copyrights, trademarks, and fair use for authors
TRANSCRIPT
Copyrights, Trademarks and Fair Use for Authors
Idaho Book Extravaganza
October 28, 2011
Brad Frazer
Hawley Troxell
208-388-4875
Overview and Introduction--Goals and Objectives
• Situational Awareness• Issue Spotting• Avoidance of Liability
Legal Issues for Authors (Media Professionals)
• Usage Issues• Content Protection Issues• Content Rights Issues• Privacy Issues• Right of Publicity Issues• Defamation Issues• Contract Issues
For today, however . . .
• Copyrights• Inbound (using third-party content)• Outbound (protecting your
content)• Fair Use• Trademarks
Overarching Construct: Intellectual Property
Define terms: what is it?CopyrightsTrademarks and Domain NamesPatentsTrade Secrets
Copyright Discussion Hypothetical
Wilbur says, “I copyrighted my book by putting ‘Circle C’ on the bottom of the first page.”
Jane says, “This quote is on the Internet, so I can just ‘right-click’ and use it in my manuscript.”
Clarence says, “I copyrighted this manuscript by mailing it to myself.”
Judy says, “We don’t have any copyrights because we never registered anything.”
What is a copyright?
DiscussA property right that springs into
existence when a sufficiently creative idea is reduced into or onto a tangible medium.
The owner is the “author.”
Copyright—Exclusive Rights
Make copiesCreate derivative worksDistribute copiesPublicly perform the workDisplay the workTitles and Short Phrases not
“Copyrightable”
Copyright Considerations
Inbound considerations– Can I use the content?– Obtaining licenses (permissions)
Outbound considerations– Protecting your content– Licensing
Copyright Ownership
Who’s the author?– Is that the same as the copyright
owner?Taking a license
– Negotiate either directly with the owner or with a rights clearinghouse (ASCAP, Harry Fox, CCC)
Copyright Registration
After a copyright is created by an author, the owner of the copyright may register it with the Copyright Office.
Timely registration is critical! Rights may be lost if not done within three months of the date of first publication.
Copyright Duration
Duration and registration are different concepts. Once a copyright is created, the author or
his/her heirs own it as a property right and it lasts for the life of the author, plus 70 years.
A copyright can be given away or sold, but that does not affect its duration.
Registration or absence thereof does not affect duration of the copyright.
When do I not need permission to use work I did not author?
Public domain Fair use Original is not protected by copyrightAlways err on the side of caution and
get permission!
Fair Use (17 USC Section 107)
The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
Public Domain (from Copyright.gov)
“The public domain is not a place. A work of authorship is in the ‘public domain’ if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.”
Trademark Discussion Hypotheticals
Clarence says, “I trademarked that new product name we came up with by putting ‘TM’ next to it on our brochure.”
Constance says, “We need to trademark the domain name for that website.”
Candace says, “We can use that name. I searched at uspto.gov and there’s nothing the same.”
Jules says, “My book title is trademarked.”
Key Take Away Point Here . . .
“Trademark” is not a verb!
Trademarks
A trademark or service mark is any word, slogan, logo, symbol, sound, color, smell, or other item that serves as a means of commercial source identification of a product or service.
E.g., Nike, Coke, Geico Gecko--or Geico Cavemen
Types of U.S. Trademark Protection
Common Law™ - unregistered– In the U.S., trademark rights arise through use, not
through registration.
State Registration – the “truly local” Federal Registration® - interstate Registration in the U.S. requires acceptable
“trademark use.”
Generic Descriptive Suggestive Fanciful (weak) (strong)
shoe “Shoe Gleam” “Walk-n-Glo” “Kiwi”polish
Examples of US Registered Marks
Trademark Electronic Search System(Tess)
Record 1 out of 1 (6) FOR SITUATIONS FOR WHICH NO DRAWING IS POSSIBLE, SUCH AS SOUND
Goods and Services
IC 004. US 001 006 015. G & S: Oil based metal cutting fluid and oil based metal removal fluid for industrial metal working. FIRST USE: 20000131. FIRST USE IN COMMERCE: 20000131
Mark Drawing Code
(6) FOR SITUATIONS FOR WHICH NO DRAWING IS POSSIBLE, SUCH AS SOUND
Serial Number 76079064
Filing Date June 20, 2000
Current Filing Basis
1A
Original Filing Basis
1A
Supplemental Register Date
December 18, 2001
Registration Number
2560618
Registration Date April 9, 2002
Owner (REGISTRANT) Midwest Biologicals, Inc. CORPORATION INDIANA 3404 State Road 101 Woodburn INDIANA 46797
Attorney of Record
Mark F. Smith
Description of Mark
The mark is a scent mark having the scent of bubble gum.
Trademark Electronic Search System(Tess)
Record 1 out of 1
(6) FOR SITUATIONS FOR WHICH NO DRAWING IS POSSIBLE, SUCH AS SOUND
Goods and Services
IC 009. US 021 023 026 036 038. G & S: computer hardware and computer operating software, microprocessors, integrated circuits and semiconductor devices. FIRST USE: 19941000. FIRST USE IN COMMERCE: 19941000
Mark Drawing Code
(6) FOR SITUATIONS FOR WHICH NO DRAWING IS POSSIBLE, SUCH AS SOUND
Serial Number 75332744
Filing Date July 29, 1997
Current Filing Basis
1A
Original Filing Basis
1A
Published for Opposition
November 16, 1999
Registration Number 2315261
Registration Date February 8, 2000
Owner (REGISTRANT) Intel Corporation CORPORATION DELAWARE 2200 Mission College Blvd. Santa Clara CALIFORNIA 95052
Attorney of Record
J PAUL WILLIAMSON
Description of Mark
The mark consists of a five tone audio progression of the notes D FLAT, D FLAT, G, D FLAT and A FLAT.
Type of Mark TRADEMARK
Register PRINCIPAL
Live/Dead Indicator
LIVE
Q & A
Brad Frazer
208.388.4875
@bfrazjd
internetlawyer.blogspot.com