Nuts & Bolts of Copyrights

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NUTS & BOLTS OF COPYRIGHTSIP -101 2016 SERIESPremier date: March 17, 2016

Premier Date: March 17, 2016

IP 101 – 2016

NUTS & BOLTS OF COPYRIGHTS


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meet the facultyPANELISTS

Eric Curtin Crawford MaunuNed Hearn Law Offices of Edward R. HearnGregory Sebald Merchant & Gould P.C.

MODERATOR Jacob Graham SpencePC


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about this webinar

Copyright protects several types of works and expressions, not just literary or musical works.

This webinar will: • Provide an overview of copyright protection;

and• Discuss basics of copyright law.


about this seriesThe United States’ intellectual property (IP) laws have undergone fundamental changes over the past several years, but more changes may be on the way. Clearly, IP rights foster human ingenuity, innovation, and creativity. But some complain that IP rights also enable certain individual and companies to prosper financially more than they should. So, what exactly are IP rights? And how might the affect you or your company. Join some of the leading attorneys in the World, as they discuss—in plain English for the non-expert—the basics of U.S. IP laws.

As with all Financial Poise webinars, each episode in the series is designed to be viewed independently of the other episodes, and listeners will enhance their knowledge of this area whether they attend one, some, or all of the programs.

episodes in this series

EPISODE #1 IP- What Every Lawyer & Client Must Understand

1/28/2016

EPISODE #2 Nuts & Bolts of Patents 2/22/2016

EPISODE #3 Nuts & Bolts of Copyrights

3/17/2016

EPISODE #4 Nuts & Bolts of Trademarks 4/21/2016

EPISODE #5 Nuts & Bolts of Trade Secrets 5/26/2016Dates above are premier dates All webinars also available On Demand through West LegalEd Center and Vimeo



What is a Copyright?

• A copyright is an intellectual property right that protects original works of authorship fixed in a tangible medium. For example, copyright protects literary, musical, and dramatic works.

• A copyright protects the expression of ideas, not the underlying ideas of the work. For example, an idea of a song is not protectable, but the written sheet music is protectable.


Requirements for Copyright ProtectionA copyright protects a work or expression that is:

1. Original (also known as the originality requirement)

2. Fixed in a tangible medium of expression (also known as the fixation requirement)

3. Authored by one or more persons


Copyright Requirements: Originality

Originality is said to be the touchstone and sine qua non of copyright. Originality in the sense of copyright protection does not mean the work or expression must be an original or inventive thought.

To be original:• A work must be independently created; • A work must originate from the author; • A work must possess a modicum of creativity; and• A work must not be copied from another work or

expression.


Copyright Requirements: Originality

Originality does not mean the work must be novel or entirely new.

• A compilation of facts, such as an encyclopedia, or derivative works, such as a translation of a book, may receive copyright protection as long as there is a modicum of creativity.

• For example, a phone book may possess a modicum of creativity depending on how the facts are selected and arranged.

• The slightest amount of creativity will meet this creativity requirement, even if the expression is obvious.


Copyright Requirement: Fixation

A work is fixed in a tangible medium when the work is sufficiently stable to permit it to be perceived, reproduced, or otherwise communicated for a period of transitory duration.

• Although the work of authorship receives protection, it must be fixed in some tangible medium. For example, a musical composition (the work of authorship) receives copyright protection, but it must be fixed in a tangible medium, such as sheet music, an audiotape, or a computer hard drive, to receive copyright protection.


Copyright Requirement: Authorship

A work or expression must have an author.

• Authorship is a human endeavor, and authors of a copyrightable work or expression must be persons.

• Corporations are considered “authors” under the Copyright Act, but animals are not considered “authors.” A court recently held a monkey did not have a copyright to a “selfie” picture.


What Types of Works Receive Copyright Protection?

Section 102 of the Copyright Act lists general categories of subject matter of copyright. Examples of copyrightable material include:

• Literary works;• Musical works, including any accompanying words;• Dramatic works, including any accompanying music;• Architectural works; and• Derivative works and compilations.

N.B. The copyright of a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.


What types of works are excluded?

Pursuant to Section 102 of the Copyright Act: • In no case does copyright protection for an original

work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Copyright also does not extend to U.S. government works or typefaces.


Copyright RightsA copyright gives its owner the exclusive right to:• Reproduce the work – others cannot reproduce the

work without permission.• Prepare derivative works – others cannot create

adaptations without permission.• Distribute copies of the work – others cannot distribute

copies without permission. • Perform works – others cannot publicly perform certain

works. • Display works – others cannot publicly display certain

works.


Copyright Ownership

Generally, the creator(s) of the work owns the copyright, except for:• “Work Made for Hire”• A work prepared by an employee within the scope of his or her

employment is owned by the employer.• Certain works specially ordered or commissioned are not owned

by the creator, if the parties expressly agree in writing that the work is a work made for hire.

• Assignment of copyright: an owner of a copyright may transfer interest in each of the exclusive rights under a copyright.

• Sale of the entire copyright.


Copyright Ownership Cont. Coauthorship exists where two or more authors contribute to a single work intending that their contributions be created into an inseparable or interdependent whole.

• Inseparable – the contributions have no or little independent meaning standing alone.

• Independent – the contributions have some meaning standing alone, but achieve significance when combined.

Each coauthor shares equally in the ownership of the work, even if the contributions were unequally made.


Benefits of Registration

Copyright registration is not necessary for protection, but registration provides certain benefits to owners. Benefits to obtaining copyright registration include:

• Registration is required to commence a lawsuit.• Timely registration permits a copyright owner to seek

statutory damages, which can help force prompt settlement.

• Timely registration makes a copyright owner eligible for an award of attorneys’ fees in a successful infringement lawsuit.


Benefits of Registration Cont.Copyright registration is not necessary for protection, but registration provides certain benefits to owners. Benefits to obtaining copyright registration include:

• Registration within 5 years of publication carries with it a presumption of the validity of the copyright and of the facts stated in the certificate.

• Registration permits the copyright owner to seek the assistance of the U.S. Customs and Border Protection.

• Registration provides contact information for interested parties to obtain a license.


Benefits of Notice

Copyright is not required for a work to be protected under the federal Copyright Act. Benefits to providing notification include:

• Notice informs the public the work is protected, deterring infringement and facilitating licensing.

• Notice prevents an “innocent infringer” defense, which acts as a defense to actual or statutory damages.

Notice should include symbol/word/©, year of publication, and name of owner.


Limitations on Copyright“Merger”: If an idea can only be expressed in one way, the idea and expression “merge” and no protection can be afforded. For example, the Ninth Circuit held that a copyright on a jeweled bee pin merged, because it was the only way to create a bee pin using a small number of jewels. “Scenes a Faire”: Indispensable elements of a work are protected only against nearly identical copying.“Functionality”: Functional or useful features of a work only receive copyright protection to the extent the features can exist independently.


Limitations on Copyright Cont.“Fair Use”: Reproduction of a work for criticism, parody, comment, news reporting, scholarship or research is a complete defense to copyright infringement. • Courts apply the following four non-exhaustive

statutory factors to determine “fair use”:1. The purpose and character of the use;2. The nature of the copyrighted work;3. The amount and substantiality of the work used;

and4. The effect the use has on the work’s value.


Limitations on Copyright Cont.“First Sale” or “Exhaustion”: The owner of a copy of a work is entitled to sell or dispose of that copy without the copyright owner’s consent. In Kirtsaeng v. John Wiley & Sons, Inc., the Supreme Court held that the “first sale” doctrine applies to copies of works lawfully made abroad.

Statute of Limitations: A claim for copyright infringement must be brought within three years from the date of accrual. A “separate-accrual” rule applies, which allows the statute of limitations to run separately for each act of infringement.


Copyright Infringement

Copyright infringement occurs when a party exercises an exclusive right afforded to the copyright owner without the owner’s permission.

A party that knowingly induces, causes, or materially contributes to copyright infringement, may be held liable as a contributory infringer even if the party has not committed or participated in the infringing acts.


Copyright Remedies

Copyright remedies include:

• Preliminary Injunction – requires a showing of irreparable harm.

• Monetary Damages – a party may recover damages

incurred as a result of the infringement, including an infringer’s profits to the extent the profits do not exceed the owner’s losses.

• Statutory Damages – range from $750 to $30,000, and a court may increase damages to $150,000 for willful infringement.

More About The Faculty: D

JACOB GRAHAM


[email protected] Graham is a registered patent attorney and associate with Spence PC. He has substantial experience in litigation, arbitration, mediation and agency proceedings, and represents clients in federal and state courts in the areas of intellectual property and commercial law. His litigation skills accompanied by his background in science and technology have contributed to positive, cost-effective results for clients in major technology and commercial matters.Mr. Graham earned his law degree from Loyola University of Chicago School of Law, where he was awarded an intellectual property fellowship and graduated cum laude in 2012. During law school, he was a member of Loyola’s law journal, and externed for Judge Ronald Guzman of the U.S. District Court for the Northern District of Illinois where he drafted opinions in the area of patent law. Additionally, while in law school, Mr. Graham worked as a clerk for a large litigation firm and as a student clinician in the Loyola Business Law Clinic, advising clients on intellectual property and small business matters.Prior to pursuing his legal education, Mr. Graham gained valuable experience working as a scientist for a large pharmaceuticals company. As a scientist, he researched and analyzed liquid dose and solid dose drug formulas, and collaborated with regulatory and quality departments to develop new drug products. During his undergraduate studies, Mr. Graham interned with the Walter Reed Army Institute of Research and worked at the U.S. Army Medical Research Institute of Chemical Defense, where he published research papers and developed methods and chemical assays that measured neurotransmitter and enzyme levels to assess the effects of nerve agents. Mr. Graham earned his undergraduate degree from Pennsylvania State University in Biotechnology with a minor in Microbiology. He also enrolled in several information technology and computer science classes, becoming proficient in numerous computer languages.Prior to joining Spence PC, Mr. Graham worked several years at an international law firm in Chicago.


ERIC [email protected]

Eric’s practice has included the preparation and prosecution of patent applications in the electronic, electromechanical, biomedical, chemical and optical technology areas, and further in the area of computer-implemented/software inventions. Eric also assists clients in the procurement of trademarks and copyrights, and with various aspects of trademark and copyright law including oppositions, cancellations, and license agreements. He maintains a robust practice in client counseling, including opinions of infringement/invalidity.Eric leads his firm’s legal education efforts, has authored multiple intellectual property articles, and serves as an expert on nationally-broadcast panels concerning patent, trademark and copyright matters. His recent article Functional Claiming Under U.S. Patent Law has been published by the International In-house Counsel Journal.

Technically, Eric has significant experience in various cross-disciplinary fields including those involving wireless communications technologies, semiconductors, medical/biological devices, thin-film transistors, solar cells, proteomics and nanotechnologies. He has worked extensively in the semiconductor design, physics and materials science fields, and in a variety of communications fields involving mobile electronics, video processing, and media content streaming.

Prior to entering the legal profession, Eric worked in engineering and research areas for the automotive and plastics industries. He is experienced in prototype modeling, failure analysis, and in the design, installation, and operation of electronic controls, robotics and communications systems.In addition to his legal and industry experience, Eric is involved with non-profit and community organizations, serving on the board of directors for two Minnesota-based non-profit organizations that promote youth athletics.

Eric has engineering and law degrees from the University of Wisconsin at Madison. He is licensed to practice law in several state and federal courts and is a registered patent attorney.


https://www.iicj.net/library/detail.asp?key=870

https://www.iicj.net/library/detail.asp?key=870


NED [email protected]

With his principal office in San Jose, California, Edward (Ned) R. Hearn, of The Law Offices of Edward R Hearn, represents clients worldwide in intellectual property and business matters related to creative artists and media-based companies.Ned's practice focuses on entertainment, internet, and computer software businesses and their convergence, intersecting content, media, and technology in the digital internet environment, including: recording, production, and publishing; multi-media and internet web-based productions; video games for mobile and console based platforms; mobile apps; digital distribution and repurposing of content; licensing, distribution, and marketing; copyright and trademark matters; merchandising; sponsorships; film, television, video productions; options, scoring, and soundtracks; content syndications; literary publishing, including fiction and technical and professional non-fiction; clearances for use of intellectual property in all forms of media; talent services negotiating and contracting; strategic alliances; content catalog sales and purchases; business start-ups and development; private financing; and private mergers and acquisitions of content and media-based companies.

His clients include record labels, music publishers, book publishers, software and video game publishers, traditional and internet-based media, production, technology, and content distribution companies; webcasting companies; recording artists, writers, producers, managers, authors, software, video game, and app designers and developers, and multimedia product and website designers and developers.




GREGORY SEBALD

[email protected]

Gregory Sebald is a Partner at Merchant & Gould.

Greg provides quality work that fulfills his clients' needs: Greg's practice is both that simple and that complex. He enjoys getting to know his clients' businesses so he can truly partner with them, discussing not just individual patents, but how those patents fit into the company's overall business strategy.Greg practices Intellectual Property law with an emphasis on client counseling on patent and copyright matters. His practice includes developing domestic and international Intellectual Property portfolios and strategies for effective and economical protection, with a goal of giving his clients a strategic advantage in the marketplace.He also chairs the firm's Copyright and Entertainment Law Committee and provides counseling for acquisition and enforcement of rights for art, music, publishing, licensing, and related legal matters. Greg has extensive experience in U.S. and international patent prosecution in mechanical and electro-mechanical areas.

At Merchant & Gould, Greg serves on the Benefits Committee. He provides pro bono copyright counsel for select nonprofits.

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Important Notes

• THE MATERIAL IN THIS PRESENTATION IS FOR GENERAL EDUCATIONAL PURPOSES ONLY.

• IT SHOULD NOT BE CONSIDERED LEGAL, INVESTMENT, FINANCIAL, OR ANY OTHER TYPE OF ADVICE ON WHICH YOU SHOULD RELY.

• YOU SHOULD CONSULT WITH AN APPROPRIATE PROFESSIONAL ADVISOR TO DETERMINE WHAT MAY BE BEST FOR YOUR INDIVIDUAL NEEDS.