WASHINGTON, DC, July 8, 2012 - Have you written a book, a song, or invented the next million-dollar gadget? What rights do you have if your neighbor attempts to take credit for your brilliance and then markets it to the world?
The laws of “thought” property are there to come to your rescue. Maybe.
First, we need a short basic primer for you creative geniuses lacking a bit in the “what’s next?” category.
The laws involved are collectively termed Intellectual Property, and fall into three categories, depending upon what you have created.
Copyrights.
Copyright laws protect the unauthorized copying of a work of authorship. Copyright law in the U.S. is governed by federal statute, namely the Copyright Act of 1976. In order to clarify what was considered a work of authorship, Congress included a list of eight works of authorship in the Act itself:
1. literary works;
2. musical works, including any accompanying words;
3. dramatic works, including any accompanying music;
4. pantomimes and choreographic works;
5. pictorial, graphic, and sculptural works;
6. motion pictures and other audiovisual works;
7. sound recordings; and
8. architectural works.
The law was written in an ambiguous fashion and very broadly, to avoid the need for rewriting or revisions every time a new medium was discovered. Thus, the scope of the law covers World Wide Web pages and CD ROMS, even though these did not exist at the time the law was written.
There are basically two requirements for a work of authorship to be protected by the Copyright Act. First, the work must be “original,” and second, it must be “fixed.”
The amount of original content required is actually extremely small. In order for a work to be protected, it must be “fixed” in some way that it can be communicated. A song, by example, is “fixed” when it is written down on paper or recorded on some device where it can be reproduced. Yes, recording it on your tablet works.
Interestingly, copyright protection attaches to your work the moment it becomes fixed. There is no requirement to file an application or obtain acknowledgment from any official office or agency. You do not even need to place the copyright notice or symbol © on the work. However, formally applying for copyright protection serves to expand the protections provided by the law.
Protection for you for your copyrighted work includes “substantial and material” reproductions, barring others from using even a portion of your copyrighted work. A portion of your song cannot be used, making copies of your book, or even using the cartoon character you created in an ad are examples of prohibited uses by others. Copyright protection lasts for seventy years after you die. You read correctly. If you author something and then die in 2020, your work is protected until 2090.
What is not included in the Copyright act are: ideas, procedures, principles, discoveries and devices. In fact, they are all specifically excluded. These are the things covered by patent law.
Patents.
An example to distinguish copyright and patent protections is needed now. Suppose you invent something. Then you write it down, completely, fully, with the finest of detail describing the thing. Your neighbor reads your description and sees your invention, then goes and re-creates it. He has not violated any law. If he republishes your description, that is a copyright violation. If you applied for and obtained a patent for your invention before the neighbor re-creates it, then your neighbor in re-creating your invention would be in violation of your rights under your patent. Thus, as differentiated from copyrights, patents need to be obtained before you have rights.
A patent is a property right given to the inventor who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” according to United States Patent Act, basically unchanged since 1790. Yes, 1790. The wording of the law seemingly covers every possible useful invention that can be imagined.
The terminology in the Act is mostly understandable, however, two terms might be explained a bit more.
Process means a process, act or method and primarily includes industrial or technical processes.
Composition of matter means chemical compositions and includes mixtures of ingredients and new chemical compounds.
To obtain protection under U.S. law, you must submit a patent application to the United State Patent and Trademark Office. Your invention will then be reviewed to determine if it is patentable. The law grants to patentees the right to exclude others from making, using, or selling the invention, generally, for twenty years.
There are three kinds of patents:
- Utility patents are granted for inventions or discoveries of any new or useful process, machine, manufactured article, composition of matter, or any new or useful improvement of any of these;
- Design patents are granted if you invent a new, original or ornamental design for an article of manufacture; and
- Plant patents are granted if you invent or discover or asexually reproduce any distinct and new variety of plant.
In order to obtain a patent, your invention, again, as seen from the laws description, must be new, and it must be “useful.” This means in common practice that your invention has a useful purpose and it must operate. Your new machine designed to do XYZ that has no conceivable purpose and then does not do XYZ will not be patented.
Trademarks.
What is the world’s most famous trademark? The McDonald’s Arches? The Nike Swoosh? The word “Google”? The MacIntosh Computer Apple symbol? All good guesses. The winner is the Coke bottle.
A trademark is a word, name, symbol, logo, slogan or device used in commerce with products, goods or services to indicate the source or origin of the products, goods or services, and to distinguish them from the products, goods or services of others.
Trademark rights, also granted by the United States Office of Patents and Trademarks, prevent others from using a confusingly similar mark or symbol for ten years (you can renew every ten years).
There are four types of trademarks:
- Descriptive; easy to understand these: they describe
- Suggestive; require the consumer to use their imagination… “Jaguar” usually makes us think about the fast and fancy car
- Arbitrary; the word or mark bears no relationship to the products, goods or services… such as the Nike Swoosh; and
- Fanciful; typically these are coined terms that had no meaning before they became used as trademarks, such as “Oreo.”
Summary.
Intellectual property rights are Federal laws. Laws are often subject to interpretation. (Thus I will always have a job, even in my field.) Intellectual property lawsuits often involve some of the highest stakes and seemingly always involve finite interpretations of the law involved. Compensation for infringement can range from hundreds of dollars to billions, typically requiring a showing of the commercial loss of income attributed to the infringement. Here are some popular recent cases.
A Patent and Copyright infringement case in 2010 found Oracle suing Google over alleged infringements in building the Android operating system. Oracle claimed Google improperly cloned 37 Java software codes without its permission. Oracle lost. Google now wants over $4 million to compensate for its costs in fighting the lawsuit.
Frederick E. Bouchat, a Baltimore resident, invented the Baltimore Ravens first logo, and he has never been compensated, despite winning in a federal court in 1998. The Ravens changed the logo the next year. Bouchart filed another suit in 2008 over copyright infringements claiming the NFL and the Ravens used his design. Last November, a federal judge ordered the NFL and the Ravens to compensate Bouchat for his logo’s use in some old highlight films, but compensation has not yet been determined. Bouchat was seeking $10 million.
Apple has been sued over an allegation that it is improperly using the name Snow Leopard. A Chinese company claims it trademarked the name in 2000 and it is suing Apple for $80,000.00 and an apology. Recently, Apple paid another company over $60 million for the use of the iPad name.
Facebook and Yahoo recently settled lawsuits against each other claiming patent infringements. No money was exchanged. They agreed to partner and integrate Facebook’s tools into Yahoo’s content pages.
Do you have an original idea? Have you authored the next Great American novel? As you go forward, involve an Intellectual Property attorney to protect yourself.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics. Paul is the featured legal analyst on the Washington Times Radio, on the Andy Parks show, on Wednesdays at 5:15 P.M., and he is a columnist on the Washington Times Communities.
His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.
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