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Protecting IP is always a smart move

Michael Brown, founding partner of Brown and Michaels PC, gives a talk on “IP Protection: Trademarks and Copyrights” at the Class of ’62 Auditorium at the University of Rochester School of Medicine and Dentistry on Thursday. Vasiliy Baziuk

You need to protect what you create.

Whether it is a work of art or something that identifies a business, intellectual property should be protected with a copyright, trademark or patent.

Michael F. Brown, a founding partner of the Ithaca law firm Brown & Michaels PC, talked Thursday about “IP Protection: Trademarks and Copyrights” as part of the For Inventors, Researchers and Entrepreneurs lecture series at the University of Rochester School of Medicine and Dentistry.

Brown was studying copyright law at Cornell University in 1978 when everything changed. That was when the Copyright Act of 1976 went into effect, reflecting the growing influence of technological advances such as radio, television, movies and sound recordings.

The act, Brown told more than a dozen people, extended the copyright term (from 28 years, renewable for another 28) to the life of the author, plus 70 years for any work created in 1978 or later. New works need not be registered to have copyright protection.

Corporation works are protected for the first 95 years from publication or 120 years from creation. Anything published before 1922 is in the public domain because it would have expired before the Copyright Act of 1976. Protection varies for works published or registered in between or in other countries.

A copyright is the right to control or benefit from works of artistry or authorship. Brown said that includes books, music, dramatic works, pantomime and choreography, sculptures, motion pictures, computer programs and software, sound recordings and architecture.

Brown said a copyright comes with a “bundle of rights” including ability to reproduce the work, distribute it, publicly display or perform it and to make new works based on the original.

He cited a number of cases in which copyrights were challenged — both successfully and unsuccessfully.

For instance, the Seventh Circuit ruled in 2007 in JCW Investments Inc. v. Novelty Inc. 482 F.3d 910, that the latter’s Fartman doll was too close to the JCW’s “Pull My Finger Fred,” but that Walking Mountain Production’s photographs depicting Mattel’s Barbie doll in absurd and often sexualized positions was “fair use” of Mattel’s product because it was a parody of Barbie. See Mattel Inc. v. Walking Mountain Productions 353 F.3d 792 (9th Cir. 2003).

Fair use is one of a number of important copyright law concepts Brown discussed along with public domain, work for hire and the fact that copyright protects the expression of ideas, not the ideas themselves.

Not protected by copyright are titles, names, short phrases, characters and slogans — all of which can be protected with a trademark, something used by a business to indicate the source of a product or service.

Zubair Mirza, left, and Brian Madden pose a question to Michael Brown during his IP talk at University of Rochester School of Medicine and Dentistry on Thursday. Vasiliy Baziuk

Some well-known examples Brown cited were the names Nike or Coke, phrases such as Intel Inside and characters like Mr. Clean or Col. Sanders. Brown said colors may also be trademarked as long as they are different than the original item such as John Deere distinctly painting its tractors green with yellow wheels or Owens Corning using pink insulation.

He said marks may also evolve such as Apple’s apple or Betty Crocker’s character, “the only person in the U.S. who has gotten younger.”

Brown said the strongest patents are distinct names such as Kodak and Xerox, although the latter has been inappropriately used as a verb referring to copying something. Brown said some product names become so familiar that they end up in the public domain as generic words such as thermos or kerosene.

A trademark does not have to be registered, but Brown said the benefits include national notice, usage of the circled R trademark symbol, the ability to sue in federal court, collecting treble damages and having an uncontestable mark after five years.

Brown covered “Weird and Wonderful Patents” last year as part of the F.I.R.E. lecture series, sponsored by the university’s Offices of Technology Transfer and the Center for Entrepreneurship.

Brown has enjoyed the intellectual property practice for 30 years.

“Being a patent attorney is the greatest career for a speed reader and technology junkie,” he said. “It’s basically fun. It’s an interesting field. You’re always dealing with new things.”

He said since founding Brown & Michaels in 1981, the Internet has probably been one of the biggest changes in the intellectual property field. He said he used to have to go to Washington frequently where the U.S. Copyright and Patent and Trademark offices are located, but that now most research can be done online.

He said the Internet also makes it easier to violate copyright and trademark laws and that people wrongly assume since something is on the Web, that it is public domain.

“People should know there is almost always a copyright,” Brown said. “I don’t know why the Internet has in many people’s minds that intellectual property law is different on the Internet. It’s the same principle as copying a book.”

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