1972, September, Pg. 7. Copyright Practice and Colorado Lawyers.

• Author: by W. David Pantle

1 Colo.Law. 7

Colorado Lawyer

1972.

1972, September, Pg. 7.

Copyright Practice and Colorado Lawyers

7Vol. 1, No. 11, Pg. 7Copyright Practice and Colorado Lawyersby W. David PantleW. David Pantle, Denver, is a Parter in the firm of Dawson, Nagel, Sherman and Howard.The law and practice of copyright are little known to most lawyers. Few law students take a course on copyright, and copyright questions are not often presented to most lawyers. The purpose of this article is to provide a general understanding of the subject and to pose and discuss common questions concerning copyright.

A knowledge of the basic principles of copyright is sufficient to enable lawyers to identify and answer many copyright questions which they may be asked. There are some copyright problems which involve complex rules and some questions which are difficult to answer because of the subjective elements involved (such as whether one work is substantially similar to another); there are many areas in which there are few, if any, judicial decisions to provide a clear answer. However, the basic framework of the law of copyright is simple and easy to grasp.

Lawyers commonly confuse the words "copyright," "trademark," and "patent." They lump the words together and are embarrassed and unsure which one, if any, should be selected to identify the problem they have in mind. Trademarks refer to words, slogans, or distinctive designs used to identify a product or service. One may not use a trademark which is confusingly similar to a mark previously used by another. "General Motors---Mark of Excellence," "Coke," and the yellow border on the cover of National Geographic Magazine are trademarks. Patents protect the discoveries of inventors and recognize and protect useful inventions from sale, manufacture, or use by persons not authorized by the inventor. Inventions include such things as machines, processes, composition and use of chemicals, new varieties of plants, particularly roses and fruit trees, and novel designs, such as the configuration of a building block.

Copyrights protect the writings of authors from being copied (plagiarized) by others. Copyright gives the exclusive right to print, reprint, copy, translate, deliver or perform the copyrighted work. "Writings" is an elastic word, expanded in recent years to include such "works of art" as textile designs, hobby horses, and model airplanes, as well as to include objects long recognized as being protected, such as books, periodicals, maps, plays, music notation and lyrics, photographs, motion pictures, statues, prints, and paintings. Time magazine, Oliphant cartoons, and personal letters are protected by the law of copyright from being copied by someone not authorized by the author. There are fringe areas where the three fields of trademark, patent, and copyright may touch and overlap slightly, particularly in the area of designs.

8Securing CopyrightThere are two types of copyright: common law and statutory. A writing is protected by common law copyright as long as it is not "published," that is, not publicly distributed, sold or offered for sale. No formality, such as notice on the work claiming copyright, is required. Thus an oil painting, a personal letter, an author's manuscript, and an architect's blueprints may be protected by common law copyright. There is no time limitation for such protection. Common law copyright may continue forever, or until there is publication. Some acts which one might suppose would constitute publication may not. Placing a painting on display in a public museum where copying was prohibited, performing a play publicly for profit, and orally delivering a speech to a huge crowd were each ruled not to be publication.

Statutory copyright is secured by publication with a proper form of copyright notice on the work. Thus there is no overlap; common law copyright ends with publication, and statutory copyright begins with publication with a proper notice. The statute involved is a federal statute, 17 U.S.C. In recent years, the statute has been the subject of extensive study and proposed revision, and it is likely that major changes will be made in it within the next few years. Statutory copyright presently is for twenty-eight years from the date of first publication; it may be renewed once for an additional twenty-eight years.

For protection in the United States and internationally, the form of the required statutory copyright notice should always contain three elements: © the date of first publication, and the name of copyright owner---e.g., "© 1972 The Denver Bar Association." Although by United States law some elements of this form of notice can be varied slightly or are not required for certain types of works, it is best to include the full notice rather than dealing with such refinements. One frequently...