The US Patent and Trademark Office and the US Copyright Office recently announced that some new tools are available to practitioners and interested individuals and companies to help individuals be better aware of recent patent applications and to help explain the fair use doctrine.
The USPTO, in partnership with Reed Technology and Information Services, created an alert system (the Patent Application Alert Service) that allows individuals to receive email alerts whenever a patent application publishes that contains certain keywords. After signing up for the service, a user can set “alerts” based on keywords found in the title, abstract, description, drawings, claims, CPC classification, applicant, inventor, or assignee fields (or combination of these fields). The system then sends out weekly emails whenever an alert criteria has been satisfied.
This system will enable individuals and companies to be better aware of what their competitors are attempting to patent, as well as to keep abreast of changes in the field. The USPTO also hopes that this service will lead to better patents being issued because interested individuals in the relevant fields can monitor patent applications and help identify prior art for pre-issuance submission to the USPTO.
The US Copyright Office has also been busy, creating a Fair Use Index, which is a searchable database of court opinions indexed by category and type of use. The Index currently has decisions reaching back to 1841 and provides a link to the opinion, the relevant court information, the type of medium (photograph, text, etc.), and the outcome. The US Copyright Office created the Index to help the public understand the contours of the fair use doctrine as applied to copyright law. While useful for the public, the Index will also be a useful resource for practitioners.
In the next installment of our continuing “What Is?” series, we are going to discuss copyrights. One of the core intellectual property rights that exists under U.S. law is a copyright. In a nutshell, it is a legal right that provides authors of certain types of original and expressive works that have been fixed in a tangible medium the right to prevent others from using the work without the author’s permission. Obviously, there is a lot more detail behind this, so we will only cover some of the basics in this post.
First, only certain types of works are eligible for copyright protection. They include (1) literary works, (2) musical works, (3) dramatic works, (4) choreographic works, (5) pictorial, graphic, and sculptural works, (6) motion pictures and other audiovisual works, (7) sound recordings, and (8) architectural works. In addition, the work must have been fixed in a tangible medium to be eligible for a copyright—e.g., written down, put on film, or written in a computer. Certain things cannot be copyrighted, such as (1) things that have not been fixed in a tangible form (e.g., thoughts in your head or speeches that are not recorded or written down), (2) titles, names, and short phrases, (3) ideas, methods, inventions, or systems, and (4) standardized and commonly known information, such as standard calendars, tape measures, and lists or tables of publicly known information.
Second, in order to be eligible for a copyright, the work must be original. But, it does not have to be novel. In other words, the author must show that he or she created the work (and did not copy it from someone else), but the author does not have to show that he or she was the first to ever think of the work.
If an author can satisfy these requirements, he or she has a copyright. Under the change in federal law in 1976, a copyright exists under federal law the moment an author fixes an original expressive work in a tangible medium. There is no longer the need to affix a copyright symbol to the work or register the work with the U.S. Copyright Office. But, and this is a big but, there are a number of important advantages to registering a work with the Copyright Office that can be lost if not done timely. So, it is best for an author to consult an intellectual property attorney if there is the possibility that the work may be valuable or need to be protected.
A copyright gives an author a number of substantive legal rights, such as the ability to control who (1) reproduces or distributes copies of the work, (2) creates derivative works based on the original, and (3) performs or displays the work publicly. An author can sue an individual or company that violates these rights and collect damages, statutory penalties, or obtain a court order preventing the infringer from violating these rights in the future. In some cases, copyright infringement can even be a crime.
Because a copyright is a property right, it can be sold, transferred, or licensed like other types of real and intellectual property.
As of January 1, 1978, a copyright lasts for the lifetime of the author plus 70 years. If the work was made for hire or was published anonymously/psuedonymously, the copyright lasts for the shorter of 95 years from publication or 120 years from creation.
For more information about copyright, you can read this nice summary by the United States Copyright Office.
In upcoming posts, we’ll talk about some other issues involving copyrights, such as the fair use defense, what kind of remedies are available to authors whose works have been improperly copied, and the work-for-hire doctrine, among other things.
In the ever transitioning world of copyright law, issues surrounding the selfie have recently taken center stage. The latest dispute involves a selfie taken by a monkey who, in 2011 in Indonesia, grabbed wildlife photographer David Slater’s camera to snap a wide-smiling image of itself. Wikipedia subsequently placed the image in Wikimedia Commons, the area of Wikipedia that holds open-source material. Slater then requested that the photo be removed as he was the copyright owner and Wiki refused. You can visit Mr. Slater’s webpage for additional examples of his work here.
Wikimedia stated to the Huffington Post in response to the controversy “We didn’t think the monkey owned the copyright – instead, our assessment was that there’s no one who owns the copyright. That means that the image falls into the public domain.”
It appears that the US Copyright Office agrees with Wiki’s analysis. Two weeks after the controversy broke, the agency issued a 1,222 page draft compendium analyzing federal copyright law in which it stated “The Office will not register works produced by nature, animals, or plants.” Within Chapter 300, which outlines the “Human Authorship Requirement,” the Office noted that copyright law protects “the fruits of intellectual labor” that are “founded in the creative powers of the mind.” A photograph taken by a monkey was specified in the list of examples NOT protected.
A similar ownership issue surrounding the selfie has also arisen in the context of the Ellen DeGeneres group selfie taken at this year’s Oscars and posted on Twitter. The photo, taken in the audience during the ceremony, quickly became the most tweeted photo of all time and DeGeneres later granted the Associated Press permission to share the photo for editorial purposes to subscribers of AP’s photo service. But legal scholars noted that DeGeneres may not be the actual owner of the copyright. As Bradley Cooper technically pressed the button, he could arguably be the copyright owner given the courts view historically that pressing the shutter created ownership.
Should Cooper attempt to stake a claim, DeGeneres could have an argument based on Brod v. General Publishing Group, 2002 U.S. App. LEXIS 2544 (9th Cir. Feb. 15, 2002). In Brod, a photographer sued a book author for using his photographs without permission. The court found however, that the book author was a co-owner since his contributions to the process were “sufficiently original and expressive.” The copyrightable expressions in Brod included selection and arranging of subject matter, composition, camera angle and lighting.
As Bradley Cooper is unlikely to assert a copyright claim, the incident currently serves only as an interesting hypothetical. However, as technology advances, issues over authorship in the photography/video context will likely arise again as physical snapping of the shutter is no longer required to produce artistic works.