WORK FOR HIRE:
The creation of works is becoming increasingly more complicated, particularly as they are comprised of more and more elements across different media. The complexity of sorting out rights to the various elements increases correspondingly. Formerly, if an author wrote an article, for example, he owned the copyright by the act of creation. But if he or she was an employee or the article was commissioned by a magazine, the employer or magazine received the copyright. Now, with a multimedia work—a CD-ROM, for example, which may include text, sound and visual images—it is very important for publishers and other users who acquire, instead of creating content, to clarify that they own the rights that they think they have.
For freelancers and other non-employees, on the other hand, it is equally crucial to address in writing the question of rights ownership. If someone retains a designer to create a web site, for example, the hiring party will probably own the contents of the site. However, if the site incorporates a search engine or other preexisting software or elements, rights to these portions may be retained by the designer.
The question of the permissible quantity and quality of material that may be used without the permission of the copyright owner is a difficult, fact-specific determination that depends on the circumstances of the case. The Copyright Act provides four factors to be considered: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. However, it is extremely difficult to apply these factors to individual situations, as is evidenced by inconsistent judicial opinions on seemingly identical facts. Although the fair use doctrine supposedly applies equally to all types of works, it may be that there is a narrower standard for visual works because it is easier to see copying. Fair use is a particularly important factor when creators incorporate the preexisting materials of others.
FIXATION, REGISTRATION AND THE ENFORCEMENT OF RIGHTS:
Works are copyrighted from the moment of fixation—that is, when they are in a tangible, more than transitory form. For example, live music is not fixed, although the performance would be if it had been recorded in a CD or DVD. At the moment of recording, there is a copyright. Potentially, there would be an infringement if someone used the music without permission. However, before the music owner could bring suit, if the work were of U.S. origin, he or she would have to register the work with the Copyright Office. Once the work is registered within three months of publication, the copyright owner is eligible to receive attorney’s fees and statutory damages. These are important benefits because copyright suits are very expensive, and it is often difficult to show actual damages.
TRADEMARK ISSUES ON THE INTERNET:
Even though the Internet does not appear to be a tangible environment, the same rules apply here as for traditional goods and services. A trademark is a distinctive word, phrase, symbol or design used to identify and distinguish one’s goods: for example, WILSON for sporting goods, HONDA for automobiles and motorcycles. A service mark identifies and distinguishes one’s services: for example, KINKO’s for photocopying and related services. Because the legal requirements are the same for both service and trademarks, they are collectively referred to as trademarks. Distinctive sounds, colors, scents and shapes may also be protected as trademarks.
A distinctive mark is entitled to trademark protection on use or the filing of an intent-to-use application with the Patent and Trademark Office. Trademarks are descriptive, suggestive, arbitrary or fanciful, in ascending order. The more distinctive the mark, the broader the scope of protection. The user or registrant is protected against subsequent use of identical or confusingly similar trademarks for related goods or services.
For “famous” marks, the Federal Trademark Dilution Act of 1995, provides protection against blurring or tarnishment. Blurring occurs when a third party uses a famous mark to identify noncompeting goods: for example, FORD hamburgers. A mark is tarnished when it is used in a negative or embarrassing manner: for example, “Enjoy Cocaine” associated with Coca-Cola’s design. The owner of the famous mark does not have to show likelihood of confusion, only that a third party tried to capitalize on the distinctive name.
FAQs from The Content Lawyer
The Alderman Law Office in Washington, D.C., focuses exclusively on intellectual property, entertainment, Internet, content and media law issues, providing services to clients in the United States and abroad.
We have more than 30 years of experience representing individuals and businesses dealing with all types of intellectual property, content and media law issues, and are frequently consulted by other law firms and colleagues for assistance with complex intellectual property, content and media matters. Firm principal, Elliott C. Alderman, has been chosen for inclusion in the 2013-2017 International Who’s Who of Business Lawyers, in the category of Entertainment law. This peer-nominated publication features the most highly regarded practitioners in the world, in a variety of practice areas.
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