The Law of Trademarks, Copyrights, Patents, and Trade Secrets - Essay Example

?RUNNING HEAD: COPYRIGHT LAW COPYRIGHT LAW Q1 “Work made for hire” is defined under § 101, Chapter of 17 on Copyrights of the US Code as work, which is either prepared by a person as part of his work during his employment or works which are especially commissioned. The ‘work made for hire’ rule constitutes an exception to the general rule that copyright ownership naturally belongs to the author or creator of that work, implying that in such cases, the employer or the person for whom the work is done or created for is deemed the copyright owner of the work. However, this can be true only if there is no express agreement in writing signed by the parties indicating a contrary intention (§ 210, Chapter 2 of Title 17, USC). Under the first definition of ‘work made for hire,’ the term employee is constructed in accordance with the holding of the Court in Community for Creative Non-Violence v Reid, 490 US 730 (1989). In that case, an artist’s help was solicited by a non-profit organization to aid in their campaign against homelessness. The artist acceded, but no agreement between them as to copyright ownership over the sculpture was entered into. When the artist later claimed copyright ownership, the organization went to court. The US Supreme Court held that the term ‘employee’ should be taken in the context of the conventional employee-employer relation, without resorting to the control test often employed in common law. The SC’s decision relied on the agency law, where agency is determined under a ten-factor test. Since the conditions in the case did not satisfy this, the Court held that it was not within the ambit of the ‘work made for hire’ and copyright ownership belonged to the artist. On the other hand, ‘work made for hire’ under the second type, or the especially commissioned works, is easier to determine because the law itself confined it to nine types of work: “as a contribution to a collective work; as part of a motion picture or other audiovisual work; as a translation; as a supplementary work; as a compilation; as an instructional text, or; as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire” (§ 101, Chapter 1 of Title 17, USC). Q2 Under §102, Title 17 on Copyrights of the US Code, there are eight kinds of works of authorship upon which copyright protection can be had: literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings, and architectural works. Copyright registration may be made either online or using paper forms, although online registrations can only be made for basic registrations. For non-online registrations, each type of work of art must use a corresponding form. Literary works, whether published or unpublished, for example, must use Form TX. Specifically Form TX is used for non-dramatic literary works such as fiction, non-fiction, poetry, textbooks, reference works, directories, catalogs, advertising copy, compilations of information, and computer programs. On the other hand, visual arts, published or unpublished, must use Form VA, with ‘visual arts’ comprising pictorial, graphic, and sculptural works. Works of artistic craftsmanship and design are also registrable under Form VA, but protection extends only to their form and not to their other aspects. For works of performing arts, published or unpublished, Form PA is used for registration. The performing arts category include within its ambit musical works, dramatic works, pantomimes and choreographic works, and motion pictures and audiovisual works. Form SR is the form used for the registration of sound recordings, published or unpublished, but may also be used to simultaneously register the underlying musical, dramatic or literary work accompanying the sound recording. Sound recording, however, does not apply to the audio in an audiovisual work, which must belong to and be an inherent part of the audiovisual work category. Finally, Form SE is used for the registration of works classified as a serial or works with consecutive parts intended to be issued successively and for an indefinite period. Periodicals, newspapers and journals come within the contemplation of the term serial, but Form SE cannot be used to register only a part of that serial. The aforecited are the basic forms used for copyright registration, but other forms are available for non-basic use such as group registration, correction or addition of data, or various account form statements (US Copyright Office 2011). Q3 Trademark refers to a word, name, symbol or device or a combination of the aforementioned used to identify and distinguish a manufacturer’s good from others. It can also be used to identify services (Bouchoux 2008 21). A patent, on the other hand, is an exclusive right over a device, process, machine, or composition of matter (Landy pp. 101-102). Both trademark and patents are registrable at the US Trademark and Patents Office, except that trademark need not be previously registered for protection to attach since protection flows from the adoption and subsequent public use of such trademark. Thus, the date of first use is important in trademark suits. However, trademarks may first be registered before use under the “bona fide intent to use” doctrine (Bouchoux 2008 p. 26). Patent protection under the US jurisdiction, on the other hand, is extendible only after such patent has been granted to the applicant. Patent application is called patent prosecution and can only be granted if the device or process being registered meets the three tests: it is useful; it is novel, and; it must not be obvious to a person with a related reasonable skill at the time of its invention. Patents, once granted, have only a national reach, which means the protection is granted only within the US juridiction (Landy 2008 pp. 102-103). Patents last for twenty years from the date of issue (s 154[a][2], Title 35 USC), while trademark has no expiration date, unless the holder abandons its use for a period of three years (Bouchoux 2008 p. 24). References: (2011) Form VA. US Copyright Office. http://www.copyright.gov/forms/formva.pdf. (2011) Form TX. US Copyright Office http://www.copyright.gov/forms/formtx.pdf. (2011) Form PA. US Copyright Office http://www.copyright.gov/forms/formpa.pdf. (2011) Form SR. US Copyright Office http://www.copyright.gov/forms/formsr.pdf. (2011) Form SR. US Copyright Office. http://www.copyright.gov/forms/formsr.pdf. (2011) Form SE. US Copyright Office. http://www.copyright.gov/forms/formse.pdf. Bouchoux, D. (2008) Intellectual Property for Paralegals: The Law of Trademarks, Copyrights, Patents, and Trade Secrets, 3rd Edition. Cengage Learning. Community for Creative Non-Violence v Reid, 490 US 730 (1989). Landy, G. & Mastrobattista, A.J. (2008) The IT/Digital Legal Companion: A Comprehensive Business Guide To Software, Internet, And IP Law: Includes Contracts And Web Forms. Syngress. Title 17 on Copyrights, United States Code. Title 35 on Patents, United States Code. US Copyright Office (2011). Copyright. http://www.copyright.gov/. Read More