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First Aid Kit
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This report is presented for information and research purposes only and was
designed to provide accurate and authoritative information with regard to the
subject matter covered. It is sold with the understanding that the publisher and
author are not engaged in rendering legal, accounting, or other professional
advice. The material contained within also does not in any way constitute
professional advice and should not be perceived as such.
If legal advice or other professional assistance is required, the services of a
competent professional should be sought. The reader is also advised to consult
with an appropriately qualified professional before making any business
decisions related to the information contained herein.
The author, Tony Laidig, does not accept any responsibility for any liabilities
resulting from business decisions made by purchasers or users of this report. We
make no claim that you will earn any income using this report whatsoever.
Income results can vary based upon the reader’s personal business practices,
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Exceptions to Copyright
in Public Domain Resources
Copyrighted Elements in Public Domain Resources
There are instances where certain elements of a resource may be in the Public
Domain, but other elements are not. This type of scenario is mostly prevalent
with recorded media, such as film, video or audio recordings. An example of this
would be the television program, The Beverly Hillbillies. Some of the show’s
episodes are now in the public domain; however, the theme music is protected
by copyright. One approach that some businesses have used in this situation is
to remove the protected music and provide different, royalty-free music in its
place. The most important point here is to do your research homework! More
complete explanations of this type of copyright scenario can be found at
Privacy and Publicity Rights
“Privacy and publicity rights reflect separate and distinct interests from copyright
interests. Patrons desiring to use materials from this website bear the
responsibility of making individualized determinations as to whether privacy and
publicity rights are implicated by the nature of the materials and how they may
wish to use such materials.
“While copyright protects the copyright holder's property rights in the work or
intellectual creation, privacy and publicity rights protect the interests of the
person(s) who may be the subject(s) of the work or intellectual creation. Issues
pertaining to privacy and publicity may arise when a researcher contemplates the
use of letters, diary entries, photographs or reportage in visual, audio, and print
formats found in library collections. Because two or more people are often
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involved in the work (e.g., photographer and subject, interviewer and interviewee)
and because of the ease with which various media in digital format can be
reused, photographs, audio files, and motion pictures represent materials in
which issues of privacy and publicity emerge with some frequency.
“The distinctions among privacy rights, publicity rights, and copyright are best
illustrated by example, as follows: An advertiser wishes to use a photograph for a
print advertisement. The advertiser approaches the photographer, who holds the
copyright in the photograph, and negotiates a license to use the photograph. The
advertiser also is required to determine the relationship between the
photographer and the subject of the photograph. If no formal relationship (e.g., a
release form signed by the subject) exists that permits the photographer to
license the use of the photograph for all uses or otherwise waives the subject's,
sitter's or model's rights, then the advertiser must seek permission from the
subject of the photograph because the subject has retained both privacy and
publicity rights in the use of their likeness. The privacy right or interest of the
subject is personal in character, that the subject and his/her likeness not be cast
before the public eye without his/her consent, the right to be left alone. The
publicity right of the subject is that their image may not be commercially exploited
without his/her consent and potentially compensation.
“While copyright is a federally protected right under the United States Copyright
Act, with statutorily described fair use defenses against charges of copyright
infringement, neither privacy nor publicity rights are the subject of federal law.
Note also that while fair use is a defense to copyright infringement, fair use is not
a defense to claims of violation of privacy or publicity rights. Privacy and publicity
rights are the subject of state laws. While many states have privacy and/or
publicity laws, others do not recognize such rights or recognize such rights under
other state laws or common law legal theories such as misappropriation and
false representation. What may be permitted in one state may not be permitted in
another. Note also that related causes of action may be pursued under the
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federal Lanham Act, 15 U.S.C. § 1125 (a), for example, for unauthorized uses of
a person's identity in order to create a false endorsement.
“While an individual's right to privacy generally ends when the individual dies,
publicity rights associated with the commercial value connected with an
individual's name, image or voice may continue. For example, many estates or
representatives of famous authors, musicians, actors, photographers, politicians,
sports figures, celebrities, and other public figures continue to control and license
the uses of those figures' names, likenesses, etc.”*
An example of this would be where you have located a Public Domain resource
that contains a photograph of Elvis. Because of Publicity Rights held by his
estate, you cannot use any likeness of Elvis for commercial gain, even if it is in
the Public Domain.
*(Library of Congress website; http://memory.loc.gov/ammem/copothr.html, accessed 1/26/06)
A trademark is a word, device, symbol, name, or combination of any of these
elements intended or used in business to distinguish and identify the products of
one company or seller from products sold or manufactured by others, and
indicate sources of the products. To make it simple, a brand name defines a
Registration of a trademark is not required by the government. However, several
advantages can be given if a trademark obtained federal registration. It includes
evidences of trademark's ownership, nationwide constructive notice about the
owner's claim, federal courts jurisdiction can be invoked, registration can be a
basis to obtain international trademark registration, and registration can be filed
with the customs service of the U.S. to prevent infringing of imported goods.
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Understanding the distinction between a copyright and trademark is necessary. It
really helps. The differences between the two can really come into play with
some Public Domain materials, especially images, movies and music. It is
possible to find resources that are in the Public Domain but are still protected by
trademark. A good example of this would be an ad advertising Coca-Cola from a
1922 magazine. The magazine may be in the Public Domain, but Coca-Cola
retains the trademark control of their brand.
Another excellent example of trademark protection concerns the popular book,
“Think and Grow Rich” by Napoleon Hill. The first version of the book, which was
published in 1937, is in the Public Domain and you do have a legal right to use
that text. However, the phrase, “And Grow Rich” has been trademarked by the
Napoleon Hill Foundation, thereby limiting its use. What that means is that you
cannot produce a derivative product and use a title that includes the words, “And
Grow Rich,” like “Think and Grow Rich Study Manual for the 21 Century.” The
Napoleon Hill Foundation will be in touch if you do. You could, however, title the
same material, “Successful Thinking Study Guide for the 21st Century.”
A trademark infringement is possible, if you will be able to prove that there is a
“possibility of confusion” between your trademark and the purportedly infringing
mark. Such possibility of confusion will be determined through a “trademark
analysis,” wherein the following items will be analyzed:
• The structure of the mark, both interior and exterior.
• The connotation of the mark. The meaning can be explicit or implied.
• How the mark is pronounced will be reviewed as well.
• The relation of the infringing mark to the goods or services will also be
• The impression of the public will also be assessed. Actual test
impressions on the consumers may be done.
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The common penalty being given to a party who has been proven guilty of
trademark infringement is “injunction.” Injunction is a court regulation wherein it
orders the party to avoid doing certain actions such as infringing marks. Contrary
to the common belief, injunction is not a monetary judgment.
There are instances that “monetary relief” is bestowed to a winning party. Such
monetary respite may include the profit lost by the defendant, the claimants’
sustained damages and the over-all cost of action.
“Trademark dilution,” can be sought by plaintiffs with well-known trademarks. By
doing so, the infringed mark will not be further utilized. There are factors to
consider for a trademark to be specified as “famous” before an infringed mark will
be blurred or tarnished.
A trademark registration is renewable. If a trademark owner wishes to do so, he
may maintain a registration indefinitely by paying renewal fees, using the
trademark and defending the registration.
However, a trademark or brand can become unenforceable if it becomes the
generic term for a particular type of product or service – a process called
"genericide." If a mark undergoes genericide, people are using the term
generically, not as a trademark to exclusively identify the particular source of the
product or service. One famous example is "thermos" in the United States.
Because trademarks are registered with governments, some countries or
trademark registries may recognize a mark, while others may have determined
that it is generic and not protectable as a trademark in that registry. For example,
the drug "salicylic acid" (2-acetoxybenzoic acid) is better known as aspirin in the
United States – a generic term. In Canada, however, "aspirin" is still a trademark
of the German company Bayer. Bayer lost the trademark after World War I, when
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the mark was sold to an American firm. So many copycat products entered the
marketplace during the war that it was deemed generic just three years later.
Terms can be deemed "generic" in two ways. First, any potential mark can be
deemed "generic" by a trademark registry, that refuses to register it. In this
instance, the term has no secondary meaning that helps consumers identify the
source of the product; the term serves no function as a "mark". Second, a mark,
already in use, may be deemed generic by a court or registry after the mark is
challenged as generic – this is known as "genericide". In this instance, the term
previously had a secondary meaning, but lost its source-identifying function.
To avoid "genericide", a trademark owner must balance between trying to
dominate the market, and dominating their market to such an extent that their
product name defines the market. A manufacturer who invents an amazing
breakthrough product which cannot be succinctly described in plain English (for
example, a vacuum-insulated drinking flask) will likely find its product described
by the trademark ("Thermos"). If the product continues to dominate the market,
eventually the trademark will become generic ("thermos").
However, "genericide" is not an inevitable process. In the late 1980s "Nintendo"
was becoming synonymous with home video game consoles but Nintendo was
able to reverse this process through marketing campaigns. Xerox was also
successful in avoiding its name becoming synonymous with the act of
photocopying (although, in some languages (Russian) and countries (like India),
it became generic).
Trademarks currently thought to be in danger of being generic include Jello,
Band-Aid, Rollerblading, Google, Spam, Hoover, and Sheetrock. Google
vigorously defends its trademark rights. Although Hormel has resigned itself to
genericide , it still fights attempts by other companies to register "spam" as a
trademark in relation to computer products .
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When a trademark becomes generic, it is as if the mark were in the public
Trademarks which have been genericized in particular places include: Escalator,
Trampoline, Raisin Bran, Linoleum, Dry Ice, Shredded Wheat (generic in US),
Mimeograph, Yo-Yo, Kerosene, Cornflakes, Cube Steak, Lanolin, and High
Octane, (Source: Xerox ad, reprinted in Copyright, Patent, Trademark, ..., by
Paul Goldstein, 5th ed., p. 245) as well as Aspirin (generic in the United States,
but not in Canada), Allen wrench, Beaver Board, Masonite, Coke, Pablum,
Styrofoam, Heroin, Bikini, Chyron, Weedwhacker, Kleenex, Linux (generic in
Australia) and Zipper.
Non-equivalence of Licenses*
For various reasons, including the uncertainty in international law, the fear of
liability suits, and of course the not-quite-settled state of U.S. law, licenses have
become popular as a substitute for dedicating work to the public domain. Such a
license would grant permission for all of the acts which are restricted by copyright
law. Such a license is sometimes called a "public-domain equivalent license,"
which is somewhat of a misnomer. A more accurate term is "permissive free
There are several ways in which this license does not substitute for a true public
Revocability where no consideration
A "bare license" unsupported by consideration is (theoretically) revocable at will.
A license, generally in the law, is permission to do something that would
ordinarily be a trespass. For example, when a friend is invited to a home for
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coffee, the friend has a license to remain in the house. The friend can be kicked
out of the house at any time. However, if the friend has paid money and signed a
contract to live in the house for a month, he has the right to stay.
Revocability is not a problem in practice for two reasons. Entities which release
software (such as M.I.T. and the University of California) are generally disinclined
to be obnoxious. Second, there are certain legal defenses which could be raised,
such as an "implied license by legal estoppel," if the original license purported to
be perpetual, or the flimsier defense of equitable estoppel otherwise. However,
most licenses, even the "public-domain equivalent" licenses, do not purport to be
perpetual. The M.I.T license, for example, does not.
A "bare license" of free software has been revoked in the past. Simply because a
friendly entity released a program under a license does not mean that the friendly
entity will continue to hold the copyright in the future. In the well-known
CyberPatrol case, the defendants settled in part by transferring the offending
program to a hostile party. The hostile party immediately revoked the GPL
license of the program. (As a general rule, licenses are revocable, and the GPL
does not purport to be perpetual.) His solution is to rely on 17 USC 205(e), which
(e) Priority Between Conflicting Transfer of Ownership and Nonexclusive
License. — A nonexclusive license, whether recorded or not, prevails over
a conflicting transfer of copyright ownership if the license is evidenced by
a written instrument signed by the owner of the rights licensed or such
owner’s duly authorized agent, and if — (1) the license was taken before
execution of the transfer; or (2) the license was taken in good faith before
recordation of the transfer and without notice of it.
To do so, someone signs a license to a friendly party, like the FSF, which, in his
theory, preserves the GPL license to the world forever. (He observes that under
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other federal law, this can be done electronically, despite the language saying
"written instrument signed.") It is certainly possible that Eben Moglen's
interpretation would be upheld in court, but the case would be far from a slam-
dunk, especially in a case like CyberPatrol where the new copyright holder has
good reason to want the license revoked.
The problem with Eben Moglen's interpretation comes from the unique
construction of the GPL. The GPL purports to grant a new license from the
original grantor, rather than each succeeding author of a program granting a sub-
license to the next. By the very terms of the statute, however, licenses from the
original licensor are only protected if the license was granted before executing
the transfer. (New licenses from the original licensor are not allowed, because
the original licensor no longer holds the copyright to the work.) Therefore, further
distribution of a GPL program is significantly limited after GPL is revoked. To be
precise, the current holders of the program are authorized to modify and
distribute the software, if they hold a "written instrument signed by the [former]
owner," but the recipients of the software may not further redistribute it.
The license will usually contain language perpetuating itself, of several kinds of
wording. It can be unclear what license applies to what part of the work,
increasing the likelihood that provisions pertaining to certain parts of the work will
be breached. Outside the context of computer software, it may not even be
possible to use a license due to excess verbiage. Magazine publishers might
acquiesce to an author's request of putting a public domain notice on, say, a
magazine article, but not allow several column inches to be filled with license
An unfortunate problem with proliferating licenses is privity. In short, when a user
has rights under a sub-license, they come only from the person who sub-licensed
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the work to him. It does not matter on what terms that person licensed the work.
For instance, the original person may have paid money to receive extra
commercialization rights. The book Open Source Licensing by Lawrence Rosen
explains that virtually all open-source licenses use a "sub-licensing" model,
where each user's rights come from the person who gave him that copy. The
GPL is one of the very few that purports to issue rights from the original licensor.
It is well-settled that work in the public domain keeps that status, even after being
embedded in a copyrighted work. (See Nimmer above.) So that work can be
extracted and used in another work. But if a liberally-licensed work has been
included in a software program with a draconian license, it is not possible to
legally extract the liberally-licensed work from the program, unless the license is
an unusual one which purports not to sub-license. All of the user's rights flow
from the license under which he received the program; it is irrelevant whether the
previous person was subject to a more lenient license.
Instead the user must find the original, liberally-licensed work and take from that.
For example, the original 4.4BSD lite release was missing several important files
and would not run directly. Suppose that the developers who made the software
work chose to release the software under a harsher license which imposes
restrictions against commercialization, rather than preserving the original license.
Now suppose 10 years later someone wants to use some code from BSD in a
commercial program. It might be impossible to track down an original copy of
4.4BSD lite, but strictly speaking they are not permitted to take even original BSD
code out of the modern version.
There are situations where a resource may be in the Public Domain but its use
may still be limited due to licensing restrictions. This is where the owner of the
Public Domain work—a painting for instance—has the right to limit access to the
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piece, even though it is in the Public Domain. Attorney Stephen Fishman
provides greater insight into this in his excellent book, The Public Domain:
“Theoretically, once a work of art enters the public domain it can be copied
freely by anyone for any use. However, to make a copy you must first
have access to the original. And here lies the problem: Owners of works of
art in the public domain are under no obligation to give anyone access to
copy the work. Even when a work of art is in the public domain, the
canvas, marble, clay, or other physical substance in which it is embodied
is still owned by somebody—whether a museum, gallery, or private
collector. Since a work of art is a piece of personal property as well as a
work of authorship, the owner enjoys all the rights of any personal
property owner. Copyright protection may expire or never exist in the first
place, but personal property rights attach to all works of art and last
“Private owners of public domain works of art are under no obligation to
allow anyone into their home to make copies of the art or even to view it.
And most major museums in the United States restrict the public from
taking photographs of their collections. “
“If you want a high-quality publishable photograph or other copy of a
painting or other artwork, you must ask the museum to provide you with
one. You will be charged a fee for this and usually required to sign a
license agreement restricting how you may use the photograph or other
copy. Such licensing fees are a major source of income for many art
museums. Moreover, many museums will not agree to license their works
for products that might compete with their own products, such as
calendars and note cards.”
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(Fishman, Stephen, The Public Domain: How to Find & Use Copyright-Free Writings,
Music, Art & More (Berkeley, CA: Nolo, 2004), 160-161.)
When Public Domain works are made available to the public by the owner of that
work, the owner has every legal right to charge a fee for access to the work or to
make copies of the work. The owner may also require the user to sign or accept
a license agreement which restricts how the work can be used. This is especially
true when it comes to using a work for commercial gain, such as on t-shirts,
mugs, posters, etc.
Licenses take on many forms from actual contracts that you sign to specific
agreements that are negotiated to meet licensor requests. Licenses can also
take the form of click-wrap licenses, as in the case of distributing Public Domain
works online or by disc, such as a DVD or CD-ROM. The click-wrap license will
appear on-screen and require you to “accept” it by clicking on a button in order to
access the materials.
“Among other things, these license agreements impose restrictions on
how the licensee (the person obtaining or accessing a copy of the work)
can use the work. Typically, the licensee is barred from making more than
a specific number of copies or reselling them to the public. The licensee
may even be barred from creating new works from the public domain
materials or displaying or performing them in public.
If the licensee violates the restrictive terms contained in a license, the
licenser (person who owns the copies of the public domain materials) can’t
sue for copyright infringement because the materials are in the public
domain—they have no copyright protection. Instead, the licenser threatens
or actually does sue the licensee for violating the license. This is a suit
under state law for breach of contract. (Ibid, 47.)
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In effect, people who use such licenses are trying to use contracts to
obtain the same exclusive rights that are provided under copyright law,
rights they can’t get because the work is in the public domain.”
If you would like to learn more about licensing, be sure to check out
LicensingPages®. They provide excellent resources on how licensing works, how
to obtain licenses, how to create them for your own products or brands and more.
Their web address is: www.licensingpages.com.
With regards to patents, on the other hand, public use or publishing the details of
an invention before applying for a patent will generally place an invention in the
public domain and (in theory) prevent its subsequent patenting by anyone – an
effective disclaimer. For example, a chemistry journal publishing a formula
prevents patenting the formula by anyone. This tactic was commonly used by
Bell Labs. The famous Bell Labs Technical Journal was sent free of charge to the
library of the U.S. Patent Office to establish a base of prior art without the
inconvenience, cost, and hassle of filing patent applications for inventions of no
immediate monetary value. (Unix was famously described in this journal.) This is
sometimes called "defensive disclosure" - one way to make sure you are not later
accused of infringing a patent on your own invention. There is an exception to
this rule, however: in U.S. (not European) law, an inventor may file a patent claim
up to one year after publishing a description (but not, of course, if someone else
published or used it first).
In practice, patent examiners only consider other patents and the books they
have in their library for prior art, largely because the patent office has an
elaborate classification system for inventions. This means that an increasing
number of issued patents may be invalid, based upon prior art that was not
brought to the examiner's attention. Once a patent is issued, it is very expensive
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to invalidate. Publishing a description on a website as a pre-emptive disclosure
does very little in a practical sense to release an invention to the public domain; it
might still be considered "patentable", although erroneously. However, anyone
aware of an omitted prior art citation in an issued patent may submit it to the US
Patent Office and request a "reexamination" of the patent during the enforceable
period of the patent (i.e., its life plus statute of limitions). This may result in loss of
some or all of the patent protection of the invention, or it may backfire and
actually strengthen the claims.
An applicant may also choose to file a Statutory Invention Registration, which
has the same effect as a patent for prior art purposes. These SIRs are relatively
expensive. These are used strategically by large companies to prevent
competitors from obtaining a patent.
Section 102(c) says that an invention that has been "abandoned" cannot be
patented. There is precious little case-law on this point. It is largely a dead letter.
If an inventor has an issued patent, there are several ways to release it to the
public domain (other than simply letting it expire). First, he can fail to pay the
maintenance fee the next time it is due, about every four years. Alternatively he
can file a terminal disclaimer under 37 CFR 1.321 for a reasonable fee. The
regulations explicitly say that the "patentee may disclaim or dedicate to the public
the entire term, or any terminal part of the term, of the patent granted. Such
disclaimer is binding upon the grantee and its successors or assigns." Usually
this is used during the application process to protect another patent from a
"double patenting" invalidation. Lastly, he may grant a patent license to the world,
although the issue of revocability may raise its head again.
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If guarded properly, trade secrets are forever. A business may keep the formula
to Coca-Cola a secret. However, once it is disclosed to the public, the former
secret enters public domain, although an invention using the former secret may
still be patentable in the United States if it is not barred by statute (including the
Some businesses choose to protect products, processes, and information by
guarding them as trade secrets, rather than patenting them. Hershey Foods, Inc.,
for example, does not patent some of its processes, such as the recipe for
Reese's, but rather maintains them as trade secrets, to prevent competitors from
easily duplicating or learning from their invention disclosures.
One risk, however, is that anyone may reverse engineer a product and thus
discover (and copy and publish) all of its secrets, to the extent they are not
protected by other laws (e.g., patent, contract).
The most important point I want to make through this report is that you do your
homework. If you find resources you want to use, but are unsure if they are in the
Public Domain, do your due diligence. The best and safest way to verify the work
or resource is through the use of a Copyright or Intellectual Property Attorney.
They will confirm the status of the work or resource for you, for a fee. The fee is a
small price to pay for the peace of mind you’ll have knowing that you are
swimming in safe, “shark-free” Public Domain waters.
* This portion excerpted from Wikipedia:Copyrights, http://en.wikipedia.org/wiki/Public_domain;
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