1.Max plots a new Batman adventure and carefully and skillfully imitates the art of DC Comics to create an authentic-looking Batman comic. Max is not affiliated with the owners of the copyright to Batman.
Can Max publish the comic without infringing on the owners’ copyright?Most of the superheroes we know of today are drawn from the comic books. Movies, merchandise, computer games and TV serials have been created and used by the owners to draw profit. However, to prevent others from making use of the concept of the particular superheroes, certain legal instruments have been successfully utilized. These include copyrights, trademarks, design patents and unfair competition laws.
This would permit the original owners to make exclusive use of the superheroes they have created. Copyright provides protection to the original works that have been created in a tangible medium. It is important to note that copyright does not protect ideas but rather expression of an idea. For example, copyright would help to protect a particular unique superhero that has created by the owner keeping in mind uniqueness, skill, experience and creativity.
The particular superhero would be copyright protected as it is an expression of an idea and not an idea itself. However, it is also important to keep the idea/expression dichotomy in mind before granting copyright protection. Any person creating similar or using the same characters of movies or comic stories would be infringing on the copyright of the owner. Superman who appears in DC Comics is a unique character having certain physical characteristics and style.
It is not an idea, but an expression of an idea. However, a character like Court Reporter #2 who is a character in the Batman Begins movie is not a unique character having no specific characteristics. The owner cannot claim copyright protection as this is a more general (generic) character and would be like protecting an idea. The Nicholas V/S Universal Pictures (1930) was a case in which Judge Learned Hand denied granting copyright protection as the character was expressed in a way not in tune with the actual story.
Judge Learned Hand considered such a character to be a stock character playing not much important role in the story. Such characters belong to the public domain. Judge Learned Hand felt that if the character was less developed, having less unique characteristics, the chances of it being in the public domain were greater. Learned Hand used the delineation test to determine the unique characteristics of a copyright protected character.
Max cannot publish a comic that contains Superman, as Superman is a unique characteristic and contains a lot of efforts, creativity and experience gone in creating him. Max would be infringing upon the copyrights of DC Comics if he is allowed to use Superman in his comics.;E. Green “Superheroes: An Overview of Protecting Characters Under the Law.
” 2007. TLC USM. 12 Oct 2008 http://tlc.usm.
maine.edu/documents/Superheroes.pdf2.College Copy Shop (CCS) compiles, copies, and sells reading materials to students on the instructions of their professors, who indicate which parts of which publications should be included.
These include texts published by Deep Topics, Inc. CCS does not obtain the permission of Deep Topics, or any of the other original publishers of the copied materials, and does not pay royalties on the sales of the compilations. Deep Topics and others file a suit against CCS, alleging infringement of the plaintiffs’ intellectual property rights. Which type of intellectual property is involved in this situation? What is CCS’s likely defense? How is a court most likely to rule? Explain.
To copy, modify, duplicate, display, transcribe, translate, or distribute another person’s work without the due consent of the original owner is illegal. In this case, two things need to be kept in mind:-1. Was the copying fair use?2. Is CCS paying any royalty to the original owner?Firstly, it is important to determine whether the work itself is copyright protected.
CCS compiles the work and copies it to make it available for the students. As it is compiling the work, a certain amount of experience, creativity, labor, judgment and skills (originality) would be gone into. The court would have to determine if the work compiled by CCS could be copyright protected by it, as some amount of effort have gone in. If the work of CCS is copyright protected, then Deep Topics have no basis to claim infringement of its copyright.
Besides, it would also be important to determine the work produced by Deep Topic (that has been copied by CCS) would be copyrightable.CCS could be using the fair use clauses as a defense. Fair use includes:-· A part of the course material – Using a single chapter, article in a journal, graph, chart, diagram, etc, would be permitted (however, citations should be given)· Distance learning material – Use of work in live or delayed transmissions· Material taken from works too old to be copyright protected -· Using a small portion of another’s work in a presentation – Such as quotes, diagrams, sentences, etc, with due acknowledgement· Making copies for researchCCS would be infringing on the copyrights of Deep Topics if:-· There is no reasonable amount of originality in the compilations created and copied by CCS· The work of Deep Topic is copyright protected· CCS is making copies for commercial gain without paying any royalty to the owners· Extensive copying of Deep Topics work has been done by CCS.I do feel that the court would not consider CCS’s action as fair use, as CCS is involved in extensive copying.
;UT System. “Fair Use of Copyrighted Materials.” 2005. UT System.
12 Oct 2008. http://www.utsystem.edu/ogc/intellectualproperty/copypol2.
htm3.For five years, baby-food makers Baby-One Corporation and Baby-B-Mine, Inc., both use the phrase “Tastes Good” on their labels. Baby-One files a suit against Baby-B-Mine, claiming trademark infringement.
Baby-B-Mine argues that the phrase is not generally associated with any particular firm, pointing to other companies that use the same phrase on their labels. In whose favor is the court most likely to rule, and why?Let us first study the scope of using copyright law in this case. Copyright protects expressions of ideas and not ideas themselves. As short words are not expressions, they cannot be copyright protected, however distinctive they may appear.
However, single words, slogans, word strings can be trademark protected, provided they appear distinct for the goods or services produced by that particular company. In this case, the Court has to determine if the consumers find the term “tastes good” distinctive to the products of Baby One. Tastes good should have achieved the secondary meaning of representing the products of Baby One. If the words convey only a common meaning (such as a type of product), then they are said to be generic and would not be distinctive of Baby-one’s product.
Baby-B-Mine is claiming that other companies are using the words Tastes good and hence it has lost is distinctiveness/secondary meaning, and has become more generic/common meaning. In that case, Baby-B-Mine would not be infringing the trademark of Baby One, as Taste Good cannot be distinctive of the Company’s products.;I.R.
Kramer. “The Donald’s New Game of Trademark Monopoly: Can Trump Register the Rights to the Words “You’re Fired”? 2004. Kramler Law Firm. 12 Oct 2008.
“About Trademarks.” 2008. WIPO. 12 Oct 2008.
Hawk Corporation begins making and selling motorcycles in 1995 under the mark “Hawk.” Ten years later, Hawk.com, Inc., different company selling medical equipment and supplies, begins to use “hawk” as part of its URL and registers it as a domain name.
Can Hawk Corporation stop Hawk.com’s use of “hawk”? If so, what must the motorcycle-maker show?According to trademark laws, even a single word or a group of words can be given trademark protection, if it is distinctive for that company’s products or services. The word should have lost its primary meaning and should have gained secondary meaning or distinctiveness. When the particular word is being used, people should imagine the company’s product or services.
In this case, Hawk Corporation has been using the trademark Hawk since more than 10 years, and the product (motorcycles) have been successful in the market. The company has been able to achieve a great amount of distinctiveness through its trademark Hawk. However, Hawk.com is trying to use the same name for its internet strategy.
Hawk Corporation has to show that the company’s trademark has achieved distinctiveness or secondary meaning suggestive of the company’s products. Even if Hawk.com is selling its product in another region, it cannot use the domain name of Hawk Corporation, as putting any such trademarks on the internet would mean infringing local trademarks also. Hawk corporation has to show that Hawk.
com is trying to create some amount of confusion in the minds of the consumer (by using others make to pass the products onto the consumer). Hawk Corporation may also be able to prove dilution of its existing trademark by hawk.co. If Hawk Corporation is able to prove these, then it would be able to hold hawk.
com of its trademark violation. Asian Trademark Company. “Trademark Registration.” 2008.
Asian Trademark Company. 12 Oct 2008 http://www.asiantrademark.com/trademark.
html I.R. Kramer. “The Donald’s New Game of Trademark Monopoly: Can Trump Register the Rights to the Words “You’re Fired”? 2004.
Kramler Law Firm. 12 Oct 2008. http://www.kramerslaw.
com/trademark_law.htm WIPO. “About Trademarks.” 2008.
WIPO. 12 Oct 2008. http://www.wipo.int/trademarks/en/about_trademarks.html#function
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