Trademarks

Albert W. Starkweather, Philatelic Communicator

Author’s note: This is intended as an overview to this area and does not constitute legal advice. Writers and editors with specific questions about fair use and copyright should seek legal advice.

A trademark is a word, name, symbol or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product.

TM

The terms trademark and mark are commonly used to refer to both trademarks and service marks. Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark.

Trademarks that are used in interstate or foreign commerce may be registered with the U.S. Patent and Trademark Office (USPTO).

SM

As with copyrights, trademarks do not need to be recorded with the government. Rights can be established based on legitimate use of the mark. However, owning a federal trademark registration on the Principal Register provides several advantages, including notice to the public of the registrant’s claim of ownership of the mark; a legal presumption of the registrant’s ownership of the mark and exclusive right to use the mark nationwide on or in connection with the goods and / or services listed in the registration; the ability to bring an action concerning the mark in federal court; the use of the U.S. registration as a basis to obtain registration in foreign countries; and the ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods.

Any time a person or company claims rights to a mark, the ™ (trademark) or sm (service mark) designation may be used to alert the public to the claim, regardless of whether an_ application has been filed with the USPTO.

However, the federal registration symbol — ® — may be used only after the USPTO actually registers a mark, and not while an application is pending. The registration symbol may be used only on or in connection with the goods and / or services listed in the federal trademark registration.

A disclaimer may be added to the front matter of a book or the masthead of a periodical publication that lists a great many product or trade names to avoid having to add a trademark or registered trademark symbol to each entry:

Trademark Notice: Product or trade names may be trademarks or registered trademarks, and are used only for identification and explanation, without intent to infringe.

Those creating trademarks should remember that graphical images are much easier to protect than words. While the General Electric meatball has survived for decades, thousands of trademark names have become generic terms, such as nylon, linoleum, and escalator. Even Xerox is facing an uphill battle in defending the well-known name for its photocopying machines, as such expressions as “I need to have this contract xeroxed” enter the vernacular. Xerox is not a noun, verb, or adjective, but rather a trademark. (Also see article on copyright.)

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Using Photographs and Graphics

Albert W. Starkweather, Philatelic Communicator

Author’s note: This is intended as an overview to this area and does not constitute legal advice. Writers and editors with specific questions about fair use and copyright should seek legal advice.

There are four major issues concerning the use of photographs and other images:

1. the right of privacy
2. libel
3. permitted and prohibited uses of stock images
4. the use of images from other sources.

In an increasingly litigious society, extreme caution should be exercised in using non-news pictures in which the subjects are clearly identifiable without express permission of those subjects. It is necessary to obtain model releases for all non-news usages. Minors cannot sign a model release, which must be signed by a parent or guardian.

Never use a photograph in any way that could be considered defamatory, libelous, pornographic, obscene, immoral, or fraudulent, nor should a caption imply any particular behavior to a model. Never use unidentified pictures to illustrate social or other conditions.

Stock images and graphics licensed from an agency, including that included with many software programs without charge, may carry specific permitted uses and prohibitions from agency to agency.

In general, permitted uses of images include their use in any electronic or print media, including advertising and editorial use, and consumer merchandise; their use for any items for resale, including book covers and consumer merchandise, provided these products are not intended to allow the redistribution or reuse of the images; and their modification or alteration as necessary for editorial use. However, any derivative work belongs to the agency.

Some of the prohibitions include their use in any way that could be considered defamatory, libelous, pornographic, obscene, immoral, or fraudulent; their use as part of a trademark, service mark, or logo; and removal of any copyright or trademark from any place where it appears on the image. Some images and graphics created specifically for trademarks, service marks, or logos may be subject to the other restrictions.

Copyrighted images and other artwork to be reproduced from newspapers, magazines, books, and other sources, including electronic, require approval from the copyright holder, which is usually the publisher. Larger publications have rights and permissions departments to handle such requests.

In some instances a publisher will grant reproduction rights without a fee or for a modest fee as a professional courtesy between publishers. Permissions approval must be in writing.

When permission is granted, the addition of a credit line usually is required:
By permission of Scott Publishing Co.; ©2006.

If there is an excessive fee or the request is denied, there is the option of creating a new piece of art that may convey the same information but must be substantially different in appearance

If permission is denied the material should be used under no circumstances.

Who Holds Copyright?

Albert W. Starkweather, Philatelic Communicator

Author’s note: This is intended as an overview to this area and does not constitute legal advice. Writers and editors with specific questions about fair use and copyright should seek legal advice.

In the case of works for hire, the employer and not the employee is considered to be the author if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. A work for hire is one prepared by an employee within the scope of employment or one specially ordered or commissioned.

The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary. Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole and vests initially with the author of the contribution.

Several types of material are not eligible for copyright protection, including those that have not been fixed in a tangible form of expression; titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents; ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration; and works consisting entirely of information that is common property and containing no original authorship, such as a standard calendar.

Publication no longer is the key to obtaining federal copyright as it was under the Copyright Act of 1909. However, publication remains important to copyright owners for several reasons, including:

• Works published in the United States are subject to mandatory deposit with the Library of Congress.
• Publication of a work can affect the limitations on the exclusive rights of the copyright owner.
• The year of publication may determine the duration of copyright protection for anonymous and pseudonymous works.

The use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the U.S. Copyright Office (www.copyright.gov). The notice for visually perceptible copies should contain three elements:

• The symbol ©, or the word Copyright, or the abbreviation Copr., followed by:
• The year of first publication of the work. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful article.
• The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.

The use of a copyright notice is no longer required under U.S. law, although it is often beneficial. (Also see article on trademarks.)

Plagiarism Primer

Albert W. Starkweather, Philatelic Communicator

Author’s note: This is intended as an overview to this area and does not constitute legal advice. Writers and editors with specific questions about fair use and copyright should seek legal advice.

Many philatelic writers and editors are unconcerned about legal and ethical issues. I, too, gave these little thought until I recently received two submissions for another publication that I edit. One was plagiarized in whole from Wikipedia, the free access online encyclopedia. While Wikipedia’s policy allows this, the problem arose when the author who submitted the article attempted to pass it off as his own. This is clearly unethical and guarantees an F in any freshman English composition class.

The second piece was more problematic, containing a pair of paragraphs taken entirely from other sources without credit — one from a U.S. Postal Service press release and the other from a Publishers Weekly book review. While their inclusion probably falls within the fair use doctrine, the failure to identify the sources also constitutes plagiarism.

Writers and editors should keep certain principles in mind in order to prevent repercussions after publication. The main points to keep in mind are: copyright; trademarks; image and, if online presentation is intended: audio use; rights and permissions; and libel.

Although the standard disclaimers that appear in many publications, including The Philatelic Communicator, may be sufficient to deflect most legal matters arising from material taken from other sources, they should not be interpreted as blanket protection. Scott Publishing Co. is notable for protecting its copyrighted Scott and Minkus numbers, demanding licensing for use in other catalogues. If one is in doubt about fair use of material from a particular source, the best policy is to first seek permission.

Copyright must be considered for both the work being created and for material incorporated into the work from other sources. Permission in writing is required in order for a photograph or other piece of artwork and text, other than brief quotations, to be reproduced. Copyright is protection provided by U.S. law to authors of original works and is applicable to both published and unpublished works.

The 1976 Copyright Act generally gives a copyright owner and anyone authorized by the owner the exclusive right to reproduce the work; prepare derivative works based upon the work; or distribute copies or recordings of the work to the public by sale or other transfer of ownership, such as rental, lease, or lending. Further protections are offered to material intended for public performance, such as plays, movies and other audiovisual works, as well as music — recorded and live.

These rights are not unlimited and there are specified exemptions from copyright liability. One major limitation is the fair use doctrine, which includes criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. Most philatelic journals, newsletters, and other media would be allowed these exemptions.

Extensive use of previously published material, including unique numbering systems and information clearly attributable to a particular author or publisher does not. In all cases, the sources of material that is used should be clearly identified. Paraphrasing borrowed material is often preferable to importing direct quotes.

Copyright protection begins at the time the work is created in fixed form, such as a manuscript or recording, and immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can claim copyright.

An international copyright that automatically protects a work throughout the world does not exist. Protection against unauthorized use in a particular country depends on the laws of that country. However, most countries offer protection to foreign works under certain conditions, the most notable exception being China.

Even more problematic is the issue of protection for material published on the World Wide Web, where there is widespread plagiarism and copyright infringement. However, a Web master who uses the sound track version of Someday My Prince Will Come on a site devoted to Snow White on stamps may expect to hear from a Walt Disney Company representative other than the prince.