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Please see the end of this book for a directory of resources related to copyright, trademarks, patents and legal issues.
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Table of Contents:
1. Introduction to Copyrights, Patents & Trademarks by Dr. Deepak Dutta 2. A Brief History of Copyright Law by George Johnson 3. The Proper Way to Copyright Visual Arts by Brian Johansson 4. The Right Way to Copyright Serial & Periodical Works by Brian Johansson 5. How Copyright Protection Works by Paul Thomas 6. 10 Myths About Copyright Protection by David Stone 7. Copyright in the Classroom by Chad Criswell 8. Copyright – What Can You Protect? by Richard A. Chapo 9. Photo Copyright Concerns by TJ Teirney 10. The 4 Can’t Miss Keys to Copyright by Sophfronia Scott 11. The Copyright Debate & RSS by S. Housley 12. Business Website Content Copyright Scare by Joel Walsh 13. Copyright Infringement by S. Housley 14. On Writing: Recipes & Copyright Law by Pamela White 15. Musicians & Copyrights: What You Need to Know by Jason Cole 16. The Inside Scoop on Ghost Writing and Copyright by Julie Ann Amos 17. Licensing Your Copyrighted Works by Richard Chapo 18. Patents, Trademarks, Copyrights – What’s the Difference? by Terry Williamson 19. U.K. Copyright Law: A Quick Guide for Freelance Writers by Sharon Hurley Hall 20. Determining Ownership of Copyright & Software by Leigh Ellis 21. How to Give Notice of Copyright On Your Works by Richard Chapo
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22. What Copywriters Need to Know About the Proper Use of Copyright by Chris Marlow 23. Experienced Copyright, Patent and Trademark Attorneys May Be A Great Help by Jessica Deets 24. Protecting Intellectual Property by Tim Bryce 25. U.S. Patent and Trademark Office: Security for your Products, Business & Ideas by Joseph Savard 26. E-mail Anti-Theft:The Battle Against Copyright Infringement by Mila Levkovsky 27. Copyright for Fashion? The Discussion by Fibre2Fashion 28. Points to Stop You Coming Unstuck with Web Design Copyright by Sasch Mayer 29. Copyright Quick Start by Anthony Bressi 30. 7 Online Copyright Myths by Judith Kallos 31. Intellectual Property at All Stages of a Company’s Life by David J. Dawsey, PE, Esq.
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Introduction to Copyrights, Patents & Trademarks
by Dr. Deepak Dutta
What is a copyright? Can everything be copyrighted? A copyright is the expression of an idea. The idea itself is not copyrighted. Ideas can be patented and I will talk about patents later. Let's consider the example of a story: a poor man who found lots of cash on his way back to his home from his work. He decided to keep the cash to improve his financial situation. But he could not sleep at night because he was haunted by strange voices that told him to find the owner and return the cash. This idea cannot be protected. Anybody can write a short story based on the idea. What is protected is how the author expresses the idea in the form of texts, illustrations, drawings, photographs, etc. Once an expression is copyrighted, others can still use it for fair use. You can tape a few 15 seconds video clips from a copyrighted TV programs and post it in your video blogs about a commentary on the program or broadcaster, etc. This will be considered a fair use and you will not infringe the copyright. After a copyrighted material expires, it falls into the public domain. The life of a copyrighted material is the life of the author, plus 70 years. The public domain copyrighted materials can be reproduced without any infringement. For example, if you have an old picture with expired copyright, you can post the picture in your website. In the USA, the Copyright Act of 1976 governs all copyrights. The Copyright Act does not protect any ideas, procedures, process, systems, and methods of
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operations, concepts, principle or discovery regardless of how it is expressed. It is the expression that is protected by the Copyright Act. You cannot copyright titles, names, slogans, and short phrases even if those have new ideas. As mentioned earlier, the life span of a copyrighted material is the author's life, plus 70 years in most cases. There are a few exceptions to this rule and they are: un-renewed copyrighted materials published pre-1964, materials published before 1978 without a copyrighted notice, and materials published by the US Government. All copyrighted materials should be fixed in a tangible medium (papers, CDs, DVDs, etc.). If it is not fixed in a tangible medium, it is not copyrighted. For example, your speech to the graduating class that was never recorded, taped, or published is not protected under the US Copyright Act. Your can register your copyrighted materials with the US Copyright Office. All expressions of ideas are copyrighted regardless it is registered with the Copyright Office or not. If you register the expression with the Copyright Office, you can receive statutory damages and attorney's fees if an infringement occurs. If the material is not registered with the Copyrighted Office, you can only recover actual damages. A patent holder of an invention has the right to exclude others from using, selling, and making the invention. The United States Patent Office (USPTO) awards patents. There are three kinds of patents: utility, design, and plant patents. The most frequently used patents are utility patents. They have a life span of 20 years from the effective filing date if the filing date is after June 8, 1995. A utility patent also requires periodic maintenance fees. A utility patent must be a novel, useful, and non-obvious process, machine, manufacture, or compositions of matter or improvement to the same. There are three things that define a utility patent. First, it must be novel. Nobody should have invented, published, used, or manufactured the invention before. Second, one should be able to do some thing useful with the invention. If it is just novel without any usefulness, it cannot be patented. A patentable invention should not be obvious to the person with ordinary
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skills in the same technology space related to the invention. A design patent is the appearance or aesthetic of an article and it has a life span of 14 years after the patent is issued. A plant patent, as the name applies, protects a distinct plant produced asexually. It has life span of 20 years from the filing date. A trademark is word, symbol, design, or a combination of one or more of these items. It is used to identify the source of goods or services of one company and differentiate a company's goods and services from others. A trademark should not be confusingly similar to other existing names or symbols. A trademark is registered with the USPTO. It can also be registered through the state's Secretary of State's office. If the trademark is not registered, the rights to the trademark may be geographically limited. You cannot use the symbol ® to represent a mark if it is not registered. If you want to maintain a trademark for your business, you must actively use it. Just registering a trademark without using it actively will result in diminished rights over time. Never allow a trademark to become a generic word. For example, the trademark "Aspirin" by Bayer has become a generic word to represent acetylsalicylic acid. Others can use it without causing any infringement. When you see a trademark used by authors as a noun or a verb, it may become a generic word. Trademark owners vigorously pursue authors from using the trademark as a noun or a verb. A trademark should always be used as an adjective. For example, Google is preventing others from using the word Google as a verb. ABOUT THE AUTHOR Dr. Deepak Dutta is the creator of www.semanticbay.com - an interactive social network website based on user shared text and picture. His other website www.classifiedsforfree.com - is one of the oldest online classifieds site where users can post ads in more than 600 US cities and 60 countries.
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A Brief History of Copyright Law
by George Johnson
Authors, patrons, and owners of works throughout the ages have tried to direct and control how copies of such works could be used once disseminated to others. Mozart's patron, Baroness von Waldstätten, allowed his compositions created for her to be freely performed, while Handel's patron jealously guarded "Water Music." Two major developments in the fourteenth and fifteenth centuries seem to have provoked the development of modern copyright. First, the expansion of mercantile trade in major European cities and the appearance of the secular university helped produce an educated bourgeois class interested in the information of the day. This helped spur the emergence of a public sphere, which was increasingly served by entrepreneurial stationers who produced copies of books on demand. Second, Gutenberg's development of movable type and the development and spread of the printing press made mass reproduction of printed works quick and much cheaper than ever before. The process of copying a work could be nearly as labor intensive and expensive as creating the original, and was largely relegated to monastic scribes before printing. It appears that publishers, rather than authors, were the first to seek restrictions on the copying of printed works. Given that publishers commonly now obtain the copyright from the authors as a condition of mass reproduction of a work, one of the criticisms of the current system is that it benefits publishers more than it does authors. This is one of the chief arguments in favor of peer-to-peer file sharing systems, making an analogy with the changes wrought by printing.
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An interesting attempt at copyright in the early modern period was the notice attached to the ha- Shirim asher li-Shelomo , a setting of the Psalms by the composer Salomone Rossi, which happened to be the first music to be printed with a Hebrew type-face text (1623). It included a rabbinical curse on anyone who copied the contents. While governments had previously granted monopoly rights to publishers to sell printed works, the modern concept of limited duration copyright originated in 1710 with the British Statute of Anne. This statute first accorded exclusive rights to authors (ie, creators) rather than publishers, and it included protections for consumers of printed work ensuring that publishers could not control their use after sale. It also limited the duration of such exclusive rights to 28 years, after which all works would pass into the public domain. There were territorial loopholes in the 1710 Act. It did not extend to all British territories, but only covered England, Scotland, and Wales. Many reprints of British copyright works were consequently issued both in Ireland and in North American colonies, without any license from the copyright holder required. These works were frequently issued without payment to British copyright holders, so they were cheaper than London editions. There was, between 1710-1774, legal debate about what length of time was meant in the 1710 act. Publishers in Scotland, in the 1730's, began to reprint titles that they no longer considered to be protected by copyright. Scottish publishers printed what they perceived to be public domain English works whose copyright had expired. They sold these titles in Scotland, and in the English provinces. English publishers objected to this, on the basis of what they saw as common-law rights and property (under the concept of common-law rights in the English system), which predated
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the Copyright Act. Under common-law rights, rights in published works were held to continue into perpetuity. The case of Donaldson vs Beckett, in 1774, brought disagreements on the length of copyright to an end, and changed common law in this regard. The outcome of the case resulted in the decision that Parliament could, and had, put a limit on copyright length. This decision reflected a shift in English ideas of copyright. The English lords who made the decision in 1774 decided that it was not in the public's best interest to have London publishers control books in perpetuity, particularly as English publishers not uncommonly kept prices higher than otherwise. Concepts of the roles of the author and publisher, of copyright law, and of general Enlightenment notions, all interacted in this period of copyright development. Authors had been previously seen to be divinely inspired in some sense. Patronage was a legitimate way to support authors, in part because of this. Authors who were paid, rather than entering into patron-relationships, were often regarded as hacks, and looked down upon. However, the notion of individual genius was becoming more common during the 1770's (the generation after Donaldson v Beckett), and being a paid author therefore became more accepted. The Irish also made a flourishing business of shipping reprints to the North America in the 18th century. Ireland's ability to reprint freely ended in 1801 when Ireland's Parliament merged with Great Britain, and the Irish became subject to british copyright laws. The 1886 Berne Convention first established recognition of copyrights among sovereign nations, rather than merely bilaterally. Under the Berne Convention, copyrights for creative works do not have to be asserted or declared, as they are automatically in force at creation: an author need not "register" or "apply for" a copyright in countries adhereing to the Berne Convention.
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The USA did not initially sign the Berne Convention and would not do so until 1989, however many European countries did. The UK signed on in 1887, on behalf of itself and its colonies, but did not implement large parts of it in British law until 100 years later, with the introduction of the Copyright, Designs and Patents Act of 1988. ABOUT THE AUTHOR Learn more about copyrights and copyright law at George Johnson’s website, http://www.copyrightabook.info/
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The Proper Way to Copyright Visual Arts
by Brian Johansson
If you are trying to register any type of visual arts you should follow the copyright process as explained here. Visual arts can generally be described as any pictorial, graphic, sculptural or architectural works. Including 2-dimensional and 3dimensional fine, graphic and applied art. There are some architectural works that fall under visual arts, and depending on the medium of the art there may be parts of the exhibition that are not copyright protected. This includes pieces of art that may include working or moving parts or pre-existing parts such as furniture, clothing or machinery. Other works that fall under visual arts may include….. · Two-Dimensional Works. · Advertisements (pictorial). · Artwork for bed, bath, and table linens or for wearing apparel (For example: heat transfers or decals already applied to T-shirts). · Blueprints, architectural drawings, mechanical drawings, diagrams. · Book jackets or record jackets. · Commercial print published in newspaper or other periodical. · Commercial print or label (For example: flyers, labels, brochures, or catalogs used in connection with the sale of goods or services). · Contributions to collective works (photographs, drawings, cartoons, etc., published as part of a periodical or anthology). · Fabric, textile, wallpaper, carpeting, floor tile, wrapping paper, yard goods (If applied to a three-dimensional work, see below). · Fabric emblems or patches, decals or heat transfers (not applied to clothing), bumper stickers, campaign buttons. · Greeting cards, picture postcards, stationery, business cards, calendars. · Holograms .
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· Maps or cartographic material. · Patterns, cross-stitch graphs, stitchery brochures, needlework and craft kits. · Pictorial or graphic works (For example: artwork, drawings, illustrations, paintings). · Pictorial or graphic works fixed only in machine-readable form . · Posters, photographs, prints, brochures, exhibition catalogs. · “Limited edition” posters, prints, or etchings (published in quantities of fewer than 5 copies, or 300 or fewer numbered copies if individual author is owner of copyright). · Oversize material (exceeding 96" in any dimension). · Three-Dimensional Works. · Artwork or illustrations on 3-D objects (For example: artwork on plates, mugs). · Fabric or textile attached to or part of a 3-D object (such as furniture). · Games. · Globes, relief models, or relief maps. · Jewelry. · Pictorial matter and/or text on a box or container that can be flattened (contents of container are not claimed). · Prints or labels inseparable from a three-dimensional object (for example: silk screen label on a bottle). · Sculptures, toys, dolls, molds, relief plaques, statues. · Sculpture (for example: doll) in a box with copyrightable pictorial and/or textual material; claim in sculpture and artwork/text, oversize material (exceeding 96" in any dimension). · Architectural Works include either unconstructed buildings or constructed buildings. The second step is to put together a package including either a form VA, a check for $30 made out to the “Register of Copyrights” and a non-returnable copy of the materials that are being registered. The form VA can be obtained at the copyright offices website at www.copyright.gov under the visual arts tab. Depending on what medium your work is there are different requirements for the deposit materials. Obviously if you are registering a building they will accept a photograph of the
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building but they may also require drawings, plans or other supplemental material. You should research the particular medium that you are trying to register at the copyright listed above. ABOUT THE AUTHOR Find out more great information about copyright protection at http://www.copyright-protection-zone.info/
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The Right Way to Copyright Serial & Periodical Works
by Brian Johansson
If you are trying to register any type of newspaper, magazine or other periodically occurring work you should follow the copyright process as explained here. Serial and periodical works can generally be described as any work issued in parts that can be chronologically tracked by a numeric or alphabetical series. The first step is to make sure that what you are registering is a serial/periodical work. In addition to the listed items above, the following also can be categorized as serial/periodical works. There are four forms for this category of copyright form SE, short form SE, form SE/Group and form G/DN. If you are registering a singular issue you can use either form SE or short form SE. Form SE/Group is used for a group of publications that were published in one three month period and created no more than one calendar year from the date of publication. For example a comic book could fall into this category. Form G/DN should be used for a daily newspaper if each issue is a new all collective work and is a work made for hire. Form G/DN should be used for a newsletter if each issue is a all new collective work and each work is a work made for hire. The second step is to put together a package the appropriate form, a check for the filing fee made out to the “Register of Copyrights” and a non-returnable copy of the materials that are being registered. The forms can all be obtained at the copyright offices website at www.copyright.gov under the serials/periodicals tab. The filing fees are… · Single Issue$30 · Group Registration$15 per issue ($45 minimum)
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· Group Registration of Newspapers or Newsletters $55 Finally address the package to… Library of Congress Copyright Office 101 Independence Avenue, S.E. Washington, D.C.20559-6000 As soon as the copyright office receives your package and confirms that it has been received in proper order your copyright is considered to be in effect. You will receive written confirmation in the mail shortly thereafter. ABOUT THE AUTHOR Find out more great information about copyright protection at http://www.copyright-protection-zone.info/
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How Copyright Protection Works
by Paul Thomas
What does copyright protect?
Copyright is a type of intellectual property law, and it protects original works of authorship including dramatic, literary, artistic works and musical, and such as poetry, movies, novels, songs, computer software and architecture. Copyright does not protect ideas, facts, systems or methods of operation, though it may protect the way these things are expressed. How can I copyright my website? The original authorship that appears on a website may be protected by copyright. This includes artwork, writings, photographs and other forms of authorship protected by copyright. Actions for registering the contents of a website can be found in Copyright Registration for Online Works. How about copyright and my domain name? Copyright law does not protect domain names. The Internet Corporation for Assigned Names and Numbers that is a nonprofit organization that has understood the responsibility for domain name system management is administrating the assignation of domain names through recognized registers. How about copyright to a slogan, logo, name or title? Copyright does not protect titles, names, slogans or short phrases. In a few cases these things may be protected as trademarks. Get in touch with U.S. Patent &
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Trademark Office on phone 800-786-9199 for additional information. Nevertheless copyright protection may be obtainable for logo artwork that contains enough authorship. Can I protect my ideas? Copyright does not protect systems, concepts, ideas or methods of doing something. You may convey your ideas in writing or drawings and claim copyright in your explanation, but that copyright will not protect the idea itself as revealed in your written or artistic work. Copyright protection and unpublished work. Publication is not required for copyright protection. It can be done with unpublished work as well. Architecture copyright protection? Architectural work became subject matter to copyright protection on the 1.st of December 1990. The copyright law defines architectural work as “the design of a building embodied in any tangible medium of expression, including a building, drawings or architectural plans.” Copyright protection extends to any architectural work created on or after Dec. 1, 1990. Any architectural works that were incomplete and embodied in unpublished plans or drawings on that date and were constructed by December 31, 2002, are entitled to protection. Architectural designs embodied in buildings constructed prior to December 1, 1990, are not entitled for copyright protection. See Copyright Claims in Architectural Works ABOUT THE AUTHOR Much more information about Copyright Protection on this website. See for your self. http://www.copyright-protection-e.com/
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10 Myths About Copyright Protection
by David Stone
The ten myths about copyright protection: 1. If something is found on the internet it can be used freely False, if something is pulled from the internet it enjoys the same protections that any other literary work would enjoy. This means that without the author's specific permission the work may not be used in whole or in part. Even if the article is posted on a site denoted as a public domain site it does not mean that the article may be pulled and used. 2. If you aren't making money it does not violate copyright laws False, it does not matter if you stand to make a profit from the exploitation of someone else's work. Whether or not you stand to make a profit it is the right of the original author to give permission or not regarding their creation. 3. If something isn't registered with the copyright office it isn't copyrighted Technically false. The standards of the Berne copyright convention makes any original work copyrighted upon it's creation. There are certain advantages to having your work registered with the copyright office. It is far easier to prove the date of the creation of your work if you have the dated paperwork from the copyright process. This does not mean that if a work is not registered with the copyright office it is fair game and cannot be proven. 4. I am free to use something because it is “Fair Use”
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It depends on what you are trying to do. Fair Use was designed to allow for commentary, satire and criticism. This means that you can directly quote from someone's work if the use of the quote is to provide your opinion on the work. Fair use also allows for individual to spoof on someone else's work and allows for similarities between two individual works. 5. I am free to make my own work based of off someone else's work False, copyright protection strictly forbids “derivative works” and allows only the original author to create a derivative version of his/her own work. 6. I only copied part of an article so I am fine False, the only reason that you can directly copy any part of an original work into you work is under the fair use guidelines. This means quoting directly into your article is permissible if you are making a commentary on the original work. When doing this it is best to give the original creator credit and not to use anymore of the original work than is necessary to make your commentary. 7. It wasn't marked copyright so it is part of the public domain False, according to the Berne copyright convention copyright occurs when the original work is created and cannot be used without the express permission of the creator. Public Domain refers to works that have expired copyrights, which vary from work to work. Public domain generally refers to works created prior to 1928. Any work created after 1928 and before 1963 it has an automatic copyright of 28 years, which can be renewed for a total of 67 years. From 1964 to 1977 it has a copyright for 95 years from date of creation. From 1978 to present day the copyrights start at 70 years from the date of creation and will expire depending on the death of the author. 8. One of my employees created it so I am the copyright owner
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Not necessarily, you are only the copyright owner if the work was made for hire. One of your employees can create a work and it would not be necessarily yours unless it can be proven to be a work made for hire. In other words there needs to be a work made for hire contract or the work can be shown to have been made in the course of employment specifically at your request. 9. Violating a copyright isn't really illegal False, depending on the seriousness of the infringement and whether there can be a monetary loss shown be the original creator copyright infringement can be treated as a criminal offense. 10. No one sues over copyright violations False, there are several large copyright infringement cases in process right now and a suit against MP3.com was settled for a total of $53.4 million. ABOUT THE AUTHOR Find out more great information about copyright protection at http://www.copyright-protection-zone.info/
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Copyright in the Classroom
by Chad Criswell
Fact #1- The "Fair Use" part of the US Copyright Law says that in most cases you can allow your students to use copyrighted material such as songs, photos, and other media as long as the finished product is not going to be reproduced and distributed. Fact #2- In real life (outside the classroom) doing the same thing is illegal and a violation of copyright law punishable by fines and/or jail time. Because of the latter I always recommend that teachers give their students the tools and information to complete projects using free, public domain alternatives. Say for example you assign your students to create a Power Point presentation on a specific topic. In the assignment you mandate that the presentation must include at least one graphic on each slide relevant to this topic. Rather than allowing the students to go out on the web and “steal” images from other sites, demonstrate how to find legal content during your initial presentation. Such photos and other content are easy to find, just do a Google search for “public domain photos,” or “royalty free photos,” for example. One of my personal favorites is the Stock XChange but there are many others. Another good alternative that some schools possess is a site license subscription to a clip art service. For a flat fee schools and local area education agencies can purchase annual subscriptions to various sites which allow their students and faculty with free, legal access to thousands of copyrighted photos that can be used in most kinds of presentations without restriction. The site Clipart.com offers this type of service.
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Remember, while some sites openly allow you to use their images in any publication you choose, others will restrict what you can use it for and how it can be reproduced. Always check the usage policy or copyright policy on the site before using any images or other content in a presentation. By insisting that your students follow these rules you are helping to instill a definite sense of right and wrong in regard to this very "grey" issue. ABOUT THE AUTHOR Chad Criswell is a career music educator in northeast Iowa. Mr. Criswell hosts a web site dedicated specifically to music education topics of interest to students, parents, and teachers located at http://www.musicedmagic.com. He is also the music appreciation section editor for http://musicappreciation.suite101.com
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Copyright – What Can You Protect?
by Richard A. Chapo
The legal protection known has “copyright” has come front and center over the past few years with major legal rulings regarding peer-to-peer networks on the Internet. Copyright protection, however, can be a confusing area of the law. This article details what can and cannot be protected by copyright. Copyright Protection? - Yes Copyright protects "original works of authorship" in a tangible, fixed form of expression. The material does need to be directly perceptible as long as it can be expressed with the aid of technology. A good example of this is a movie, which requires a projection device of some sort. Materials that can be copyrighted include: 1. Literary works; 2. Musical works, including any accompanying words 3. Dramatic works, including any accompanying music 4. Pantomimes and choreographic works 5. Pictorial, graphic, and sculptural works 6. Motion pictures and other audiovisual works
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7. Sound recordings 8. Architectural works Each of these categories is traditionally given a very broad reading. For instance, “literary works” include computer programs and plans for building a home are considered "pictorial, graphic, and sculptural works." While copyright cuts a broad path, it doesn’t cover everything. Protected by Copyright? – No If a work is not tangible, copyright protection will not apply. This can lead to confusion, so here are a few categories not eligible for protection from copyright: 1. Works that are not fixed. For example, the statements made by experts at a round table discussion or a comedian’s stage act. 2. Titles, names, short phrases, and slogans. These materials may be eligible for patent protection. 3. Ideas, procedures and methods. Copyright protection is a valuable intellectual property tool. By using copyright protection, you can create and produce materials without worrying about them being swiped. That is, unless someone in China gets ahold of it. In that case, all bets are off! If it all possible, copyright the material you produce to prevent others from misusing it. ABOUT THE AUTHOR Richard A. Chapo is a San Diego business lawyer with http://www.sandiegobusinesslawfirm.com - providing legal services and legal
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advice to businesses in San Diego, California.
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Photo Copyright Concerns
by TJ Teirney
Copyright in any subject can be un-enticing, but is doesn’t hurt to know the law. Copyright in most works of art, which includes writing, photography and digital images occur as the work is created. To put it as simply as possible, the second you click the shutter button, the resulting image belongs to you. No formal registration is needed in more that 140 countries in the world, to receive basic legal protection. But regardless, if you do feel that you don‘t understand certain legal points, you would be well advised to speak to your legal advisors. Although the law protects your copyright from the moment the shutter is released and there is no other formalities to be observed, I would strongly advise that you mark every single photograph with the word “copyright” followed by your name, or use the international copyright symbol followed by your name: © - TJ Tierney. Don’t write on the original image; if you’re using slide film write on the white plastic border. If you are submitting original prints to a magazine photo editor, state that the images are subject to copyright on a cover letter. When you do sell an image understand the reproduction rights. If you agree to “single reproduction rights” you are granting the magazine or publisher rights to use the image once. If they decide to use the same print in a few months time, you’re entitled to further reproduction fees. It would be wise to state in a cover letter when submitting images that reproduction fees are negotiated before use.
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Don’t ever sell your images as “royalty free”. You may receive an “ok payment“, but the publisher that has paid for the royalties can sell your images to whoever he wants; and you won’t receive a single cent. If in three months time you see an image that belongs to you on the cover page of some magazine; and know full well that they are in breach of your copyright, don’t be afraid to send them an invoice, adding on a little extra for their cheekiness. Let them know that you know the law and that if the payment isn’t received by a certain date that further action will be taken; you’ll have a cheque in the door within a few days. ABOUT THE AUTHOR TJ Tierney. Award winning Irish Landscape photographer. If you are looking for more photo tips visit http://www.goldenirishlight.com/photographytips.html To view some of his images visit his on line gallery at http://www.goldenirishlight.com
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The 4 Can’t Miss Keys to Copyright
by Sophfronia Scott
Copyright is the writer's security blanket. It just makes you feel better to know your words are protected. I once knew a writer who was so scared his work would be stolen, he never sent it anywhere. Talk about counterproductive! But if you can understand these four simple copyright keys, you can rest easy and submit at will. 1. Create! That's all you have to do to copyright something: write it. You don't have to publish it and you don't have to register it with the United States Copyright Office, although there are certain advantages to registration (see below). The moment a piece is written down, it automatically gains copyright and that copyright is owned by the author. 2. Give Notice. That's when you put that little encircled "c" on the work. You can also use the word "Copyright", then your name and the year of first publication. For instance, this newsletter is "Copyright 2005 Sophfronia Scott". It tells the world that the work is protected so someone can't show up in court and claim they didn't know it was. Speaking of court... 3. Register Your Copyright. Again, registering with the United States Copyright Office is really just a legality. You don't have to do it. But you do get a few benefits for the $30 fee that are worth considering.
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Registration makes your copyright a matter of public record and--get this--if you register and someone later infringes on your copyright and you take them to court, you will be able to sue for "statutory damages and attorney's fees". With an unregistered work you can only get an award of actual damages and profit. To learn more on how to register your literary work go to http://www.copyright.gov/register/literary.htm. 4. Send Copies to the Library of Congress. Once your book is published, you're required to send two copies to the Library of Congress. It's called a "mandatory deposit of published works". If your book is produced by a traditional publisher, the people there will do this for you, but if you are self publishing, keep in mind that you have to do this yourself. You have three months after publication. It doesn't hurt your copyright if you don't do it but, according to the Copyright Office, "failure to make the deposit can result in fines and other penalties." That's it! Pretty simple, really, but all the more reason why it should not become an artificial roadblock to your continuing and submitting your work. One last note: you can't copyright an idea. I have heard writers say they submitted a story or book proposal and someone else came out with a book just like it, so the agent/editor/writer must have stolen their idea. Well, not quite. It is highly likely that someone else just had the same idea. It does happen. And yes, it is possible for someone to steal your idea--just make REALLY sure that they have done so before you make the accusation. © 2005 Sophfronia Scott ABOUT THE AUTHOR Author and Writing Coach Sophfronia Scott is "The Book Sistah" TM. Get her FREE REPORT, "The 5 Big Mistakes Most Writers Make When Trying to Get Published" and her FREE online writing and publishing tips at http://www.TheBookSistah.com
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The Copyright Debate & RSS
by S. Housley
RSS is commonly defined as really simple syndication. So, this means that any material contained in a feed is available for syndication, right? Well no, not exactly. It means that the content contained in an RSS feed is in a format that is syndication friendly, if the copyright holder allows for syndication. Offering a feed for syndication does not in fact grant any legal rights to anyone to reuse the feeds content beyond what the Copyright laws grant as Fair Use. In practice, while your feed might legally be protected, you could literally spend weeks attempting to protect the contents of your feed. Legal gray areas are introduced with Search Engines indexing feeds and RSS Feed Directories including copywritten feeds, in their categorized directories. How do you distinguish between a legitimate search engine, RSS directory and someone simply reproducing the contents of a feed for personal gain? Legally how can you defend against one and not the other? One can ask whether it is legally is it wrong to reproduce content in a feed. Morally is it wrong? Does the site have a purpose or value outside of the syndicated content? Is the aggregation of topic specific feeds in itself a value? If you use the feeds for content and label the site a directory does that make it any more legal? What about personal web aggregators? If it is for personal use,is it OK? Take a look at the following topic specific feed directories: Financial Investing - http://www.finance-investing.com
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Or Security Protection - http://www.security-protection.net One could argue that the above sites do in fact provide value, aggregating and categorizing related topic specific feeds in a single location. In fact those in the security sector of the finance arena might find the above sites of significant value but what of the content creators?
Laws and Technology Collide
Most people publishing content via RSS support republication of feeds. Because the technology is fairly new, the laws and legalities are still murky. It is assumed that content in RSS is protected by copyright laws but let us not forget the Internet is global and their is not a centralized body governing what is right or what is wrong. Not only does law and technology collide the laws of different countries, those creating the feed and those displaying the contents of the feed may contradict each other. It is for this reason, I would advise that publishers using RSS to assume that the contents of their RSS feeds will be syndicated and replicated.
Tips and Tricks to Protect Your Feed
That is not to say there are not things that can be done to protect feeds. At the end of the day being proactive is the best way to protect intellectual property. Part of feed protection is ensuring that appropriate credit is given, this can be arranged by including a copyright assignment in the final line of the Item Description field. Additionally you can include links back to your website in the Item description field.
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Use teaser copy in the RSS feed's Item description field, linking back to your website which contains the full contents of the post. At the end of the day, protecting the contents of a feed can be daunting and limiting. Controlling your contents to ensure appropriate credit and links are included is critical.
ABOUT THE AUTHOR Sharon Housley manages marketing for FeedForAll http://www.feedforall.com software for making, editing, publishing RSS feeds and podcasts. In addition Sharon manages marketing for NotePage http://www.notepage.net a SMS and text messaging software company.
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Business Website Content Copyright Scare
by Joel Walsh
It seems everyone who has a website is worried about having their copyright violated by web content thieves. But are web content copyright violations really such a big problem? True, web content theft has the potential to destroy the web completely if taken to extremes. What would be the point of creating anything if it were immediately stolen? But by the same token, shoplifting has the potential to destroy retail if taken to its logical conclusion. Yet that hasn't stopped chain stores from reaping a fortune. As in the shopping mall, so on the web: the system still works because the vast majority of users don't steal. One of the biggest hidden risks of web content theft is in fact that webmasters will overreact to the perceived threat. Could copyright theft fears create an atmosphere of mistrust among publishers, just as phishing and fraud have created an atmosphere of distrust among web users? While we are nowhere near that point yet, it's still worth giving the hysteria a reality check before it gets out of control. Dangers of Obsessing over Web Content Theft and Internet Copyright Violations
1. Unnecessary Web Content Copyright Registration
Some paranoid webmasters have actually gone to the trouble and expense of registering the copyright of their work with the government--often at the urging of
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paid services that charge a hefty fee. Yet copyright registration provides no protection against theft. It only provides statutory damages if somehow you ever take the thief to court, AND he or she shows up AND can pay (unlikely). Copyright registration not only costs money. It also takes time. If everyone were to register copyright, the flow of information on the web would be impeded.
2. Chilling Effect of Web Content Copyright Violation Paranoia
Some extremely paranoid website owners have stopped publishing new content--a guaranteed Pyrrhic victory if there ever was one.
3. Wasted Energy and Resources
In short, paranoia over web content theft distracts crucial energy from the creative process of building a website. Every moment you spend wringing your hands over web content theft is a moment you aren't spending building your site.
4. Mostly Fueled by Ignorance of the Real Internet Copyright Situation
Much of the anxiety around internet copyright violations is caused by three groundless myths about the dire consequences for your website if you are a victim: a. internet copyright violations are hard to pursue (thanks to search engines, copyright violations are easier to identify and punish than in print); b. your site will suffer a duplicate content penalty in search engines; c. content theft will completely destroy the unique value of your website. To realize how groundless the last two fears are, you only have to look at any newspaper website, stuffed with syndicated content from the newswires.
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In short, though website content theft and other internet copyright violations corrode the ties that bind the web together, they must not distract from the real business of the web: sharing information, ideas, and art. Keep publishing new content. If you don't, the web content thieves have won. ABOUT THE AUTHOR Joel Walsh is a website content writer.
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Copyright Infringement
by S. Housley
I've always been of the opinion that competition is a good thing. It encourages all of us to be better and make better products. While it might be true that imitation is the sincerest form of flattery, copying someone else's work is simply wrong. We recently came across a competitor using our sales copy. The competitor was using a web graph showing the traffic on one of our sites, along with our sales copy to promote their competing application. Digging a little further, I realized that their competing application was, in both form and function, identical to our application. The competing program contained identical screenshots, custom program icons and our help documentation. While the code of the program was, in fact, different, it was clear that our copyright had been violated. We are not the first company to have our copyright violated and once the initial emotional reaction passed, we took action. Dealing With Copyright or Trademark Violations: Who, What and Where Before reacting, it is important to do homework and research the alleged content violator. Arm yourself with information. Determining the who, what and where will guide you in taking the appropriate steps. Determine WHO is violating your copyright Research the website: do a Whois lookup to determine the site's owner. The
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domain owner can be found by entering the domain into http://www.whois.com and clicking on the link that says "Whois Lookup". If the copyright on software has been violated, check the PAD file for the author and release date. Determine WHERE the website hosting is located Determine where the website is hosted. Web hosts located in progressive countries will be more cooperative in addressing copyright violations. After determining the webhost's location, check the host's Terms of Service (TOS) and Acceptable Use Policy (AUP) to determine the level of cooperation you will likely receive. More often than not, a physical address and detailed information on how to report an abuse claim will be found in the webhost's terms of service. Determine exactly WHAT violations have occurred When determining if a copyright violation has occurred, it is important to go back to the question of what constitutes a copyright violation. Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of “original works of authorship." This work can be literary, dramatic, musical, artistic, or similar intellectual works. Copyright protection is available to both published and unpublished works. It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. It is important to note that ideas can not be copywritten, and while it may be morally and ethically questionable, cloning a software application is not a copyright violation, yet copying a helpfile is a copyright violation. Copyright protection exists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright. Evaluate the violator's work to determine if text, graphics or any of the program or website's artistic qualities are the same as your creative works. Print hard copies of any documents and save electronic
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versions of web pages and executables. Capture screenshots of offenses, save documentation or the Help file that contains any duplications of text. Enter the URL of the offending website into http://www.archive.org to see the website's history and determine a timeline during which violations occurred. Look and feel can be subjective, try to focus on obvious or flagrant violations. Copied text or Help files is obvious when filing a complaint with web hosts or other third parties. What is Next? If you feel your copyright has, in fact, been violated there are a number of steps that you can take. Contacting third party service providers is a good starting point. Make a list of the providers with whom you can contact to report the violations. 1. Hosting 2. Online Ordering 3. If Software, Download Sites 4. Associations or Organizations Aside from service providers, consider using existing relationships with parties who have a mutual interest or relationship with the other party. Often, knowing key people can result in a rapid response and increased dialogue with the purported offender. Send simultaneous emails to each of the parties identified. Include details of the violation; using a PDF that displays screen captures or copies of text violations with website pointers is helpful. In the email, explain the action you wish to occur. If you want the web host to remove the website, say so. Also, ask that they keep you apprised of the situation. In most cases you will receive responses from webhosts or registration services that require you to provide additional details so that the infringement can be investigated. It may seem obvious to the copyright holder, but the web hosts typically have a contractual agreement with their clients and are legally obligated
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to research any infringements before removing hosting or registration services. Send a Cease and Desist letter and an email detailing that a copyright has been violated, include a reasonable deadline by which the offending copy or application should be removed. It is not necessary to provide the offender the details of the violation, as it is likely they are already aware of the offenses that have occurred. These actions will generally open a dialogue with the offender. If the offender ignores requests to remove the material that infringes on your copyright, pursue action with third party services. This will likely get the offender's attention. Artists, developers, and writers all work hard to create unique material and copyrights should be respected by all. ABOUT THE AUTHOR Sharon Housley manages marketing for FeedForAll http://www.feedforall.com software for creating, editing, publishing RSS feeds and podcasts. In addition Sharon manages marketing for NotePage http://www.notepage.net a wireless text messaging software company.
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On Writing: Recipes & Copyright Law
by Pamela White
As editor of an ezine, "Food Writing," I received a nice email a while back that included a question about writing recipes and copyright protection. This topic causes confusion about writers, and food writers, in particular. Here's the concise version of all you need to know about copyright laws and food writing. 1. U.S. copyright laws protect intellectual property with the purpose of encouraging artistic endeavor. Any original work is protected by copyright laws as soon as it is written or recorded. You don't have to do anything to protect your original work but you may want to register it with the U.S. Copyright office. This is the only way you will be able to go to court for compensation if your work is used or stolen without your permission. 2. Copyright laws do not protect lists however, so your recipe's list of ingredients is not protected. 3. The rest of the recipe you have developed and written down is copyrighted. This includes your directions, cooking tips, and personal preferences as you write them in your own words. If you have an idea and tell someone about it, and that person writes it down and has it published, you are out of luck. If you write down your recipe then it is protected by copyright laws.
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If you take the list of ingredients (say for egg and olive salad) and write up, in your own words, how to make it, then, by law, you have an original recipe. I do recommend that if you are inspired to create a recipe based on a restaurant's signature dish or a recipe from a beloved cookbook, give credit to the source in a way that fits in with your recipe: "Last summer, I was so inspired by the white chocolate cake at The Lemongrass that I created a low-fat, vegan version for my friends." If you are publishing a newsletter, website or cookbook and want to use someone else's recipe, get permission. Write to the cookbook's publisher and include the cookbook's information, the recipe and page it's on, and in what context you will be using the recipe. You may be given permission to use it, or charged a fee. You may be denied permission. (If you are reviewing a cookbook, the author or publisher probably included a letter allowing you to include several recipes in your review.) Do not write for a website or publication whose editor exhorts you to "just take recipes from cookbooks and reword them a little." I was offered a job doing that very thing for a site that needed recipes. They claimed that if you change a few words in the directions, "we can't get into trouble." Personally, I wouldn't write for someone who thinks narrowly avoiding being sued for copyright infringement is a strategy for business success. To recap: your list of ingredients cannot be copyrighted. The directions and other information can. Practically speaking, this allows every food writer in the world to publish traditional recipes, home cooking favorites and simple recipes. Ideas cannot be copyrighted but works that are in a publishable format (written, recorded) are protected by copyright laws as soon as they are put in that format. I have also had writers take issue with my writing on copyrights and recipes,
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stating that they are compiling recipes, clipped from magazines, for publishing in cookbooks. I know that a traditional publisher would never allow that, unless all permissions are in order. However, the ease of self-publishing today allows writers to often mistakenly take the step of violating a magazine's or author's rights. The unpleasant result could include being sued for damages, a thing most writers cannot handle professionally or financially. When in doubt, do some more research on rights, and visit: www.copyright.gov. © Pamela White ABOUT THE AUTHOR Pamela White is the author of over 600 published articles, short stories and essays, and publishes "Food Writing" at http://www.food-writing.com and "The Writing Parent" at http://www.thewritingparent.net. She teaches online writing classes at both sites and invites readers to subscribe at the sites.
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Musicians & Copyrights: What You Need to Know
by Jason Cole
As musicians and songwriters, we’ve all wondered what it takes to protect our creative output from theft or plagiarism. That’s the point when copywriting our work becomes a concern. Why would anyone want their hard work to go to waste if we could somehow protect our creative property? The first portion of this article will go into detail on what exactly a copyright is and how it affects musicians and songwriters.
What is a copyright?
By definition, a copyright is the exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something, i.e. music, artwork, literary work. Basically it is legal protection for the authors of creative works, ensuring protection and legal authority over their creations. The original purpose that copyrights were invented for was to promote and protect the progress of science and other useful arts by securing the exclusive rights of the creator’s creations, for a set time. This is usually for as long as the author lives, plus 70 years after they die. The 70 year copyright term extension is also known as the Sonny Bono Copyright Term Extension Act. These exclusive rights include the following: 1. The right to reproduce said work 2. The right to distribute said reproductions 3. The right to prepare derivative works based on the original work
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4. The right to publicly perform the work 5. The right to display said work 6. The right to perform the work live via digital audio transmission (applies mainly to sound recordings)
How do I copyright my songs?
If you have recorded or written down your song or song lyrics, then basically they’re copyrighted. When someone applies to the U.S. government for a copyright, it means that they want to formally register ownership of their copyrighted material. The first step of this process is with a notice of copyright. This notice informs the public that your work is protected, identifies the owner (you), and shows the year of first publication. Formally securing your copyright will benefit you legally, if there ever is a dispute concerning your copyright, so this is essential. In order to legally secure your copyright, you need to send a few things to the U.S. Copyright office.
These 3 things are:
1. Application form. ( You can find the form at http://www.copyright.gov/ ) 2. A $45 filing fee 3. A non-returnable copy of your work, for inclusion into the U.S. Copyright Office archive Anyone who the author of the work authorizes can register copyrights. In the music industry, most copyrights are registered by a publishing company. This is just a basic primer on copyrights for musicians, but I feel that it should give
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you the necessary information needed to go ahead and start copyrighting your songs. In conclusion, I feel that every musician, professional and amateur, should take the steps to have their music copyrighted. All in all, it will not hurt you, but it definitely does have the potential to benefit you. ABOUT THE AUTHOR Jason Cole and DiskFaktory Jams offer free downloadable music videos and music lyrics. Get the information you are seeking now by visiting DFJams.com.
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The Inside Scoop on Ghost Writing and Copyright
by Julie Ann Amos
Ghost writing sounds like cheating, but it isn’t. Hiring a ghostwriter for a book, speech or article is common practice and very acceptable; in fact, some experts say that up to 40% of all published books are ghostwritten. It may not be acknowledged as such, but ghostwriting is a standard practice for all sorts of writing. It’s really nothing more than freelance writing, a career at which many good writers excel. For simplicity, the remainder of this article will refer to ghostwriting a book - but remember it's not just about books. Just about anything that you need written can be ghostwritten. We ghost write a great deal of magazine articles, ezine content, newsletters, and website and internet articles - all of which the client is free to publish under their own name.
WHAT IS GHOSTWRITING?
Ghostwriting (sometimes written as ghost writing) is when a freelance writer is hired to write a book (or another project) for someone else and upon completion that other person gets credit as the author. While this sounds like cheating, it really isn’t because the ghost writer often (but not always) works with the author and uses the author’s own ideas and story. Most of the time, for a large project such as a book, the ghostwriter will conduct a series of interviews with the author, which are recorded and transcribed. Depending on the type and size of the book to be written, these interviews may take place over the course of a few hours, a few days or a few weeks.
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The ghostwriter then uses this information to write the book, conferring periodically throughout the writing process. Once the book or article is complete it becomes the property of the author and they own the copyright on the work. For short articles, we very often work to write projects with nothing more than titles to go on as a direction, and ghost write the entire thing with little or no reference to the client. It simply depends on how you want to work and how much input you want to have.
WHY HIRE A GHOSTWRITER?
You may have any number of reasons for hiring a ghost writer. Perhaps you don’t have the expertise to write a book, or maybe you don’t have the discipline it takes to work consistently and regularly on the project. Another common reason might be that you simply don’t have the knowledge and experience that it takes to structure a book so that it’s interesting and readable. By far the most common reason for hiring a ghostwriter is that you just don’t have the time it takes to write. It’s not at all unusual to work 10, 11 or 12 hours a day at your regular job, which leaves very little time for you to spend on a writing project. Yet you still have the idea and the inspiration to capture something of yourself in written form, so you start looking for ways to make it happen.
WHAT KINDS OF BOOKS DO GHOSTWRITERS WRITE?
You might be surprised at just how many different kinds of books can be ghostwritten. A few examples include: • Autobiographies and biographies • Stories of inspiration or accomplishment • Self-help and personal development • Business and entrepreneurial advice • Spiritual growth
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• Extraordinary stories of overcoming adversity or illness • How-to or instructional information • History and famous events • Memoirs • Current events • Novels and all forms of fiction
WHAT ABOUT COPYRIGHT AND ROYALTIES?
Understanding copyright issues is pretty easy when it comes to ghostwriting. Put simply, the ghostwriter agrees that the author owns the copyright (sometimes misspelled as copywright or copywrite) to the finished work, regardless of whether or not the ghost writer is acknowledged in the publication. As far as royalties are concerned, these too are assigned to the client/author rather than the freelancer. Sometimes a freelance writer may be willing to negotiate a lower fee in exchange for a portion of the book royalties or even some form of acknowledgement on the book cover, but this is not always the most beneficial arrangement for the author or the freelancer.
HOW DO I FIND AN EXCEPTIONAL GHOSTWRITER?
A lot of people claim to be experienced ghostwriters, but very few of them are actually skilled in this type of writing. It takes an exceptional writer to successfully ghost write a book, but there are other important skills as well. Your ghostwriter must have strong interviewing skills in order to effectively draw out your ideas and story concepts. He or she must understand how to structure a book so that it keeps the reader interested and engaged, and be able to write in a style that captures your personality rather than their own. You also must find someone who is unbiased and can be trusted to maintain confidentiality no matter what.
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At Exquisitewriting we have access to ghostwriters literally from across the world, all of which have outstanding skills. Whatever your needs may be, we can help by matching you with one of our professional writers who will make your project shine.
HOW MUCH DOES A GHOSTWRITER COST?
The cost of hiring a ghostwriter will vary depending on the scope of your project and the experience of the freelance writer. As with most things, you’ll get what you pay for in the long run. Remember that your book reflects you and you want your readers to connect with the “real” you. The only way to do this is by investing in a professional ghostwriter who will work closely with you until the end product is exactly the way you want it. ABOUT THE AUTHOR Julie-Ann Amos is an international professional freelance writer/author and consultant. She runs a resource for those in need of freelance/ghost writers worldwide. For more information on her writing services visit www.exquisitewriting.com
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Licensing Your Copyrighted Works
by Richard Chapo
If you’ve taken the necessary steps to register your copyrighted works, you inevitably will have an opportunity to royalties off of them. To take advantage of the opportunity, you will need to be familiar with copyright license agreements.
Copyright License Agreement
A copyright license agreement sets for the terms under which a third party can use your content. In legal language, you will the “licensor” with the other party being the “licensee.” The purpose of the agreement is to set forth the terms under which you, the licensor, will grant the third party, licensee, the right to use, publish or reuse your copyrighted work in exchange for a royalty. Let’s take a closer look at key components of the licensing agreement.
Specific Rights Granted
This may sound obvious, but the agreement needs to detail exactly what copyrighted material can be used. If you have copyrighted articles, are you granting a right to use all of the articles or only certain ones? It is highly recommended that the agreement contain a detailed description of the exact materials being covered. Once you agree upon the exact materials, you need to determine any restrictions on how the material can be used. Can the material be used on the Internet or will it be restricted to a certain niche’ such as manuals or collections of materials? An extremely important issue is whether the agreement grants exclusive or nonexclusive rights. In English, this simply defines whether the licensor can grant
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similar rights to other parties. The grant of exclusive licenses should require a much larger royalty rate since you are essentially betting the third party will be successful.
Licensing Royalties
In exchange for your copyrighted work, the third party is going to make royalty payments to you. The particular amount of the royalty is dependent upon the nature of your work. Issues to consider include: 1) Will you be paid a flat amount or percentage of sales? 2) If a percentage, will it be figured from gross revenues or something less? 3) How often will you be paid? 4) What rights will you have to audit the books of the third party to determine you are getting the full royalty? In some situations, you may decide to forgo a royalty payment. This usually occurs when the third party will use the materials in manner that produces massive publicity for you. For example, many professionals seek to right columns for publications as a marketing tool. Often, they will not charge the publication for the material because the resulting publicity carries enough of a benefit.
In Closing
If you are considering licensing copyrighted content, keep the above in mind. Since such agreements are difficult to break, hiring an attorney is worth the expense. ABOUT THE AUTHOR Richard A. Chapo is with http://www.sandiegobusinesslawfirm.com - providing
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legal services to San Diego businesses.
Patents, Trademarks, Copyrights – What’s the Difference?
by Terry Williamson
Patents
A patent protects inventions through federal law. Inventions are your creative ideas for new products (articles of manufacture), machines, processes, methods, compositions of matter, ornamentation on products, or new plants. An improvement on an existing product may also be patented. Utility patents protect the majority of these. To be patentable, your invention must be useful, novel and non-obvious. Design patents protect the ornamentation on devices. Plant patents protect new plant varieties. Utility patents give you a monopoly (no one else can make, use, sell, offer for sale, or import your invention) for twenty years from the date of filing. Design patents give you a monopoly for fourteen years from the date of issue, and prevent others from making the patented device with your ornamentation on them. (By way of example, a table is a useful device. If you could obtain a utility patent on a table with a flat surface and four legs, you could stop anyone from making such a table. If your table had an unusual ornamental shape or surface pattern, you would be able to prevent others from making tables with that shape or surface pattern.) Plant patents last for twenty years from the filing date of the patent application.
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Infringement of your patent allows you to potentially obtain treble damages plus attorney fees.
Trademarks
Trademarks (or service marks for services) protect names, logos, slogans, and the like through both federal and state laws. Your name, logo or slogan identifies you to your prospective customers as the source of the goods and services that you are offering, and thus constitutes a trademark. There are both federal trademarks and state trademarks. There are also common law trademarks that are not registered at either the federal or state level. Federal trademark applications can be filed even before you are using the trademark name, logo or slogan to reserve your trademark. Other than common law trademarks, federal and state trademarks must periodically be renewed. Federal trademarks must be renewed every ten years. If you no longer use the trademark, you lose your rights. Otherwise, so long as you continuously use and/or renew the mark, you will continue to have rights forever. Infringement of your trademark allows you to potentially obtain treble damages and attorney fees.
Copyrights
Copyright protects your creative artistic expression, but only once it is set into a tangible form. For instance, you create and sing a song. There is no copyright unless the song is recorded or written, because there is no tangible representation of your artistic expression. However, once you write, record, photograph, draw, or otherwise create a tangible record of your artistic expression, you automatically have copyright. That is, you are the only one who has the right to make or sell copies.
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Ideas cannot be copyrighted. They may only be patented. Examples of copyrightable materials are written words, such as in books, magazines, poems, songs; written music; performances of music; paintings and drawings; photographs, videos, architectural plans, website content and layouts, and computer software. Copyright lasts for 70 years plus the life of the creator (or last to die for multiple authors) for new works under current law. If the work is made for hire, then the term is the shorter of 95 years from publication or 120 years from creation. Federal laws provide you with the right to enforce your copyright, but only once it is registered. There is the possibility of obtaining statutory damages of up to $150,000.00, plus the possibility of being awarded attorney fees. Thus, it is very important to register your copyright as soon as practicable.
Other
Finally, trade secret protection is another means of providing protection to ideas. However, the key word here is secret. Let someone who has no need to know in on the secret and it is no longer protected. Trade secrets are most suitable to keep secret formulas or processes protected. ABOUT THE AUTHOR Thomas R. (Terry) Williamson III, Ph.D., Registered Patent Attorney Williamson Intellectual Property Law, LLC 1870 The Exchange, Suite 100 Atlanta, GA 30339 770-777-0977; http://www.trwiplaw.com
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U.K. Copyright Law: A Quick Guide for Freelance Writers
by Sharon Hurley Hall
As a freelance writer, ideas are your bread and butter. Getting a commission means revealing your idea for a great article to an editor or someone else. There's no way around it, but how can you prevent people from ripping you off? Here's what you need to know about UK copyright law. In the UK, copyright is an automatic and unregistered right. That means there's no need to apply specially or fill in any forms. Copyright takes effect as soon as certain works (this term applies to all copyright protected material) are created and there are nine types of work that enjoy this automatic protection. These are literary work (including newspaper articles), dramatic, musical, artistic (photos, drawings, diagrams, maps etc), sound recordings, films, broadcasts, cable programmes and published editions of works. All of these are known as intellectual property. Intellectual property is a bit like real estate - it can be bought, sold, transferred and inherited, though only with your written permission. The key thing to remember as a writer is that ideas themselves are not protected but the way ideas are expressed is protected. So if you think of an idea for an article, that isn't protected; when you write it, it is. It's the information you select and the way you arrange that information that makes it unique. In order for material to have copyright protection it has to result from independent intellectual effort. In other words, you must have put some work into it. You'll need to be able to prove this if challenged, so although it's not obligatory, you can protect yourself by sending a copy of your work to yourself by recorded delivery and leaving it unopened. Recorded delivery post is date stamped so you'll be able
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to prove that your work existed on a particular date. Copyright lasts for the duration of the author’s life plus 70 years for literary, dramatic or musical works. Different periods apply for films (70 years after the last to die of the director, screenplay authors and musical director), sound recordings (50 years) and published editions (25 years). People are allowed to publish excerpts from your copyrighted work for the purpose of news, review or criticism. This is known as fair dealing. Works used in this way should be properly acknowledged. When you give someone the right to publish your work, you are assigning that right temporarily (a bit like renting out your house). As a writer, you'll want to avoid signing away any of your rights permanently. Instead, be clear on what rights you are assigning. First serial rights are normal. This gives the publisher the right to publish your material first in whatever country or region (for example, the UK or US) the rights apply to. Once the material has been published, all rights revert to you. Some publishers will also request online rights and the right to keep your work in an online archive. You'll want to make sure these rights are for a limited period or are non-exclusive, so you can make the most of your material. A key term to be aware of is moral right. This is the right to be credited as the author (have a byline) and to object to alterations or errors which might damage your reputation (known as derogatory treatment of your work). It also includes the right not to have work falsely attributed to you. In other words, no one should say you wrote something if you didn't. So what do you do if someone tries to pass off something you've written as their own work? If your copyright has been breached you can take the infringer to court but beware. There are two things that could damage your case. The first is if the person commits innocent infringement, which means the person genuinely didn't know you owned the copyright; the second is if you have previously allowed someone to use copyrighted work without complaint. This is known as acquiescence.
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Summary So there you have it: the lowdown on UK copyright law. In essence, freelance writers need to be aware that their written work enjoys automatic copyright protection, that they are entitled to be credited as the author of any work they right, that they should only assign limited rights to their work and that they have the right to sue if their copyright is infringed. ABOUT THE AUTHOR Sharon Hurley Hall gives writers advice on how to get paid to write. Sharon is a freelance writer, ghostwriter and editor who writes on freelance writing skills and writer promotion for InspiredAuthor.com. For more information or to contact Sharon, visit WWW.doublehdesign.com.
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Determining Ownership of Copyright & Software
by Leigh Ellis
A fundamental question that arises in many disputes is the most obvious - who owns the copyright in the software? Legal ownership and legal advice in most cases may be determined by reference to fundamental copyright principles. Determining the first owner of copyright is one of the key steps in determining whether a particular form of work under the Act is qualifies for protection in the United Kingdom. The rationale set out below applies equally to photographs, imagery, multimedia works, graphic designs, authored material, and artistic works.
Copyright Legislation
The Copyright, Designs and Patents Act UK, clearly states that the first owner of copyright in a work is the author of the work. Due to the structure of the law, the author of a work is not necessarily the first owner of copyright. The author is the person who created the original protectable elements of the work, or played a nontrivial role in creating the work. Usually this is the person who reduces the idea to a material form, but is not necessarily the case, for instance where a person dictates a letter or other material, which is reduced to writing by a stenographer. Copyright is owned by the person dictating the material. Ownership is qualified by the factual circumstances in which the work was authored. Where the copyright work is a literary, dramatic, musical, artistic work, or a film, and an employee authored the work in the course of their employment, the employer is the first owner of any copyright in the work subject to a written agreement to the contrary. So, if the person made the copyright work in the course of their employment, their
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employer is the first owner of copyright. The next step to determining ownership is whether copyright has been assigned by the first owner to another legal entity. The generally accepted meaning of employment is a relationship where the employee has agreed that in return for some form of payment, they will provide their own work and skill in the performance of their services; they will be subject to another’s control of a sufficient degree to constitute an employer; and the other terms of contract are not inconsistent with the type of provisions found in employment contracts. If the contract falls within this description, the work must still have been created in the course of the employment under that contract.
Software Licenses and Assignment of Copyright
The Copyright, Designs and Patents Act states that copyright is personal property and is transmissible by assignment, testamentary disposition or operation of law. The law is brutally clear in relation to assignments of copyright: "An assignment of copyright is not effective unless it is in writing signed by or on behalf of the assignor." So, if there is no document assigning the copyright, there is no assignment of the copyright in the vesting work, unless it has been transferred by a testamentary disposition (the first owner of copyright died), or some other circumstance caused the ownership in the software to change - for instance the owner was a company and that company entered liquidation or administrative receivership.
Consequences of Copyright Ownership
Most commercial software is authored by persons working for a software house that has identified a need in the market, and software is written (i.e. authored) to penetrate that market segment. The software house would be the first owner of copyright. To bring home the significance of this, the corollary from this rationale drawn
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from the law set out in the Copyright, Designs and Patents Act is this: if an independent contractor has been engaged to write and supply software for a customer (or any other work protected by copyright), unless the contract is in writing (or there is some other document dealing with copyright), copyright cannot be assigned, and the independent consultant maintains copyright ownership. Any money paid for the software will probably be considered a license fee to use the software, in the same way as when one purchases a book. When one purchases a copy of a book, one purchases the physical copy of the book and not the copyright vesting in it, which would otherwise entitle the purchaser to print the book commercially.
Exclusive Rights of Copyright Ownership
Copyright ownership brings along with it all the benefits of ownership of copyright - the power to prevent others from reproducing the work without the licence of the owner of the copyright.
Legal Advice - Complications and Complexity
Legal advice, legal issues and disputes though are rarely determined on such a simplistic application of the law. Legal advice is complicated by the possibility of joint ownership in copyright works, which is assumed for films under the Copyright, Designs and Patents Act. Indeed beneficial rights may have accrued in equity, such that the person who engaged the software house to write the software may have superior rights. One of the indicia that may displace the first owner of copyright in equity is whether the consultant could reasonably have been expected to exploit the work in their own right. In high value software developments, this is rarely going to be the case. This is but one factor that may be taken into consideration in the assessment of first ownership of copyright. The answer relies on the factual matrix of development project. Again, other forms of copyright works, namely cable programmes, broadcasts and published editions are treated differently. The sensible advice is to speak to your
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legal advisor before taking legal action or making wild unsupportable statement as to ownership, as every set of facts is different. Ensure that the surrounding circumstances do not give rise to an equitable right in the software or other copyright work.
Managing Risk in Intellectual Property Transactions
Risk in transfers of intellectual property is by and large managed by contract. Rather than granting what is known as a mere license - which is in effect a licence revocable at will - properly managed transactions with dealings in intellectual property should involve granting a contractual licence, in writing. One of the main purposes of these contractual licenses to avoid the risk of a mere licence being implied - where the licensor may terminate the license at will. Managing legal risk and obtaining legal advice is about minimising risk and maximising legal certainty. Contractual licenses involve entering into a formal, legally binding agreement that satisfies the rudimentary requirements of contract law. Namely, that a reasonably certain offer has been made by one party and accepted by the other; the parties intend to be bound by the contract; consideration (i.e. a promise that has value) moves from both parties. This last requirement in the context of software licenses is usually characterised by the grant of the license by the licensor and the payment of money by the licensee. Such an approach is geared to avoid or narrow the possibility of disputes by the fact that the deal has been enshrined in permanent form and on specific terms. On a final note, the duration of copyright protection is calculated by reference to the author of the copyright work, rather than the first owner. ABOUT THE AUTHOR For more information and obtaining legal advice on technology contracts, contact Leigh Ellis at GIllhams Solicitors. Leigh is specialist information technology and intellectual property lawyer in London. He commenced life as a software engineer after completing an undergraduate degree in computer science. Learn more at http://www.gillhams.com/legalservices/technology.cfm and http://www.gillhams.com/lawyers/leighellis.cfm.
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How to Give Notice of Copyright On Your Works
by Richard Chapo
The use of a copyright notice is no longer required under U. S. law, but you should still give notice whenever possible. Because prior law did contain such a requirement, however, the use of notice is still relevant to the copyright status of older works. Under the 1976 Copyright Act, creators of covered works were required to give notice of copyright on the work in question. This requirement was eliminated when the United States signed onto the Berne Convention in March 1989. You should give notice of copyright whenever possible because it puts the public on notice that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if a proper notice of copyright appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then the defendant can’t claim innocent infringement as a defense. Innocent infringement occurs when the infringer did not realize that the work was protected. The use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office.
Form of Notice for Visually Perceptible Copies
The notice for visually perceptible copies should contain all the following three elements:
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1. The symbol © (the letter C in a circle), or the word "Copyright"; 2. The year of first publication of the work. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful article; and 3. The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized. Here’s an example: © 2002 Jane Doe
Position of Notice
The copyright notice should be affixed to copies in such a way as to "give reasonable notice of the claim of copyright." The three elements of the notice should ordinarily appear together on the copies or container.
In Closing
You work hard to create books, articles, music and other items. Make sure you protect them by giving copyright notice. ABOUT THE AUTHOR Richard A. Chapo is an attorney with http://www.sandiegobusinesslawfirm.com providing legal services to San Diego businesses.
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What Copywriters Need to Know About the Proper Use of Copyright
by Chris Marlow
I was recently approached by a copywriter who was confused about the proper use of copyright. He explained that the client had hired him for work, then canceled the job part way through, paying him for work done to date. Perhaps because the work was unfinished, and thinking there may be some future use for it, the copywriter expressed that felt he should retain copyright, and was perplexed when the client got into a snit about it. I understand the idea to save good work that never got published, hoping to "recycle" it in future jobs. For years I hung on to a two-inch think file of unused concepts. When a new job came along that required concepting, I'd leaf through the folder looking for something that would "fit" the new challenge. Alas, I never did find a perfect fit between an old concept and a new job. And one day I realized I never would. That's because every job is unique. Every product is unique, every audience is unique, every marketing objective is unique. The strongest concept would once again have to come from my head. I threw out the contents of the file and never looked back. So the lesson learned is that if you can't even recycle a concept, you'll never be able to recycle copy, which is much more granular. Therefore it makes no sense to try and retain copyright; if your work is "for hire,"
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meaning that you're being paid to do the writing, you can't retain copyright anyway. The United States Copyright Act gives the purchaser of the work sole copyright. To understand the difference, you, the copywriter, would retain copyright of a work you did not do for hire. For instance, no one is paying me to write this article. So I'm able to retain copyright, and market the article as I see fit. One final important note about copywriters and copyrights. You do retain copyright until the work is paid in full. So use this fact to your advantage. Make sure your Fee Agreement points out that you will retain copyright until paid in full. It's a powerful way to use the work-for-hire copyright law to your advantage; I'm sure that having this clause in my own Fee Agreement has saved me some grief over the years. ABOUT THE AUTHOR Award-winning copywriter Chris Marlow publishes a free newsletter for freelancers who want to build a successful business. Visit: http://www.freelancersbusinessbulletin.com/ © Chris Marlow, all rights reserved
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Experienced Copyright, Patent and Trademark Attorneys May Be A Great Help
by Jessica Deets
If you're of the creative type, it's quite likely you've made something you'd like to protect from others. Whether it's the creation of a novel, a new fabric softener or you're trying to launch a new business that will have its own unique brand, hiring an attorney to help may be in order. Since copyright, patent, trademark attorney choices can be many, it's a good idea to know what you're looking for in advance. Before you get started looking for an attorney, it's a good idea to understand the differences between a copyright, patent and trademark. They are quite distinct and a single attorney may not in fact handle all three, but some might or at least their firms will. A copyright is something that's meant to protect a piece of "intellectual property" from theft or plagiarism. The end product can be a written work, an image, a movie, television show or even song. Copyrights are desirable to have on most property that is created for financial gain or even personal enjoyment since others may decide to "borrow" the idea and cash in on it for themselves. Some sources will say a copyright can simply be claimed, but in the case of extensive works such as novels or movies, it's a good idea to seek legal advice to ensure the copyright will hold up in court. For items such as movies there are even locations to file scripts on record to prove the origins. A patent generally is issued for a product. The patent can cover ingredients, design, manufacturing secrets and more. In general those who seek a patent have created a new product or concept for one and they want to protect it from idea thieves. By holding the patent a private inventor can even protect him or herself from theft
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while marketing the idea to companies for manufacture. Since this tends to involve complicated government paperwork, legal advice is always a good idea when seeking a patent. Trademarking is generally given to a specific brand name. Food companies, toy makers, computer manufacturers and a whole host of others tend to have trademarks on their official name and the products within their lines. Here, too, legal advice is smart to ensure the process is completed correctly and work created or names dreamed up are protected from others who may choose to use them. When looking for a good attorney to handle any of these types of circumstances, it's a good idea to go with one that knows the field. Check credentials and be certain the area of expertise matches your needs. If you're unsure who to hire, check with your state or local bar association for recommendations of lawyers who handle patent, copyright and trademark clients. Although they won't be able to tell you specifics about a particular attorney, they can tell you if the people are in good standing with them and if they've ever had any complaints filed. Hiring a lawyer is a big deal, but when it comes to protecting ideas, works and brand names, it just makes sense to ensure the paperwork is handled correctly. ABOUT THE AUTHOR Jessica Deets researches the internet and writes information to help people. You can find more patent news and information at http://www.bestpatentnews.com
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Protecting Intellectual Property
by Tim Bryce
"Lawsuits primarily benefit the attorneys and nobody else." - Bryce's Law
INTRODUCTION
The protection of intellectual property should be a significant concern to all Information Technology organizations. Without protection, commercial hardware/software vendors would quickly evaporate as others would inevitably steal their designs and programs. Corporate developers would also suffer if their ideas, inventions, and programs were misappropriated thereby causing them to lose their competitive advantage. In fact, our corporate landscape and standard of living would be radically different if we had no such protection. Fortunately, the framers of the U.S. Constitution were wise enough to implement legislation safeguarding the authorship and ownership of literature, art, and inventions, thus causing the United States to flourish in the arts and sciences. But the advent of the computer caused us to reconsider how we safeguard such property. For example, the concept of a computer program has been a bit nebulous to some people; should the source code be protected by copyright? What about the object code (executable)? Attorneys have been debating this subject over the last thirty years and there is still general confusion in the field. In 1974, MBA embarked on our own lawsuit to protect the "PRIDE" methodology. This was a lengthy legal battle which took the courts into unchartered waters. At the time, "PRIDE" was nothing more than a methodology implemented with printed manuals and forms (no software support at the time). To safeguard our product, our lawyers drafted a standard nondisclosure agreement which all
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prospective buyers would sign prior to our sales presentation. Further, our contracts included similar verbiage instructing the customer to safeguard the physical embodiment of the product and not to divulge it to unauthorized third parties. We were contacted by Arthur Young & Company in 1974 to conduct a "PRIDE" sales presentation for one of their consulting clients in Milwaukee, Wisconsin; the Harley Davidson Motorcycle Company (then a division of AMF). The attendees signed the nondisclosure agreement and the presentation was conducted as usual. Following the presentation, MBA was informed that Harley wouldn't be purchasing our product, and that Arthur Young would be developing a similar methodology for Harley instead. This made MBA suspicious, particularly since one of Young's consultants was a former "PRIDE" user. Consequently, MBA initiated a lawsuit over misappropriation of trade secrets. This turned into a long and ugly legal battle which lasted eight years. Basically, the lawyers for the opposition contended that since the "PRIDE" materials had copyright notation printed on them, they were in the public domain. In contrast, it was our contention that "PRIDE" was a trade secret, In the end, we won the lawsuit and "PRIDE" was proven to be a trade secret in a court of law. This litigation established many precedents and is often referenced in similar cases; for additional information, see: Chicago-Kent College of Law http://www.kentlaw.edu/perritt/honorsseminar/honorssemts2.htm Library Law http://www.librarylaw.com/ip-kirschner3.html Many years have gone by since the verdict was passed. In 1989, Arthur Young & Company merged with Ernst and Ernst (now called Ernst & Young), the principals of the case have moved on and we no longer bear any ill-will towards the company. Further, "PRIDE" was placed on the Internet in 2004 (with copyright
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notation). As a result of the lawsuit, MBA learned a lot about the protection of intellectual property. I may not be an attorney, but you may look upon this as a convenient primer to protect yourself.
COPYRIGHTS
Copyright is primarily concerned with the authorized reproduction of such things as text, graphics, music, and audio/video recordings. As such, it protects publishers, authors, artists, and designers from unauthorized republication or redistribution of their work. Not too long ago, in order for a copyright to be enforceable, it had to be registered with the copyright office. However, the laws were somewhat loosened in 1976 whereby copyright protection is now effective from the moment the work is first created in fixed form. Although the use of copyright notation is no longer mandatory, it is highly beneficial to include it whenever possible to indicate your work is protected by copyright. Notation typically appears as: "Copyright © 2002 ABC Company" Since computer program source code is written as text, it is a wise idea to add such notation in the source code. But understand this, copyright only protects the work from unauthorized reproduction, it does not protect the author's ideas (which are how the lawyers of Arthur Young argued against us). Although the exact source code cannot be reused, it does not protect the logic of the program. To illustrate, suppose a new employee brings with him some source code from his last place of employment. Copyright protection would prohibit him from reusing the source code, but it wouldn't stop him from using the ideas contained in the program. Unfortunately, most programmers do not like to reinvent the wheel and, as such, frequently reuse source code over and over again. From this perspective, probably every company with an I.T. department is guilty of some form of copyright infringement.
TRADE SECRETS
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A trade secret is much different than a copyright. Basically, it represents some unique formula, design or idea. Perhaps the best known example of a trade secret is the Coca-Cola syrup formula which is strictly protected in a vault. There are essentially two elements for establishing a trade secret; first, that it is a "unique" idea or formula, that it has distinguishable characteristics or properties to differentiate it from others, and; second, that you can demonstrate you are taking effective safeguards to protect it from unauthorized use (hence, making it a "secret"). In the lawsuit over "PRIDE", we were able to successfully demonstrate that "PRIDE" was unique and that we had taken adequate steps to safeguard unauthorized use (our nondisclosure agreement).
PATENTS
A patent is similar to a trade secret in that the inventor has a unique idea or device he wishes to prevent others from producing. To implement a patent, the idea or device must be registered with the U.S. Patent and Trademark Office. A registration process is required which includes a fee. For an invention to be patented, it must be proven to be unique, useful, and not of an obvious nature. If a patent is granted, the inventor is protected from others producing a similar invention for a limited period of time (20 years). The patent is renewable at the end of this period. The computer field makes active use of patents to establish unique inventions and protect them from others For example, IBM typically registers the most patents each year, both hardware and software.
TRADE MARKS/SERVICE MARKS
A trademark is an arbitrary word, name, symbol, or device used to distinguish a particular product. A service mark is similar except it is used to distinguish a particular service. For example, "PRIDE" is the registered trademark of M. Bryce & Associates.
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Like a patent, the trade/service mark has to be registered with the U.S. Patent and Trademark Office. And, yes, a registration fee is required. Notation normally accompanies the trademark to indicate it is registered ®. Use of such notation should be encouraged so that others know your product or service is a trademark. A trade/service mark means no other company can use it to offer a competing product or service unless authorized by the company holding its title. As such, it is closely related to the integrity of the title company. If a competitor uses it, the public will assume they are somehow aligned with your business and, as customers of your competitor, are entitled to the same level of service or quality your business offers. If the competitor fails in this regards, it is a reflection of both your product/service and your company which could damage your business.
CONCLUSION
When MBA was founded, we were very lucky to get good, sound legal advice for protecting our intellectual property. Because of this, I encourage anyone concerned in this regard to seek such advice from a qualified attorney. Another way to assist in the protection of your intellectual property is to enact some form of employee agreement, whereby the employee agrees not to misappropriate your products (such as designs and software), or use other intellectual property without expressed authorization. This puts your employees on notice. Devices such as copyrights, trade secrets, patents, trade/service marks are very helpful for preventing the unauthorized use or distribution of your products. However, if someone really wants to pirate your products, they will. When you catch someone in the act though, try to give them a way out. I always recommend that you try to avoid litigation whenever possible. I find such lawsuits primarily benefit the attorneys and nobody else. But if your livelihood is genuinely threatened, as ours was, then you have no alternative but to use the full force of the
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law. ABOUT THE AUTHOR Tim Bryce is the Managing Director of M. Bryce & Associates (MBA) of Palm Harbor, Florida and has 30 years of experience in the field. He is available for training and consulting on an international basis. He can be contacted at: timb001@phmainstreet.com Copyright © 2006 MBA. All rights reserved.
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U.S. Patent and Trademark Office: Security for your Products, Business & Ideas
by Joseph Savard
People are always coming up with different ways of creating income, it's only natural. Some people will invent all sorts of revolutionary products that change the marketplace forever. If you have a killer idea which you think can result in creating income for yourself, then the most natural thing for you to do should be to market that idea and make a profit from it. Unfortunately, starting a business can be a difficult task. When starting a business you must realize that there are different laws that must be followed. The intellectual property law is designed in order to protect the ideas, businesses, trademarks and inventions of others. Before you start claiming that an idea or invention is yours you must patent it at the United States Patent and Trademark Office. The laws for patents and trademarks are unique so they will require that you use a lawyer that specializes in this type of law. It is also important that before you patent your idea, you learn what the US Patent and Trademark Office (USPTO) are all about. You must know what they do and what their mission is in order for you to fully understand the importance of getting your business, ideas and inventions patented. The USPTO's goal is to strengthen the national economy by implementing laws of
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patents and trademarks. The USPTO is even responsible for advising the President of the United States and its administration as well as the Secretary of Commerce about the implementation of patent, trademark and copyright protection in the country. So basically, the USPTO is responsible for every aspect of intellectual property. The USPTO currently employs around 7,300 employees. Approximately 3,000 of their employees are patent examines. The patent examiners are engineers and scientists who don't have law degrees. Around 400 of their employees are trademark examining lawyers who are responsible for the legal side of things. All of the remaining staff is support staff that assists the main personnel of the USPTO. There are tons of patents from different companies pouring in year after year to the USPTO. In fact, as of March 2006, the USPTO has issued over seven million different patents worldwide and the number continues to skyrocket. When you go to patent your idea you must take in to account that getting a patent can be a complicated process. If you are not familiar with intellectual property law, then you should really consider getting a lawyer that is a leading expert in this field. The lawyer will be responsible for leading you through the step-by-step process for getting your patent with the USPTO. This will make the entire process flow much easier and will save you a boat load of stress. Even the process can be complicated, if you are starting a business or already own one, then you must consider getting a trademark for your business. Your trademark will help people relate your product with your company, you will begin to create "brand awareness."
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Your business should have a unique logo. Your trademark must also be registered with the USPTO in order to protect your business from piracy. The USPTO staff will examine your business logo and name in order to make sure that it is unique. There is a step-by-step process for this which the USPTO will use to examine your business trademark. There of course are also certain rules that they will apply in order to figure out if your trademark is acceptable or not. These are the different types of things that you must take into consideration when you go to get your invention or trademark patented or copyrighted. It is critical that you patent your inventions and copyright your designs in order to protect it from piracy. By getting a patent you are assured that no one will be able to copy it without your permission. If anyone copies your patent or trademark they are breaking the law within the bounds of the anti-piracy law. Protect your business and ideas today, get them trademarked and patented at the US Patent and Trademark Office. ABOUT THE AUTHOR Joseph Savard has been in the business of trademarking for 15 years now and is also the best selling author of the ebook "The Trademarking Handbook" Check out his website for your guide on how to register a trademark now.
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E-mail Anti-Theft: The Battle Against Copyright Infringement
by Mila Levkovsky
Imitation is not always the highest form of flattery. Any creative individual will cringe at seeing his or her work displayed with another person's name in the credits. In the fast-paced field of graphic art, design the dilemma is even more prominent. Artists in all mediums are seeing their work knocked-off by less talented people. Ideas are easy enough to steal when the advertisement you designed is circulated in an online publication, or when a popular web site features the logo you spent hours to perfect. While digital theft is most prevalent in the recording and visual arts, it permeates all creative realms. For writers, protecting words published on web sites and in emails remains a challenge. Digital files and Copyright law Since its inception in 1790, the Copyright law has undergone numerous amendments in order to adapt to the changing technologies. With one goal in mind, to protect the creator's original work, the law still struggles to guard the efforts of writers, photographers, graphic designers and other creative individuals. The advent of the internet and electronic mail has made protecting original material from theft an even more daunting task. In the digital world, stealing someone else's work is as easy as hitting "file, save" or using that handy right-click button on your mouse. Though the Copyright law legally protects an author's original work, internet criminals still easily get away with theft of original content. Over the years,
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solutions have been innovated and adapted in order to provide protection for creative professionals in the realms of Internet and electronic mail. Preventing unintended content theft and distribution Discouraging and disabling theft of original work is vital for a writer's or a designer's success. In an effort to put a stop to copyright infringement, designers, writers and developers have devised several ways to help protect their creative efforts. Though some methods might be industry specific, others can be layered for added protection. Because the copyright law can be easily ignored or bypassed, staying up to date on the latest ways to ward off thieves can be vital not only to your online presence, but also to your career. Watermarks offer basic protection for visual art Whether you are featuring graphics or photos on a web site or sending images through email, the potential for theft in such a situation is high. Virtually any visitor has the ability to save your artwork to his or her hard drive and distribute it freely thereafter. Some creative professionals have found watermarks to be a viable solution to prevent pilfering of their work. A semi-transparent logo or sign featuring the copyright holders' name or business clearly marks the digital property as his/her own. This technique, though fairly simple, can be rather effective in deterring many pesky copy-cats (1). A graphic with a watermark is virtually useless to a thief, making the theft blatantly obvious. Watermarks, however, don't come with a theft prevention guarantee. Those who possess advanced image editing skills and some time on their hands can succeed in removing or minimizing the appearance of the watermark. Digital watermarks: an invisible layer of defense for writers
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Due to the nature of written content and files, authors of written work must look to more innovative approaches at keeping their work protected for copy-cats. Digital watermarks provide this sort of invisible defense. Printed documents often have watermarks that are invisible at first glance, but become detectable when the paper is held up to light. Digital watermarks work in a similar fashion, providing a more discrete alternative to watermarking graphics and documents. This type of watermarking is especially useful for writers, since it is the only way to add a watermarked layer of protection to word documents (2). Some digital watermarking software allows the creator to "fingerprint" their work, which can track distribution of the secured files. Preventing unauthorized email distribution There is a great demand for email communications for creative professionals. Sending portfolios, artwork samples and design ideas are common when working with new and established clients. But by sending your work without email antitheft protection, you are leaving it virtually defenseless to copyright infringement. Anti-theft software prevents the recipient from altering and distributing content beyond the original creator's intent. In addition to disabling copy and edit functions, email anti-theft software allows the author to set the expiration time for a file, as well as disallow printing. Writers can rest assured that the story sample sent to a prospective publisher won't be forwarded to another author. Graphic designers can send high quality mock-ups to clients without the fear of another contractor working off of the original design. An email anti-theft application can provide piece of mind that your artwork or written piece will be armed against theft even when it leaves your computer. Conquering unintended content distribution via email is winning half the battle in
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the digital world; for writers it is an essential solution to preventing thievery since words cannot be easily marked like images. With digital watermarks, email antitheft provides an added, dependable layer of protection. Combined technologies for ultimate protection For writers, photographers and designers alike, realizing the power of publishing their work on the internet means getting added exposure and ultimately attracting new clientele. Though copyright protection legally exists, much of the time this law is difficult to enforce in a highly interactive medium like the Internet; a photographer's images can be displayed on another site without him or her ever finding out. Taking advantage of watermarking protection and email anti-theft software can take the headache out of preventing misuse and distribution of original content. So create that watermark for your original photos, employ digital watermarking technology to track distribution of your files around the internet and utilize email anti-theft software when sending creative projects to potential and existing clients.
End Notes: 1.) For help on adding watermarks to images in Adobe Photoshop, visit Sue Chastain's tutorial How to add a text watermark over a photo in Photoshop 5.5 or higher: http://graphicssoft.about.com/cs/photoshop/ht/apswatermark.htm 2.) More information about digital watermarking options can be found in Doug Isenberg's Digital Watermarks: New Tools for Copyright Owners and Webmasters: http://www.webreference.com/content/watermarks/
ABOUT THE AUTHOR Mila Levkovsky is part of the marketing team at Essential Security Software (ESS), the leading provider of email anti-theft software for small business. ESS has developed a premier content protection and user rights management solution that
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enables small business owners and individuals to securely distribute sensitive email messages.
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Copyright for Fashion? The Discussion
by Fibre2Fashion
The copying of fashion design originals - "knocking off" or "affordable interpretation," depending on your point of view - is a practice that designers may have grudgingly accepted in the past, when less expensive copies took some time to reach stores and only those consumers who could afford the designer-label originals could be the first to follow a trend. This practice is costing designers greatly as more advanced technology makes it possible to see high-quality copies appear in stores before the original has even hit the market. While it has long been the practice of the American fashion industry to knock off European designs, American designers did not copy one another. They registered their original sketches with a trade group called the Fashion Originators Guild, an organization that urged retailers to prohibit styles known to be knockoffs. In 1941, the Supreme Court held that the Guild was an unreasonable restraint-oftrade; the end of the Guild marked the beginning of the knocking off "free-for-all" that we are familiar with today began. It is now common for imitators to photograph the clothes in a designer's runway show, send the photo to a factory to be copied, and have a sample ready within a couple of days for retail buyers to order. Since fashion collections are displayed in runway shows approximately four to five months before they are available to the public, this leaves the fashion impersonator plenty of time to get the copies to stores at the same time, if not earlier, than the originals. Designers assert that design piracy cuts into their longstanding franchise of uniqueness, lowers their sales volume, and ultimately removes incentives for creativity. Sometimes the same department stores that carry the higher-priced version of a
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garment will also sell the lower-priced knockoff, often under the store's private label. Knocking-off is widespread in the fashion industry and even those designers who fume over being copied are not above doing it themselves. Because of the speed with which designs can be recreated, it is not even always clear which designer created the original and which designer simply copied it. This discussion will explore how protection of fashion works fits - or does not fit - into the current intellectual property law framework in the United States. The overall organization of this discussion is a systematic consideration of possible protection for works of fashion under copyright, patent, and trade dress law. This discussion will encompass not only the current state of the law, but also proposals for reform, such as an amendment to the Copyright Act to protect fashion works. The central question is whether fashion design is an art worthy of protection or a craft whose practitioners can freely copy one another. In an industry where many designers come out with similar looks each season - and where inspiration is said to be "in the air" - designers and the thriving knockoff industry are fiercely debating the issue. Another key question: whether knockoffs actually benefit the industry as a whole. Copying, some argue, propels the fashion cycle forward by creating popular trends that encourage designers to move on to the next big idea. In what they call the "piracy paradox," law professors Kal Raustiala of the University of California, Los Angeles, and Christopher Sprigman of the University of Virginia argue that copying makes trends drench the market quickly, driving the fashion cognoscenti to search out newer looks. "If copying were illegal, the fashion cycle would occur very slowly, if at all," While they admit copying can harm individual designers, they say Congress should protect industries only when piracy stymies -- rather than encourages -- innovation. Despite the apparent unsuitability of copyright protection to works of fashion, commentators are often confused by the anomalies in copyright law under which fashion accessories, works of architecture, and computer chip designs are eligible for copyright protection. Some argue that since copyright has already been
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extended to protect the aforementioned items, copyright may be the best legal tool that fashion designers have when fighting design piracy. For example, Robert Denicola has argued that it would be more consistent with the legal principles of intellectual property law to draw the line of copyright with respect to arguably "useful articles" by shaping whether, in the process of creating the item, the designer focused primarily on aesthetic or utilitarian consideration. Such a test would to a great extent improve the odds that works of fashion would be granted copyright protection, as most fashion designers are concerned with the aesthetic rather than the functional aspects of their clothing. The specific extension of copyright to fashion works would have many advantages for designers. First, a copyright owner may seek an injunctive remedy to prevent the impersonator of his or her design from making and selling copies of the original. Second, copyright law allows for the imposing and discarding of the infringing items. Third, the copyright owner can recover damages, either actual or statutory, and also profits. Finally, the copyright owner may be able to recover court costs and attorney's fees. This last remedy is especially important in fashion design cases, as it allows small new designers to take on big manufacturers whose greater power and financial resources would otherwise be an intractable obstacle. Despite these advantages to fashion designers, an amendment to the Copyright Act for works of fashion is not likely to be passed soon. As one commentator concisely
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stated that the current situation of the legislators and courts has a great deal of trouble seeing past the utilitarian function of a piece of clothing. While industrial designs have been the subject of repeated bills, Congress has explicitly excluded fashion works from these bills. For example, while the Design Anti-Piracy Act of 1989 would have protected original designs of useful articles against unauthorized copying, the bill would have barred apparel designs composed of three-dimensional shapes and surfaces with respect to apparel. According to one commentator, this exclusion has no basis in any discernible principle. It was added to help still the vociferous opposition of retailers to the bill." In this current climate of judicial and legislative hostility, copyright protection will probably not be extended to specifically protect fashion works. Fashion seems to be an industry particularly ill-suited to legal restrictions against copying. Copying - or "borrowing" or "reinterpreting" - is prevalent at every level of the fashion industry. When a lower-priced designer knocks off a higher-priced designer's clothing, the copy may be a huge success because it offers more value for the price. But it is the higher-priced designers who are copying each other. Fashion designers labors over their finished product just like any other creator or inventor. It takes hours upon hours of careful effort until a dress with just the right cut or a purse with the perfect design is complete. Why should this hard work and effort not grant the person behind the creation some level of security, allowing them to collect the benefits of their labor? As a matter of Public policy it is generally believed that copycats are good for the economy. The claim asserts that preventing copyright for fashion eliminates the possibility of a monopoly by providing the consumer with lower priced knockoffs. Furthermore it is contended that knockoffs really promote business for the designer by creating a market for a style of fashion. But do we believe this actually? And what's wrong with having a monopoly on fashion? When a consumer spends thousands of dollars on a purse or a dress that others will recognize as a Louis
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Vuitton or Versace, they should be able to enjoy the exclusivity that comes with such a purchase. Knockoffs steal from the consumer of their exclusive right to enjoy a specific product. There are policy based arguments behind the government's resistance to providing a copyright for fashion; ranging from the dislike for creation of monopolies to improving the market. If the designer believes another person infringed his copyright, he could sue those who sell or manufacture the design in any federal court. Those found guilty would face fines of 250,000 or $5 a copy, whichever is greater. To read more articles on Textile, Fashion, Apparel, Technology, Retail and General please visit www.fibre2fashion.com/industry-article. Copyright © 2006 ABOUT THE AUTHOR Fibre2fashion has emerged as a distinctive B2B platform for global Textile, Apparel, Fashion and Retail and allied industries. Fibre2fashion.com offers business solutions, news, articles and information that help to survive and sustain in the most hostile and competitive business environment.
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Points to Stop You Coming Unstuck with Web Design Copyright
by Sasch Mayer
If you are a business owner who has commissioned a web design studio to produce your company web site, there are a few things you need to think about with regards to copyrights, especially if the services of a professional copywriter are involved. The fact is that the copyright to your web site is not automatically transferred to you once the contract has been completed and the site launched; it needs to be formally handed over by the web developer. Whilst the vast majority of professionals will surrender the copyrights to work carried out on behalf of clients, there are a few which attempt to retain these rights in order to cash in on them later, once the site becomes successful. What is more, if a 3rd party copywriter has been contracted to create your site's content, any and all materials created by him or her fall under a separate copyright to the site's code and structure and must be surrendered as such in writing. So how can you as a business owner and customer protect your interests and make sure that what you've paid for actually belongs to you? There are a few steps you can take to protect your interests: 1. The Web Design Contract When entering into a contract with your web developer, be sure that your contract addresses the issue of copyrights and their ownership after the contract has been
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fulfilled. If an outside copywriter has been involved to produce the site's content, then if possible a separate contract should be drawn up clearly stating that sole copyright to any materials produced passes to you after completion and payment. 2. An Onsite Copyright Notice Put simply, your designer puts a notice at the bottom of each page stating: 'Copyright 2006 Your Company Ltd'. Although these have been a standard part of web site design for many years, they are overlooked by a surprising number of clients, so be sure they're included in your site's design. 3. Copyright Meta Tags These are becoming as debated subject in the web design and promotion industries. Whilst many industry experts will tell you that Copyright Meta Tags no longer serve any practical purpose, being counted as obsolete, these tags are still a very effective means of declaring that a web site and all that goes with it belongs to you. The Copyright Meta Tag is expressed as follows (< > brackets have been replaced with [ ] to ensure this code displays properly): [meta name="copyright" content="Your Company Ltd"] 4. The Final Invoice When all is said and done and the site has been completed to your satisfaction, request that the final invoice from the developer clearly states that the purchase price for the work undertaken includes the transfer of all copyrights from web designer to client. Again, this is a seemingly simple step which is overlooked all too often by clients. Similarly, if a professional copywriter has been involved in site creation, be sure to obtain a written statement declaring that all copyrights will pass to you on
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completion of the contract and receipt of final payment. Ultimately, this is a serious issue from the client's point of view. More information about copyrights and other issues can be found at Persephone Copywriting in Cyprus. ABOUT THE AUTHOR Although originally from Canada, Sasch Mayer spent over 15 years living in the United Kingdom before moving to the Republic of Cyprus in 2005. He now lives in Larnaca, and writes under contract to Icegiant Web Design in Cyprus. The IceGiant web site provides quality web services as well as further, non-syndicated articles.
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Copyright Quick Start
by Anthony Bressi
Copyright protection is a very hot topic nowadays. It seems like every time we browse a newspaper there is another article about it. Turn on the television and a famous Actor/Actress or Musician is talking about the importance of it. From Napster and file sharing controversies to famous movie infringement cases, copyright is everywhere. In this article we will define copyright at its simplest, look at the reasons why creative people would copyright something, list work types that can be copyrighted, and finally we will look at some options of how to copyright protect a work and offer some tips.
A Simple Definition of Copyright Copyright protection at its very simplest defines that the creators of a work (a song, software program, etc.) own all legal rights to that work and basically anyone else must gain permission from the creators in regards to use of the work. More particularly, copyright is a form of protection governed by the courts that outlines that the Authors (creators) among other things, may distribute copies of their work, reproduce it, perform or display the work publicly, and prepare derivatives. You the creator may grant permissions to others to use your work, the types of permissions or licenses you grant is up to you. If someone illegally uses your work without your permission you may have the right to seek rewards for damages.
Why Register My Copyright? First and foremost it must be noted that Copyright is secured automatically when
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the work is created in a "fixed form". So for instance, copyright is automatically achieved when a song is recorded to a device, or when Advertising copy is written down. So if copyright is automatic then why file with the Copyright Office? In the United States, US Copyright registration is "an event of public record" that the courts recognize as sufficient to protect/defend a claim. It is likely the single most important artifact when defending ownership. Without it, it can be much more difficult, time consuming, and costly to defend your claim to ownership. With registration you may be eligible for statutory damages in successful litigation. We've probably all heard rumors that sufficient copyright proof can be achieved by simply mailing yourself a copy of your work. That is not true. In regards to this practice the Copyright Office has stated: "There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration." In fact there are no cases on record in the US in that mailing the work to oneself was sufficient enough to defend a claim.
What Types of Works Can We Copyright? The following list is not all-inclusive, but notes some of the most common work types that are eligible for Copyright protection: Songs, Musical Compositions, Books, Computer Programs / Software, Websites, FTP Sites, Semiconductor Chips, Poetry, Speeches, Dissertations, Individual articles, Manuscripts, Compilations, Scripts, Motion Pictures, Music Soundsheet, Booklet & Poster, Theses, Secured Tests, Pamphlets, Advertising copy, Newspapers, Sound Recording (Recordings of lectures, theatrics, etc.), Musical Compositions (including accompanying lyrics), Radio Shows, Television Programs, Periodicals, Directories, Catalogs, Brochures, Reference Works, Games (text used in), Advertisements, Maps, Stencils, Models, Cartoons, Architectural/Mechanical, Drawings, Paintings, Patterns for sewing & needle crafts, Prints, Designs for Jewelry, Fabric, Floor & Wall Coverings, Automated Directories.
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How To Copyright Okay, so by now you know what copyright is, you may believe that it is right for your work, and you have determined that your work can be registered for copyright. So exactly how do you register a work for copyright protection? The good news is that you have several options. Some options can be costly, others very reasonable. Your decision will likely come down to a mix between your comfort level with the registration process and cost. Tip: Before paying for one of the commercial options below you may want to check the number of applications that you are allowed to file for the price you are paying. This is likely more important for someone like a musician that writes a new song every month than it is for an author that writes a new book every few years. Also, find out if the Copyright Office fee, usually $30, is included. Below are your most common options in no particular order. Intellectual Property Attorneys This is usually the most expensive option, but with that cost you get piece of mind. An attorney or his/her legal assistant will ask you a series of questions about the work, they will instruct you in regards to exactly what tangible pieces of your work you must gather in the appropriate form as required by the Copyright Office, and ultimately will ensure that your work gets registered. A good attorney can provide expert guidance. Copyright Software There are a couple of computer software packages, like Essential Software Inc.'s "Essential Copyright,” that provide an easy-to-use software wizard that walks you through the process step-by-step. The software helps you choose the correct forms to file and provides instructions and examples throughout the process. Copyright software packages typically enable you to file an unlimited number of applications with one license. This option is ideal for computer savvy do-it-yourselfers that want to save a buck.
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Online Copyright Services Though typically a bit more expensive than Copyright software packages the offerings are similar. There is a large number of Application Service Providers online that offer copyright services. Most online services offer a wizard-style interface that walks users through the process. Often instructions are provided to help fill out the forms. If you are comfortable with an online transaction of this nature this may be a good option for you, simply go to Google and search on "copyright" and you should see several providers listed. Do-It-Yourself You can download the forms yourself from the US Copyright Office at www.copyright.gov. This is the most economic option available, at the time of this writing the US Copyright Office typically charges $30 per application. You will need to choose the right form for your work type, but the Copyright Office does a fairly good job of organizing their forms so users can find what they need. Browse through their online Circulars for instructions on how to fill out the forms and what materials you will need to send in. With a little research and work you can do it all yourself.
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7 Online Copyright Myths
by Judith Kallos
Possunt quia posse videntur ~ (Latin: They can because they think they can.) One of the most misunderstood issues online has to do with copyright. Both with email and Web site copyright issues. For some reason, as with many things online, there is this incorrect perception that anything goes. However, many are finding out the hard way that when it comes to protecting creative collateral, copyright is law. And, copyright laws can and are being enforced online. No, I am not an attorney. Nor do I play one on T.V. But I can help you avoid potential problems based on guiding clients for over a decade. Hopefully, this effort will help others from finding out the hard way that copyright is alive and well online. 1) "I can right click, save anything online and use it how I wish." This is a perfect example of just because you can doesn't mean you do! Those graphics or files were created by someone out there. They legally attained the copyright upon that file's creation. Without their specific permission to use that file or graphic, you have no right to just take it and use it as you please. Always ask a site owner before you illegally swipe anything off their site. 2) "As long as I note the author's name, I can use their site's content on my site." Although you are being nice and giving credit where credit is due, you still need to ask the author's permission to post their work on your site. The author may not
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want their information posted anywhere off their own site or they many not approve of your site as a venue for their information - that is their choice to make not yours. Always ask a site owner if you can use their content before you put it on your site. 3) "I can link to graphics on other sites so that they display on my site." O.K., maybe you didn't actually download the graphic and put it on your server, but if you are displaying someone else's work on your site without their permission the bottom line is still the same. And, you are using their server's resources to display something on your site. Shame on you! 4) "I can display pages from other's Web sites within frames on my site." Many site owners prohibit their site pages from being framed within another site because it gives the impression that the other site created the information. Many times folks innocently do this so they don't have to send site visitors off their site for information they want to provide. Others do so to precisely give the impression it is content they created. A better option is to link to the information you like and create a new window to open when doing so to ensure your site is still available to your site visitors. 5) "If I only quote a portion of other site's content and link to them I do not need their permission." Again, it would behoove you to have permission to do so. Using only portions allows you to possibly give the wrong impression about the author's overall content and this can be misleading at best. If you want to quote any written work in whole or part you need to ask permission to do so. 6) "If I pay someone to create graphics for my Web site, I own the copyright to those graphics."
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Not necessarily. Unless your agreement with the graphic artist explicitly states that upon your payment all of their rights are then transferred to you, you most likely only have exclusive license to use those graphics. And to purchase the full copyright will cost you a bunch more than simple exclusivity! Understand that the moment anything is created whether it be written or drawn, the creator owns the copyright - that's the law. Over the years I've had clients claim they own copyright just because they paid me to create this or that. It simply, legally, is not the case (and my contract(s) clearly state this - including their option to purchase my copyright if they so choose). Copyright can _only_ be transferred in a written legally binding agreement signed by the creator of the work stating they are transferring their rights to you. Saying you own it because you paid for it doesn't make it legal fact. If you do not have a written agreement specifically transferring the copyright to you, you do not own the copyright to those graphics. 7) "E-mail is not copyright protected once it is sent." E-mail is a written work that once created is copyright protected by the author. This means you cannot post publicly an e-mail sent to you privately. You cannot post private e-mails to your site, to message boards or to your blog without the author's specific permission to do so. Just because an e-mail was sent to you as a private communication does not mean you then own it and can do with it what you like. In addition, e-mail that is posted to a group of people, on a mailing list or Newsgroup does not make the e-mail available for reposting, copying, or any other use - not without the express and written consent of the writer. What's the bottom line with online copyright? Courtesy! Don't assume that you can use, repost or take anything you find online
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simply because you can. Be a courteous Netizen and always ask first! You might be interested to find a DMCA (Digital Millennium Copyright Act) page and policy statement on your ISP and hosting provider's Web sites to handle complaints and reports of the above types of copyright abuse. Take some time to read that information and make yourself aware of your rights and make sure you do not infringe on others. The main resource for all the legal mumbo jumbo on online copyright and the DMCA is on the Government's site @ http://www.copyright.gov. Again, I am not an attorney nor am I providing legal advice. I hope I've informed you of some of the issues that need to be seriously considered by all who are online whether they are creating their own or using others creative or written works. ABOUT THE AUTHOR Judith Kallos is an authoritative and good-humored Technology Muse. Check out her new book: "Because Netiquette Matters! Your Comprehensive Reference Guide to E-mail Etiquette and Proper Technology Use" at http://www.BecauseNetiquetteMatters.com
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Intellectual Property at All Stages of a Company’s Life
by David J. Dawsey, PE, Esq.
Many businesses believe that intellectual property (IP) law only applies to the large corporate giants. Nothing could be further from the truth. Business owners who take the time to educate themselves on the basics of IP will be able to avoid common pitfalls and take full advantage of IP opportunities throughout the life of the business. After all, there are many points in the life of a business firm when the firm and its employees should consider IP matters. Starting Up: The Company's Name You should start thinking of IP issues as soon as you begin thinking about starting a company. While few people think of their firm name as IP that warrants protection, everyone desires a distinctive name that customers easily associate with a particular organization. If a business plans on conducting interstate business then a comprehensive trademark/service mark search is warranted. Obviously, one should always error on the conservative side. You don't want to find out you cannot use a particular name outside the initial state after you have developed a booming business and achieved name recognition. An informed business owner must understand the simple distinctions between trademarks and service marks, as well as distinctions between state and federal registration. First, a trademark is any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. A service mark is any word, name, symbol, device, or any combination, used, or intended to be used, in commerce, to
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identify and distinguish the services of one provider from services provided by others, and to indicate the source of the services. One common misconception about marks is that if a mark is not federally registered then it is not protected. Actually, common law rights arise in a mark from its actual use in commerce even if it is not registered federally or with a state. Common law rights offer less extensive protection than afforded by state trademark registration, which offers less extensive protection than afforded by federal trademark registration. Federal registration has several advantages including notice to the public of the registrant's claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods or services set forth in the registration. Therefore, when forming a company one should file for state mark registration at a minimum, and preferably seek federal registration. Employee Policies and IP Law During the formation stages of a business, one must consider establishing a noncompete policy. Most company's go through tremendous efforts to protect their physical property while paying little attention to protecting their intellectual property, which is often worth far more than a company's physical assets. A company should do everything possible to ensure valuable information such as marketing data, client lists, and other proprietary information does not fall into a competitor's hands. Such information generally falls into the hands of a competitor when they hire away an employee that had access to this confidential information. Non-compete agreements can minimize this threat. A non-compete agreement is a contract between the employee and employer that explicitly identifies what the employee may and may not do when that employee leaves the company. The laws governing these agreements vary from state to state, however, virtually all states require
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reasonableness in the scope and type of information protected. Non-compete agreements are essential for the owners of a company and should be addressed in the articles of incorporation/organization or the partnership agreement. Similarly, key employees that have access to confidential information should be required to sign a non-compete agreement. Ideally, employment should be conditioned upon the signing of a non-compete agreement. However, when key employees and owners are developed from within the company, a plan must be in place identifying when an "up and comer" must sign such an agreement. Some states consider continued employment with the company sufficient consideration to support the enforceability of a non-compete agreement, however, one should always have their attorney draft such agreements and identify procedures that are in accordance with state law. Often it is convenient to require that a non-compete agreement be signed prior to promotion to management or other high-level positions. Generally, low level staff should not be required to sign non-compete agreements unless they have access to information the company needs to protect. Lower level staff members generally do not have access to this information and are not hired away for this knowledge. Additionally, employees expected to sign non-compete agreements often require additional compensation, therefore the fewer employees that really need to sign, the less expense to the employer. In addition to non-compete agreements, management should be required to sign confidentiality agreements. Everyone is familiar with the old adage that "loose lips sink ships." While the confidential information shared among the executives of a business is not likely to sink a ship, it undoubtedly has the potential to cause friction between employees and management and result in tremendous reductions in productivity. It is simple human nature that when one must sign an agreement to keep certain information confidential they will be less likely to disclose the information.
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Copyright Issues Occur in Daily Practice Once the company has been formed, its name and products protected with service marks and trademarks, and appropriate non-compete and confidentiality agreements signed, the focus must turn to IP issues encountered during operation of the business. Business owners often make mistakes regarding copyright law. Copyright is a form of protection provided by the laws of the United States to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works, including architectural works. This protection is available to both published and unpublished works. Copyright protection may be appropriate for the company's web site, marketing material, published articles, installation instructions, user's manuals, and software developed in-house. Patent Law and the Business Owner A patent on an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. Generally, the term of a new patent is 20 years from the date on which the application for the patent was filed in the United States. U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions. The right conferred by the patent grant is "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. There are three types of patents: utility, design, and plant. Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or compositions of matter, or any new useful improvement thereof. Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture. Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plants.
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Business owners must avoid the mindset that they are just applying tried and true principles in carrying out their business. Trade Secrets Business owners should also be aware of the potential for trade secret protection. Consider that fact that a recent study estimates that Fortune 100 companies lost more then $45 billion in 1999 from the theft of proprietary information. Generally, a "trade secret" can include all forms and types of financial, business, scientific, technical, economic, or engineering information. This includes patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing. Protection is available if the owner has taken reasonable measures to keep the information secret; and the information has independent economic value, actual or potential, from not being generally known. Trade secrets are afforded protection both under state and federal law. A protectable trade secret may not be "within the realm of general skills and knowledge" in one's field of business and is something not "readily duplicated without involving considerable time, effort or expense." Therefore, business owners should discuss trade secret matters both with their attorney and clients. Business Owners as Software Pirates? The one IP issue that may get the smallest businesses into trouble is software piracy, both intentional and inadvertent. Unlicensed copying of software by businesses and individuals, known as end-user copying, is the most common type of software piracy found within new businesses. This includes installing software on more company computers than you have licenses for and disk swapping among friends and associates. These activities are illegal and put not only the individual
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performing the copying at risk, but also the company. Software piracy does not only hurt the software companies. A recent survey estimates that software piracy resulted in the loss of 118,000 jobs in the U.S. and approximately $5.6 billion in wages! Every business should have a written policy against unauthorized software duplication. Additionally, software and licenses should be meticulously cataloged and stored in a locked enclosure. You will get caught! All it takes is one disgruntled employee to tip off a software company. Just consider that a recent tip offered to Autodesk through their website resulted in a settlement of close to $208,000 with a consulting engineering firm. Final Issues: IP Concerns in Winding Up a Business Every business must plan for the eventual retirement or discharge of the owners. Virtually every ownership agreement will include the necessary provisions as to how the company will be valued and the method of distributing the leaving owners share in the business. However, owners of businesses having intellectual property should be particularly concerned as to how it will be valued. While intellectual property valuation is a complicated subject beyond the scope of this article, it's not a subject to consider for the first time when dissolving a firm. It should be discussed with your attorney at the outset to avoid litigation when an owner leaves the firm. DISCLAIMER We hope you understand that we cannot possibly give accurate legal advice to all inventors in a brief article on intellectual property issues that should be considered when starting a business. Accordingly, nothing in the above is intended as specific legal advice to any person. Such legal advice can only be given by a qualified practitioner after a careful review of all the individual facts. We urge you to consult us, or another licensed professional, before you proceed.
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ABOUT THE AUTHOR David Dawsey is an experienced intellectual property attorney specializing in the prosecution and litigation of domestic and foreign patents, trademarks, and copyright. David is one of the few patent attorneys that is also a registered Professional Engineer. In addition to his legal and engineering education, David has also earned an MBA degree. You may reach David via the firm website www.Invention-Protection.com.
RESOURCES
Here are additional resources to help you with copyright and other legal assistance:
1. FIND LEGAL FORMS offers a comprehensive library of legal documents, legal papers, and business forms prepared by attorneys to provide you with safe, informative, and easy-to-use legal forms. Download any legal form immediately! ( more info. ) 2. ROCKET LAWYER helps you to create your legal documents. All you have to do is answer the questions, review your document, and print it when youre done. Its that easy! Each document comes with a checklist of any additional steps that may be needed to make your document legal, like signing, witnesses, or notarization. ( more info. ) 3. Showbiz Film and TV Contracts by Mark Litwak contains over 60 invaluable fill-in-the-blank entertainment contracts for Film & Television. For every level of producing, these sample contracts save time, money, and most of all, legal headaches. ( more info. ) 4. Showbiz MUSIC Contracts contains over 65 fill-in-the-blank entertainment contracts for the Music industry. When you want to quickly and easily protect yourself, get it in writing with Automated Contracts for the Music Industry. ( more info. ) 5. PUBLISHING CONTRACTS is a collection of the 22 most needed legal documents covering every facet of the book publishing business including: An author-publisher contract for a trade book, a publisher-illustrator agreement, a foreign rights agreement and 19 more. ( more info. )
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6. BUSINESS LETTERS FOR PUBLISHERS - Dan Poynter created BUSINESS LETTERS FOR PUBLISHERS for the publishing industry and are designed to be used in small and medium-sized houses. They not only save time for the older firm, but they also enable the newer firm to establish company policy which conforms to current, sometimes peculiar, publishing industry standards. ( more info. ) 7. MOVIE FORMS PRO is a compilation of standard production forms and signage used throughout the Motion Picture, Film and Video industries including the A.I.C.P. & A.I.C.E. Budgeting forms. Movie Forms Pro forms are designed to support all phases of production. ( more info. ) 8. 3,001 BUSINESS AND SALES LETTERS - Never again be at a loss for words! You get all 2,100+ award-winning business, sales and personal letters, plus 901 additional sales letters that will help you sell more with attention-getting messages and persuasive sales copy! ( more info. ) 9. STYLEWRITER - the World's Largest Style and Usage checker - is the world's most powerful editor. It plugs directly into all versions of Microsoft Word, Word Perfect or any Windows application through the Clipboard. StyleWriter searches for thousands of writing faults, including complex words, jargon and abstract words, wordy phrases, hidden verbs, passive verbs, clichés and long sentences. ( more info. ) 10. WHITESMOKE - Write like an English pro using WhiteSmoke's revolutionary writing software. All-in-one writing solution WhiteSmoke's innovative software is the first-ever instant, full-text analysis solution, providing context-related language enrichment. ( more info. ) 11. WIZARDS FOR WORD automatically formats and fixes your manuscript, generates correct headers, footers, footnotes, page layouts, plus more, and helps speed up the writing and editing process, saving you time, money, and big headaches. ( more info. ) 12. TRADEMARK EXPRESS offers expert consultations, comprehensive research and expert analysis of complex trade name searches. Free consultation. Next day trademark filing. ( more info. ) 13. AGREEMENTS ETC. was founded by experts with years of experience in providing legal publishing services to corporations and professionals. Now you can create professional legal documents from your home or office. ( more info. ) 14. LEGAL MATCH is America’s original attorney/client matching service and is not a referral service. When a consumer presents their issue to LegalMatch, its system matches the
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consumer's case to LegalMatch lawyers in their city or county based on the specifics of the consumers case and the lawyer's location and area of legal practice. ( more info. ) 15. NOLO PRESS is the nation’s leading provider of do-it-yourself legal solutions for consumers and small businesses. Nolo's goal is to help people handle their own everyday legal matters -or learn enough about them to make working with a lawyer a more satisfying experience. ( more info. )
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LEGAL NOTICE
We have made every effort to accurately represent this package and its potential. Your results may vary. The author(s), publisher(s) and distributor(s) of this product are not liable or responsible for your use or misuse of this product, and are not responsible for any injury, damage or financial loss you or your business may have as a result of using this product or its contents. We do not give legal advice and this is not a legal document. You are responsible for using the results as you see fit. We have also made every effort to ensure that the information reflected in this document is reliable and correct. However, we are not responsible for any use, misuse or abuse resulting from the usage of this material. We highly suggest that you consult a competent lawyer specializing in copyright law before pursuing any copyright research or registration.
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FEEL FREE TO DISTRIBUTE THIS EBOOK
You may freely distribute this ebook to others without prior permission from the publisher or author, as long as it is NOT altered and this ebook is distributed in its entirety. You may freely give away this ebook, bundle it with other products, give it away as a free bonus product, or make it available as a free download. You may not sell this ebook for money. You can download free cover graphics and updated versions of this ebook at ResearchCopyright.com Visit ResearchCopyright.com to download more FREE products and to download updates.
SHOWBIZ FILM AND TV CONTRACTS is an invaluable collection of over 60 sample entertainment contracts. Details: http://www.researchcopyright.com/showbiz-film-and-tv-contracts.php