Intellectual Property Flashcards
Copyright Statute of Limitation
3 years; length of time you have to file a case; start time determined by when the other publication came out or when you should’ve known about it
Defenses for trademarks
Fair Use
Patent
If you have a patent, you can exclude others from making, selling, using, or importing your invention
Protected by Copyright Act of 1976
federal set of laws that precede over copyrights
Copyright
When an author has the exclusive right to use and protect their own work.
What can be patented?
- Has to be an invention that has utility, design, or plant
- Utility is technical, structural invention that you use to achieve something
- Design is something ornamental in nature
- Plant is something that is manmade and not found in nature
What cannot be patented?
abstract ideas, laws of nature, and physical phenomenon’s
Requirements for a patent:
- Subject matter
- Utility- useful or provides a benefit in some way
- Novelty- no one else has created it
- Non-obvious
Term of protection for a patent:
20 years minus the time that the patent spent in the application
Remedies for patents:
monetary judgment or injunction (official order from the court)
Trademark:
Some sort of sign or mark that is used by a person with the intention to use the device or service in commerce.
Criteria for trademarks:
distinctive, not scandalous, not deceptive, cannot consist of the emblem in any country, cannot resemble a persons signature or likeness without their consent, cannot resemble any other trademark or service mark, cannot be geographically descriptive of a products origin
Service Mark:
Used in the sale or advertising of services to distinguish a person and their services from each other…character names, titles, features of tv/radio programs
Tradename
A name, word, or phrase, used by someone in business as a means of identifying their product or services, to establish a reputation and good will (not registered)
Trademark Act of 1946 (Lanham Act)
establishes what the definition is for trademarks and any law or regulations
4 Degrees of Trademark Protection:
- Fanciful
- Arbitrary
- Suggestive
- Descriptive
Fanciful protection:
highest level of protection bc it is a word that was invented just for that product. (Ex: kleenex)
Arbitrary protection:
word that already exists but its arbitrarily applied to the product. (Ex: Apple Computers)
Suggestive protection:
word that hints at the product but you don’t necessarily know what it does. (Ex: Coppertone)
Descriptive protection:
weakest legal protection when it comes to trademarks; describes qualities, ingredients, or characteristics of the product.
Term of protection for trademarks
10 years and after those 10 years it is renewable as long as the product is still in commerce
Threats to trademarks
likelihood of confusion (two trademarks that are similar) and dilution (have a trademark, but something happens to tarnish the brand)
Remedies for trademarks
monetary judgments and/or injunction
Copyright
When an author has the exclusive right to use and protect their own work.
What can be copyrighted?
has to be an idea, tangibly expressed (you have put it down somewhere), with a modicum of creativity.
What cannot be copyrighted?
news, facts, ideas, procedures, history, or slogan
Fiest Publications v. Rural Telephone Service, co. (1991)
If Rural Telephone Service owns a valid copyright to its telephone directory but does not demonstrate a minimal level of creativity in its production, then Feist Publications’ copying of Rural’s directory does not constitute copyright infringement and the decision of the lower court is reversed.
Elements of copyright
icon, owner, date
Sonny Bono Copyright Term Extension Act (1998)
After Sonny was in the entertainment business for a while, he moved on to gov’t and one of his platforms was the extend the length of copyright. He passed this act.
Eldred v. Ashcroft (2003)
- Copyright Term Extension Act of 1998 CHALLENGED on basis that it violated the “limited times” prescription
- Decision: NOT a VIOLATION because “life plus seventy years” is still a “limited time” (as demanded in the Const.’s Copyright Clause)
- Extended time limits by 20 years, life plus 50 years to life plus 70 years. Works for hire were extended to 95 years from publication or 120 years from creation
Golan v Holder 2012
USSC Holds that it is permissible for US copyright law in connection with US adherence to intl copyright treaties to provide copyright protection to foreign works currently under protection in their countries of origin, even if such foreign works had previously been in the public domain in the US
Protection granted under copyright
can’t make copies of something that is already there, can’t buy a CD and make a ton of CD’s
Community for Creative Nonviolence v. Reid
- nonprofit asked an artist to make a sculpture
- both claimed copyright
- court said organization would own the copyright only if the sculptor was the organizations employee
- favor of artist
- not on payroll you get the rights
Pre- 1998 (Copyright Act of 1976)
If published before 1/1/1978: 75 years from publication
If published after to 1/1/1978: author’s life plus 50 years
After 1988 (Sony Bono Copyright Term Extension Act of 1998) CURRENT STANDARD
If published before 1/1/1978: 95 years from publication
If published after 1/1/1978: author’s life plus 70 years
50»_space; 70
Copyright Infringement
doing something that you are taking away from the owners profits (bootleg cd’s, copying papers)
Remedies for Copyright
monetary judgments and/or injunction
Copyright Defenses
Fair Use
4 Elements of Fair Use
1) Purpose of the Use
2) Nature of the Copyrighted Work
3) Substantiality of Portions Used
4) Effect on Potential Market*
Purpose of the Use
Are you using it for nonprofit or educational purposes or are you using it to make money?
Nature of the Copyrighted Work
The more creative the product is, the stronger the copyright is.
Substantiality of Portions Used
1) Have you taken away the heart of the item, the essence (you have a movie that is a mystery and at the end there is a plot twist?) (2) Quantity that you have copied
Effect on Potential Market*
they are asking how much of an impact or degree in which you have effected the copyright owner to make a profit
Harper & Row v. Nation Enterprises (1985)
- fair use is not a defense to the appropriation of work by a famous political figure simply because of the public interest in learning of that political figure’s account of an historic event.
- The Nation asserted Ford was a public figure, and his reasons for pardoning Nixon were of vital interest, and that appropriation in such circumstances should qualify as a fair use.
Commercial Parody
a strong defense because you have to know what they are referencing in order for it to be a parody
Campbell v. Acuff-Rose Music Co. (1994)
(Copyright Fair Use: Parody & Satire)
- Campbell produced parody song of “Oh, Pretty Woman”
- parody is protected, not violating copyright law
- no one can confuse the 2 songs
- CAMPBELL WON!
2008: Cambridge University Press et al. v. Patton et al.
- States that GSU engages in“systematic, widespread and unauthorized copying and distribution of a vast amount of copyrighted works” thru e-reserves system.
- Court said doesn’t not constitutedirect or vicarious infringement but claim on contributory infringement remainsin this ongoing trial
White Smith Music v Apollo Company
player piano sheet readable only by piano and not humans; in 1908 they say its not intelligable by a human and not copyrightable; OVERRULED in 1976
Sony Corp v. Universal City Studios, Inc.
- Sony Betamax: first device to record TV shows, studios feared people wouldn’t go to theater if they watched at home but VCRs provided more income
- Sony not liable as contributory infringer for off-air
- SC holds that manufacturers of staple articles of commerce that are suitable for substantial non-infringing uses cannot be held as contributory infringers
- Sony had knowledge of possible infringing uses but less certainty of its use in that way
MGM v. Grokster (2005)
- FACTS: Grokster distributed free software products that allowed P2P of MGM products
- HOLDING: Copyright holders may sue P2P and BitTorrent providers of illegally distributed material
- IMPORTANCE: major victory for music/movie industry
