The second (new! improved!) version of the popular "Legal Issues In Graphic Design".

1. Jeffrey M Glazer Attorney, Glazer Legal Services jmg@glazerlegal.com 608-277-1778 Erin R. Ogden Attorney, Murphy Desmond, S.C. eogden@murphydesmond.com (608) 268-5595

2. Disclaimer Not Legal Advice – this presentation is for informational purposes All quoted prices are approximate and subject to change You may get bored

3. Legal Issues in Graphic Design Trademarks Copyrights (Design) Patents Artist Releases

4. Trademarks Anything that designates source of origin Tradenames (International Business Machines) Brandnames (iPod) Logos

5. Trademarks More obscure mark types Slogans (“The World Needs A Coke”) Colors (UPS/Brown) Sounds (Harley Engine) Even More Obscure Mark Types Family of Marks (“Mc”)

6. Trademarks How do I protect this awesome designator of source of origin? Preliminary Search (3-5 “top designs”) $150-300 Full Availability Search (final design) $600-800; $500 fees

7. Trademarks Protection, Pt 2 ™ Application to USPTO Typically about $750; with about $350 of that in USPTO fees Office Action Responses Publication Opposition Registration ®

8. Trademarks How Long Is My Registration Good For? Forever But… Section 8 and 15 Application in the 5th year Section 8 and 9 Application in the 9th year Section 8 and 9 Application every 10 years after that

9. Trademarks So what does all this money get me? Prevent Consumer Confusion

10. Trademarks Market differentiation (Polaroid Factors) Relative strength of the marks in question Degree of similarity of the marks Proximity of products Products will “bridge the gap” between each other Actual confusion Good faith in adopting the marks Quality of the products in question Consumer sophistication

11. Trademarks When is not infringement, infringement? “Famous” marks Dilution Tarnishment Victor/Victoria: Victoria’s Secret and Sex Toys

12. Copyright Does protect: “original works of authorship” Does not protect: the idea itself Examples: Books Non-trade art and design Music/video (script/song v performance) Websites/software (code v design/GUI) Layout

13. Copyright Bundle of Rights Reproduction Distribution Public Performance Public Display Derivative Works How © Date. Owner. Registration

14. Copyright Why protect copyrights? Grant of monopoly for life of copyright within the bundle of rights Life of Copyright Life + 70 yrs (last surviving author) 95 years from publication or 120 years from creation; whichever is shorter Infringement: any action within the “bundle of rights” taken by anyone without permission Includes: copying, distributing, performing, displaying, or creating “derivative works”

15. Copyright Derivative Work: Based upon one or more pre-existing works Examples Movie versions of books “Cliffs Notes” Dramatization Elaborations and condensations

16. Copyright “Substantially Similar” Direct copying: photocopy/exact reproduction Indirect/unconscious copying: not knowing about prior work is not a defense Derivative Works: escape liability if prior work is “unrecognizable” in the new work

17. Copyright Fair Use Defense It is a defense, which means that absent fair use it is infringement; as opposed to uses which are not infringing at all Purpose and character of use Nature of the copied work Amount and substantiality of copied work Effect on work’s value Very difficult to determine ahead of time Parodies and satire Reviews and education Time-shifting

18. Case Study

19. Design Patents Ornamental design of a functional item A design consists of the visual ornamental characteristics embodied in, or applied to, an article of manufacture. The subject matter of a design patent application may relate to: The configuration or shape of an article, To the surface ornamentation applied to an article, or To the combination of configuration and surface ornamentation. Protects only the appearance of the article and not structural or utilitarian features Like what? Fonts Coca-Cola bottle Signs

20. Design Patents Ornamental design of a functional item May be embodied in an entire article Bottle Only a portion of an article Part of a sign silhouette Ornamentation applied to an article. Patterns on item A design patent application has a single claim In general terms, a “utility patent” protects the way an article is used and works. A "design patent" protects the way an article looks Both design and utility patents may be obtained on an article

21. Design Patents First Sale Doctrine and Exhaustion The first unrestricted sale of a patented item exhausts the patentee's control over that particular item Downstream use may be restricted by contract Implied License A license to practice an invention will be implied when the patentee (or its licensee) sells a device that has "no non-infringing uses" under circumstances that "plainly indicate that the grant of a license should be inferred.“ Both are affirmative defenses

22. Artist Releases Invasion of Privacy Intrusion upon seclusion (invade physical quarters) Public disclosure (disseminate private information) False light (not defamatory because it’s true) Appropriation of name/likeness Requires person’s consent to use for commercial gain “Artist Release and Consent” – allows image/name to be used for commercial gain

23. Thank you! Any Questions? Feel free to e-mail or call.