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Distinguishing Copyrights from Rights in Other Property

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Real Property:
Land and “fixed” structures which are attached to the land (including houses and light fixtures within a house, but not table lamps or washing machines), as well as anything growing on the land.

Movable items (aka personal property) including livestock. Books, documents, videotapes, compact discs, computers, paintings, cars and statues (which are not permanently affixed) are just some examples. A statue permanently attached to the ground would become real property.

Tangible property is property which can be touched, moved, etc. It has breadth and extension (shape and size).

Intangible property is impossible to perceive with our physical senses, but does exist. For example, a book is tangible, but the protection granted by copyright law is for the expression fixed within the pages, not the physical written words themselves.

A distinctive word, phrase, logo or other graphic symbol that is used to distinguish one product, service, company or organization from another. Trademarks seek to protect against customer confusion.

Protection provided by the law for the inventions or discoveries of a person or entity or for the procedures developed by such person or entity.

It is important to keep in mind the type of property and rights which concern us here. Intellectual property law grants rights in intangible property. While ownership of title to a piece of land might be conceptual, the land itself is not. Real property is very, very real. We can feel it, build on it, see it, plant trees on it, etc. Similarly, the car I own (personal property) is quite real. I can sit in it, drive it, smash it into a tree, etc. So if someone smashes his car into a tree on land he owns, there is no doubt as to the property which has just been destroyed!

Title 17 §202 distinguishes between ownership in a copyright (the intangible property) and ownership of the material object (the tangible chattels).

In 1993 the 1st Circuit faced this distinction in a case involving George Thorogood and the Destroyers (of “Bad to the Bone” fame). See Forward v. Thorogood, 985 F.2d 604.

Apparently, a bus driver friend of Thorogood’s was instrumental in helping the band get signed to their first recording contract with Rounder Records in the mid-seventies. The bus driver, curiously named Forward (imagine a passenger yelling “Forward, Forward!") had arranged for and paid for some of the band’s material to be recorded, in order to play the tapes for Rounder Records. After the deal was signed, Forward was allowed to keep the demo tapes.

More than 10 years later, Forward told the band that he intended to sell the tapes for distribution. There was no question that he owned the tapes. The only question was whether that gave him the right to reproduce the music – the expressions – contained on those tapes. The court decided that he did not, thus clarifying the difference between owning the chattels (the tape) and the copyrighted material (the recordings on the tape).

That said, copyright law does not protect ideas. When we say that copyright law grants rights in intangible property, we must take care to not confuse that with mere ideas or concepts. We will see in the next section of this Chapter that only expressions are protected. In other words, the idea for a song involving some stuttering cannot be copyrighted (otherwise, there would be a significant battle between The Who, Randy Bachmann, and George Thorogood – a “battle of the bands” to go down in history!)

Both trademarks and patents will be discussed in their own chapters, but it is important at this point to have some understanding about the differences between these intellectual property rights and copyright.

Copyright ownership comes about as a result of creation. Simply by creating and “fixing” an original work one acquires ownership of that work. We will discuss how filing and giving notice affects rights and protection, but copyright ownership exists from the moment a work is created.

EXAMPLE: Jesse is an avid sketcher, and most enjoys working in pencil. One day at school, instead of listening to his teacher, he sketches the baseball stadium in his hometown. When class ends, he closes his notebook and heads to lunch.

Jesse immediately acquires ownership of his fanciful creation. The fact that it is based on an actual location is irrelevant, as is the fact that nobody has ever seen his sketch. If he wants to successfully defend this sketch against infringers he may want to take additional steps, but ownership attaches immediately and completely.

Trademark law serves to protect unique slogans, logos, and the like, against use by others in a way which would create customer confusion (marks of trade). As with copyright law, registration has its advantages. Unlike copyright law, however, mere creation is inadequate to give rise to trademark protection. Instead, rights in the intellectual property can only stem from public use.

EXAMPLE: Harry has a business idea. He plans to sell inflatable baseball bats in bright colors, hoping that parents will buy them for the kids they bring along to baseball games. He has come up with the name “Hot Bats” and asks Jesse to design a logo for the business, in exchange for which he pays Jesse $50. As soon as the logo design is drawn, copyright protection attaches (this is known as a “work for hire” and Harry owns the copyright, not Jesse). However, until Harry starts making bats, or signs, or flyers, or some other public use of the logo, there can be no trademark protection. If the logo is never seen by the public in connection with a public use there will be no property to trademark.

While copyright protects expressions, and trademark protects business marks, patent law seeks to protect uniqueness, inventiveness, and ingenuity. Merely designing a product is inadequate (though copyright protection attaches to the drawing). Even marketing that product won’t give rise to a patent (though trademark protection might come about). And unlike both copyright and trademark, registration for a patent is mandatory for protection, not merely advantageous.

EXAMPLE: Harry’s Hot Bats aren’t just brightly colored. They’re actually pretty cool, because the parents buy them in small, flat packages. Once in the stadium, opening the packages causes a device contained within to automatically inflate the bat. Harry is a brilliant inventor, but a terrible artist. He sits next to Jesse and gives detailed instructions which Jesse uses to draw the diagram required for the patent application. For whatever reason, Harry decides not to pursue the business and the application is never filed. Jesse’s drawings are again protected by copyright law (and again the rights belong to the employer, Harry), but an unfiled patent application provides no protection against competition.

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