Intellectual Property and Unfair Competition in a Nutshell
Authors:
McManis, Charles R. / Friedman, David J.
Edition:
7th
Copyright Date:
2013
10 chapters
have results for copyright
Chapter 6. Appropriation of Publicly Disclosed Intangible Assets 99 results (showing 5 best matches)
- Pursuant to its constitutional power, Congress has long provided copyright protection and has steadily expanded its scope. The most comprehensive recent expansion came in the Copyright Act of 1976, 17 U.S.C. § 101 et seq., as subsequently (and frequently) amended—for example, by P.L. 96–517 (Dec. 12, 1980) (specifically providing for and delineating the scope of copyright protection for computer programs); the Berne Convention Implementation Act of 1988; four 1990 amendments (the Architectural Works Copyright Protection Act, the Visual Artists Rights Act, the Computer Software Rental Amendments Act, and the Copyright Remedy Clarification Act); the Audio Home Recording Act of 1992; the Uruguay Round Agreements Act of 1994; the Sonny Bono Copyright Term Extension Act of 1998 (extending the copyright term for an additional 20 years); and the Digital Millennium Copyright Act of 1998; the Fairness in Music Licensing Act of 1998; the Satellite Home Viewer Improvement Act of 1999; the...
- As we have seen, prior to the 1976 Act, copyright protection was provided through a dual system of state common-law protection prior to general publication and federal statutory protection after general publication. In contrast to the dual system of trademark law, which provides federal and state protection of trade symbols, common-law and statutory copyright provided forms of protection, with “general publication” serving as the all important dividing line between the two. Common-law copyright was based on the right of the author or originator of a literary or artistic work to keep the work secret or place conditions on its limited publication to others, whereas federal copyright law provided the exclusive protection for a work after its unlimited or general publication. Under the 1976 Act, federal copyright protection extends to all otherwise copyrightable literary or artistic works fixed in tangible form, whether generally published or not and to that extent preempts much of...
- In § 301(a) of the Copyright Act of 1976, Congress expressly preempted state law to the extent that state law granted rights equivalent to copyright in works falling within the subject matter of federal copyright protection. Section 301(b) expressly permits state protection with respect to (1) subject matter not covered by the Act; or (2) granting rights not equivalent to those created by the Act.
- The exclusive right protected by federal copyright law consists, as one might expect, of a right to prevent others from copying the protected work. Unlike the exclusive patent rights, copyright does not include a right to exclude others from making, using or selling a substantially similar work that was created without reference to the protected work. As the term “copyright” suggests, infringement generally involves unauthorized copying—though what constitutes copying under the 1976 Act is broader than the common understanding of that term. Specifically, the owner of a federal copyright is granted the exclusive right to do or authorize any of the following:
- The exclusive rights in sound recordings, it will be noted, are limited to reproduction, adaptation and distribution rights and do not include a performance or display right. Thus, one does not infringe the copyright of a sound recording by playing the recording publicly. If a copyright is infringed it will be the copyright of the underlying literary or artistic work. Likewise, the performance and display royalties collected under the Act’s various compulsory licensing systems for public broadcasts will go to the owner of the underlying copyrighted work, not to the owner of the copyright in the sound recording. Public performances via digital transmissions of sound recordings, however, are now specifically protected under section 106(6) of the Copyright Act.
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Chapter 4. Use of Similar Trademarks and Trade Names 11 results (showing 5 best matches)
- An illustration of the distinction between subject matter not covered by federal copyright law and rights not equivalent to federal copyright is to be found in that branch of the common law of unfair competition which protects literary or artistic titles and characters. While there is no constitutional prohibition against federal copyright protection for literary titles, nor for that matter any expressly prohibitory language in the federal copyright law itself, the courts interpreted the 1909 Copyright Act as not extending to literary titles and Congress, by its silence on the matter in the 1976 Copyright Act, has apparently approved that construction. Consequently, states remain free and under their common law of unfair competition have in fact provided legal protection for literary and artistic titles.
- cases also left open the possibility that states may protect distinctive product and packaging features where such protection does not in fact conflict with federal law. Determining whether there is a conflict between federal and state law requires an examination not only of the policy being furthered by state law but also the policy underlying the particular federal statute in question. Although the 1976 Copyright Act expressly preempted state law that seeks to grant rights equivalent to copyright in works capable of federal copyright protection, for example, it expressly permitted state protection with respect to (1) subject matter not covered by the Act or (2) the extension of rights not equivalent to those created by the Act. See Chapter 6, infra.
- In contrast to literary and artistic titles, however, literary and artistic characters may be entitled to federal copyright protection. Cartoon characters in particular are clearly entitled to such protection. If rendered in three-dimensional form, cartoon characters may even be entitled to design patent protection. (See Chapter 6, infra.) Copyrightable or patentable characters may nevertheless be protected under the common law of unfair competition against deceptive imitation so long as the state protection against deception does not grant a right equivalent to copyright. States may thus require labeling, even if they may not prohibit copying. As with product features generally, the policies underlying federal patent and copyright law merely limit the remedies that a state may make available to prevent deception.
- as having held that the patent and copyright clause of the Constitution placed constitutional limits on the power of any government—federal or state—to prevent the simulation of unpatented articles, the prevailing view, adopted by the Supreme Court itself in is merely to be read as having held that, because of the supremacy clause of the Constitution, federal patent law preempts state unfair competition law where there is a conflict between the two. Thus, the federal government remains free to prohibit or otherwise regulate product and business imitation—at least so long as such regulation is within its constitutional powers to grant patents and copyrights or regulate commerce and does not conflict with other constitutional provisions, such as the First Amendment. That ruling in
- The test for vicarious liability is more narrowly circumscribed in trademark cases than in copyright cases. See Chapter 6 B.2. infra. One can only be held vicariously liable for trademark where the defendant and the direct infringer have an apparent or actual partnership, have authority to bind one another ., 494 F.3d 788 (9th Cir.2007), holding that, although one can be contributorily liable for infringing online services, payment processing by credit card companies and affiliated banks and data processing services which were notified of alleged copyright and trademark infringement by specified websites does not constitute material contribution to infringement, nor are defendants vicariously liable in the absence of direct control and monitoring of instrumentality used by direct infringer to infringe.
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Chapter 7. Appropriation of Trade Secrets and Ideas 8 results (showing 5 best matches)
- The federal Copyright Act of 1976, 17 U.S.C. § 301(a), preempts much of the common law of copyright in the U.S. On or after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 of the 1976 Act in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by the 1976 Act.
- The classes of subject matter protected under the 1976 Copyright Act and the exclusive rights it confers on a copyright holder are discussed in Chapter 6, supra. All that need be added here is that the owner of an unpublished copyrightable work embodying a trade secret may avail himself of all the rights and remedies of the federal copyright law in seeking to prevent unauthorized copying of the work embodying the trade secret—subject, of course, to the qualification that copyright protection extends only to an author’s original expression and not to the idea expressed.
- Registration and deposit with the Library of Congress is required of a U.S. created or non-Berne Convention work before an action for infringement may be brought, and the Library’s records are open to the public. However, the Register of Copyrights may exempt certain works from the deposit requirement, and the Copyright Office has promulgated regulations which protect trade secrets in certain cases. See 37 C.F.R. §§ 202.19(e) and 202.20(c)(2)(vi) and (vii) (1991) (enabling copyright holders to 1) seek special relief in the form of an exemption from the required deposit with the Library of Congress; 2) obtain prompt return by the Copyright Office after examination of any “secure test,” such as the LSAT, deposited as a part of registration; and 3) deposit identifying portions, rather than an entire copy, of any computer program sought to be registered, with any trade secret material contained in the program blocked out).
- , 3 L.J.Ch. 209 (1825) the court enjoined as a breach of confidence the publication of unpublished lectures of a distinguished surgeon, holding that persons attending the lecture, although privileged to take notes for their own use could not publish the lectures for a profit. This form of protection came to be known as common-law copyright.
- Trade secrets and ideas, like distinctive trade symbols, patents, copyrights and other investments of intellectual effort, may be assigned or licensed.
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Chapter 1. Introduction to the Law of Intellectual Property and Unfair Competition 14 results (showing 5 best matches)
- the Copyright Act of 1976, for example, expressly preempts state law that grants exclusive rights equivalent to those specified in the Act to fixed works of authorship that come within the various categories of copyrightable subject matter specified in the Act. Before 1976, federal copyright law had merely supplemented the common law of copyrights by extending the right to prohibit unauthorized copying to published works, just as the common law had long protected unpublished works.
- In addition to this express congressional preemption of the field of copyright law, the Supreme Court has had a number of occasions to consider the extent to which states can extend the scope of federal patent or copyright protection or protect writings and discoveries that do not qualify for patent or copyright protection. See, e.g., law. The Court concluded that to forbid copying would interfere with federal policy found in the patent and copyright clause of the Constitution and the implementing federal statutes, of allowing free copying of whatever the federal patent and copyright laws leave in the public domain.
- but prior to the time Congress expressly preempted the field of copyright, the Court, in , 412 U.S. 546 (1973), had occasion to consider the effect of federal copyright law on a state criminal statute prohibiting record piracy. The Court upheld the state statute, distinguishing as having involved the federal patent statute, which contained a set of standards indicating not only what Congress wished to protect but what it wished to remain in the public domain. For state law to prevent the copying of articles which federal patent law would leave in the public domain would disturb the balance Congress had drawn. The 1909 federal copyright statute, on the other hand, reflected no congressional balancing with respect to sound recordings, but had merely left the area unattended. Thus, the states remained free to act until Congress stepped in an expressly preempted state law governing copyrights.
- , 537 U.S. 186 (2003), the Court held that the Copyright Term Extension Act of 1998, extending the term of both existing and future works for a period of twenty years, did not exceed Congress’ power under the Copyright Clause or violate the First Amendment rights of prospective users of works that otherwise would have fallen into the public domain. Likewise, Congress was later found not to have exceeded its authority under the Copyright Clause or violate the First Amendment by enacting 17 U.S.C. § 104A to extend U.S. copyright protection to works under existing copyright protection in member countries of the Berne Convention for the Protection of Literary and Artistic Works but lacking protection in the United States. See
- The United States is also a party to the WIPO-administered Patent Cooperation Treaty, which came into force in 1978 and establishes procedures that facilitate the filing of parallel patents in signatory countries. The U.S. has also become a party to a number of WIPO-administered trademark treaties, the most important being the Madrid Protocol, which facilitates the international registration of trademarks via a single basic (i.e. home country) application. The United States is likewise a party to the UNESCO-administered Universal Copyright Convention of 1954 and a number of similar multilateral and bilateral treaties concerned with the international protection of copyrights. As with the Paris Convention, the objective of the Universal Convention is “national” (i.e. non-discriminatory) treatment. In 1988, the United States adhered to the older (WIPO administered) Berne Convention of 1886, which, as most recently revised in Brussels in 1948, generally requires member countries to...
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Preface 2 results
- In 1996 the World Intellectual Property Organization (WIPO), the international agency long responsible for administering the Paris Convention and the Berne Convention for the Protection for Literary and Artistic Works (1886), reasserted its authority to guide international intellectual property policymaking, promulgating the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), which sought to adjust the law of copyrights and related rights in the new digital age.
- Trade (GATT) and created the World Trade Organization (WTO). TRIPS entered into force on January 1, 1995, becoming the first international agreement to establish minimum standards for the protection of all seven of the categories of “intellectual property” enumerated in the TRIPS Agreement—i.e. 1) copyrights & related rights; 2) trademarks; 3) geographical indications; 4) industrial designs; 5) patents; 6) designs of integrated circuits; and 7) undisclosed information. Article 39 of TRIPS specified that the protection of undisclosed information was henceforth to be considered an essential element of ensuring effective protection against unfair competition as provided in Article 10
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Index 43 results (showing 5 best matches)
Outline 4 results
- , 539 U.S. 23 (2003), however, the Supreme Court recognized an important limitation on claims of “reverse passing off” under § 43(a) of the Lanham Act when it held that the release of a set of videos, without attribution to the original producer of a previously copyrighted TV series that had fallen into the public domain, did not constitute reverse passing off or a false designation of origin in violation of § 43(a). The Court held that to avoid conflict with the federal law of copyright, the “origin of goods” under § 43(a) of the Lanham Act should be construed to mean the origin of the tangible product sold in the marketplace, and not the origin of ideas or communications that the product embodies or contains. To read § 43(a) as creating a cause of action for plagiarism, said the Court, would be hard to reconcile with the Court’s previous decision in
- as they were published on the east coast and then used those stories to compete with the other news service on the west coast]”). As can be seen, “reverse passing off” frequently involves plagiarism of another’s literary work. In such cases, the passing off claim is often accompanied by or subsumed in claims of copyright infringement, misappropriation, or invasion of the right of publicity. See, e.g., ...10 Dist.1977) (where a president of a research laboratory, without authorization presented an unpublished article, written by a biochemist during the course of his employment with the laboratory in such a way as to indicate that it was the work of the president, the biochemist had a cause of action—be it classified as a claim for relief for plagiarism, invasion of a right of publicity or prima facie tort—as the president violated the employee’s right to be recognized for his work product, even though he claimed no common-law copyright interest in the article and the discovery...
- In addition to holding that there was a substantial likelihood that ABC’s editing of the TV recording constituted an infringement of Monty Python’s copyright in the underlying script, the court concluded that Monty Python had also stated a cause of action under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), which creates a federal cause of action against anyone who uses a false designation of origin or a false description or representation in connection with any goods or services put into commerce. (See Chapter 8 infra). The court noted that while American copyright law had not as yet recognized any equivalent of the European civil law concept of
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- ..., trademark infringement and dilution, and copyright infringement. However, a 1996 amendment to the Federal Communications Act provides a safe harbor for providers of interactive computer services, both on and off the Internet. See 47 U.S.C. § 230. Litigation can be a risky tool to learn the identity of an unknown speaker, as at least 28 states have enacted legislation to discourage so-called SLAPP lawsuits (i.e. “strategic lawsuits against public participation”) brought for the purpose of censoring, intimidating, and silencing critics by burdening them with the cost of defending themselves in court). Such antiSLAPP legislation could apply to any lawsuit filed to gain subpoena power sufficient to compel disclose of the identity of an anonymous critic, where there is little hope the claimant will prevail on the merits of the claim. The constitutionally preferred remedy for combating false or deceptive anonymous speech, as well as falsehoods and fallacies more generally,...
- , 429 F.Supp. 407 (C.D.Cal.1977), holding that defendant’s failure to warn customers that use of a Betamax recorder to copy TV programs could violate copyright laws, failed to state a claim under § 43(a). In
- , 543 F.2d 1107 (5th Cir.1976) (upholding a $200,000 jury verdict for common law copyright infringement and a § 43(a) violation). In
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- Publication Date: November 13th, 2012
- ISBN: 9780314280640
- Subject: Intellectual Property
- Series: Nutshells
- Type: Overviews
- Description: This guide offers a broad summary of the law of intellectual property (patents, copyrights trademarks, trade secrets, and a variety of other sui generis forms of protection for innovations and creativity) and the law of unfair competition (trademark infringement, passing off, trade disparagement, and deceptive advertising).It also touches on related fields of law, such as antitrust, consumer protection, regulated industries, and the law governing interference with contractual and noncontractual relations.
