By Ann Springer, Associate Counsel
March 18, 2005
"Only one thing is impossible for God: to find any sense in any copyright law on the planet."
—Mark Twain's Notebook, 1902-1903
I. Ownership of Faculty Work: An Ongoing Legal and Employment Issue for Faculty
A. The distance education craze of the 1990's pushed the question of faculty ownership of scholarly work into the forefront of higher education legal debate. The creation of classes where the entire course is taught on-line, where reading material, syllabus, teaching notes, commentary and all other aspects of a class are conducted remotely, and most influentially, the possibility of significant profit from that class, forced faculty and administrations to start thinking about who owned that material, and who had control over its future distribution, revision and maintenance. Teaching and scholarship were increasingly broken down into component parts, and we all continue to attempt to put that round peg of academic work into the square hole of copyright law.
B. While the headlong rush toward computerized distance education has slowed down considerably, it has permanently changed our way of thinking about copyright ownership in academe. The concept of academic work as individual tasks, each with separate, discrete owners, continues to resurface, calling into question the very fabric of academic thought and scholarship.
• How can one define what part of a syllabus and class plan is the part the faculty member was hired to create and what part is shaped by the faculty member's individual, independent thought and research?
• Is the content of a class governed by strict departmental rules for "Intro 101" the creation of the department or the individual teacher?
• Is the method of the class, governed by grading policies and departmental standards, controlled by the rules of the institution, or the scholarly thinking of the individual faculty member?
Faculty are hired to be independent thinkers. That is their value. And this model does not fit into the corporate notion of copyright ownership and work for hire.
C. A Kansas court recently faced these issues in determining whether copyright ownership was a mandatory subject of bargaining. The court, in a rather bizarre decision, concluded it was not, because, it said, mandatory bargaining would conflict with federal law's provision that an author may to negotiate away his or her intellectual property rights but is not required to do so. To reach this conclusion, the court assumed faculty intellectual property was work-for-hire, and thus the property of the University—a very questionable legal assumption. Yet the case raises interesting questions in that if the reverse were true, namely if faculty scholarly work is held to be the property of the faculty author, then the same argument would hold true in that the faculty author could not be forced to negotiate away that copyright.
See Pittsburg State University/Kansas NEA v. Kansas Board of Regents, PSU and PERB, 101 P.3d 740 (table), 2004 WL 2848767 (Kan. App. 2004) (unpublished)(appeal pending): The Board of Regents proposed a new policy changing ownership of intellectual property, and the Kansas NEA objected. The Regents argued that intellectual property could not be considered a condition of employment because the subject had been preempted by federal and state law. The court concluded that making intellectual property rights mandatorily negotiable conflicted with federal law because federal copyright law allows an author (here presumed to be the university) to negotiate away his or her intellectual property rights but does not require the author to do so.
The basic question remains: Is copyright a federally protected ownership right which cannot be governed by collective bargaining contracts? Or is it a matter of employment rights, and essential in the bargaining process? Is it an hours and rewards question, or a fundamental ownership question or an academic freedom question? The answer, it seems, is "yes" to all, but this complexity seems to present an impossible conundrum for the courts.
II. What is Copyright?
A. The basic law on copyright is fairly straightforward: Copyright law protects original works of authorship fixed in any tangible medium See 17 U.S.C. §102.
Thus copyright belongs, most simply, to the author as soon as the author "fixes" it in writing.
1. This standard is a fairly easy one to meet; it is much less stringent than that for getting a patent (see Appendix A, Distinctions Between Copyright, Patent and Trademark). Consequently, copyright offers much less protection than patent.
2. Copyright owners don't have to record their copyright. Copyright can simply be asserted once the work is fixed in a tangible medium. While copyright can be registered (and, if a lawsuit is filed to enforce a copyright, must be registered at that time), such registration is not necessary to create the copyright protection.
Note: Thus the © symbol is not a requirement to make an item protected, nor is the lack of such a symbol any indication that the work is not copyrighted. However, including the © symbol is an easy way to send a clear reminder to readers that the work is protected and that the author values that protection.
3. Covered Works are anything fixed in a tangible medium.
a) This includes books, private letters, paintings, computer programs, motion pictures and other audiovisual work. It also includes anything else fixed, no matter how it is fixed. Thus it includes documents "written" on a computer disk, web pages, notes on scraps of paper, even your grocery list. Anything fixed qualifies for protection.
b) This of course makes any contract or policy requiring "reporting" of the creation of copyright material, or intellectual property, an absurdity.
4. Copyright does not protect ideas, nor does it protect the labor that goes into creating a written work.
a) No matter how much work goes into compiling data, for example, the data itself is not protected. If a work shows some originality or creativity in the way it is put together, that creative presentation might itself be copyrighted, but the data is not.
Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991). In this case the Supreme Court held that alphabetical listings in telephone directory white pages are not copyrightable. The Court allowed copyright protection for compilations or directories only for any original and creative elements of the arrangement or selection, and excluded protection of the underlying data. In doing so the Court rejected a number of decisions supporting a "sweat of the brow" doctrine (which allowed copyright protection based on the amount of work involved, rather than strictly on originality or creativity). The Court concluded that the sweat-of-the-brow doctrine went too far in that it "extended copyright protection in a compilation beyond selection and arrangement--…to the facts themselves."
5. Copyright only lasts for a limited time.
a) Copyright now lasts for the life of author plus 70 additional years. For commercial products (commercial authors), it lasts 95 years from the date of publication.
b) Note, however, that the legal authority for any time limit on copyright comes from Article I, Section 8, Clause 8 of the U.S. Constitution, which promotes "the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (Emphasis added). This leaves the specific time to be set by Congress, which keeps expanding the time. It was most recently expanded by the Sony Bono Copyright Term Extension Act (CTEA) of 1998. Legal challenges to the most recent expansion were unsuccessful. See Eldred v. Ashcroft, 537 U.S. 186 (2003).
B. The Bundle of Rights: What exactly does a copyright holder "own"?
1. Copyright law gives creators the exclusive right and authority to a "bundle of rights." Thus the author owns not only the specific work, but the right to control its use. See 17 U.S.C. §106.
2. This bundle of rights includes the right of:
a) Reproduction (the right to control all forms of copying of the work);
b) Translation, abridgment, revision (the right to control derivative works);
c) Public distribution; and
d) Public performance and display.
3. Therefore ownership includes not only immediate but also future rights. It includes control over future revisions of syllabi, online courses, textbooks, etc., and rights and uses at one's home institution versus those faculty take with them when they leave.
C. Copyright Ownership Defined:
1. Ownership of a copyright is different from ownership of a tangible object. See 17 U.S.C. §202.
2. Ownership of copyright has to do with the right to control future use of the work, separate and apart from the treatment of the physical item on which that work is fixed.
a) For example, if an author writes a book, s/he owns the copyright. S/he has rights over what happens to the content of the book. But if you buy that book in the bookstore, the author does not own your copy. S/he has no right over what you do with that particular copy of the book. You can resell it at a used bookstore, give it to a friend, etc. But the author does have control over how you use the content of the book, and thus can control your reproduction of the book, translation of it, marketing of it, etc.
3. Transferring a copy of a book does not affect copyright, and transferring copyright does not give a copyright holder property rights to any particular material object.
D. Transfer of Ownership of Copyright (See 17 U.S.C. §204).
1. Copyright must be deliberately transferred.
2. Any transfer of ownership must be both in writing and signed.
a) A unilaterally imposed institutional policy cannot legally take away your copyright ownership of your work.
b) However, if you sign an employment contract ceding copyright to your work, or sign a faculty handbook indicating acceptance of the policies within, such a signed document could be construed as a contract and might constitute a valid transfer of rights.
c) Thus collective bargaining contracts defining specific areas of faculty work as belonging to the faculty, but leaving more grey areas open to resolution by future individual contracts, both protect the faculty but leave room to accommodate the need for an individual signed writing when necessary.
III. Work For Hire: When the Owner is an Entity or Employer
A. The "work-for-hire" doctrine is a statutory exception to the general ownership provisions of the copyright law. It is a way of allocating whether an employee or an employer is the author, and thus copyright holder, of work performed in the course of employment. The work-for-hire provision entitles an employer to assert ownership over materials prepared by its employees acting within the "scope of their employment."
1. See 17 U.S.C. §101 and §201.
2. Example: If a marketing director for an auto manufacturer writes an advertising brochure, the copyright to that document belongs to the company. The brochure was prepared by an "employee" in the "scope of employment." Thus, copyright is owned by the employer, and the employer has the right to revise, edit and translate the brochure, release it to the public, discard it, etc., whatever the employer chooses.
IV. What is Faculty Work and Where Does it Fall?
A. Academic work covers a wide range, from books and articles to syllabi, class notes, and course descriptions to on-line courses and computer programs to grant proposals and university governance materials. Ownership of these various elements of faculty work depends upon a number of factors, and may vary not only between categories but within them.
B. Quantifying individual aspects of faculty work is extremely difficult, because of its vast variety and scope. The majority of traditional faculty work belongs to the faculty, and doesn't fit as work-for-hire. However, there are some faculty projects that are highly integrated and dependent upon the administration or outside entities. These are likely to be subject to joint or some other form of shared ownership, or be considered work-for-hire. All but the most blatant of such "commissioned" works, however, and everything else in between, fall into the gray middle area where individual decisions must be made on a case-by-case basis.
C. Faculty Scholarly Work:
1. Generally, faculty scholarly work is not considered work-for-hire. "[I]t has been the prevailing academic practice to treat the faculty member as the copyright owner of works that are created independently and at the faculty member's own initiative for traditional academic purposes." Statement on Copyright, AAUP Policy Documents & Reports 182 (9th ed. 2001).
2. Despite this general practice and legal understanding, some colleges and universities still proclaim that even traditional academic works are "works made for hire," and that the institution is the initial owner of copyright. "The most common standard employed by universities for claiming ownership of faculty works is the 'use of university resources' or 'significant or substantial use of university resources.' … However, since there is no tradition of applying this standard, the process of defining it will be one of uncertainty for both parties…." Laura Lape, "Ownership of Copyrightable Works of University Professors: The Interplay Between the Copyright Act and University Copyright Policies," 37 VILL. L. Rev. 223 (1992).
3. Administration ownership of faculty scholarly works, lecture notes and teaching materials would profoundly contradict the practices of the academic community. Faculty scholarship as work-for-hire doesn't fit, legally or policy-wise, into academic scholarship.
a) Academic freedom requires that faculty be free to produce work reflecting their own views and theories--not those of administration or trustees. If all work belonged to the administration, then its content would also have to be controlled or at least accepted by the administration, which would vitiate any freedom of thought or inquiry.
(1) "Institutions of higher education are conducted for the common good, and . . . [t]he common good depends upon the free search for truth and its free exposition." 1940 Statement of Principles on Academic Freedom and Tenure, AAUP Policy Documents & Reports 3 (9th ed. 2001).
(2) Courts have generally looked to employer control over the work as a deciding factor in determining work-for-hire ownership. While debate exists as to whether that control must be actual or simply be the right to exercise control, the focus on the employer's ability to direct the outcome remains.
b) In traditional academic works "the faculty member rather than the institution determines the subject matter, the intellectual approach and direction, and the conclusions." Thus it follows that the faculty member rather than the institution would have ownership. Statement on Copyright, AAUP Policy Documents & Reports 182-183 (9th ed. 2001).
(1) "Were the institution to own the copyright in such works, under a work-made-for-hire theory, it would have the power, [to control it] and indeed to censor and forbid dissemination of the work altogether. Such powers, so deeply inconsistent with fundamental principles of academic freedom, cannot rest with the institution." Id.
c) Not only is faculty control of its scholarly work required for academic freedom reasons, but in fact, administrations are usually happy to distance themselves from some of the scholarly work of faculty.
(1) If the administration owned all the work of faculty, then it would be responsible for the content. Few administrations want to claim responsibility for every conclusion reached by faculty.
(a) For example, does the University of Colorado want the copyright ownership, and responsibility, for Ward Churchill's "little Eichmanns" essay? It appears not. As the Chancellor himself has stated, "Professor Churchill's views are his own and do not represent the views of University of Colorado faculty, staff, students, the administration or the regents."
(b) In another example, a professor at Brandeis wrote a book about the composer, Rebecca Clarke, and it was published by the University of Indiana Press. After publication, the owner of unpublished papers by Clarke contacted the press, claiming the book made unauthorized use of the papers. The press withdrew the book, but the owner of the papers also wrote to the professor's home institution, Brandeis University, asking questions about the "relationship" of the faculty member to the institution. The administration responded that the work was done by the faculty member as an "independent scholar," and that work of such scholars belongs to the scholar, and not to institution.
(c) This issue often comes up in collective bargaining negotiations. The Kent State administration, for example, was well aware of this issue in negotiating a contract with the faculty. The contract reads in a way both positive to faculty ownership concerns, and protective of the university:
"A work made in the course of a Faculty member's normal duties and responsibilities is the property of the Faculty member, who has the right to determine the disposition of such work and revenue derived from such work. The University is not held responsible for any opinions expressed in the work nor for any direct, indirect, special or consequential damages resulting from the creation or exploitation of the property." Kent State University CBA, Article XVIII, Sec. 4 B 1.
(2) If the institution owned the scholarly work of faculty, it would also be responsible for items like negotiating book contracts, publishing agreements, handling revisions and updates, etc. Few institutions have the desire or resources to assume these tasks.
4. Few court decisions deal directly with work-for-hire in higher education. However, a few prominent decisions exist in the federal courts that find faculty authors own the copyright to their scholarly works.
a) Weinstein v. University of Illinois, 811 F.2d 1091, 1094 (7th Cir. 1987): This case involved multiple authors competing over control of an article. An assistant professor sued his college and the university regarding an article he co-wrote on "Teaching Problem Solving in a Post-Graduate Clinical Pharmacy Clerkship." (His co-authors had made changes he didn't agree with). The district court concluded that the article was the university's property because the university funded the clinical program which was the focus of the article. The court reasoned that because Weinstein was a clinical professor, he was required to conduct clinical programs and write about them as part of his appointment, and thus the article was a work-for-hire.
The federal appellate court, in an opinion written by Judge Easterbrook (who is also a professor at the University of Chicago Law School), reversed the decision, finding that faculty scholarly work was not work-for-hire. The court recognized and affirmed the longstanding tradition that higher education faculty own the copyrights to their academic work. The court noted:
When the Dean told [the professor] to publish or perish, he was not simultaneously claiming for the University a copyright on the ground that the work had become a "requirement or duty.". . . . When Saul Bellow, a professor at the University of Chicago, writes a novel, he may keep the royalties.
b) Hays v. Sony Corp, 847 F2d 412 (7th Cir. 1988): This opinion, written by Chief Judge Posner (also a prolific professor at the University of Chicago law school) found that an exception for academic work from the work-for-hire doctrine could arguably still be read into the copyright act. "[T]he universal assumption and practice was that, in absence of an explicit agreement as to who had the right to copyright[,] such writing belonged to the teacher rather than to the college or university." The court also noted that although college faculty write as part of their employment responsibilities and use employer facilities and resources to do so, "[a] college or university does not supervise its faculty in the preparation of academic books or articles, and is poorly equipped to exploit their writings, whether through publication or otherwise."
D. Work-for-Hire: How Does Faculty Work Fit In?
1. Those instances where faculty work is considered work-for-hire are those where the administration provides the specific authorization or supervision for the preparation of the work. Id.
a) Some examples of work-for-hire where works are institution-directed, or assigned as an institutional responsibility, are a recruitment brochure written by an admissions director, an affirmative action report written by a department chair, a catalog for the university art museum's most recent exhibit written by an art professor (which would presumably be outside the art professor's normal scope of employment).
2. AAUP policy holds that for faculty work to be work-for-hire, it requires use of extra-ordinary resources; use of traditional resources "such as office space, supplies, library facilities, ordinary access to computer and networks, and money," are not sufficient to make faculty work into work-for-hire. See, Statement on Copyright, AAUP Policy Documents & Reports 182 (9th ed. 2001).
a) Note that the focus is on what is ordinarily provided, not on the amount of resources. Thus while the resources received by a physicist staffing a lab will be much higher than those given an English professor, that does not transform the physicist's work into work-for-hire.
3. The traditional definition of work-for-hire doesn't work for faculty: The question of whether faculty are "employees," and whether their work is "within the scope of employment" doesn't answer the question.
a) Employees: While the tradition in the academy may be to view faculty as scholars affiliated with an academic institution, under the law there is little debate that professors employed on a salaried basis, with benefits, tax withholding and other symbols of employment, are employees. (Those faculty working on a contingent basis, however, or on an adjunct or per course basis, might present a different picture).
b) The Scope of Employment:
(1) The distinction between work and personal development is a harder line to draw for faculty than other employees.
(a) Professors have the unusual responsibility, as part of their employment, to be creative and independent outside of class in their intellectual scholarly life. Thus the position of a professor requires an "employee" who researches and writes not to promote a particular viewpoint of the employer, but one who engages in an independent search for truth and knowledge. This model does not fit into the work-for-hire framework.
(2) As one commentator has noted, "insofar as custom plays a role in determining the intent of the parties to an employment contract, it defines, at least in part, what professors are hired to do. Thus, the longstanding assumption that professors own the copyrights to their works is evidence that the parties do not consider the creation of copyrightable works of authorship to be within the scope of employment." Laura Lape, "Ownership of Copyrightable Works of University Professors: The Interplay Between the Copyright Act and University Copyright Policies," 37 VILL. L. Rev. 223 (1992).
(3) Another legal scholar has opined: "Because of the tradition of independence and judgment that are commonly associated with professional activities, the fact that the individual who prepared the work is a professional, such as an architect or university professor, will weigh heavily toward a finding that he, rather than his employer, is the author of ay works that he creates while in the other's employ." Paul Goldstein, Esq. Copyright, 2nd ed. §4.3.2 (Aspen Publishers 2005).
V. How are Faculty Unions Dealing with This Conundrum?
The multifaceted nature of faculty work presents a significant challenge to the need to protect faculty ownership though collective bargaining. While traditional scholarly works should clearly belong to faculty, there is much in today's academic workplace that presents novel and/or non-standard situations; collaborative programs, works using great deals of technical or other support, works governed to some extent by funders, etc.. Many contracts have dealt with this conundrum by setting up procedures for individual contracting around individual works. Copyright to scholarly works is retained by the faculty, and "agreements to later agree" are set up to deal with issues beyond that fundamental level. By creating a process to handle situations as they arise, contracts create protections for faculty while reserving the fluidity essential to the area.
A. An important first step is language defining with specificity the "traditional scholarship" that belongs to faculty so that it includes include things like syllabus, tests, lectures, computer programs, teaching aids, etc., in addition to articles and books.
The AAUP - D'Youville College Contract: Faculty owned intellectual property is defined as "including, but not limited to, books, tests, articles, monographs, glossaries, bibliographies, study guides, laboratory manuals, syllabi, tests and work papers, lectures, musical and/or dramatic compositions, unpublished scripts, films, filmstrips, charts, transparencies, other visual aids, video and audio tapes and cassettes, computer programs, live video and audio broadcasts, programmed instruction materials, drawings, paintings, sculptures, photographs, and other works of art."
B. Other faculty work, such as that requiring substantial resources, may be singled out as the property of the university, jointly owned and/or as the subject of future debate or contracting.
AAUP - Cuyahoga Community College Contract Article 24, Sec. 24.02: "Faculty members and the College shall share the ownership and disposition of copyrightable material, and patentable discoveries or inventions and intellectual property generated where there is a substantial use of College personnel or facilities not uniformly provided to other similarly-situated faculty members."
AAUP - Rider University Contract, Article XXXII. C. 3.: "Where the substantial use of University Resources occurs, the University and the bargaining unit member shall be joint owners of the intellectual property, and the creator and the University shall negotiate the allocation specific ownership interest, amounts of remuneration, respective obligations, etc."
C. Agreements are often then made to make agreements at a future date.
AAUP - D'Youville College Contract, Article XX, Sec. C: "The College and the employee are joint owners of intellectual property when they enter into a specific agreement to create such intellectual property and such agreement shall define the development obligations and ownership share of each party".
AAUP - Kent State University Contract, Article XVIII, Sec. 4, B, 1 and 2: "A work made in the course of a Faculty member's normal duties and responsibilities is the property of the Faculty member, who has the right to determine the disposition of such work and revenue derived from such work. …. The University is the owner of intellectual property only when the Faculty member and University knowingly and voluntarily enter into a written agreement to specifically create or use such specified intellectual property in exchange for additional compensation."
D. The issue of "significant resources" and future agreements are sometimes combined in one contract provision.
AAUP - Wright State University Contract, Article 20, Sec. 20.2.5: "Development of distance learning courseware, instructional software, and other multimedia works involving significant University resources requires a written agreement between the University and the creator(s) outlining the rights and responsibilities of the parties. The agreement will cover, at a minimum, ownership, the right of the creator(s) to erase videotape or delete from a Web server any or all of the course content at the conclusion of a course, the need for written permission from the creator for the modification, reuse, or sale of courseware, the responsibility for obtaining copyright permission for items used in the creation of courseware, and the distribution of royalties."
E. Another oft-pursued option is to grant copyright to the faculty, but reserve certain uses to the institution. For example, some say the college has right to purchase intellectual property owned by faculty (AAUP - D'Youville College Contract, Article XX.C.2.) or has license (e.g. non exclusive right) to use it (Id., at C.1), as way of preserving copyright ownership with faculty but at the same time preserving the materials for use for university purposes.
F. AAUP Suggested Language:
AAUP has suggested language available covering possible ways of addressing the issues of intellectual property and distance education. The suggested language on intellectual property provides guidance on three main areas:
1. Definitions of intellectual property: this language provides specific guidance on how to distinguish between patents and copyright, and what to include in the definitions of each.
2. Ownership of intellectual property: this language sets out both the fundamental tenet of faculty ownership of scholarly work, and then the different, limited areas of joint ownership and work-for-hire, including specially commissioned or specially contracted work.
3. Use of intellectual property: preserving ownership for the faculty but allowing the institution free use of such material for particular purposes.
4. Treatment of funds generated from intellectual property: giving control over funds primarily to the owners of the copyright
5. Resolving emerging disputes: this language sets up a Intellectual Property and Policy Rights Committee made up of faculty, or faculty and administrators, to deal with novel, uncovered, and emerging issues.
Faculty independent thought, and control over their scholarly works, is at the core of the mission and success of the American higher education system. Without protection for the free and unfettered search for knowledge, our universities and their faculties will lose their value to society. Where the law remains somewhat unclear and unsettled (albeit with some strong precedent for protecting faculty copyrights), it is all the more important that faculty and administrations address and resolve these issues in a way that protects their core missions and allows faculty to have confidence in their ability to create and control their scholarship.
Following are some resources for further legal and general information on copyright:
AAUP compiles articles (from Academe and elsewhere), commentary, institutional policy development, legislative information, and AAUP policies on the Intellectual Property section of its website.
For specific information on Copyright law as it applies to faculty use of copyrighted materials, see the section on Fair Use in Intellectual Property Legal Issues for Faculty on AAUP's website.
The Yale Library has a website with an extensive list of copyright links and resources, from links to the law itself to tutorials discussing particular issues. http://www.library.yale.edu/~okerson/copyproj.html.
The American Library Association (ALA) and the Association of Research Libraries (ARL) recently released a statement on "Applying Fair Use in the Development of Electronic Reserves Systems." That statement, along with other sample institutional policies, is available at http://www.arl.org/access/eres/eresfinalstmt.shtml.
Stanford University Libraries also have an extensive Copyright and Fair Use website, including links, informational materials and tutorials: http://fairuse.stanford.edu/.
Georgia Harper in the University of Texas System Office of General Counsel is Manager of the Intellectual Property Section of the institution's website, and a renowned expert in copyright law. She has created a site with very useful resources, including a crash course in copyright and other faculty centered information: http://www.utsystem.edu/ogc/intellectualproperty/cprtindx.htm.
The United States Copyright Office has a website with many resources, including links to the entire copyright law and regulations: http://www.copyright.gov/.
The Copyright Management Center managed by Professor Ken Crews of the Indiana University-Purdue University at Indianapolis Law School includes a number of valuable resources:
Distinctions Between Patent, Trademark and Copyright
A. Definition and Requirements:
1. Involves products and processes
2. Invention must be useful, novel and non-obvious (not reasonably anticipatable)
1. Must apply for patent, the application is subject to meticulous review
2. Patent lasts for 20 years from date of filing
C. Distinction from Copyright:
1. EG: A book on a new way of teaching: copyright will protect the book, and no one can copy the book or distribute without the author's consent. But that doesn't protect the method of teaching described in the book. Anyone can take that method and apply it, unless the method is patented.
1. Protects words or pictures that identify the source of a product or service
2. Allows trademark owners to prevent others from passing off separate work as produced by a known entity.
B. Definition of Violation:
1. "Mark" must be identified by the public as the mark of the plaintiff
2. Use of the mark by defendant on other products or services must be confusing--i.e., use of the mark could confuse the public into thinking that the defendant's products or services came from the plaintiff
C. Distinction from Copyright:
1. Copyright protection only protects against copying of the design, image or words. Trademark can protect against use of confusingly similar marks, even if they were created independently, without copying.
2. But, copyright begins the minute the work is fixed, and can protect against copying without any need to prove use in commerce or confusion by consumers.
1. Protects works from being copied by those other than the creator or owner of the copyright
B. Copyright protects:
1. Original works of authorship fixed in any tangible medium
2. Does not protect ideas
3. Protection lasts for the life of the author plus 70 years, and for commercial authors, 95 years from publication
C. Copyright gives owner a bundle of rights
1. Copyright holders have the right to reproduction, translation, abridgment, revision (derivative works), public distribution, public performance and display