The Law Office of Steven O'Donnell in Lancaster, Pennsylvania protects ideas with patents, copyrights and trademarks.
Your ideas have value. Your ideas give you an edge over
competitors. Your ideas are a creative outlet. Your ideas need to be
protected. The Law Office of Steven O’Donnell is dedicated to the
protection of ideas though patents, copyrights, trademarks and trade
secrets.
Protecting your ideas is only one step in building and maintaining a
profitable intellectual property portfolio. The other key steps
include identifying what aspects of your portfolio have the most
potential value and ultimately, realizing that value. Whether your
goal is sell your designs, license your patent or market your invention
yourself, the Law Office of Steven O’Donnell can help you identify and
protect your ideas and maximize their value.
Feb082010 | Steve O'Donnell
Some things you can't copyright
Copyright is a strange thing, it comes into being (at least in some form) as soon as something copyrightable is created, almost like some ancient Greek god myth. Also, much like a Greek god, copyright can be capricious, nonsensical, and sometimes takes the form of a swan to seduce mortals. Ok, maybe not the swan thing, but it’s still pretty strange.
Although it is often hard to understand, there are rules covering what can, or can’t, be copyrighted. Of course the rules might not be self-evident, so here’s a selection of things that can’t be covered by copyright:
1) Short phrases: You can’t copyright your name. Sorry. You also can’t copyright something like a title to a movie or book. I still don’t suggest you name your memoirs “Harry Potter and the Chamber of Secrets,” even if your name is Harry Potter and your book largely discusses your Chamber of Secrets, but that would be because of a trademark problem, not a copyright one. Also, don’t be upset next time you hear some celebrity copyrighted some stupid slogan. The reporter got his facts wrong, what he meant to write was “trademarked [some stupid slogan].” Go ahead, say “that’s hot” all you want without Paris Hilton’s permission (just don’t put it on a product you’re selling without checking with someone first).
2) Bare ideas: You can’t copyright your idea for a reality show. I’ve gotten that question a few times. You could write it down in detail and claim copyright to that manuscript, but you can’t stop someone from using the same core idea for their own work because of your copyright.
3) Facts & non-creative works: You can’t copyright cold hard facts. There is a great case on this, Feist, that comes up in just about all conversations about copyright. In that case, a phonebook listing was not covered by copyright because it wasn’t creative. The level of creativity needed for a work to be covered is very small, but greater than zero. Often, Feist is referenced if a person tries to register something that is no more than a collection of other works or if their creation isn’t particularly creative.
4) Works of the Federal Governmental: Generally, things produced by a federal employee as part of their job is not copyrighted, at least they’re not eligible for a US copyright. Feel free to use NASA images as your wallpaper good citizen. That doesn’t necessarily mean that everything owned by the government is fair game, there may still be copyrights in things produced by contractors or transferred to the government. Further, works by some agencies like the US Postal Service aren’t considered works of the US Government. Lastly, state and local governments often copyright their own works. There, clear as mud.
5) Useful Items: This is one tricky to understand, but if something has artistic and utilitarian aspects, but the artistic aspect can’t be tweezed out of the whole to be copyrighted, then the whole thing loses copyright protection. A good discussion is in the Pivot Point case.
6) Clothing Designs: Clothing really falls under the Useful Items heading, but it usually slips out of the category because the designs at issue tend to be those that don’t seem particularly utilitarian. It is possible to have some aspects of a piece of clothing be protected by copyright, such as a particular pattern, but the actual article itself is not. That is the reason why right after the Oscars you can buy red carpet fashion-knockoffs in any dress store. There is always some discussion floating around this last category because there is a decent argument that haute couture is not utilitarian. I wouldn’t be surprised if Congress eventually got around to amending copyright law to address this.
Feb052010 | Steve O'Donnell
Infringe? It’s a business decision.
A common question all attorneys get is “am I gonna get in trouble for this?” For some things your attorney will be able to give you a decent answer. . . “yes, that’s a really dumb idea” or “no, that’s fine,” but much more common is a more stereotypical lawyer answer of “it depends.” For intellectual property questions, I usually dredge up middle school algebra.
Every decision can be made with the help of an equation. Let’s say your burning question is "should I hit this guy at the bar that keeps looking at me?" The left side of the equation might be:
“(chance of me losing the fight)*(chance of me landing in jail)”
The right side of the equation might be “(how much would I love to pop this guy?)*(chance that the girl at the end likes macho jerks)”
If the left side of the equation is greater than the right side, not hitting the other guy is favored. Now, of course, you can’t know the real values of any of the variables, but you can estimate. If there is a chance that they guy is really looking at someone else or just has a facial tick, and he’s a 300-lb monster sitting next to his buddy the cop, well, stay seated and order another drink. If he’s obviously being a jerk, you’ve got 40lbs on him, there are no cops around, and you know the girl likes macho jerks, the equation favors popping him. Unknown variables are also in play: maybe he’s a ninja, or an android, or a ninja android. You can’t know everything, but the more information you have, the better your decision making process will be.
It’s similar to questions I get all the time concerning intellectual property. Only a fool would make an uninformed decision. Even a gambler willing to risk big is only going to do so after evaluating the chance of losing with the possible payoff.
It’s part of my job to identify and flesh out what variables are in play. If the question involves using an image for a blog post from and there is a plausible fair use argument, that’s one thing; if the question involves making and selling t-shirts with Mickey Mouse on them, that’s a much different equation.
Jan192010 | Steve O'Donnell
What should your copyright notice say?
As I mentioned before, copyright has a lot of urban legends attached to it. Another one of these is the attachment most people have to the little copyright notice on the bottom of their websites.
You don’t need it.
Copyright is automatic as soon as something is “fixed in any tangible medium of expression.” Under US law, a copyright notice is not required for anything first published after March 1, 1989.
There may be reasons why you’d want to use a copyright notice. There is a chance of the notice scaring away a potential infringer that doesn’t know much about copyrights. I don’t think it’s much of a watchdog, maybe a small chihuahua--one of those shaky, teacup, apple-headed chihuahuas.
Another reason is that a notice will defeat a challenge that an infringement was not willful. If an infringement is willful, the infringer could be liable for enhanced statutory damages as high as $150,000 plus costs and legal fees. I know, sounds good doesn’t it? However statutory damages are only available to registered works and precious few people register the work on their websites with the copyright office. Notice may also have benefits under the laws of other countries.
On the other hand, having a copyright notice doesn’t hurt anything. Whether you want to use one or not is your call, but don’t feel like you’re putting your work in danger if you don’t have one.
Image published in 1906 found on cyberlawcentre.org and is from the Library of Congress' Bob Hope Vaudeville and American Variety Archive.
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