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Key Takeaway: One critical question to ask when deciding whether to protect your invention using patents or trade secrets is how well the invention can be kept secret. Ease of reverse-engineering, risk of independent duplicate creation, and the ease of maintaining the invention secret in a commercial setting are factors that should be considered.

Imagine you’re a fashion designer with a unique clothing design. As with any other business, you wish to protect your intellectual property through the standard combination of patents, trademarks, and copyrights. Sounds simple, right?

Wrong! There is no one-stop shop for protecting your intellectual property and, until recently, the law was not completely on your side. Though a single garment may be the result of a single creative process by a designer, multiple mechanisms may be needed to protect the design of that garment. One of those mechanisms—copyright law—historically has presented a significant hurdle to protecting fashion designs. The Supreme Court, however, recently clarified and expanded how copyright law can be leveraged to protect designs, often quickly and relatively inexpensively.

Below is a high-level overview of the various legal forms of protection for the fashion industry and what those legal mechanisms cover.

Digital arrow and circuit board

The U.S. Commerce Department recently released a comprehensive report, entitled “Intellectual Property and the U.S. Economy: 2016 Update” (the “Report”). The Report, which was co-authored by the Economics & Statistics Administration and the United States Patent and Trademark Office, builds upon an earlier 2012 report, finding that “IP-intensive industries continue to be a major, integral and growing part of the U.S. economy.” The Report provides a wealth of quantitative information and analysis on the value of trademarks, copyrights, and patents to the U.S. economy. Key findings include:

Professional service firms at times seem to focus on protecting the names of their service offerings or platforms at the expense of their house marks. Pat Concannon, a partner in Nutter’s Intellectual Property and Business Departments, with over 20 years of experience devoted to helping businesses establish and protect their brands, analyzes why professional service firms need to safeguard their house marks in Nutter Insights.

Posted in Copyright

The Digital Millennium Copyright Act (DMCA) makes it illegal to circumvent technological measures used to prevent unauthorized access to copyrighted works.  Certain activities and classes of works, however, are exempted from this prohibition.  The exempted classes of works are determined by the U.S. Copyright Office every three years and remain in effect for the ensuing three-year period. 

Digital Book

The Second Circuit Court of Appeals recently ruled that Google’s scanning of printed books and subsequent use of the resulting digital copies is fair use under the Copyright Act (17 U.S.C. § 107). Google was first sued by the Authors Guild a decade ago over its Library Project and Books Project, which involve scanning published works to create digital copies, making the text searchable, and displaying at least snippets of the work in connection with search results. The decision affirmed the lower court’s grant of summary judgment and focused on the transformative nature of Google’s use. The Second Circuit noted that Google’s use provides information about a book without being a substitute for the book itself. The decision may not be the final word in this case—the Authors Guild states on their website that they intend to appeal the ruling to the Supreme Court.

Posted in Copyright

Bikram Choudhury, one of the most famous names in modern yoga, sought copyright protection in 2002 on a series of twenty-six yoga poses and two breathing exercises he developed and later called “the Sequence.” On October 8, 2015, the Ninth Circuit Court of Appeals ruled that the Sequence is not entitled to copyright protection because it is an “unprotectable idea.” The judges noted that the Sequence is akin to cooking recipes or surgical procedures. Accordingly, yoga studios that are not owned or operated by Choudhury are able to practice and teach the Sequence without concern for copyright infringement claims.

David Powsner, a partner in Nutter's Intellectual Property Department, was quoted by Yahoo! Finance in “Twitter’s football video removals raise questions for all media” on October 13. The article highlights recent actions taken by two firms that specialize in policing copyrights online under the Digital Millennium Copyright Act (DMCA). The firms told Twitter to take down posts that included video clips of professional and college football games. 

DancingToddler_YouTube_DMCAThe U.S. Court of Appeals for the Ninth Circuit this week issued a decision with implications for owners of music and audiovisual works. The court ruled that copyright owners first must assess whether a use of their content is in fact lawful “fair use” before sending a takedown notification under the Digital Millennium Copyright Act (DMCA). Considering fair use involves a balancing of subjective factors, this newly-clarified requirement may make it logistically more difficult and time consuming for content owners to evaluate whether a use of their content discovered online qualify for takedown notices.

Maximizing the protection and value of intellectual property assets is often the cornerstone of a business's success and even survival. In this blog, Nutter's Intellectual Property attorneys provide news updates and practical tips in patent portfolio development, IP litigation, trademarks, copyrights, trade secrets and licensing.

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