Release Date: 02/ 23/ 2006
Copyright, Patent and Trademark
1976 Copyright Act
Copyright is a form of protection provided by the federal law to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. It is available to both published and unpublished works.
Rights of owner of copyright:
- To reproduce the work in copies
- To prepare derivative works based upon the work
- To distribute copies of the work to the public
- To perform the work publicly
- To display the copyrighted work publicly
- In the case of sound recordings, to perform the work publicly by means of a digital audio transmission
Limitations of copyright:
- “Fair use” doctrine
- “Compulsory license” – certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions
Eligibility to claim copyright:
- The author or those deriving their rights through the author
- “Work made for hire” –
- A work prepared by an employee within the scope of his or her employment
- A work specially ordered or commissioned for use as:
- A contribution to a collective work
- A part of motion picture or other audiovisual work
- A translation
- A supplementary work
- A compilation
- An instructional text
- A test
- Answer material for a test
- An atlas
Eligibility for copyright protection of published works:
- On the date of first publication, one or more of the authors is a domiciliary of the United States, or of sovereign authority of a treaty party, or a stateless person wherever that person nay be domiciled
- The work is first published in the United States or in a foreign nation that, on the date of first publication, is a treaty party
- The work is a sound recording that was first fixed in a treaty party
- The work is pictorial, graphic, sculptural work that is incorporated in a building or other structure, or an architectural work that is embodied in a building and the building or structure is located in the Unites States or a treaty party
- The work is a foreign work that was in the public domain in the United States prior to 1996 and its copyright was restored under the Uruguay Round Agreements Act.
- The work comes within the scope of a Presidential proclamation
- The work is first published by the United Nations or any of its specialized agencies, or by the Organization of American States
Protected works:
- Literary works
- Musical works, including any accompanying words
- Dramatic works, including any accompanying music
- Pantomimes and choreographic works
- Pictorial, graphic, and sculptural works
- Motion pictures and other audiovisual works
- Sound recordings
- Architectural works
Remedies for infringement:
Actual damages and profits
The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages and profits
Statutory damages
- the copyright owner may elect, at any time before final judgment is rendered, to recover an award of statutory damages for all infringements involved in the action in a sum of not less than $750 or more than $30,000 as the court considers just
- In a case where the copyright owner sustains the burden of proving that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000
- In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200
For a complete copy of this law or any other information please refer to the U.S. Copyright Office at 202-707-5959 or visit http://www.copyright.gov.
Patent
A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. It is the right to exclude others from making, using, offering for sale, selling or importing the invention.
Three types of patents:
- Utility patents – granted on the inventions of a new and useful process, machine, article of manufacture, or composition of matter, or new and useful improvement
- Design patents – granted on the inventions of new, original, and ornamental design for an article of manufacture
- Plant patents – granted on the inventions or reproductions of any distinct and new variety of plant
Who is eligible to apply for patents?
- The inventor
- If the inventor is dead, legal representatives, that is, the administrator or executor of the estate may apply
- If the inventor is insane, a guardian may apply
- If the inventor refuses to apply for a patent, or cannot be found, a joint inventor or a person having a proprietary interest in the invention may apply
- If inventors are more than one, apply as joint inventors
Patents cannot be patented if:
- The invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent
- The invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country more than one year prior to the application for patent in the United States
- The invention was mere idea or suggestion
Remedy for infringement:
- A patentee shall have remedy by civil action for infringement of his patent.
For a complete copy of this law or any other information please refer to the U.S. Patent and Trademark Office at 1-800-786-9199 or visit http://www.uspto.gov
Trademark
A trademark is distinctive symbols, pictures, or words that sellers affix to distinguish and identify the origin of their products. It may also be granted to distinctive and unique packaging, color combinations, building designs, product styles, and overall presentations. It is also possible to receive trademark for identification that has developed a secondary meaning over time that identifies it with the product or seller.
Advantages of Trademark:
- Constructive notice to the public of the registrant's claim of ownership of the mark
- The ability to bring an action concerning the mark in federal court
- A legal presumption of the registrant's ownership of the mark and the registrant's exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration
- The use of the U.S registration as a basis to obtain registration in foreign countries
- The ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods
Remedy for Infringement:
- In a case of violating a registered mark – Recover 1) defendant’s profits, 2) any damages sustained by the plaintiff, and 3) the costs of the action.
- In a case of using counterfeit marks – 1) fine of not less than $500 or not more than $100,000 per counterfeit mark per type of goods or service 2) fine of not more than $1,000,000 per counterfeit mark per type of goods or service if the intention of using the counterfeit mark was willful
For a complete copy of this law or any other information please refer to the U.S. Patent and Trademark Office at 1-800-786-9199 or visit http://www.uspto.gov.
