Chapter 11: Intellectual Property

Topic Overview:
This chapter talks about how people are able to protect their work through copyright, trademark and patent law.  Copyright means that someone is able to protect their work from being copied or used. The work that creator has made legally belongs to a company and it lasts 95 years from publication or 120 years from creation. Furthermore, how to prove copyright infringement is discussed and fair use, which is the most common defense.


Defining Terms:

• Intellectual Property: The legal category including copyright, trademark and patent law.
• Copyright: An exclusive legal right used to protect intellectual creations from unauthorized use. 
• Statute of Anne: This first copyright law, adopted in England in 1710, protected author's works if they registered them with the government.
• Berne Convention: The primary international copyright treaty adopted by many countries in 1886 and by the U.S. in 1988.
• Plagiarism: Using another's work or ideas without attribution.
• Work made for hire: Work created when working for another person or company. The copyright in a work made for hire belongs to the employer, not the creator. 
• Transmit Clause: Part of the 1976 Copyright Act that says a broadcast network is performing when it transmits content; a local broadcaster is performing when it transmits the network broadcast, and a cable tv system performs when it retransmits a broadcast to its subscribers. 
• First-sale doctrine: Once a copyright owner sells a copy of a work, the new owner may possess, transfer or otherwise dispose of that copy without the copyright owner's permission. 
• Public domain: The sphere that includes material not protected by copyright law and therefore available for use without the creator's permission.
• Infringement: The unauthorized manufacture, sale or distribution of an item protected by copyright, patent or trademark law.
• Statutory damages: Damages specified in certain laws. Under these laws, copyright being an example, a judge may award statutory damages even if the plaintiff is unable to prove actual damages. 
• Contributory Infringement: The participation in, or contribution to, the infringing acts of another person. 
• Fair Use: A test courts use to determine whether using another's copyrighted material without permission is legal or an infringement. Also used in trademark infringement cases. 
• Safe Harbors: The takedown notification provision of the Digital Millennium Copyright Act that protects internet service providers and video-sharing websites from claims of infringement when they do not know about the infringement, do not earn money from the infringement and promptly comply with a takedown notice. 
• Red Flag Knowledge: When an internet service provider or website is aware of facts that would make infringement obvious to a reasonable person.
• Trademark: A word, name, symbol or design used to identify a company's goods and distinguish them from similar products other companies make. 
• Disparaging Marks: A mark considered immoral, disparaging or deceptive. 
• Tacking: Allows a trademark owner to slightly alter a trademark without abandoning ownership of the original mark. 

Important Cases:
Matal v. Tam (2017): The Supreme Court ruled that Patent and Trademark Office could not refuse to register trademarks that were offensive. 

American Broadcasting Companies Inc. v. Aereo Inc. (2014): Aereo's system of utilizing thousands of dime-sized antennas to offer its subscribers broadcast tv content over the internet violated the Transmit Clause and constituted a public performance of copyrighted works. the Court held that it did, comparing Aereo's service to a cable system.



Relevant Doctrine:

Infringement Copyright:

A copyright plaintiff must prove the following:

1. The work used is protected by a valid copyright--meaning it is an original work fixed in a tangible medium.
2. The plaintiff owns the copyright.
3. The valid copyright is registered with the Copyright Office.
4. And either: a) There is evidence the defendant directly copied the copyrighted work, or b) The infringer had access to the copyrighted work, and the two works are substantially similar. 

Controversies:

• Ed Sheeran has been accused of copyright infringement of Marvin Gaye's "Let's Get it On." The suit was filed last week in the 2nd U.S. Court of Appeals by Structured Asset Sales. They say Sheeran's song, "Thinking Out Aloud", has the “same melody, rhythms, harmonies, drums, bassline, backing chorus, tempo, syncopation and looping”. 

My Questions?:

• If someone (like Sheeran), is accused of copyright infringement on a song, is it a subjective decision the judge makes or is there a clear distinguishing factor for music? 

References:

Trager, Robert., Ross, Susan Dente., & Reynolds, Amy (2018), The Law of Journalism and Mass Communication. Thousand Oaks, CA: Sage Publications.