Intellectual Property

What is copyright infringement and how do the courts determine when infringement has taken place?

Copyright infringement occurs when one of a copyright owner’s exclusive rights is violated. A copyright is violated when someone copies, distributes, performs or displays all or part of a copyright work without the permission of the copyright owner. For instance, a copyright in a musical work may be infringed through the sale of “pirate” or bootleg recordings, by the use of digital “samples” without permission, or by the unpermissive use of a musical work in a video or motion picture. To establish copyright infringement in a court of law, a copyright owner must establish proof copyright ownership and proof of copying. Proof of copying may be established either by direct evidence of copying (i.e., an admission) or by indirect evidence showing 1) access to the original work; and 2) “substantial similarity” between the original and allegedly infringing work. 

Courts will not find copyright infringement if two people independently come up with the same or a “substantially similar” work. Also, the less original a copyrighted work is, the less protection it may be entitled to under copyright law. If two works are strikingly similar, some courts may even infer that a defendant had access to the copyrighted work. Whether a work infringes another usually turns on the issue of substantial similarity. In the case of music, courts have ruled that infringement may occur where the “whole meritorious part of the song” is incorporated into another song, without any substantial alteration. continue

Cases concerning disputes over Intellectual Property Rights (IPR’s) have been on the rise since the beginning of the Internet. This is because infringing material can be found fairly easily when someone creates material that infringes the rights of another. It is important to know that copyright law does not protect an idea, a name, an advertising slogan or a title. In these instances, companies need to protect their work through a registered trademark which is filed through the U.S. Patent and Trademark Office. The trademark must be “famous” and “distinctive.” In order to win a case over trademark infringement, a company must show that the infringer’s trademark causes “a likelihood of confusion” in the public eye and/or a likelihood of damage to the value or goodwill of the original trademark. continue

Podcasting is all the rage on the Internet right now and one of the many challenges facing podcasters today (and there are millions of them) is finding royalty-free music to use in their programs. Enter the Podsafe Music Network (PMN). Podcasters can go to this web site to find music to use in their programs that is guaranteed to be free of licensing restrictions. Here’s where you enter the picture – if you sign up for the PMN, you can make your music available to thousands of podcasters all in one place. While this means you are giving your music away for free use, the exposure potential is very good. If you have already been offering fans and visitors to your web site a few free music downloads to hook them on your music, you might as well make those available for use here as well.