Foundations of IP Final

Jeoparody and Cases

A principle in the U.S. that limits the scope of copyright protection by differentiating between an idea and the expression of that idea.

What is the Idea Expression Dichotomy

Musical compositions, sound recordings, dramatic works are just a few of the creations defined as this term in the Copyright Act

What are Works of Authorship

These 4 things must be present to secure copyright protection

What is originality, work of authorship, fixation and expression

To prove a copyright infringement claim through indirect evidence, the plaintiff must prove these two elements

What is access and substantial similarity

These two types of movements within choreography have been deemed to be uncopyrightable by the Copyright Office

What social dances and simple routines

This is the name of the federal statute that governs trademark disputes

What is the Lanham Act

A federal trademark registration allows the owner to use this symbol in connection with their mark

What is the Ⓡ

This trademark classification provides the most protection and applies to newly created words.

What is fanciful

This trademark classification can only be protected if secondary meaning is established in the marketplace

What is Descriptive

Coppertone sunscreen would be classified as this type of trademark

What is Suggestive

Rights of publicity claims are governed by common law and this

What is state law

In Midler v. Ford Motor Company, this aspect of Bette Midler’s persona was appropriated by Ford Motor prompting Midler to sue Ford

What is her voice

In Rogers v Grimaldi, these two factors were used to determine the legality of using a famous duo’s name for the title of a film

What is artistic relevance and explicitly misleading

This constitutional right is most consistently being balanced when evaluating the use of another’s persona

What is the First Amendment

Tennessee’s recognition of the right of publicity was borne out of this individual

Who is Elvis Presley

The two requirements for trade secret protection

What is information has independent economic value b/c not publicly available and owner takes reasonable steps to keep information secret

List two advantages to trade secrets

•What are:

•1. Indefinite future protection.

•2. No requirements of novelty or tangibility.

•3. No need to file application for protection

A written policy outlining the confidentiality procedures and requirements of individuals

What is a trade secret protection plan

The 2 types of misappropriation

What is actual and threatened

Under the UTSA, misappropriation occurs if either of these things happen

What is: the trade secret is acquired through improper means, or the trade secret is disclosed without consent

Patents promote knowledge sharing in several ways. Provide one way this happens.

•What are:

•1. To get a patent, inventors must disclose the secrets of their inventions.

•2. Patents represent the world’s greatest library of technical knowledge.

•3. Innovators keep up with technical trends by reading other inventors’ patents

3 elements required for a utility patent

What is novel, non-obviousness and useful

The term of a utility patent

What is 20 years

The U.S. patent system was created with several unique features. Name two

•What is:

•It was affordable by the common person.

•It had an examination system to determine patent validity.

• It had simplified application procedures.

•It required full disclosure of the details of the invention.

•It allowed for the sale and licensing of patent rights

Gender diversity boosts the inventive process in essential ways. Name one.

•What is:

• Women’s experiences and viewpoints help inform, and thus improve, the quantity and quality of innovation

• Gender diversity expands research into underserved topics, thereby filling overlooked technology gaps; and

• Women often help enhance communication and build external relationships, increasing team cooperation and productivity

The 3 stakeholders paid by SoundExchange and the percentage of royalties each receives

•Who are:

•1. Sound recording owner– 50%

•2. Featured artist – 45%

•3. Union musicians – 5%

The 3 licenses needed to use a song recorded by Harry Styles in a movie or television show

•What is a:

•1. Sync license

•2. Master use license

•3. Public performance license

The 4 fair use factors

•What is:

1.Purpose and character of the use;

2.Nature of the copyrighted work;

3.Amount and substantiality of the portion used in relation to the copyrighted work as a whole;

4.Effect of the use upon the potential market for or value of the copyright work

Although many courts no longer acknowledge this rule, the court in Blurred Lines did when the judges required less similarity in the songs based on the extensive amount of access

What is the inverse ratio rule

The court in the Blurred Lines case used this two factor test to analyze the similarity of the two songs

What is the extrinsic test and intrinsic test

The multi-factor test used by courts to assess whether two marks are confusingly similar

What is Likelihood of Confusion

While Copyright is focused on originality for protection, trademark is focused on this characteristic

What is distinctiveness

This defense to trademark infringement permits the use of another’s trademark to describe the user’s products or services, rather than to indicate the source of the goods or services.

What is descriptive fair use

•The plaintiffs who attempted to register the marks “The Slants” and “FUCT” were ultimately successful in doing so under this constitutional theory

What is viewpoint discrimination

Where a person is infringing on a protected mark, the first step in addressing the issue is typically to send this document (which can be worded politely or aggressively)

What is a cease and desist letter

A right of publicity that applies after one’s death

What is posthumous right of publicity

The right of publicity was born out of this other right, first written about by Samuel Warren and Louis Brandeis in a Harvard Law Review article

What is right of privacy

In White v. Samsung Electronics America, Samsung represented White in this way, which Vanna White argued violated her rights of publicity

What is a robot

A party that uses another’s persona and claims First Amendment protection will necessarily require a court to first analyze this type of speech

What is commercial v. non-commercial speech

This methodology measures a celebrities familiarity and appeal through surveys that determine a quotient factor

What is Q score

In the PepsiCo/Quaker Oats case we discussed, PepsiCo ultimately showed the court that threatened misappropriation would occur this way

What is the employee would inevitably rely on PepsiCo trade secrets to make decisions in new role at QO. Impossible to compartmentalize information

The statute of limitations period under the UTSA for trade secret claims

What is 3 years

This remedy allows a court to order a party to stop doing something

What is an injunction

Damages in a trade secret misappropriation case are typically measured this way

What is actual loss caused by misappropriation and any unjust enrichment

If you invent faster-than-light travel but believe someone will be able to reverse engineer it by examining your starship, should you patent it or keep it as a trade secret?

What is patent the invention

This term refers to any previous patent, publication, or public use of an invention

What is “prior art”

The most critical part of a patent application that determines both the inventor’s rights and an infringer’s liability

What are The Claims

The first place you should go to search for registered patents before filing your patent application

What is USPTO.gov

the three patentability criteria for a design patent

What are novelty, ornamentality, and non-obviousness

The 2 types of patent applications and 1 advantage of each

What is provisional (no follow up app required) and non provisional (less expensive and earlier filing date) application

The six exclusive rights given to copyright owners

•What is the right to authorize:

1.Reproduction of the copyright work

2.Distribution of copies of the copyrighted work

3.Prepare derivative works based upon the copyrighted work

4.Perform the copyrighted work publicly

5.Display the copyrighted work publicly

6.For sound recordings, publicly perform the copyrighted work via digital audio transmission

Feist Publications v. Rural Telephone

-Rural sued Feist for copyright infringement with the goal to extend their monopoly

-decided that the information taken did not show originality so it was not copyrightable

-sweat of the brow theory was dismissed

-ruled in favor of Feist

Bright Tunes Music Corp. v. Harrisongs Music

-George Harris song, “My Sweet Lord” almost identical to the Chiffon’s “He’s so Fine”

-Harris lost on subconscious infringement, even though accidental had to pay the damages

Williams v. Gaye

-1909 Copyright Act because “Got to Give it up” was written before 1978, this meant no protection for the sound recording

-Musicologists had to analyze sheet music

-Clear showing of access meant that there could be less similarity due to inverse-ratio rule (which was later abolished)

-Thicke was also unlikeable

Andy Warhol Found. for the Visual Arts Inc. v. Goldsmith

-Goldsmith attempted to license her photograph for use by AWF

-AWF started the lawsuit by filing a declatory judgment of non-infringement

-The use was not transformative and served same commercial purpose

Yang v. Mic Network

-dismissal of a copyright infringement claim, finding that Mic's use of a screenshot of Yang's photograph was fair use

-The screenshot of a cropped version of the photo and the New York Post headline, was transformative and not a competing substitute for Yang's original work

-Painted the subject in a negative light

Rogers v. Grimaldi

-Rogers claimed violation of the Lanham act for false advertising or endorsement

-The use of name was artistic expression so it was okay

White v. Samsung Elecs.

-White went against Samsung for both the Lanham Act, common law, and California code

-Ruled in favor of White because her likeness extended to her recognizability

Brown v. Showtime Networks Inc.

-brown filed against Showtime for violating the Lanham act by including him in a documentary about Whitney Houston

-It was artistically relevant

-not explicitly misleading

Rosa Raymond Parks Inst. for Self Dev. v. Target Corp.

-matter of public interest

PepsiCo Inc. v. Redmond

-higher up at Pepsi took a job at competitor

-inevitable that he would use trade secrets