Times Article 011
Intellectual Property and Data Rights
our word-processors, page-layout, and image-manipulation software,
we're all digital authors today.
But are we original authors?
That's the question I pose to you today.
to protect works of the mind from theft, unauthorized use, and misuse
is an ever-growing issue, especially with the spread of the Internet.
If you've spent precious time (and brainpower) creating a new
piece of art, an engineering design, or just a real funny cartoon, I'm
sure the last thing you want to do is give away the fruits of your
labor without the compensation that's due you.
Gary Larson was never overly bothered by his fans' enthusiasm.
He was pleased that copies of his The Far Side hang on
millions of desks, bulletin boards, and refrigerators around the
world. However, when
Larson found digitally-pirated copies of his cartoons on fans' Web
sites, he was compelled to ask his admirers to stop.
"On the one hand," Larson wrote in an open letter in
late 1996, "I confess to find it quite flattering that some of my
fans have created Web sites displaying and/or distributing my work on
the Internet. And, on the
other, I'm struggling to find the words that convincingly but
sensitively persuade these Far Side enthusiasts to 'cease and
desist' before they have to read these words from some lawyer."
for the days of good old-fashioned theft, where a thief was a
second-story man in dark clothing, clinging to the fire escape to
quietly pick the lock and steal your cat!
Now, we have CyberTheft where the trick is to steal the digital
image without the owner knowing it has been stolen and reproduced by
the thousands. Are we
becoming a nation of digital art thieves?
Not intentionally, according to Dick Weisgrau, executive
director of the American Society of Media Photographers.
"The fact is, most of the people will not go out and
invest in the equipment and the training to steal with it.
They will use it to create."
and others believe that most infringements arise not out of
maliciousness, but more from plain ignorance of what is and isn't
legal in the arena of reproduction.
For example, while art and design schools often feature courses
on copyright law, students are sometimes encouraged to
"borrow" from other artists as part of their projects.
And many artists don't have any formal training at all, and
thus have little exposure to these legalities.
If infringement seems like a slippery problem, who owns which
electronic images is even more so.
That's partly because creators and publishers have always
butted heads over ownership rights and other contract issues for
hundreds of years.
talk first briefly about protecting your own works.
The most basic form of intellectual property (IP) protection is
the copyright. Copyrights
cover unique, original, creative, and expressive works of any sort,
from songs, to books, to articles, to Web pages.
As the name implies, the copyright owner holds the rights to
copy the work or assign that right to others.
The law states that the owner holds an "implicit"
copyright immediately upon the creation of a work.
But this law covers only the look of this work, not
its function. Thus, if
someone creates a sculpture exactly like yours without ever seeing
yours, there is no copyright infringement. And if you create a device that looks like a gold hourglass
that turns water into wine, your copyright covers the look, not the
function or process.
are two types of copyright: registered and unregistered.
For a $20 fee and a few minutes filling out a form, you will
have the inalienable right to sue the pants off anyone who misuses
your copyright. Even
though you have an automatic copyright on a work you create, it's a
good idea to include the standard copyright notice in the format
"Copyright XYZ ©
1998. All Rights
Reserved." Be sure
to use the actual character, rather than a "c" with
parentheses! On the Web,
spell it out, as the end-user's browser may not show the correct
copyrights remain in force for the life of the person who created the
work plus 50 years; corporations have a longer period.
A good place to keep your copyright for digital graphics is in
a digital watermark, such as the services offered by Digimarc Corp.
are more specific IP protection, and can consist of graphics, such as
in a company or product logo and/or text.
Trademarks are used to uniquely identify its owner as well as a
product, and their purpose is to build a strong and protected
identity. Disney has
trademarked Mickey Mouse, NBC has its peacock, and McDonalds is known
worldwide by its golden arches. But
textual trademarks are the most common, and they are usually phrases,
marketing slogans, or product names.
By necessity, they are usually short, and apply to a specific
with copyrights, you can have a common-law trademark just by putting
to use. You simply put a Ô
symbol next to the item you want
to trademark. Registering
a trademark costs more than a copyright, $245, and you must provide
samples of the trademark in use.
You must also list the trademark as belonging to a specific
class of products, and you need to document when the trademark was
first sent across state lines (on advertising, a product, etc.).
Trademarks must be renewed every 10 years to remain active.
There are a number of other requirements for trademark
registration, all of which should be referred by you, like all other
advice in this column, to your favorite lawyer.
are even more complicated, and I'm not going to even try to cover them
now you have some basic ideas on protecting your rights;
how about those of other authors? Let's
start with a rather new capability: copying music digitally to a CD-ROM
disc. On the surface, the
use of CD-Recording (CD-R) to copy copyrighted commercial audio (from
radio, CD, or whatever) for distribution and sale constitutes piracy,
pure and simple. But what
if you're only copying songs from your own private collection for your
own superior listening experience?
As of today, you do not have "right to copy,"
but you do have immunity from any copyright infringement action
under Section 1008 of the Audio Home Recording Act of 1992, provided
that the copying is performed with a device designed in compliance with
that Act. And good luck on
finding out if your specific CD-R drive is definitely in compliance....
let's look at reprints of written (hardcopy) and digital materials.
The U.S. Government is pretty harsh on copyright violators.
The section of the law pertaining to copyright infringement
states that "anyone who violates any of the exclusive rights of the
copyright owner...is an infringer of the copyright or right of the
author...." And to
make matters worse, the law also states that "anyone who infringes
a copyright willfully, and for purposes of commercial advantage or
private financial gain, shall be punished...."
And punishment in this case is criminal, including
fines and imprisonment! Do
I have your attention now?
me close by listing a few steps you should take to protect your IP: (1)
Park your goods - take advantage of our common law and mark your work as
appropriate; (2) Protect your IP - if you catch anyone misusing your
work, act quickly to get them to cease and desist - in court if needed;
(3) Contracts and non-disclosure agreements with consultants, employees,
and outside parties - be sure you have these legal documents in place
whenever you have IP at risk.
a few steps to keep you from infringing on others' IP: (1) Don't
Infringe!! - if you have any doubts about the ownership of materials
you use (in other words, if you didn't personally create it within your
firm), it's probably wisest not to use it at all; (2) Show your policy -
have a copy of your or your company's intent not to infringe hanging on
the wall right behind your desk in a prominent place (this may not
protect you, but may keep the feds from charging you with willfulness);
(3) Get indemnification - when you work with clients' materials, demand
an indemnification clause in your contract that commits them to
defending you in any lawsuit that's brought against you for copyright
infringement on the job you're doing for them.
always, if you have any doubts, call your lawyer!!