'Da Vinci Code' Case Stretched Legal Thinking On What Can Be Protected By Copyright
April 28, 2006
The common wisdom before, and during, the London copyright infringement trial over Dan Brown's book 'The Da Vinci Code' (DVC) was that the plaintiffs Michael Baigent and Richard Leigh would lose because an idea cannot be copyrighted. And the plaintiffs did lose. <i>Baigent v. Random House Group</i>. Some even suggested the plaintiffs sued only to bolster the sale of their own book, 'Holy Blood, Holy Grail', which is what happened ' though High Court Justice Peter Smith ordered the plaintiffs to pay $1.75 million in legal costs. The number of additional copies the authors will have to sell to earn enough royalties to pay that amount is high. Still, the case was one of those signal attempts to reconsider exactly what authorship is for copyright law purposes.
Trademark Protection for Characters After Copyright
March 30, 2006
As the copyright terms of many iconic, character-based works of the 20th century near closure, owners of these works face the question as to what extent they can enjoy exclusive rights in the characters they have created. Included is Disney's Mickey Mouse, first introduced in the short animated film 'Steamboat Willie' in 1928. Enterprising third parties raise the related question: Does the expiration of copyright mean these works and characters can be freely exploited? Once a copyright term lapses, an original work is said to pass into the public domain, available for all to freely copy and exploit. However, continued trademark protection for a character may delay or complicate the character's passage into the public domain. A careful analysis of fundamental principles of trademark and copyright law and relevant case law illuminate certain legal guideposts for navigating through the complexities of character protection.
IP News
March 30, 2006
Highlights of the latest intellectual property news from around the country.
Tips for Facilitating Patent Prosecution
March 30, 2006
As many patent practitioners are well aware, prosecution of patent applications has become a slow, tedious process. The U.S. Patent and Trademark Office ('PTO') acknowledges a large backlog of cases in many of its art units, with some art units having a pendency of at least 3 or 4 years. For many fields of technology, including computer and telecommunications, it is imperative to obtain a patent as soon as possible; otherwise, the patented technology will become stale by the time the patent issues, thereby making the patent practically worthless. This article discusses several ways by which a patent practitioner can speed up the patent prosecution treadmill.
Nuts and Bolts of ITC Investigations
March 30, 2006
In recent years, the International Trade Commission ('ITC') has become an increasingly popular venue for parties seeking to enforce patent rights. There are several reasons for this trend. First, the ITC is a high-speed venue. The ITC's investigation of a patentee's allegations of infringement is typically completed within 12 to 15 months, far more quickly than cases in most U.S. district courts. Second, the ITC offers a powerful remedy: exclusion of infringing products from the United States. The U.S. Customs Service enforces the exclusion order. Of course, this remedy is available only when the infringing products are being imported. However, there are many industries in which most, if not all, manufacturing takes place overseas. As a result, resort to the ITC is often available even with respect to domestic competitors. Third, although the ITC does not award damages, the patentee has the option of seeking damages in a parallel case in federal district court. Thus, the patentee can obtain both damages and an exclusion order by pursuing relief before the ITC and a district court.
Debtors Cannot Assume or Assign Trademark License Without Licensor's Consent
March 29, 2006
Trademarks serve as symbols of good will and are a valuable asset of the business associated with the mark. Not surprisingly, trademark licenses typically require the licensor's consent for assignments, because licensors want the right to pass on the abilities of new potential licensees. In the event of bankruptcy filing by the licensee, the contractual restriction on assignment is ordinarily unenforceable. <i>See</i> 11 U.S.C. ' 365(f)(1). Bankruptcy Code ' 365(c)(1), however, provides an exception to this general rule: a debtor may not 'assume or assign' any executory contract without consent of the non-debtor if 'applicable law' provides that the non-debtor can refuse to accept performance from a third party.
Integrating Software Escrows into Intellectual Property Strategy
March 01, 2006
Software developers invest a great deal of time and effort developing complex code that performs unique functionality for which there is a viable market. These software developers typically offer software licenses that only license object code, <i>ie</i>, the code that can be read by a machine, rather than the source code, <i>ie</i>, code that can be deciphered and read by a person.
