2015 - 02/2015 Meeting

Page Created: 08/18/14. Last Updated: 03/12/15.

MATTHEW HINTZ

Linked In: http://www.linkedin.com/in/mphintz

Personal Site: http://about.me/matthewhintz

Twitter: https://twitter.com/mhintzesq

Corporate Website: http://www.dsiplaw.com/

Meeting Summary:

Meeting Date: February 14, 2015

Meeting Site: Bergen Highlands United Methodist Church, Upper Saddle River

Official Attendance: 9

Meeting Program: Talk by Intellectual Property Attorney

Notes:

Transcript of Mr Hintz Power Point Presentation appears after the Newsletter Account. Additional notes appear after the Power Point Transcript.

Newsletter Account:

Just one month after our highest turnout in over a decade, the combination of inclement weather and Valentine's Day plans led to one of our smallest gatherings for the presentation of Intellectual Property Attorney Matthew Hintz at the February 14, 2015 General Meeting of the Science Fiction Association of Bergen County.

Although lightly attended, the Ice Nine discussion was fun as always. Books discussed included the Powdermage Trilogy by Brian Mc Cullan, the television show THE BIG BANG THEORY and GALAVANT and the movies COLOSSUS: THE FORBIN PROJECT and ON THE BEACH. Barry had the best line of the night when he apologized for blabbeling (combining blather and babble).

Intellectual Property Attorney Matthew Hintz spoke about the definitions and Constitutional origins of Copyright, Patent and Trademark. He answered questions about Fair Use, Digital Rights Management, changes in Copyright Law, Orphan Works, Defense of Trademarks and Loss thereof, and many other issues. A more detailed account of his presentation will appear on the S F A B C Website on the 2015 Meeting Page. Our thanks to everyone who braved the elements to attend the meeting.

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Notes:

Transcription of Power Point Presentation follows:

SCIENCE FICTION ASSOCIATION OF BERGEN COUNTY

.....Copyright, Patent and Trademark Law

.....Matthew P. Hintz

DISCLAIMERS

.....This is not legal advise

.....All views expressed are my personal views and not those of my employer or my clients

.....You are not my client and no attorney-client privilege applies

.....Why is there copyright?

.....Article 1, Section 8, Clause 8 of the Constitution gives Congress power to promote the progress of science and useful arts, by securing to limited times to authors and inventors the exclusive right to their writings and discoveries.

.....Copyright Act of 1976 (effective Jan. 1, 1978)

.....Copyright protection in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

.....Copyright = fixation and originality

.....Copyright (symbol: does not equal) ideas, procedures, systems, concepts, or principles; titles, names, short phrases; purely informational works with no originality; works written/created by the federal government; works not fixed in tangible medium

.....Copyright in

..........literary works (text; computer software);

..........musical works;

..........dramatic works;

..........pantomime and choreographic works;

..........pictorial, graphic, and sculptural works;

..........motion pictures and other audiovisual works;

..........sound recordings; and

..........architectural works.

.....Copyright is "bundle of rights"

..........make copies;

..........make derivative works (adaptation);

..........distribute copies;

..........perform publicly (literary, musical, dramatic, choreographic works, motion pictures, etc.);

..........display publicly (for pictorial, graphic, and sculptural works, etc.);

..........perform by digital audio transmission (for sound recordings)

.....Benefits of Registration

..........Sue for Infringement (registration required in NJ)

..........Validity of copyright

..........Public record of ownership

..........More remedies (statutory damages, attorneys fees) if registered if 3 months from publication or before infringement

....."Fair Use" doctrine permits some use of copyrighted works for "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research

.....Fair Use factors

..........Purpose and character of the use (commercial, nonprofit)

..........Nature of copyrighted work

..........Amount and substantiality of portion

..........Effect of use upon the potential market

.....No bright line rule for 10% or less than 5 seconds

WHAT IS A TRADEMARK?

.....Trademark is a word, phrase, symbol, and / or design that identifies and distinguishes a party's source of goods from those of another

.....Service mark is a word, phrase, symbol, and / or design that identifies and distinguishes the source of a service

....."Trademark" is often used to refer to both

WHAT IS (NOT NECESSARILY) A TRADEMARK?

.....Trade name/business name

.....Domain name

.....Until used as a source identifier

WHAT CAN BE A TRADEMARK?

.....Words

.....Phrases

.....Designs

.....Colors

.....Scents

.....Product shapes

.....Store layouts

.....Etc.

WHAT CAN BE A TRADEMARK?

.....Words

..........APPLE for computers (Reg. No. 1078312)

..........NIKE for athletic shoes (Reg. No. 978952)

WHAT CAN BE A TRADEMARK?

.....Phrases

..........THINK DIFFERENT for computers (Reg. No. 3803176)

..........JUST DO IT for clothing (Reg. No. 1875307)

WHAT CAN BE A TRADEMARK?

.....Designs

..........(symbol) Athletic bags (Reg. No. 1145473)

WHAT CAN BE A TRADEMARK?

.....Colors

..........Canary yellow for stationary notes (Reg. No. 2390667)

WHAT CAN BE A TRADEMARK?

.....Product shapes

..........(image) Handheld mobile digital electronic devices (Reg. No. 3457218)

..........(image) Marshmallow candies (Reg. No. 2185581)

WHAT CAN BE A TRADEMARK?

.....Store layouts

..........(floor plan drawing) Design and layout of a retail store (Reg. No. 42777914)

SELECTING A TRADMARK

.....The Spectrum of Distinctiveness

..........Fanciful ^ Most distinctive

..........Arbitrary :

..........Suggestive :

..........Descriptive : Least distinctive

..........Generic Not protectable

CLEARING A TRADEMARK

.....Trademark rights begin with use

.....First to use will (usually) have prior rights in trademark

.....Likelihood of confusion

..........Similarities of marks in appearance, sound, connotation, commercial impression

..........Relatedness of goods/services

..........Purchasing conditions

..........Channels of distribution

..........Strength of senior user's mark

WHY IS THERE PATENT?

.....Article 1, Section 8, Clause 8 of the Constitution gives Congress power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

PATENT

.....Patentable Subject Matter - 35 U.S.C. 101

..........Not (1) laws of nature; (2) natural phenomena; and (3) abstract ideas

.....Utility Requirement - 35 U.S.C. 101

.........."Useful" for some purpose

.....Novelty - 35 U.S.C. 102

..........Is invention "new"?

.....Nonobviousness requirement - U.S.C. 103

..........Is it "obvious"?

.....Adequate description requirement - U.S.C. 112

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Additional Notes:

The documentary film FINDING VIVIAN MAIER http://www.findingvivianmaier.com/ is currently in litigation because the purchase of the photographs did not invalidate the copyright of the photographer as an artist.

The advantage of Registering your Copyright is that it makes it easier to collect Statutory Damages. This is mentioned in the Presentation, but worth repeating.

Copyright in Music applies to both the composer(s) and performers. This is why a film, television show, or other work will often hire a sound-alike to cover a song as they can come to an agreement beforehand on a much cheaper price. We discussed Frank Sinatra singing during the MARRIED WITH CHILDREN credits, the delay in release of THE WONDER YEARS on video, and the listing of Chuck Berry as the songwriter for Surfin' USA.

Law and the Multiverse http://lawandthemultiverse.com/ looks at the movies, television, comic books and other forms of geek culture through the prism of Patent Law. Could Batman patent his Batarang?

Panelists at science fiction conventions have stated that British law protecting patents may be the reason the Industrial Revolution took off in England.

Phil brought up the issue of rights ownership of the line of Tower Comics. Both Alan and Jeni were familiar with some of the issues.

Phil and Jeni brought up the McDonalds Corporation annual lawsuits against the McDonald's restaurant in Bergen County. The family-owned restaurant, which predated the corporation, has gone out of business. Phil stated that it was his understanding that McDonalds was legally bound to take this action in order to vigorously protect its trademark. Matthew responded that there are other ways to defend Trademark without litigating a less affluent entity out of existence.

There was discussion of Copyright and comic books. Issues with the treatment of Siegel and Shuster (Superman) and Jack Kirby (various Marvel titles) were mentioned. Some in the group argued on the side of Siegel, etc. Phil took the side on DC Comics, arguing that the value of the franchise is not in the creation of the character--people with super powers are a dime-a-dozen, but rather the company's care and nourishing of the creation.

Phil extended his point arguing that the foundations of Western Culture are antithetical to Copyright as it is currently interpreted. The story of the Trojan War, the Arthurian Cycle, the legends of Robin Hood, even the Bible could not have existed if current Copyright Law had been practiced throughout history.