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This website is for general information only. It is not legal advice nor does it create an attorney-client relationship.

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As a U.S. Registered Patent Attorney, Gerald R. Prettyman may prepare, file and prosecute patent and trademark applications with the U. S. Patent and Trademark Office and copyright applications with the U.S. Copyright Office and may prepare patent, trademark and copyright applications for filing in foreign countries. As most countries require an in-country attorney to file these applications, Gerald R. Prettyman will work with you and counsel in foreign countries for foreign filings. Gerald R. Prettyman is licensed to practice law  in California and Minnesota. This website is not a solicitation for legal practice in other states.

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Is that a Patent, a Trademark or a Copyright?

February 22, 2017

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Copyright: Comparing Bob Spongee and SpongeBob Squarepants

April 1, 2012

Copyright protects creative ideas that are perceivably recorded in specific formats. An idea is creative if it more than minimal (a title, a fact, and Bob Spongee are minimal), not functional (furniture, instructions, or a process) and not based on a known arrangement (alphabet, logic, or syntax). 

An idea does not have to be wholly original for protection, but knowledge of another person's similar work negates protection of the similar ideas. Perceivably recorded means that the idea is permanently documented to be seen or heard, e.g., paper, an audio or visual recording media, digital media, or on a composition of nature, such as stone. Unrecorded ideas are not protected. 

Copyright applies to (1) literary works; (2) musical works and their words; (3) dramatic works and their 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 copyright belongs to the creator from the moment of creation. A copyright may be transferred by assignment, employment, or through law. Assignment means that the creator subsequently transfers the copyright to another person. A transfer by employment occurs concurrently at the moment of creation by the employment contract or in circumstances by which the creation occurred through and for the employer. A transfer through law, which is generally known as a work for hire, applies only to select works, such as a contribution to a collective work (newspaper or magazine), as a part of a motion picture or other audiovisual work, as a translation or supplementary work, as a compilation (anthology or atlas), as an instructional text, or as a test or answer material. A creator may reinstate ownership in certain cases.

A copyright allows the owner to do and control (1) reproduction of the work; (2) preparation of derivative works based on the work; (3) distribution of copies to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) public performance of the literary, musical, dramatic, and choreographic work, pantomime, motion pictures and other audiovisual work; (5) public display of the literary, musical, dramatic, and choreographic work, pantomime, or pictorial, graphic, or sculptural work, including the individual images of a motion picture or other audiovisual work; and (6) public performance of a digital audio transmission of sound recordings. 

 

Copyright term is the time that an owner has copyrights. For new works, an individual owns the copyright for her or his remaining life copyright, at which time the copyright passes to the family (or company) for 70 years after the creator's death. If a company was the owner at the time of creation, the copyright expires the earlier of 120 years after creation or 95 years after publication (showing the work to the public). The copyright of works created before 1976 depends on many factors, including the money to fight corporations. Walt Disney created and published Mickey Mouse in 1928, so that copyright lapses in 2023. The Hill sisters created and published "Happy Birthday to You" before 1921 but Warner Chappel Music claims the copyright (initially registered in 1935) will not lapse until 2030. 

 

Marking is a declaration of ownership. There are three minimal requirements for a marking. These are the word "Copyright" or the circle c (©), the year of creation, and the name of the owner. A combination of the word Copyright and the circle c may be used as these focus attention to the marking. If the work is later modified, or republished, the year of modification or republication is added (Copyright © 2010, 2012, Owner Name). 

 

Registration is used to provide a government record of the copyright. Registration is not required to declare a copyright, but is required to show ownership in court of law. An owner should record registration within five years of creation to have incontestable proof of ownership. Registration also provides the ability for compensation not related to losses, which is how a music company gets $30,000 for infringement of a 99-cent download. 

Moral rights provide an author the right to dissociate the author from a visual artwork (if for instance an owner uses a work in a repugnant way) and the right to demand maintenance of the integrity of the visual artwork. 

 

Infringement is an unauthorized act of one or more of the six copyrights, of a work protected in one of the eight classes, during the copyright term. Infringement occurs by directly performing an unauthorized act, intentionally inducing or contributing to someone else's infringement, or by having a financial interest and knowing or suspecting of infringement and having the ability to stop the infringement.

 

Fair use is an unlicensed and permissive exception to infringement. Fair use includes criticism, comment, news reporting, teaching, scholarship, and research, but only a detailed and complete four-factors analysis can determine whether or not a particular use is fair. The four factors look at (1) the form and originality of the original work, (2) the form of the copy as a whole and whether the copy is a non-commercial work, (3) the amount of copied material in relation to the amount in the original and in the copy; and (4) the market of the original material, the market material of the copied material, and how the copied material affects the market for the original material. Two important contrasts are that parody is fair use, but satire is infringement, and that attribution excuses plagiarism, but not infringement. 

See http://www.youtube.com/watch?v=CJn_jC4FNDo

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