Today I would like to talk about the exceptions given to an artist who imitates another work protected under copyright. This is called parody, and I am sure many readers have encountered this in entertainment such as SNL, Mad TV, Mad Magazine, and Weird Al.

A parody is a near-exact imitation of the original, so by definition it should be infringing. However, the exception given to parody goes back to the Nation’s original reason for protecting intellectual property. In order to encourage Americans to provide our Nation with the best-of-the-best products, art, culture and technology, we must protect their creations as private property so that these talented people can sustain themselves financially, and continue to create better and better things for our country.

The government wants to protect your creation, but only so everyone can have and use it to better their lives. In pursuit of this goal, we want to protect people who choose to critique these works, find flaws, and determine which would be best. When it comes to entertainment, this is done by social commentary, or for the sake of humor, parody.

Many people would not think that parody has an important role in society. However, many of those same people would not be updated on current events unless a comedian or entertainer that they follow, mentioned the event. The fact that a parody is intentionally bringing public attention to the original work is another strong reason to allow parody in law. How can you argue that the parody has taken publicity and interest away from you, when many people would not know of the original without the joke, skit, or meme?

Because of this reasoning, the law requires certain things to find that a parody did not infringe the original song. The parody must relate back to the original as much as possible. This means proving the opposite of what you would prove for fair use.  Fair use means the infringer used so little and the song is so different that it could not be harmful to the first artist’s business.

However, the parody work must look almost identical to the original work. If a court does not find enough elements that are identical to the original, then the court may determine that the second work was making an independent work and infringed on the original. Many have made mistakes with this part of the law. Some have gone into court thinking this will be an easy case to win, only to find out that their silly song written over Johnny Cash music, is not a parody because it had nothing to do with Johnny Cash or the theme of the original song. The court said the second work was not making comments on the original artist or his song, but trying to use the original work to establish an independent creation.

If the songs are similar enough and the sole purpose of the parody was to critique or comment on the original, then the court can find that the parody only boosted the original work’s publicity and was not harmful to the first artist. Courts treat a parody as a compliment to the original work, that cannot actually compete or harm the business of the original.

Many cases have come from this type of law. I know Weird Al kills at this law, and has won many cases under parody law. I remember when Coolio sued him for Amish Paradise, a spoof of Gangster’s Paradise. I really think Coolio did not have a case, but he did not want to be the butt of any joke. He made comments during and after the case about his song’s message about inner-city violence, but the song does seem to idolize the lifestyle, rather than discourage it. I think Coolio just wanted to stay Cool.

Recently, I wrote about some trademark issues and today I would like to talk about how a trademark can lose its protection by becoming too popular. As I mentioned before, a trademark has its ultimate level of protection when it is filed with the US Patent and Trademark Office. So the easiest way for a trademark to lose protection is that the registration was abandoned or simply never refiled. This typically happens with small businesses that have a greater chance of changing, growing and shutting down.

By saying a company has lost their trademark protection is to say that competitors can use the mark, word, phrase or logo without infringing the rights of the first company. Once they lose their ability to claim against another for improper use, there is no trademark, only a publicly used identifier.

However, in some cases, the fact that a larger business has a product that has become so well-known, causes the big company to lose their protect. The policy behind this is that the USPTO is reluctant to protect a trademark or name that identifies the product and not the business. This is called trademark erosion, genericide, or a trademark becoming generic.

Examples of these type of trademarks are Aspirin, Dry Ice, Escalator, Thermos, Trampoline, Cellophane, and Videotape. These names became so popular that they described their product and not their company or creator. A thermos was an insulated beverage container, and was not considered as the company that originally made this product. Similarly, aspirin was shown to be considered a anti-inflammatory, sold over the counter, not a company that produced medicine. Zipper was originally the name of the owner of the company that created a device that joined two pieces of fabric by using an interlocking set of teeth, but soon the name only described the product and not the company or the owner.

This has happened to many companies and many have fought the process of their trademark becoming generic. I can remember see Xerox ads in magazines instructing customers to refer to using their machines as making a photocopy with a Xerox machine, not making a Xerox. Do not ask for a Xerox of a document, but ask for a copy using the Xerox machine.  Google has spent countless dollars combating the use of the phrase “googling it”, for the same reason.

Some companies include a description of the product after the name. Kleenex became Kleenex facial tissues, and Velcro became Velcro fasteners. Other companies include the word “brand” so the customer knows that the name identifies a company, not just a product. This is why Band-Aid became Band-Aid brand, which is a trademark commonly mistaken as a generic one, but they are still registered.

Companies struggle to protect their trademarks because they act as their identity to customers. If you lose your identity, its difficult to make new customers and to maintain regulars. Many companies see this as a necessary expense and a part of doing business, and to many a rose by any other name, smells like infringement and commercial loss.

Today I wanted to talk about the difference between trademark and copyright, and give a little information on each. Unfortunately, due to media and common misconception, these two are easily confused.

First, is my favorite, copyright. A copyright is a protection for an author who creates a work and expresses it in a tangible medium.  The author can be a writer, a musician, a poet, a sculptor or an architect. A copyright is protected immediately after it is fixed in a tangible medium, which mean your protection starts when you make a hard copy of the work, such as a recording, written version, or blueprint. This is referred to as a common law copyright, compared to a registered copyright.

A registered copyright is a work that has been filed with the US Copyright office and has been accepted and kept on file. Much like real estate and loan filings, this provides others who work in this area, a chance to research and discover previous protections and established rights before they interfere. If a copyright is registered, then somewhere, the printed work will have the name of the author, the date of publication and the symbol ©. Common law copyrights have no symbol or indication of the protection.

This symbol is important to a infringement case. Later, the infringer cannot claim that they were an innocent infringer. An innocent infringer means when they improperly used the protected work, they had no knowledge that the work was protected or protectable. Without previous knowledge of the protection, the court will not punish the infringer as harshly. Ignorance is not an excuse, but it will give a lesser punishment. However, if the symbol is present on the work, then the infringer gets no special treatment because even if they did not know it was protected, they should have known.

Copyright protection lasts for the life of the author plus 70 years, or 95 years total from publication, or 120 years total from creation. There is no need to refile or update the registry outside of changes. Once registered, the protection lasts until the clock runs out and the US Copyright office moves the registry to the public domain classification.

Next, is trademark, one of the most commonly mistaken laws. Trademark does not protect intellectual property of a business. It protects the customers of a business, from being deceived in their purchases. A trademark or service mark is a word, phrase, or symbol/design that identifies the producer of the good or service and distinguishes one company from another. Trademark covers brand names, slogans, and logos. They want to protect a business from another business pretending to be them and fooling the customer to buy from the second business.

Trademarks have a similar filing system as copyrights. However, a trademark must be involved with an actively working business and must comply with all of the registry requirements. The Copyright office expects some works to be similar but not infringing. Whereas the Trademark office wants to avoid overlap and expects a strict analysis of the mark, its protection and others like it. But like copyright, the national Trademark registry provides notice to other businesses and evidence at trial. A trademark differs from a copyright in that the protection can continue forever, as long as the business is running and the mark is being used and the owners keep it registered and up-to-date.

Like copyright, trademark has a symbol to indicate a protection, but there is some variation on which symbol to use and their respective meanings. First, a trademark that has not been registered can still receive protection. This type of trademark uses a small ™ next to the word, slogan, or phrase. However, the protection for this type of trademark is so small compared to a registered one, that I have overheard lawyers say that a TM trademark is not registered and does not matter in their circumstances.

The important symbol is for a registered trademark, which is ®. This is the ultimate protection and means that the US Patent and Trademark office have on their record, proof of the trademark’s protection.

Lastly, I wanted to fix what I believe is the most common misconception on these two topics. Copyright and Trademark cannot be used as verbs. Copyright receives protection as soon as it is created and and formed, so it would be “copyrighted” as long as it was in existence. By saying you copyrighted it, you are only saying that you created it. Trademark is protected when the business established the word, phrase or logo, so its “trademarked” when its used.

Many people use these verbs to describe the registry process. When they say they have copyrighted or trademarked something, they mean they registered it with the appropriate office. I believe this issue could easily be solved by replacing these made-up words with “registered the copyright or trademark”. I believe so much confusion comes from how these words are used, but to say its registered gives the listener a notice to go to the record and research the protection. This way, people will not express such an outcry, when they find out Taylor Swift is trademarking her catch-phrases.

Several times in the recent years, cases have been brought against those who use MLK’s “I have a dream” speech for unauthorized use of a recording of the speech. The very first time a case was brought for this infringement was shortly after the speech was given in August 1963. CBS and other radio shows had played the speech on radio and TV shows, and MLK sued to protect the use of his speech because he didn’t want his message to be used in any negative light. CBS argued that MLK did not have a valid copyright because of the way he published the speech.

CBS argued that because the speech was given and performed live, that it was a general publication and would belong to public domain. Also, MLK had made no effort to register the copyright in the US Copyright office, but the court still found that without the copyright registered, the speech still had a common law protection, and that giving the speech publicly, was a limited publication which still receives protection. Soon after the judge determined this, CBS was force to stop use of the recordings and then settled out of court for the infringement.

MLK soon did register the copyright with the US Copyright Office and has had protection ever since. The “I have a dream” speech will not be added to public domain until 2038. Until then if anyone wishes to use a recording of the speech they had to contract for a license to use it, which has gotten up to $700,000 recently in the past.

I begin to wonder if this was what MLK wanted for his message. Because this speech was so powerful and the entire country needed the strength which that speech epitomized. Would he what it to be only publicized after buying an expensive license?

It makes me think of defamation law, which is harming someones reputation with speech or press. In defamation, there is a greater protection for a non-public figure. Essentially, celebrities and public figures get less protection, because they have chosen a lifestyle that depends on the public eye. You want to be famous, you cannot complain when people talk about you. You knew what you were getting into when you started this career.

But what if certain careers, like politics, social movement, and other public figures had less copyright protection based on the fact that their creation had one purpose, to fall upon the ears of the world and hopefully, change a way of thinking or call people to action. What if these works belonged to the people, because the people were purpose of writing it or speaking it in the first place. What if something as powerful as the “I have a dream” speech was public domain just because it should be considered educational to anyone?

Unfortunately, that’s not what public domain means. People would like to think that it’s a gift to the people, that creators have decided that their financial gain from their creation is less important than the availability of their work to people who care about it. However, public domain is more effectively used as an expense avoidance by large corporations, almost a safe haven to avoid paying the true creators. True creators then have to find a way to fight for their benefits, which is necessary for them to continue their craft. This creates new monsters, in the form of monopolized Performing Rights Organizations, who act like debt collectors for performers and creators. For a small cut of the return, they will enforce your protection against those who participate in the unauthorized use of the copyright. Some times, it just seems like the law forgets who it is protecting.