Intellectual Property Laws, Their Rights, Responsibilities, and Infringement

There are three main areas of intellectual property law: copyright, trademark, and patent. These rights are protected by the Federal government; although, if the copyright, trademark, or patent is not registered with the proper office, it can be difficult to sue a person for infringement, plagiarism, or misappropriation.

Most people have heard the term “copyright;” however, probably only a few know that Article I, Section 8 of the Constitution provides for copyright protection.  The laws of copyright are outlined in Title 17 of the U.S. Code and in the 1976 Federal Copyright Act. Copyright protects an individual or group’s original work or expression of ideas. If created after 1978, the copyright protection lasts for 70 years after the death of the owner. Copyright covers original works such as music, literature, art, movies, architecture, etc. and protects against unauthorized use of these works by others and also gives the owner express rights of reproduction, distribution, etc. Whether or not the work is registered, affixing the copyright symbol (©), the date, and the name of the author on works that others see will make them aware of the copyrights.

Trademark law is similar in concept to copyright law in that prevents others from unlawful use; however, trademark protects a company’s brand name and reputation, and prevents others from taking advantage of or misrepresenting a brand. A trademark is a distinctive identifier of a product, which is not easily confused with another brand – think McDonald’s golden arches, the Nike swish, Starbuck’s coffee goddess, etc. Trademarks become protected once they are used by a business – such as on letterhead – and can be renewed indefinitely. The rights to a trademark are abandoned once the company stops using the brand/logo or for ten years after the date of registration. But, again, they are not easily defended in a lawsuit unless they have been registered. As with copyrights, affixing the trademark symbol (™ or ^SM) will make others aware of trademark ownership. Registered trademarks enjoy the privilege of extra legal protection and should always be accompanied by the symbol for a registered trademark: ®.

With regard to patent law, inventions are protected by the Constitutional provisions as copyrights and give the owner the right to make, use, and sell their inventions. Patent protection is good for 20 years from the date of the patent application.

Fair Use is governed by the Copyright Act and allows use of copyrighted material for limited purposes such as comment, news reporting, teaching, research, etc. depending on the purpose of the use. In general, Fair Use can be considered when only a small portion of a copyrighted work is used, or if it is for critical commentary, news reporting or parody.

Plagiarism occurs when a person uses another person’s copyrighted work (words, thoughts, or ideas) and represents it as their own without authorization or acknowledgment of the owner and misappropriation of personality refers to using another person’s image for financial gain – such as using a celebrity’s image on a product because an association will help sell more products.

As public relations professionals, we need to be vigilant about copyright and trademark laws and protecting the rights of our clients as well as making sure the practices of our client do not infringe on the rights of owners of other copyrights or trademarks. A good example of how this is not could occur is the 2010 Oprah Winfey “Own Your Power” trademark infringement lawsuit in which she was sued by a motivational speaker for the use of her trademarked (and registered) catchphrase, which she used for her business.  At first, a judge dismissed the lawsuit, ruling that Oprah had a right to the “fair use” of the catchphrase; however another judge remanded the lawsuit for further proceedings requiring Winfrey to prove the catchphrase was used descriptively only and in good faith, which is not likely to prevail since the Winfrey camp used the catchphrase, essentially, like a campaign slogan, for their corporate-sponsored event in conjunction with a magazine cover and episode of the show.  Was it fair use when it was so widely used? Certainly Oprah’s Oprah Winfrey Network general counsel is familiar with the ins and outs of trademark law and knew they were courting infringement. Did they reasonably expect that the phrase was not registered or was it really only descriptive and motivational? If it was just random and descriptive, why the repetition?  Additionally, it is worth note that Oprah bought the rights to her OWN (network) at the same time the registration application was filed for the motivational speaker in this lawsuit and it was noted that if a search had been done for “OWN,” “Own Your Power” would have popped up as well.

Additionally, in 1997, Oprah was sued by two of her former staff photographers over copyright of photographs they shot over almost a decade of the show. The lawsuit originated from Winfrey’s use of photographs that were individually copyrighted to her production company in a weight-loss book. They both wanted control of the photos. Oprah wanted them to be sure they did not land in tabloid magazines and the photographers wanted to have access to the photos, as it was the whole of their work for ten years and was defined by one, somewhat understandably, as his “legacy.” Under copyright law, the two exceptions to ownership are: when work is done under the employ of another or corporation or when the work is contracted by an individual or a corporation. In this case, it is clear that Oprah paid these photographers as staff and had the reasonable expectation that the pictures would remain the property of her corporation, Harpo Productions, Inc.; however, the judge ruled they would share the use of the photos. The photographers would retain creative rights of the photographs and would be able to go forward with publication of a book featuring photos from the show’s early years, but Winfrey has ensured, through the court, that none of the photos will be leaked to tabloids. That right is now court-protected.  This suit was settled amicably for both parties, but it could have been a very disastrous and expensive loss for the photographers since, according to the law, it was evident they were employed by Harpo Productions and were only taking these photographs at the direction of their employer, so they really should have lost the rights of ownership.

Public relations professionals have a responsibility to follow the letter of the law with regard to intellectual property, but they should also be aware of how other people or organizations are using the ideas of their clients to make sure they never cross the line from fair use to infringement and, if they do, that proper legal action is sought to protect the business and reputation of the client.

References:

"Canada: Fleeting Reference To Starlet In Song Not A Misappropriation Of Personality." Mondaq Business Briefing. (April 5, 2013 Friday ): 285 words. LexisNexis Academic. Web. Date Accessed: 2013/11/10.

 “Copyright: Fair Use.”copyright.gov.U.S. Copyright Office, June 2012. Web. 09 November 2013.

http://www.copyright.gov/fls/fl102.html

 “Copyright Law and Regulations.”copyright.gov. U.S. Copyright Office, n.d.Web. 09 November 2013.

http://www.copyright.gov/laws/

 “Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code.”copyright.gov.U.S. Copyright Office, n.d. Web.09 November 2013.

http://www.copyright.gov/title17/

Gower, Karla K. Legal and Ethical Considerations for Public Relations, 2^nd Edition. Illinois: Waveland Press, Inc., 2008. Print.

“Oprah Winfrey Must Once Again Defend ‘Own Your Power’ Lawsuit.”hollywoodreporter.com.The Hollywood Reporter, 2013.Web.09 November 2013.

http://www.hollywoodreporter.com/thr-esq/oprah-winfrey-once-again-defend-561194

Posner, Richard A. “Misappropriation: A Dirge.” Houston Law Review Volume 40 (01/2008): pp. 621-1455. Web. 09 November 2013.

“Professional Standards Advisory PS-14: Expropriation of the Intellectual Property of Others.”prsa.org.Public Relations Society of America.2010.Web.09 November 2013.

“Professional Standards Advisory PS-16: Plagiarism.”prsa.org.Public Relations Society of America. September 2010.Web. 09 November 2013.

“United States Copyright Office- A Brief Introduction and History.”copyright.gov. U.S. Copyright Office, n.d. Web. 09 November 2013.

 http://www.copyright.gov/circs/circ1a.html

“Winfrey, Photographers Settle Copyright Suit.”chicagotribune.com.Chicago Tribune, 17 August 2000.