|
Copyrights
Comparison of Architectural Designs (Mall Stores) Ten Frequently Asked Questions
A1. A copyright is a form of federal protection that exists for published and unpublished "original works of authorship" when they become fixed in a tangible form of expression. Copyrightable works include the following categories:
These categories should be viewed quite broadly. For example, computer programs and their accompanying manuals are registrable as "literary works;" advertising brochures, catalogs and maps are registrable as "pictorial, graphic, and sculptural works." Q2. What are my company's rights as the owner of both published and unpublished works? A2. Under the federal Copyright Act of 1976, which took effect on January 1, 1978, the owner of a copyright (which may not be the author) has the following exclusive rights: the right to reproduce the "copyrighted" work; to produce derivative works; to distribute copies; to perform the work publicly; and to display the work publicly. Q3. Can a copyright protect an idea? A3. No, a copyright protects the expression of an idea and not the idea itself. Consequently, if you would like to copy the theme of another company's marketing campaign, you are generally free to do so as long as you do not copy or paraphrase passages from their advertisements. Q4. What steps do we need to take to protect our works as copyrights? A4. Under the 1976 Act, two steps were required to protect a work created on or after January 1, 1978: 1. a registration had to be obtained from the U.S. Copyright Office for the work; and 2. a proper statutory copyright notice had to be placed on all copies of the work that were publicly distributed. Under recent changes in the law -- specifically, the Berne Convention -- a copyright notice is no longer required for works created after March 1, 1989. Only a registration is needed to be able to stop someone in court. Q5. Should copyright notices still be used?
Q6. What is a proper copyright notice? A6. There are several forms of proper copyright notices for works. The most often used form is: THE SYMBOL "©", YEAR OF THE FIRST PUBLICATION OF THE WORK, NAME OF COPYRIGHT OWNER Example: © 2007 HOLLAND & BONZAGNI, P.C. Q7. If we hire someone to produce a work, who owns the copyright? A7. Under the 1976 Act, if that person is an in-house employee and that person creates the work within the scope of employment, this type of work is known as a "work for hire," and your company is considered the author and owner of the copyright. However, if the person is an outside consultant, such as a computer programmer, that consultant may own the work unless there is an agreement to the contrary. Q8. How long does copyright protection last? A8. For works created after January 1, 1978, the duration of copyright is the life of the author plus an additional 70 years. If the work was commissioned or otherwise "made for hire," the duration of copyright is 95 years from publication or 120 years from creation, whichever is shorter. Q9. We previously registered our product's artistic design at the U.S. Copyright Office. A competitor has just started to undersell us by using our design. Can we stop them? Can we get our attorneys' fees back? A9. Thanks for registering your copyright. That enables you to not only stop the competitor in court but also possibly recover your attorney's fees. Under the U.S. Copyright Act, you are entitled to recover your reasonable attorneys' fees if you have to litigate... but only if you placed a copyright notice on the product before the copying occurred. Q10. Do we have to litigate to stop the copyright infringer? A10. Your company should be able to stop the copyright infringer without going to court, if you have a prior copyright registration. A cease-and-desist letter from your copyright attorney typically convinces the infringer to stop. Practical Advice About Copyrights Making The Law Work To Your Advantage Businesses often try to "copyright" their product designs after an item is created, only to find that the design is too functional to be protected under copyright law. "Functional" designs refer to those designs that are so general that they are considered ideas under the law: one cannot copyright an idea, one can only copyright the expression of that idea.
Once the public accepts a product with such arbitrary features (through the manufacturer's marketing and advertising programs), a competitor would be "hard pressed" to duplicate the product's success without copying its protectable features. If such features are copied, legal rights quickly can be established in court. In today's marketplace, it is often virtually impossible to stop "knock-off" artists from copying a product's look unless steps are taken to build arbitrary features into the design!  |
|
| Top of Page | ||
| Home
l Firm Profile l Corporate
Primer l Patents l Selecting
a Patent Attorney l Personal Liability l NDA l Trademarks l Selecting a Trademark Attorney l Current Info l Newsletters l Seminars l Directions to Office l Contact Us |
Q1. What is a copyright and what type of work can
be protected by it?
A5. By all means! They are still required for protection
of works created before March 1, 1989. On newer works they should
be used as well. Otherwise, you may lose their deterrent effect because
someone looking at your work might not know that it is "copyrighted."
Such an interpretation of the law would seem to greatly limit the
copyright protection that a company designing a new product might
seek. Yet, with proper guidance, a firm may "tweak" a design - that is
imbue it with certain specific, useful, and easily identifiable attributes
("arbitrary" features) that are chosen from a slew of possibilities so it
may be "copyrighted." Such arbitrary features on a new product design
might include decorative patterns, decorative representations of
animals or objects, graphics that augment a text and unique formats of
written text (as arranged on a page or computer screen).