An Introduction to Intellectual Property and Intellectual Property Rights

Copyright is law, and the rights granted to copyright owners are set in place to protect artists, designers and writers.  Violation of copyright law can lead to civil prosecution, and in certain instances, criminal prosecution.  Violators of copyright law can face paying damages of $50 to $2,000,000 per instance, and in some cases, can be sentenced to five (5) years in jail.

Some people insinuate that copyright and trademark violations in Second Life are somehow less egregious than first life violations.  There is no difference, save in the way copyright holders pursue satisfaction.  It is not okay for Second Life residents to use any material which is not original to them, or which they do not have license to use, for commercial gain or personal gain.  Likewise, works created in the virtual world are protected by the same laws which protect first life artists, designers and writers.

The terms ‘derivative works‘ and ‘fair use’ are bandied about, often without a thorough understanding of the nature of legally developed derivative works and the nature of ‘fair use.”  A lot of the misunderstandings seem to originate with the desire to use another’s work, without having to obtain permission.  Desire, no matter how great, doesn’t imply legality, and does not constitute, in way, shape, or form, permission.

The following summary of copyright and trademark law in the US has been researched through the US Copyright Office and the US Patent and Trademark Office, reading case law, in registering copyrights and trademarks, and pursuing legal satisfaction in cases of violation. It is meant to serve as an outline and to give a basic understanding.

Intellectual Property Rights

Property rights are founded in national laws. Therefore, rights and the duration of those rights can vary from country to country. The information given here is based on United States law and is meant to provide only a basic understanding. You are encouraged to thoroughly research the laws of your land.

Intellectual Property

Intellectual property covers a wide range of abstract materials, or creations of the mind:

  • literary works
  • artistic works
  • symbols
  • business/commercial names
  • images
  • designs

Intellectual property falls into two categories – Industrial Property and Copyright.

Industrial Property includes:

  • inventions (patent)
  • industrial designs (trade dress)
  • trademarks (names, images, symbols which indicate a source of goods)
  • service marks (names, images, symbols which indicate a source of services)

Patent rights and enforcement requires filing with and approval by the US Patent and Trademark Office (PTO).

Trade dress is complicated and encompasses look and feel as well as secondary meaning, and must be in application and easy to recognize before being granted. Trade dress may be registered with the PTO, but registration is not necessary.

Trademarks and service marks are a bit simpler, and like trade dress, may be registered with the PTO, but registration is not necessary.

More information can be gained at the US Patent and Trademark Office.

Copyright includes literary and artistic works such as:

  • novels
  • short stories
  • poems
  • manuscripts
  • comics
  • plays
  • films
  • musical works
  • audio productions
  • paintings
  • photographs
  • sculptures
  • digital art
  • pantomime and choreography
  • architectural works
  • performing artists in their productions
  • broadcasters in radio and television productions

Other literary and artistic works may also be covered under prevailing copyright law.

A copyright owner has the right to:

  • derive financial reward from the use of his works
  • to take certain actions to preserve the link between him and his work
  • prohibit or authorize the use of his work in various ways
  • limit its reproduction in various forms including:
  • distribution of copies
  • public performances
  • broadcasting to the public
  • commmunication to the public (such as public readings)
  • adaptations
  • translations

Copyright owners may assign various rights through:

  • assignment (granting all rights to an individual entity, thereby transfering the copyright ownership)
  • licensing (retaining ownership while allowing third parties limited use)
  • abandonment (making the work free for anyone to use, perhaps – but not necessarily – restricting to noncommercial use)

Copyright facts:

  • Copyright protection subsists once the literary or artistic work is created in a fixed form.
  • No publication is required to secure Copyright – the work must only be created in a fixed form.
  • No registration is required to secure Copyright – although registration does carry certain advantages, and copyright must be registered to bring an infringement suit forward in a court of law.
  • Copyright registration can be obtained at any point before a copyright expires, including after violations have occurred.

Copyright notice:

Posting copyright notice is completely optional, and lack of copyright notice in no way indicates a relinquishment of copyright.   However, should the copyright wish to post notice, there is a prescribed format for doing so.  Copyright notice for visually perceptible works must include all three of the following elements in the following order:

  • The Copyright symbol: © (letter C in a circle), or the word Copyright, or the abbreviation Copyr.
  • The year of first publication.
  • The name of the owner of the Copyright (author or artist), or an abbreviation can be recognized, or a known designation of the owner.

Note: Audially perceptible works should be marked with a letter P inside a circle.

Further information about Copyright can be found at the US Copyright Office.

Public Domain

‘Public Domain’ is a term used for creative works which are not protected by intellectual property laws. Hence, they are owned by the public, and not a single entity. They can be used by anyone, for any purpose.

Works can enter the public domain in a number of ways:

  • expired copyright
  • owner failure to renew copyright
  • dedication to the public
  • prevailing copyright law does not apply to the type of work

It’s generally accepted that works published in the US by people who died before Walt Disney are in public domain. However, this is not law and there may be exceptions.

Prevailing law states all works published in the US before 1923 are in public domain.

Some works which were published in the US before 1964 are also in the public domain. This is a result of law which stated that copyright must be renewed in the 28th year after publication, or the copyright would expire.

You may search the records at the US Copyright Office to determine if a work published between 1923 and 1963 is in public domain.

Copyright owners may place their work in public domain by specifically dedicating it to the public domain. This, however, is extremely rare.

Facts, theories and ideas are not subject to copyright. However, the manner in which a fact, theory or idea is expressed is subject to copyright law.

Conversely, short phrases used as slogans in advertising may be trademarked. You would not be able to use those slogans in your own marketing material. Campell’s Soup uses ‘Mmmm, mmmm, good!’ as a trademarked slogan. Therefore, you would not be able to use it when marketing your cookies (virtual or otherwise), but you would be able to use it as dialog in your new novel.

US Government works are not subject to copyright law, as long as the author or artist was working in his official capacity at the time of creation. This is true of federal employees, and not true of state, commonwealth, county, parish and/or local employees.

That said, not all federal publications are wholly in public domain. They may use graphs, charts, findings, or unique numbering systems created by private citizens which are protected by copyright. Portions of federal publications which are not in public domain may not be used in your works without the express, written consent of the author or artist.

Derivative Works

Derivative works are those which are based on previously published work and contain “original work of authorship.”  Derivative works must include a significant amount of new material.  Of course, if the previously published work is protected by copyright, permission to use the work must be obtained from the copyright holder.  Works that are in the public domain may be freely used for derivative works.

Types of derivative works include:

  • translations
  • fictionalizations
  • dramatizations
  • musical arrangements
  • condensations
  • reproductions (in a new medium)

Abridgments and compilations may also qualify as derivative works if they contain an editorial or selection process that qualifies under prevailing copyright law as an original work of authorship.

It should be noted that minor changes, additions, and changes of little substance do not qualify a piece as a derivative work. Titles, short slogans, and format changes are not copyright-able, and therefore do not qualify as work as derivative.

Fair Use

Copyright laws exist to protect authors and artists, granting them rights to reproduce their own works for sale, or to grant others permission to do so on their behalf.  It is always best to obtain permission before using a part, or the whole of, copyrighted material.  Unless use clearly falls under the guidelines for fair use, as outlined below, it is wise to abstain from using copyrighted material, or to, at the very least, consult an attorney before proceeding.

It is important to remember that acknowledgment of the use copyright work is not legal substitution for obtaining permission, nor is encouragement to purchase copies of the copyright work substitution for obtaining permission.

Various purposes for which a copyright work (or part of a copyright work) may be used or reproduced are as follows:

  • criticism
  • comment
  • news reporting
  • teaching
  • scholarship
  • research

When a court rules on whether usage constitutes fair use they look at four factors:

  • The purpose and character of the use, and whether or not the use is commercial or non-profit educational use.
  • The nature of the copyrighted work.
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  • The effect of the use upon the potential market for, or value of, the copyrighted work.

Examples of court findings rule fair use to be:

  • quotation of excerpts in a review or criticism for purposes of illustration or comment
  • quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations
  • use in a parody of some of the content of the work parodied
  • summary of an address or article, with brief quotations, in a news report
  • reproduction by a library of a portion of a work to replace part of a damaged copy
  • reproduction by a teacher or student of a small part of a work to illustrate a lesson
  • reproduction of a work in legislative or judicial proceedings or reports
  • incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported

Digital Millennium Copyright Act (DMCA)

The DMCA of 1998 is legislation against the circumvention of technological measures used to protect Copyright works and to prevent tampering with with the integrity of Copyright management information.

The DMCA provides a process in which Copyright owners can give notification to an online service provider regarding Copyright infringement. Once a valid DMCA notice has been received, the service provider then removes the infringing property and makes reasonable attempt to contact the owner of the removed property. The owner of the removed property can then counter-file.

All of that being said, I encourage you do some research of your own.

Copyright © 2010 Kat Klaybourne (in SL; Kat Alderson)

Advertisements