The current amount of online content is posing new legal questions concerning intellectual property, copyright issues, and the posting of material on the web belonging to others. At issue as well is what is and is not protected by law.
Intellectual property as a concept refers to creations of the mind, what people generate in their head in literary or artistic work, said Kurt Klaus, a Washington, D.C.-based entertainment attorney working in trademark, unfair competition, idea protection, and copyright matters. Intellectual property includes: copyrights, trademarks, and patents, and these can be symbols, names, images, or designs.
Limits on What’s Protected
But copyrights do not protect ideas, names, titles, or slogans, Klaus noted. Those items, by definition, are not copyrightable but, in some cases, trademark law may apply for their protection. The title of a single program is not protected under copyright or trademark registration laws, he said. However, the title for a series of programs may be protected under trademark law.
While ideas are not protectable under copyright law, it is possible to establish confidential relationships with individuals or corporations for the sharing of ideas in which contractual protection may apply, explained Barbara Berschler, a partner at the Bethesda, Maryland law firm of Press, Potter, and Dozier, LLC. She works on copyright and trademark registration and protection and licensing agreements.
In the creation of intellectual property and when someone else’s work is being used, it is necessary to understand who owns what, who has made what contributions to a work, and whether it is original or borrowed from another source. If someone is buying a work, the content creator may need to indemnify the buyer if the work involved was not a wholly original creation, Berschler said.
Other areas of concern can have trademark-like implications if someone else's content is used so that a false designation of a work's origin is created. Berschler emphasized such activity could be instances of unfair competition or unfair enrichment. These may occur if someone takes the title of a book or film and deliberately tries to confuse the public as to the origin of that work, even if a title is not identical but similar to an existing title. Taking a title, even for satire, may be considered infringing on a known work, she said.
U.S. copyright law applies when intellectual property is transferred to writing or to a visual work or to a recording. A portion of a work is protected even if it is not yet finished. “If a work takes a period of time to produce or to be completed, it is protected the minute the concept is captured in that hands-on medium of expression,” Klaus said.
