Principles of Intellectual Property Law
Author: Myers, Gary
Copyright Date: 2017
22 chapters have results for copyright
Chapter 3. Copyright Ownership 184 results (showing 5 best matches)
- Finally, a fundamental distinction in copyright law is the difference between ownership of the copyright (
- A copyright notice is an indication by the author or copyright owner of its claim to a particular work. The notice consists of the word “Copyright” (or the © symbol), the date of publication, and the name of the author or copyright owner. The notice is to be placed on an inside front cover or other similar place. Thus, for example, this book contains a copyright notice on the inside cover indicating that it is copyrighted by West Academic in 2017. The copyright notice should be placed on the work in a manner that gives reasonable notice of the claim of copyright. The notice should be permanently legible to an ordinary user of the work under normal conditions of use and should not be concealed from view. The Copyright Office has issued regulations regarding ways to affix and position the notice.
- Effect of Omission on Copyright.—With respect to copies and phonorecords publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988, the omission of the copyright notice described in sections 401 through 403 from copies or phonorecords publicly distributed by authority of the copyright owner does not invalidate the copyright in a work if—
- The copyright notice serves at least four beneficial purposes: it places published material in the public domain when the author is not interested in maintaining copyright protection, it serves to inform the public regarding whether a particular work is copyrighted, it identifies the copyright owner, and it indicates the publication date. Even under current law, the notice can serve these informational roles, even though the absence of a copyright notice no longer necessarily indicates that the work is in the public domain.
- Addressing the Copyright Clause challenge, the Court noted that the copyright restoration still maintained a limited time period for copyright protection, thus leaving intact the rule against perpetual copyrights. Second, the Court cited past examples of legislation that effectively placed unprotected works back into the public domain, including the Copyright Act of 1790 (the very first federal copyright statute), which offered federal protection for some
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Chapter 4. Copyright Infringement 103 results (showing 5 best matches)
- Ownership of the rights conferred by subsection (a) with respect to a work of visual art is distinct from ownership of any copy of that work, or of a copyright or any exclusive right under a copyright in that work. Transfer of ownership of any copy of a work of visual art, or of a copyright or any exclusive right under a copyright, shall not constitute a waiver of the rights conferred by subsection (a). Except as may otherwise be agreed by the author in a written instrument signed by the author, a waiver of the rights conferred by subsection (a) with respect to a work of visual art shall not constitute a transfer of ownership of any copy of that work, or of ownership of a copyright or of any exclusive right under a copyright in that work.
- It is often said that copyright law provides the author with a series of rights analogous to a “bundle of sticks.” As section 501(a) of the Copyright Act makes clear, the copyright owner has a cause of action if any of its exclusive rights are violated: “Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a).”
- arose from its conclusion that the bargain inherent in U.S. copyright law requires unfettered access to the work once the copyright term ends in exchange for the benefits afforded the creator during the term. Any requirement of attribution or disclaimer would impose a restriction on the public domain that copyright law cannot tolerate; accordingly, trademark law-based claims must give way. But this view mischaracterizes both the nature of the copyright bargain and the scope of trademark law. Properly construed, the copyright bargain cedes to the public only the rights given to the creator during the copyright term: the exclusive right
- The principal “bundle of sticks” or basic set of economic rights of copyright owners is set forth in section 106 of the Copyright Act:
- In order to assess whether copyright infringement has taken place, each of the rights under section 106 of the Copyright Act must be analyzed. If any one of the copyright owner’s rights in the “bundle of sticks” is violated, there is copyright infringement. Section 106 sets forth five principal rights: the right of reproduction, distribution, derivative works, public performance, and public display. Authors of “works of visual art,” a very limited and precisely defined category of works identified in section 101, have additional rights of attribution and integrity, which are found in section 106A. These section 106A rights are a form of “moral rights,” and are discussed in ¶ 4.03. The five rights in section 106, in contrast, are considered economic rights, and have been the touchstone of United States copyright protection for many years.
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Chapter 5. Copyright Defenses 121 results (showing 5 best matches)
- The importation of copyrighted works presents a challenging question regarding the scope of the first sale doctrine. A number of courts previously held that the first sale doctrine does not apply to these imported works, because they were not lawfully made under the United States Copyright Act.
- institutes policies regarding copyright, provides informational materials to faculty, students, and relevant staff members that accurately describe, and promote compliance with, the laws of the United States relating to copyright, and provides notice to students that materials used in connection with the course may be subject to copyright protection; and
- (noting that unclean hands defense is recognized “rarely” in copyright law, and only when the copyright owner’s transgression is serious and relates directly to the subject matter of the infringement action);
- The use of a copyrighted work for compatibility purposes can constitute a fair use. For example, as the court held in
- Libraries and archives have particularly strong arguments for special protections from copyright infringement liability, given their critical role as repositories and disseminators of information and their non-profit status. Section 108 of the Copyright Act contains very specific protections for these institutions.
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Chapter 13. Patentable Subject Matter 8 results (showing 5 best matches)
- Providing patent protection for ornamental and non-functional designs presents a distinct possibility of overlapping protection with copyright law. The Supreme Court has recognized the potentially overlapping “statutory subject matter” in the fields of copyrights and design patents. In
- The overlap between copyright and design patent law presents the inevitable question of interest to designers who wish to maximize the Intellectual Property protections for their work—can a designer obtain
- Federal courts have exclusive jurisdiction over patent cases: “The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks. Such jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases.”
- Like the Statute of Monopolies, the United States Constitution recognizes the value of limited patent terms for inventors. The Patent & Copyright Clause,
- . The Patent Office disclosure includes detailed descriptions of each patent, along with accompanying drawings and specifications. Moreover, although patent protection is broader in scope than other forms of Intellectual Property protection, it is much shorter in duration and more difficult to obtain than trademark or copyright protection.
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Chapter 2. Copyrightable Subject Matter 110 results (showing 5 best matches)
- As the Copyright Act expressly states, this listing is not an exclusive cataloguing of the types of works protected under copyright law. Instead, it is clear that any original work of authorship is eligible for copyright law’s benefits once it is fixed in a tangible medium of expression.
- The scope of copyright’s subject matter has grown considerably from the first American copyright law, the Copyright Act of 1790, which protected only books, charts, and maps. This first statute provided:
- Copyright protection for architectural works presents some challenges—some unique and some frequently encountered in copyright law. A unique problem is how to deal with photographs of buildings that are designed by an architect—does the photograph infringe the copyright in the work of architecture? Section 120(a) of the Copyright Act expressly prevents assertion of such a claim, providing as follows: “The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or
- The basic tenet of copyright law is that copyright protection is predicated upon originality. No one, however, may claim originality as to facts. Facts may be discovered, but they are not created by an act of authorship. Consequently, the copyright protection afforded to fictional works differs from that afforded to factual works. In the case at bar, plaintiff claims that his book is an amalgam of fact and fiction, and hence it is entitled to full copyright protection. The general rule is that fictional elements, or fictionalized versions of factual elements, of an otherwise factual work are protectable under copyright law. Copyright estoppel is an exception to the general rule. Under the doctrine of
- Does an unfixed work have any Intellectual Property protection? The answer is that it does not under federal copyright law, but state law may offer protection for it. Since the enactment of the 1976 Copyright Act, there has been hardly any reported litigation involving state copyright law. Probably the best known state law copyright case is
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Chapter 1. Overview 12 results (showing 5 best matches)
- There are state law counterparts to each of these three federal intellectual property schemes. The state laws vary in terms of their modern significance. With regard to copyrights, state copyright law has been largely preempted by the federal Copyright Act of 1976, although there remains some state copyright protection for certain “unfixed” works, such as an unscripted and unrecorded speech or
- Intellectual property is one of the most heavily debated areas of the law, particularly as to the scope of rights that inhere to owners of patents and copyrights. Intellectual property has grown in importance, particularly as the economy has grown to be more service-and information-based. Music file-sharing, biotechnology, prescription drugs, and software are leading topics of the day. The growing importance of these rights has only heightened the importance of Intellectual Property policy. Fundamentally, Intellectual Property rights offer exclusivity—a kind of monopoly in some instances (though the patent or copyright does not necessarily confer market power in an economic sense, because there may be substitute products available to give consumers an alternative to the patented or copyrighted item).
- A key tenet of Intellectual Property is the idea that information should fall into the public domain upon expiration of the patent or copyright. This concept is consistent with the constitutional dictate that copyrights and patents can exist for “limited times.” The policy remains ingrained in both copyright and patent law, even though copyright and patent terms have been the subject of rather recent extensions. In
- In addition to considering the importance of the public domain, a recurring issue involves the interaction of IP law and the First Amendment. This intersection is most prominent in the copyright field, as that is the area of law that protects expressive works and thereby might also impinge upon the ability of others to use creative expression that is protected by someone else’s copyright. The issue arises too in the use of trademarks for expressive purposes.
- The jurisprudential basis for Intellectual Property has both theoretical and practical significance. On a theoretical level, it is important to understand why IP rights are granted, for example, to the maker of a hit movie or a blockbuster pharmaceutical product. On a practical level, courts often look to the underlying purposes of patent, copyright, and trademark law in order to decide close cases. Unlike some areas of the law, IP issues are often not clear-cut, and the policy rationales for IP protection can help guide courts in drawing the lines between permissible and unlawful uses of IP-protected materials. For instance, whether a particular use of a copyrighted work using modern technology infringes on a copyright may well hinge upon the extent to which that use would frustrate the incentives that authors have to create the work in the first place. Thus, compare the analysis of copying a thumbnail version of a photograph onto Google’s search engine with wholesale copying of...
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Chapter 6. Copyright Remedies 24 results (showing 5 best matches)
- Section 504 sets forth monetary remedies for copyright infringement. In general, an infringer of copyright is liable for either (1) the copyright owner’s actual damages and any additional profits of the infringer or (2) statutory damages, as provided in section 504(c). The first of these options is a typical remedy in the Intellectual Property field, and indeed in many other areas of the law as well. In essence, this option allows the copyright owner to recover compensatory damages for the loss it suffered or the gain the defendant obtained. The second option, statutory damages, is a much more unusual provision, as discussed below.
- The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.
- Evidence.—For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.
- Often damages in copyright cases are difficult to prove or to quantify, and Congress has provided for a relatively unique alternative method for allowing copyright owners to obtain monetary relief—the statutory damage claim. This remedy is not found in most other areas of Intellectual Property law, and indeed is quite unusual in the law more generally. Section 504(c) establishes the general range for statutory damage awards: “the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.” Accordingly, the factfinder can award statutory damages in an amount ranging from $750 to $30,000 per copyrighted work. For...
- Section 502(a) of the Copyright Act authorizes courts to issue injunctive relief: “Any court having jurisdiction of a civil action arising under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” By its express terms, this provision is permissive, and thus injunctions are not mandatory and are within the sound discretion of the court. Relief available includes temporary restraining orders (TROs), preliminary injunctions, and permanent injunctions.
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Introduction 4 results
- (setting the standard for granting injunctions in patent cases), and in copyright law, such as
- Social media have made sharing information with friends and followers easier and quicker, but federal copyright law is struggling to adapt to the challenges presented by these tools. When hot news breaks, how soon can it be tweeted? If an image is shared via Flickr or Facebook, can it be used for news or marketing purposes? Is it fair use to post portions of song lyrics, news articles, or YouTube videos on your Tumblr? What legal ramifications do mock Twitter accounts face? Will Creative Commons save us all?
- ...our culture, our economy, and our lifestyle. Every new and innovative product—from the latest iPhone to the newest pharmaceutical product or medical device—is protected by patent law. The massive and pervasive technology firms that have defined our culture and altered how we interact with each other and with society in this century—Apple, Facebook, Google (Alphabet), Amazon, and Microsoft—all depend to varying degrees on their intellectual property. Each of these companies possesses proprietary technology protected by a portfolio mix of patent, copyright, and trade secret law, and each draws considerable value from the value of their brands, which are protected by trademark law. Our lifestyles are transformed by innovations that are secured by the protections of intellectual property law. As we approach a time when virtual reality technology, self-driving cars, and vast libraries of streaming content become a normal part of our lives, intellectual property law provides the legal...
- Intellectual property is, in my opinion, the most fascinating, rapidly changing, and analytically complex area of the law that you will encounter today. Intellectual property protections—which include the law of copyright, patents, and trademarks—come into play in fields as diverse as entertainment, sports, aviation, automobiles, biotechnology, and retail franchising. Every new movie, song, pharmaceutical product, brand-name product, and video game presents material that is protectable under one or more Intellectual Property paradigms. As the 2012 edition of this book went to press, for example, Apple had just won a $1 billion verdict against Samsung for infringement of Apple’s patents. As this 2017 edition goes to press, the Supreme Court just reviewed this verdict and decision, which continues to make its way through the federal court system.
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Index 21 results (showing 5 best matches)
Chapter 12. The Right of Publicity 3 results
- Because of its variation from state to state, some commentators have endorsed the concept of a uniform federal statute addressing the right of publicity. There are a number of reasons why such a statute might be desirable, such as national uniformity, predictability, and simplification of the law, as well accommodation of First Amendment concerns. But it can be questioned whether the right of publicity is much different from any number of other areas of tort law in which widely varying state laws are tolerated. Finally, it should be noted that in some instances the right of publicity can be preempted by federal copyright law.
- (in suit claiming that broadcast of baseball games violated baseball players’ right of publicity, court held that plaintiffs’ state law right of publicity claims were preempted by the Copyright Act of 1976).
- interplay with freedom of expression. The court applied the “transformative elements” test, which is somewhat akin to the fair use analysis used in copyright law (and particularly the Supreme Court’s fair use analysis in the 2 Live Crew case,
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Chapter 9. Trademark Infringement 7 results (showing 5 best matches)
- variety trademark cases, but it provides an uncomfortable fit in parody cases. The Supreme Court’s recent copyright decision in
- To accomplish this task [of balancing conflicting interests] in trademark law, a careful assessment of the likelihood of confusion test is required. The analysis must be attuned to the realities of parody cases. If mechanically applied, some factors in the likelihood of confusion test are likely always to favor the plaintiff because of the parodist’s need to conjure up the original and the need to parody a strong mark. If these factors are nearly always weighed in the plaintiff’s favor, the deck will be stacked against parody. It was this approach that the Supreme Court repudiated in copyright law when it decided
- Gary Myers, Trademark Parody: Lessons from the Copyright Decision in Campbell v. Acuff-Rose Music, Inc., 59 Law & Contemp. Probs. 181 (1996)
- memories,” and Rodney Dangerfield’s “Take my wife please” and “I don’t get no respect.” Foxworthy has successfully obtained Intellectual Property protection for most of his act: his introductory slogan is protected as a trademark and the actual text or expression of his jokes is arguably protected under copyright law. Of course, Foxworthy’s name and image are protected under the right of publicity and possibly other theories as well (this right is discussed in Chapter 12). This case thus illustrates the many Intellectual Property weapons in a successful marketer’s arsenal.
- in which the creators of Monty Python’s Flying Circus successfully sued ABC under the Lanham Act on the ground that the network had so substantially altered episodes of the plaintiff’s work that placing the plaintiff’s name on the copyrighted work constituted a false designation of origin. In
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Chapter 20. Sui Generis Intellectual Property Rights 8 results (showing 5 best matches)
- clearly established that the Intellectual Property Clause does not authorize copyright protection for works that do not satisfy a minimum standard of creativity, as well as that the Copyright Act does not cover such works. In that sense, the ruling in
- Traditionally, fashion designs have been viewed as mere crafts or useful objects that do not warrant copyright protection. The fashion industry has generally flourished in spite of this general lack of copyright protection, but with increasing levels of style piracy, there have been calls from some in the industry for stronger Intellectual Property protection.
- the Supreme Court held that copyright law does not protect laboriously gathered and maintained factual compilations if they do not possess a minimum level of creativity in their selection
- The Semi-Conductor Chip Protection Act of 1984 protects original mask works and related semiconductor products upon proper registration with the Copyright Office. A mask work is a two or three-dimensional layout or topography of an integrated circuit, i.e. the arrangement on a chip of various semiconductor devices (
- Vessel Hull Design Protection Act, Title 17, Chapter 13 of the United States Code, was enacted on October 28, 1998 and provides protection for original designs of vessel hulls. The law grants an owner of an original vessel hull design exclusive rights provided that application for registration of the design with the Copyright Office is made within two years of the design being made public. The law protects vessel hull designs embodied in actual vessel hulls that are publicly exhibited, publicly distributed, or offered for sale or sold to the public on or after October 28, 1998.
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Summary of Contents 5 results
Chapter 15. Patent Infringement 2 results
- Ideas might be called the “poor stepchild” of Intellectual Property law. Copyright law specifically disavows any protection for ideas in the express language of section 102 of the Copyright Act. Clear patent law precedent also establishes that an abstract idea or concept is not eligible for patent protection. Trademark law protects branding ideas but only if they have been used in commerce or for a limited time in an intent-to-use trademark application; once again, abstract marketing or branding ideas do not receive trademark protection. Trade secret law might protect an idea, but only if it provides a business advantage over competitors, it is the subject of reasonable secrecy measures, and it is not generally known or used in the industry. So the question becomes how does a party protect an idea and how can that idea be conveyed or transferred to the party who has the greatest willingness to pay for it. Contract law provides the principal avenue for protection of ideas.
- The rule stated in this Section limits common law tort liability for appropriations of intangible trade values to cases involving an appropriation of trade secrets, an appropriation of the commercial value of another’s identity, or an appropriation of a work of authorship that is not fixed in a tangible medium of expression and thus protectable under common law copyright. Although courts have occasionally invoked the
- court held that the misappropriation claim was preempted by section 301 of the Copyright Act.
- ...absent authorization from the NBA. The district court issued a permanent injunction in the NBA’s favor. The Second Circuit reversed and dismissed the NBA’s claim for misappropriation, holding that only a narrow “hot news” misappropriation claim survived preemption for actions concerning material within the realm of copyright. The court found the additional elements that allowed a “hot news” claim to survive preemption were: (1) the plaintiff generates or gathers information at some cost; (2) the information is time sensitive; (3) the defendant’s use of the information constitutes free riding upon the plaintiff’s investment; (4) the defendant is in direct competition with the plaintiff; and (5) the free rider problem will so reduce incentives to produce the information that its existence or quality of the information would be substantially threatened. These factors were not found to be present in the case of the NBA, because the pagers did not in any meaningful way threaten the...
- Frequently, those who submit ideas fail to take steps necessary to protect their interests in compensation by gratuitously disclosing the concept. Plaintiffs often assert a variety of legal theories—express contract, implied contract, copyright, quasi-contract, and fraud. Although there are circumstances in which each of these theories of recovery can provide relief, the elements of each claim must be proven. Often, unsophisticated parties do not receive compensation and cannot prevail under any applicable legal theory.
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Chapter 7. Trademark Validity 4 results
- has repudiated the “sweat of the brow” doctrine in the copyright field. But copyright and trademark law are fundamentally different in their foundational premises. Copyright law protects authors of creative works, and the keystone of protection in that field is that the author must have engaged in at least a minimally creative effort in order to receive protection. Consequently, mere “sweat of the brow” effort, such as the diligent collection of factual data, is not enough. So the Court held in determining that a white-pages telephone directory is not copyrightable.
- The scope of trade dress claims can present challenging issues, sometimes overlapping with claims sounding in copyright law. For example,
- . The court also affirmed the copyright award.
- The plaintiff Samara manufactured seersucker children’s garments. Wal-Mart contracted with a supplier for a large quantity of children’s seersucker garments to be sold under Wal-Mart’s house brand, “Small Steps.” Wal-Mart based its design on samples of Samara’s garments, making some alterations. Samara brought suit under both copyright and trade dress theories, and prevailed at trial on both claims. Wal-Mart appealed the judgment on the ground that Samara’s clothing designs were not distinctive for purposes of the Lanham Act and there was insufficient evidence of consumer confusion.
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Table of Contents 19 results (showing 5 best matches)
Part 2 1 result
Chapter 17. Patent Remedies 1 result
- We hold, then, that an “exceptional” case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated. District courts may determine whether a case is “exceptional” in the case-by-case exercise of their discretion, considering the totality of the circumstances. As in the comparable context of the Copyright Act, “ ‘[t]here is no precise rule or formula for making these determinations,’ but instead equitable discretion should be exercised ‘in light of the considerations we have identified.’ ”
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Chapter 16. Patent Defenses 2 results
- With regard to the laches defense, in 2016, the Supreme Court granted certiorari on the question of whether the laches defense applies to limit damages in patent cases. The Federal Circuit’s ruling below raised questions regarding consistency with the Supreme Court’s recent laches decision in the copyright context, which is discussed in Chapter 5, ¶ 5.09. The decision is
- The unconditional sale of a patented article exhausts the patent holder’s rights to that particular product, just as in the case of the first sale doctrine in copyright law. The owner of that particular product is thus free to make use of or dispose of the product in whatever way it chooses without violating the inventor’s otherwise exclusive right to make, use, sell, offer to sell, or import the product. This defense is known as exhaustion of rights or first sale. The Supreme Court considered the scope of the exhaustion defense in
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Chapter 18. Trade Secret Law 1 result
- Given the wide variety of information that may be protected under its auspices, trade secret law can encompass material that might be within the scope of patent or copyright law. For example, a secret formula that enables a manufacturer to produce a chemical or a prescription drug can qualify as a trade secret—the particular steps
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- Publication Date: January 27th, 2017
- ISBN: 9781634607599
- Subject: Intellectual Property
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
- Description: Intellectual property has helped define our culture, our economy, and our lifestyle. This book provides a comprehensive survey of the entire field of intellectual property, including copyrights, patents, trademarks, trade secrets, unfair competition, and the right of publicity. It is designed to be reader-friendly and is up-to-date through October 2016, including many new important Supreme Court decisions in copyright, patent, and trademark law. It can be a study guide for an intellectual property survey course or used as a useful introduction or refresher for anyone interested in the field. The book focuses primarily on three main federal intellectual property rights – copyrights, patents, and trademarks – along with the new federal trade secret law and important areas of state law protection (such as the right of publicity).