University of Nairobi Work for Hire Paper

Refer to the PowerPoint slides. Now consider the concept of “work for hire”. Read the NYU Law Journal of Intellectual Property and Entertainment Law article entitled “Inventions Made for Hire by following this link:

https://jipel.law.nyu.edu/vol-2-no-1-1-simmons/ (Links to an external site.)

Watch the movie on Amazon entitled “Flash of Genius”, which was released in 2008 starring Greg Kinnear, which is a true story about Robert Kearns, who invented the intermittent windshield wiper and then was forced to sue Ford, Chrysler, and General Motors. The movie covers only the Ford case.

Write a 750-1000 page paper and give your opinion on the following issues: (1) Do you think the lawsuit had the right outcome? Explain your rationale. (2) Would there be any different circumstances where an inventor like Kearns should not have prevailed in court? Consider how you might, as an entrepreneur, protect your company if you hired research and development professionals.

Copyrights
General Overview
History
• Gutenberg invention of printing press
• 1454 – Germany
• Monopoly control of publishing industry
• Control content (Church)
• England – Statute of Anne (Parliament – 1710)
• Exclusive right to publish for 14 yrs. from date of first publication with 2nd 14 year
period if writer alive
• Registration and copies at official libraries
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History
• Author: “Common law right” prior to publication
• Publisher: “Statutory copyright” upon publication
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U.S. History
• U.S. Constitution Article I, Section 8
• First Federal Copyright Statute – 1790
• Protection: 14 year term
• Charts, books, maps
• Prints (1802), musical compositions (1831), dramatic works (1856),
photography works (1865), fine arts (1870)
• Copyright Act 1909 – “all writings of an author”
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U.S. Copyright Acts
• 1790
• 1831 (musical compositions added)
• 1870 (paintings, statues, other fine arts)
• 1909 (maintained distinction between
pre- and post-publication rights)
• 1976 (eliminated pre- and postpublication rights – but many
works still covered by 1909 law)
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U.S. History
• Copyright Act 1976
• Deal with evolving technologies
• Harmonization with Berne Convention / Treaty
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Berne Convention – 1979
• U.S. ratified 1989
• “Notice” has no legal significance…assumed when
work is reduced to tangible medium…
• “Registration” has minimal legal
significance…attorney’s fees and statutory
damages only recoverable for post-registration
infringements…
• Are effects for works under 1976 Act prior to Berne
ratification
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Berne Convention
• U.S. began adherence March 1, 1989
• Significant changes in U.S. law
• Elimination of requirement that “notice” be
place on all copyrighted works to secure
copyright
• Elimination of renewal term
• Institution of single term of life + 50 years
(currently life + 70 years)
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Common Law – Statutory Copyright
Distinction (1976 Act)
• Author protected as soon as work recorded in tangible
medium
• Author or copyright owner has exclusive right to make
/ produce copies
• (Affirmative Rights)
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Copyrights
• Effective immediately upon fixation in tangible
medium
• No procedure of administrative examination before
registration
• Expressive works entitled to protection without
examination…and even without registration
• U.S. doctrine: “Protect authors without requiring it…”
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Copyright
• Right of an author to control reproduction of the
expression embodied in the intellectual creation after the
work has been fixed in a tangible medium…
• Does not preclude use of the information or ideas…just
copying the expression…
• Pertains only to the form in which author expresses the
creative and intellectual concepts
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Copyrights
• Protect authors against exploitation
• Author is protected as soon as work is recorded in some
concrete, tangible way
• Secure protection until 70 years after death of author
(“life + 70 years”)
• “Work for Hire”
• Employer owns entire copyright (expires 95 years
after publication or 120 years after creation;
whichever comes first…)
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Copyrights
• Initially designed to give publishers control of
industry but has changed
• Ownership
• Sale of tangible work does not imply sale of
copyright…nor vice versa…conveyance of
copyright must be explicitly done in writing
• Infringement (see below)
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Requirements of Copyrightable Subject Matter
• Subject Matter must be:
• Original
• Fixed in tangible medium of expression
• Protection against “copying”
• No protection to ideas or facts themselves
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Copyrights
• Categories of Protected Subject Matter
• Literary works
• Musical works
• Dramatic works
• Choreographic works
• Graphic works
• Audiovisual works
• Sound recordings
• Architectural works
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Copyrights
• Exclusionary Rights
• Conveys right to prevent others from copying,
selling, performing, displaying, or making
derivative versions of a work of authorship
• Only protect against actual copying in mechanism
of expression work created by another regardless
of similarity is not infringement (may be
plagiarism)
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Copyrights
• Exclusive Affirmative Rights
• Reproduction right
• Derivative work right
• Distribution right
• Performance right
• Display right
• Digital transmission right
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Copyrights
• Centered on “Expression” of an idea…
• Basic concept is “Originality”…
• vs “Distinctiveness” in Trademarks
• vs “Utility”, “Novelty”, and “Non-obvious” in Patents
• “Originality”: “…one man’s alone…”
• Requires a “minimal degree of creativity”
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Copyrights
• Explanations of methods are able to be copyrighted
• Methods not able to be copyrighted – must be
patented for protection
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Registration—©
• “Copyright” arises automatically when work is fixed
in tangible medium
• “Registration” occurs with filing of registration form
with Library of Congress
• Fill-in-the Blank two-page form, copies of work (one
copy or two copies of “best edition”), $XX filing fee
sent to Library of Congress
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Copyright Notice
• Copyright by ______ year; ©
• Above not required—still protected, but not
necessarily registered
• Copyright notice not required to collect damages
but eliminates pleading “innocent infringement”
• Infringement
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Actual Damages
• Copyright owner’s actual damages
• Any additional profits of the infringer
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Statutory Damages
• Not less than $750 or more than $30,000 for each
infringing work (“one work”)
• “Willful Infringement” – can be increased to $150K for
each infringing work
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Fair Use
• Potential defense to a charge of infringement
• 1976 Act gives examples but no definition
• Complex legal issue usually requiring resolution at
trial [+/- appeal(s)]
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Interests to determine “Fair Use”
• Four Explicit “Interests” defined:
• Purpose and character of use, including
commercial
• Nature of copyrighted work
• Proportion that was “taken”
• Economic impact of “taking”
• Two Implicit “Interests”:
• Intent
• Motive
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Other Issues
• Electronic / Digital Media (DMCA 1998)
• Computer Programs
• With / Without Trade Secrets
• Screen Displays
• Automated Databases
• Online Works
• Architectural Works
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