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Well, Actually, Everyone Has Questions About IP

Nobody likes a ‘well, actually.’ Obviously, I don’t interrupt strangers when they’re having a nice time, but I sure would like to.  I overheard a man at a cocktail party say, “I really should trademark my songs.” Well, actually, you need to copyright those.  I overheard someone else comment on how much she liked a certain logo.  “I’d love to patent something like that.” Well, actually, you’d trademark that.

But even my inner monologue must give credit where it’s due: patents, copyrights, and trademarks all fall under the umbrella of intellectual property.  What’s the difference?  Well, actually…

Trademarks:

Trademarks are words, symbols, or a combination of the two that signify the source of goods and services.  You can also trademark sounds and scents.  In ancient days, a craftsman would sign the product he produced.  As technology and commerce advanced, those signatures became more sophisticated and evolved into trademarks.  Take the MGM lion, for example, or the Nike swoosh.  They indicate who made the product.  The public relies on the trademark the same way consumers used to rely on a craftsman’s signature.  United States trademark registrations are generally renewed every ten years.  Trademark owners have the exclusive right to use their marks in commerce for the goods and services named in their trademark registrations.  

If you are interested in filing a trademark application, or wish to enforce you trademark rights, we can help you.  Contact us at trademarks@fghwlaw.com, or by calling us at 214-361-5600.

Copyrights:

Copyrights protect the content of artistic works like songs, novels, poems, television shows, and movies.  Copyright owners also have the exclusive right to use, and permit others to use, the copyrighted material.  Distribution of copyrighted material without specific permission from the copyright owner can sometimes result in takedown notices, demand letters, and even substantial lawsuits. Further, incorporation of copyrighted material in your own content may have similar undesirable results.

If you have questions about how to copyright your original works, or how to use copyrighted materials, contact us at trademarks@fghwlaw.com, or by calling us at 214-361-5600.

Patents:

Patents protect inventions, like new products or new technical processes.  Inventors in myriad industries may patent their inventions for commercial use, from pharmaceuticals to software to shoes.  They protect the patent owner’s exclusive right to use the invention in commerce.  The patent owner decides who, if anyone, may use the invention for the protected period of time.  Some owners guard their patents closely, and some release their patents for others to use for a price or for free.  Patents usually last for 20 years before the invention becomes public domain.

Patents are the one thing we cannot directly assist you with, although we are happy to provide you with a referral to an appropriate patent attorney.  To determine if you need a patent, trademark, or copyright, contact us at trademarks@fghwlaw.com, or by calling us at 214-361-5600.

Think of it this way, Apple patents new cell phone technology.  It trademarks the name and logo for the new technology. And if Apple wants to use a song for the commercial, they’ll get permission from the band who holds the copyright to the song.

Why does it even matter?  Well, actually…

Copyrights

What You Need to Know about Copyrights

Copyrights

Most people have heard the word “copyright” or at least have seen the symbol “©” – but what exactly is a copyright?

Overview of Copyrights

A copyright protects an original work of authorship that is fixed in a tangible form of expression or medium, including literary, dramatic, musical, and artistic works. Copyrighted materials may include books, songs, movies, TV shows, plays, choreography, paintings, computer software, and architecture.

To satisfy the test for being “fixed in a tangible form of expression,” the work must have been recorded or written in some fashion – even if only on one’s computer. A copyright does not protect ideas. Furthermore, a copyright does not protect names, titles, slogans, or logos (although these may be protected as trademarks).

If you have ever wondered why you are prohibited from recording a movie in a theatre, or downloading free music from a disreputable website, it is because that movie or music is copyrighted. Creating an item that qualifies for copyright entitles you to legal rights under the law. By holding a copyright, you exclusively hold the following five rights; (1) to reproduce the work; (2) to distribute copies of the work to the public; (3) to prepare derivative works, or create adaptations based upon the work; (4) to perform the work publicly; and (5) to display the work publicly.

Copyright exists to encourage people to create original works by rewarding them with an exclusive right to profit from that work. Without copyright, there would be no financial incentive to create original works, and your original works could be reproduced and used freely by anyone for profit.

Obtaining a Copyright

Unlike trademarks and patents, you are not required to register your copyright in order to obtain the legal protections it grants. Your work is under copyright protection the moment it is created and fixed in a tangible form. However, in order to bring a lawsuit for infringement of a U.S. work, you must first register your copyright with the U.S. Copyright Office. A registered copyright may entitle its owner to statutory damages and attorney’s fees in successful litigation.

Notice of a copyright is given by using the “©,” followed by the first year of publication for a given work and the authors name, on the work itself. While this notice is no longer a legal requirement for protection, it can be used for evidence that the work is, in fact, under copyright protection.

Once obtained, a copyright lasts for the life of the author and expires on the seventieth anniversary of his or her death. When the author of copyrighted material dies, the copyright generally passes to his or her heirs. Until expiration, copyrights are generally transferrable; transfer can be recorded by submitting documentation to the Copyright Office.

In the event that you create a work within the scope of your employment, or the work was specifically ordered or commissioned in a certain, specified circumstance, the work is considered a “work made for hire.” In this situation, the employer or commissioning party is considered to be the author, and therefore, holder of the copyright. A copyright for a work for hire lasts for 95 years from the date of first publication, or 120 years from year of creation, whichever date occurs first. When a copyright expires, the underlying work enters the public domain. Once a work is a part of the public domain, anyone can reproduce, and use the work freely.

Copyright Infringement

When you believe someone has infringed on your copyright, you can protect your rights by filing a civil lawsuit in federal district court. However, there are two ways someone can use a copyrighted work without being liable for infringement.

First, a user can gain permission to use the work from the copyright holder. If you want to use someone’s copyrighted work, you may simply ask them for permission. To find out who holds a copyright to a certain work, a search can be done through the Copyright Office. For copyrights registered before 1978, a manual search must be conducted. For copyrights registered after 1978, the search can be done online through the Copyright Office’s website. Generally, permission to use a copyright is granted by a license.

The second protection that users can claim is the “fair use doctrine.” This doctrine allows use of a sample or section of a copyright work without permission of the copyright holder when the copying is deemed a “fair use.” Criticism, commenting, news reporting, teaching, and scholarship or research purposes are all considered fair use. There is no certain length of sample or section where the line is drawn between fair use and copyright infringement.

When determining whether the use of a work is considered fair use, four factors must be considered; (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use upon the potential market. These four factors will be considered when determining if an infringement occurred, or the use was lawful under the fair use doctrine.

If you believe your copyright has been infringed, make sure your copyright is registered with the Copyright Office and consult an attorney familiar with copyright infringement suits. Taking these key steps will help to ensure that you protect your copyright.


Tahlia Clement’s primary practice areas are marketing, advertising and promotions law, health law, internet law, and general business transactions. Tahlia graduated from SMU Dedman School of Law and holds a B.A. in journalism and mass communications from Arizona State University.