Copyright, Visual Artist's Rights Act, Trade Secret, Trademark, and Patents
Copyright:
Copyright is the most relevant to multimedia. Copyright is a bundle of rights. Copyright allows holder of copyright to:
reproduce the work
prepare derivative works from the original
distribute copies of the work to the public
perform the work publicly
display the work publicly
Anyone who takes these actions and does not hold copyright or have written permission has infringed the copyright.
Requirement to obtain copyright:
1) work must be in tangible form (oral presentations not protected).
2) work must be original (height and weight charts, calendars, tape measures, lists of tables not protected). If similar work exists, yet author created the work independently, work is protected under an independent creation doctrine.
3) work must fall into one of the categories of copyrightable subject matter outlined by copyright act.
literary works (includes computer programs)
musical works
choreography
sound recordings
motion pictures
sculptural and architectural works
audiovisual works
ideas and facts not copyrightable
4) Notice for works created after March 1, 1989: you no longer need to attach copyright notice. However, you should include notice to prevent "innocent infringement". Notice is: "copyright, year of publication, name of copyright owner". Notice can be on screen or on box containing software product.
Registration of copyright: while you do not have to register with copyright office to obtain copy right protection, registering within 3 months of publication will give you distinct advantages, including statutory damages between $500 and $20K and attorney fees for infringement.
Forms can be ordered from copyright office hotline: 202 - 707 - 9100. Without registration, you can only recoup actual damages suffered or profits lost, often difficult to prove.
To register work with the copyright office you must send 3 things:
1) Completed application form. Multimedia titles are form PA (for Performing Arts). Multimedia titles fall into AV (audiovisual) works category. Written script or manual for program needs form TX (text).
2) $20 filing fee.
3) Nonreturnable copy of the work. For a CD ROM you need to include the CD and 1 copy of all the things included with it. The script and the code need to be included also. If the copyright office cannot view the product, they will request a video.
"Fair use" exemption to copyright law:
Courts look at the following four criteria to determine fair use.
1) Purpose and character of use: commercial use weighs against a finding of fair use. Criticism, commentary, news reporting, teaching, scholarship, and research fall into fair use category.
2) Nature of copyrighted work: fictional or unpublished works weigh against fair use finding. Underlying idea (not tangible element) of a work is more likely fair use.
3) Amount and substantiality of portion used: the more you use, the less likely a fair use finding. However, a small but significant portion of the work is equally damaging.
4) Effect on potential market for copyrighted work: will the infringement lead to limitation of market potential for protected work? If so, fair use will not be found. Most important of the four criteria.
Other fair use exemptions from copyright infringement:
Reverse engineering (sometimes).
Parody - the underlying work must be well known (how can you make fun of something no one has ever heard of?). The underlying work must also be the target of the humor. The "infringing" work can only use enough of the original to recall it.
The work in question is actually in the Public Domain (the copyright expired). The 1st Copyright Act covered works up to 1978. The 2nd up to 1989. The 3rd Act covers works created after 3/1/89. If the work is more than 75 years old, it is probably public domain. Under the first 2 acts, failure to include notice of copyright allowed the work to pass into public domain. International courts recognize longer copyright than U.S. Portions of public domain works may still have copyright protection (say, a script for a movie).
Do a search at the office of copyright (name of author / title).
Visual Artists Right Act of 1990:
Moral right gives author of work right to prohibit intentional distortion, mutilation, or other alteration that would damage the author's honor or reputation. It also allows author to prevent use of his name on work he did not create, or on work so altered it is damaging to the author's reputation. Applies to works created after June 1, 1991. Works of art include: limited edition prints or photographs, drawings, painting and sculpture (less than 200 copies). Works must be signed and consecutively numbered by the author. Does not apply to work-for-hire. Right is non-assignable and lasts artist's lifetime. If work is jointly created the right lasts as long as surviving author's lifetime. If author assigns copyright, but does not waive moral right, author retains it.
Trade Secret Law:
Trade secret is information - a marketing plan, chemical formula, manufacturing process, algorithm, software program - that has economic benefit and is not known by others. Unless exposed, a trade secret lasts into perpetuity. Unlike copyright law, a trade secret does not have to be in tangible form.
Criteria for determination of Trade Secret:
1) is information known outside company?
2) do all employees of company know it?
3) what steps were taken to protect information?
4) how valuable is information to company? to competition?
5) how much effort / resources went into developing info?
6) how easily could others figure it out?
In hiring new emplyees, software companies have to be careful not to infringe on competitor's trade secrets.
Trademark Law:
Trademarks are symbols, word, names, or designs used by a merchant or manufacturer to identify and distinguish their goods or services from other. (Tide, Pepsi...)
Key criteria is whether it is unique / distinguishing mark ("Light Beer" cannot be a trademark).
The less the name describes the ingredients of the product the more likely it is trademarkable.
Like copyright, you don't have to register to receive trademark protection, but if you do, you have a stronger case against infringement. Protection lasts ten years and can be renewed, but trademark must be in use.
Some trademarks have become generic, like xerox, and yo-yo, and have lost trademark protection.
3 criteria for trademark infringement:
1) are companies competitors?
2) similarity between the marks
3) sophistication of consumers in particlar market
Parody of trademarks is generally not allowed.
Patent Law:
Processes, inventions and designs must be new, useful, and non-obvious. (Non-obvious means to someone working in the same field as invention will be used). To receive a patent you must file with the Patent and Trademark Office, describe how to make and use your invention, and define the ways it meets the 3 criteria.
Patent office investigates application to see if patent already exists. Difficult to obtain patent, need patent attorney. Most applications are denied the first time routinely.
Receive a utility patent that protects creation for 17 years. Design patent given if design is ornamental. Design patent 14 yrs.
Separate patent protection for international market for each country.
Work for hire
Safest route is to have all workers assign copyright to hiring developer, including trademarks, trade sercets, and patents on 1st day of work. Only such assignment is bulletproof internationally.
In absence of copyright assignment courts will determine "work for hire" based on 13 points:
1) does hired person have discretion on when and how long to work? (no = wfh)
2) is relationship long or short term? (long = wfh)
3) did employer provide tools? (yes = wfh )
4) work done at employer's (yes = wfh)
5) provide benefits? (yes = wfh)
6) deduct employee taxes? (yes = wfh)
7) work done a regular part of company's biz? (yes = wfh)
8) can additional projects be assigned to hired person (yes = wfh)
9) does hired person have particular skill for which he was hired? (no = wfh)
10) responsibiltiy for hiring and firing? (yes = wfh)
11) control over manner and means work gets done by hired? (yes = wfh)
12) was person hired by a business? (yes = wfh)
13) how was hired paid? (regular = wfh)
For business to own copyright, work done must be within scope of employee's job ("weekend work" not owned by business).
Independent contractors - either assignment or "work-made-for-hire" agreement - must be written, signed.