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INTELLECTUAL PROPERTY RIGHTS

March 27, 2014

U.S. COPYRIGHT LAWS

 

An original work of authorship, fixed in a tangible medium of expression for communication with others, either directly or through a device, can be copyrighted. Examples include computer programs, architect’s plans and drawings covering non-functional features and monumental structures, pictures, maps or compilation of facts. Computer programs may enjoy protection under the patent (if in combination with a structure or a process), copyright and trade secret laws.

 

A copyright protects only the form of expression but not the underlying ideas, principles or facts, which therefore can be appropriated by anyone. For instance, facts contained in a copyrighted book can be used without any obligation to the author, but copying the sentences in the book is improper. A copyright would protect the computer program itself but not the underlying techniques. Examples of copyrightable properties:

 

• Commercial advertisements posters, illustrations, a picture, TV commercial;

• Manuals and parts catalogs, namely an arrangement and manner of expression;

• Promotional literature, books;

• Movies and pictures;

• Labels that go beyond a mere trademark, i.e. a label has some value as a composition;

• Paintings;

• Musical works;

• Greeting cards and posters;

• Maps;

• Sculptures, figurines, toys;

• Choreographic performances;

• Translated text;

• Computer program where the copyright covers “menu” screens, screen outputs of particular images, line-for-line instructions, and “structure, sequence, and organization” of the program.

 

Registration is not mandatory, but it is necessary for instituting an infringement action and recovering statutory damages or attorney’s fees. The copyright owner has the exclusive right to reproduce and distribute copies of the work by sale, lease or lending; prepare derivative works; and publicly perform and display the copyrighted works.

 

Ownership of, or property rights to, any material object is not synonymous with the copyright ownership. Therefore, selling that object “does not of itself convey any rights in the copyrighted work embodied in the object”. A copyright can be divided, and conveyed to different parties in increments, such as movie rights, publication rights, right to modify or use, and so on. Copyright can be sold by assignment or licensed. That means a royalty are paid per each performed show or sold copy.

 

Titles of literary works, for books, records or movies, are not copyrightable, but the title of a series (not a single work) of literary works may be registered as a trademark. The Copyright Act specifies classes of work which can be copyrighted. For instance, trademark, title, slogan, trade name, mere listing of ingredients, and other short phrases or expressions cannot be copyrighted regardless of their distinct arrangement. But “labels which go beyond a mere trademark are copyrightable; if a label has ‘some value’ as a composition, it no longer is ‘a mere label'".

 

Commercial advertisements, such as posters, illustrations, and a picture, are copyrightable. The party paying for a specially ordered or commissioned work will not be owner of copyrights to the work, if the “work for hire” does not fall within the prescribed statutory categories and the parties did not sign an agreement defining such work as a “work for hire”. In other words, a commissioned work prepared without a written contract is not a “work for hire”. A “work for hire” must be produced at the request and expense of the employer.

 

The copyright notice must have “C” in a circle, the date of publication (distributed or disclosed to the public) and the owner’s name. Lack of date, or name, “c” in a circle (or the word “copyright”), and postdating for more than one year, render the notice invalid. But predating the notice, changing sequence of notice items, misspelling or using a wrong name would not invalidate the notice.

 

Some of the most lucrative (about $1 billion a year) forms of piracy of copyrighted products is stealing motion picture profits by unauthorized copying and distribution, satellite (using dish antennas) and cable signal interception, public performances in bars, restaurants and other public places, closed-circuit demonstrations to a joint family meetings, and “parallel import” DVD’s. Parallel imports or gray market goods mean legitimate goods brought into the United States without consent of and bypassing dealers authorized to sell these goods here.

 

A copyright has to be registered prior to getting a design patent, because the Copyright Office regulations do not permit such registration otherwise. Copyright infringement may be punished by impounding all infringing copies, injunction, criminal actions against the infringer, awarding a copyright owner actual damages and profits (direct and indirect) of the infringer or statutory damages, attorney’s fees and costs. Even the infringing product’s advertising agency’s profits may be awarded for infringement of copyright.

 

A co-owner of a copyright can independently use or license the use of the copyright, but must account to other co-owners for income earned from such activities.

 

 

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