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Intellectual Property Law: The Law of Content
Content, such as music, text, graphics, illustrations, photographs, or software, may be protected under copyright law. There are two main concerns in this area: Avoid infringing copyrights owned by others, and protect one's own copyrights from unauthorized exploitation.
Copyright protection arises automatically when an "original" work of authorship is "fixed" in a tangible medium of expression. Registration with the Copyright Office is optional as is using a copyright notice. Copyright protects against unlawful "copying" of the tangible "expression" as opposed to the underlying idea. Generally, the length of copyright protection is the life of the author, plus 50 or 75 years for "works made for hire."
Generally, the copyright in a work is owned by the creator. If, however, the work is created by an employee within the scope of his or her employment, the employer owns the copyright because it is a "work for hire." Similarly, specially commissioned works can be "work for hire," but the creator must sign a written agreement stating that the work is a "work for hire" before commencing development of the work.
If one uses copyrighted material owned by others without getting permission, the infringer can incur liability for hundreds of thousands of dollars in damages. Permission should be secured to use the work unless the proposed use is a "fair use" (which has a specific legal definition) or the work is in the public domain.
For example, Playboy sued a computer bulletin board for transmission of digitized images from Playboy magazine. The unauthorized uses were held to be an infringement (Playboy Enterprises v. Frena).
Trademark law protects words, names, and symbols used by manufacturers and businesses to identify their goods and services. In addition, trademarks distinguish their owner's goods and services from goods manufactured and sold by others. A new media company should be certain to protect its own trademarks and those of its clients.
Federal protection from the U.S. Patent and Trademark Office is available for trademarks that are capable of distinguishing the owner's goods or services from the goods or services of others. Generic marks, marks confusingly similar to existing marks, and descriptive marks are not generally registrable. If a mark is available for use (i.e., generally when no one else owns the mark for similar goods or services), one may use the "©" notation. One may only use the "®" symbol when a federal registration has been secured.
Any person who uses another's trademark in a way that is likely to cause confusion as to sponsorship may be an infringer. Similarly, using another's mark improperly may "dilute" its value to its owner. Trademark owners can obtain injunctions and/or collect damages for infringement or dilution.
See also: Electronic Communications Privacy Act.