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Guidelines

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Copyright and Fair Use Guidelines for Teachers

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United States Patent and Trademark Office - An Agency of the Department of Commerce

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Patents, Novelty, and Trolls: Crash Course Intellectual Property #4

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Jessica Goulette

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There are additional restrictions to consider if you want to file patents in other countries. For example, some countries may not allow patents to be filed at all if the invention has been publicly disclosed.

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Trademarks and Avoiding Consumer Confusion: Crash Course Intellectual Property #5

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Copyright, Trademark and Patent: What's the Difference? | LegalZoom

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A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods. Some examples include: brand names, slogans, and logos. The term "trademark" is often used in a general sense to refer to both trademarks and service marks.

Unlike patents and copyrights, trademarks do not expire after a set term of years. Trademark rights come from actual "use" (see below). Therefore, a trademark can last forever - so long as you continue to use the mark in commerce to indicate the source of goods and services. A trademark registration can also last forever - so long as you file specific documents and pay fees at regular intervals.

Must all trademarks be registered? No, registration is not mandatory. You can establish "common law" rights in a mark based solely on use of the mark in commerce, without a registration. However, federal registration of a trademark with the USPTO has several advantages, including a notice to the public of the registrant's claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods or services set forth in the registration. For more information about "common law" trademark rights and the advantages of federal registration see the Basic Facts About Trademarks brochure.

Each time you use your mark, it is best to use a designation with it. If registered with the USPTO, use the ® symbol after your mark. If not yet registered, you may use TM for goods or SM for services, to indicate that you have adopted this as a "common law" trademark or service mark.

NOTE: Use of a business name does not necessarily qualify as trademark use, though other use of a business name as the source of goods or services may qualify it as both a business name and a trademark. Many states and local jurisdictions register business names, either as part of obtaining a certificate to do business or as an assumed name filing. For example, in a state where you will be doing business, you might file documents (typically with a state corporation commission or state division of corporations) to form a business entity, such as a corporation or limited liability company. You would select a name for your entity, for example, XYZ, Inc. If no other company has already applied for that exact name in that state and you comply with all other requirements, the state likely would issue you a certificate and authorize you to do business under that name. However, a state's authorization to form a business with a particular name does not also give you trademark rights and other parties could later try to prevent your use of the business name if they believe a likelihood of confusion exists with their trademarks. For more information on when a designation may function as both a business name ("trade name") and a trademark or service mark, see TMEP §1202.01

A patent is a limited duration property right relating to an invention, granted by the United States Patent and Trademark Office in exchange for public disclosure of the invention. Patentable materials include machines, manufactured articles, industrial processes, and chemical compositions. The duration of patent protection depends on the type of patent granted:

Design Patents - 15 years from issuance for applications filed on or after May 13, 2015 (14 years from issuance if filed before May 13, 2015)

Utility patents and plant patents - 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed.

Under certain circumstances, patent term extensions or adjustments may be available. For information on patents, please visit Patents or contact 800-786-9199.

A copyright protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. The duration of copyright protection depends on several factors. For works created by an individual, protection lasts for the life of the author, plus 70 years. For works created anonymously, pseudonymously, and for hire, protection lasts 95 years from the date of publication or 120 years from the date of creation, whichever is shorter.

For information on copyrights, please contact the U.S. Copyright Office (link is external)(a division of the Library of Congress).

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A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods.

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Flowchart

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Langwitches.org has expired and is pending renewal or deletion.

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Scenarios

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Skip to Main Content

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Research Guides: Copyright and Fair Use: Common Scenarios

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Skip to Main Content It looks like you're using Internet Explorer 11 or older. This website works best with modern browsers such as the latest versions of Chrome, Firefox, Safari, and Edge. If you continue with this browser, you may see unexpected results.

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(OLD VERSION) Copyright and Fair Use Animation

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Copyright, Exceptions, and Fair Use: Crash Course Intellectual Property #3

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Court case

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In A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001), the Court of Appeals for the Ninth Circuit held that a peer-to-peer file sharing service could indeed be held liable for contributory and vicarious infringement of copyright. This landmark intellectual property case put an end to any speculation that such services could facilitate copyright infringement, but still shield themselves from any liability due to the fact that it was the users that chose to share illegal copies of protected works.

Case Background

Napster was an early peer-to-peer file sharing network which could be used for transmitting various files, but which attained massive popularity as a way to share music through .mp3s. Unsurprisingly, major record companies took issue with large-scale distribution of their music for free, and sued Napster for direct, contributory, and vicarious infringement of copyright in order to protect their intellectual property.

The Holding

As stated above, the Court ruled against Napster.

The first issue the court dealt with was "fair use." Fair use is a defense to infringement codified at 17 U.S.C. § 107, which states that otherwise infringing activities are permitted if pursued, "[F]or purposes such as criticism, comment, news reporting, teaching ... scholarship, or research." In order to determine whether the defense is met in a particular case, the statute directs Courts to consider the following four factors:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. The nature of the copyrighted work;

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. The effect of the use upon the potential market for or value of the copyrighted work.

In Napster's case, their platform allowed for "repeated and exploitative" copying, which met the meaning of the first factor, even though no sales were taking place. In addition, songs were found to be "close to the core" of the types of creative works intended to be protected by copyright, and entire songs were downloaded, setting the second and third factors against Napster. Finally, the effect of the downloads was found to harm possible album sales, which was the final nail in the coffin of Napster's argument in favor of a fair use defense.

As for the contributory infringement claim, Napster knew of widespread infringement taking place on its system, and its policing efforts were quite thin. Moreover, Napster materially contributed to the infringement, making success on this claim likely for the appellants. Similarly, the court found that Napster's lack of effort to reduce infringement, combined with the fact that the company financially benefited therefrom, made success on the vicarious infringement claim likely as well.

As a result, the court ordered the creation of an appropriate injunction consistent with its opinion against any of Napster's future infringing activities.

Issues related to peer-to-peer file sharing were again litigated a few years later when a successor company to Napster, Grokster, was sued by MGM Studios in MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005). Currently, services such as BitTorrent and The Pirate Bay are continuing to battle holders of protected works over the future of Internet file sharing.

If you are interested in learning more, the @WashULaw online LL.M. in U.S. Law program offers a course entitled "Intellectual Property," that can help expand your understanding of certain issues that may be relevant to cases like these.

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Case Study: A&M Records, Inc. v. Napster, Inc. - Blog | @WashULaw

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In A&M Records, Inc. v. Napster, Inc. , 239 F.3d 1004 (2001), the Court of Appeals for the Ninth Circuit held that a peer-to-peer file sharing service could indeed be held liable for contributory and vicarious infringement of copyright.

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Introduction to IP: Crash Course Intellectual Property #1

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What is intellectual property and what steps can you take to protect it?

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What is intellectual property and what steps can you take to protect it?

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Discussion Question

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Court case

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"Help me, Lord Walker! You're my only hope!"
The Justices at the end of last term handed down a decisive judgment in this hard-fought dispute about international copyright.

The case preview discussed the facts and issues, and is here. In brief, Mr Ainsworth (the first respondent) had been involved in making the familiar helmets for the iconic "Stormtroopers" in the first Star Wars film. In order to do so, LucasFilm had provided him with pictures and a clay model on which to base the helmets' manufacture. Mr Ainsworth did so, and made the helmets; he also made several others from the same model, which he sold over the internet. LucasFilm sought to assert copyright in the clay model, infringed by Mr Ainsworth's sale of the copies; in the alternative, LucasFilm sought enforcement of their US copyright, which it was agreed Mr Ainsworth's activities did infringe. The court came down differently on the two questions.

Lord [Sky]Walker and Lord Collins wrote the judgment of the court, with Lady Hale and Lord Phillips agreeing in full. Lord Mance also agreed, save for a short reservation of his opinion as to the pertinence of the distinction between intellectual property rights (IPRs) for which one must apply (such as patents and registered trade marks) as against those which subsist without registration (such as copyright).

The first question - about the English copyright - was the more important for Mr Ainsworth. On this, the judgments of both lower courts ( per Mann J in the High Court, and then Jacob LJ for the court in the Court of Appeal) were upheld: the clay model was an object with a functional purpose, not an artistic one. As such it was not a "sculpture" within s. 4 Copyright, Designs and Patents Act 1988. Since it was not a sculpture, copyright did not subsist, and the issues on the availability of defences to copyright infringement under ss. 51-52 CDPA fell away. It still remains the case, somewhat frustratingly for some, that no clear positive definition exists of what actually is a sculpture. Lord Justice Jacob's "elephant test" at §77 in the Court of Appeal - you know one when you see one - was expressly rejected (in a slightly dry tone) by Lords Collins and Walker (§47). As it is, though, we have a series of decisions as to what is not a sculpture, but we await positive guidance. For now, the definition offered by counsel in a different sculpture copyright case - "a three-dimensional work made by an artist's hand" - appears to be the one that has attracted least disapproval.

For Mr Ainsworth, though, the effect of the decision on this point is clear: there was no subsisting copyright in the UK, and so he had not infringed it. For him, it feels like a clear win.

There was a second question to be decided by the Supreme Court, though, and for the lawyers this is arguably the more interesting part of the decision. Mr Ainsworth had admitted that he had infringed the US copyright, but he had not personally submitted to the US courts' jurisdiction, and he contended that the UK courts had no such jurisdiction.

The Court of Appeal was overturned on its finding that the US copyright claim was not justiciable in the UK court. Rather, the Supreme Court held that the Moçambique principle was limited to questions of title to property, which this was not. Looking at the policy questions in the round, the Supreme Court considered - contrary to the result of Jacob LJ's considerable analysis on the same point - that there was no real impediment to justiciability, at least in the case of rights that in the UK are unregistered, such as copyright.

There would still have to be made out some basis for UK jurisdiction of a foreign copyright issue in each individual case - usually, this would be that the defendant is resident in the UK - but the Supreme Court found that there was no general barrier to the UK courts assuming such jurisdiction. Commentators' responses to this have varied between panic that this would lead to a flurry of foreign claims being made in the UK courts on the one hand; and a somewhat sardonic observation from one academic that "he doubts that this will lead to a sudden rush of US claimants to the British courts".

Certainly, though, this is a significant change in the law. It means that it will now be much harder for British infringers to take refuge back home from a copyright infringement action abroad - as Mr Ainsworth had sought to do. It remains to be seen how frequently people will seek to persuade the UK to take up jurisdiction of foreign copyright actions, to consolidate proceedings or to catch defendants who might be out of the reach of foreign courts.

Mr Ainsworth is happy, though: all that the justiciability finding means for him is that he can't sell his wares in the US, which he had long since stopped. This case is a pretty clear illustration of the fact that what we lawyers are interested in, and what the client needs and cares about from a judgment, can be very different indeed.
Stuart is the pupil at Three New Square, the specialist intellectual property chambers of Simon Thorley QC. He is the chair of the Oxford International Intellectual Property Moot and Conversazione.

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Case Comment: LucasFilm Ltd & Ors v Ainsworth & Anor [2011] UKSC 39

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"Help me, Lord Walker! You're my only hope!" The Justices at the end of last term handed down a decisive judgment in this hard-fought dispute about international copyright. The case preview discussed the facts and issues, and is here.

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Court Case Examples

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Here are four of the most famous intellectual property disputes between world-renowned company brands, and, yes - a macaque monkey.

If you've never heard of Napster Inc., that's because the free peer-to-peer music file-sharing company no longer exists. In 2000, A&M Record Inc. and superstars including Dr. Dre and Metallica, won significant lawsuits against Napster citing copyright infringement on an unrivalled scale.

They claimed that Napster's software - which allowed twenty million users to freely share MP3 files of their favourite music online was unlawful. The case set a precedent in 21st century copyright law regarding the impact of peer-to-peer file sharing on the earnings of the creators and owners of original artistic content.

In 2007, the high-end signature hand-bag and luggage maker, Louis Vuitton Malletier, lost an outrageous copyright infringement case against comedy fashion company Haute Diggity Dog.

In 2007, the high-end signature hand-bag and luggage maker, Louis Vuitton Malletier, lost an outrageous copyright infringement case against comedy fashion company Haute Diggity Dog.

The comedy designers had released a line of parody products named Chewy Vuitton, to go along with other memorable knock-offs such as Chewnel No.5 and Sniffany & Co.

Remarkably, the U.S Court of Appeals ruled against the claim of copyright breach, stating that because of the element of parody, the products were adequately differentiated and unique, thereby negating any copyright or trademark infringement.

Mattel Inc., creators of the Barbie doll, won a huge case against rival toy doll maker, MGA Entertainment Inc. back in 2008.

MGA claimed that Mattel had copied their latest range of Bratz dolls in order to steal back MGA's dominant market share. The designs were simply too similar, featuring disproportionately large heads and slim bodies.

However, lawyers working on Mattel's behalf managed to turn the case around, proving that an ex-Mattel designer who had subsequently worked on the design team for MGA had used designs that he had created while employed at Mattel.

In fact, those doll designs were still the legal property of Mattel. MGA was ordered to pay damages to the tune of $100,000,000 and temporarily remove their dolls from shelves. It just goes to show, instigating an intellectual property claim can end up being an expensive miscalculation.

In 2011, Naruto, a curious macaque monkey in Indonesia picked up nature photographer David Slater's camera and took one of the most famous selfies in recent years.

David Slater's copyright infringement claim against those who had copied or downloaded the photo from his online posts was rejected, the court ruling that Mr. Slater did indeed own the camera, but not the photo.

A counter claim filed in 2015 on behalf of Naruto the macaque sought to claim damages against Mr. Slater and others, and secure the intellectual property rights under Naruto's name as the author of a work of art.

The poignant argument in the case is whether it can be said that Naruto knew what he was doing. We know what we think - what about you?

If being at the forefront of developments in technology and the intellectual asset protection of art and music sounds like the career you want, check out the online Master of Laws (LLM) in Legal Practice from The University of Law.

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4 Famous Intellectual Property Cases | Edology

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Here are four of the most famous intellectual property disputes between world-renowned company brands, and, yes - a macaque monkey. If you've never heard of Napster Inc., that's because the free peer-to-peer music file-sharing company no longer exists. In 2000, A&M Record Inc.

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