Posts Tagged ‘copyrights’

Copyright and Fair Use

Monday, June 29th, 2020

Previous posts on the subject of copyright have discussed who the author of a work is, what is protected by copyright, what is not protected by copyright and the benefits of copyright notice.

This post will take a look at the Doctrine of Fair Use. This is a widely important section of copyright law because it helps to shield an original author of a work fixed in a tangible medium from copyright infringement.

According to the U.S. Copyright Office, “Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.” As stated in 17 USC §§107 – 120, the circumstances include criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research. It is, however, important to note that there are certain provisions in §106 and §106A that may preclude the Fair Use Doctrine.

When discussing fair use, §107 sets forth a set of four criteria that are to be evaluated when determining whether or not a certain use is fair or not. The four criteria are as follows:

  • Purpose and character of use: This factor considers whether the use is commercial versus non-commercial (such as nonprofit and/ or education purposes). When examining this first criterion, the court studies how the third party is using the copyrighted work. Often, the courts are more likely to find fair use if the work is being used in nonprofit, educational and other non-commercial settings. That being said, this does not automatically mean that fair use in one of these settings will automatically be found without first balancing the other three factors listed below. Moreover, when examining this factor, courts look at whether a work is being used in a “transformative” manner. When referring to “transformative” use, this means that the third-party user of the copyrighted work has added to or further developed the original work.
  • Nature of the copyrighted work: When looking at the nature of the copyrighted work, the courts assess the level of creativity or originality of the copyrighted work. This means that the more unique a work is, the less likely the courts are to find fair use. Therefore, courts may be less likely to find fair use for the unauthorized use of a one-of-a-kind novel, movie or book versus a technical manual or news article. As was explained in a previous post, certain things, such as instructions, may not be copyrighted, but the elements that make it unique may be. In this way, it is more likely for a court to find fair use for a work that is less unique.
  • Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Courts consider both the quantity of the work being used and the quality as well. On the surface, a court is less likely to find fair use if a large portion of the copyrighted material is used, versus a small portion. However, in some situations, a court may find fair use if a third-party uses the entire copyrighted text, but it may not find fair use of even the smallest portion of the section is determined to be the “heart” of the work. In short, this factor works to protect the essence of a copyrighted work.
  • Effect of the use upon the potential market for or value of the copyrighted work: The fourth and final criterion for determining fair use steps away from the work itself, and it looks outward into the marketplace. As explained in an early post, one of the benefits of copyright notice is that it acts as notice of ownership to the public. This means that if a work is unlawfully reproduced or copied, the original owner may claim copyright infringement. So, the courts use this factor to determine how the third-party user is using the copyrighted work, and if there is a chance that it may encroach upon the original author’s rights, such as monetary sales from the work. Aside from the effect on the marketplace in a monetary manner, the courts also must look at the safety of the widespread public. If there is a chance that the unauthorized use of the work could cause substantial harm to the public, the courts would be less likely to find fair use.

Though these are the four factors courts use to determine fair use, these criteria are not the only information used in every case. Because each case has a different set of facts, the courts must look at each case on a case-by-case basis. There is no set amount of work that determines fair use. This is also mentioned in the third factor of the test regarding the amount and substantiality of the work being used. The courts may find fair use of 100 hundred pages in one case but may not find fair use of one page in another. The intent of the Fair Use Doctrine is to protect the rights of the original author, while not restraining the public from learning or benefitting from a previously copyrighted work. A later post will delve into the TEACH Act, which is an extension of fair use in an educational setting.

Benefits of Copyright Registration

Friday, May 29th, 2020

Copyright exists automatically in an original work of authorship as soon as it is fixed in a tangible medium. The copyright affords the author six exclusive rights that are protected by U.S. law. Although not mandatory, an author can enhance the protections of copyright by registering the work with the United States Copyright Office. Once a work is registered it establishes an author’s claim to copyright with the Copyright Office, which allows the author to defend and enforce the rights of the work through litigation. Notice of registration most commonly consists of the copyright symbol © or the word “Copyright,” along with the name of the copyright owner and the year of first publication. While placing a copyright notice on any original work is good practice, placing a copyright notice on a work does not substitute for registration.

An application for registration can be filed by the author or owner of an exclusive right in a work, the owner of all the exclusive rights or an agent on the author or owner’s behalf. (see this post for copyright ownership) There are three essential parts to a registration application: a completed application, a nonrefundable filing fee and a nonreturnable deposit. The deposit is a copy, or copies, of the work being registered and “deposited” with the Copyright Office.

The certificate of registration is important because it creates a public record containing all of the critical information relating to the original work and the author or owner. The information that becomes public record includes the title of the work, the author of the work, the name and address of the claimant or copyright owner, the year of creation and other information regarding the status of the work, such as whether it’s been published, has been previously registered or includes preexisting material. Since registration is not mandatory, it can be done at any time within the life of the copyright. (see this post for the lifespan of copyright)  There are certain benefits to timely filing a copyright application addressed in benefit three below.

Aside from establishing a public record of a copyright claim, registration has multiple advantages. Following, are four of the most critical statutory benefits as stated by the Copyright Office. First, before an infringement suit can be filed in court, the work must be registered with the Copyright Office. Second, registration establishes prima facie evidence of the validity of the copyright and the facts stated in the certificate when registration is made before or within five years of publication. Third, when a registration is made prior to infringement or within three months after publication of a work, a copyright owner is eligible for statutory damages, attorneys’ fees and other related costs. Lastly, registration allows a copyright owner to establish a record with the U.S. Customs and Border Protection for protection against the importation of infringing copies.

The effective date of registration to the certificate of registration is the day the Copyright Office receives a completed registration application. If the registration does not contain all of the required elements, as mentioned above, the date will not be set until the Copyright Office is in possession of those elements. Though there is no deadline for this, copyright registration (or refusal) from the Copyright Office is necessary prior to filing a lawsuit for copyright infringement. An applicant may seek statutory damages and attorneys’ fees in an infringement suit if the action began after the effective date of registration. Though collection can only take place after the effective date of registration, the law provides a three-month grace period after publication wherein full remedies may be recovered for any infringement action that began during those three months after publication if registration is made before the period ends.

Although registration is not mandatory since copyright is instilled in a work as soon as it is fixed in a tangible medium, registration (indeed timely registration) has many benefits.

When is the Proper Time to File for Patent, Trademark, Copyright Protection?

Monday, December 30th, 2019

Trademarks are privy to a certain level of common law protection. This protection is generated through actual use in commerce and is afforded to the first user of the mark in commerce within the geographic area in which it is used. Filing for a trademark registration on either the state or national level is not required but can expand and enhance the common law protections granted to the first user of the mark. A state trademark registration will provide protection within the specific state. A federal trademark registration will protect goods or services sold in interstate commerce, or between the United States and another country. A federal registration provides exclusive rights to the mark throughout the U.S., as to any mark first used after the filing of the registration. This prevents latecomers from using a similar trade or service mark on similar goods or services anywhere in the U.S.

Similar to trademarks, copyrights are afforded protection under common law.  Copyright automatically vests in the author of an original work at the time the work is expressed in a tangible medium. However, a copyright infringement case cannot be filed in federal court until the user has registered his/her mark. Moreover, an author may not seek statutory damages if the registration is filed after the infringement begins.

A patent registration must be applied for within one year of any of the following: 1) any public use of the invention by the inventor, a sale of the invention, an offer of sale, or public use of the invention in the United States, or 2) any description of the invention by the inventor in a published document in any country.  Failure to timely file a patent application results in the invention becoming part of the public domain.  Unlike trademarks and copyrights, there is no common law protection for inventions or methods of use. The exclusive rights afforded by a patent are purely statutory and do not exist without formality.

What is the Difference Between Protection Under the Patent, Trademark and Copyright Statutes?

Monday, December 30th, 2019

Often, the three terms are heard interchangeably in casual conversation. However, each of the three statutes has different functions, protections and symbols.

A trademark can be a word, name, symbol or device that is used in commerce to indicate the source of the goods and to distinguish them from the goods of others. Names, phrases or slogans, the way a word is presented, logos and packaging details can all function as trademarks. The purpose of trademark protection is to inform consumers of the source of goods or services. The source becomes synonymous with the quality and characteristics of the goods or services. In this way, a trademark becomes a shortcut for consumers in selecting between products or services. Trademark rights can be used to prevent others from using a confusingly similar mark which could potentially create a likelihood of confusion with the original mark. In the United States, trademark rights are generated by the actual use of marks in commerce. Wherever actual use occurs, the first user of the mark develops common law rights within the geographic scope of use.  Common law rights are denoted by either a TM for trademarks or an SM for service marks. These marks show claim, but not official USPTO registration. Common law rights can be extended and enhanced by registering a trademark, either in a particular state or on a national level. A registered trademark enjoys the use of the encircled R.

Something that is original, creative, artistic or literary can be copyrighted. Copyrights protect “original works of authorship.” A copyright provides protection for the original and creative expression of an idea that is embodied in a tangible medium. In this instance, originality means that the work has “more than a de minimus level of creativity.” Copyright owners can prevent others from doing the following: reproducing the work, preparing derivative works, distributing copies, performing the work publicly, displaying the work publicly, and digitally transmitting the audio of the sound recordings. Registration is not required to acquire copyright; it exists upon the moment of creation. However, in order to pursue a copyright infringement action in court, the owner must have a federal copyright registration. Federal copyright registration is prima facia evidence of the author’s ownership of the copyrighted material. The fact that a work is subject to copyright protection is evidenced by the encircled C.  Full notice includes three components: the encircled C, the year of publication and the author’s name.

Utility patent protection applies to machines, methods, processes, articles of manufacture or composition of matter, and/or improvements thereto, ornamental designs for articles of manufacture. In order to ascertain patent protection, an invention or method of use, at minimum, must be novel, useful and not obvious. In this instance, not obvious refers to what existed previously, and if a skilled professional in the specific field would not have found the invention or method of use an obvious extension or combination.  The proper notice for a patent is the word “patent,” or, the abbreviation “pat.” combined with the number of the patent. If the notice cannot be put on the article, the word “patent” or the combination of “pat.” and the patent number can be affixed to the owner’s packaging or other advertising materials; such as labels if the package contains more than one article. The words “patent pending” serve as fair notice that a patent registration has been applied for. Once the registration has been approved, the word “Patent” shows full ownership.

 

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