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On Behalf of | Apr 29, 2015 | Wang IP Law Blog

How well do you understand intellectual property law? While many people may have a general idea of what patent, copyright and trademark rights protect, it is important to consider when and how they are actually used. Click on the statements below to find out the truth behind ten popular claims about intellectual property law:

Many people often confuse copyright and trademark law when it comes to original work. Copyright holders may enforce their copyright claims at their own discretion, and failing to do so does not weaken their copyright. Take, for example, fan fiction and fan art on the Internet. Work produced by fans does not weaken the copyright of the original author; however, if the author disapproves of a specific piece of fan work, the author can certainly choose to enforce their copyright. Enforcement of copyright is completely up to the person that holds it, and failing to do so does not have a negative impact on your right.

Large companies are bullies for enforcing their trademarks against small businesses.

Unlike copyright holders, trademark holders must enforce their trademark or run the risk of losing it. A trademark is designed to uniquely distinguish the source of a product or service from others on the market. If multiple people are using the same symbol or phrase to market a similar product or service, it defeats the purpose of trademark rights. Thus, a trademark holder must enforce their trademark regardless of how big or small the competitor is in order to avoid confusion among consumers. Trademark holders can also choose to license out their trademark for other companies to use in certain cases.

Selling fan art is illegal.

This area can be complicated. A copyright holder of a particular story also owns both the copyright to the story as well as all of the characters in it. Furthermore, the nature of fan art as either commercial or non-profit is one of four factors that are considered in determining whether a work is fair use or infringing on an existing copyright, 17 U.S.C. § 107. The four factors are as follows:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market or value of the copyrighted work.

One important item to consider is the first factor, or “the purpose and character of the use,” in determining whether the use is transformative of the original. The more transformative your work, the less likely it is to be considered copyright infringement. Selling your work, however, increases this likelihood of infringement and a court would have to balance these factors in making the final judgment. The only situation in which you can absolutely sell your fan work is when it is a parody of the original work.

If I am not selling or profiting from it, it will be considered fair use, right?

While not selling your work might strengthen a fair use defense, it does not fully protect you from a copyright claim. Other factors will be considered in determining whether or not you have violated copyright. If you printed copies of a popular book and gave them away for free, doing so could certainly be found as infringement. Although it may help the defense in some cases, not selling something does not automatically make it fair use.

Posting your own story, film or artwork based on a copyrighted work for free on the Internet may also be judged for infringement on the above factors including the “amount and substantiality of the portion used.” The court will balance all factors in consideration to determine whether or not a work can be considered fair use. In patent law, however, it does not matter if you are selling your work or not – if you rebuild your own version of someone’s patented technology and give it away, it is undoubtedly infringement.

You cannot trademark something you did not invent!

It is important not to confuse the different areas of intellectual property law. Patent law is about protecting something you invented; copyright law is about protecting something you created and trademark law concerns the protection of your business’ ability to build a brand and to avoid consumer confusion. If a symbol or slogan is a key factor in distinguishing your brand or company, you can trademark it even if you did not specifically create it.

For example, the BBC owns trademark to blue telephone boxes as a symbol of their original television series, Doctor Who, despite the fact that the network did not originally create those telephone boxes. With the telephone boxes serving as a key symbol of the show, BBC legally obtained trademark of them.

Someone is defaming me, can I issue a DMCA takedown?

Some people think that you can use the DMCA to take down anything you dislike on the Internet – this is not true. The Digital Millennium Copyright Act (DMCA) only applies to copyright. If said defamation involves your own copyrighted content, you can issue a DMCA takedown notice; however, you cannot use the DMCA if you do not own copyright to the content in question.

If someone is spreading false rumors about you on the Internet without content that belongs to you, legal action must be pursued through other channels. Defamation is a tort and you can sue for it; however, the truth is a viable defense to a defamation claim.

You cannot write a story that includes a trademarked concept.

Marketing your work with a trademarked concept can certainly cause confusion regarding whether your work is associated with the brand of the trademark holders. For example, companies like Marvel and DC hold trademark of the term “superhero” despite amateur stories being written about superheroes all the time.In 2010, Marvel and DC sued Cup O Java Studios over the use of the term “superheroes” in their book “A World Without Superheroes.” Using the term “superhero” in the title of your work in addition to marketing your story as such may constitute a trademark violation. However, you can still write about superheroes and call them superheroes in your book, but consider refraining from using the term in your title.

Story A has the same plot as Story B, therefore the author of Story A must be violating the copyright of Story B.

Copyright law protects the expression of ideas, not the ideas themselves. Ideas are considered too valuable to be stuck under copyright law for decades upon decades so you can copy, or even steal, the basic concept of someone else’s story without violating copyright. You cannot create a work with the same exact storyline and characters, but variations of a basic plotline or concept are permitted.

In other words, you can write a story about an orphan boy attending a school for wizards and fighting evil, but if he looks like Harry Potter, sounds like Harry Potter and displays the likeness of Harry Potter, it could be considered infringement.Note that your work may still be considered plagiarism, which is often seen as an academic or moral violation. Just because your work might be permitted legally does not mean that you are free of other consequences.

There is no point in registering a copyright or including a copyright notice on your work anymore.

In earlier times, a copyright holder actually had to include a copyright notice on their work and register it in order for their work to be copyrighted. Today, copyright belongs to you as soon as you create a work regardless of notice or registration; however, notices and registration are still essential in actually using or enforcing your copyright.

For example, you will need to register your copyright in order to sue for infringement. While you can still request DMCA takedowns and send cease and desist letters without registering your copyright, you can only collect damages on registered copyrights. Furthermore, a copyright registration is key in proving that you are the actual owner of a copyright and notices deter copying while letting people know whom to contact in order to license your work.

Posting my cover song on YouTube is definitely legal, people do it all the time!

Many people are familiar with mechanical licenses, which are compulsory licenses that copyright holders grant for a “royalty fee” to those who cover their songs. However, a mechanical license applies to only audio recordings made for private use such as records, CDs, tapes and mp3 files. A mechanical license does not apply to music videos or those posted on the Internet.To post a video of your cover, you must obtain a synchronization license from the copyright holder. While a mechanical license is compulsory and granted by a copyright holder, synchronization licenses are not. YouTube has obtained synchronization licenses for some publishers, but you will need to check with the publisher of the song you want to cover, first.