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Legal Issues In Graphic Design
1. Jeffrey M Glazer Attorney, Glazer Legal Services jmg@glazerlegal.com 608-277-1778
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 Other Artist Releases Confidentiality/Non-Disclosure/Non-Compete
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
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
19. Design Patents Ornamental design of a functional item Like what? Fonts Coca-Cola Bottle Protects from “substantially similar” infringements
20. 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
21. Confidentiality/Non-Disclosure/Non-Compete Confidentiality – context specific (e.g., doctors and attorneys) expectation that conversations will be kept private Non-disclosure – a contract that prohibits someone from disclosing information Non-Compete – a contract that prohibits someone from working in a given area for given time within a given subject matter Construed very strictly for time and geography
Editor's Notes
Section 8: Declaration of UseSection 9: Application for RenewalSection 15: Declaration of Incontestability
“Mark strength” refers to both the “uniqueness” of the mark as applied to the goods or services, but also to length of time, territory, and marketing $
Dilution: lessening of capacity to distinguish goods and services regardless of competition or likelihood of confusion
Registration is not strictly necessary, but is required to sue for infringement and provides prima facie proof of ownership
“unrecognizable” is not a legal term of art, but an example of when creating a derivative work (technically uses a prior work) does not infringe the prior work: example, cut a model’s mouth of a magazine to make a collage vs. cut out Cindy Crawford’s mouth with recognizable mole, to make a collage
Lux et veritas – light and truthWicked SweeTNewspaper from 1916 (94 yrs – not OK); Newspaper from 1914 (96 yrs - OK)