Chapter 6 Flashcards
Intellectual Property
Creative works (inventions & trademarks) that are private property that may be bought and sold.
Why does IP law exist?
To encourage creativity by protecting creator’s rights to profit from their work
Constitution Article 1- Section 8
“states Congress shall have the power to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writing and discoveries.”
Copyright
The exclusive right
1. reproduce
2. create derivative works
3. distribute copies, perform the work or display it to the public.
How to prove copyright infringement
*Substantial similarity
*The copyright is valid
*The infringer had access to the original work and violated one of the exclusive rights
What happens after a copyright expires?
The work falls into the public domain-exclusive rights belong to everyone
When is a copyright protected?
Once it is ”fixed in a tangible medium of expression”-it is copyright protected- AUTOMATIC
*You can register the copy right and should put a copyright notice on the work.
*Prior to filling a suit for infringement, you must register the copyright
Remedies for infringement
- Injunction
- Attorneys fees
- Actual or statutory damages
What are statutory damages?
$ a court can award when actual damages are hard to prove or nominal (normal range is $750 to $30K) can be as high as $150K for flagrant intentional infringement
The Bono Act
(3 scenarios of copyright)
*It is the author/creator’s life plus 70 years.
*For anonymous works or work for hire it is 95 years from publication
*For unpublished “works for hire” and unpublished anonymous or pseudonymous works, the term is 120 years from the year of creation.
Who owns copyright when work is created by an employee?
The Employer
Who owns copyright when work is created by an Independent contractor?
IC who create work for $ generally own the copyright to the material created
Fair use Doctrine
Exception to copyright law
*Allows journalist, historians, and teachers to do their respective jobs
4 part test for FUD
*used for profit or nonprofit/educational purpose
*The nature of the copyrighted work
*The amount and substantiality of the use
*The effect the use will have on the market value or profit potential of the work
Do broadcasters have to pay for the right to play copyrighted music on the air?
Yes
What is sampling? Is it allowed?
Sampling is taking a portion of an existing sound recording or musical composition and incorporating it into a new work.
*Yes
Copyright Trolls
Companies that approach copyright owners to purchase their copyright rights and then aggressively sue multiple defendants for infringement.
Berne Convention
In 1886 an International Copyright Agreement was entered into by just about every Country world-wide except the US.
*US was the largest pirater of European books
*US joined in 1988 when copyright became an issue for them
What does Berne do?
Sets minimum standards for copyright protection, requiring each member to provide at least that much protection.
Moral Rights
Give the creator of a copyright work some say over what happens to it later, even if the copyright is sold to someone else.
*US law, owner has ultimate say
Trademark
*A distinctive mark, motto, device, that a manufacturer puts on to the goods so that they can be identified.
Servicemark
A mark or slogan that identifies a service.
1. Roto Rooter
2. Southwest Airlines
Tradename
Pseudonym for companies that do not do business under their registered name
*Wal-mart Inc. and Walmart
Who can regulate trademarks?
States can regulate trademarks, most have trademark laws.
