MULTIMEDIA AND ITS COPYRIGHT MADNESS
1998 Kathy Lytle Permission granted for educational purposes.

Assignment for Professor Duane Goehner's Media 121 Course, Bellevue Community College

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone; and the receiver cannot dispossess himself of it … He who receives an idea from me, receives instructions himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should be spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature … Inventions then cannot, in nature, be a subject of property.

A quote from Thomas Jefferson

INTELLECTUAL PROPERTY

Intellectual property is that product which originates from the mind such as an invention, a sculpture, a song, a movie, or a book. Thomas Jefferson stated that this "…ideashould be spread from one to another over the globe." In order to do that with certain property rights and protection preserved, a set of laws were introduced and are called the intellectual property laws. Copyrights, trademarks, trademark secrets and patents are the four major areas of intellectual property. This paper discusses not only what each law area is about but also what they protect, their terms and their rights. And, since multimedia involves much in the way of copyrighting, certain copyright considerations for multimedia developers and publishers are also discussed along with fair use or the legal right to be able to use another copyright holder’s work or portion of that work.

COPYRIGHT LAW

What Is Copyright?

Copyright law is that right of the intellectual property laws which is obtained by an author or artist for certain exclusive rights to his/her works ("original works of art") for a certain limited time (term). Copyright law is exclusively federal law derived from our Constitution ("copyright clause": Article 1, sec. 8, cl. 8) (Chang) which says that the purpose of copyright is to promote science and the useful arts.

Copyright Protection, Term and Rights

Copyright protection is automatically acquired/created when an "original" work of authorship is fixed in a tangible medium such as a copy being made, or typed onto a typewriter or computer or even painted unto a canvas. Some types of works of authorship that can be copyrighted are literary, musical, dramatic, pantomimes and choreographic, pictorial, graphic and sculptural, motion pictures and other audiovisuals, sound records, and architectural works. To further define "original": an original is that in which the origin of the object being copyrighted owes itself to its exclusive author and was not copied from any other preexisting source. "Fixed" means that the item has been sufficiently permanized or stabilized for a period of more than transitory duration" (Brinson). A copyright notice may be used to secure copyright protection but since the United States was a party to the Berne Convention for the Protection of Literary and Artistic Works which Convention affected artists and authors internationally, the use of copyright notice became optional for works distributed after March 1, 1989.(Brinson) The copyright notice consists of the term "Copyright", the copyright symbol "", the year of first publication, and the name of the copyright owner.

The copyright term varies dependent upon when the work was created, and also if the work was created by an original author or obtained by an employer as "work for hire". Generally, for works created on or after January 1, 1978, (1) by the original author, the term is the life of the author plus an additional 50 years after the author’s death; and (2) for works made for hire, the term of copyright is 75 years from publication or 100 years from creation, whichever is shorter. For works created before January, 1978: (1) published works term is 75 years, and (2) for created but not published works, the term ends December 31, 2002.

Copyright protects the "expression" of an item, e.g. the exact written word of the author, the exact color and lines used to make a graphic, and the words and sounds produced in a sound recording. It does not protect the "idea" of an item, e.g. the thought promoted by the author in a poem, the stance of a sculpture, or the movement of a graphic image. In addition, an author acquires these rights:

 

Copyright Registration

The Copyright Office has classified the various works that are copyrightable as follows:

The applications for copyright correspond with the class abbreviations (e.g., Form PA for performing arts works). A two page application form is submitted in the class most appropriate to the nature of the authorship in which copyright is claimed. As there are several classes that may identify all the elements of the work, it is advised to phone the Register of Copyrights to determine which form or forms to complete. To submit, the application, a certification or verification of the author saying he is who he is, a declaration that the statements made in the application are true, and a $20.00 filing fee plus whatever filing fees are sent to the:

Register of Copyrights
United States Copyright Office
Library of Congress
Washington, D.C. 20559

The benefits for registering a copyright give the applicant: (1) if he has been infringed, to claim damages and attorney’s fees; (2) prima facie evidence of the validity of the applicant’s copyright; (3) a permanent record of the claim to the work; (4) a correction of errors as review by the Copyright Office may bring errors not originally noticed by the applicant; (5) royalties; and (6) marketing opportunities.

TRADEMARK LAW

What Is a Trademark?

A trademark is a word, design, or a combination of them, used by a manufacturer, merchant or a provider of services to identify their goods and to distinguish them from others. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product.

Trademark Protection, Term and Rights

The trademark protects trademarks such as the name "Langendorf" for a bread company, slogans such as "Where Are You Going Today?", characters like "Betty Crocker", sounds, jingles such as the jingle for The Keg Restaurant: " … eat at the Keg, see you tonight!," etc. Actually, more protection is afforded by registering a trademark which is discussed later in this paper.

The federal trademark certificate remains in effect for 10 years if and only if an affidavit of continued use is filed in the sixth year. The registration may be renewed every 10 years so long as it is being used in commerce.

Trademark rights arise from either (1) actual use of the trademark, or (2) the filing of a proper application to register a trademark in the Patent and Trademark Office (PTO) stating that the applicant has a "bona fide" intention to use the mark in commerce. Basically, a company or person holding a trademark owns the rights of that trademark and that company or person therefore has the right to register and the right to use the mark. As in the case of the copyrights, a company or person with a registered trademark holds greater advantage for possible court proceedings.

Trademark Registration

A trademark can be obtained by just using the mark. However, this is usually only applicable to state law where protection is limited to the geographic area in which the trademark is being used. To file for state statutory protection, an application must be filed with the state trademark office. If the trademark has not been federally registered with the PTO, the only trademark symbols that can be used are "TM" (superscripted), or for service marks, "SM"(Brinson). Once registered with the PTO, the owner may use the mark "".

To register a trademark with the PTO, the applicant may apply via one of the following methods:

 

  1. filing based on "use" means that the applicant has already been using the mark in commerce (use application);
  2. filing based on a bona fide intention to use the mark in commerce (intent-to-use application); or
  3. filing based on a previous filing in another country dependent upon the trademark agreement with that certain country.(US Commerce)

The following must be submitted to register the trademark: (a) the written application form (PTO Form 1478), (2) a drawing of the mark on a separate sheet of paper, and (3) the application filing fee of $245.00 for each class of goods or services. If the applicant is filing a "use" application, he must submit three specimens for each class of goods or services. The specimens must show actual use of the mark in all cases. If the applicant is filing an "intent-to-use" application, he must send in the application fee plus $100.00 for each class of goods or services when related to one of the following:

Note: Prior to filing the application, the applicant should do a search for conflicting trademarks or service marks to avoid finding conflicting marks in the actual processing of the application. If a conflicting mark is found, the application may be returned and the application fee will not be refunded. Further note: FEES ARE NOT REFUNDABLE IN ANY CASE. In addition, fees may change. Please call the Trademark Assistance Center at 703 308-HELP for current fee and other questions.

The application and all required correspondence should be addressed to:

The Assistant Commissioner for Trademarks
2900 Crystal Drive
Arlington, Virginia 22202-3513

TRADEMARK SECRET LAW

What is a Trademark Secret?

A trademark secret is a piece of information which is valuable to its owner, is not generally known and has been kept secret by its owner. The Uniform Trade Secrets Act, which is in effect in certain states, defines trade secrets as "information, including a formula, pattern, compilation, program, device, method, technique, or process that derives independent economic value from not being generally known and not being readily ascertainable and is subject to reasonable efforts to maintain secrecy."(Brinson)

Trademark Secret Protection, Term and Rights

Items such as manufacturing processes, methods of developing software, and instructional methods are protected by this law. The following factors generally determine whether the item is a trade secret or not: The protection applies automatically when the owner retains the valuable information as a secret.

  1. The extent to which the information is known outside the claimant’s business.
  2. The extent to which the information is known by the claimant’s employees
  3. The extent of measures taken by the claimant to guard the secrecy of the information.
  4. The value of the information to the claimant and the claimant’s competitors.
  5. The amount of effort or money expended by the claimant in developing the information.
  6. The ease with which the information could be acquired by others.

The term of the protection lasts as long as the requirements of value to the owner and its secrecy are met. The owner should take all cautionary steps to maintain the secrecy of the trade secret otherwise the protection will be lost.

PATENT LAW

What is a Patent?

A patentee has the right to exclude others from making, using, or selling its patented invention or design in the United States during the term of the patent. Patent law is based on a federal statute and only affords federal protection not state protection. There are two types of patents: (1) the utility patent (also called a functional patent) which covers inventions and processes such as the compact disks and the method by which the compact disk is read; and (2) the design patent which covers ornamental design such as the pattern on a crystal glass. In general terms, a "utility patent" protects the way an article is used and works while a "design patent" protects the way an article looks.(US Patent)

The requirements for obtaining either a utility or a design patent are strict. For instance, to obtain a utility patent, the invention must be novel, useful and nonobvious. To be novel, the invention must not have been known or already used in this country. To be useful, the invention can be applied for productive and beneficial use in society. And further, to be nonobvious, "… the invention must be sufficiently different from existing technology and knowledge so that, at the time the invention was made, the invention as a whole would not have been obvious to a person having ordinary skill in that field."(Brinson)

Patent Protection, Term and Rights

Since the patentee has the right to exclude others from making, selling or using the patented utility or design during the term of the patent, anyone who does make, sell or use a patented item without the consent of the patentee infringes the Patent Law. However, if some other person were to invent or design an item functionally the same as the patented item but the item worked in a different manner, it would not infringe the patentee’s rights for the sake of competition. In addition, oftimes in an infringement suit, it may be found that the patent was not novel or nonobvious and that therefore, the PTO erred in granting the patent.(Brinson)

For utility patents granted as of June 8, 1995, the term is 20 years from the date the application was filed. For patents granted prior to June 8, the term is the greater of 17 years from the date of issue or 20 years from the date of filing. The duration term for a design patent is 14 years.(Brinson)

Patent Registration

The process to register a patent is quite complex. It is advised that anyone applying for a patent consult with an attorney who is acquainted with the procedures of the PTO. Of primary importance in a design patent application is the drawing disclosure, which illustrates the design being claimed. Unlike a utility application, where the "claim" describes the invention in a lengthy written explanation, the claim in a design patent application protects the overall visual appearance of the design, "described" in the drawings. It is essential that the applicant present a set of drawings (or photographs) of the highest quality which conform to the rules and standards. The application is submitted along with the appropriate filing fee (which at this point in time is $790.00 for the utility patent and $330.00 for the design patent; both fees may have been changed, see [http://www.uspto.gov/web/offices/pac/doc/general]) to the PTO (see Trademark Registration for address). Once received by the PTO, it is assigned an Application Number and a Filing Date. A "Filing Receipt" containing this information is sent to the applicant. The application is then assigned to an examiner. Applications are examined in order of their filing date.(US Patent) The process may take up to a year perhaps longer depending on how much communication will transpire between the applicant and the Examiner’s Office Action that results from his evaluation of the application. For more information, the PTO help line is 703 308-HELP.

FAIR USE

"The primary objective of copyright is not to reward the labor of authors, but "[t]o promote the Progress of Science and useful Arts." To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art."(O'Connor)

What Determines Fair Use?

The fair use provision of the Copyright Act allows reproduction of a copyrighted item for general purposes of criticism, comment, news reporting, teaching, scholarship and research. To determine whether use of a work is fair use or not is determined by these four factors:

  1. Purpose and character of use. If use of the item is for noncommercial purposes, such as a book review or education.
  2. Nature of the copyrighted work. If the item were factual versus being a creation.
  3. Amount and substantiality of the portion used. How much of the original work was copied and whether the copied portion is considered the "essence" of the work.
  4. Commercial value of the item. Fair use if the item is not a substitute for the copyrighted work.

With the sanction of fair use, copyright protection is balanced and creates an environment in which there is a free flow of information, a structure in which information may be passed to the public domain, and a means by which art, science, and literature do progress.

COPYRIGHT CONSIDERATIONS FOR MULTIMEDIA

What is Multimedia?

Multimedia and multimedia materials are combinations of data, texts, still images, animations, moving images, and sounds. Multimedia materials may be found on videotapes, audiotapes, and laserdisks; digitized multimedia materials may reside on floppy disks, CD-ROMs, digital tapes, and the hard disks of networked computer servers, including World Wide Web servers.(Princeton)

Definitely, multimedia comprises a parking lot of many different brands, shapes, contexts and each and all of those brands, shapes and contexts are to be assumed by any user or viewer of multimedia to be protected by copyright. It is with this assumption, at this early stage of development, that the creation of multimedia can be a maddening, circuitous maze of undefined latitudes. With the ever-quick advancement of computer and web technology, the legal profession remains abashed in its efforts to disentangle the web mess. Educators are making their own judgments concerning fair use since there are no clear-cut fair use guidelines to follow.(Bruwelheide) In March 1997, the "Fair Use Guidelines for Educational Multimedia" was presented by representatives of copyright owners and educators. The guidelines address length and frequency of copyrighted text, images, motion pictures, software and music and the circumstances under which their use in the creation of educational multimedia may be considered "fair use." However, both the Association of Research Librarians (ARL) and the American Library Association (ALA) opposed the guidelines and have stated that it is "too early …. We have not yet seen changes in behavior due to digital media." The guidelines are included in a nonlegislative report of the Subcommittee on Courts and Intellectual Property of the Committee on the Judiciary of the U.S. House of Representatives.(Lichtenberg) Obviously, there are many copyright issues/considerations affecting multimedia developers/publishers, librarians, educators and copyright owners. Here are just a few.

Copyright Owner Loses Control of Work

Although the copyright owner of a multimedia website has every element of his website copyrighted, every element (any of the graphic, animation, photograph, sound or video captions of the work) is exposed to the public at large because of the nature of the Internet. Needless to say, the public may or may not respect copyright protection and if not, elements may be copied and/or the page may be used as a link to that person’s website thereby causing even more people to link and copy, and so the circle continues. Questions of how to monitor or how to receive remuneration for use of the link still need to be answered. One article stated that it would "…be prudent to fall back on the law of the net - netiquette. Netiquette dictates that: [o]ther websites be told when you plan to link to them [and] [t]hat links to other websites be removed if the linkee objects."(O'Mahoney) 

Obtaining Copyrights on Multimedia Works

In creating a multimedia or derivative work, the author of that work has to have permission to use any element of a previously copyrighted work, and, since we are to assume that each item is copyrighted, obtaining permission to use can be overwhelming and costly. For instance, for a photograph, image, sound or video clip, the author has to locate who to credit for each of the elements and send a request to use the element from the copyright holder. The copyright holder will reply with permission to use the element but if that copyright holder is not the sole owner of the element, the author then has to repeat the process until the author finds the true copyright holder and receives the holder’s permission. The fact that these elements are in different media also contributes to the problem of obtaining permission as each media may have its own set of guidelines to get that permission.

The process can be even more complicated in that the copyright holder may have moved, live overseas, gone out of business, sold the business to someone else and assigned the copyright to another person, or that the author cannot locate the source of credit. In any of these cases, the author is to take as many reasonable steps towards locating the copyright holder as possible. As a last resort (at least in Canada, I have not yet been able to find the answer as regards the United States), it is possible for the author to request reproduction rights from the Canadian Copyright Board.(Hultin)

Permission to use sound can be even more overwhelming. "To obtain the rights to a single song, the multimedia developer would have to obtain rights from the music publisher (the owner of the copyright in the ‘musical composition’) and the record company (the owner of the copyright in the ‘sound recording’) and a release from the artists. If the developer wants to use the music with video, he or she will also need a ‘synchronization license.’ In addition, the copyrights of many musical compositions are owned by more than one company, and the developer would need to obtain permission from each owner. In addition, a synchronization license will be needed if the movie is to be combined with a video.(Bruwelheide) To obtain permission to use a video clip may also involve the same type of procedure.

Source Code Plagiarism

Insurance companies who insure software producers, multimedia publishers and developers are leery of software and source code being plagiarized, copied and recycled to other companies. Temporary contractual employees are being used greatly in the multimedia and software industries where projects are conjured continually. These temporary programmers and designers have copied portions of code at an ex-employer’s and recycle that portion of code in a rush to "efficiently" complete an assignment for a current employer. Multimedia elements, software and codes (such as HTML) on the Internet are easily copied and reproduced without proper clearances being obtained. Insurance companies find themselves custom-tailoring multimedia liability polices to help protect their insureds from the high costs incurred from infringements, damages and attorney fees involved in intellectual property court proceedings.

Implied Public Access

To an extent, by placing a copyrighted material on the Internet, the author is giving implied permission to the public at large to copy and use the material for any purpose. "Copyright law does recognize that permission to use copyrighted material can be implied from a copyright owner’s conduct or from custom."(Brinson) For example, when a website is placed on the Internet, implied consent is given to make a temporary copy in RAM in order to view the site, or if an Internet user requests its provider to place a message in the bulletin board, again, the user is given implied permission to the provider to display the message. What is not yet legally determined is whether it is implied license to transfer the RAM copy into the hard drive or not (unless the item is fair use). It would appear that if the copy from the hard drive were printed and sold commercially, that this would be a copyright infringement and not the fact that the copy were just in the hard drive (personal use). Access to the Internet does not automatically mean that these works can be reproduced and reused without permission or royalty payment."(Holland)

Moral Rights

If an original work is copied, and that copy is distorted, changed or modified in any way, that person/company who distorted, changed or modified the copy has infringed upon the copyright holder’s moral rights (only enacted in certain states) not just his copyright rights. To obtain moral rights, if not enacted in the state, a written contract needs to be drawn up. Moral rights originated in Europe to help artists protect their works and their reputations and are now enacted in the New York, California, Massachusetts, Rhode Island, Louisiana, Maine, New Jersey and Pennsylvania. Moral rights have been proposed as a federal statute in other states.(Spatt)

The three categories of moral rights are:

  1. the right of creation which enables the author to create or destroy his own work. If the author decides to discard the work as it is being developed, another person finds the work, and then sells it as an original work with the original author’s name on it, the original author can then retrieve his original work;
  2. the right of paternity guarantees that that your name will be on every copy of your work; and
  3. the right of integrity prevents others from altering, mutilating and destroying the author’s original work.

CONCLUSION

It isn’t easy to be a multimedia developer/publisher. One of the easiest solutions to avoid infringement of copyright or trademark is for the developer/publisher to create his own original work or to use only those items which are in the public domain. Then, ultimately the developer/publisher would have his work copyrighted and hopefully registered to ensure that the work is protected to its fullest and that the developer/publisher has the most favorable position should his/her work be infringed upon. Then again, technology on the Internet is advancing rapidly, and becoming so that there are no mechanical or cost barriers to reproduction (unless caught in the act) just the moral issues that exist from reproducing copyrighted material.


BIBLIOGRAPHY

 

Brinson, J. Diane and Radcliffe, Mark F. Multimedia Law and Business Handbook.
Menlo Park, CA: Ladera Press, 1996.
Brinson, J. Dianne and Radcliffe, Mark F. "An Intellectual Property Law Primer For Multimedia
and Web Developers." [http://www.eff.org/pub/CAF/law/ip-primer]. 1996.
Bruwelheide, Janis H. The Copyright Primer for Librarians and Educators, 2nd ed. Chicago, IL: American Library Association, 1995.
Chang, Christopher, et al. "Intellectual Property in the Information Age." [http//homepage.seas.upenn.edu/~cpage/cis590].
Copyright Office, Library of Congress. "Chapter II, Title 37 CFR." [http://ww.law.cornell.edu/copyright/regulations/202.3.html]. 1994.
Cornwell, Thomas R. "Know the Code." Best’s Review - Property-Casualty Insurance Edition. February 1998.
Felciano, Ramon. "Intellectual Property Talk." [http://smi~web.stanford.edu/people/felciano/publications/intproperty.html]. 25 April 1994.
Field, Thomas G., Jr. "Avoiding Patent, Copyright & Trademark Problems." Franklin Pierce Law Center. [http://www.fplc.edu/tfield/aVoid.htm]. 14 September 1996.
Goehner, Duane. "An Ethical Edge in Education:Cognizance of Copyrights and Copy Wrongs." [http://www.goehner.com/copyright.htm]. September 1997.
Greguras, Fred M. and Wong, Sandy J. "Multimedia Status." [http://www.batnet.com/oikoumene/mmediastatus.html]. 19 June 1995
Greguras, Fred, et al. "Multimedia Content and the Super Highway: Rapid Acceleration or Foot on the Brake?" [http://www.eff.org/pub/CAF/law/multimedia-copyright]. 18 June 1994.
Hill, Richard. "Remunerating Authors and Publishers in a Digital World." [http://www.batnet.com/oikoumene/arbcopy2.html]. June 1995.
Hill, Richard. "What is the smallest copyrightable element in a multimedia work? [http://www.batnet.com/oikoumene/arbmult.html]. July 1995.
Holland, Bill. "Multimedia Hurdle Cleared for NII Bills." Billboard. 26 October 1996.
Hultin, Geoff. "Multimedia and the Headache of Copyright." [http://www.excite.sfu.ca/reviews/oct96/cpyright1.html], 1997.
Lichtenberg, James. "Publishers, Educators Agree on Fair Use for Multimedia." Publishers Weekly. 3 March 1997.
O’Mahoney, Benedict. "Bleeding Edge: Web Issues." [http://www.benedict.com/webiss.htm]. 1995 - 1998.
O’Mahoney,Benedict. "Bleeding Edge: The NII and the ’White Paper’." [http://www.benedict.com/webiss.htm]. 1995-1998
Princeton University. "Guidelines for Student Use of Multimedia Materials." [http://www.princeton.edu/~cit/copyrighted/copyrightmulti.html].
Spatt,David M. "Moral Rights and Good Business Practices." The Artist’s Friendly Legal Guide. Cincinnati, OH: North Light Books, 1988.
U.S. Department of Commerce/Patent and Trademark Office. Basic Facts About Registering a Trademark. October 1994.
U.S. Patent and Trademark Office. "Application for Patent." [http://www.uspto.gov/web/offices/pac/doc/general/application.html].
U.S. Patent and Trademark Office. "What is a Patent?" [http://www.uspto.gov/web/offices/pac/doc/general/what_is_a_patent.html].
Warda, Mark. How to Register a United States Copyright, 2nd ed. March 1990.