Black Letter Outline on Intellectual Property
Author: Schechter, Roger E.
Copyright Date: 2006
16 chapters have results for copyright
III. Copyright 212 results (showing 5 best matches)
- Copyright is governed exclusively by the federal copyright statute. The current statute is the Copyright Act of 1976, which has been frequently amended in the three decades since its enactment. Because many copyright disputes involve works created before the effective date of the 1976 law, however, the previous statute (the Copyright Act of 1909) remains important. Moreover, while the 1976 Act explicitly pre-empts state laws equivalent to copyright, prior to 1976 state common law protection for unpublished works co-existed with federal statutory copyright. Finally, many of the important principles of copyright law remained largely unaltered by the 1976 revisions, meaning that many pre–1976 copyright cases are still good law. Consequently, you should note the dates of all relevant facts when analyzing a copyright problem, as well as the date of all the copyright cases you read to make certain that the opinion does not refer to statutory provisions that are no longer in force, or to...
- Prior to 1989, copyright notice was mandatory on all copies of a published work. That made it quite easy for someone who wanted to use the work to identify the copyright owner, so that they could request permission. Even after the use of a copyright notice became optional, many copyright owners continued to use it. With the advent of digital technologies, however, third parties would often duplicate copyrighted materials and transmit them to others without including a copyright notice or any other identifying material about the copyright owner. This obviously makes it difficult for those who wish to obey the copyright laws to know who to contact for rights to use the work. Congress addressed this problem by including provisions in DMCA dealing with copyright management information.
- A copyright notice must consist of three components: first, either the word “copyright”, the abbreviation “copr.” or the “c in a circle” symbol (©); second,
- in 1955, with a proper copyright notice on all copies. The first term of copyright in the work expired 28 years later in 1983, at which time Roe renewed the copyright. The new renewal term extends copyright protection until 2050, 67 years after the date of renewal, and a total of 95 years after the date of first publication. If Roe had not renewed the copyright, the work would have fallen into the public domain.
- Under the 1909 statute, unpublished works were not protected by federal law. Rather they enjoyed state common law copyright, which was essentially perpetual in duration. The 1976 Act preempted state common law copyright and provided that unpublished works would be given the same term of copyright as newly created works—a term that was initially life + 50, and which is now life + 70 as a result of the CTEA. The statute also provided that in no case would copyright in any such work expire before 2002, and that if published before 2002 the copyright would last until at least 2047.
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Capsule Summary 68 results (showing 5 best matches)
- Copyrights have all the attributes of personal property and are fully transferable, wholly or in part. The transfer of all rights in a copyright is known as an assignment, while a transfer of less than full rights is known as a license. Copyright interests are infinitely divisible, which allows the copyright owner to license different parties to exploit different aspects of the copyright. Assignments and exclusive licenses must be in writing while a non-exclusive license can be oral.
- Copyright issues are governed by the federal copyright law of 1976, but earlier statutes continue to be relevant to works created many years ago and still in circulation. Copyright law seeks to encourage creativity without unduly hindering the public’s access to, and use of, art, literature and related materials.
- Use of a copyright notice on published copies became optional in 1989. Inclusion of notice is still useful, however, because it may defeat a claim of innocent infringement and serves as a warning that the author likely intends to assert his legal rights. Prior to 1989, the law required notice on all copies of a published work, but excused the omission if it was inadvertent, the copyright owner registered the work, and the copyright owner made reasonable efforts to add the notice after discovering the omission. Prior to 1978, the publication of a work without the statutorily prescribed notice was fatal to copyright and injected the work into the public domain.
- Copyright registration is optional, but is a pre-requisite for a suit for copyright infringement. A copyright owner may register after learning of infringement and then file suit, but by delaying in that fashion, he will be unable to obtain certain remedies. Congress recently enacted legislation allowing the pre-registration of works “being prepared for commercial distribution” to allow the copyright owner to bring infringement actions promptly against parties who duplicate pre-release copies.
- Copyright management information is data conveyed in connection with copies or phonorecords of a work, such as the title of the work, the name of the author, or the name of copyright owner. It is illegal to knowingly provide false copyright management information or to remove or alter such information if done with the intent to induce or enable infringement.
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Appendix A. Answers To Review Questions 18 results (showing 5 best matches)
- Audio cassettes would be considered sound recordings, and as such are within the subject matter of copyright. The rights to duplicate and distribute a work are among the exclusive rights conferred by the copyright statute. State laws dealing with subject matter covered by the copyright statute and purporting to grant rights equivalent to the statutory rights are explicitly pre-empted by the copyright law.
- Under the current version of the statute, copyright protection lasts for the life of the author, plus 70 years. The life-plus-fifty term was the rule under the original version of the 1976 Act, but that durational period was changed in 1998 by the Copyright Term Extension Act.
- Since 1989, the use of a copyright notice on copies of a published work has been optional and does not affect the validity of the copyright.
- The 1976 statute pre-empted common law copyright. Federal copyright is the sole source of protection for a work from the moment it is fixed in a tangible medium of expression.
- Although the copy left on the plane did not bear a notice of copyright, that does not affect Johnson’s rights since the use of a copyright notice has been optional since 1989. The facts do not indicate if Johnson registered his work with the Copyright Office, but he need not have done so prior to the alleged infringement in order to preserve his rights. He may register now and then file suit. He will not be able to recover statutory damages, however, unless he registered before the infringement.
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Appendix C. Glossary 29 results (showing 5 best matches)
- Copyright Management Information
- The distribution of copies of a work to the public without any restriction on use is defined as publication under the copyright statute. The obligation to deposit copies with the Library of Congress is triggered by publication, and for certain types of works the duration of copyright protection may be measured from the date of publication. Under the copyright act of 1909, publication marked the dividing line between state common law protection for the work and federal statutory protection, but Congress abolished common law copyright in the 1976 copyright statute, thus greatly lessening the significance of publication. Prior to 1989 publication without a copyright notice could result in loss of rights, but use of copyright notice on copies of a published work has been optional since that year, when the United States ratified the treaty known as the
- In copyright law, the exclusive right of the holder of a copyright to prepare “derivative works” based on the copyrighted item. For instance, the right to prepare a screenplay based on a novel or the right to publish an English translation of a work originally written in French. (
- Common Law Copyright
- Several provisions of the Copyright Act provide that certain parties may make certain types of uses of certain types of copyrighted material without the explicit permission of the copyright owner, on payment of a governmentally determined royalty. The royalty amount is fixed by copyright royalty judges who are appointed by the Librarian of Congress. Among the more important compulsory licenses are those that permit cable television companies to retransmit broadcast television programs, and those that permit record companies to make cover recordings of songs.
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IV. Misappropriation & the Right of Publicity 27 results (showing 5 best matches)
- Congress explicitly addressed the question of pre-emption in preparing the revised copyright statute enacted in 1976. Section 301 of that statute spells out what types of state remedies are no longer allowed. Under that section, a state doctrine is pre-empted if it grants rights equivalent to one of the exclusive rights provided by the copyright statute to intangible assets that are within the statutorily defined subject matter of copyright.
- A person’s attributes—their physical appearance, name, or performing style for instance—are obviously not subject matter of copyright. You cannot copyright your face. Thus state laws protecting the right should, in most instance, avoid any pre-emption problems. Indeed, there is language to this effect in the legislative history of the copyright act.
- The principal effect of the pre-emption provision of the copyright statute is to abolish so called state “common law copyright” regardless of the label used.
- Author has just completed the manuscript of a new novel, which he has left on his desk. That night Sneak, the cleaning person at Author’s office, makes a photocopy of the novel and immediately thereafter publishes it. Author sues Sneak under state law for misappropriation. Sneak defends by claiming that the state cause of action is pre-empted. Sneak will win. The subject matter here—a novel—is within the scope of copyright. The rights involved—the exclusive privileges to make and sell copies—are also within the rights guaranteed by the copyright statute. Thus, the state remedy is pre-empted. If Author desires any relief he must seek remedies against Sneak by obtaining a federal copyright registration and then bringing suit under the federal statute. Note that Sneak’s behavior here would have been actionable under state law as a violation of Author’s common law copyright.
- 412 U.S. 546, 93 S.Ct. 2303 (1973), the Supreme Court rejected the “either/or” approach to pre-emption analysis insofar as the copyright act was concerned. In that case, the Court held that some items not within the scope of copyrightable subject matter were intangibles about which Congress did not have strong feelings. As to these kinds of creations, the Court concluded that the states were free to provide such protection as they each saw fit. Thus, a California “record piracy” statute forbidding the duplication of sound recordings that, at the time, were not protected by copyright, was upheld. This approach to pre-emption was effectively codified in § 301 of the copyright law, discussed above.
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VI. Trade Secrets 3 results
- When trade secrets are embodied in documents, unauthorized copying of those documents may constitute copyright infringement as well as trade secret misappropriation. To pursue the copyright claim, however, the owner of the secret would have to register the work with the U.S. Copyright Office, which would have the effect of making it public and destroying its secrecy. Thus there is effectively a requirement to elect between the two schemes of intellectual property protection if the owner of the information wants to litigate. In a few limited situations, however, both remedies are available. For instance, regulations of the Copyright Office provide that in cases of computer software containing trade secrets, the trade secret portions of the program may be withheld from the office while still obtaining all benefits of copyright registration.
- the courts have ruled that trade secret protection may co-exist alongside the patent and copyright laws.
- 3. Trade Secret and Copyright
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Appendix B. Model Examination 10 results (showing 5 best matches)
- The format of the restaurant is expressed in both the written scripts and in the videotapes of the Delano, M.E. episodes. Since both of these media are tangible, they constitute legitimate subjects for copyright protection. NBS may therefore file suit for copyright infringement.
- If NBS seeks to proceed alternatively on a misappropriation theory they would first have to surmount the contention that this cause of action is pre-empted. The copyright statute pre-empts any claim involving material within the scope of copyright as defined in § 102, and involving any of the exclusive rights itemized in § 106. If the copyright analysis in the foregoing paragraphs results in a conclusion of infringement, that necessarily means that any common law action is pre-empted. On the other hand, if there is no finding of infringement there will be no pre-emption.
- There are two important questions raised by such a suit. First, the court must determine whether Craig has copied merely the idea embodied in the NBS works, or whether he has taken the actual expression developed by NBS. If he has done only the former, there is no copyright infringement. Second, the court must determine if Craig has actually performed an act that is within the grant of exclusive rights contained in § 106 of the Copyright Act. He is only liable for infringement if he (1) made copies of a protected work; (2) adapted a protected work; or (3) performed or displayed a protected work.
- It happens that NBS, the network which exhibits Delano, also publishes a restaurant rating book. Restaurants listed can receive from one to four smiling faces, reflecting increasingly positive opinions of the establishment. A restaurant can also be given a rating illustrated by a picture of a skillet, and called “a pan.” This rating indicates severe disapproval. The edition of this guide published six months after Craig opened listed the Operating Room in the section for Stamford and gave it “a pan.” The rating said in part: “The shocking bad taste of this restaurant’s theme is matched only by the bad taste of its food. The meat dishes are all made with inferior cuts of beef, and the vegetables were rotten. The drinks, we might add, contain virtually no liquor.” This book carries a notice of copyright and has been registered with the Library of Congress pursuant to the Copyright Act.
- It must therefore be determined if the use of a copyrighted expression as the basis for a restaurant format is an activity constituting infringement. The most typical infringement cases involve the making of unauthorized “copies” of a protected work. The statute defines a copy as “material object in which a work is fixed … and from which the work can be perceived, reproduced or otherwise communicated.” Thus, the videotapes of the Delano, M.E. shows portraying the hypothetical restaurant would be material objects embodying the various expressive elements of the restaurant. Recent changes in the copyright statute have extended protection to works of architecture, providing protection for the “overall form as well as the arrangement and composition of spaces and elements in the design.” ...”) or gave an unauthorized performance of it. While many of these issues would be ones of first impression, there is a not inconsiderable risk that Craig might be found liable for copyright...
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I. Basic Themes of Intellectual Property Law 19 results (showing 5 best matches)
- Copyright law protects creative works of an aesthetic nature usually described as “works of authorship.”
- If the owner of a CD containing copyrighted music wanted to sell the CD, it might seem that the transaction would infringe the exclusive rights of the party owning the copyright in the songs on the CD. After all, copyright law (like all branches of IP law) gives the copyright owner the ” because the intellectual property owner’s rights are said to be “exhausted” as to any given physical object once she parts with that physical object. It is thus not copyright infringement for you to sell old CDs at a garage sale, nor is it patent or trademark infringement for you to sell your used car which no doubt contains numerous patented components, along with a brand name and a logo hood ornament.
- Noted painter Jackson Picasso creates a large, one-of-a-kind oil painting. He subsequently sells the painting to Milton Moneybags, a wealthy private collector. This sale does not transfer any copyright interests to Moneybags, and if Moneybags makes copies of the painting he will infringe Picasso’s copyright. Moreover, Picasso remains free at any later date to assign the copyright in the painting to any other party of his choosing, such as a graphic design company that plans to make and market posters of the painting
- Detailed federal statutes now address all three of the basic branches of IP law. The current copyright statute is the Copyright Act of 1976, the current patent statute was adopted in 1952, and the federal trademark law, known as the Lanham Act was adopted in 1946. The Lanham Act also provides competitors with remedies against various forms of false advertising and unfair competition. Congress has amended all three of these statutes numerous times since their adoption and many of those amendments are highly significant.
- The federal copyright and patent statutes are exclusive. That means that there is no parallel substantive state law governing the same subject matter, and all copyright and patent claims must be litigated in federal courts. Moreover, appellate jurisdiction in all patent cases resides in a specialized court known as the Court of Appeals for the Federal Circuit. The Lanham Act—the federal trademark statute—by contrast, is not exclusive, and exists alongside a body of state common law dealing with trademarks.
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V. Patents 3 results
- Patents, like copyrights, seek to encourage desirable creative activity by rewarding the creators of certain types of valuable intangibles with limited monopolies. Patent law assumes that the prospect of this reward acts as an incentive to inventors. Patent law also seeks to increase society’s level of technological knowledge by demanding disclosure of inventions as the price for the valuable exclusive rights that are conferred by a patent. Like copyright law, patent doctrine derives exclusively from federal statute, which in turn implements a direct constitutional provision. Unlike copyright law, which merely forbids copying, patent law guarantees the holder of a patent the exclusive right to make, use and sell his or her invention for the statutory period of 20 years from the date of a patent application.
- This person, sometimes called PHOSITA, is of course, a fictional construct who can be thought of as another member of a famous family of imaginary but highly useful legal personages—a cousin, perhaps, of the reasonably prudent person in the law of negligence, or a half-sibling of the ordinary observer in the law of copyright. In pretending to be PHOSITA in order to determine if an invention is obvious the Patent Office and the courts must put themselves in the place of artisans skilled in a wide variety of crafts, and try to determine what would be relatively apparent to such persons given the body of material identified as the relevant “prior art.” To sharpen that inquiry, certain tests of obviousness have developed in the case law and certain approaches have been declared inappropriate.
- The patent only provides rights domestically, which means the making, using, or selling involved must occur within the United States to constitute infringement. Patent infringement does not require intent. Even a wholly innocent subsequent inventor will be liable for infringement if he or she makes, uses, or sells a device within the scope of the claims of a previously issued patent. This is unlike the rule in copyright law, where parallel independent creation of a similar work is non-infringing if the second author did not copy from the first.
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Perspective 13 results (showing 5 best matches)
- When you turn to copyright law, you are likely to read or hear that one constant in this area is accommodating the law to changing technologies. For much of its existence in the U.S. legal system, copyright has had to play a game of catch-up as new forms of creative expression became available. From the development of photography in the mid-nineteenth century, to the invention of motion pictures and phonographic recording in the early twentieth, to the arrival of satellite television and desktop computers not very long ago, the legal system has had to repeatedly confront whether to protect materials created in or distributed via these new forms, and what the limits of such protection should be. The same forces of technology have also spawned new copying technologies that have made authors and publishers feel insecure and lobby for ever greater legal protections. Whether we are considering inexpensive and ubiquitous photocopying or the ability to make perfect digital replicas of...
- A second important thought to keep in mind when reading copyright cases is that creative materials such as music, poetry and drama, are not merely end products. They are also the raw materials for future creativity. Unless a sufficient amount of such material remains freely available for all to use, the law could wind up hampering creativity, rather than promoting it. Rules that elongate the duration of copyright protection, narrow the range of authorized third-party uses, or otherwise “lock up” works may thus do more harm than good.
- The previous paragraphs have identified several themes that can help you see the bigger picture in each of the distinct sub-fields of intellectual property. Bear in mind that several of those are likely to be relevant to more than one branch of intellectual property. For instance, although fashioning legal responses to changing technology is a frequent issue in structuring copyright law, it also has been a major consideration in trademark law, as firms have moved their commercial activities into cyberspace. To take another example, insuring that we leave enough material in the public domain to permit future creators to work without hindrance is as relevant to patent law as it is to copyright. Similarly, questions of timing and priority of rights can often be dispositive in trademark disputes, just as they are in patent litigation.
- Consider federalism first. In the area of trademark law, federal statutory law and state common law dealing with the exact same subject matter co-exist. Copyright and patent law are exclusively federal fields. Nonetheless, there are a number of state doctrines that approach the edges of those bodies of law. State trade secret protection often deals with the same kind of scientific or technical innovation that has been the traditional subject matter of the patent scheme. State misappropriation and right of publicity protection both deal with types of creative and economically valuable intangibles that resemble those protected by the copyright laws. In many situations, state and federal law are consistent and supplementary. Where that is true, no particular analytic problems arise. In other cases, however, the student can encounter situations where the state and federal doctrines appear to work at cross-purposes. For instance state law may forbid copying certain aspects of a product...
- A second recurring debate in contemporary intellectual property law concerns the degree to which domestic law should be influenced by foreign or international doctrines. The last two decades have seen an enormous movement by the United States towards harmonization of its copyright laws with those of the rest of the world, starting with the ratification of the Berne Convention in 1989. However, even after these changes, there remain areas where our copyright laws continue to conflict with international norms. In the area of patents and trademarks, the differences are even more fundamental. The United States continues to adhere to some basic rules that put our law at odds with most of the rest of the world.
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Appendix F. Index of Key Terms 9 results (showing 5 best matches)
Summary of Contents 10 results (showing 5 best matches)
Table of Contents 21 results (showing 5 best matches)
II. Trademarks 3 results
- c. Copyrighted Materials and the
- opinion cited above announced a significant limitation on the doctrine. In that case, Twentieth Century Fox had produced a documentary television series about World War II based on the memoirs of Dwight Eisenhower, which it eventually distributed on videotape. Due to a failure to observe certain formalities, the copyright on the film allegedly lapsed and the film fell into the public domain. Thereafter, Dastar purchased copies of the film, made some slight changes to it, and sold copies of it under its own name, deleting all references to Fox and its role in preparing the original film. Fox sued under § 43(a) of the Lanham Act, alleging that Dastar had made a false designation of “origin” concerning the film by failing to mention or give credit to Fox. The Supreme Court, however, rejected the claim. It held that
- Under both the Lanham Act and the state common law of trademarks, ownership of a mark is generally linked to a specific type of goods or services. In other words, a firm does not own rights to a word, slogan, or logo in the abstract, and for all purposes, but only in relation to the types of goods that it markets. In this regard, trademark differs significantly from copyright law. This is also why the same word can be used by unrelated firms as a valid trademark for entirely different types of goods (such as CHAMPION for sweat pants and CHAMPION for spark plugs). There is a limited exception to this idea involving a concept know as “trademark dilution,” which we will consider a bit further on in this chapter.
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- Most intellectual property claims can be seen as the appropriation of valuable intangible rights belonging to another and use of those rights without permission for one’s own purposes. That pattern recurs with trademarks, copyrights, the right of publicity, patents, trade secrets, and the more ephemeral intangibles protected by the generic misappropriation doctrine. There is another way a firm can seek unfairly to divert patronage from a rival, however—it can make direct misrepresentations to the public. Those can either be claims of false merit about its own products, or false allegations of problems and defects with the goods or services of its rival. These behaviors give rise to problems of false advertising and disparagement, respectively.
- ...For instance, a sculpture may be too large to fit in the space where the owner wishes to exhibit it, so parts may be removed. The contemplated alterations, however, may be contrary to the artistic style and desires of the artist. If the work is exhibited in the altered form, but identified as the work of the original artist, that artist’s reputation may be damaged. This harm is similar to disparagement in that it leaves consumers with a depreciated view of someone else’s products or services. There is authority for the proposition that such situations are actionable under § 43(a) because the altering party is falsely representing that the item in question represents the (unadulterated) creative effort of the artist whose name appears on it. (Such alterations are actionable in many European nations under one prong of the concept known as “droit morale” and have been made directly actionable in limited circumstances under § 106A of the U.S. copyright statute, discussed in section H...
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- Publication Date: April 13th, 2006
- ISBN: 9780314147387
- Subject: Intellectual Property
- Series: Black Letter Outlines
- Type: Outlines
- Description: This reference provides an overview of unfair trade practices, including the common-law and statutory basis of unfair competition, antitrust, consumer protection, regulated industries, and labor. Includes discussion of intellectual property, which is also composed of statutory and common-law elements. The text is a helpful resource for students studying business or commercial torts, intellectual property, trade regulation, unfair competition and unfair trade practices, and related subjects.