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Intellectual
Property: The Game of Swords and Shields
Copyright
Law
American
copyright law is based on the United States Constitution and a federal
statute, the Copyright Act of 1976, as amended. There is no applicable
state law.
Types
of Works Protected
Copyright
law protects "original works of authorship," specifically including
literary works; musical works, including any accompanying words; dramatic
works, including any accompanying music; pantomimes and choreographic
works; pictorial, graphic, and sculptural works; sound recordings; and
architectural works. Software code is considered a work of authorship.
The subject matter of copyright includes compilations and derivative works.
Copyright protects most multimedia works-e.g., video games-- which are
audiovisual works, compilations, or derivative works, or a combination
of these. In addition, copyright protects the underlying computer software
which implements a multimedia work, as well as the "look and feel"
of the user interface in a multimedia work. The Copyright Act expressly
states: "In no case does copyright protection for an original work
of authorship extend to any idea, procedure, process, system, method of
operation, concept, principle, or discovery . . . ." It is also impossible
to copyright facts apart from the original expression of the facts.
Standards
There
are two criteria that must be met for copyright protection: originality
and "fixation in a tangible form." The originality threshold
is low. The work merely must be the author's own product and not copied.
The crucial element of fixation is that there is a physical embodiment
of the work. It is irrelevant that the images cannot be viewed without
a machine, such as a computer or CD. Unfixed works, such as an untaped
live broadcast, are not subject to federal copyright protection. The text
of Martin Luther King's "I Have A Dream" speech is copyrighted
because it was written in advance. His actual delivery (performance) of
the speech is separately copyrighted because it was recorded on film.
Had it not been fixed on film, the delivery of the speech could not be
copyrighted. The official speeches of government officials are public
works that cannot be copyrighted. President Lincoln could not copyright
"The Gettysburg Address."
Procedure
Copyright
protection exists for any qualifying work without formal action. It is
unnecessary to obtain a copyright registration from the Library of Congress
in order to claim copyright protection. However, suit to enforce the copyright
may not be brought until the copyright is registered. Moreover, the remedies
of statutory damages (no less that $500 nor more than $20,000 for each
violation as the court determines is just) and attorneys' fees are only
available for infringement occurring after registration. Only injunctive
relief and actual damages are available for infringement occurring before
registration. Registration requires completion of a copyright registration
form along with the registration fee (currently $30) and two copies of
the work.
Ownership
Ownership
of copyright initially belongs to the author or authors of the work. The
"author" is generally the individual who created the work, but
there is an exception for "works made for hire." The author
of a work made for hire is the employer or hiring party for whom the work
is prepared. A work created by an employee within the scope of his or
her employment is a work made for hire. If outside the scope of employment,
the author is the employee unless there is a written agreement giving
the employer rights. For specially ordered or commissioned works, the
work is only a work made for hire if there is a written agreement so providing
and the work falls within one of eight special categories of commissioned
works (e.g., translations, compilations, part of a motion picture or other
audiovisual work). Where there are two or more authors, and in the absence
of a written agreement, each is a joint owner can use or license the work
without the consent of the other owner provided the use does not destroy
the value of the work.
Exclusive
Rights
A
copyright owner has five exclusive rights in the copyrighted work: reproduction
right (copy, duplicate or imitate); modification right; distribution right;
public performance right; and public display right. A visual artist's
"moral rights" to object to improper attribution of authorship
and to require others to respect the integrity of the work is recognized
in the Visual Artists Rights Act of 1990. Nonvisual artists, including
creators of literary, musical and audiovisual works, are not covered by
this law. They must find protection through other means such as contract.
The "fair use" of a copyrighted work, including use for purposes
of criticism, comment, news reporting, teaching, scholarship, or research,
is not an infringement of copyright. What is a fair use depends upon a
balancing of factors applied to the particular facts of each case. Another
exception to copyright infringement is the so-called "first sale"
doctrine that terminates the copyright of the author in a specific embodiment
of the work, such as a book, upon the initial sale of the work. The new
owner is thereafter free to use, lend, display or sell the work. A number
of states have enacted versions of the Uniform Computer Information Transactions
Act (UCITA) relating to licensing of computer software. UCITA significantly
limits the first-sale doctrine by permitting copyright owners to restrict
the rights transferred to a "license" rather than outright sale.
Duration
The
duration of a copyright depends upon the date the copyright was created
because statutory changes over the years have created differing rules.
Under current law, the copyright term for works created by an individual
on or after January 1, 1978, is the life of the author plus 70 years.
Anonymous works and works made for hire have a term of 95 years from the
date of first publication, or 120 years from the date of its creation,
whichever is sooner. Pre-1978 copyrighted works in their first term of
copyright under the prior statute are granted a 75-year copyright term
from the date of registration of the work.
Notice
The
use of copyright notice is optional for works distributed after March
1, 1989. Copyright notice is beneficial to establish willful infringement.
It can take any of these three forms: © followed by a date and owner's
name; "copyright" followed by date and name; or "copr."
followed by date and name. It is also customary, but not required, to
add such words as "all rights reserved."
International
Scope
The United States is a member of The Berne Convention for the Protection
of Literary and Artistic Works, an international copyright treaty for
the protection of works of authorship administered by the UN World Intellectual
Property Organization (WIPO). The Berne Convention is based on principles
of national treatment with the result that copyright registration is done
on a country-by-country basis. Signatory nations to the Berne Convention
agree to uphold the copyright of foreign authors pursuant to their respective
national copyright laws. Nonetheless, enforcement vigor varies considerably
among member nations. The North American Free Trade Agreement (NAFTA)
provides multilateral copyright protections among the United States, Canada
and Mexico.
More Information
The Internet site of the United States Library of Congress is www.loc.gov.
It contains registration forms, instructions, and other useful information.
Trademark Law
American
trademark law is based upon the common (judge-made) law, the federal Lanham
Act, and various state laws.
Types
of Works Protected
Any
word, symbol, name, slogan, picture, design, shape, color, sound or smell
that
serves to identify the source or origin of goods or services can be a
trademark. There are actually four types of trademarks. A trademark is
a mark (brand, logo) used on goods (e.g., DELL for computers and peripherals).
A service mark simply is a mark used in connection with services (e.g.,
ROCK OF GIBRALTAR symbol for insurance and investments). A certification
mark is used by the owner to certify qualities or characters of the goods
or services of others (e.g., VIDALIA for onions grown exclusively in Vidalia,
Georgia). A collective membership mark is used by the owner to signify
membership in a group or organization (e.g., TEAMSTERS for a labor union).
This Guide discusses only trademarks and service marks, and refers to
them collectively as trademarks.
Standards
The
word, name, symbol or device must be capable of distinguishing the owner's
goods or
services from the goods or services of others. There are four categories
of trademarks that are subject to varying degrees of protection. In ascending
order of strength:
- Arbitrary
or coined word -- a term that bears no relationship to the product and
often has no meaning other than as a designation of source of the product
such as KODAK for cameras and film, ROLEX for watches, BEATLES for a
band, and YAHOO for an Internet portal.
- Suggestive
-- a term that subtly suggests something about the product such as CONTACT
for self-adhesive shelf paper, CITIBANK for banking services, STAPLES
for office supply stores, and PLAYBOY for adult men's magazine.
- Descriptive
-- a term that describes something about the product such as VISION
CENTER for optical clinics, HONEY-BAKED for honey-glazed hams, and QUIK
PRINT for fast printing and duplicating services.
- Generic-the
common name for the kind of product such as "gold card" for
credit cards, "super glue" for strong and fast bonding glue,
and "lo-cal" for reduced-calorie foods and beverages.
Arbitrary
and suggestive marks can be a trademark immediately upon use. A descriptive
mark can only be a trademark after some period of exclusive use in which
the mark acquires a "secondary meaning" in the minds of consumers
apart from its descriptive connotation. It was on this basis that Microsoft
Corporation ultimately prevailed in its effort to register WINDOWS for
computer operating systems using "window" information panels.
Generic terms can never serve as a trademark, no matter how long in exclusive
use. An example is the unsuccessful effort by Miller Brewing Co. to use
"Lite" as a trademark for low calorie beer. A term originally
valid as a trademark can become generic through indiscriminate public
use. "Cellophane," "aspirin," "thermos,"
"refrigerator," and "Murphy bed" are among famous
examples of lost trademarks.
Procedure
Trademark
rights are created by adoption and use of a distinctive mark or brand.
The most effective trademark protection is obtained by filing a trademark
registration application in the U.S. Patent and Trademark Office. Federal
law also protects unregistered trademarks, but such protection is limited
to the geographic area in which the mark is actually used. To qualify
for federal protection, the trademark must be used in interstate commerce.
Federal registration is available not only for trademarks in current use
in interstate commerce but also for trademarks whose owners have a bona
fide intent-to-use the mark at a future date in commerce. Registration
will not be granted until the trademark is in actual use. The current
fee for federal registration for each category of goods or services is
$325. State trademark protection exists under common law simply by adoption
and use. Protection is limited to the area of actual use within the state.
State statutory registration is also available.
Ownership
A
trademark is owned by the first party to use it in connection with goods
or services, or the first to apply to register it under the federal intent-to-use
procedure if the mark was not previously in use.
Exclusive
Rights
Trademark
law in general, whether federal or state, protects a trademark owner's
commercial identity (goodwill, reputation, and investment in advertising)
by giving the trademark owner the exclusive right to use the trademark
on the type of goods or services for which the owner is using the trademark.
Any person who uses a trademark in connection with goods or services in
any way that is likely to cause confusion or mistake or to deceive is
an infringer. The trademark owner can obtain injunctive relief and damages
against the infringer. If the trademark is not registered, then the geographic
area of exclusivity is the actual area of use and any adjacent area of
natural expansion. A key advantage of federal registration is that it
expands the geographic area to nationwide protection regardless of the
area of actual use. State registration extends the borders of protection
statewide. Federal registration also confirms advantages of additional
enforcement remedies, including treble actual damages and attorneys' fees
in appropriate cases. Congress enacted the Anti Cybersquatter Protection
Act in 1999 to afford protection to the owners of trademarks from the
bad- faith registration of the same or confusingly similar designation
as a domain name.
Duration
A
trademark continues as long as it remains in use. Federal registrations
are subject to
renewal every 10 years from the date of issuance. The duration of state
trademark registrations varies by state.
Notice
While
notice of trademark ownership is not required, it is advisable and aids
in the
establishment of willful infringement. Only a trademark for which federal
certificate of registration has issued may use the notice symbol of ®.
All other trademarks, including state-registered trademarks use the superscript
letters "TM" for trademarks and "SM" for service marks.
International
Scope
The
Paris Convention provides for reciprocal treatment of trademarks and priority
filing dates among signatory countries. However, it is necessary to apply
for trademark registration in each such country in which the trademark
is in use. The United States is not a party to the Madrid Agreement Concerning
the International Registration of Trademarks (Madrid Convention), the
principal international agreement pertaining to trademarks. The Madrid
Convention provides for international registration of trademarks in the
International Bureau of WIPO (World Intellectual Property Organization),
a UN agency. The North American Free Trade Agreement (NAFTA) provides
multilateral trademark protections among the United States, Canada and
Mexico.
More
Information
The Internet site of the United States Patent and Trademark Office is
www.uspto.gov. It contains information,
instructions, fees and forms.
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