Section 503 of the United States Copyright Act provides for statutory damages of up to $150,000 per infringment for willful copying. The statute also provides for attorneys' fees, costs and lost profits and damages. The Copyright Act applies to all types of creative works, including this one (and all other blog posts).
The Hudson River villages are full of talented people who are looking to protect the fruit of their creativity. Many times, however, people are confused by the different types of “intellectual property” that exist, which laws apply, and whether they can actually protect their creative ideas, designs, or other work. What are the differences between trademarks, copyrights and patents, and how can you protect them.
A trademark is identifies the source of a particular “good or service.” Most often, a trademark is a word (or a series of words), a logo or picture, but trademarks can also be sounds, colors, devices or even the way something appears. For example, a restaurant can have a trademark for the way it decorates or individual features of how it presents its food. Trademarks are geographic in nature, meaning that someone with protection in the United States may not have the same trademark in Canada, China, or elsewhere. Trademarks result from the of use (or intended use) of the mark in commerce and does not necessarily need to be registered with the U.S. Patent & Trademark Office to have enforceable trademark rights. As with any legal right, legal protection and filing brings certain rights and obligations, like statutory damages or the obligation to chase after infringing products.
A servicemark is simply a trademark that is used in connection with services instead of goods. If you wish to use a particular trademark, it is wise to conduct a trademark search prior to beginning such use. The search will enable you to determine whether someone else is using a similar mark for similar goods and services to ensure that you do not infringe someone else’s mark once you begin your use. In today’s market, where goods and services are hawked on line, on the street corner, and almost everywhere, there are millions of potential conflicts, which require careful legal analysis. It is advisable to have an attorney assist you to conduct the trademark search and to handle the application process with the US Trademark Office if you (and your attorney) decide to file. A trademark will not expire if the owner continues to use the mark in commerce in connection with the goods or services specified. Once a mark is registered, however, it does periodically need to be renewed.
A copyright provides protection for original creative works. Examples of copyrightable works include literary, dramatic, musical, architectural and a variety of other works. Copyright gives the owner the exclusive right to reproduce the copyrighted work, to prepare derivative works of the copyrighted work (derivative works are works that are based on the original), to distribute copies and to perform or display the copyrighted work. As with trademarks, a copyright registration certificate is not necessary in order to have copyright protection in a particular work, but it can be helpful. Copyright registration is simpler than trademark registration and generally can be done without an attorney (visit the Copyright Office website at www.copyright.gov ). Unlike trademarks, copyright protection expires. The exact term of copyright protection depends on when the work was created and by whom (individual verses corporation).
A patent is a form of intellectual property protection for an invention. A patent is issued by the Patent and Trademark Office. A term for a new patent is 20 years commencing on the date that the application for the patent was filed. A patent gives its owner “the right to exclude others from making, using, offering for sale or selling” the invention in the United States or importing the invention into the United States. A patent attorney can assist an inventor to apply for patent protection in the United States. The engineering, science, and legal intricacies even require the patent attorney to take a separate bar exam, being licensed differently from other attorneys.
Ideas for the next great invention, the next great tag line, the next great business venture are not generally enforceable unless reduced to one of the forms mentioned above. That said, depending upon your intellectual property, there may be a way to “protect” it for your own personal commercial gain.
So, you spend a lot of time blogging, or you have swell content on your web-site which someone has blatantly copied (hijacked). What do you do to protect your copyright or trademark?
The Problem
The drafters of the Copyright Act (1976)) never contemplated the ease and speed of copyright infringement made possible by technological advances which include the Internet which has billions of pages of content.
A copyright is a set of exclusive rights granted to an author – or owner – of an original work fixed in tangible form for a limited and specified period of time. Original works may include literary, dramatic, musical, artistic, and certain other intellectual works. Ownership is obtained when an author (the owner) creates an original work and fixes it in a tangible form. It is a "violation" or "infringement" to copy, distribute, or adapt a work during the term of protection.
When it comes to the Internet infringement occurs in various, but often not blatant ways. The infringement occurs by faceless and nameless third parties, but occurs in the medium known as the Internet. So, owners of the copyright are economically encouraged to go after the internet providers because they are most "visible" and identifiable. This is type of infringement action seeks to enforce copyright liability through "contributory" or "vicarious" infringement.
Contributory infringement occurs when a person acts knowingly to cause or induce infringing conduct. Vicarious infringement, on the other hand, occurs when a person has both the ability to control an infringe’s actions and benefits financially from the infringement.
Defenses to Infringement
In all cases, the potential infringer has certain "defenses" to liability for infringement. One such defense is known as "fair use," another is the First Amendment's protection of free speech. "Fair use" allows the use of copyrighted materials for purposes of criticism, comment, teaching, scholarship, or research. The idea is to balance intellectual property rights against the free exchange of information and opinion-- which is a large reason that the Internet exists.
Courts determine whether copyright infringement occurred (or whether it is a "fair use") on a case-by-case basis factoring: 1) purpose and use of copy, 2) nature of copyrighted work, 3) amount copied, and 4) copy’s effect on the copyrighted work’s potential market.
Applying this "fair use" to the Internet world is a difficult task for Congress and American courts. Internet content providers argue their use of copyright works is fair use; Copyright holders and content creators argue that their protections are being infringed.
Under the First Amendment, the idea is that anonymous encouraging a certain ‘freedom of expression," which we as Americans hold dear The challenge to free speech is that compulsory disclosure of the identity of the speaker may discourage free speech opportunities where people are more likely to voice their opinion and provide information. One side promotes Internet anonymity because it promotes the First Amendment rationale that democracy is most effective when there is an open exchange of ideas.
The Balancing Act
Congress has tried to balance the challenges and the burgeoning infringement cases by enacting The Digital Millennium Copyright Act (DMCA) (1998) to provide safe harbor provisions for Internet Service Providers (ISPs) and web hosts, while giving a voice to the copyright owners.
The first step to pursuing a copyright claim against an ISP or a web-hosting company is to request a DMCA take down notice. The copyright owner may send "notice" to the ISP demanding the removal or blockage the copyrighted material. The ISP must reply promptly and comply to remain exempt from liability for contributory or vicarious infringement.
The take down notice under the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”) must contain several legal buzzwords and address various legal requirements, but is a great first step toward having the copyright honored and protected by the Internet chiefs who control the content.
The Bottom Line-- the cost for investigation and prosecution of a take down notice against the web-site provider is not prohibitive. Contact your friendly Internet and intellectual property lawyer to protect your interest.
