CONTROL THROUGH KNOWLEDGE

We help you Take Creative Control by hosting informative events and connecting you with IP lawyers (for free). But we will be dropping resources on this page to help you understand the basics, too. Want some context and current events with your education? Check out the blog.

What is fair use?

Fair use allows for the sampling/copying of copyrighted material that is done for a limited and “transformative” purpose. It can be done without permission from or payment to the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an infringement.

To determine fair use, the courts may consider a number of variables including the purpose and character of the use, the nature of the copyrighted work (creative or factual), the amount and substantiality of the use, and the economic impact of the use on the original work (in other words, is the use impacting the original’s market value?).

FAQs

What does “transformative” purpose mean?

WARNING: If you are looking for a concrete, black or white answer to this question, it doesn’t exist. It’s actually one of the things that can make fair use so tricky. The judges and lawmakers who created and shaped the fair use exception did not want to limit its definition. It is meant to have an expansive meaning that could be open to interpretation. With that said…

transformative purpose adds something new, with a further purpose or different character, and does not substitute for the original use of the work.

What are possible examples of fair use?

• A vlog post providing social commentary on a move or TV show, which includes snippets from the show along with commentary from the vlogger.
• A teacher including paragraphs from a book in his lesson for educational purposes.
• Your favorite rapper sampling and editing a line from another song in such a way that the original meaning of the line is transformed.

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What are patents, exactly?

Patents protect inventions such as machines, chemical compounds, and items that are manufactured. Patents also protect the methods or processes for performing tasks or manufacturing products. However, there are three categories of subject matter that are not eligible for a patent: 1) physical phenomena; 2) laws of nature; and 3) abstract ideas. Inventions, including improvements upon pre-existing technologies, are eligible for patent protection if they are usefulnew, and “non-obvious.” To qualify for a patent, all three of these requirements must be met.

For an invention to be considered useful it simply has to do something. To determine whether an invention is also new and non-obvious, it is necessary to examine the inventions which already exist, known in the patent world as the “prior art.” If the invention already exists in the prior art, then it is not new. If the invention is a variation upon something in the prior art, while it might be “new” in the sense that it has not been done before, it might be considered “obvious,” and therefore not patentable.

An example

If someone invents a machine that grinds peppercorns into powder, that invention would be useful, and if that grinding method is not already in the prior art, it will also be new and non-obvious. Afterwards, if another person designs a peppercorn grinding machine which works on the same basic principles as the first, but adds a set of smaller grinding gears to produce a more fine powder, the resulting machine would be useful and arguably even “new.” However, the addition of the gears on the second invention would likely be considered “obvious,” and consequently this machine would not be patentable. If this peppercorn grinding machine was invented in a way that ground peppercorns using a different method than the original machine, such as using an electric rather than a manual grinder, this process could be considered “non-obvious” and the machine may be patentable.

How do I obtain a patent?

In order to obtain a patent, the inventor must follow a formal procedure referred to as “patent prosecution” which involves the preparation of a detailed application that describes the invention, how to make and use it, and states which of its features are claimed to be innovative. After satisfactory review by the United States Patent and Trademark Office, the patent will be issued. Patent protection generally lasts for 20 years. A patent prevents others from making, using, selling, or importing the invention, and any unauthorized engagement in any of these acts constitutes patent infringement. Patent infringement may be direct (that is, all elements of the patent or the equivalent to all elements of a patent are infringed) or indirect (one induces or contributes to another’s infringement of a patent). To defend against an action for patent infringement, a defendant may argue that the patent is invalid or that she did not infringe. Remedies for patent infringement include monetary damages that compensate for the infringement and injunctive relief (a court order for the infringer to stop using the trade secret).

A growing type of intellectual property: publicity rights

The right of publicity protects an individual from the unauthorized commercial use of her name, likeness, or other recognizable characteristics. Right of publicity was derived from the common law right of privacy and protects against the appropriation of an individual’s personality for commercial exploitation. Obvious examples include the use of a person’s name or photograph on a product or in an advertisement, but this right also prohibits more creative or complex uses, such as the unauthorized creation and use of a college athlete’s “avatar” in a computer video game. Similar to trade secrets, no government registration process is required to protect or enforce the right of publicity. U.S. law currently protects all peoples’ publicity rights without requiring them to undergo a formal registration process to protect those rights. The right of publicity is a common law and statutory right, this means that there is no federal body of law governing the way that each state handles right of publicity claims. As a result, remedies can vary from state- to-state and a right of publicity claim may be invalidated by copyright law, should the subject matter of the claim fall under both the right of publicity and copyright law (for example, the unauthorized use of someone’s voice in a song could be subject to the right of publicity and copyright law).

To defend against an action for infringement upon publicity rights, a defendant can argue that her activity does not refer to the plaintiff. A defendant can also argue that her conduct is protected by the First Amendment rights to free speech, such as when the defendant refers to the plaintiff in a newspaper story or a novel. In cases like these, the court will have to balance these competing rights of both individuals, which can make the outcome very difficult to predict.

What is a sound recording?

The US Copyright Office defines sound recordings as “works that result from the fixation of a series of musical, spoken, or other sounds but not including sounds accompanying a motion picture or other audiovisual work.”

This basically translates to: a sound recording is a recorded performance of another work (a song, interview, audiobook). A sound recording must be fixed, meaning that the sounds must be captured in a medium from which they can be heard, reproduced, or otherwise communicated—so, for example, a digital track, CD, or record for our more nostalgic listeners.

A few examples

A sound recording is an audio recording of…

• A person singing a song or playing a musical instrument.
• A person reading a book or delivering a lecture.
• A group of persons hosting a podcast.
• A collection of produced sounds like wind chimes ringing or a beat.

What is a master recording?

A master recording (usually called “masters”) is a type of sound recording. You can think of it as the prototype from which all the later copies are made—a CD, a stream on Spotify, or even a spot on a movie soundtrack. This means that the holder of the masters has control over how the recording is shared (if at all) and the financial gains from the recordings.

Depending on the contract, the master can be owned and controlled by the performing artist(s) on the track, the record label, and/or any producer(s) involved in the creation of the recording.

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What are trademarks, exactly?

Trademarks are words, symbols, colors, phrases, designs, sounds or any combinations of these things which are used to identify the source of goods or services, and to distinguish the goods and services of one seller from those sold by others. A trademark conveys an expectation of a certain quality of the goods or services produced by that source. A good example is the brand burnt onto cattle by a cowboy to mark the cattle came from a particular ranch.

A source identifier must be “distinctive” in order to qualify as a trademark, meaning that its purpose must be to identify and distinguish the source, as opposed to describing the product. For example, the word “banana” would not be distinctive for selling bananas, because it describes the product as opposed to identifying its source. However, “Chiquita” is distinctive for selling bananas, as in “Chiquita Bananas,” because it identifies bananas which are sold by the Chiquita Company. Trademark law has a spectrum of distinctiveness, from the most distinctive (which receives the strongest trademark protection) down to no distinctiveness (which receives no trademark protection): inherently distinctive or fanciful (for instance, “Kodak”, a term that was made up to identify the product source) or arbitrary (for instance, “Apple” for selling computers); suggestive (for instance, “Grameen,” which means rural, for banking services for impoverished villagers in Bangladesh); descriptive (for instance, “Daily News” for newspapers), and finally generic, which applies to terms that have no distinctiveness and cannot serve as a trademarks (i.e., “banana” for bananas, “chair” for chairs, etc.).

Similar to copyrights, while it is not necessary to register a trademark, registration will provide several important, sometimes even critical rights. For example, the first to register is generally entitled to the trademark. Registration is completed by submitting an application to the United States Patent and Trademark Office including the trademark and specifying the goods or services with which it is associated (for example, Coca-Cola for soft drinks). If there is no prior and confusingly similar mark, the registration is granted and will last for 10 years, but can be renewed, in theory, forever.

Infringement by confusing customers

A trademark owner can prevent others from using confusingly similar marks in connection with similar products (such as the case involving the “Mixed Chicks” hair products for women of color). Indeed, registering a brand name as a trademark can provide a valuable business asset to both startups and major corporations alike. The issue of counterfeit goods provides a good example: same mark, same product, but false source, such as the fake “Rolex” watches sold on many street corners; unwary consumers recognize the brand name and are deceived into believing that they are purchasing the genuine article. In a trademark infringement suit, the key issue considered by the court is whether it is likely that consumers will be confused if the defendant is allowed to use the same or a similar mark. To defend against a trademark infringement claim a defendant can argue that her mark is not confusingly similar to that of the trademark owner. Owners of famous trademarks can also prevent others from “diluting” their marks, by using them on other goods, even if there is no confusion. Injunctive relief (a court order to stop using the trademark) is a common remedy for trademark infringement.

What are trade secrets?

Trade secrets are the oldest form of intellectual property, dating back at least 4,000 years. A trade secret is any secret or piece of valuable information used in a business, which provides an actual or potential advantage for that business over other companies. This can include typical business information such as customer lists, marketing strategies, and financial information in addition to secret cooking recipes, home remedies, hair care techniques, manufacturing processes, and secret formulas (like the formula for Coca-Cola). Unlike some other kinds of intellectual property, there is no special legal registration process to follow to protect a trade secret; however, the owner must take proper measures to keep the information secret, such as filing it in locked drawers or “restricted access” areas, or requiring employees to sign confidentiality and “non-competition” agreements.

A trade secret is misappropriated when someone obtains it in a dishonest way, such as by stealing a document. Another way for a trade secret to be misappropriated is when the owner discloses the secret in exchange for a promise that it would be kept secret, and the promisor breaks that promise. In order to bring a trade secret claim, the trade secret owner must prove that: 1) the information has independent economic value; 2) the information is not generally known or readily ascertainable; 3) the information gives its owner a competitive advantage; and 4) the owner takes reasonable efforts to preserve secrecy. On the other hand, if the information is made public by the owner, even by mistake, it will lose its status as a trade secret.

To defend against an action for trade secret theft, a defendant can argue that the information was already common knowledge or that she obtained the information in an honest way, such as independent research or “reverse engineering” (that is, buying a product and then analyzing it to discover its ingredients or chemical composition). If a court finds that a trade secret is misappropriated, the trade secret owner may receive remedy in the form of injunctive relief (a court order to stop using the trade secret), money damages and/or attorney’s fees.

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