Copyright and Trademark Laws
In this section, you’ll find a variety of tips and tricks to help you better understand our industry and to build your base of knowledge on a wide range of topics.
The materials are organized into section headings. Please feel free to scroll down to view those sections that interest you. They are listed as follows:
- Copyright Laws
- Fair Use Rules
- Rules for Legal Advertising
- Trademark Laws
If you have ideas on other tips you’d like to see added here, please let us know.
Copyright laws protect original works of expression including, but not limited to, novels, short stories, fine and graphic arts, photographs, software, films, paintings, and recorded musical performances. For copyright laws to protect a work of expression, it must be original and an independent, creative effort of its author. Then, depending on when the work was created, the copyright law will protect it.
Copyright law has specific guidelines for the length of protection it provides to a copyright owner. There are five main categories:
- Works published in the United States before 1923 are public domain.
- Works published after 1922, but before 1978, are protected for 95 years since the date of publication.
- Works created, but not published, before 1978 last the life of the author plus 70 years.
- Works published after 1977 last for the life of the author plus 70 years.
- Works published for employment, commission, anonymously, or while using a pseudonym, last between 95 to 120 years.
Copyright is a legal device an author has to control how his or her published work of art or literature is used. Copyright rights are solely for the author, unless he or she transfers those rights to another person. The Copyright Act of 1976 provides exclusive rights to the reproduction, distribution or adaptation of the works to the author. This act states a work must be “fixed in a tangible medium of expression” or, in other words, the work must exist in some form, no matter how short the time frame or the format.
Copyright laws prevent the unlawful use of original works with the owner’s written permission. If someone were to reproduce copyrighted material without the owner’s written permission, the owner could sue. There are minor exceptions to this circumstance, for example, the fair use rule. The fair use rule, under copyright law, allows others to use another author’s work without asking permission.
Using research information in a new work is an example of the fair use rule. Often it is imperative for an author to quote a short section in a scientific work to illustrate an observation. In addition, quoting a work in a review, to illustrate a point or to comment, is fair use. Professors and teachers use the fair use rule when photocopying text or excerpts for classroom assignments or readings.
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. Unless the fair use rule clearly applies to a publication, you should review the owner’s rights and request written permission.
Fair Use Rule
The Fair Use Rule, a component of copyright law, allows individuals to use an author’s work without their direct permission. This hinders the copyright owner’s rights to a small degree, but doesn’t lessen their protection under the law. Professors, authors, printers, photographers and publishers should understand what constitutes fair use, and what spells a copyright law violation. This list is not self-contained, as most writers, students or scholars use quotes or paraphrase ideas in other published works.
The primary factor in determining fair use is whether copyrighted materials is copied verbatim or used to create a new work, often described as transformative. Transformative works use protected material to create a new angle or take on a topic. The more transformative, the better. Questions relating to copyright law and fair use can be redundant, but the misinterpretation of each could be serious. Quoting or paraphrasing without an author’s written permission, regardless of the fair use rule, can lead to a lawsuit.
Most often, fair use violations occur when someone misuses an author’s words for commercial gain. For example, let’s say a printing business decides to produce a brochure about paper production and distribution. They prepare original copy for the paper production section, but paraphrase another printer’s brochure for the distribution section. That’s not fair use. In order for it to be fair use, a printer needs to either create entirely original content for the brochure, quote the referenced material or use the other printer’s information to create a new angle on the topic distribution.
Using research information in a new work is an example of the Fair Use Rule. Often it is imperative for an author to quote a short section in a scientific work to illustrate an observation. In addition, quoting a work in a review, to illustrate a point or to provide comment, is fair use. Professors and teachers use the Fair Use Rule when photocopying text or excerpts for classroom assignments or readings. However, unless it’s absolutely clear that fair use applies to a publication, you should check the owner’s rights under copyright law and request written permission.
Rules for Legal Advertising
So what determines if an advertisement is unlawful? If it misleads or deceives consumers, it is considered unlawful. Both federal and state laws regulate advertising in conjunction with the Federal Trade Commission. Furthermore, the FTC doesn’t have to prove that an ad deceived even one consumer, just that it has a deceptive characteristic or approach.
To ensure that an advertisement isn’t deceptive or misleading, start with:
- Is the information in the advertisement accurate?
- Do I need written permission to print a photo or use an endorsement?
- Can I meet the demands of the advertised sale?
However, that’s just the beginning. What can consumers expect from a product or service? For example, advertising that photo paper is fade-resistant is accurate if it never fades. But if it fades, it can be considered misleading. You have to be specific. There’s a huge difference between paper being fade-resistant for five years as compared to ten. Exaggerating a product or service is a form of deceptive advertising.
U.S. copyright law protects copyright owners through the Fair Use Rule and provides advertisers with access to copyrighted works without fear of being sued. Fair use allows advertisers to use limited quotations from copyrighted works without the specific authorization of the copyright owner. Product or service reviews also provide quotes to advertisers, but, to be certain, check the copyright restrictions. You should request written permission to use the quote or information.
Misleading consumers about a competitor’s products or services is an advertising violation. Inaccurate information that damages a competitor’s reputation is unlawful according to FTC guidelines. You should carefully review all advertising to make sure that business-to-business comparisons are accurate.
State law can require businesses to stock an advertised product, or to provide a service, in quantities prepared to meet the expected demand. For example, a business that advertises cameras on sale needs to have a reasonable amount in stock, or include a disclaimer such as while supplies last or limited stock. Each state has different demand laws, so check before advertising a product or service on sale.
Deceptive pricing is another FTC violation. Be honest about the sales and savings. For example, a business that advertises computers at $1000 and compares it to a doctored price of $1200 is practicing deceptive pricing. In addition, be specific about credit terms. Credit terms include the down payment, the terms of repayment, and the annual interest rate. Do not guarantee credit to consumers if there are hidden terms or restrictions.
Businesses advertising free products or services need to be upfront by stating all limits, terms or conditions. For example, a business offering a free pen to consumers who purchase a calculator for $10 is advertising a free pen. However, if $10 is more than the usual calculator price, the hidden cost means the pen isn’t free.
Federal and state governments can investigate businesses violating the Federal Trade Commission’s advertising laws. Often investigations are conducted by the Attorney General, Consumer Protection Agency or local District Attorney. The FTC trusts consumers and competitors to report unlawful advertising. Consumers and competitors can also proceed against the advertiser without the FTC. To avoid the cost and trouble associated with these actions, it’s important to ensure that advertising does not mislead or deceive consumers.
Trademark laws protect specific words, phrases, domain names, slogans, logos and other symbols used to distinguish between different brands on the market. A trademark allows consumers to identify a specific brand in the marketplace because most consumers use trademarks to make purchasing decisions. Federal and state trademark laws protect the duplication and misuse of a brand and its reputation.
Subdivisions to the trademark laws are labeled service, certification and collective marks. Service marks promote services and events, whereas trademark laws promote products. For example, when a business advertises its name and service or product in the yellow pages, it’s considered a service mark. Certification marks, on the other hand, are used to support a particular product or service, such as a seal of approval.
Collective marks are symbols, labels, words or phrases used to mark goods, members, services or products. This is often used to show membership in a union, association or other organization. Four other considerations of collective marks are regional origins, manufacturing methods, product quality and service accuracy. Denver Paper, a paper production business in Denver, Colorado, is an example of a collective mark of regional origin.
Before registering a trademark, a trademark search must be conducted. This can be done at the Web site of the U.S. Patent and Trademark Office, or by visiting the Patent and Trademark Depository Library located in each state. Conducting a trademark search is a critical first step in ensuring that your trademark name is unique.
Once you register a trademark, you must take steps to protect it. Trademark owners can file a lawsuit against violators to protect their service or product. Most trademark lawsuits are filed to either prevent a registered trademark from being misused (leading to consumer confusion) or to recover damages from those who misused a trademark. In addition, there are federal statutes protecting trademark owners under the Lanham Act. Each state has its own statutes that protect trademarks within the state’s boundaries.