After listening to several interesting podcasts concerning intellectual property by various professionals, I am giving a brief synopsis of each subject.
1. An Overview of Intellectual Property, by Stanley W Sokoloff.
They explain that IP breaks down into three different categories. The first category is trademarks. They are known as words and slogans that identify the source of origin. The second category is copyright. Copyright protects literary and artistic expressions. The last category is patent protection. There are two types of patents. A functional patent protects processes and composition of matter. A design patent focuses on the ornamental features of the matter.
The function of a trademark is to stop confusion. Copyrights protect against copying. Patents exclude other people from making and selling an invention.
The example that they give in this podcast is breaks down the components of a television. The trademark of the television would be the brand. Let's say it's Sony. The programs being viewed on the Sony television will be copyrighted. Things like plays and various scripts would be copyrighted. The wiring and electronics that make the Sony television work would be covered by a utility patent. The ornamental configuration of the display case that the TV is in could be protected with design patent.
2. Design Patent Infringement: Gorham v. White, by Christopher Corony
Corony gives a timeline of what was going on in the US leading up into the time of the Gorham v. White case.
1861 to 1865 the Civil War was taking place. After the Civil War, Corony explains that America was in the Reconstruction Era. During this era Americans wanted to forget about the war and move on with their lives. During this time they became interested in art, as the Europeans were. They then entered into the Impressionism Period in 1872.
John Gorham became very popular because of the various house wares that he made. He was known for his Victorian style plate ware. Once he was very successful with that, he then came out with the cottage design plate ware. Because this cottage design plate ware was very successful, he got a patent for it.
Leroy S. White made Gothic design from plated silver. There were several similarities between White's design and Gorham's design. There were also several differences. When Gorham brought this to trial, the court had to make a decision whether the similarities in the ware would be tested from someone versed in the trade, or just an ordinary observer. They concluded that someone versed in the trade would be the criterion for deciding if they are too similar. The ruled in the favor of the defendant and Gorham then took the case to the Supreme Court.
This is the only Supreme Court case for design patent in history. The Supreme Court thought it was wrong to base the test for similarities on someone who is versed in the trade. There will be more ordinary observers who will purchase the ware. The court ruled in favor of the Plaintiff. They decided that it is the overall impression, not the little differences that determine if two things are substantially similar.
There are 3 important things to take away from this case:
1. This case confirms the merit of design patents. These patents are meant to be a service to the public, warranting protection, and enforced.
2. They again questioned whose eyes should the similarities be viewed through. Instead of someone who specializes in the art, they decided that it would be more appropriate to have an ordinary observer be the standard.
3. They came up with the term "substantial similarity." This is the degree that is still used today to decide whether or not two items are too similar. They didn't want people to be confused between two different products.
These are the standards used now to tell the difference between two similar works, when it is concerning design patents.
3. Consumer Law in Second Life, by Dr. Christine Riefa
Second Life is a virtual Internet environment where users are able to create businesses and sell property. Christine Riefa is wondering if they should enforce consumer rights in Second Life. Second Life uses auctions to sell land and property. She points out that, unlike other virtual environment games, Second Life doesn't have a goal. When they are making various purchases, such as a handbag for the Avatar, the game is basically selling code. The things that are bought and sold with a currency called Linden Dollars. These dollars can actually be exchanged for real money. This makes Dr. Riefa wonder if normal consumer rights should be enforced. Is it fair for Second Life to shut down several accounts, or to not reimburse users if their purchases aren't what they should be? She is saying that they need software protection for the goods within Second Life; the same way there is protection for consumers in the real world.
4. The problem of Overprotection of IP, by Andrew Beckerman Rodau
A short explanation of what Mr. Rodau is saying is that the problematic over lapse of IP protection is caused by guidelines that are too broad. The problem that he is addressing is that creativity and innovation can be protected by more than one body of law at the same time. He believes that it undermines the balance that was initially set in place. "People are looking at how they can expand what they can protect, but they give little consideration to how it affects other bodies of law."
He describes how each area of IP protection has changed over time. At first copyright law covered maps, charts and books. It now covers everything from choreography to software. He mentions that anything with a method can be patented. Anything with any function can is eligible for patent. He gives an example of an outrageous hat that was patented because it's function was to "draw attention." Trademark law has expanded as well. Trademarks originally protected words, short phrases, and designs. Now anything that creates any mental associated is potentially a trademark, according to Rodau.
Google has a copyright and a design patent on the same work. He sees this as a problem. The design patent statute talks about the exterior appearance of something. Is the Google design ornamentation? Is it ornamentation of the computer monitor?
So he’s saying, if I paint a painting, and I copyright it, I can also get a design patent on it because it can be digitized and shown on a computer screen just like the Google image. So they get the benefits of the design patent, and when it expires after 14 years, they continue getting protection because of their copyright. Maybe they should be made to choose.
And sounds that cause mental associations can serve as a trademark, such as 20th Century Fox’s opening music, but that song can also be copyrighted. The balance that was built to encourage people to keep creating is burdened.
5. Patrick Cariou v. Richard Prince, by Jessica Silbey
Appropriation art is an art form that uses the artwork of others and makes collages. Because it uses other people’s work, the artists may be in danger of getting sued for copyright infringement.
The plaintiff, Patrick Cariou, in this case is a photographer who is not famous like the defendant, Richard Prince. Patrick made a book of photographs from his time in Jamaica that he called Yes, Rasta.
Prince took these images and encouraged and made collages in a show called Canal Zone. The case was brought up before the court questioning whether the reconstruction of the photographs was infringement or fair use. The judge decided in favor or Cariou.
There are several rights that citizens get with copyright protection. Cariou infringed on two of them. With a copyright you have the right to control reproduction, which stops other people from reproducing without your consent. It also gives the right to control the making of derivative works.
So the court's decision is "changing the culture of innovation." Copyright law has a purpose to encourage others to be creative, but in a sense because of this case it could actually be doing the opposite and restrict creativity. She is suggesting that some of these appropriation artists can’t afford to pay the licensing, so this will make it more difficult for them to do this type of art.
She explains that fair use allows people to express creativity by making secondary works. Transformation is a very important term in fair use. It means that it took something old and gave it new meaning. They are saying that Prince did not do this. The court concluded that the works that Prince did were unrelated to Cariou's photographs, but not transformative. If there would have been some type of purposeful referral to the original work, then Prince may have won the case.
