Copyrights ©
and
®
Trademarks
Jordan Holton
Mike Aguilar
Brandon Clarke
Dhanvin Desai
Nathan Reaver
Overview
• Copyrights:
– What is a copyright?
– How do you apply for a copyright?
• Trademarks:
– What is a trademark?
– How do you apply for a trademark?
What is a copyright?
• Form of intellectual property
 Creations of the mind
 Common types: copyrights, trademarks, patents, industrial design
rights and trade secrets
• Gives author of original work ownership and
exclusive rights
• An original work of authorship includes:
o Literary works
o Dramatic works
o Musical works
o Software
o Photographs
o And certain other intellectual works
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What is a copyright?
• Protects the expression of an idea
• Does not prevent independent expression of
the same idea
Vs.
Image Credit: 1. http://www.kidport.com/reflib/SocialStudies/Landmarks/StatueLiberty.htm
2. http://www.unescoworldheritagesites.com/statue_of_liberty.htm
Author’s Rights
• Owner of copyright has exclusive rights to :
– Authorize reproduction and distribution (by sale,
rental lease, or lending)
– Adapt their work
– Prepare derivative works based on their work
– To perform or display their work publicly
• Literally “the right to control copying”
• It is illegal to violate any of the rights provided
by the copyright law
Copyright Act of 1976
• Primary basis of copyright law
• Established:
– Basic rights for copyright holder
– Codified the doctrine of Fair Use
• Codified-enacted by a legislative body; "statute law";
"codified written laws"
– Set how long the copyright lasts (Authors Life +70
years)
• Sections 107 through 121 establish the scope of
the rights
Fair Use
• Although copyrighted material has rights which
are protected by law, there are some limitations.
• One major limitation is the doctrine of “fair
use”
– Reproducing works for criticism, commentary, news
reporting, research, scholarship, and teaching
• Civil law has other limitations and exceptions
Fair Use
• Fair use factors:
– Purpose and character of use
• Commercial nature vs. nonprofit educational purposes?
– Nature of copyrighted work
• Fact or fiction?
– Amount of copyrighted material used in relation to
whole works
• Is it substantial?
– Effect of use on the market or value of the original
• Will it lower market/original value?
Who can claim a copyright?
• The “author” of the work, and family after the
author’s death
• For works made for hire, the employer (not the
employee) is the author
• Authors of a joint work are co-owners of the
copyright
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Who can claim a copyright?
• Purchase of a book, painting, etc. does not give
purchaser a legal claim to copyright
• Transfer of ownership of copyrighted material
does not convey any legal rights pertaining to
copyright
• Minors can claim copyrights, but state laws may
regulate any business dealings involving
copyrights owned by minors
What is protected under a copyright?
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Literary works
Musical works (including words)
Dramatic works (including music)
Pantomimes and choreographic works
Pictorial, graphic, and sculptural works
Motion pictures and other audiovisual works
Sound recordings
Architectural works
Artistic works (ex: poetry, novels, movies, computer software,…etc.)
What is not protected under copyrights?
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Works not set in a tangible form of expression (an improvisation or something not yet
recorded/written)
Titles, names, short phrases, and slogans
• Text from the phone book
Familiar symbols or designs
• The circle with a slash symbol
Listings of ingredients/contents
Variations of typographic ornamentation, lettering, or coloring
Descriptions, explanations, or pictures that show an idea, procedure, method, system,
discovery, etc.
Works that have information that is common property and containing no original
authorship (ex: standard calendars, height and weight charts, tape measures and rulers,
and lists or tables taken from public documents or other common sources) .
Are there international copyrights?
• There is no international copyright that will protect an
author’s work throughout the world.
• Protection against unauthorized use in a particular country
depends on the national laws of that country.
• However, most countries offer protection to foreign works
under certain conditions that have been greatly simplified by
international copyright treaties and conventions.
International Copyright Conventions
• Berne Union for the Protection of Literary and
Artistic property:
– The Berne Convention for the Protection of
Literary and Artistic Works, usually known as the
Berne Convention, is an international agreement
governing copyright, which was first accepted in
Berne, Switzerland in 1886.
International Copyright Conventions
• The Berne Convention requires its signatories to recognize the
copyright of works of authors from other signatory countries (known
as members of the Berne Union) in the same way as it recognizes the
copyright of its own nationals. For example, French copyright law
applies to anything published or performed in France, regardless of
where it was originally created.
• In addition to establishing a system of equal treatment that
internationalised copyright amongst signatories, the agreement also
required member states to provide strong minimum standards for
copyright law.
Berne Convention signatory countries (in blue)
International Copyright Conventions
• Universal Copyright Convention (UCC):
– Under the UCC, any formality in a national law may be satisfied by the
use of a notice of copyright in the form and position specified in the
UCC. A UCC notice should consist of the symbol © (C in a circle)
accompanied by the year of first publication and the name of the
copyright proprietor (example: © 2006 John Doe).
– The UCC ensured that international protection was available to authors
even in countries that would not become parties to the Berne
Convention. Berne convention countries also became signatories of the
UCC to ensure that the work of citizens in Berne Convention countries
would be protected in non-Berne Convention countries.
Granting Copyright
• No publication or registration or other action in the Copyright Office is
required to secure copyright.
-Berne Convention
• Enacted in U.S. in 1989 to amend 1976 Copyright Act
• Secured automatically when recorded in a “tangible form”
– Drawing, sheet music, photograph, videotape, computer file, etc.
Copyright Registration
• Creates a public record about the details of a specific copyright.
• Legal formality that is not necessary to receive copyright
protection.
• Is needed prior to filing an infringement suit.
• Can be made any time during the life of the copyright.
– Registration prior to infringement allows owner to seek compensation for
statutory damages and attorney’s fees
– Registration after infringement only permits owner to seek compensation
for actual damages and lost profit
Actual vs. Statutory Damages
ACTUAL DAMAGES
STATUTORY DAMAGES
• Actual damages suffered by him
or her as a result of the
infringement, and any profits of
the infringer that are
attributable to the infringement
• An award of statutory damages for
all infringements involved in the
action
• Sum of not less than $750 or more
than $30,000 [per work] as the
court considers just.
• The court in its discretion may
increase the award of statutory
damages to a sum of not more than
$150,000, [if willful infringement is
proven]
According to US Code Collections Title 17, Section 504
Actual vs. Statutory Damages Example
Joel Tenenbaum vs. RIAA (Recording Industry
Association of America)
• RIAA sued Tenenbaum for illegally downloading and sharing 30 songs
(copyright infringement)
Actual Damages
• Assuming court awarded $1
per song (actual cost per song)
• Tenenbaum owes $31
Statutory Damages
• Assuming court awarded
$22,500 per song
• Tenenbaum owes $675,000
How to Register, All Claims
• Submit paper form
– Individual forms for basic claims
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Form TX (literary works)
Form VA (visual art works)
Form PA (performing art works, includes motion picture)
Form SR (sound recordings)
Form SE (single serial)
• Required for non-basic claims
– Works published as contributions to periodicals
– 3-D patterns on semiconductor chips
– See more at, http://www.copyright.gov/forms/
• $65 paper filing fee
How to Register, Basic Claims
• Two alternative options for basic claims
– Submit with Electronic Copyright Office (eCO)
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Lower filing fee, $35
Fastest processing
Online status tracking
http://www.copyright.gov/eco/notice.html
– Submit Form CO
• Single form for all basic claim media types
• Faster processing
• $50 filing fee
Trademarks
What are they?
• There are 4 types of trademarks
1.
2.
3.
4.
Trademark
Service Mark
Registered Trademark
Sound Mark
Trademark TM
• A distinctive sign or symbol used to
identify the source of a certain product,
distinguishing it’s product from similar
products from other sources
• Can be used by an individual, a business
or any entity
Service Mark SM
• Similar to a trademark, but distinguishes a
service provided by a certain source,
rather than a product
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Registered Trademark
• A trademark that is registered with the United States
Patent and Trademark Office
• It is not necessary to register your trademark, but
registration gives some advantages
1.
2.
3.
4.
5.
Public Evidence of ownership
Exclusive rights to use trademark nationwide for your
products and services
Ability to invoke jurisdiction of federal courts
Can be used to obtain registration in foreign countries
Registration may be filed with U.S. Customs Service to
prevent importation of infringing foreign goods
Registered Trademark
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Sound Mark
• A non-conventional trademark or service
mark, a sound mark is a trademark on an
audio recording used to uniquely identify a
company or service
• Popular examples of this include, the
MGM “Lion’s Roar”, NBC’s chimes, and
THX’s “Deep Note”
Maintaining Trademarks
• Unlike patents, which expire after a
specific amount of time, trademarks are
issued for 10 year periods, and can be
renewed with no limit every 10 years.
Application Process
Two Volunteers!
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Application Process
• The first step in the Trademark application process is to
determine whether Trademark rights are already being
claimed by another.
– This may be done for free via TESS (Trademark Electronic
Search System)
– It is also possible to conduct a trademark search by visiting
the Trademark Public Search Library in Alexandria, Virginia
or any of the Patent and Trademark Depositary Libraries
(PTDLs) across the country.
– Trademarks including a design element will have to be
searched for using a design code.
Application Process
• TESS (Trademark Electronic Search System)
http://tess2.uspto.gov/bin/gate.exe?f=tess&state=
4005:grp0aj.1.1
• Trademark Public Search Library
http://www.uspto.gov/products/library/search/in
dex.jsp#heading-4
• PTDLs
http://www.uspto.gov/products/library/ptdl/inde
x.jsp
• Design Code Manual
http://tess2.uspto.gov/tmdb/dscm/index.htm#int
ro
Application Process
• If a search finds a trademark that may conflict with
the trademark in question a follow up search should
be conducted via the TARR (Trademark
Applications and Registrations Retrieval) database.
http://tarr.uspto.gov/
Application Process
• The next step is the identification of goods and
services that will be associated with the trademark.
• It will be necessary to have a statement identifying
with what the trademark will be used. Also you
must state if you are currently using the mark or
intend to use it.
• Another consideration is the depiction of your
mark. Every application must include a clear
representation of the mark that you want to register.
Application Process
• Two types of format are available for the
depiction of your mark
• Standard Character Format
– Used for words, letters, numbers, or any combination
thereof, without claim to particular font size, style, or design
characteristics.
– This is used to cover broad rights namely used in many
manners of presentations.
• Stylized Design Format
– This is used to cover a specific design appearance to protect.
• The two formats cannot be combined into one mark.
Application Process
• The next step is the filing of the actual
application.
– This is done online through the TEAS (Trademark
Electronic Application Service).
– http://www.uspto.gov/teas/e-TEAS/index.html
– You can monitor the status of your application
through the TARR database
Application Process
• TEAS Form
– Filing fee of $325 per class of goods and services
– Not as strict
• Can make “free-text” entry of goods and services
• TEAS Plus Form
– Lower filing fee of $275
– Stricter requirements
• Have to select goods and services directly from the listing
provided by the USPTO
Application Process
• The application contains a series of entry fields
including
– Name and contact information of the owner of the
mark
– Entry of the mark
– Entry of the good and/or service
• The application is then submitted to the USPTO
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Application Process
• If the requirements are not met once the
application has been filed, the applicant has the
ability to overcome the objections
– This must be done within 6 months or the
application will be declared “abandoned”
– Abandoned applications can be reinstated by filing
an appropriate petition
Application Process
• After the USPTO determines that you have met
the minimum filing requirements, an application
serial number is assigned and the application is
forwarded to an examining attorney.
– This may take a number of months. The examining
attorney reviews the application to determine
whether it complies with all applicable rules and
statutes, and includes all required fees.
– The attorney may either decide that the mark should
or should not be registered.
Application Process
• If the application passes it is published in the
Official Gazette, which allows others to see if the
infringes one their trademarks.
• They then have 30 days to file opposition to the
mark.
• If it passes this stage you must start using the
mark in commerce within 6 months.
• In order to keep the mark registered you must
continue to file maintenance documents.