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Copyrights and Patents

he law of copyrights, patents, and trademarks (called intellectual


property law) allows people to protect their creative work from
unauthorized use by others.
Most of the laws and agencies regulating intellectual property are
federal. All patent and copyright lawsuits must be brought in federal
court.

Topics
Copyrights...............................................................................................................................98
Patents.................................................................................................................................... 100

Related Topics
Courts, Lawsuits, and Mediation............................................................................103
Federal Court System..................................................................................................112
Small Businesses................................................................................................................349
Trademarks and Service Marks..............................................................................371

Additional Resources
The Copyright Handbook: What Every Writer Needs to Know, by Stephen
Fishman (Nolo), is a complete guide to the law of copyright and includes
forms for registering a copyright.
Getting Permission: How to License & Clear Copyrighted Materials Online
& Off, by Richard Stim (Nolo), spells out how to obtain permission to use
art, music, writing, or other copyrighted works.

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Circular 2: Publications on Copyright is a list of government pamphlets


about copyright law. To get a copy, download it from the Copyright Office
website at www.copyright.gov.
Patent It Yourself, by David Pressman (Nolo), takes you step-by-step
through the process of getting a patent.
Patent, Copyright & Trademark: An Intellectual Property Desk Reference,
by Richard Stim (Nolo), defines and explains patent, copyright, trademark,
and trade secret law (includes sample nondisclosure agreements and patent,
copyright, and trademark forms).
The Inventors Notebook: A Patent It Yourself Companion, by Fred Grissom
and David Pressman (Nolo), helps inventors document the invention
process to ensure they are entitled to the greatest legal protection available.
Nolos Patents for Beginners, by David Pressman and Richard Stim (Nolo),
provides a straightforward explanation of patent principles and rules for
documenting and acquiring patent rights.
The Public Domain: How to Find Copyright-Free Writings, Music, Art &
More, by Stephen Fishman (Nolo), explains how to recognize whether or not
a creative arts work is in the public domain.
How to Make Patent Drawings: A Patent It Yourself Companion, by Jack Lo
and David Pressman (Nolo), is a step-by-step guide to creating formal patent
drawings that comply with U.S. Patent and Trademark Office rules.
Profit From Your Idea: How to Make Smart Licensing Deals, by Richard
Stim (Nolo), guides the reader through the important process of giving
others permission to use, develop, and market an invention.
Patent Pending in 24 Hours, by Richard Stim and David Pressman (Nolo),
shows you how to prepare, assemble, and file a provisional patent appli
cationan abbreviated patent application that preserves your priority of
invention for 12 months.
The U.S. Patent and Trademark Offices website at www.uspto.gov,
provides information and forms on patents.
The Copyright Offices website at www.copyright.gov, provides
information, forms, and searchable records on copyrights.

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Trademark: Legal Care for Your Business & Product Name, by Stephen
Elias and Richard Stim (Nolo), shows how to choose a distinctive name,
conduct a trademark search, and register a mark with the U.S. Patent and
Trademark Office.

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Copyrights
Federal copyright law gives someone who creates an original work of
expressiona play, song, painting, or book, for examplethe right to
control how that work is used. A copyright grants a number of specific
rights regarding the expression, including the exclusive right to:
make copies or authorize others to make copies
make derivative expressions, such as translations or updates
sell the expression
perform or display the expression, and
sue others who violate these rights.
A copyright automatically comes into existence when expression
takes a tangible formwhen words are written on a page, for example.
Copyrights last a long time: For works made after 1977, a copyright
lasts for 70 years after the death of the creator. For works created by
employees for an employer, a copyright lasts for 95 years from the date
of publication (which includes any form of dissemination) or 120 years
from the date of creation, whichever comes first. (17 U.S.C. 101 and
following.)

The Fair Use Rule


Under the fair use rule of copyright law, an author may make limited
use of another authors work without asking permission. The fair use
privilege is perhaps the most significant limitation on a copyright
owners exclusive rights.
Subject to some general limitations, the following types of uses are
usually deemed fair uses:
criticism and commentfor example, quoting or excerpting
a work in a review or criticism for purposes of illustration or
comment
news reportingfor example, summarizing an address or article,
with brief quotations, in a news report
research and scholarshipfor example, quoting a short passage
in a scholarly, scientific, or technical work for illustration or
clarification of the authors observations

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nonprofit educational usesfor example, photocopying of limited


portions of written works by teachers for classroom use.
In most other situations, copying is not legally a fair use. Without an
authors permission, such a use violates the authors copyright.
Violations often occur when the use is motivated primarily by a desire
for commercial gain. The fact that a work is published primarily for
private commercial gain weighs against a finding of fair use.

What Can Be Copyrighted


Literary works, computer software, musical arrangements, websites,
graphic works, audiovisual works, or compilations of these and other
works are all covered by copyright. The work must be in some way
original. A copyright does not protect works that are merely clerical
or factual, such as a blank form or the phone book. The facts or ideas
expressed are not themselves protected by copyrightonly the way the
creator has expressed those facts or ideas. Anyone, for example, is free to
write a book about a subject that other books have already covered. But
the author of a new book cannot legally copy more than a small amount
of text.

Notice of Copyright ()
A copyright notice tells the world that the creator of the work is claiming
a copyright. A complete notice consists of the symbol or the word
copyright or copr., the year of publication, and the name of the
copyright owner. Works published before March 1, 1989 must have
a copyright notice to maintain the copyright in the work. For works
published after that date, a notice is not required. Even if no notice is
required, however, putting a copyright notice on your work serves to
warn others that your work is protected and will help you enforce your
copyright in court if necessary.

Registration of Copyrights
You can register your copyright with the U.S. Copyright Office at
the Library of Congress in Washington, DC (www.copyright.gov).

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To get the full benefits of registration, you must register within three
months of the date of publication, or before an infringement has
begun. Registration makes it easier to prove and win an infringement
action in federal court and recover enough money to make the lawsuit
worthwhile. Also, you must register before you can bring a lawsuit for
infringement of copyright.

Patents
A patent is the legal right, granted by the U.S. Patent and Trademark
Office, to exclude others from making, using, or selling an invention
of yours for up to 20 years from the date the application for a patent is
filed. The certificate that grants the patent and describes the invention is
called a patent deed. If someone infringes on your patent by marketing
your invention, you may sue in federal court for the economic loss you
suffer as a result.

Types of Patents
There are three types of patents:
Utility patents cover inventions that work in a unique manner
to produce a utilitarian result. Most gadgets that perform a
function fall under this category. A utility patent lasts for 20 years
from the date of filing.
Design patents cover unique, ornamental, or visible shapes or
designs of objects. Inventions that are aesthetic rather than
functionalsuch as the ornamental shape of a truck fenderfall
into this category. A design patent lasts for 14 years from the date
the patent issues.
Plant patents cover new strains of plants. A plant patent lasts for
20 years from the date it is filed.

Patent Requirements
Not everything can be patented. For example, you cant patent an
abstract idea, a purely mental process, or a process that can be simply

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performed using a pencil and paper. Nor can you patent naturally
occurring things. To be patentable, an invention must be a process, a
machine, a manufacture, a composition, or an improvement on one of
these. Each of these categories includes a wide variety of items, from
computer software to genetically engineered bacteria.
An invention must satisfy three additional requirements to be
patentable:
Novelty. The invention must be a new idea, physically different
in at least some small way from what already exists (known in
inventors circles as the prior art).
Nonobviousness. The invention must be a new or unexpected
development, something that, at the time of its invention, would
not be obvious to a person skilled in the technology of that
particular field.
Usefulness. The invention must have some positive use or, in the
case of a design patent, must be ornamental. This requirement
precludes, for example, inventions that have only illegal uses or
drugs that have only unsafe uses.

How to Get a Patent


To get a patent, you must submit a detailed application to the U.S.
Patent and Trademark Office (www.uspto.gov). You must file your
application within one year of the first commercialization of your
invention or the first publication of the details of your invention. It
generally takes 18 months to two years to get a patent.

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