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Penrose Library

Copyright & IP @ Whitman: HOME

WELCOME TO COPYRIGHT & IP @ WHITMAN COLLEGE

This guide is intended to serve as a starting point for research on topics concerning intellectual property rights and responsibilities.  Broadly defined: 

  • Copyrights protect an original artistic or literary work
  • Patents protect inventions
  • Trademarks protect brand names and logos used on goods and services

Disclaimer

The Copyright & IP Policy endorsed by Whitman College, and the supporting documents from these webpages have been developed to assist the Whitman community in learning about their intellectual property rights, copyright law, and making informed, careful and situation-sensitive decisions about the lawful and fair use of works created by others. While every effort has been made to present clear and accurate information, the use of this website should not substitute for legal advice.

Questions about this Guide should be directed to Dalia Corkrum, Library Director, corkrum@whitman.edu or (509) 522-8499.

COPYRIGHT

U.S. Copyright Office definition:

"Copyright refers to the author's (creators of all sorts, such as writers, photographs, artists, film producers, composers, and programmers) exclusive right to reproduce, prepare derivative works, distribute copies, and publicly perform and display their works.  These rights may be transferred or assigned in whole or in part in writing by the author.  Unless otherwise agreed in writing, work created by an employee is usually owned by the employer."

According to Section 102 of Title 17, protected works include:

  • literary works
  • musical works, including any accompanying words
  • dramatic works, including any accompanying music
  • pantomimes and choreography
  • pictorial, graphic and sculptural works
  • motion pictures and other audiovisual works
  • sound recordings
  • architectural works
  • webpages
  • software code
  • email

In other words, any form of creative expression that has a fixed or tangible form.

Works NOT copyrightable include:

  • Ideas, procedures, methods, systems, processes, concepts, principles, or discoveries
  • Works that are not fixed in a tangible form
  • Title, names, short phrases, and slogans
  • Familiar symbols or designs
  • Mere variations of typographic ornamentation, lettering, or coloring
  • Mere listings of ingredients or contents
  • Works created by Federal government employees

For more information, see U.S. Copyright Office, Circular 1

  • Reproduction
  • Distribution
  • Derivative works
  • Public performance
  • Public display
  • Public performance by 'means of digital audio transmission' (applied to sound recordings only)

Copyright protection is automatic when an original work is fixed in a tangible form.  Registration is NOT required to confer copyright protection.

According to the U.S. Copyright Office (Circular 1), registration of a copyright has the following benefits:

  • Before an infringement suit may be filed in court, registration (or refusal) is necessary for works of U.S. origin.
  • Registration establishes prima facie evidence of the validity of the copyright and facts stated in the certificate when registration is made before or within five years of publication.
  • When registration is made prior to infringement or within three months after publication of the work, a copyright owner is eligible for statutory damages, attorneys' fees, and costs.
  • Registration permits a copyright owner to establish a record within the U.S. Customs and Border Protection for protection against the importation of infringing copies.

Purposes of use under which using a copyrighted work may be considered fair (Section 107).  Examples include criticism, commentary, news reporting, teaching, scholarship and research.  For detailed information, see: Fair Use and Fair Use in the Classroom.

PATENTS

United States Patent & Trademark Office definition:

"A patent for an invention is the grant of a property right to the inventor, issued by the United State Patent and Trademark Office ... What is granted is not the right to make, use, offer for sale, or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention."

The subject matter of a patent MUST be:

1. Useful,

2. Novel, &

3. Non-Obvious

General Information Concerning Patents from the USPTO:

"PATENTABILITY: The patent statute sets forth three basic requirements or conditions for determining the patentability of a product of process -- utility, novelty, and nonobviousness.  An applicant must be an original inventor (i.e., not have derived the subject matters from some other source) and must apply within one year of certain events that constitute statutory bars (e.g., public use.) The Patent and Trademark Office determines the patentability of each claim during examination.  After a patent issues, it is presumed to be valid.  However, a party charged with infringement may contest the validity of any claim by showing noncompliance with the conditions of patentability."

1 Chisum on Patents GL1 (2019)

Utility Patent:

From the USPTO: "granted to anyone who invents or discovers any new or useful process, machine, article of manufacture, or compositions of matters, or any new useful improvement thereof."

  • Term = generally 20 years from date of filing
  • Maintenance fees required

Design Patent:

From the USPTO: "granted to anyone who invents a new, original, and ornamental design for an article of manufacture."

  • Term = generally 14 years from date of issue
  • No maintenance fees required

Plant Patent:

From the USPTO: "granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant."

  • Term = generally 20 years from date of filing
  • No maintenance fees required

TRADEMARKS

A trademark identifies the source of goods.  USPTO definition:

"A trademark includes any word, name, symbol, or device, or any combination used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods.  In short, a trademark is a brand name."

United States Patent and Trademark Office, Patent Portal

A trademark can be a word, symbol, phrase, or other type of distinguishing mark.  The mark must be sufficiently distinctive (i.e., capable of identifying the source of a particular product.)

There are 4 levels of distinctiveness:

Distinctiveness Meaning Level of Protection
Arbitrary or fanciful no logical relationship to the underlying product Strong protection
Suggestive evokes or suggests a characteristic of the underlying product Strong protection
Descriptive directly describes the underlying product Possible protection
Generic describes the general product category No protection

Grounds for USPTO to refuse a trademark include:

  • Confusingly similar to an existing mark
  • Merely descriptive
  • Deceptively misdescriptive
  • Primarily merely a surname

For more information, see USPTO's Grounds for Refusal of a Mark

Trademark registration provides:

  • legal presumption of exclusive right to use mark nationwide or in connection with goods or services identified on the registration
  • legal presumption of ownership
  • public notice of ownership
  • that the mark is recorded with the U.S. Patent & Trademark Office
  • the ability to record the mark with U.S. Customs and Border Protection
  • the right to sue in Federal court
  • the use it as a basis for foreign registration
  • the ability to use the Federal trademark registration symbol - ®

Acknowledgements

Adapted, revised and used with permission.  With thanks to:

  • University of Washington, Gallagher Law Library staff
  • Peter Gilbert, Seeley G. Mudd Library, Lawrence University
  • Kristen LaBonte, Davidson Library, University of California, Santa Barbara
  • Ruth Wallach, University of Southern California
  • Kirstin Dougan, Music & Performing Arts Library, University of Illinois at Urbana-Champaign
  • Gabriela Sontag, University of Redlands

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