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"Intellectual Property"

Congress has the power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
    U.S. Constitution, Article I, Section 8, Clause 8





Copyright History

circa 1440 - Gutenberg printing press
reduced cost & time of copying

circa 1550 - Stationers' Company (England)
gave publishers control of copying

1710 - Statute of Anne
gave authors control of copying

1790 - first U.S. copyright law
1886 - Berne Convention
1976 - major revision of U.S. copyright law
1988 - U.S. joins Berne Convention
1998 - Sonny Bono Copyright Term Extension Act
1998 - DMCA




U.S. Copyright - 1790

Covered: books, maps, charts
Duration: 14 years + 14 year extension
Formalities: registration & notice required
copies of work deposited w/ government offices
Exclusive rights: copying & distribution


Not covered: music, newspapers, paintings/drawings, etc




U.S. Copyright - Present

Covered: "original works of authorship" (literary, dramatic, musical, artistic)
including: any text, music (scores, lyrics), pictorial works (maps, drawings, paintings, prints, photographs), sound recordings, motion pictures, sculpture, dance notation, architecture
Duration: life + 70 years
works for hire: 95 years (or 120 if unpublished, whichever is shorter)
Formalities: no registration or notice required
copyright exists immediately, upon "fixation" of work
registration required for infringement suit
Exclusive rights:
  • copying & distribution
  • derivative works
  • public performance
  • public display
  • sound recordings - digital audio transmission
  • visual art - "moral rights" (attribution & integrity)




U.S. Copyright - Present

Not covered:
  • works not fixed in tangible medium (dance performance, improvised speech, etc)
  • words/titles/names/short phrases
  • "mere listings of ingredients or contents"
  • ideas / procedures / methods
  • facts / information containing no original authorship (calendars, phone numbers, measurements)






Copyright Details





originality
a work must demonstrate "originality" to be copyrightable
no standard exists
generally requires "some minimal level of creativity"

Feist Publications, Inc. v. Rural Telephone Service Co (1991)
Bleistein v. Donaldson (1903) - "it would be a dangerous undertaking" for courts to decide what is worthy of copyright (fine art v. advertising)


idea vs. expression
ideas are not copyrightable
only a specific expression of an idea is copyrightable
patents are considered to cover ideas




license
grant of permission to use a work
can be restricted to a defined time, context, territory
can be exclusive or non-exclusive
does not transfer ownership

assignment of copyright
transfer of ownership of copyright
must be in writing
can transfer individual rights

work for hire
work made by an employee, "within the scope of his/her employment"
or, commissioned work, explicitly identified in writing as "made for hire"
employer/commissioner owns copyright




Public Domain

Works that are not under copyright control

Anyone can freely copy, distribute, derive from, etc

Usually from expiration of copyright

Works published in the U.S. are public domain if:

www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm



Fair Use

Allowed use of a work, which would otherwise be considered infringement

e.g. quoting a line of text in a review, satirizing a film

no firm definition of what is allowed

general determining factors:
www.ccumc.org/copyright/ccguides.html - Fair Use Guidelines for Educational Multimedia



First Sale Doctrine

Purchaser is allowed to sell or give away legally acquired work
Without needing permission from copyright holder

Generally also includes renting
But not for phonorecords & some software

Computer software companies claim software is not sold, merely licensed ("EULA") & therefore First Sale doesn't apply



Compulsory License

License for certain uses which exists automatically

copyright owner cannot prevent the license

well-defined fee must be paid

e.g. recording a piece of music, once one recording has been published



Obtaining a Copyright

Copyright exists as soon as work is "fixed" in a medium

Copyright notice & registration no longer mandatory, but help when suing for violations

Registration forms: www.copyright.gov/register/





Cases

Sony Corp. v. Universal City Studios (1984)
Betamax Case

"I say to you that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone."
     - Jack Valenti, 1982

Declared that devices with "significant non-infringing uses" are not illegal



Cases

ASCAP threatens Girl Scouts (1996)

Said singing copyrighted songs at camp violated public performance rights

Demanded licensing fees

Backed down due to bad publicity



Cases

Happy Birthday

"Good Morning to All" written circa 1893 - public domain

Sometime later, modified to "Happy Birthday to You"

Copyright registered in 1935

Currently owned by Warner Communications




Cases

It's A Wonderful Life
Made in 1946

Owner failed to renew copyright in 1974

Became widely shown due to public domain status

Republic Pictures reclaimed control in 1993 via copyright on story - the film is a derivative work



Cases

Eldred v. Ashcroft (2003)

Challenged Sonny Bono Copyright Term Extension Act (a.k.a. "Mickey Mouse Protection Act")

Argued that repeated extensions = effectively unlimited copyright term

Challenge denied by Supreme Court



Patents

Exclusive right to "make, use or sell" a "useful process, machine, manufacture, or composition of matter".

Cover ideas, rather than specific expressions of ideas

Invention must be new, useful, & non-obvious
Must file significant application, which is reviewed

Last for 20 years



Trademarks

Names, phrases, designs, or images that distinguish a business and its products.

Registered with USPTO or similar office

Cannot normally trademark generic terms (e.g. "Shredded Wheat") except when strong connection is developed (e.g. "Windows")

Can last indefinitely

Must be used & defended



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Creative Commons License
The text and layout of this document is by Dave Pape, and is released under a Creative Commons License.