CyberLaw and You

Atty. and Counselor at Law Christopher Juillet

Do you, as a new-media professional, know all you should know about CyberLaw? This was Attorney and Counselor at Law Christopher Juillet’s topic for our March program meeting and boy-oh-boy, was it informative!

Chris has held many posts and roles as part of STC, so it was a real treat to hear him speak about this issue. His main message: “The law continues to change and evolve,” and, “The waters are getting murkier, not clearer!” when it comes to this subject.

Chris covered a lot of great information about copyrights, and as writers, whether working for a company or as an independent contractor (IK), the laws are good to keep in mind. Copyrights apply to music and sound, source and object code, writing and images. The Copyright Extension Act of 1998 extends copyright protection of works created on or after January, 1, 1978 to:

  • The author’s life plus 70 years (it used to be only 50 years)
  • Corporate works for 95 years (it was 75 years)

Chris explained the definition of copyright as “an exclusive right to copy for a fixed period of time.” He said this time period was extended due to creations such as the Mickey Mouse character and musical works, like Rhapsody in Blues, because these works were going to lose their protection.

From the moment of creation, such works are protected with just the placement of a Copyright © symbol, since 1978. There’s no requirement to formally register, but registration does allow the holder to get triple actual damages, if incurred, said Chris. Infringement, if proven, can carry criminal penalties that can provide for attorney fees and damages to the holder.

In some instances, works can be used by another. Examples of Fair Use are:

  • Parody
  • Excerpts with a citation
  • Educational use

But Chris cautioned that it is always smart to get permission from the holder, just in case!

Things you should know about copyrights:

  • Works Made for Hire: The employer owns the copyright when you write at work. For IKs, work must be contracted and copyright assigned to the client in writing; until that time the IK owns the rights.
  • Digital Millennium Copyright Act Enacted in 1998:
    • Brings copyright law into closer alignment with WIPO treaties
    • Makes life easier for Online Service Providers by providing safe harbors for the misdeeds of their users
  • Video: If someone shoots video for you, they must assign it to you for you to own it
  • It’s a good practice to have image release forms for anyone you photograph, and a must have if a minor

Things you should know about trademarks:

  • Protection derived from the Lanham Act from the early 1920s to protect business images: logos, word marks, designs, trade dress, slogans, jingles – essentially your business image
  • Holder must be the first to use the mark to register it
  • Must be used in the manner of a mark
  • Must be used as a modifier not a noun
  • Must be used in the manner of a mark
  • Use is exclusive until the mark is abandoned if properly protected
  • Register with the Patent and Trademark office

Types of trademarks:

  • Coined marks – Strongest – invented company names (Exxon, Kleenex, Bandaid)
  • Arbitrary marks – Very Strong – real word applied to an unrelated product or service (Apple computers, “Glad” bags)
  • Famous marks – Strong – public associates the mark with the company or product (Coca Cola, Pepsi)
  • Suggestive marks – Weaker – real word/phrase (escort, radar detector, passport, modem, Downy fabric softener)
  • Descriptive marks – Weak- a term of art having a primary meaning
  • Generic marks are trademarks that become the primary real word for a class of products (Elevator, Escalator, Aspirin)

And finally, Chris said to make sure you are only using the ® for registered trademarks and the ™ for a word that you want to protect.

PS: The “Poorman’s Copyright,” is free, as long as you place the work in a sealed envelope and mail it to yourself. The post date is proof of creation; just don’t break the seal. But as Chris said, actual registration with Form TX is only about $40-60 to register online.  And now you only need send a pdf file, no need to send in multiple copies, so why not formally register?

By Lynn Nickels

Photos by Kelly Graham and Lynn Nickels