Trademark Information

U. S. Copyright Law

What is a copyright?

The U.S. Copyright Act protects “original works of authorship” from being reproduced without the consent of the original author or artist. It covers tangible expressions, not ideas.

The Copyright Act is a Federal law. There are no state laws governing copyrights. The current law, (U.S. Code, Title 17, Section101 and following) took effect Jan. 1, 1978, replacing the law created in 1909. Certain copyright transactions prior to Jan 1, 1978, are governed by the 1909 law. Congress has amended the current law often since it was enacted, but basic provisions have not changed.

The courts apply three basic criteria to determine the existence of an “original work of authorship.”

• Originality: The work must be independently created by the author, but it need not be “novel.”
• Creativity: The work must possess a “minimal degree” of creativity.
• Fixation in a tangible medium: This refers to the actual expression of an idea, rather than the idea itself. This occurs when the work appears, by or under the authority of the author, in a sufficiently permanent state to permit it to be perceived, reproduced, or otherwise communicated to others.

What a copyright can cover

• Pictorial, graphic and sculptural works.

This includes two- and three-dimensional works of fine, graphic and applied art, photos, prints, and art reproductions, maps, globes, charts, models and technical drawings, including architectural plans.

• Literary works, musical works, including any accompanying words; dramatic works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; motion pictures and other audiovisual works, sound recordings, and architectural works.

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U.S. Copyright Law

Who Owns a Copyright?

The copyright owner can be the author or authors of the work or a person or organization that has obtained ownership of all the rights under the copyright initially belonging to the author or authors.

Work Made for Hire

The biggest exception to this general rule of ownership is for a “work made for hire.” There are two circumstances when a work is considered a “work made for hire.”

1. A work prepared by an employee within the scope of his or her employment is owned by the employer, unless the employee and employer have agreed otherwise in a written document signed by both employee and employer.

A designer who creates a design within the scope of his employment is not the copyright owner of the design, unless the employee and employer have agreed to that in writing.

2. A work ordered or commissioned for use as a contribution to a collective work is owned by the person or entity who ordered or commissioned it only if there is a written agreement signed by both parties stating that the work will be considered a work made for hire. Thus, if a freelance photographer is retained to take photographs for use in a catalogue, the photographer will retain the copyright in those photographs unless there is a signed agreement to the contrary. The length of copyright differs depending on whether or not the work is a work made for hire.

Transfer of copyright ownership

Following specific technical requirements, copyright owners can also transfer some or all of their exclusive rights. You should consult your own attorney on the issues of ownership, transfer and licensing.

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U.S. Copyright Law

Rights and Limitations of Copyright Owners

Rights

The owner of the copyright has certain exclusive rights, including the right to:

• • Reproduce the work in copies.
• • Prepare derivative works.
• • Distribute copies to the public by sale or other transfer of ownership, or by rental, lease or lending.
• • Display the copyrighted work publicly
• • Perform the work publicly (e.g., for dramatic or literary works).

Limitations

The rights given to copyright owners are not unlimited in scope. Among the limitations are:

FAIR USE

Considered one of the most significant limitations to the rights of copyright owners, the Doctrine of Fair Use states that the “fair use of copyrighted work for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

The following four factors help determine what is “fair use”

1. The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit 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.

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

IDEAS

Ideas, procedures, formulas, methods, systems, processes, concepts, principles, discoveries and devices are not protected by copyright law. However, the patent laws may provided protection for some of these items.

SYMBOLS

Familiar symbols, simple geometric shapes (although combinations of such shapes can be copyrighted), standard calendars, rulers, and height-and-weight charts can not be covered by copyrights.

TYPOGRAPHY

Variations of typographic ornamentation, lettering or coloring are not covered by copyrights.

How copyrights are created

A copyright is secured automatically when a work is created and fixed in a “tangible medium of expression.” Copyright automatically becomes the property of the author who created it. No publication or registration or other action in the copyright office is required.

For works created over a period of time, copyright protection covers the work-to-date. For works that have gone through different versions, each version is a separate work.

Although copyrights are created automatically, authors may choose to also give Notice of Copyright (notice is generally required for works first published before March, 1989) and to register their copyright with the copyright office. The mechanics of the registration process are discussed later.

Note: that a copyright comes into existence when a work is CREATED, not when it is published. The Copyright Act defines publication as the “distribution of (or offering to distribute) copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” A work is “published” when the author gives the public the opportunity to obtain it or, in some circumstances, to see it.

Although publication is not required in the creation of a copyright, it is an important area of copyright law. For example, the date of publication may have a bearing on the length of a copyright for a work made for hire.

Limitations to Copyright Protection

• Compilations, derivative works and useful articles.

Copyright protection applies only to the new material contributed by the author of the compilation and implies no right to pre-existing material

Compilations

The Copyright Act defines a compilation as a work formed by the assembling and collection of pre-existing materials or of data that are selected arranged or coordinated in a way that the resulting work, as a whole, comprises and original work of authorship.

Derivative works

These works are “based upon” one or more pre-existing works, such as the translation, adaptation, revision, abridgement, recasting or other transformation of the copyrighted work.

Useful articles

Copyright covers the design, but not the “useful article” itself. These are clothing, rugs, furniture and machinery that have intrinsic, utilitarian functions. Although copyright protection may protect any pictorial, graphic or sculptural components of such articles such as the design on rugs or other fabrics, it does not extend to their mechanical or utilitarian aspects.

Note: Some designs of useful articles may qualify for protection under the federal design patent law. For further information, write the Commissioner of Patents and Trademarks, Washington, D.C. 20231.

What a Copyright does not Cover

Expressions of ideas versus ideas

The Copyright Act was designed to protect the expression of an idea, but not the idea itself. For example, and author can copyright his painting of a particular red design on a white background, but cannot copyright the idea of using the combination of red and white.

Examples of things that cannot be copyrighted

• Titles, names, words, short phrases and slogans (the trademark laws may provide protection for some of these items).

There are also some specific limitations for particular types of work. For example, for an architectural work that has been constructed and is visible to the public, the copyright owner of the architectural work cannot prevent anyone from displaying pictures of the building. The copyright owner can not stop the owner of the building from altering or even destroying the building.

Life-span of copyright protection

Copyrights only last a limited time. After that time has expired, works enter the “public domain” and may be used relatively freely.

All works created after January 1, 1978 generally have the following protection:

Individual and co-authors

Works by individuals are protected from the moment of creation, and are given a term extending for the author’s life plus 70 years after his/her death. For works that are co-authored, the term lasts 70 years after the last surviving author’s death.

Works made for hire/anonymous and pseudonymous works

The copyright extends 95 years from publication or 120 years from creation, whichever is shorter. In the event the identity of one or more of the authors of an anonymous or pseudonymous work is revealed before the end of that term, the time period reverts to the one appropriate for the circumstances as described above.

(For works created prior to Jan.1, 1978 the length of copyright protection depends on their status under the prior law on that date. In general, the current act significantly extends copyright protection for works registered under the prior act.) for works registered under the prior act).

All copyright terms run to the end of the calendar year in which they expire.

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U.S. Copyright Law

Protecting Your Copyright

What is “infringement”

Infringement is a violation of one or more of the copyright owner’s exclusive rights. In order to prove infringement in court, a copyright owner needs to show:

1. Ownership of a valid copyright, and

2. Copying of protected elements of the work

Since direct proof of copying is usually difficult to find, copying can be shown by proving:

1. The infringer had access to the protected work, and

2. The infringing work is “substantially similar” to the protected work.

When you suspect infringement

Here are the steps you should take when you suspect your copyright is being infringed.

1. Register your copyright

If you haven’t already registered your copyright, do so. You generally cannot bring suit without a registration.

2. Notify the infringer

The infringer should be sent a “cease and desist” letter preferable written by an attorney for the copyright owner. The letter should state the basis for your claim of copyright ownership, the nature of the perceived infringement, and a demand that the infringement cease by a certain date. Other demands can also be included in the letter. In some circumstances, it may help to suggest that any claims for damages will be waived if the infringer agrees to enter into a licensing agreement with the copyright owner.

3. Litigation

If no amicable resolution can be reached, litigation may be appropriate. Lawsuits must be filed no later than three years after the infringement. If suit is not filed as soon as possible after the infringement, then the court may not order that the infringement stop while the lawsuit is pending.

Remedies

Injunctive relief

As part of a final judgment, a court can issue an order requiring the infringer to stop infringing. The court can also order the destruction or other reasonable disposition of the infringing goods as part of the final judgment.

While the lawsuit is still pending, the copyright owner can ask the court to preliminarily enjoin the infringement, and impound any allegedly infringing goods. In order to have the court order this preliminary relief, the copyright holder will generally have to show that he or she is likely to win the lawsuit and has acted a swiftly as possible to stop infringement and to protect the copyright.

The court will likely require the copyright owner to post a bond to cove the defendant’s losses, if the court decides after hearing the entire case that the injunction should not have been issued.

Many infringement cases begin and end with the request for preliminary injunctive relief. In order to rule on such requests, courts hold hearings and both sides put on the best evidence they have.

Because the court issues a ruling based on whether the copyright owner is likely to win or not, the parties have a good idea whether continued litigation is worthwhile.

Any injunctive relief orders can be enforced throughout the United States.

Damages

There are two categories of damages: actual and statutory. As the term implies, actual damages can be proved.

A copyright owner must choose between either actual damages or statutory damages. Both will no be awarded.

Statutory damages are generally not available for any infringement that occurred prior to the registration of the copyright.

If you choose actual damages, you must prove your actual damages occurred as a result of the infringement. Actual damages may be more OR less than statutory damages.

Actual damages plus profits.

These are the actual, provable damages suffered by the copyright owner as a result of the infringement, plus any profits of the infringer that are attributable to the infringement. The infringer’s profits are computed separately from the actual damages suffered by the copyright owner.

Statutory Damages

For all infringements involving one work, the award can range from $500 to $20,000, at the court’s discretion.

For willful infringement, statutory damages can rise to as much as $100,000 for every infringement involving one work. (Remember, it is the DESIGN that is copyrighted, NOT the article itself. So if the infringer sells one or one million rugs of the same design, the maximum statutory damage figure is still$100,000.

On the other hand, if the infringer can prove that it was not aware and had no reason to believe its actions were infringing, the court can reduce statutory damages to as little as $200.

The benefit of statutory damages is that no actual losses need be proved in order to prevail.

Court costs and fees

Court costs can be awarded to the prevailing party. Unlike most litigation in the United States, where each party has to pay it’s own lawyer, the Copyright Act provides that attorney’s fees can be awarded to the prevailing party, except where the winning copyright owner failed to register its copyright before the infringement commenced.

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U.S. Copyright Law

Insuring Your Own Designs

Do not Infringe

Public Domain

Designs are in the public domain if they are not protected by a current registration, or common- law copyright. An old Persian rug design is a good example of a design in the public domain. No one owns it and everyone is free to copy it, modify it or use portions of the design, without having to account to the design owner.

Modification of Designs in the Public Domain

The modified or new design which uses portions of the public domain design can be protected under copyright laws as a new design. This assumes, however, that the design is sufficiently changed from the public domain design used as a reference.

Too often, designs which are not in the public domain are copied as if they were. No designs should be copied, modified or used, even in part, unless they are clearly in the public domain.

A copyright lawyer can search for registrations, but common-law protected designs may not be as easily confirmed.

Old, out of print books, are a good source for public domain designs. But, remember the risk is yours if you copy, modify or use any portion of a protected design, even if you assumed it was in the public domain.

The safe practice is not to copy any design you have seen on a current product

Documenting your design process

Whenever a dispute occurs regarding a copyright infringement claim, the issues come down to proving your case.

That means you have to document the development of your design. The documentation should include copies of any photos or sketches used, the source of your design inspiration )a sunset in Milan, and old painting, your mother’s antique broach, etc.) And any documentation of such source.

Documentation also needs to include each design draft and alterations to the drafts, copies of any computer programs or applications used, date stamped if possible, printouts, faxes and any other indicia of dating that would support your claims of when your design was produced, where the design was first used and with whom it may have been shared.

Everything and anything that proves how and when created your design is helpful and should also keep a design journal listing your creative activities in connection with the design. Keep all entries dated and attach all sketches to the pages.

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U. S. Copyright Law

U.S. Copyright Registration

Copyright registration creates a public record of a copyright. It is generally not a condition of copyright protection, but there are several advantages to formal registration.

Advantages of registration

• 1. Copyright registration creates a public record of the copyright claim.
• 2. For U.S. works, registration is generally required to start a lawsuit for copyright infringement.
• 3. It establishes prima facie evidence in court of the copyright’s validity and pertinent facts when registration is made before or within five years of publication.
• 4. It opens the door to statutory damages and attorney’s fees to the copyright owner when registration is made within three months after publication of the work or prior to an infringement of the work. Otherwise, only and award of actual damages and profits is available.
• 5. It allows the copyright owner to protect against the importation of infringing copies by registering the copyright with U.S.Customs Service.
• Note: For more about protection against the importation of infringing copies, contact the Commissioner of Customs/Attention: IPR Branch.

How to Register a Copyright

The registration of a copyright is a mechanical matter. You need to complete the proper forms and send them to the Copyright Office. A filing fee of $20 is required for each design.

Each design requires a form

For registration purposes, all copyrightable elements that are included in a single unit of publication, and in which the copyright claimant is the same, may be considered a single work. (This applies to individual elements in a single design. It does not cover rug “collections.” Each design in a collection requires a separate registration.

A non-returnable “deposit” of the work being registered.

The deposit requirement differs depending on what is being copyrighted. For example, the Copyright Office doesn’t want to receive a rug. A color photo, showing the design, is acceptable, and only one copy is needed.

Obtaining information
from the US Copyright Office

Contact the Copyright Office, Library of Congress,101 Independence Ave., S.E. Washington, D.C. 20540. Washington, D.C. 20559-6000 and request Form VA, for published and unpublished works of the visual arts (pictorial, graphic and sculptural works, including architectural works).

The U.S. copyright office’s website is extremely helpful. http://www.loc.gov/copyright Forms can also be downloaded from the website.

Effective date of registration

A copyright is considered registered on the date that the copyright office receives all of the required elements in acceptable form. The registration date is not affected by the length of time it takes the copyright office to process the application and mail the certificate of registration.

What to expect from the copyright office

The copyright office will send you a certificate of registration to indicate the work has been registered or a letter of explanation if it has been rejected.

The office may also contact you by letter or phone call, if further information is needed.

Don’t expect an acknowledgment of receipt. The office receives more than 600,000 applications annually. To verify receipt and the date, send packages via registered of certified mail with a return receipt requested.

Time frame

Processing time varies and depends upon the workload and staff availability at any given time. Certificates of registration can take several months to be mailed.

Application can be processed on an expedited basis—usually in a week or two—for a pressing reason such as ongoing infringement or potential litigation. In addition to the $20 registration fee, there is a $500 fee for such “special handling.” Requests for special handling also need to be accompanied by a letter explaining the need for special handling. The requests must be sent to Library of Congress, Department 100, 101 Independence Ave., S.E. Washington, D.C. 20540.

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U.S. Copyright Law

COPYRIGHT NOTICE

Notice of Copyright is not required for works first published on or after March 1, 1989, although it is highly recommended. Notice of copyright alerts the public and the competition that the work is protected by copyright and may act as a deterrent for possible infringement. Notice of Copyright is required for works first published before March 1, 1989. If notice is not given, the author risks the loss of copyright protection for non-compliance.

There are three components to giving notice of copyright.

Example:(c), 1998 Lisa Andrews

1. The copyright symbol-the letter c in a circle, or the word “Copyright” or the abbreviation “Copr.”

2. The year of first publication

The year date may be omitted when the material is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful article. In the case of a compilation or derivative work involving previously published material, the year date of first publication of the compilation is sufficient.

3. The name of the copyright owner

Also acceptable is an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.

Position of notice

Notice should be:

• • Affixed in such a manner and location as to “give reasonable notice of the claim copyright.”
• • Permanently attached
• • Legible to the ordinary user

Note: for two-dimensional works, notice is allowed on the front or back of the work or on any backing, mounting, matting, framing or other material to which the work is attached, so as to withstand normal use. On a rug, the notice of copyright can appear on the label or backing. A rug design is a two-dimensional work. As a reminder, it is the DESIGN that is protected, NOT the rug or other “useful article.”

Advantages of giving notice of copyright

• • Provides the public with pertinent information, notice of the work’s copyright protection, the identity of the copyright owner and the year of first publication,
• • The courts will generally not allow the argument of “innocent infringement” when proper notice has been given. This is an important point, since successful? innocent infringement? arguments may result in a reduction of damages paid to the copyright owner.

International Copyright Protection

There is no such thing as an “international copyright” that will automatically protect and 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 do offer protection to foreign works under certain conditions, and these conditions have been greatly simplified by international copyright treaties and conventions.

The United States is involved in several treaties and conventions, including the Berne Convention, the Universal Copyright Convention, the Geneva Phonograms Convention, the WTO Agreement, and WIPO Copyright Treaty, and the WIPO Performances and Phonograms Treaty, and generally speaking, a work protected in any country that is a party to such a treaty or convention is protected in all other countries that are parties to it.

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Copyright Law

For More Information:

Copyright Office address:

Library of Congress
Copyright Office
101 Independence Avenue, SE
Washington, D.C. 20559-6000

Copyright Office Forms and Publications
24-hour Hotline – 202-707-9100

To request applications, circulars, and other publications – 202-707-3000

For forms and publications, send a written request to:

Copyright Office
Publications Section
LM-55 Library of Congress
Washington D.C. 20559-6000

Further Information on the Internet

U.S. Government Copyright Office http://www.loc.gov/copyright

U.S. Government Patent & Trademark Office http://www.uspto.gov

These websites are a valuable source of information for frequently requested forms, instructions, circulars, announcements, regulations and other related materials.

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Copyright Law

Glossary of Terms

Actual damages: losses directly referable to the act of infringement; losses that can readily be proven to have been sustained, and for which the injured party should be compensated as a matter of right.

Anonymous: of unknown or undeclared origin or authorship.

Copyright: protection by statute or by the common law, giving authors and artist exclusive right to publish their works or to determine who may so publish.

Infringement: a violation, encroachment, transgression or trespass.

Injunctive relief: the redress or assistance awarded to a complainant, by the court, especially a court of equity, including such remedies as specific performance, injunction, rescission of a contract, etc.

Intrinsic: belonging to the essential nature or constitution of a thing.

Graphic art: art represented, decorated or printed on a flat surface.

Indicia: Signs or circumstances that tend to support a belief in a proposition.

Litigation: a judicial contest aiming to determine and enforce legal rights.

Permission: a formal consent

Pertinent: relating to the matter under consideration.

Prima facie: at first view, on its face. Not requiring further support to establish existence, validity, and credibility

Pseudonymous: of a fictitious name.

Public domain: information, which is available to anyone and is not subject to copyright.

Tangible: perceptible, especially by the sense of touch.

Typographic: the style, arrangement or appearance of printed matter.

Utilitarian: Pertaining to usefulness rather than beauty.

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