Copyright infringement of college football helmet designs.

For almost 20 years, the University of Oregon's football team has been known for its unique uniform designs. Nike is the outfitter for Oregon, and Nike's founder, Phil Knight, is an Oregon alum. Knight's beneficence is the reason for the plethora of uniform designs, and he has also donated substantial sums of money to the school and football program.

To design the football helmets for Oregon and other college football teams, Nike uses a company named Hydro Graphics. Hydro Graphics uses water transfer printing to apply the designs to the football helmets. After creating the helmets, it is unclear whether Hydro Graphics retains ownership of the copyright, or assigns the copyright to Nike. In either case, the copyright covers the stylistic design of the helmets, not the functional part of the helmets themselves.

Hydro Graphics developed this series of winged-designs for Oregon, to represent the school's mascot, the Ducks. The Rice University Owls used a substantially similar or identical design on its football helmets for this year's Liberty Bowl. Rice's team outfitter is Adidas, not Nike. Hydro Graphics does not list Rice as one of its customers in its portfolio. So, the helmet designers or the copyright owners of the Oregon helmets (Hydro Graphics or Nike) appear not to be the same people who designed the Rice helmets.

Unless Rice's designer licensed the copyright from Hydro Graphics or Nike, or Hydro Graphics designed the helmet and did not place it on its portfolio, this is an actionable case of copyright infringement.

On copyright ownership.

If you create a work that you can otherwise copyright, you would not be able to copyright it if you assigned your rights in the work to someone else, created it for hire, or created it within the scope of your employment. Unless you are well-versed in copyright law, you may not know if you did this.

If you do not own the work, you can seek a license from the owner. If you own the work, you can license it to others.

What is a "fixed" work of authorship in copyright law?

To get copyright protection, you must have a fixed and original work of authorship. To be "fixed," a work must be perceptible for more than a short period of time. For instance, if you are talking with a friend, your statements are not fixed. But if you have the same conversation and record your statements, they are fixed because they are perceptible after the conversation ends, by listening to the recording.

Copyrights in one minute (podcast).

Here is the first in a series of one-minute podcasts on legal topics. This one is on copyrights.

Eminem v. Facebook over copyright infringement.

Eminem's publisher is suing Facebook over its use of an Eminem song in an advertisement for Facebook Home. Remember, the elements of copyright infringement are (1) ownership of a valid copyright and (2) infringement without exception. Infringement is shown by proving a defendant had access to the copyrighted work, and the two works are substantially similar. More access means less substantial similarity is required. Less access means more substantial similarity is required.

Here, the article says the song is a slight variation of the Eminem song. This would mean that there is substantial similarity between the two works. The article also mentions there is an online trail proving that Facebook's founder was an Eminem fan. This would show access. Eminem's fame in general also goes to proving access. So, if Eminem can prove he has a valid copyright, he probably has a winning case.

Usher and Justin Bieber sued for copyright infringement.

This case illustrates the elements of copyright infringement. Usher and Justin Bieber are being sued over a song they released in 2010. The plaintiff claims that he recorded the song and obtained a copyright registration on it in 2008, two years before Usher and Bieber recorded it.

The plaintiff also claims that he had discussions with Usher's mother in 2009 regarding re-recording the song and touring with Usher. On occasion, Usher's mom acted as his manager. She said Usher heard the song and liked it.

To establish copyright infringement, a plaintiff must show (1) ownership of a valid copyright, and (2) infringement of the owner's right to:

• reproduce the work,
• prepare derivative works,
• distribute the work,
• perform the work, or
• display the work.

If infringement is shown, a defendant can argue that he or she should not be held liable, because of fair use or another recognized exception. Establishing ownership of a valid copyright is usually not difficult. Here, the plaintiff claims that he obtained a copyright registration in 2008. Establishing infringement is more difficult, because direct evidence of copying is rarely available.

Without direct evidence of copying, infringement is established by comparing the degree of access a defendant had to the copyrighted work with the degree of similarity between the two works. The more access a defendant had to a work, the less similarity is needed for infringement. The less access a defendant had to a work, the more similarity is needed for infringement.

"Access" does not refer to the theoretical availability of the work to a defendant. For instance, you do not have access to every book in the world that has a copyright registration. You only have access to those books you have been exposed to, or those that are well-known.

If a defendant did not have much access to a work, he or she may have independently created it. If a work was independently created, there is no infringement. On the other hand, if a given work was widely disseminated and everyone knew about it, there is a high level of access and the chance of independent creation is very low.

Sometimes access can be proven, which appears to be the case here. Usher's mother said that Usher liked the song. If access is proven, the plaintiff would not need to show that the two songs are very similar. But it appears that the songs are very similar. (I have not listened to either song.)

Unless the plaintiff's account of events is incorrect, or if one of the exceptions apply that would negate improper appropriation, Usher and Bieber are probably liable for copyright infringement.

A good IP Awareness Assessment for businesses and entrepreneurs.

This is a good intellectual property (IP) evaluation tool from the United States Patent and Trademark Office (USPTO) and National Institute of Standards and Technology. The assessment is designed to test the awareness of businesspersons and entrepreneurs about intellectual property. There are two assessments: a pre-assessment and full assessment. The pre-assessment consists of five questions. The full assessment takes 20-30 minutes, and provides more individualized results.

The assessments are not legal advice, so the individual circumstances of your situation may suggest a different form of IP protection than is suggested by these online assessments. These just provide some general guidance for what type of IP protection you might need. The assessments cover copyrights, patents, trademarks and trade secrets.

The low-bar for copyright protection.

The grant of copyright protection comes from the Patent and Copyright Clause of the U.S. Constitution. It secures the right of authors to protect their works from usurpation. The requirements for a copyright are pretty minor. The work must be "fixed," and "original." To be "fixed," the work must be sufficiently permanent for perception or communication. This requires fixation for more than a short or fleeting period. To be "original," the work must be independently created and have a minimal degree of creativity.

Copyright protection does not necessarily require registration, but it is required to commence an infringement suit. To have copyright protection, one should provide notice, in the form of the circled "C," or "Copyright," followed by the year of first publication. Even if you have not registered, you should provide this notice. Ideally, you should register, because that entitles you to seek statutory damages and attorney fees in the event of later infringement. If you do not register initially, and only register when infringement arises, then you cannot receive statutory damages and attorney fees.

Now, attorney fees may not seem like a big deal to you, but it effectively adds to any total award you receive, because you would presumably pay your attorney out of your winnings. It is as if you received an additional award for the amount of the attorney fees and paid the attorney with it, rather than paying the attorney from your award without attorney fees. If you have spent a lot of time on a work, the prudent thing to do is to register it within three months of first publication.

People tend to be surprised when they find out that copyright protection theoretically attaches the moment something is "fixed" and "original." Undoubtedly, you have created something with copyright protection in your lifetime. You just likely have not registered it with the Copyright Office.

Why you should care about the "Copyright Alert System."

What happened:
Major Internet Service Providers ("ISPs") agreed to monitor peer-to-peer file sharing over their networks to identify and prevent copyright infringement. The measure was lobbied for by the Recording Industry Association of America and the Motion Picture Association of America. The "Copyright Alert System" provides for "mitigation measures," which include decreasing Internet access of alleged infringers and directing their searches to "educational" web pages on copyright infringement.

Why you should care:
It is another example of the recording and film industries getting their way through lobbying efforts. Surely, copyright infringement is not a good thing. I am not advocating it. But most large companies are bullies. When it comes to any kind of property rights, they always assert more rights than they have. It is simply smart business to do so. It would not be smart business to claim less rights than you have, because you could get trampled on by other businesses or those with adverse interests to your company. As a result, legitimately protected use of copyrighted material may be limited by this measure, because fair use of copyrighted material is unlikely to be acknowledged by the copyright holders.

This measure is unnecessary, and is in response to failed legislation. I do not see what ISPs get out of the deal. Yesterday, they were unable to monitor their networks for infringing content. As a result, they were afforded the benefit of the safe harbor provision of Section 512 of the Digital Millennium Copyright Act (DMCA) (provided the ISP was "passive"). A passive ISP is transitory, does not have actual knowledge of infringing activity, does not know of facts and circumstances leading it to believe infringement is apparent, and does not gain a financial benefit from the infringing activity. Today, the ISPs can monitor for infringing content, and are doing so for no disclosed benefit.

What changed that ISPs are now able to monitor for infringing content, when they could not before?  Also, why would ISPs agree to limit Internet access of paying customers for the benefit of the recording and film industries? By itself, the measure is relatively innocuous. Copyright holders have access to remedies for copyright infringement, and this is an example of ISPs doing more to prevent infringement. But it just does not add up to me: What do ISPs get out of the deal? Why are they all of the sudden monitoring for infringing activity today when they were unable to do so yesterday?