Copyright: the useful article test

2L, Intellectual Property

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Useful articles are generally not copyrightable (go get a patent!). So how can we tell if something is too useful to be copyrightable? One has to find a separability between the useful part and the artistic part to protect the artistic part.

• Physical separation
  
• Conceptual separability
  
• Goldstein test:
  
  1. separable if artistic part can stand on its own as a work of art as traditionally conceived AND
     
  2. if useful part would be still be useful without the artistic element
     

Copyright: fair-use factors

2L, Intellectual Property

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Elements that can be looked at to find "fair use" in copyright:

• Purpose and character of the use
• Nature of the workk
• Amount used--substantial amount or not?
• Effect on the market or value of the original work

Next, is it parody? (Parody requires reference/incorporation of the original work.)
Or, is it satire? (Satire makes fun of society as a whole, and shouldn't need to reference a single, specific work.)

Copyright: work for hire

2L, Intellectual Property

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Elements that can be used to determine of an item is a "work for hire," meaning the copyright belongs to the employer instead of the creator:

• Right to control
• Who exercised actual control
• Back to a common-law definition of employee
• Salaried (a formalistic definition of employee)

Copyright: idea/expression dichotomy and tests

2L, Intellectual Property

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Only expression is copyrightable, not ideas (or facts, or history... the more historical/factual, the "thinner" the copyright until is disappears entirely).

Three possible tests courts have used to separate these:

1. Levels of abstraction
2. Pattern
3. Total look & feel

Copyright: infringement elements

2L, Intellectual Property

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Demonstrating copyright infringement requires that one show all three of the following:

1. Ownership of a valid copyright
2. Copying
3. Of constituent elements that are protected

A valid copyright is (all three required):

1. An original work
2. Fixed
3. In a tangible means of expression

An original work requires both:

1. A modicum of creativity
2. Independent creation

Trademark: fair-use factors

2L, Intellectual Property

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Three factors may lead to a finding of "fair use" when one uses a trademark without permission (all are required to find fair use):

1. There is no way to readily identify a kind of product without using the trademarked name AND
2. Only as much of the mark is used as is reasonably necessary AND
3. There is no suggestion of sponsorship or endorsement by the trademark owner.

Trademark

2L, Intellectual Property

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Goals of trademark law:

1. Prevent misappropriation of goodwill
2. Prevent consumer deception or fraud

No intent required in trademark infringement, but "bad faith" can nevertheless be a factor.

Four types of trademarks:

1. Fanciful: made-up (like "Kodak")
2. Arbitrary: the meaning is not related to the product
3. Suggestive: name suggests but does not describe ("Tide," "Roach Motel")
4. Descriptive: can only be trademarked if the mark acquires "secondary meaning"
   • generally requires showing 5 years of uninterrupted use
   
   

Patents: non-obviousness

2L, Intellectual Property

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From § 103 of the Patent Act:

Two tests: (1) test is T-S-M (teaching-suggestion-motivation)

• meaning are there teachings, suggestions, or other kinds of motivations in the prior art or previous patents that make the "new" invention obvious?
  

OR (3) the Graham test (newer approach initiated by SCOTUS saying T-S-M was being too mechanically applied):

1. Scope and content of prior art
   
2. Different between prior art and current claims
   
3. Level of skill in art (is the inventor a PHOSITA [person having ordinary skill in the art] or not?)
   
4. Secondary considerations:
   
   • long felt but unsolved need
     
   • commercial success
     
   • failure of others
     
   • other copying (NEWER)
     
   others acquiescing by acquiring license (NEWER)