Exam 2: Protection of Intellectual Property Assets Through Patent and Copyright Law

Master Maintenance, a janitorial supply corporation, hired West Central Ohio Internet Link, a third-party Web developer to redesign its website. Among the changes to be made, West Central was to include photographs of the janitorial supplies sold by Master Maintenance. Master Maintenance employees had the final approval over any changes made or proposed by West Central. West Central’s employee uploaded several photographs of janitorial supplies. Four of these photographs were owed by Corbis Corporation, which was a media corporation that owned a large image collection. Corbis did not authorize West Central to use the images. Corbis has registered the copyrights in its photographs. Corbis has sued both West Central and Master Maintenance for copyright infringement. a.What is the significance of Corbis’ copyright registration? b.Is West Central liable for copyright infringement? Is Master Maintenance liable for copyright infringement? Explain thoroughly.

Acme Co. developed and made a no-drip faucet. Before it actually marketed the product, however, Acme investigated and discovered that its faucet infringed a patent belonging to Bigelow Co. Because Acme acted in error, without intending to infringe, and because it discovered that error prior to marketing the faucet, Acme is not liable for infringement.

Joan is an aspiring screenwriter and a business student at Michigan University Business School to boot. Joan has just written a great new screenplay about the business school experience. Joan is worried about whether her screenplay will be protected if she sends it to all of the major California studios. Joan wrote "Copyright, 2010, Joan Jovial" on the title page. Is Joan protected by copyright law if a studio steals her plan and passes it off as the studio's own?

Which of the following is not a factor in the Copyright Act's fair use defense?

Luther Kirkey owns the copyright on a musical composition, “Michigan Winter Blues.” Li Advertising Services LAS) has produced a radio advertisement for one of its clients. The advertisement has a background melody a tune identical to Michigan Winter Blues. LAS had hired Margaret Nero, a composer, to write the music for this advertising spot, and Nero had provided LAS with this background melody. Kirkey has sued Nero for copyright infringement. Nero testified in court that she did not deliberately copy Michigan Winter Blues. She admitted, however, that she owned a recording of the song and though she said she had not listened to it in several years, it was at one time one of her favorites. The court believed her testimony that she had not intentionally copied Kirkey’s copyrighted work and that she had acted in good faith. a.Should Nero be held liable for copyright infringement? b.Might Kirkey have a cause of action against LAS? If so, on what grounds?

Thurston Designs manufactures printed fabric for use in upholstery, draperies, and other home design applications. Thurston filed for a copyright registration on one of its designs, an abstract hexagonal honeycomb pattern, indicating that the design had been made as a "work for hire." Fabric printed with that design carried the following designation: "© 2008 Thurston Designs." One of Thurston's competitors, Crandall Fabrics, produced a fabric with a design that is very similar, if not identical, to Thurston's honeycomb. Thurston filed for copyright infringement, and Crandall defended by stating that Thurston was not entitled to ownership of the copyright under the work-for-hire provision of the Copyright Act because the design had been created by a free-lance artist, not an employee. The facts indicate that one of the two owners of Thurston, Anna, worked with an artist, Tomas, in creating the copyrighted design in 2008. Tomas worked with Anna on several other designs in 2008 as well over a period of seven months. At the end of seven months, Tomas ceased working for Thurston and moved to a different city.) Tomas reported to work at Thurston almost every day, generally working from 1:00 to 4:00 p.m., and conducted all of his work for Thurston on its premises. Thurston had hired several individuals like Tomas in the past. Typically, such individuals are recent graduates of design schools and the practice in the industry is not to consider them the owners of the intellectual property rights that might arise in the designs that they work on. Anna had conceived of the honeycomb design and had played around with the design by laying out pieces of real honeycomb. Anna was unable to prepare the design herself, however, as she is not skilled at drawing. She asked Tomas to do a pencil drawing of her lay-out. Anna was not satisfied with the initial drawing that Tomas prepared, and had a conversation with Tomas in which she offered several corrections. She wanted the design less refined and more free-form. She made photocopies of the drawings that Tomas subsequently prepared and cut and pasted them on paper to approximate the look that she wanted. Anna then had Tomas prepare additional drawings based upon her efforts. Anna stood over Tomas for four of the six hours he spent on the drawings, instructing him on when and where to change his drawing. After the drawing was complete, Anna picked colors from Japanese silk books containing over 500 colors and told Tomas how to color the drawings. She had him alter the color scheme several times before she was satisfied with the results. Tomas was paid $75 per day for his efforts on this and other projects. He was paid by check on a weekly basis. Although Tomas was under the impression that he did not receive employee benefits or have taxes withheld, the other owner of the firm, Ronald, who handled the business affairs, testified in court that Tomas received normal benefits, including disability and worker's compensation insurance, that income taxes and social security taxes were withheld from his pay, and that Thurston paid the employer's share of the social security taxes on his behalf. Tomas did not receive medical benefits. Should Crandall prevail on its defense? Explain thoroughly.

If you don't register your copyright prior to infringement by another party, you are limited to recovering only statutory damages.

A computer program developed by an in-house computer programmer for use in a random audit system instituted by a financial firm is a work-made-for-hire that would belong automatically to the firm, not the programmer.

John Sivley is employed by Welega Corp. as a computer analyst and programmer. Welega manufactures precision testing equipment for pollution control devices. Sivley's job responsibilities involve the creation of programs and systems relating to accounting and personnel matters. Sivley is very interested in mechanical things, however. During his slow times at work, Sivley often goes into the laboratory and tinkers. In the course of this tinkering, Sivley discovered that by placing a simple but uniquely shaped twist into the intake tubing of a common air emission testing device, the accuracy of the device is greatly enhanced. e.g., if there were an invention assignment agreement), Sivley would still have to file for the patent and then assign his rights to Welega. This twisted tubing has the potential for great commercial success in the market for pollution control testing devices. Sivley maintains that the invention belongs exclusively to him and that he has the sole right to use and profit from this invention, including licensing others to use the invention. He intends to seek a patent on the invention. Welega maintains that the invention belongs solely to it and that it thus has the right to prevent licensing of the invention particularly since such licensing could damage its competitive position). Welega insists that it is entitled to file for the patent. If you were the judge, how would you resolve this dispute? To whom does the invention belong? Which party is entitled to file for the patent? Explain your answer thoroughly.

Suffron Medical Supplies and Popiel Pharmaceuticals have each filed an application with the U.S. PTO for a patent on a new type of heart catheter. Suffron is able to prove that it was the first to file a patent application on this invention. Popiel is now able to show from its research scientists' records) that it was the first to actually create a working model of the catheter, although it filed its patent application two weeks after Suffron filed. Both parties invented independently within the last year. Who should receive the patent and why? Would your answer change if the application were being made in a foreign country?

MacVeigh Products, Inc. and Bryent Manufacturing have each independently developed a new valve for use in water softeners. Bryent filed for a patent one month before MacVeigh filed its patent application. MacVeigh can show from its scientists' records and log books that it conceived of the idea first and first created a working model of the valve. On these facts, MacVeigh is entitled to the patent, not Bryent.