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CHAPTER 9
INTELLECTUAL PROPERTY
Property has traditionally focused on real property—physical things that can be seen and touched
—but increasingly intellectual property, which is often intangible, is the most important asset of
many firms and of most persons. In the information age, knowledge is often revealed in forms of
intellectual property. Intellectual or intangible property arises largely from mental activity. It is
protected by tort law (and by contract), some of which has been codified in legislation, except for
patents, which are purely statutory. Protection of intellectual property is expressly mentioned in
the Constitution. Actions for infringement are brought against those who wrongfully use others’
intellectual property
TRADEMARKS—Commercial symbols, logos or marks that are distinctive and nonfunctional
that are used to identify goods. A common law form of property recognized by Lanham Act,
which allows federal registration. Use may be perpetual so long as trademark is used, but the
focus is on real use in the market.
Add. Case: Central Manufacturing v. Brett (7th Cir., 2007)--The great baseball player George
Brett owned Brett Sports and began selling Tridiamond-made bats in 1999 under various names,
including a “Stealth” model. Central Mgfr. had used the Stealth mark since 1982 for boats,
motorcycles, bicycles, auto locks, comic books, lawn sprinklers, and other products. In 1984,
Central registered the mark for “sporting goods, specifically, tennis rackets, golf clubs, tennis
balls, basketballs, baseballs” and other products, but did not produce those products. In 2001 it
licensed the Stealth mark to Blackwrap to use on its baseball bats. In 2004 the Patent and
Trademark office registered the Stealth trademark to Central for baseball bats. About that time,
Central became aware that Brett used Stealth on baseball bats and sued for infringement. The
trial court held that Brett was the first to use Stealth on a baseball bat, in 1999, so that
precluded a claim of infringement since Central did not use the mark until later on baseball bats.
Central appealed.
Decision: Affirmed. Central failed to show that it actually used the Stealth mark in connection
with baseball bats before 1999. The Lanham Act protects marks when used in commerce; it does
Issue Spotter: Establishing Your Name
At least 60 million domain names have been registered, half with .com ending. Other endings,
such as .biz, are easier to obtain, but less desired. Cybersquatters have registered many names,
including most that new businesses may wish to have. Companies such as register.com provide
assistance in domain-name registration and advise getting a memorable, short name if possible,
and one easily spelled. People find it hard to follow bizarre spellings of names and will end up
on someone else’s site. Registration costs about $30 a year; up to 10 years’ registration can be
had at once. Accredited registrars can be found on the Internet Corporation for Assigned Names
and Numbers (icann.org) website. If a cybersquatter has the name you want, she will sell it and
will bargain on price, as you may be the only buyer. DomainCollection.com acts as a broker for
cybersquatter speculators. If you bid, do it through an anonymous email address so the seller
cannot figure out what business you represent. Most will come way down in price from the high
one they first offer to sell at. You could litigate, but that is expensive and time consuming. Many
other domain names had legitimate uses, but the person who registered the name no longer needs
it and may sell it cheap. Snapnames.com watches for domain names that are about to expire and
can help snag them.
Registration—Under the Lanham Act, trademarks are registered at Patent and Trademark
Office; a search is done to make sure no conflict exists. Common names and descriptive names
may not be trademarked. Federal registration is good for ten years, but can be renewed. It is a
good idea to put others on notice that a term is a trademark by using “TM” or “®,” but that is not
mandatory to have protection. The WTO helps enforce trademarks globally.
Add. Disc : Because so many commercial names are similar, gaining control of a trademark can
be very important. The general rule is first to use the mark in trade gains control; however, one
can file an intent-to-use application under the Trademark Act. The filing date may control later
in a dispute. The Trademark Dilution Act of 1996 essentially makes state registration of
trademarks irrelevant; this will make the law of trademarks more consistent nationally.
Classifications of Trademarks—1) Arbitrary and fanciful are most favored—made up and
distinctive—such as Exxon and Chicken of the Sea (tuna); 2) suggestive marks hint about the
product, such as Roach Motel; 3) descriptive are not favored and must be shown to have strong
public identification (secondary meaning) to be kept, such as Raisin Bran, All Bran, and
American Girl; and 4) generic marks are words that have become common but used to be
trademarks, such as Escalator and Aspirin. Most colleges have licensing agents to collect
royalties from the use of their trademarks, such as sports team name and mascot.
Add. Case: In re Reed Elsevier Properties (Fed. Cir. 2007)--Reed operated the website
www.lawyers.com. It first used the mark in 1998 and applied to register lawyers.com as a
service mark. The examining attorney at the Trademark Board refused to register the mark
because it is generic. Reed appealed and the Board affirmed, agreeing that it was generic. Reed
appealed that decision.
Decision: Affirmed. Under the Lanham Act, an appeals court may review a determination of
whether a mark is generic or not. The test for that is first, the genus of goods or services at issue
Add. Case: Peaches Entertainment v. Entertainment Repertoire Assoc. (5th Cir., 1995)--
Peaches Entertainment (PEC) began using the name Peaches on its record stores in 1975; at the
time of the case it had 21 stores in 6 states. It registered the TM Peaches in 1976. Entertainment
Repertoire (ERA) had one large store in New Orleans called Peaches that it opened in 1975.
PEC complained by letter to ERA about the name in 1975, but nothing more was done until suit
was filed against ERA in 1992 for trademark infringement. ERA defended that it had the right to
use the name in the New Orleans area because it was a “junior user” of the name prior to its
registration.
Decision: ERA had established its use of the name in the New Orleans area and may continue to
Add. Disc: Generic Marks: In 1938 the Supreme Court held that Nabisco could not stop other
cereal companies from using the name Shredded Wheat (Kellogg v. National Biscuit, 59 S.Ct.
109). The term was never registered as a TM. The public knew that Nabisco made Shredded
Wheat, but it was not the only company to do so. The term was generic and had been in use for
40 years, so anyone could use it. For a number of years Nabisco held patents on machines that
made the distinctive shape of Shredded Wheat cereal, but once those patents expired anyone
could make cereal shaped like little pillows and call it shredded wheat. The names Kellogg and
Nabisco must be the primary distinction between the products, as those are protected
trademarks.
International Perspective: Costs of Counterfeiting
The global market for counterfeit goods may be $500 billion per year, of which $200 billion is in
the U.S. The cost is lost revenue and jobs to the owners of the real marks, copyrights or patents.
In some cases the problem is more than revenue. Counterfeit, inferior quality parts have shown
up in aircraft. Bad baby formula presented health risks and fake drugs have ruined health.
Google and others are being forced to cooperate on Internet based trading of fakes.
Cyberlaw: Who Owns What Domain Name?
The company NSI was chosen by the Natl. Science Found. years ago to have control over the
issuing and controlling (and pricing) of domain names (that monopoly is apparently coming to an
end). NSI, now a part of VeriSign, set the rules and determined that first come-first serve was the
general rule with respect to genuine users. Other domains have been established that are not
under VeriSign control, such as .biz, but most have stuck with the original top level domain
names. Cybersquatters who claim names they expect to be valuable can have their claim
invalidated, but since the procedure takes time, many firms have simply paid the squatters to
give up the name.
Extent of Coverage— TMs cannot claim too much–coverage is limited to real use in practice.
Certain words are used as TMs on many different products made by different companies
(example of Shox). Extent of coverage depends on how well known a mark is and likelihood of
confusion.
Add. Case: Harley-Davidson v. Grottanelli (2nd Cir., 1999)--Harley warned motorcycle-repair
shop owner Grottanelli not to use the word Hog, which it had a trademark for, or to use the
Harley bar-and-shield logo, also a trademark. Grottanelli used his own version of the logo,
basically making fun of it. When ignored, Harely sued Grottanelli. The court ordered him to stop
using both trademarks; he appealed.
Decision: The trademark issued for “hog” is invalid and may not be enforced. Harley claimed
the word in the early 1980s and registered it in 1987. Grottanelli had used the word
commercially since 1969 and evidence is that the word was used to refer generally to large
Add. Case: Zazu Designs v. L’Oreal (7th Cir., 1992)--Zazu Hair Designs (ZHD), a hair salon in
Illinois, registered ZAZU in 1980 as a trade name. In 1986, L’Oreal wanted to use the name
ZAZU for a new line of hair cosmetics. It discovered the ZAZU registration in Illinois. L’Oreal
asked ZAZU asked if they were selling hair cosmetics, but was told that there were no ZAZU
products. Later, ZHD began to sell shampoo from its shop under the name ZAZU. ZHD sued
L’Oreal for trademark infringement. District court awarded ZHD $100,000 in lost profits, $1
million for corrective advertising to restore the ZAZU name and $1 million punitives. L’Oreal
appealed.
Decision: Reversed. ZHD had registered the name ZAZU with the state of Illinois, but had not
registered with the PTO. The Lanham Act allows only trademarks “used in commerce” to be
registered. If ZHD had registered with PTO it would have had a stronger case and L’Oreal
Add. Case: White v. Samsung (9th Cir., 1992)--Vanna White was hostess of “Wheel of
Fortune,” a game show. Samsung had a TV ad for its products supposedly in the year 2012, in
which a robot wearing a blond wig turned letters on a game show. The ad was a futuristic
version of “Wheel of Fortune.” White sued Samsung for unauthorized use of her likeness for
advertising without consent and for violation of the Lanham Act. The District Court granted
Samsung summary judgment.
Decision: Reversed. Her claim of Lanham Act violation must be heard. To prevail, she must
“show that in running the robot ad, Samsung . . . created a likelihood of confusion over whether
A dissenting judge would have rejected the claim. The majority opinion would mean that no
blond hostess could appear on a game show with a format similar to that of “Wheel of Fortune.”
“Under the majority’s view of the law, Gene Autry could have brought an action for damages
Add. Disc.: (1) Gatorade had a slogan, “Gatorade is thirst aid.” This was attacked by the
holder of the trademark “Thirst Aid,” which was used for a small line of soda fountain products.
This was held to potentially create reverse confusion under the Lanham Act, which is when an
advertisement takes advantage of an existing trademark, as in this case, which may cause
confusion about which product is related to which name. However, because Thirst-Aid is not well
known, it must show that there was in fact confusion that caused it to suffer injury. Further, the
use of thirst aid in the Gatorade slogan was descriptive of the qualities of the product, not
suggestive of the name, so it was not a direct infringement (978 F2d 947). (2) It was not a
violation of the Lanham Act for the trade dress “Tylenol PM” to be used, even though it was
similar to the trade dress “Excedrin PM.” The words Tylenol and Excedrin are trademarks, but
PM is not; it was trade dress first used by Excedrin, then by Tylenol. Since no confusion about
which product was which was likely to arise, no protection was available to Excedrin when tied
to PM (973 F2d 1033). (3) It was a violation of the L’eggs pantyhose trademark for another
company to put out pantyhose called Leg Looks when packaged similarly to the distinctive dome
shaped packaging created for Sheer Energy (L’eggs) pantyhose with a drawing of long legs on
the package (81 F3d 455). (4) Tommy Hilfiger was found in bad faith for having failed to do a
trademark search, as recommended by its attorney, before producing “Star Class” clothing,
which infringed on the trademark owned by the International Star Class Yacht Racing
Association. Hilfiger must account for profits earned and pay attorney fees (80 F3d 749). (5)
General Motors violated the trademark and publicity rights of Kareem Abdul-Jabbar by using
his former name, Lew Alcindor, without his permission in its advertising. A birth name is not
deemed abandoned such that others can use it for commercial purposes (75 F3d 1391). (6)
Neither “Warehouse Shoe” or “Shoe Warehouse” could claim trademark over “Warehouse”; it
is a generic term (75 F3d 1153).
Add. Case: Packard Press v. Hewlett-Packard (Fed. Cir., 2000)--Packard Press is a
commercial printer in New York. Expanding its services via the Internet, it selected the mark
“Packard Technologies” and applied to the PTO for the mark. Hewlett-Packard (H-P), holder of
many marks, filed an opposition on the grounds that it was confusingly similar to H-P’s existing
marks. The TM Board held there was a likelihood of confusion and denied the mark. Packard
Press appealed.
Decision: Reversed. A likelihood of confusion that would warrant denial of a trademark
registration application is based on many factors: 1) similarity or dissimilarity of marks in their
entireties as to appearance, sound, connotation and commercial impression; 2) similarity or
dissimilarity and nature of goods or services; 3) similarity or dissimilarity of established,
likely-to-continue trade channels, 4) conditions under which buyers make purchases-impulse
Note: A problem with trademark litigation is that it may require goods to be removed from the
market while litigation continues, which can destroy the market for the good. As a result, more
trademark disputes are settled by an alternative dispute resolution program run by the
International Trademark Association and the Center for Public Resources, a New York ADR
alliance.
Infringement, Dilution, and Cybersquatting—Infringement is when a seller causes confusions
about the origins of a product by improper TM use. It can come from either copying the actual
name on goods or using a name so similar as to cause confusion. Dilution generally applies to
famous marks which get special treatment under the Trademark Revision Dilution Act of 2006,
which bolsters Lanham Act protection. It allows attacks on any blurring of a famous name;
injunctions may be sought. Cyberquatting is when a TM is used improperly in a domain name;
one cannot capture a TM in a domain name. There are defenses of fair use, such as in
comparative ads, noncommercial use, such as parody or editorial, and news reporting and
educational use.
CASE: Audi AG v. D’Amato—D’Amato registered the domain name audisport.com. He sold
goods with Audi logos and TMs. He claimed to have permission from a salesman at an Audi
dealership (which is irrelevant since they have no rights to grant usage of Audi TMs). Audi sued
for infringement, dilution, and cyberquatting. District court granted permanent injunction.
D’Amato appealed.
Decision: Affirmed. Under both common law and Lanham Act, trademarks are protected. To
obtain equitable relief, Audi need only show likelihood of confusion. For statutory damages,
proof that buyers were actually confused would be needed, but that is not an issue here.
Likelihood of confusion is based on: strength of plaintiff’s mark, relatedness of the goods,
Questions: 1. The court affirmed that D’Amato engaged in infringement, dilution and
cybersquatting with respect to Audi’s marks. Since his website stated that he was not affiliated
with Audi, why did that not protect him? How could Audi be harmed?
It does not protect him because the law says so. The reason is that people are led to the site by
the use of the famous name—so D’Amato could end up getting business that Audi would have
2. Why does the law focus on marks that are distinctive and famous?
The newer statutes were passed due to strong lobbying by the owners of famous marks who want
strong legal protection for them. They got what they wanted as the statutes specify that
Counterfeiting—A multi-billion dollar problem for owners of trademarks; policed privately and
by government authorities. Now a major issue in international trade talks, especially with less
developed nations like China.
Private Enforcement—The Lanham Act allows parties to obtain search-and-seizure warrants to
grab counterfeit goods. Private investigators gather the evidence for a client, take the evidence to
a U.S. Attorney, who usually supports the issuance of a warrant. With an officer present, the
goods are seized and destroyed and may be used as evidence in civil litigation.
Add. Case: Hard Rock Cafe v. Concession Services (7th Cir., 1992)--Chicago Hard Rock Cafe
t-shirts, trademarked, earned over $1 million per year profit. Counterfeit shirts were sold at flea
markets run by Concession Services (CSI). Trial court issued injunction against further sales at
CSI flea markets. Hard Rock wanted CSI also held contributorily liable and vicariously liable
for financial losses Hard Rock suffered due to counterfeit sales.
Decision: 7th Circuit held CSI could be contributorily liable for trademark violations by the
booth operators at its flea markets if it had reason to know of the counterfeiting (which was
Add. Disc.: In Fonovisa v. Cherry Auction the 9th Circuit expanded on the Hard Rock case,
holding a flea market operator liable for contributory and vicarious trademark and copyright
infringement. The flea markets were well known to sell counterfeit music CDs; they had been
raided before and had been put on notice by the trademark and copyright holders, so their
liability was strong even though they were not the immediate sellers of the pirate CDs.
Add. Case: Levi Strauss v. Sunrise Intl. (11th Cir., 1995)--Levi’s accused Sunrise of
unauthorized production of “Levi’s 501” jeans in China for sale in Europe. Suing for TM
infringement, the court granted Levi’s request to inspect Sunrise’s business in Florida, where
documents and counterfeit jeans were seized. The court issued an injunction against any
transactions involving real or counterfeit Levi’s or representing that they were in any way
connected with Levi’s, and they froze its assets. Sunrise appealed, claiming that since the
counterfeit jeans were not produced or intended for sale in the U.S. that the court did not have
jurisdiction.
Decision: Affirmed. The Lanham Act applied to all commerce within the control of Congress.
When actions taken by U.S. residents may injure the trade reputation of a company at home and
Add. Disc.: Counterfeit goods are estimated to be a $200 billion enterprise worldwide. The most
commonly understood are of products such as Hard Rock t-shirts, Nike shoes, DVDs, and other
consumer products. But it shows up in less glamorous products. American car makers estimate
losses of $12 billion per year to sales of counterfeit auto parts. Perhaps half of all nuts, bolts,
and screws sold in the country—about $3 billion worth—have false trademarks or illegal quality
stamps. Since most people cannot tell a high quality bolt from a low quality nut, the deception is
hard to uncover, but effects are costly. Two-thirds of all nuclear power plants have been closed at
one time due to discovery of low-quality mis-branded bolts, etc.
Trade Dress— A commercial symbol also recognized by trademark law, concerns the look and
feel of products and product presentation, such as a distinctive decor for a chain of restaurants, as
in the 1992 S.Ct. case, Taco Cabana. This is a rapidly expanding area of law.
Add. Disc.: This case is consistent with a federal circuit holding that Owens-Corning could
claim the color pink for insulation as a trademark. What makes color or other trade dress
successful? A unique, non-functional color; use the color on the product and its packaging;
advertise the color; use slogans using the color (“Put Your House in the Pink” is used by
Owens-Corning); use the color in sales materials, promotions and give-aways; note on the
package that the color is a trademark. The trade dress exists when the look and feel is so
noteworthy, in its market, that is has meaning of its own (called secondary meaning) beyond the
immediate product or service.
Add. Case: TrafFix Devices v. Marketing Displays (S. Ct., 2001)--MD held a patent for a
“dual-spring design” that keeps outdoor signs upright during strong winds. After its patent
expired, a competitor, TrafFix, began selling signs with a similar dual-spring mechanism. MD
sued TrafFix for trade dress infringement. The district court held that there was no trade dress
protection for the design because it was a functional design that had lost its patent protection.
The appeals court reversed in favor of MD. TrafFix appealed.
Decision: Reversed. Because MD’s dual-spring design is a functional feature for which there is
no trade dress protection, MD’s claim is barred. Trade dress may not be claimed for functional
features; a patent is strong evidence that the features are functional. To overcome that
Issue Spotter: Knock Off the Knock-Offs?
If a company does not take steps to protect a trademark then eventually it loses its legal
protection and is generic. There must be evidence of intent to protect a mark from infringement
or at some point the mark is lost. So that is one reason to take steps against the knock-off makers
and sellers. Doing something effective is difficult. There are trade associations that hire firms to
go after illegal vendors–filing suit, going to the government with evidence of the illegal
activities, and such. For one firm to bear all the cost would be very difficult, so firms join
together through associations or specialty organizations to join in enforcement activities.
Stopping production in another country can be difficult–especially when production can be
moved quickly in case of enforcement. Producers and trade associations have put pressure on
other governments to take steps to enforce international trade agreements to protect intellectual
property.
Other Marks— Lanham recognizes service marks as well as TMs, but service marks apply only
to services such as advertising, hotels and associations. They are usually not as important as
trademarks. “Burger King” is a trademark; “Home of the Whopper” is a service mark
subordinate to Burger King. In practice, little distinction is made between service marks and
trademarks. A certification mark notes geographic origin (“Made in Texas”) or relationship to an
organization (“Union Made in the USA”). A collective mark is used in commerce by members of
a cooperative or some other association.
Trade Names— Protected by common law but not registered under Lanham. They are the names
of the business. Protection applies to the market area of the product or service; on cannot claim
national protection for a trade name that only has local meaning. When trade names are not
protected, such as elevator and zipper, the terms become generic and lose protection. The Coca
Cola Company and Rollerblade, Inc. fight very hard to keep their names proprietary.
Goodwill— A company’s name also generates an asset called goodwill. It is the trust of
customers an existing business has developed. It means that a business will sell for an extra price
because of a client base. It is often tied to trademark or trade name.
COPYRIGHT—Common law protection for original expressions that have been codified by the
Copyright Act that give the owner exclusive rights to their works to 1) reproduce, 2) publish, 3)
display, 4) perform, or 5) prepare derivative works. The rights are (by statute, since 1999) for the
life of the author, plus seventy years [and 95 years in the case of commercial works, such as a
movie produced at the Disney studios]. Since 1990, “moral rights” to works are also protected,
which limits the right of later owners to destroy or alter copyrighted works; this has generated
some litigation in cases involving artistic works later changed, such a the movement of a work of
art from its original location. Public facts cannot be protected, even if presented in a different
format, such as an alternative phone book listing of names and numbers.
Add. Case: Greenberg v. National Geographic Society (11th Cir., 2007)--Greenberg provided
photographs for articles that appeared in four issues of National Geographic. Past issues of the
magazine were digitized and sold on CD-ROM sets. Greenberg sued, contending republication of
his photographs in that format without his permission was infringement. The jury found willful
infringement and awarded the maximum damages allowed, $100,000 per incident, for $400,000
total damages. The magazine appealed.
Decision: Reversed. Electronic reproduction of the magazine was privileged revision of the
original works. Similarly, a computer program that allows a user to search the electronic
Add. Case: Williams v. Crichton (2nd Cir., 1996) Background: Williams wrote four copyrighted
works of fiction for children called Dinosaur World. In these 30 page books, young children get
lost in a dinosaur park and have various adventures. Williams sued Crichton, author of Jurrasic
Park; the book’s publisher; Steven Spielberg, producer of the movie; and the movie studio, for
copyright infringement. Crichton et al. were granted summary judgment. Williams appealed.
Decision: Affirmed. To establish infringement there must be “copying of constituent elements of
the work that are original.” Copyrights do not protect ideas, they protect the expression of an
idea. Scenes and sequences of events in a setting cannot be copyrighted. The “common use of
Add. Case: Lotus v. Borland (1st Cir., 1995)--Lotus 1-2-3 is a spreadsheet program run by menu
commands, such as “Copy” and “Quit.” Over 450 commands are arranged into 50 menus and
submenus. Borland’s Quattro is a competitor introduced later that uses “a virtually identical
copy of the entire 1-2-3 menu tree.” The code was not copied, just the words and structure of the
menu commands. Lotus sued Borland for copyright infringement. District court held for Lotus.
Decision: Reversed. The menu command is not copyrightable. Copyright law states, “In no case
does copyright protection for an original work of authorship extend to any idea, procedure,
process, system, method of operation, concept, principle, or discovery, regardless of the form in
Registration—A simple form from the Copyright Office in D.C., plus $20 and two copies of the
work, is all that is necessary; it is simply registration in case evidence of when created in time is
needed later. Use of "Copyright" or the "©" is not required but is a good idea.
Add. Case: Feist Publications v. Rural Telephone Service (S. Ct., 1991)--A phone company
brought a copyright infringement suit against the publisher of a phone directory that used its
listings from the phone company’s white pages in making a competitive phone directory.
Decision: The Supreme Court held that the names, towns, and telephone numbers of the
telephone company’s subscribers were non-copyrightable facts and that these bits of information
Add. Case: Superior Form v. Dan Chase Taxidermy (4th Cir., 1996)--Superior Form (SF)
“created and markets animal mannequins for mounting animal skins. Employing traditional
sculpturing techniques, [SF] creates the mannequins, using casts of actual animal carcasses as
models.” From the casts, plastic forms are made. Copyrighted mannequins are used by
taxidermists to put animal skins on for hunters. Chase, a large taxidermy supply company,
bought SF’s mannequins, copied them, and listed them for sale in their catalog, asserting they
were copyrighted by Chase. SF sued for infringement. The jury awarded SF $400,000; Chase
appealed.
Decision: Affirmed. “The Copyright Act provides copyright protection for ‘original works of
authorship fixed in any tangible medium of expression,’ including ‘sculptural works.’” An
Add. Disc.: What happens if a work was not copyrighted initially, but later the creators realize
they better get it copyrighted? The 1st circuit held in the Garnier case (36 F.3d 1214) that
copyrights can be “cured.” The attachment of notice of copyright is not required to gain
protection for creative works, although it is encouraged because proof is simplified. In any event,
the owner must make “reasonable efforts” to publish notice of the copyright that the world does
not know exists. Registration is a simple part of the process. Those who have copies of the work
should be notified of the copyright claim and potential violators put on notice. That is, there
must be an active campaign to notify all parties affected that a work in circulation is in fact
copyrighted.
Add. Info: International Copyright Protection: The Berne Convention and the Universal
Copyright Convention, which the US belongs to, exist so countries recognize and enforce each
others’ copyrights. The standards for copyright law tend to be quite similar in most countries.
The World Intellectual Property Org. works to further strengthen international protections,
including for digital on-line materials, which are specifically covered by the Digital Millennium
Copyright Act of 1998 in the U.S.
Infringement and Fair Use— Test of fair use of copyrighted materials: 1) purpose and character
of the copying (for profit?); 2) nature of the copyrighted work; 3) extent of copying; and 4) effect
of copying on the market for the work. Fair-use exemption allows one copy of many copyrighted
materials for personal use.
CASE: Latin American Music v. Media Power Group (1st Cir., 2013)—Media Power owns four
radio stations in Puerto Rico. It was sued by Latin American Music (LAMCO) for infringing on
copyrights by playing songs without a license. The jury found that plaintiffs did not show it
owned copyrights. Plaintiffs appealed.
Decision: Affirmed. For infringement, plaintiff must show ownership of valid copyright and that
