Copyright Law Class 1 Why Bother?

Why is Copyright Law Relevant? Impacts on economy huge. Affects artistic, cultural and moral sensibilities. Its interesting. Its challenging. Its cool. Copyright Law – Class 1 © 2011 Anne S. Mason

Reactions to Pretty Woman Montage Theft? Free speech? Mocking artistic work? Free ride? Fair use? Public interest/value? Copyright Law – Class 1 © 2011 Anne S. Mason

Andy Warhol Images Did he need permission from Campbells? Did he need permission from Marilyn Monroe? Does it matter if she was dead or alive at the time? Famous person/rights of privacy? Rights of publicity? Original works versus copied? Copyright Law – Class 1 © 2011 Anne S. Mason

Martin Luther King I have a dream speech - copyrighted? The written speech versus the oral speech - different treatment? What about people taping it? Recording it? Tweeting about it? Is the oral speech fixed in a tangible medium? Why does that matter? Copyright Law – Class 1 © 2011 Anne S. Mason

Zapruder Film of Kennedy Assassination Copyright Law – Class 1 © 2011 Anne S. Mason Public interest? Who owns? Historical fact/event? Fact versus fiction? Why does that matter?

Landslide How come one band can cover the song of another? What is the process? Why is it different from Pretty Woman scenario? Public policy issues? How does CR come into play at all? Copyright Law – Class 1 © 2011 Anne S. Mason

Brands Why are famous brands famous? What do they do? What are the issues with brands that are not the same as CR? Protection of expression versus source ID Trademarks arise from use in connection with goods and services. Words, names, symbols or devices. Copyright Law – Class 1 © 2011 Anne S. Mason

Trademarks and Service Marks contd Dont need registration; registration bestows rights. Unlimited duration so long as there is use. Federal registration gives rights that are nationwide in scope where used. Not exclusive to federal law - can register trademarks with states - intrastate commerce versus interstate. Copyright Law – Class 1 © 2011 Anne S. Mason

Trademarks and Service Marks contd Cannot be deceptive, cannot be confusingly similar to another mark, and cannot be merely descriptive or generic (lots of limitations). aspirin, band aid brand, Xeroxplease stop using our mark as a noun! Infringement = likelihood of confusion. Dilution, especially of famous marks. Domain names - function as a mark? What about _______sucks.com cases? Issues? Relatively expensive especially with searches - some flat fees $1,500. Office actions can lengthen time but generally 9-15 months. Copyright Law – Class 1 © 2011 Anne S. Mason

Patents Functional features of products and processes. Protection arises with government grant of patent. 20 years from date of application. Novel, not obvious, has utility. Copyright Law – Class 1 © 2011 Anne S. Mason

Patents contd Federal law only - federal court only. Expensive. Time consuming to get. Infringement = one who makes, uses or sells. No innocent infringer excuse. No independent creation excuse. Very expensive to litigate; Markman hearings and experts. Very good protections for 20 years - thats the trade off. Copyright Law – Class 1 © 2011 Anne S. Mason

Trade Secrets What are they? State laws control = look for statute. Indefinite so long as secret. Objective evidence of secrecy. Not commonly known in the particular industry. Independent creation and reverse engineering protections not there. Copyright Law – Class 1 © 2011 Anne S. Mason

Publicity Check state laws. Dead or alive? Rights of privacy interact. License. What happens when the celebrity falls from grace? Copyright Law – Class 1 © 2011 Anne S. Mason

Other State Laws Offer Protection Contract Unfair competition Misappropriation In rem actions (take a domain name) Copyright Law – Class 1 © 2011 Anne S. Mason

Copyright Covers expression and not ideas! Federal law - federal court. Preemption issues with state law complex. Covers certain works of authorship. In same clause as patents in the constitution. To promote the useful arts and sciences = goal; fosters conflict with individual rights. Copyright Law – Class 1 © 2011 Anne S. Mason

Copyright contd Cheap and fast to procure ($35!) Can do on-line. Infringement is violation of exclusive rights - so know what those rights are. Defenses like fair use have been codified. Damages, treble damages, and impoundment and destruction of goods. US Customs assistance available. Copyright Law – Class 1 © 2011 Anne S. Mason

1909 Act Versus 76 Act 1909 had dual track depending on whether published or not published. Federal system protected published works. State law protected unpublished works. 76 Act (effective 1/1/78) gives rights upon fixation not publication. Eliminates common law copyright. Copyright Law – Class 1 © 2011 Anne S. Mason

Copyright contd Original works of authorship. Now can grant rights in parts - dont have to license all rights in a bundle. Duration under 76 Act is life + 70 versus two 28 year terms in Formalities - if no notice on work under 1909 Act you dedicate to public domain forever. Same with 76 Act. Changed with entry in Berne 3/1/89. Notice now not required. Copyright Law – Class 1 © 2011 Anne S. Mason

International Issues No universal copyright laws. Look to the laws of the country where the work is to be sold. Look to treaties between nations. Berne applies to published and unpublished works. Does not apply in the country of origin. Life + 50 years is minimum. Moral rights. Copyright Law – Class 1 © 2011 Anne S. Mason

In Sum Big three of intellectual property = Patent, Trademarks and Copyright. State law protections may apply. National system at International level. Copyright Law – Class 1 © 2011 Anne S. Mason