Nolo’s Patent, Copyright, and Trademark Blog

Dear Rich: I have a question. I am an illustrator. Is it true that the government is setting up a database of visual arts works? And is it true that any works that you don’t place on this register will become “orphan works” that anybody can use without your permission? I’m so glad you asked. The answers to your questions are “maybe,” and “not exactly.” An orphan work is one that is owned by a hard-to-find copyright owner. For example, in 1975, a child sends a drawing to Elvis Presley. In 2008, a biographer wants to include the drawing in a Presley biography. The problem is that the artist can’t be found and the publisher doesn’t want to reproduce the image without permission. Two bills have been proposed in Congress that address this issue. The proposed bills would allow the publisher — after performing a diligent search –- to reproduce the image. If the artist later appears, the publisher would have to pay a reasonable fee for the use. An unlikely crew of special interests favor the House version of the bill, including librarians, free-speech types, copylefties, academics, writers, photographers, and big industry groups like the RIAA (and, of course, Google). Under the House bill, anyone who wants to use a work must (1) document their “good faith” search for the owner, (2) file a “Notice of Use” with the Copyright Office before using the work, (3) provide attribution if they know the name of the creator, and (4) include a special “orphan works” symbol when the work is published.   

 Illustrators and artists are concerned about the bill because it would establish a registry of visual arts works. They’re worried that if a piece of artwork doesn’t show up on a registry search, all rights to that artwork may be lost. First, keep in mind that orphan or not, copyright is always preserved in the work. Second, there’s nothing in the law that says that a failure to appear in the registry automatically creates an orphan. For example, even if the drawing of Suda (above) did not appear in a registry, I would still have a hard time claiming it was an orphan … since the artist and his work are easy to locate on the web (Steve, please don’t sue).

Dear Rich: I have a question. I read recently that Victoria’s Secret stole somebody’s design for a bra. I have a design for something similar — I don’t want to say exactly what it is, because it kind of gives away the idea. How can I stop someone from stealing it? I’m so glad you asked. I’m familiar with the alleged bra theft, though I don’t think it’s fair to say — at least not yet — that Victoria’s Secret violated the law. The woman claiming theft has a patent, but there are many ways to design around patents, and it’s always possible to argue that the woman’s patent is invalid. Alas, patent law is rife with misinformation regarding bra inventions, including the claim that Mary Phelps Jacobs invented the first bra in 1914 or that Herminie Cadolle of France invented it in 1889. (For those interested in the true story, I recommend Hoag Levins’ wonderful explanation of brassiere inventions in his book American Sex Machines: The Hidden History of Sex at the U.S. Patent Office.)

Can you stop someone from stealing your idea? You can take preemptive steps — one approach is to get a signed evaluation agreement (a modified nondisclosure agreement) before presenting your idea. The problem with that is that many big companies don’t want to sign them because they’re afraid it will prohibit them from developing similar ideas. Another approach is to seek patent protection. A patent — as in this situation with Victoria’s Secret– gives the owner a hunting license to pursue infringers. If you’re not sure about investing time and money in the full patent application, you can reserve your place in line at the Patent Office by filing a provisional patent application for $105. Nolo offers books and software to prepare a provisional application. And remember, whatever you’ve invented, please consider the safety issues.

Dear Rich: I have a question. Why should I care about the Harry Potter case? Isn’t it just another example of a huge megacorp using copyright law to crush the little guy? I’m so glad you asked. I don’t know why you should care about the Harry Potter case. And I don’t know why you should care enough to ask me why you should care about it. I don’t even know why you should care about reading the answer to your question. What people care about and why they care about it is a mystery to me.

The Harry Potter lawsuit — in which a publisher and author are attempting to stop publication of a Harry Potter lexicon — is not an unusual copyright dispute. Maybe you’re too young to remember when J.D. Salinger successfully stopped a biographer from using his unpublished letters, or when ex-president Ford stopped The Nation from printing excerpts from his unpublished memoir. But you must be old enough to remember when the producers of the television show Twin Peaks stopped publication of a Twin Peaks guide, or when the producers of Seinfeld stopped a company from publishing a book of trivia questions about the Seinfeld television series. (Talk about being re-gifted!) In these situations, the courts have done a pretty decent job of separating those cases in which the author is being exploited (not a fair use) from those cases in which the author is being explained (fair use).

As for using copyright law to crush the little guy, that knee-jerk characterization may apply in cases of RIAA smackdowns but misses the boat here. (If anything, the little guy, armed with high-tech copying tricks, has collectively done more to crush copyright than any megacorp — check out the many illegal Potters and the frivolous Muggles-related lawsuit.) The lexicon’s author knew what was at stake when he proceeded and even insisted on an indemnity clause — a provision that saved him from having to pay any attorney fees, damages, or court costs. (Kudos to his attorney.) Time-Warner and Rowling have been reasonable in permitting the free web-based version of the lexicon for years. The lexicon’s publisher understood the realities — the real money is made selling copyrighted units of content.

Dear Rich: I have a question. Somebody told me that the Heimlich maneuver is patented. Is that true? Can medical procedures be patented? Does that mean somebody gets paid whenever a procedure like that is used in a hospital? I’m so glad you asked. The answers to your questions are No, Yes, and Maybe. The Heimlich maneuver — the process that’s reportedly saved over 50,000 lives, and has even been used successfully on a few pets — is not patented. The process, though it seems obvious, now, was unknown before 1974. Dr. Heimlich did go on to patent some life saving devices, including a collapsible respiratory exerciser (4,323,078), and an improved tracheal tube (4,987,895).

Although the Heimlich maneuver isn’t patented, medical procedures can be protected under patent law — over 100 of these medical process patents are issued every month. And yes, patent owners can sue when their procedures are used without authorization. (FYI Dept.: A veterinarian won a case last year over his patented process for declawing a cat.) There is one big limitation on these patents. Under a 1996 federal law, the patent owner can’t sue a doctor for infringing a medical process patent. In other words, a surgeon can use a patented process in the operating room without asking for permission beforehand. Still, that hasn’t stopped lawsuits.

Anyway, thanks to Dr. H., many people — for example, Cher, former New York Mayor Ed Koch, Elizabeth Taylor, Goldie Hawn, and Carrie Fisher — are alive today. And since there is no copyright or patent on the method — though there is a trademark* — , let’s all review it for our own selves. Here’s the setup: A choking victim can’t speak or breathe and needs your help immediately. Follow these steps*

• From behind, wrap your arms around the victim’s waist
• Make a fist and place the thumb side of your fist against the victim’s upper abdomen, below the ribcage and above the navel.
• Grasp your fist with your other hand and press into their upper abdomen with a quick upward thrust. Do not squeeze the ribcage; confine the force of the thrust to your hands

P.S. Don’t you love this Heimlich imagery created by “Little Miss” Sunshine?

*Previously I suggested that you avoid backslapping in favor of the HM, but a tip of the hat to Mexican Radio (see comments below) who points out that the HM has been demoted in favor of the back slap. (See Heimlich’s response to back slaps, here.) Although there is no copyright or patent on the procedure, MR points out that the Dr. does have a trademark on the term “Heimlich Maneuver” — which may explain why the American Red Cross now simply refers to the procedure as “abdominal thrusts.”

Dear Rich: I have a question. I know that old paintings like the Mona Lisa are not protected anymore, but I’ve heard that museums can still prevent reproductions of these paintings somehow. Is that true? How can that be? I’m so glad you asked. Yes, as a general rule, paintings that existed before 1923 are in the public domain and can be copied freely. However, museums have argued for years that their photographs of those paintings were protected under copyright, thus enabling them to control everything from postcard sales to artbook licensing. That ended in 1999 when a court ruled that “slavish reproductions” of visual works in the public domain are not copyrightable. (The photos may have required skill; but there was no originality.) In other words, you’re free to reproduce replicas of public domain artwork in the U.S. Of course, many museums still limit photographic access to paintings and on that basis, people who want high quality reproductions still have to seek permission — one reason why few people have seen this rare painting of Mona Lisa’s sister, Drea, (or so many of Mona’s other relatives).

Dear Rich: I have a question. My school is making me submit my term paper through a company called Turnitin.com. That company checks the paper against other papers for plagarism. That seems illegal. Don’t I have a right to not submit it through Turnitin? Isn’t it just like when people have a right to not take breathalyzer tests? I’m so glad you asked. As you’re aware, Turnitin.com is a repository for student papers and bills itself as “the standard in plagiarism prevention.” According to the company’s website, your paper will be compared to 15 million (or 40 million, depending on who you believe) papers that Turnitin already has on file.

One question that arises from the company’s use of student papers is whether it’s committing copyright infringement. The company says no, that it’s a fair use because they’re using the papers for a transformative purpose — catching cheaters. When students object to the practice, the lawyers for Turnitin.com respond that their website prevents copying by students — a goal of copyright law. Hmm. As to whether the practice actually is a fair use, we’ll have to wait and see what the courts decide, and at least one such case has been filed. (BTW kids, if you’re copying Dear Rich blog entries into your term papers, you have nothing to worry about; nothing’s been filed at Turnitin… yet.)

As for your right to not take a breathalyzer test, that’s a little bit out of the Dear Rich universe. However, since Rich once was required to edit books on motor vehicle codes, he can assure you that there is a downside to not taking a breathalyzer when requested. Many states have implied consent laws, which means that by getting a license, your consent to take a breathalyzer is implied, and if you don’t, you could be fined, lose your license, or get sentenced to time in jail. So think carefully before refusing a professor’s or police officer’s request.

Dear Rich: I have a question. I want to trademark a product that I will sell primarily in gay catalogs and I want to use the word “queer” as part of my trademark. I’ve heard that I’ll have trouble if I try to register it. Since registration costs $325, I’d like to know if that’s true before I file. I’m so glad you asked. There are dozens of trademarks with the word “queer” that have qualified for federal registration including Queer Beer, Queer Channel, Queer Duck, Queer Eye for the Straight Guy, and my personal favorite, The Coast is Queer. So it’s unlikely that the USPTO will hassle you based on that term alone. It’s true that the USPTO can reject marks that are scandalous and twice rejected the “Dykes on Bikes” trademark. However, that mark eventually achieved registration after the organization sponsoring the registration demonstrated that the term “dyke” was not disparaging to lesbians. (The trademark also survived a legal attack by a lawyer who claimed that the term denigrated men.) It’s true that some terms are still considered as scandalous and derogatory but, assuming nobody is using a similar mark on related goods, you won’t end up donating $325 to the feds. P.S. Did you know you can save $50 by filing your trademark as a TEAS PLUS application?

Dear Rich: I have a question. My boyfriend has a company that sells tea. I thought up a name for one of the teas — Serendipi-Tea — and he used it without asking me. He even filed a trademark application without naming me! Doesn’t he have to get my permission? I’m so glad you asked. No, your boyfriend does not need to ask your permission to use the name you created for a trademark (although it might have been polite). Trademark rights are granted to the first person to use the term in commerce, not the person who thinks up the name. Hence the legal motto: No trade — no trademark. Your clever wordplay is also not protected under copyright law because copyright does not protect names and short phrases. You may wonder how those high-priced naming gurus get paid when they think up names for big companies — they have written contracts that require payment for the work. So unless your boyfriend had an agreement with you, you’re not entitled to anything. Perhaps the deeper and more meaningful question is whether intellectual property issues will drive a permanent wedge between you and your boyfriend. I would like to think not. Remember, your boyfriend only acquires rights to use the term in regards to tea. You’re alway free to use the name as the title of your tell-all memoir.

Dear Rich: I have a question. I’m in charge of a website for our local elementary school. We have a program where students can upload their drawings. Someone told me that I have to get permission from the parents or else I am in violation of the law. Is that true? I’m so glad you asked. The law that you are probably referring to is the Children’s Online Privacy Protection Act (COPPA). You need to be concerned about COPPA if your website is directed at children (under 13 years of age) and it collects information “that would allow someone to identify or contact the child,” — for example, names, addresses, phone numbers, email addresses, and similar information. COPPA also applies if you’re using cookies (no, not the chewable kind) to track the child’s activity. So, in the case of your website, you would want to be sure that the drawings that are uploaded do not contain personally identifiable information — for example, the child’s address is written on the drawing of a house, a license plate is written on a drawing of a car, or names are used to identify family members . If you are collecting personally identifiable information, you’ll need to comply with the Act’s requirement for parental permission. What’s the biggest fine so far for violation of COPPA? $1 million.

Dear Rich: I have a question. I’m starting a literary website and I’d like to put up a lot of book covers. Do I have to get permission from the book publishers? I’m so glad you asked. Chances are you won’t have to ask for permission because of an exception under copyright law (17 USC Sec. 113(c)) that permits you to display pictures of product packaging “in connection with advertisements or commentaries” related to distribution or sales of those products. So, for example, if you provide links to an online retailer like Amazon where the books can be purchased, you will qualify under this exception. Ditto if you’re acting as a journalist and commenting on the book. By the way, this exception applies for any “useful article,” not just books. So it also applies to the cover of the “Crunch: Belly Butt and Thighs Bootcamp” DVD, the Pizza Party Elmo toy, and my super favorite new album.