© Copyrights and Businesses

Willow Misty Parks Anderson School of Management University of New Mexico Albuquerque, NM

© 2012 The Business Bookshelf, LLC & Willow Misty Parks

Significance of Intellectual Property Law

• Important to businesses! • Violations of other’s rights can be costly, even if done by an employee of the company • Understand the basis of ownership of Trademarks, Patents and Copyrights as business property and assets • Understand resources and legal uses available under the law • Understand when employers own employee’s works * These slides are for educational purposes only and should not be taken as legal advice. For legal questions, please seek legal counsel.

Why Is This Important? • Pirating and illegal downloading of music and movies • Borrowing images from the Internet • Making copies for the classroom • Business liability for customer and employee infringements

Intellectual Property Is Property • Property is Property: Whether tangible or intangible • Important to have respect for property rights • Would not steal a tangible item from the store, yet many download music and movies with no remorse

Other Intellectual Property Laws 2.

3.

4.

5.

6.

7.

Patents 1.

Covers systems, processes, discoveries, etc.

Stronger protection 14 to 20 years Must research history New, non-obvious and useful Requires registration Patent attorneys (Patent Bar) 8.

Generally Expensive 4.

5.

6.

7.

Trademarks ™ 1.

2.

3.

Protects words, slogans, phrases, logos, symbols, etc. that identify products in the marketplace Unlimited time Established through actual use or registration “Likelihood of confusion” Cyber squatting Dilution May be registered with State and/or Federal

Do You Own Any Copyright Rights?

© Acquiring copyrights is easy!

You can do it without even being aware of it. Does anyone have a cell phone? With pictures? You acquired copyright ownership in those! • • • • • The Copyright Notice

The symbol © The year of first publication The name of the copyright owner Not required, but highly recommended Where there is valid © notice, no innocent infringers

Original & Fixed!

Element 1: Originality

1. Some

minimal degree of creativity

. 2. The requisite level of creativity is

extremely low

; even a

slight

amount will suffice. 3. A creative spark.

4. Owes its

origin

; not copied.

Examples that did NOT meet Originality • Phone books: the white pages; alphabetical order is not enough!

• Maps—based on facts (unless the cities were imaginary or false) • There is NO “sweat-of-the-brow” doctrine in Copyright

Element 2: Fixed

Fixed: is sufficiently permanent or stable for it to be perceived or reproduced for more than a transitory duration.       Some examples of works

NOT

 fixed: Choreographic works, not notated or recorded  Improvisational speeches, not recorded Performances, not written or recorded Broadcasts, if not being simultaneously recorded Pictures, Writing or Poem in the sand Skywriting Jazz improvisations Improvisational political skits

Independent Creation

• A legal doctrine in which two or more may own copyright in essentially the identical work. • Because of the ease of getting copyright rights this may occur often. • Unlike Patents, each cannot stop the others from using the other’s work.

• They must not have “copied” or known of the other work.

The Copyright Rights: What Do You Get?

Reproduce

the work in copies Prepare

Derivatives Distribute

lending copies to the public for sale, rental, lease or

Perform

publicly*

Display

publicly

*“publicly”

display or performance if it takes place at a

place open to the public

where a

substantial number of persons outside of a normal circle

or at any place of a family and/or

social acquaintances

are gathered.

How Long Does Copyright Protection Last?

For works created after January 1, 1978: A. One author —

life of the author plus 70 years

B. Joint works —

life of last surviving author plus 70 years

C. Anonymous & works made for hire: – 95 years from publication, or – 120 years from creation, whichever is first Caveat: Works created earlier or in foreign countries are outside the scope of this presentation.

Works Made for Hire

In Scope of Employment

A work prepared by an employee within the scope of employment

is owned by the employer.

How to tell if the worker is an employee: - Payroll formalities* - Right to assign additional projects* - Employee benefits* - Tax treatment* - Control manner and means of creation* - Skill required* - Instrumentalities and tools - Location of work * Most important factors

Copyright Infringement

Copyright is a bundle of exclusive rights. Section 106 of the copyright law provides the owner of copyright in a work the exclusive right: • To reproduce the work in copies; • To prepare derivative works based upon the work; • To distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending; • To perform the work publicly; • To display the copyrighted work publicly • In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

Copyright Infringement

Infringement means

violation copyright

rights of

any of the exclusive

Possible remedies for © infringement: $ Per violation of one work:

$750-$30,000

court. $

Innocent infringers

work).

: as low as

$200

as considered just by the (not available if a © notice on $

Statutory damages

: $ At the court’s discretion for

willful $150,000 per violation

violations up to $ Actual damages and additional profits $ Impound & disposition of infringing articles.

$ Potential criminal offences where infringement is

willful.

Cease & Desist Notices

• Have to

Police

• Purposes: and

Enforce

Copyright Rights Yourself - lets infringer know that you believe they are infringing - establishes date of discovery - tells infringer to stop - gives a chance to explain, respond or negotiate • Usually includes: - Your name and contact - Name of work, publication, copyright registration number - Nature of activity that is in violation - Demand the infringer cease and desist future activity and pay you for past damages - Request for response by stated date

The Right of First Sale

• • • • Right of “

First Sale

of the copy ” the owner of a particular copy of a work “exhausts” her economic rights therein – and thus loses control – by selling it provides that the owner of the material object or copy can sell, give away and sometimes lend it to the public without the copyright owner’s permission (but cannot make additional copies) The purchase of the art object itself is separate from the copyrights The mere ownership of a book, manuscript, painting, etc. does not give the possessor the copyright The purchaser of a copy or object of art has the right: - To sell - To display (not publicly) - To give away - To lease, rent or lend to the public (except NOT computer programs and sound recordings)

Exception to Right of First Sale

• The right of first sale might not be applicable to products produced overseas • Publisher filed a lawsuit against a Thai student who came to the U.S. and sole foreign-edition textbooks on eBay. Courts determined that right of first sale does not apply to this situation • Student found to be guilty of copyright infringement in lower courts • Issue being considered by Supreme Court • Could have significant implications for goods resold on eBay and other global companies that sell used goods

Is It Fair Use or Infringement?

First consider purpose:

criticism, comment, news reporting, teaching, scholarship,

or

research

and

parody

Four factors to be considered:

1.

2.

3.

4.

Purpose and character commercial

of the use including whether it is nature or for

nonprofit educational

purpose The

nature

compilation) of the copyrighted work (creative, fact, useful, The

amount

and substantiality of the portion used in relation to the whole (a short quote or an entire article, the heart Y or the work) The

effect of the use upon the potential market

copyrighted work for or value of the

Beware!

No reliable general quantitative standards If you are relying on fair use to use someone else’s copyrighted work, be very, very careful. Ultimately, only a judge or jury has the final say on whether your use is “fair use” or not.

Erasing the Blanket Educational & Nonprofit Myth • There is NO blanket educational or non-profit exception to the Copyright. • Movies played in class: Performance or Display of a legal copy of a work by instructors or pupils in the

course of face-to-face teaching

activities or a nonprofit educational institution, infringement.

in a classroom

or similar place devoted to instructional use is not a copyright • Textbooks: copies pose significant risks • Course packets: have been heavily litigated • Four Guidelines for Not-For-Profit Educational Institutions: 1. Brevity, 2. Spontaneity, 3. Cumulative Effect, and 4. A notice of copyright.

Theft of Music and Movies

• Illegally downloading music and movies is serious! • Many do not consider the seriousness of the crime until they get caught – Pirate Bay founder arrested – Boston University student fined$675,000 for illegally downloading 30 songs and sharing them on the Internet

Parody & Fair Use

• Practically by definition, you will NOT be able to obtain the author’s permission for this use. Indeed, the owner of a work seldom wants to license someone else to ridicule that work. • “Fair use” is the guarantee of breathing space within the confines of copyright. • Parody: A literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule — burlesque, satire, criticism, raunchy twist and spoof. • Parody’s humor, its comment, necessarily springs from recognizable allusion to its object through distorted imitation. Its art lies in the tension between a known original and its periodic twin.

Public Domain Sources

“

Public Domain

” are works that for one reason or another are not covered by copyright and are ordinarily free for all to use. • Works out of copyright: created before 1924 in the United States (e.g. Shakespeare’s

Romeo and Juliet

) • Type of work not protected under copyright or patent/trademark • Work dedicated to public domain by owner • Improperly registered or not renewed works created before 1978

Lessons for Businesses

• Have clear employee contracts regarding IP ownership • Protect business property rights: – Businesses register copyright and trademarks – Draft and send Cease and Desist Letters • Use copyright free and public domain resources for development • Don’t depend on fair use and get permissions when possible

Non-exclusive License Permission

Permission is granted under a non exclusive license to copy and distribute this work to the Daniel’s Foundation for purposes of education and classroom instruction. Permission is specifically denied for commercial use, creation of derivatives, or otherwise for financial gain without specific written permission from the author. No other entity or organization is given permission to copy, distribute, make derivatives, display or otherwise use. You are welcome to preprint any of my articles/presentation with the following conditions: 1. Include all Copyright Notices and Cautions 2. Articles/PowerPoint's must be used in their entirety. Excerpts are acceptable pending permission.

3. If you are using an article online, all the copyright notices must be included. 4. Email distribution of this article must be to an opt-in email list only. NO SPAM!

Once you reprint or use an article/presentation, a courtesy copy of your publication or description of the use would be appreciated: Willow Misty Parks PO Box 25312 Albuquerque, NM 87125 [email protected]

Willow Misty Parks, Owner of the Business Bookshelf, LLC