FAQ: Questions and Answers

[back to notice text] Question: What rights are protected by copyright law? Answer: The purpose of copyright law is to encourage creative work by granting a temporary monopoly in an author's original creations. This monopoly takes the form of six rights in areas where the author retains exclusive control. These rights are: (1) the right of reproduction (i.e., copying), (2) the right to create derivative works, (3) the right to distribution, (4) the right to performance, (5) the right to display, and (6) the digital transmission performance right. The law of copyright protects the first two rights in both private and public contexts, whereas an author can only restrict the last four rights in the public sphere. Claims of infringement must show that the defendant exercised one of these rights. For example, if I create unauthorized videotape copies of Star Trek II: The Wrath of Khan and distribute them to strangers on the street, then I have infringed both the copyright holder's rights of reproduction and distribution. If I merely re-enact The Wrath of Khan for my family in my home, then I have not infringed on the copyright. Names, ideas and facts are not protected by copyright. Trademark law, in contrast, is designed to protect consumers from confusion as to the source of goods (as well as to protect the trademark owner's market). To this end, the law gives the owner of a registered trademark the right to use the mark in commerce without confusion. If someone introduces a trademark into the market that is likely to cause confusion, then the newer mark infringes on the older one. The laws of trademark infringement and dilution protect against this likelihood of confusion. Trademark protects names, images and short phrases. Infringement protects against confusion about the origin of goods. The plaintiff in an infringement suit must show that defendant's use of the mark is likely to cause such a confusion. For instance, if I were an unscrupulous manufacturer, I might attempt to capitalize on the fame of Star Trek by creating a line of 'Spock Activewear.' If consumers could reasonably believe that my activewear was produced or endorsed by the owners of the Spock trademark, then I would be liable for infringement. The law of trademark dilution protects against confusion concerning the character of a registered trademark. Suppose I created a semi-automatic assault rifle and marketed it as 'The Lt. Uhura 5000.' Even if consumers could not reasonably believe that the Star Trek trademark holders produced this firearm, the trademark holders could claim that my use of their mark harmed the family-oriented character of their mark. I would be liable for dilution. [back to notice text] Question: What kinds of things are copyrightable? Answer: In order for material to be copyrightable, it must be original and must be in a fixed medium. Only material that originated with the author can support a copyright. Items from the public domain which appear in a work, as well as work borrowed from others, cannot be the subject of an infringement claim. Also, certain stock material might not be copyrightable, such as footage that indicates a location like the standard shots of San Francisco in Star Trek IV: The Voyage Home. Also exempted are stock characters like the noisy punk rocker who gets the Vulcan death grip in Star Trek IV. The requirement that works be in a fixed medium leaves out certain forms of expression, most notably choreography and oral performances such as speeches. For instance, if I perform a Klingon death wail in a local park, my performance is not copyrightable. However, if I film the performance, then the film is copyrightable. Single words and short phrases are generally not protected by copyright, even when the name has been "coined" or newly-created by the mark owner. Logos that include original design elements can be protected under copyright or under trademark. Otherwise, words, phrases and titles may be protected only by trademark, however. [back to notice text] Question: What is copyright infringement? Are there any defenses? Answer: Infringement occurs whenever someone who is not the copyright holder (or a licensee of the copyright holder) exercises one of the exclusive rights listed above. The most common defense to an infringement claim is "fair use," a doctrine that allows people to use copyrighted material without permission in certain situations, such as quotations in a book review. To evaluate fair use of copyrighted material, the courts consider four factors: the purpose and character of the use the nature of the copyrighted work the amount and substantiality of copying, and the market effect. (17 U.S.C. 107) The most significant factor in this analysis is the fourth, effect on the market. If a copier's use supplants demand for the original work, then it will be very difficult for him or her to claim fair use. On the other hand, if the use does not compete with the original, for example because it is a parody, criticism, or news report, it is more likely to be permitted as "fair use." Trademarks are generally subject to fair use in two situations: First, advertisers and other speakers are allowed to use a competitor's trademark when referring to that competitor's product ("nominative use"). Second, the law protects "fair comment," for instance, in parody. [back to notice text] Question: What is fair use? Answer: There are no hard and fast rules for fair use (and anyone who tells you that a set number of words or percentage of a work is "fair" is talking about guidelines, not the law). The Copyright Act sets out four factors for courts to look at (17 U.S.C. [back to notice text] Question: Can I post a copyrighted image on my website? Answer: Maybe. In order to determine whether you can post a copyrighted image on your website, a court would apply the four factor fair use analysis. First, it is important to determine the purpose and character of the use. If the use is commercial in nature, rather than for nonprofit education purposes, it less likely to be considered a fair use. To determine if it is commercial, a court would consider whether the use was exploitative and for direct profit, or if instead any commercial character was incidental. Also, if the use is transformative and for a different purpose than the original work, it is more likely the first factor will weigh in favor of finding a fair use. For example, in Kelly v. Arriba Soft Corporation, the court found that posting "thumbnail" images on a website was a fair use because such images served a different purpose than the original images. Second, the court would consider the nature of the copyrighted work. The reproduction of a predominantly factual work is more likely to be considred a fair use than the reproduction of a highly creative one. Third, it is important to consider the amount and substantiality of the portion of the copyrighted image used. This inquiry looks at not only the quantity, but also on the expressive value, of the portion used. If a large amount of the original image is copied, or if the portion copied is substantially significant to the work as a whole, it is less likely the court will find such copying to be a fair use. Finally, the most important factor in this inquiry is the effect of the use on the potential market for the copyright owner's work. If posting the image on the website leads to a reduction in sales of the copyrighted work or discourages people from accessing the copyright owner's website, a court is more likely to find that the use is not fair and has an adverse impact on the copyright owner's market. These four factors will be evaluated by a court in a factual inquiry to determine whether the posting of the image would constitute a fair use. [back to notice text] Question: What is the difference between copyright and trademark? Answer: Copyright protects original expression in literary and artistic works such as plays, books, films, songs, software, performances, etc.). To qualify for copyright protection, a work must be an original creation of the author and not copied from any other source. In the U.S., copyright does not protect facts. Individual words cannot be copyrighted, and there is a gray area of protection for short phrases. Copyright owners have strong rights to prevent copying of their material, subject to the doctrine of "fair use." Copyrights arise when the work is fixed in a permanent form. Infringement consists of copying, publicly distributing, making changes to, or publicly distributing or performing the work without the author's permission. Trademark only protects names and logo images that are used to label goods or services. Trademark does not require originality; its purpose is to identify the source of goods. In the U.S., trademark rights arise only when there is actual use in commerce. Infringement consists of selling goods or services under the same or a confusingly similar name. Trademark has its own types of "fair uses" including use for product comparison and criticism, news reporting, and parody. [back to notice text] Question: What does it mean to take all reasonable steps to protect a trademark? Answer: If a trademark owner fails to police his or her mark, the owner may be deemed to have abandoned the mark or acquiesced in its misuse. A trademark is only protected while it serves to identify the source of goods or services. If a trademark owner believes someone is infringing his or her trademark, the first thing the owner is likely to do is to write a "cease-and-desist" letter which asks the accused infringer to stop using the trademark. If the accused infringer refuses to comply, the owner may file a lawsuit in Federal or state court. The court may grant the plaintiff a preliminary injunction on use of the mark -- tell the infringer to stop using the trademark pending trial. If the owner successfully proves trademark infringement in court, the court has the power to: order a permanent injunction; order monetary payment for profit the plaintiff can prove it would have made but for defendant's use of the mark; possibly increase this payment; possibly award a monetary payment of profits the defendant made while using the mark; and possibly order the defendant to pay the plaintiff's attorney fees in egregious cases of infringement. Of course, the determination of infringement is actually one that will be made by the court, so a trademark owner is simply using a best guess about whether or not infringement actually has occurred. That best guess may be a good one, based on experience and expertise, or it may be a bad one that doesn't reflect any of the legitimate defenses that might exist. The law doesn't require the mark owner to sue everyone; it just requires the owner to keep his mark distinctive.

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