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Saturday, March 20, 2004

Design and Intellectual Property
We got some legal advice/information from Sean O'Connor, an assistant professor of law at the University of Washington School of Law and (not coincidentally) husband of CPID classmate Nikki O'Connor.

There are several types of intellectual property:

  • Patents. Protect products and processes at the Federal level for 20 years from the date of filing. You don't get the right to make or use what you've patented, you just get the right to exclude others from doing it. To get a patent, the product or patent has to be "useful, novel, and non-obvious." Non-obvious is the hardest to prove. As a side note, you can spend many thousands of dollars to patent something.
  • Copyright. Protects content (text, musical compositions, images, music, etc.) at a Federal level for the life of the creator, plus 70 years, or, if it is a corporate creator, 95 years from publication. When you create something, copyright automatically occurs on the creation of the content. You only need to register with the copyright office only before litigation and for enhanced damages. However, it is difficult to prove you created something on a certain date.

    To claim copyright, you need the original work in a fixed medium. (ie you can't just have had the idea for something). Note that you only get to copyright the expression of an idea, not the idea itself. You also can't copyright government works or, strangely, "useful" things.

    When copyrights are determined, the product is broken down into its basic components to judge what among them (if anything) is unique. If someone takes the same elements and puts them together in a similar, but not exact way (as, say Microsoft did to Apple with Windows (and what Apple did to PARC too)), it isn't copyright infringement.

    Copyright owners have exclusive control of copies, derivative works, distribution, and performance and display of their work. Transfers/assignments of copyright must be in writing.

    Designers typically work under two types of contracts: work-for-hire and (pre-)assignment of copyright. Work-for-hire basically means that the employer is considered the author of the work and owns the copyright. Assignment work means the designer is considered the author, but has given away ownership rights, but the rights can revert to the designer after 35 years. Obviously, assignment work is the better deal.

  • Trademarks. Protects at both a Federal and state ("commonlaw") level for 10 years (renewable). Trademarks are things like service marks, certifications and collective marks, and, yes, trademarks that can be composed on text, graphics, color, fragrances, and sounds. For federal registration, a trademark needs to be "inherently distinctive" or else have a"secondary meaning." You also have to use them (or intend to use them) in a commercial sense.

    You'll want to trademark each element of the trademark separately so that use can use them in various combinations and manifestations. You won't be able to trademark words like "coffee," but text strings like "Starbuck's coffee" are fair game.

Style is probably not protectable. The only time it would be is when people are made to believe the source of a product is someone else--ie if someone tries to replicate something exactly.

posted at 12:32 AM in classmates, design 101, special guest stars | comments (1) | trackback (0)


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