• what is the purpose and character of the defendant’s use (educational/commercial?)

• the nature of the underlying copyright

• the amount of the portion used in relation to the entire work and how substantial it was

• the effect of the use on the value of the underlying work

what are exclusive licenses

give the licensee the right to use the work to the exclusion of the copyright holder and others

what are non-exclusive licenses

allows multiple people to use the work

what are collective works

works that are licenses through collecting societies or organizations that manage the rights of the many authors collectively (used in music and software)

what is the DMCA

• digital millennium copyright act

• provides a safe harbor for internet service providers and platforms that allows users to upload content as long as they act quickly to remove infringing content when notified

• prohibits the circumvention of technological protection measures and the trafficking of tools designed to circumvent such measures

describe infringement in film

• authors of books, screenplays, movie treatments, and other films can claim

• considers if the defendant’s work copied from the source or some other source

  • could also come from set design and props; did the producer seek a license for the props in the background of scenes (like coke cans, brands, etc.)

describe infringement in tv

• similar issues to film

  • with live tv: no fixation until the time the event has aired; live broadcasts are copyrighted at the time of the broadcast

describe infringement in music

• compositions and sound recordings have independent protections

  • to sample a recording you must license the composition and the sound recording in all but very few situations

describe trademarks

• guarantee that a good is of a consistent quality

• advertises the brand

• service marks identity services

  • unlike copyright, a mark must be affixed to get damages for infringement; (R) or (TM)

what is intellectual property

refers to the creations of the mind

what laws is intellectual property protected by

• patents

• copyrights

• trademarks

what are the 3 types of patents

• utility

• design

• plant

how long do patents last

20 years from the date on which the application for protection was filed with USPTO

in order to get patents on anything that is an addition to something that already exists, you have to ______________

contact the original maker and owner of the patent and get approval

what are the types of intellectual property

• patents

• copyright

• trademarks

• industrial designs

• geographical indications

• trade secrets

what was the first film registered under the copyright office

Fred Ott’s Sneeze

the author of a screenplay _________________ in that screenplay and must ____________ to the filmmaker to use the screenplay

owns the copyright ; must grant rights

describe copyright in journalism

• factors that can be afforded copyright: text of the piece (not underlying facts) and any original photography in the piece

• facts that are NOT covered by copyright: ideas, processes, methods of operation, concepts, discoveries, facts, and information

describe copyright in music

• exists from the moment an original work is “fixed” in a tangible form

• two types: musical work (underlying composition) and sound recording (series of musical, spoken, or other sounds fixed in a recording medium)

• register through applications and group registrations

• must have permission to use someone else’s work or rely on fair use

what is the music modernization act

to get paid by digital music providers that use the MMA’s blanket license, artists need to register their information with the Mechanical Licensing Collective (MLC)

what did the WIPO Internet Treaties do

enabled streaming services to become an increasingly important sales channel/source of revenue for record labels and artists

what has wipo and streaming allowed to happen in terms of sharing music internationally

• made the process of clearing and licensing rights in each of a large number of territories much easier

• given right holders more confidence in licensing their rights to digital services in new territories

what is work for hire in the context of copyright ownership

• creation that is prepared by an employee in the scope of employment or specially ordered or commissioned for use as a contribution to a collective work

• includes screenwriters, animators, audio engineers, etc.