Paralegal Handbook: Copyright and Intellectual Property
Copyright refers to the exclusive legal rights to a work. In order to qualify for copyright protection, this work must:
- exist in some physical form for at least some period of time
- be originally, independently created by the author/creator
- be the result of a creative means
Copyright does not protect:
- facts, such as scientific proofs, mathematical formulas, news, etc.
- the author’s ideas or subject matter behind the work
The copyright for works published after 1977 lasts for the life of the author plus an additional seventy years. If said work is a work for an employer or payment, or is published anonymously or under a pseudonym, the copyright can last between 95 and 120 years.
~ Brief History of U.S. Copyright Law from Brigham Young University
~ Overview of Copyright from Purdue University’s Copyright Office
~ Copyright Laws on the Internet from the University of Pittsburg
~ Will Mickey be the Property of Disney Forever? from the University of Illinois
Intellectual property is intangible property such as ideas, expressions, formulas, or any other creation of the mind. Intellectual property, like tangible real or personal property, may be bought, sold, or leased. The major types of intellectual property include patents, copyrights, trademarks, and trade secrets.
While copyright protects the form of expression rather than the subject matter of the expression. A person could convey the same subject matter of the copyrighted work in a different form of expression without infringing the copyright. For example, copyrighted software protects the actual code, but a patented code would protect the function of the software, preventing others from developing their own similar code.
~ Intellectual Property FAQ from University of New Hampshire Research Office
~ Intellectual Property Overview from Stanford University’s Encyclopedia of Philosophy
~ Intellectual Property on the Web from North Carolina State University
A patent protects the rights to reproducing, selling, or using the patented invention. In exchange for disclosure of how to make and use the product, the government grants a legal monopoly to the owner of the patent. Currently, patents last for twenty years and come in three different varieties:
- Design patents protect non-functional, novel design for an article of manufacture.
- Plant patents protect new and distinct asexually reproducible plant varieties.
- Utility patents protect any new, useful process, machine, manufacture or composition of matter or any new or useful improvement thereof.
In order to obtain a patent, an application must be submitted to the United States Patent and Trademark Office where the invention is evaluated for usefulness, novelty and non-obviousness.
Utility – the invention must have a use. That is, it must work if it is a machine, or have a specific, beneficial use if it is a chemical.
Novelty – the invention must not already be a product. A new use of an old invention can classify as novel, but there is no novelty if the invention has been known or used the same way prior to the application.
Non- obvious – The invention’s use must not be readily apparent to “one of ordinary skill in the art.” This requirement is highly subjective, and applications are decided on a case by case basis.
The United States Patent and Trademark Office defines a trademark as “a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.” Trademarks help companies or inventors protect their reputation by allowing customers to easily distinguish between makers.
~ General Trademark Basics from United States Patent and Trademark Office
~ Overview of Trademark Law from Harvard Law School
~ Notorious: The Treatment of Famous Trademarks in America and How Protection Can Be Ensured from Pepperdine University’s Journal of Business, Entrepreneurship & the Law
How to Establish Copyright
Copyright exists from the moment that a work is created, according to the U.S. Copyright Office. Registration with the Copyright Office is by no means required unless the owner of the owner wishes to bring a copyright infringement lawsuit. However, many creators choose to register their works with the Copyright Office because they like to have a certificate of registration and have their registration on public record. Also, if a work is registered within five years of publication, it is considered prima facie evidence in a court of law.
~ FAQ Copyright in General from the U.S. Copyright Office
~ Online Copyright Registration from the U.S. Copyright Office
~ Checklist for Creating New Works from the University of Washington Copyright Connection
What is Considered Fair Use of a Copyrighted Work?
Copyrighted work can be used to a certain extent. Oftentimes, fair use includes use for non-profit, educational purposes. Quotes can be used for commentary, review, or criticism purposes. Parodies of a work are also allowed. However, uses that negatively affect the market value of the work (such as quoting the big surprise ending of a book) are not protected by fair use.
~ Fair Use from the U.S. Copyright Office
~ Measuring Fair Use from Stanford University Libraries
~ Musical Parody: Derivative Use or Fair Use? from Loyola of Los Angeles Entertainment Law Review
~ Examples of Successful Fair Use in Documentary Film from the Center for Social Media
A valid copyright often appears on protected works. For a published copyright notice, the copyright looks like this Copyright © 2012 by Joe Somebody and contains:
the word “copyright”
the copyright symbol (©)
the date of publication
the name of either the author or the owner of all the copyright rights
While a valid copyright notice is no longer required to copyright a work (copyright begins at conception), many authors and owners choose to include a notice as an additional reminder to would-be plagiarizers.
~ What role does a copyright notice play? from Stanford University Libraries
~ How to Write a Copyright Notice from Oregon State University Business Services
~ How to Determine Whether a Work is in the Public Domain from Arizona State University
~ Hustler Magazine, Inc. v. Moral Majority, Inc. – 1985
~ Harper & Row, Publishers, Inc. v. Nation Enterprises – 1985
~ Wright v. Warner Books, Inc. – 1991
~ Campbell v. Acuff-Rose Music – 1994
~ New York Times v. Tasini – 2001
~ MGM Studios v. Grokster – 2005