Trademark & Copyright Basics by Attorney Louise Aron - TRADEMARK, COPYRIGHT, INTELLECTUAL PROPERTY

TRADEMARK AND COPYRIGHT BASICS

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About Louise Aron:
Past Chair of the International Law Committee of the Colorado Bar Association
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Graduated Rutgers Law School, J.D. 1978

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BASIC TRADEMARK AND COPYRIGHT OUTLINE
NOT INTENDED AS LEGAL ADVICE - CONSULT WITH A QUALIFIED ATTORNEY BEFORE RELYING ON THIS INFORMATION

Who owns what?

Picture/drawing of what/whom? Similar to what? Variation/derivation of what? Likeness of public figure? Likeness includes a trademark?

Trademark

Protects against unauthorized use of a symbol. $325.00 filing fee. Fee is nonrefundable even if registration is refused. US protection is for 10 years (file Certificate of Use for $200 in each class after 5th year), renewable as long as its in use. Record with Treasury Dept. to prevent importation of "counterfeits". State registration is available for intrastate coverage. Check laws of foreign countries for registration abroad. Often registration takes a year. Cannot trademark "merely descriptive" names.

Copyright

Protects art, written materials, including labels; brochures; posters; and catalogs. US protection is author's (or copyright holder's) life plus 70 years. Copyright 20___ XYZ, Inc. All Rights Reserved Copyrights to work done while employed belongs to the employer. $30 registration fee in US, and takes a few months. For info. call US Copyright Office. US Government material is not copyrighted, but is in "public domain".
Art in museums is owned by someone (often, the museum) and cannot generally be photographed or copied without permission. Celebrities own their likenesses, even if not exactly their likeness. Likenesses of buildings and products containing trademarks may also be protected. In some cases, the building may be trademarked.

Contracts

    Rights (first rights; first North American rights; first North American serial rights, other rights): "licensing"; permission; derivative works; restrictive covenants (noncompetition).
    Common contract clause:
    Copyright, Trademark, Patent Waiver. All writing, materials, graphics, names, designs, illustrations, software, computer codes, ideas, compositions of matter, inventions and other works of [Contractor] which are created while performing the services for [Employer or Client] (the Work) shall belong to [Employer or Client]. [Contractor] assigns, transfers, waives and forever releases to [Employer or Client] all rights which [Contractor] may have to copyright and to other statutory and common law protection of the Work. The right to use, license, sell, reproduce, distribute, display, perform, copyright and legally protect the Work shall be the sole and exclusive property of [Employer or Client]. [Contractor] also hereby transfers, assigns, waives and forever releases to [Employer or Client] the rights to all derivative works of the Work.

Work for Hire

Employees. If you do work while employed by another, the employer owns the copyright (absent agreement otherwise) 17 United States Code section 101.
Independent Contractors. Contractors (as opposed to employees) do own the copyright to the work they create while performing services for their clients. The only way for an employer to truly own the copyright of any work done by a Contractor is to obtain an assignment of each and every work done by the Contractor. The law says, however, that such assignments can be revoked. Therefore, the payment of money with such an assignment (which is refundable by the Contractor if revoked) is one way for employers to get a clearer right to the materials.

Fair Use

Copyright penalties will not apply if reproduction or use of the work is for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, research considering the purpose of the use (ie commercial or nonprofit); the amount used relative to the whole work; the effect of the use on the market.

Penalties

Injunction, impoundment, destruction of work, damages, plus (for copyright) "statutory damages" of $20,000 or (if copyright notice appeared on the work) $100,000.

NOT INTENDED AS LEGAL ADVICE - CONSULT WITH A QUALIFIED ATTORNEY BEFORE RELYING ON THIS INFORMATION

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This page is by WebW, Denver, Colorado. Last update 11/10/06.
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