Term
| What is Trademark Law governed by? |
|
Definition
| The Lanham Act AND state statutes. |
|
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Term
| What is the policy behind the lanham act? |
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Definition
[Lanham act covers trademarks!] Purpose is consumer protection and avoidance of consumer confusion.
To a lesser extent, Competitive Protection. |
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Term
| What are the 2 categories of Marks? |
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Definition
Trademarks (word, name, symbol, or device used to indicate the source of the goods, even if that source is unknown.
Servicemarks--trademark when used with SERVICES rather than goods. |
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Term
| Describe the spectrum of marks (4 levels!) |
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Definition
1. Generic
2. Descriptive
3. Suggestive
4. Arbitrary/Fanciful |
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Term
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Definition
It's a common descriptive term.
It refers to the Genus/Class of product rather than the product itself.
Never accorded trademark protection.
Not Registrable.
Primary significance of the word is the category itself. |
|
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Term
| When are marks generic (2 ways)? |
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Definition
1. When seller appropriates a generic term (lite beer).
OR
2. Genericide occurs--the term BECOMES generic (aspirin). |
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Term
| What are common sources of evidence to show that a term is generic? |
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Definition
| Dictionary terms, media, and consumer surveys. |
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Term
| Generic Marks don't receive protection; what is the policy argument? |
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Definition
No protection for generic marks because they serve no source identification function, and thus, no consumer will be confused.
Limiting their use will unduly constrict the english language. |
|
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Term
| Is a generic mark every afforded protection? |
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Definition
|
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Term
| Is a generic term registrable? |
|
Definition
|
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Term
| What is the 2nd lowest level on the spectrum of Marks? |
|
Definition
|
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Term
| How do you tell when a mark is "descriptive?" |
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Definition
Primary significance of the term is a characteristic or quality of the product.
It either (1) literally describes the product, or (2) describes the purposes/utility of the product.
Ex: Chapstick, King Size. |
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Term
| When can a descriptive mark be protected and/or registered? |
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Definition
| When it has acquired secondary meaning. |
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Term
| What did the Abercrombie case say about defining descriptive marks? |
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Definition
The mark "forthwith conveys an immediate idea of the ingredients, qualities, or characteristics of the goods."
Ex: Chapstick, or King Size. |
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Term
| How do you establish "Secondary Meaning," or "Acquired Distinctiveness?" |
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Definition
| Trademark owner must show that in the minds of the public, the primary significance of the product feature or mark is the source of the product rather than the product itself. |
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Term
| What evidence can a TM owner use to show Secondary Meaning/Acquired Distinctiveness? |
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Definition
Ad Expenditures
Consumer studies
Sales Success
Unsolicited media coverage
Length and exclusivity of use
Attempts to plagiarize
Direct consumer testimony
established place in the market. |
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Term
| What is a "Suggestive Mark?" |
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Definition
Mark that requires imagination, thought, or perception to reach a conclusion as to the nature of the goods.
Requires an "Intellectual Leap;" a "multi-stage reasoning process." |
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Term
| Is secondary meaning required for a Suggestive Mark to be protected/registrable? |
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Definition
|
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Term
| Is secondary meaning required for a Descriptive Mark to be protected/registrable? |
|
Definition
|
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Term
| What kind of a mark is, "Chicken of the Sea?" |
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Definition
|
|
Term
| What kind of a mark is "Chap Stick?" |
|
Definition
|
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Term
| What kind of a mark is "Aspirin," and why? |
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Definition
|
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Term
| What kind of a mark is "Hot Pizza?" |
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Definition
|
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Term
| What kind of a mark is "Lite Beer?" |
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Definition
|
|
Term
| What kind of a mark is "King Size?" |
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Definition
|
|
Term
| What type of marks receive the most protection? |
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Definition
| Arbitrary and Fanciful marks. |
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Term
| What is an arbitrary/fanciful mark? |
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Definition
| A word that is made up or used in an unrelated context. |
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Term
| Is secondary meaning required to protect an arbitrary/fanciful mark? |
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Definition
|
|
Term
| What type of mark is "Apple?" |
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Definition
|
|
Term
| What type of mark is "Kodak?" |
|
Definition
|
|
Term
|
Definition
| Appearance of product when that appearance is used to identify the producer. |
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Term
| Is Trade Dress registrable? |
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Definition
|
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Term
| If it isn't registered, how can it be protected? |
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Definition
| §43(a). Must be non-functional and distinctive. |
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Term
| What is the Taco Cabana definition of Trade Dress? |
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Definition
Must be non-functional and distinctive, includes total image of a product; may include features such as size, shape, color, color combinations, texture, graphics, and particular sales techniques.
CAN BE inherently distinctive. |
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Term
| Is Product Design protected? |
|
Definition
|
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Term
| How can you define Secondary Meaning? |
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Definition
| Primary significance of the mark is the source, not the product itself. Idea that the mark has some meaning to the public beyond the obvious meaning of the words, and they go to source. |
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Term
| What is "Inherent Distinctiveness?" |
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Definition
| Marks that are inherently distinctive are those that have the ability upon being used the very first time to communicate to the consumer that the mark is identifying the source of the product as opposed to describing the product itself. |
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Term
| Is functionality protected? |
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Definition
|
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Term
| What is the "Inwood Labs" case test for functionality? |
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Definition
| If it is essential to product's use or affects cost or quality, it is functional and NOT protectable. |
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Term
| If something increases the desireability of the product for reasons unrelated to source, then it is.... |
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Definition
|
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Term
| Is the shape of a lightbulb protectable? Why not? |
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Definition
| No, it is functional because it increases the desirability of the product for reasons unrelated to source. |
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Term
| We don't need to know Aesthetic Functionality, but generally, what is it? |
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Definition
| Qualitex case: sometimes color and appearance has a functional purpose. Yellow and Green sponges, for example, aren't just a color--they conceal the stains that a sponge would soak up without looking dirty. |
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Term
| What are the 3 parts for determining whether a mark is Deceptive? |
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Definition
1. Misdescriptive (not suggestive) of characteristic that the good might possess but doesn't.
2. Purchasers are likely to believe it.
3. Material to Purchase Decision. |
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Term
| What is the test for a "Primarily Geographically Descriptive Mark?" |
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Definition
1. Primary Significance is name of place generally known to the public.
2. Public would make a goods/service association.
-------a) where the geographic place is neither obscure nor remote, the goods/place association may be presumed.
------b) The addition of a generic or descriptive term does not negate presumption. |
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Term
| Is a Primarily Geographically Descriptive Mark registrable? |
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Definition
| Yes, but only with secondary meaning. |
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Term
Primarily Geographically Deceptively Mis-descriptive Marks...
What's the test? |
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Definition
| The test is the same as that for deceptiveness. |
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Term
| Are primarily geographically deceptively misdescriptive marks registrable? |
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Definition
|
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Term
| When, if ever, are surname marks registrable? |
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Definition
| Only where there is secondary meaning. Just plain surnames are NOT registrable without secondary meaning. |
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Term
| What is a scandalous mark? |
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Definition
| A mark that is shocking to truth, decency, propriety, or conscience. |
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Term
| Who bears the burden of proof to prove that a mark is scandalous? |
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Definition
| the Patent and Trademark Office. |
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Term
| If there is doubt as to whether or not a mark is scandalous, how is it resolved? |
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Definition
| In favor of the applicant. |
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Term
| What is a disparaging mark? |
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Definition
| One that dishonors, belittles, or deprecates. |
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Term
| What is the test to determine whether a mark is disparaging? |
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Definition
| Whether a substantial composite of those referred to in some recognizable manner would view the mark as disparaging. |
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Term
| Is intent of the applicant considered when evaluating whether or not a mark is disparaging? |
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Definition
| No, intent is irrelevant. |
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Term
| Is a putatively disparaging mark evaluated at the time of registration or in use? |
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Definition
|
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Term
| Where in the Lanham act do you look for definitions of deceptive, misdescriptive, disparaging marks, and flags/arms/insignias as marks? |
|
Definition
|
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Term
| What is the purpose of registering on the supplemental register? (3 things) |
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Definition
Put competitors on notice.
PTO considers it when granting registrations.
Eases foreign registrations. |
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Term
| What is required to register on the supplemental register? |
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Definition
Mark must be a capable source of identification
Generic and deceptive marks are not eligible.
No secondary meaning requirements. |
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Term
|
Definition
| a trademark owned by an organization (such as an association), whose members use them to identify themselves with a level of quality or accuracy, geographical origin, or other characteristics set by the organization. |
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Term
| "Realtor" is an example of a... |
|
Definition
|
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Term
| What are the 3 types of Certification Marks? |
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Definition
1. Certification of quality or goods
2. Regional origin
3. Union Labor |
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Term
| What are the special obligations of a "Certification Mark" owner? |
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Definition
1. Must exercise control.
2. Can't discriminate.
3. Can't sell anything.
4. Can't license. |
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Term
| "Actual Use in Interstate..." |
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Definition
Defined in §1127
Must be ACTUAL use
Must be a bona fide use in commerce, not just a sham. |
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Term
| How much use is required to qualify as "Actual Use in commerce?" |
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Definition
| Not much. Need not result in deep market penetration or widespread recognition, but there has to be some (more than de minimus, I believe). |
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Term
| Can a person "Warehouse" marks? |
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Definition
| No, not permitted since "intent-to-use applications." Must have ACTUAL USE in commerce. |
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Term
|
Definition
| basic idea that the person who used it first is the senior user, the person who used it second is the junior user. |
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Term
| What is the Tea Rose Doctrine? (priority of use) |
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Definition
| The first user of a C/L trademark may not oust a later user's good faith use of the mark in a market where the first user has not used it. |
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Term
| What do you call someone who is the second to use the mark on a product, but the first to use it in a geographic area, and began using the mark before the senior user registered the mark federally? |
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Definition
| An intermediate user. (must have used mark in good faith). |
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Term
| What happens to an "Intermediate User" when the senior user obtains federal registration? |
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Definition
| Their rights are frozen at the time of registration (they can't expand). |
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Term
| What are some of the requirements and restrictions on "Intent-to-Use" applications? |
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Definition
Length of time
Marks Qualified
Examinations and publication process
Presumptions involved
First use date
bona fide intent to use |
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Term
| What happens to an "Intermediate User" when the senior user obtains federal registration? |
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Definition
| Their rights are frozen at the time of registration (they can't expand). |
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Term
| What are some of the requirements and restrictions on "Intent-to-use" applications? |
|
Definition
Length of time
Marks Qualified
Examination and publication process
Presumptions involved
First Use date
Bona Fide Intent to use |
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Term
| What are the two relevant statutes for "Trademark Infringement?" |
|
Definition
1114(a) Registered mark.
1125(a)(43(a)) Unregistered mark. |
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Term
| What is the standard for Trademark Infringement? |
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Definition
| Standard is "Likelihood of Confusion." |
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Term
| What are some of the 8 factors for the "Likelihood of Confusion" standard? |
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Definition
1. Similarity.
2. Strength of the mark.
3. Proximity of products.
4. Sophistication of the customers.
5. Actual confusion.
6. Good Faith.
7. Quality of D's product.
8. Likelihood of Bridging the gap. |
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Term
| What are the 4 major cases on trademark infringement? |
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Definition
| Polaroid, Lever, Sleekcraft, DuPont. |
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Term
| How do you assess the Strength of the mark? (3 factors) (for trademark infringement) |
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Definition
Conceptual and Commercial
Spectrum of Marks
Crowded Field. |
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Term
| How do you assess "similarity" of marks? (trademark infringement) |
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Definition
| Sight, sound, and meaning. |
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Term
| How do you assess Proximity? (for trademark infringement) |
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Definition
| Look to where each product is being sold. |
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Term
| How do you assess Sophistication of the consumer? (trademark infringement) |
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Definition
| Ratio between price and degree of care. |
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Term
| What does the infringement factor "Bridging the gap" assess? |
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Definition
| The likely expansion of product lines. |
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Term
| What does the infringement factor "Bridging the gap" assess? |
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Definition
| The likely expansion of product lines. |
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Term
| Is Actual Confusion required for trademark infringement? |
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Definition
| No! It is just one factor. |
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Term
| Is any one factor determinative when assessing trademark infringement? |
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Definition
| No, but some are more important than others. |
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Term
| What is Reverse Confusion? |
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Definition
When the Junior User of the mark saturates the market, and overwhelms the senior user's mark.
Basically, it isn't that people think the Junior user's mark is the Senior user's (like usual), but they think that the Senior User's goods are associated with the Junior user. |
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Term
| When assessing Reverse Confusion, which "Likelihood of confusion" factors are treated differently? |
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Definition
| Strength, actual confusion, and intent. |
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Term
| What is Post-Sale confusion? |
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Definition
| Primarily concerned with "cheap-knockoffs," the idea is that the consumer isn't confused, but that people who see the consumer with the product will be confused. |
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Term
| Initial Interest Confusion: What is it? |
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Definition
| Unlike the regular "Likelihood of Confusion" analysis, Initial Interest Confusion looks to whether a mark user has captured consumer attention through another's mark. |
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Term
| Gibson sued PRS for using the Les Paul body shape under which theory of infringement? what result? |
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Definition
| Post-Sale Confusion. Court said that doctrine only applied when the alleged infringer's product was hurting the reputation of the senior mark user (i.e. when the junior user's product was inferior in quality). |
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Term
| Blockbuster put up billboards on the freeway that said, "West Coast Video: next exit" where there were in fact only blockbuster video stores. What theory did West Coast Video sue under, and what result? |
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Definition
| Initial Interest Confusion; they were successful. Blockbuster was riding on the coattails of WCV's goodwill/reputation. |
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Term
| What are the two theories of secondary liability for Trademark Infringement? |
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Definition
| Contributory Liability and Vicarious Liability. |
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Term
| Define "Contributory Liability." |
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Definition
Contributory liability is one of 2 types of secondary liability for trademark infringement.
A person is contributorily liable where they intentionally induce another to infringe a TM or if they continue to supply a product to one whom they know/have reason to know is engaging in TM infringement. |
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Term
| To prove Contributory Liability, does there have to be actual knowledge? |
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Definition
| No, only constructive knowledge is required: willful blindness, reason to know, OR actual knowledge. |
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Term
| Define Vicarious Liability. |
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Definition
| This is where an apparent or actual partnership (agency?) can be shown, beyond mere financial benefit or right/ability to supervise. |
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Term
| What is trademark dilution? |
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Definition
| diminution of the source-identification value of a famous mark through blurring or tarnishment. |
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Term
| Can a mark with only niche fame argue "dilution?" |
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Definition
| No, niche fame is not enough. |
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Term
| What are the 4 factors used to assess whether a mark is famous? |
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Definition
1. Duration, extent, geographic reach of advertising and publicity of the mark.
2. Amount, volume, and geographic extent of the sales.
3. Actual recognition.
4. Registration on the principal register. |
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Term
| How do you assess "Blurring?" |
|
Definition
Degree of similarity.
Degree of inherent or acquired distinctiveness.
Intention to create association.
Mental association. |
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Term
| Is "tarnishment" covered in the statute? |
|
Definition
|
|
Term
| How is "tarnishment" assessed? |
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Definition
The more lewd the use, the more likely it's considered tarnishment.
Chewy Vuiton case indicates that "Parody" is a possible defense. |
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Term
| What is "Incontestability?" |
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Definition
| presumption of validity after five years of registration on the principal register. |
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Term
| What evidentiary value does "Incontestability" offer? |
|
Definition
| ownership and exclusive right to use. |
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Term
| Is Incontestability used offensively or defensively? |
|
Definition
|
|
Term
| Incontestable marks can be challenged on what 2 grounds? |
|
Definition
|
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Term
| If the owner of an incontestable mark has stopped using a mark, how long before it is Statutorily Presumed to be "abandoned?" |
|
Definition
|
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Term
| In proving abandonment, what must the challenger show, regarding the incontestable mark owner's intent? |
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Definition
| Must show that there was no intention to resume use. |
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Term
| What kind of evidence, in regards to length of time, is used to show that a mark has been abandoned? |
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Definition
| Depends upon the industry (in terms of what reasonable time is?...what about the 3 year presumption?) |
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Term
| What is the first sale doctrine? |
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Definition
| The first-sale doctrine creates a basic exception to the copyright holder's distribution right. Once the work is lawfully sold or even transferred gratuitously, the copyright owner's interest in the material object in which the copyrighted work is embodied is exhausted. The owner of the material object can then dispose of it as he sees fit. |
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Term
| How does the "First Sale" doctrine apply to reconditioned goods? |
|
Definition
Can't deceive or confuse.
Must be adequate notice that the goods are refurbished. |
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Term
| What is classic trademark fair use? |
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Definition
| using a trademark term in the plain english/descriptive sense of the word. |
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Term
| What is comparative trademark fair use? |
|
Definition
| Using another's mark to describe characteristics of your product--comparative advertising. |
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Term
| What is the 3 part test for comparative trademark fair use? |
|
Definition
TM must be necessary to identify product.
Must use no more information than necessary.
Must...be truthful?! |
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Term
| What is Nominative trademark Fair use? |
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Definition
| Defendant uses Plaintiff's TM to describe their own product. |
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Term
| 3 part test for nominative trademark fair use: |
|
Definition
1. necessary to describe p's goods and services.
2. D used only so much as was reasonably necessary.
3. D did nothing else that would suggest sponsorship or endorsement. |
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|
Term
| What is the source of Copyright law? |
|
Definition
| The Constitution, and the Copyright Revision Act of 1976. |
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|
Term
| What is the policy behind copyright law? |
|
Definition
| Promotion of science and the arts. |
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Term
| Copyright protection arises automatically so long as... (3 things) |
|
Definition
The work is original.
The work is fixed in a tangible form.
The work is an EXPRESSION of an idea, rather than an idea itself. |
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Term
| What does "Fixation" require? Is it a copyright or trademark requirement? |
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Definition
| It's a copyright requirement. It means that the work must be sufficiently stable to be reproduced or otherwise communicated for more than a transitory period. |
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Term
| What are the two types of "Fixation?" |
|
Definition
| Physical Stability and Temporal Stability. |
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Term
| What is physical stability? |
|
Definition
| Physical stability is one of two types of copyright "fixation"; means that the work is attached to an unchanging, physical thing. |
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Term
| What is temporal stability? |
|
Definition
| Temporal stability is one of two types of copyright "fixation"; it means that the work is static over time (meaning, for example, every time you put in the same keys in a computer, you get the same image) |
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Term
| For a copyright to be valid, it must be original. Originality has two requirements... |
|
Definition
1. Work is independently created by the author.
2. The work possesses some minimal degree of creativity.
.....requisite level is extremely low
............................some minimal degree of creativity.
.......................only a modicum of creativity required. |
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Term
| Is originality in copyright the same as novelty in patent law? |
|
Definition
| No, originality is a lower threshold. |
|
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Term
| True or False: Originality is a statutory requirement. |
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Definition
| False. Originality is a Constitutional requirement. |
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Term
| Fill in the blanks. "Others are free to _____ the _____. They are not free to ______ the ______." |
|
Definition
| Others are free to COPY the ORIGINAL. They are not free to COPY the COPY. |
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Term
| Are Facts protected? Why or why not? |
|
Definition
| No, they are not protected. No one authored them. |
|
|
Term
| What level of protection are compilations entitled to? |
|
Definition
| They are entitled to THIN protection. The manner in which they are organized is protected. |
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Term
| True or false: Compilations are entitled to protection based on the "sweat of the brow" theory. |
|
Definition
| False. In the past, that was true, but this doctrine has been disfavored. |
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Term
| Idea/Expression dichotomy: Expressions of ideas are protected, but mere ideas are not. What happens when the idea and expression can't be separated? what is this doctrine called? |
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Definition
| This is "the merger doctrine." when an idea and expression can't be separated, then no protection is afforded. |
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|
Term
| What is "the blank forms rule?" |
|
Definition
| Blank forms aren't protected. IF something conveys information, it may be protected, but if it merely receives information, not protected. |
|
|
Term
| What is "The Abstraction Test?" |
|
Definition
The more abstract or broad an idea is, the less protection it receives.
The more concrete and developed an idea is, the more protection it receives. |
|
|
Term
| What is/are "Scenes a Faire?" |
|
Definition
| "Conventions of a genre." They are sort of general components necessary to tell a type of story in a way that satisfies the expectations of the audience. (Capes for superheroes, six-guns for cowboys, saddle shoes for gangsters). |
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Term
| The Nash case involved a gangster historian and a tv show. What concept did it illustrate? |
|
Definition
|
|
Term
| Baker v. Selden involved an accounting book system. What concept did it illustrate? |
|
Definition
Merger Doctrine--Dude's forms were a blend of an idea and an expression...an idea for an accounting system, expressed with blank forms.
Blank forms aren't protected. |
|
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Term
| A has a superhero that flies and wears a cape. Later, B creates another superhero that flies and wears a cape. What is B's best defense? |
|
Definition
| Scenes a faire. Flying and capes are obvious components to superhero stories which the audience may expect to see. |
|
|
Term
| What does PGS stand for? What does it include? |
|
Definition
| Pictorial, Graphic, and Sculptural works. It includes two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. |
|
|
Term
| What are some things that copyright law protects? |
|
Definition
| literary, musical, choreographic, dramatic, pictorial, graphic, and sculptural works etc. |
|
|
Term
| Are functional items protected? |
|
Definition
|
|
Term
| When is an item considered "functional?" |
|
Definition
If design elements reflect a merger of design process influenced by utilitarian concerns.
If form and function are inextricably intertwined.
If an ordinary observer perceives a physical and conceptual separability.
If you look at the design process of the creator. |
|
|
Term
| What case illustrated the "functionality" principle? |
|
Definition
| The bicycle "ribbon rack" case, Brandir. |
|
|
Term
| What is a derivative work? |
|
Definition
A “derivative work” is a work based upon one or more preexisting works.
[such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.] |
|
|
Term
| Is there a higher standard of originality for derivative works? |
|
Definition
| No, just regular standard of originality. Must be more than a trivial variation though, to be a derivative. |
|
|
Term
| What two things do you need to create a derivative work? |
|
Definition
Must be lawfully made (made with permission).
There must be a sufficient difference from the original. |
|
|
Term
| Schrock was the thomas the tank engine case. What did it illustrate? |
|
Definition
| Shrock illustrated that originality standard for derivative works is just the ordinary originality standard. |
|
|
Term
| What are the 3 elements for notice in Copyright law? |
|
Definition
1. Year
2. Name of the author.
3. (c), copr, or copyright. |
|
|
Term
| What is the "term" of a copyright? |
|
Definition
| Generally, life of the author plus 70 years. |
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Term
| A copyright registration certificate, if registered within 5 years of publication, is prima facie evidence of what? |
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Definition
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Term
| What are the 3 elements of Joint Ownership outlined in section 101? |
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Definition
1. Two or more authors.
2. Intent that the work be merged.
3. Into inseparable parts of a unitary whole. |
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Term
| How does one prove that they were an author for purposes of joint copyright works? |
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Definition
Must show more than minimal creative contribution.
Objective manifestations of intent, to be analyzed on a case by case basis (ex: contract, billing, decision making authority). |
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Term
| What are the two ways that a work is made "for hire?" |
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Definition
| Work made in the scope of employment, or a specially commissioned work. |
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Term
| When looking to see whether a work was made for hire, how do you prove a work was made in the scope of employment? (2 ways) |
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Definition
1. explicit language in a contract, OR....
2. Agency test. |
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Term
| How do you prove AGENCY to show that a work was made in the scope of employment (and thus was a work for hire)? 9 factors listed. |
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Definition
Agency test:
Hiring party's means and manner of control.
Skill required.
Source of tools.
Employee benefits.
Tax treatment.
Right to assign additional projects to other party.
Part of regular business of hiring party.
Hiring party's role in hiring and paying assistants.
Duration of the relationship between the parties. |
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Term
| How do you show that a work was specially commissioned? (3 parts). |
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Definition
the work must come within one of the nine limited categories of works listed in the definition above, namely (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas;
the work must be specially ordered or commissioned;
there must be a written agreement between the parties specifying that the work is a work made for hire.[1] |
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Term
| What is in the "bundle of rights?" (copyright law). |
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Definition
Reproduction
Distribution (sale/lease/lend)
Derivative Works
Public display/performance (place open to the public, substantial number of persons)
Audio transmissions |
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Term
| What is the 2 part test for copyright infringement? |
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Definition
1. Ownership of a valid copyright.
2. Infringement: that the defendant copied protected elements of the plaintiff's works. |
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Term
| How do you prove copying? |
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Definition
1. With direct evidence.
2. With circumstantial evidence. |
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Term
| What circumstantial evidence can you offer to prove copying...to prove copyright infringement (so many layers. so many tests). |
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Definition
1. Access AND
2. Substantial Similarity. |
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Term
| How do you prove access, to circumstantially prove copying, to prove copyright infringement? |
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Definition
Access:
1. Chain of events between the work and the defendant.
2. Widespread dissemination of the original. (Bolton case). |
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Term
| How do you show substantial similarity, for purposes of circumstantial evidence of copying? |
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Definition
Extrinsically (Objective. analytical dissection comparing the two works as a whole, and expert testimony).
Intrinsically (Subjective. ordinary reasonable person, looking at the total concept and feel, NO expert) |
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Term
| How does the "copying" analysis change when there are public domain elements used? |
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Definition
| You first filter out the public domain elements. Then you use the "more discerning observer" standard. |
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Term
| what's the "more discerning test?" |
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Definition
This is the copying analysis that you do when public domain elements are being used.
It is an intrinsic test, applicable when much of the work consists of uncopyrightable elements. Compares the works looking only at the copyrightable elements: "Filters out and disregards" the unprotected elements. |
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Term
| What is subconscious copying? Is it actionable? |
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Definition
That's where there was no intent to copy, but also no independent creation. (ex: Michael Bolton copying Isley brothers.)
It IS still actionable. It is not a defense. |
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Term
| What is the "inverse ratio rule" as applied to assessing access? |
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Definition
| Lesser showing of substantial similarity required if there is a strong showing of access. (9th circ test). |
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Term
| What is the "striking similarity test," and what jurisdiction uses it? |
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Definition
SS test says that...where similarity is STRIKING, access is presumed.
This is the test used by the 7th circ. |
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Term
| How do you show substantial similarity, for purposes of circumstantial evidence of copying? |
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Definition
Extrinsically (Objective. analytical dissection comparing the two works as a whole, and expert testimony).
Intrinsically (Subjective. ordinary reasonable person, looking at the total concept and feel, NO expert) |
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Term
| How does the "copying" analysis change when there are public domain elements used? |
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Definition
| You first filter out the public domain elements. Then you use the "more discerning observer" standard. |
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Term
| what's the "more discerning test?" |
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Definition
This is the copying analysis that you do when public domain elements are being used.
It is an intrinsic test, applicable when much of the work consists of uncopyrightable elements. Compares the works looking only at the copyrightable elements: "Filters out and disregards" the unprotected elements. |
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Term
| What is subconscious copying? Is it actionable? |
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Definition
That's where there was no intent to copy, but also no independent creation. (ex: Michael Bolton copying Isley brothers.)
It IS still actionable. It is not a defense. |
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Term
| What is the "inverse ratio rule" as applied to assessing access? |
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Definition
| Lesser showing of substantial similarity required if there is a strong showing of access. (9th circ test). |
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Term
| What is the "striking similarity test," and what jurisdiction uses it? |
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Definition
SS test says that...where similarity is STRIKING, access is presumed.
This is the test used by the 7th circ. |
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Term
| What are the two types of secondary liability in Copyright law? |
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Definition
| Vicarious infringement and contributory infringement. |
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Term
| What are the two elements of Vicarious Copyright Infringement? |
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Definition
Defendant...
(1) has the right to exercise direct control over an infringer (a legal right to stop or limit the infringing activity, and the practical ability to do so).
(2) profits from the activity. |
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Term
| What are the two elements of contributory copyright infringement? |
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Definition
Defendant is
(1) Intentionally inducing or encouraging direct infringement (through active encouragement, or by producing a product with no substantial non-infringing uses.
(2) Must be intentional (intent inferred if D learns of specific infringing info and fails to purge it. |
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Term
| What are the 4 factors of the "fair use" defense to copyright infringement? |
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Definition
1. Purpose and character.
2. Nature of the copyrighted work.
3. Amount and substantiality of the taking.
4. Effect on the market for the copyrighted work. |
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Term
| What are some factors considered when analyzing the "purpose and character" requirement of the Fair Use defense? |
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Definition
Whether it is commercial or non-commercial. (not dispositive, but non-commercial is better for the infringer).
Whether it is Transformative. (Did the new work change the meaning or message, add additional element). This is the most important factor! The more transformative it is, the less important is the commercial nature of the is. |
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Term
| What are some of the factors considered when analyzing the "nature of the copyrighted work" requirement of the Fair Use defense? |
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Definition
Whether it is factual or creative (mere facts not protected, but there are protectable elements in factual works; however, the more creative the better).
Published v. Unpublished. |
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Term
| What are some of the factors considered when assessing the "Amount and Substantiality of the taking" requirement of the fair use defense? |
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Definition
Quality and quantity.
Whether it is the heart of the work.
Whether it's a parody (allowed to take more! necessary to conjure up the image of the original). |
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Term
| What are some of the factors considered when analyzing the "Effect on the Market for the Copyrighted Work" requirement of the fair use defense? |
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Definition
Look not just to the original work, but to impact on potential derivative works.
Special considerations for Parody (this factor becomes less important, because copyright holders don't typically parody themselves).
Whether a use is complimentary or substitutional. |
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Term
| How does the First Sale defense work in Copyright law? |
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Definition
Allows market for used copies of works.
There are limitations in the statute for certain kinds of works.
Must consume the original?
International Exhaustion rule applies. |
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Term
| How does License/Authorization work as a defense to copyright infringement? |
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Definition
| Well, if you have been granted the authority to use the material, you aren't infringing! |
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Term
| What are the three types of authorization/license that can be granted in copyright law? |
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Definition
Express
Implied (by conduct or other terms, industry norms, or new technology)
Exclusive (must be in writing) |
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Term
| What does the DMCA do, generally? |
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Definition
| It prohibits circumvention and trafficking in circumvention devices. |
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Term
| What does the DMCA prohibit? |
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Definition
Circumvention.
Trafficking. |
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Term
| In the DMCA, what does "Circumvent a technological measure" mean? |
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Definition
| to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; |
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Term
| In the DMCA, what does "effectively control" mean? |
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Definition
| a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work. |
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