FLORIDA ASSOCIATION OF MUSEUMS
INTELLECTUAL PROPERTY SEMINAR
1. Definition of Intellectual Property - Difference among patents, copyrights and trademarks. Idea, expression, branding (source).
2. Patents
a. If you create a new, non-obvious creation, then patent is the way to protect it.
b. There are several types of patents - utility, business method, plant.
Exs.: Tool or machine for cleaning artifacts.
Unique software for managing collection.
c. Specialized field of law - separate license.
3. Trademarks - What? Why? How? Application to our collection.
a. Source identifying. - FAMulous Museum of Art.
b. Common law trademark rights created by first use in commerce in a given geographic area.
c. Registration.
i. Why? Nationwide constructive use.
Incontestability after 5 years.
Public notice.
ii. How? Application. Classes (our trademark - 41 (education and entertainment) 21 (housewares and glass), 25 (t-shirts). 2 yr. registration process. Disclaimer.
d. TM v. ®
4. Copyrights
a. Protects expression of idea. Our collection - each piece.
b. Other examples: musical works - both sheet music and recorded performance. (Note: must be fixed in a tangible format). Architectural works, movies, and literary works.
c. Works made for hire - employees or under specific agreement and "A work specially ordered or commissioned for (i) use as a contribution to a collective work, (ii) as a part of a motion picture or other audiovisual work, (iii) as a translation, (iv) as a supplementary work, (v) as a compilation, (vi) as an instructional text, (vii) as a test, (viii) as answer material for a test, (ix) as an atlas."
d. Notice
i. - Proper form - © owner year
ii - Optional, but provides notice and identity.
iii -Avoids innocent infringer defense.
e. Registration
i - why? Ability to file suit, prima facie evidence of validity, public record, attorneys' fees, costs and statutory damages (if prior to infringement or within 3 months after publication).
ii - how? Easy application, cheap fee, and mandatory deposit.
f. Duration of copyright - depends on when it was created.
i - Works created (fixed in tangible form for the first time) on or after January 1, 1978 are automatically protected from the moment of creation:
A. For an individual author the term consists of the author's life plus an additional 70 years after the author's death.
B. For a joint work (prepared by two or more authors) the term is for 70 years after the last surviving author's death.
C. For works made for hire, anonymous and pseudonymous works, the term is for 95 years from publication or 120 years from creation, whichever is shorter. If the true name of the author for anonymous and pseudonymous work is revealed before the work becomes public domain then the term is converted to life plus 70 years.
ii - Works created before January 1, 1978 but not published or registered by January 1, 1978, the work is brought under the current statute and is given federal copyright protection for the duration that generally is computed in the same way as for works created on or after January 1, 1978. In no case will the term of copyright for works in this category expire before December 31, 2002, and for works published on or before December 31, 2002, the term of copyright will not expire before December 31, 2047.
iii - Works created and published or registered before January 1, 1978, copyright was secured on the date a work was published with a copyright notice or on the date of registration if the work was registered in unpublished form. The term for these works was 28 years from the date is was secured and during the 28th year the copyright was eligible for renewal. This was revised several times to provide for a longer renewal period (thereby extending the total duration of the copyright) and provided for automatic renewals.
5. Special Copyright Issues Important to Museums
a. Fair Use - Four statutory factors:
i purpose and character of use
A. Transformative use? (Ex. Line from poem used as basis for a book)
B. Same purpose as creator?
C. Commercial? For profit? - not determinative.
ii nature of copyrighted work - creative materials receive greater protection than factual materials
iii amount and substantiality of portion used in relation to work as a whole - amount of work and whether "essential" portions are used.
iv effect on the market for the original
b. Public Domain
i. For work created before January 1, 1978 and registered under previous copyright acts the following cause the work to be in the public domain.
A. All works published prior to 1922 are in the public domain.
B. A work properly registered, but published without copyright notice is in the public domain. (Night of the Living Dead)
C. A work properly registered, but not renewed when required is in the public domain (Little Shop of Horrors, It's a Wonderful Life)
c. The Visual Artists Rights Act of 1990 - moral rights - Visual artists only.
i - rights of attribution and integrity - use examples from our collection.
A. right to claim authorship of work regardless of copyright ownership
B. right to prevent use of name in association with work he or she did not create.
C. right to prevent use of name in association with mutilation, destruction, or modification of work ("which would be prejudicial to his or her honor or reputation").
D. right to prevent intentional distortion, mutilation, or modification if prejudicial to honor or reputation
E. right to prevent destruction of a work of recognized stature.
ii - Exceptions
A. Modification resulting from passage of time is not actionable.
B. Modification resulting from conservation or public presentation (including lighting and placement) is not modification (unless gross negligence).
iii - Duration
A. For works created after effective date - 1990 - lifetime of author.
B. For works created before effective date, but title not transferred from author, same as copyright protection.
C. Joint works - life of last surviving author.
6. The Internet
a. .museum
i. Restricted to museums, museum organizations, and members of the museum profession.
ii. Any bona fide museum can join MuseDoma as a voting member. Others can join as non-voting members.
iii. Warning: Do not preregister with any entity but MuseDoma (www.museumdomain.net). MuseDoma is currently accepting preliminary requests for reservations. More of a poll to see how entities want to be named. Not a formal application.
iv. Fluid requirements. Interactive with users and changing regularly.
v. MuseDoma is requiring the use of a very specific naming convention. Your .museum name must be (1) derived from the well-known name of the entity, (2) must describe the disciplinary focus, location, or both, and (3) must be specific enough to avoid confusion with other museums. They are suggesting www.name.locationordiscipline.museum. Second level domains must be approved. - www.famulous.art.museum
vi. Creating directory services, such that typing art.museum into a browser will return all domains registered in those two domain levels.
vii. Online museums will register under .virtual.museum (or an approved equivalent) and museum professionals will register under .professionals.museum (or an approved equivalent).
viii. May register a domain name specific to a temporary or traveling exhibit if all other naming conventions are followed. MD may limit duration of domain.
ix. Hold on to your other domain names until this all shakes out.
b. Collections on the Internet
i - Use on Internet presents the same issues. Check your agreement which governs right to use - does it limit the display in any fashion?
