FAQs

Intellectual property is a term used for intangible property that belongs to someone or something. Besides individual people, businesses, organizations, and other entities can own intellectual property. Unlike tangible property such as real estate or your automobile, many times intellectual property cannot be seen or physically touched. Instead, intellectual property may be your favorite restaurant's secret recipe, a confidential customer list, an invention you devised, an artist's painting, or even a particular type of dress from a fashion designer.

The bottom line is that intellectual property comes in all shapes, sizes, and forms. Many people would be surprised to learn that they already have protected intellectual property interests without ever consulting an intellectual property attorney. Unfortunately, it often takes some sort of detrimental act against your protected interests–for example theft or misappropriation–before you realize that you even own intellectual property. The good news is, our attorneys are experienced at identifying and enforcing these intellectual property interests against the wrongdoer. We work not only with intellectual property licensing, but with intellectual property-related disputes and lawsuits nationwide.

Whether you are cognizant of your intellectual property and want to take the steps to protect it or you believe someone has improperly taken your idea, we can help. Contact our intellectual property attorneys to set up an appointment.

Like many legal questions, the short answer is: "It depends." How a person protects an idea depends on what kind of intellectual property that person is trying to protect.

Generally there are six ways to protect an idea:

1. Patent
2. Trademarks
3. Copyrights
4. Trade Secrets
5. Contracts 
6. Licensing

The subject matter and nature of your idea will determine the most appropriate choice for protecting it.

At Gunn, Lee & Cave, our attorneys have the necessary experience and background in intellectual property licensing, protection, and disputes to assess your idea and provide you with the proper route for protection. After an initial meeting, we can usually ascertain what needs to be done to protect your idea. However, depending on the technology involved and the complexity of the issues, further research may be required before an accurate assessment can be given. Regardless, we cannot give you proper guidance until we sit down with you and discuss your intellectual property.

If you are interested in pursuing protection, are facing a lawsuit, or have questions about intellectual property law, contact our intellectual property attorneys to set up an appointment. Only then can we tell you which option is best for you. For more specific information on each one of these options, see its section in our FAQ, where each one is discussed separately.

If you are willing to take the risk, the honest answer is that you shouldn't. Intellectual property law is just like other areas of law. For example, a person accused of a crime or involved in a dispute can represent himself/herself in court, or, a person can write valid and enforceable multi-million dollar business contracts without an attorney. However, in both of these scenarios and with regard to your intellectual property interests, the real question is whether representing yourself is a good idea. Most of the time, it is not.

At Gunn, Lee & Cave, all our attorneys are formally trained in the law, are licensed by the United States Patent and Trademark Office, and have experience in legal proceedings including intellectual property disputes and lawsuits. Furthermore, some attorneys hold additional certifications that are endorsed by the State Bar. The years of training and hard work required to obtain these qualifications will help to ensure that your intellectual property and interests are properly protected.

People should look at the money spent for an intellectual property attorney as an investment. Paying a relatively small amount of money up front will ensure that your ideas are properly protected for the future. Perhaps more importantly, using our services from the start may save you from lost revenue due to an improper patent, copyright, or trademark. Our intellectual property attorneys know the loopholes and nuances in the law. If you have already put countless hours of work into an idea, why cut corners now and take the risk?

No. Due to the nature of intellectual property, many causes of action (i.e., the bases for filing a lawsuit) and issues are interrelated. For example, say an employer stole one of your ideas and then fired you in violation of your employment agreement. In this case, you may have an intellectual property cause of action for the theft of your idea AND a wrongful termination cause of action (due to the firing occurring in violation of your employment agreement). Although wrongful termination is not typically associated with intellectual property, our firm could represent you on both matters.

There are some areas of law in which our attorneys do not practice. At Gunn, Lee & Cave we believe that our clients should receive the best representation possible for each of their particular problems. If there is an area of law where we feel uncomfortable representing you, we will let you know and try to recommend someone. Otherwise, if we accept representation, you can be confident that you will be represented to the best of our ability.

Unfortunately, there is not a clear and definite answer to this question without meeting you and discussing your issues. Our services range in price as do the attorneys' billing rates. As a general rule of thumb, attorneys with more experience typically charge more than someone with less experience. Thus, the amount of money you spend will depend partly upon who you want to represent you. Another factor that affects costs is the nature and complexity of the services you require from us. Complex matters tend to require more time and as a result, more cost to you.

Regardless of the cost, before you determine whether to use our services, we will give you an estimate of the expected costs for our representation. Estimates can sometimes be given over the phone or in our initial meeting. If not, you can expect one soon after our initial meeting. Although these estimates may deviate from the actual cost, they will give you a good baseline amount you can expect to spend. Furthermore, in limited situations, we may even elect to take your case on a contingent fee basis, which means our attorneys will not charge you anything unless they win the case for you.

A patent is the recognition and grant of property rights to a novel invention, plant, or design that is given by the United States Patent and Trademark Office. A patent allows a patentee to exclude others from making, selling, or using the patentee's invention, plant, or design without the patentee's permission.

Yes, there are three different kinds of patents:

1. Utility patents
2. Plant patents
3. Design patents

The type of patent you should pursue depends on the subject matter of your invention. Utility patents protect new and useful processes, machines, articles of manufacture, compositions of matter, or any new and useful improvement within the aforementioned categories. Utility patents encompass the broadest amount of subject matter and are the most commonly encountered patent type. Plant patents protect novel varieties and species of asexually propagated plants. If you seek protection of a new species of plant that propagates by seed, a plant patent is not the proper route for protection. Rather, we would seek protection under the Plant Variety Protection Act. Finally, design patents protect designs that are new, original and ornamental.

Each type of patent offers basically the same kind of protection. However, there are slight differences among the three. Probably the most visible difference is the length of protection. Utility and plant patents can stay in effect for up to 20 years from the date the application is filed, or 17 years from the date the patent is granted, whichever is longer. In contrast, design patents can last a maximum of 14 years from the date the patent is granted. Another key difference is the legal tests used to determine whether a patent is being infringed. The test is different for each.

In order to constitute patentable subject matter for a utility patent, an invention must be novel, useful, and nonobvious from previous inventions. The first two criteria are easily understood while the last criterion, nonobviousness, is a difficult concept to grasp at times. The first two criteria are exactly as they sound. To be “novel”, the invention must be new and someone else cannot have invented it already. To be “useful”, the invention must have some degree of utility to it. In other words, your invention must have some sort of recognizable and describable use. Finally, in order to be patentable your invention must be nonobvious. This requirement means that your invention may not be an obvious improvement to a previous invention.

Although easy to state, what exactly rises to the level of an obvious improvement is a nebulous standard that has been impossible for judges and intellectual property attorneys alike to define with certainty. In fact, the United States Supreme Court has attempted to define this standard on several occasions, but it continues to be a difficult concept. As registered patent attorneys, every attorney at Gunn, Lee & Cave has the training and knowledge to make a qualified assessment of whether an invention will overcome the nonobvious criterion, as well as the two other requirements. If you have any questions about whether your invention will meet the criteria for patentability, you can schedule an appointment with one of our attorneys and find out.

The process of obtaining a patent, which is called "patent prosecution," begins with the submission of a patent application to the United States Patent and Trademark Office (USPTO). For someone unfamiliar with the application process, applying for a patent can be a difficult and cumbersome procedure. To be complete, the application must contain a specification of the invention, which includes a written description of the invention, at least one claim, and any drawings necessary to understand the invention. Although the other two sections are important, the claims section is vital. This section is where an inventor claims exactly what he/she has invented. If an applicant does not have experience drafting claims, he/she may not receive the broadest protection possible for the invention. As a result, future inventors may create inventions that are essentially the same invention as yours, but because the claims were poorly drafted in your patent application, you may have no recourse against the subsequent inventor.

Usually there are other parts to a patent application, but in order to be accepted, the aforementioned requirements are essential. If any one of the three is missing the USPTO will not give the application a filing date until the missing part is added. This result can be extremely detrimental to an inventor because obtaining the earliest filing date possible is probably the single most important aspect of patent law. Thus, ensuring your application is complete from the start can be critical.

Once the patent examiner determines that the application is complete, he/she analyzes the application and determines whether to allow a patent to be granted. The examiner examines the application in light of the statutory requirements for a patentable invention. In other words, the examiner looks to the prior art (i.e., earlier patents or inventions without patents) and determines if the invention stated in your application is new and not an obvious variation of the prior art. If the invention expressed in your application and the application itself fulfill all the necessary conditions for patentability, the application is placed in a condition for allowance of a patent.

Rarely, if ever, will an examiner deem an initial application as in a condition for allowance after the first submission. Instead, the examiner usually requires several amendments before allowing the application to be issued as a patent. Patent attorneys are trained to respond to an examiner's concern and know how to mold an application into a position for allowance.

No, but not hiring a patent attorney or agent could be a grave mistake on your part. The procedural manual that governs the application process is broken into two different books and is a combined six inches thick. To become patent attorneys, we had to learn and were tested on the contents of this entire book. The learning process took us many months of studying and extensive training.

The benefits of having an experienced patent attorney conducting the patent prosecution are so invaluable that even the U.S. Patent and Trademark Office "strongly recommends" an applicant hire one. Patent attorneys are intimately familiar with the application process, have experience drafting claims, and have access to the necessary resources for preparing the application properly. Choosing to prosecute a patent application on your own could prove disastrous once your invention becomes successful and others start to copy it. Without a well-written application, you may not be able to prevent others from taking advantage of your idea.

Yes. Other than prosecuting the application yourself, only practitioners that have passed the registration examination (i.e., the patent bar) and become officially registered may represent a client in the United States Patent and Trademark Office (USPTO). The USPTO sets high standards for its registered attorneys, and each one must be specifically approved before he/she can practice. Any attorney that is not registered or has been suspended from practicing in the USPTO cannot represent you for a patent application.

After an initial consultation to help us understand your invention, the patent prosecution process will truly begin. First, we will conduct a patentability search where every single registered patent that is on file at the United States Patent and Trademark Office (USPTO) is searched to determine if your invention qualifies as patentable over the prior art. Using our experience, we will determine if your invention is indeed patentable and communicate the results to you.

After getting your approval, we will continue the prosecution by drafting your patent application. Once we are done, every portion of the application from the title to the claims and including professionally drawn images of your invention will be ready for submission to the USPTO. Then we will send both the application and the pertinent results from the patentability search to USPTO for examination.

At this point, we will wait for the examiner to respond to your application. As mentioned earlier, applications are rarely in a condition for allowance after the initial submission. Instead, the examiner will conduct his/her own patentability search and will respond to your application with an Office action according to the results of that search. Once we receive the first Office action, our attorneys will use their vast experience and knowledge of the relevant patent law and past court decisions to respond to the examiner's Office action. This process will continue until the application is either allowed or rejected.

Assuming the application is allowed, a patent will issue, and you will become the registered owner of the right to exclude others from making, using, or selling your invention without your permission. You can then decide if you would like us to manage your patent by notifying you of when maintenance fees are due to the USPTO to keep your patent in force. In addition, we will notify you if some other party is trying to challenge the validity of your patent or threaten your property right in some other way.

Prosecution times vary according to several factors, so the prosecution times are different for almost every patent application. Typically, patent prosecution takes about two years from the date of filing the application to the date of allowance.

Absolutely! Our attorneys are experienced in both the litigation and prosecution aspects of patents. Litigation accounts for over half of our clients and we would be happy to schedule an appointment to discuss any concerns or questions you have about initiating a lawsuit.

A trademark is any word, device, symbol, or name, which indicates a particular source of goods thereby distinguishing those goods or services from other sources of origin. Trademarks are literally everywhere. Think of a brand name for your favorite jeans, the name of your favorite car, the kind of coffee you drink, et cetera. The list could go on and on forever.

A service mark is the same thing as a trademark, but instead of indicating the origin of a particular good, a service mark indicates the origin of a particular service. Examples of service marks could include your favorite cruise line, your favorite hotel, the name of your plumbing company, the oil change shop you use, your lawn mowing company, and so on and so forth.

Trademarks and service marks distinguish the origin of your goods and/or services from others. Every day, consumers rely on trademarks and service marks to decide about whether to purchase one particular good or service over another. For example, you may think that one particular brand of golf ball is better than other brands. As a result, you always buy that particular brand of golf ball. Another popular example could be a specific type of purse or handbag. People spend large amounts of money on handbags to ensure that they are getting an authentic brand and not a counterfeit imitation. Consumers spend the extra money because they know that the authentic purse or handbag is a quality product that should last a long time. Thus, these consumers are relying on the strength of the handbags' trademarks to make their purchase.

Essentially, trademarks and service marks help protect all the time, money, and hard work that you have poured into a particular endeavor. As businesses grow, they eventually establish a certain reputation. Once you or your company has built a reputation for providing quality goods and/or services, that reputation will need protection. Trademarks and service marks are one vehicle to protect that reputation.

The first requirement is actual use in commerce. The United States, unlike most foreign countries, requires the trademark or service mark to be used in commerce before you can apply for formal trademark registration in the United States Patent and Trademark Office (USPTO). "Actual use in commerce" means that the mark must indicate the origin of a particular good or service that is already in existence. In other words, you cannot register a mark in the USPTO that you are planning to or intend to use.

The second requirement is that the mark cannot be deceptively like an already existing mark that indicates the origin of the same or similar goods and/or services. According to this requirement, different entities can use the same mark to indicate different goods or services. For example, one person could use and register the mark "tomato" to indicate a particular manufacturer of an automobile. At the same time, another person could use and register the mark "tomato" to indicate a clothing line. Because the products are not the same or similar such registration and use is allowed.

The third requirement is that the mark cannot be generic or merely descriptive of the goods or services that you are offering. Continuing with the previous example, the mark "tomato" could not be registered for a tomato supply company or a tomato farmers' coalition. Thus, a particular mark may be allowed for certain subject matters while the same mark may not be allowable for other subject matters.

At Gunn, Lee & Cave, our attorneys can evaluate whether registering your proposed trademark or service mark is viable. Contact us to arrange an appointment if you have any questions.

There is a way to reserve or save a proposed service mark or trademark in the United States Patent and Trademark Office (USPTO) even if the mark is not currently in actual use. The reservation of a mark within the USPTO must be renewed every six months for a maximum period of three years. Before the three-year period has expired, you must register your mark or else the mark becomes available to the public again. Of course, to register the mark, it will have to be in actual use. As a result, you can reserve a mark that is merely an idea, but you have a total of three years to begin using your trademark in commerce.

The ® symbol denotes that a trademark has been federally registered in the United States Patent and Trademark Office (USPTO). The ® symbol is not to be misused and there are legal consequences if an entity is improperly using the symbol. One example of misuse would be using the symbol when no federal trademark registration really exists. The ™ symbol is the symbol that denotes a common law trademark. Similarly, SM is the symbol indicating a common law service mark.

A common law trademark or service mark is an unregistered mark that has been in actual use for a definable period and common law rights have arisen. Common law is basically a law that has evolved through history according to what is considered right and just. In the sense of trademark, the common law protects entities that have operated under a certain name or used a certain symbol to indicate the origin of their goods or services for a definable period.

Under the common law, it is not right and just for some entity to start using a trademark or service mark that another entity has already been using and continues to use. In other words, the common law protects entities that were the first to use a mark over subsequent entities that want to misappropriate the mark. As a result, entities that have never federally registered their mark in the United States Patent and Trademark Office (USPTO) may still have a basis for filing suit against an entity trying to steal an already established mark.

The answer is you don't; however, you will be missing out on several distinct advantages that federal trademark registration offers. One of the major drawbacks to common law trademarks and service marks is that they only offer regional protection. A common law mark is only protected in the region(s) where it is being used. Therefore, an entity operating under a common law trademark cannot expect protection of its mark in other regions where there is no actual use.

The regions of actual use and the area of protection under the common law can be very small. In some instances, courts have construed these regions to be as small as a few square miles. Thus, if you are relying on common law protection, some entities may be able to use the same mark after your established use if that entity is located only a few miles away.

The biggest advantage of federal trademark registration is that it puts others on constructive notice of your mark throughout the United States. As a result, if some entity tries to use your registered mark to provide goods or services that are the same or like yours, that entity cannot claim it was unaware of your rights.

Other benefits of federal trademark registration include:

1. Conclusive evidence of ownership to the trademark

2. Trademark infringement suits can be filed in federal court as opposed to states' courts for common law marks

3. Once your mark is registered it can be filed with U.S. Customs to prevent importation of counterfeit goods from foreign countries

4. You can use a U.S. registration as the basis for filing foreign counterpart applications

Trade protection lasts if you continue to use the mark in commerce and the mark does not become generic. If you stop using the mark in commerce, you abandon your rights to the mark and others are allowed to use it. If your mark becomes so well known that people do not recognize it as a trademark or service mark, it becomes a generic mark, and others can use the mark without your permission. Historical examples of trademarks or service marks that were once valid and then become generic because they become too well known are names like Velcro, escalator, aspirin, trampoline, videotape, spandex, jungle gym, and zipper.

Gunn, Lee & Cave lawyers can do everything for you to obtain your trademark and/or service mark. To get the process started, we will need an example of your trademark or service mark in use and a description of the types of goods and/or services you provide. With some research, our attorneys should be able to evaluate the prospect of obtaining registration on your mark. To determine the propriety of registration we will conduct research into registered trademarks, as well as common law marks if you desire.

Additionally, we can file the application with the United States Patent and Trademark Office and respond to trademark examiners' concerns or objections to your registration. Furthermore, if an entity formally opposes your registration of a certain mark, then we can respond to the formal opposition.

After your registration issues, we can maintain your trademark by docketing and reminding you of upcoming deadlines and fees for continued registration.

The length of a trademark prosecution varies according to many factors so there is not a definite answer to this question. However, a good estimate is that typically a trademark application takes about one year to prosecute, barring any adverse proceedings such as a formal opposition to registration.

Yes, our attorneys can do several things to protect your trademarks or service marks. Our trademark lawyers have extensive experience in trademark litigation and can file a lawsuit to have a court enforce your mark regardless of whether your mark has been federally registered or not. In addition, our attorneys are extremely familiar with the formal trademark oppositions if an entity is trying to register a mark confusingly similar to your own registered mark. Finally, if the conflict with another entity trying to use your trademark or service mark has not risen to the level of formal proceedings yet, our attorneys have other ways to convince others to stop.

Don't let others take advantage of your hard work and efforts by tarnishing your strong reputation of providing quality goods and/or services. If you are interested in enforcing your trademark, even if it is not registered, schedule an appointment and one of our attorneys should be able to help you.

A copyright is the way someone protects an original work of authorship that has been fixed into a tangible medium of expression. An original work of authorship can be many things. For example, an original work of art, an original manuscript or screenplay, the contents of a web page, a book, the compilation of individual works of authorship into a greater work (like making a compilation chapters written by different authors into a book), designs and drawing, computer programs, as well as numerous other original works of authorship.

By common law, once an author fixes the original work of authorship in the tangible medium of expression copyright protection attaches without doing anything more. However, before your common law rights can be enforced your common law copyright will have to be federally registered with the United States Copyright Office.

Waiting until someone infringes your copyright to obtain a federal registration can prevent you from being awarded any meaningful monetary damages in litigation and oftentimes enforcing your rights under a common law copyright simply becomes uneconomical.

In a litigation context, federal registration is the best way to ensure that if your copyright is infringed you can enforce your rights through monetary remedies. In this regard, federal registration should allow you to recover statutory damages and possibly the costs of a copyright infringement lawsuit, including attorneys' fees; however, you must obtain federal registration within a certain period for these remedies to apply. Consequently, you should consult with an attorney as soon as practicable, and possibly even before you finish your work.

For more about the benefits of federal registration, see the question that addresses those benefits.

If you have created an original work of authorship that is fixed in a tangible medium of expression, the best way to protect your work is federal copyright registration. Failing to register your original work within the proper period will preclude you from obtaining statutory damage and you will have to prove actual damage. Actual damage is the damage that you have suffered, and it must be proven to a court before you can recover.

Actual damages are often difficult to prove. Think about it. If someone stole your original work of authorship, how do you quantify the amount of harm you have suffered in terms of money? While you may feel that a great deal of money is deserved, courts simply disagree. In fact, actual damages are so difficult to prove that many courts have awarded authors who failed to register their original work a mere $1 to show that the work was infringed. While this nominal number of damages may show that a court truly thinks you created the work first, it is probably not adequate compensation in your mind. Furthermore, this nominal amount will leave you stuck with costly attorneys' fees that you incurred trying to protect your rights.

Although in a limited situation actual damage can be proven, properly registering your copyright with the copyright office is the best way an author can ensure he/she will avoid having to prove actual damages. Registering your copyright gives you the opportunity to recover statutory damages, or $750–$30,000 per work that is infringed. In addition, if it can be proven that the infringer was willfully infringing your copyright, statutory damages can be as high as $150,000 per work. Furthermore, registering your work can allow you to make the infringer pay for all the court costs and attorney’s fees you incurred by prosecuting your copyright in a court.

Considering the penalties for not registering your work, there really should not be any question about the proper course of action an author should take. While deciding not to register your copyright may save you a little money in the beginning, the decision could end up costing you in the long run!

Constructive notice. By registering your work with the U.S. Copyright Office others are put on constructive notice that you are claiming copyright to a particular work of authorship. This constructive notice precludes potential infringers from claiming that they innocently infringed your original work. In other words, if your work is registered these potential infringers cannot copy your work and then later claim that they did not know the author of the work they copied was claiming copyright. Because innocent infringement is an affirmative defense, if a potential infringer can prove to a court that he/she truly did not know an author was claiming a copyright, the potential infringer may escape liability for copying that author's work.

Many times, if a job is not registered a claim of innocent infringement amounts to a "he said, she said" battle. That is, the potential infringer claims he/she did not know the author was claiming a copyright, while the author claims he/she did. Meanwhile, neither side has any real proof of either claim. Thus, the Copyright Laws provide for stiff penalties (i.e., the preclusion of statutory damages) to encourage registration and help avoid the "he said, she said" scenarios.

The proper steps to register your work of authorship depend on the nature of the work itself. To register your work, the proper forms must be filled out, the proper fees must be paid, and a specimen of the work must be submitted to the Copyright Office. The specific form required depends on the nature of your work and can be tricky to determine on your own. Many times, people register their work using the incorrect form, a mistake that can be costly. These forms eventually become your certificate of registration and are meant to put other people on notice that you are claiming copyright in a certain work of authorship. If you use the wrong form or make a mistake on the correct form, your entire protection may be sacrificed at the most critical time when you need it—during litigation!

Defendants usually try to invalidate copyrights registrations during the litigation process. Because copyright registration applications are not scrutinized like patent and trademark applications, mistakes such as using the wrong form or entering the wrong information on the correct form are more likely to go unnoticed by the "copyright examiner." Instead, an opposing party in litigation, typically a party you have sued to protect your rights under the registration, is the one who points out these mistakes to invalidate the copyright registration. Of course, if your registration is invalidated then the protection you thought you had in place does not exist and you will have to take other measures to protect your rights at that time, if any protective measures are still available. As a result, people who try to register copyrights without the experience of an attorney who practices in the field of intellectual property are taking a substantial risk.

At Gunn, Lee & Cave, our attorneys have extensive copyright experience and can help answer any questions you have. We would enjoy the opportunity to register your work for you and look forward to working with any author seeking copyright protection. Considering the possible consequences that erroneous registration could cost you, coming to Gunn, Lee & Cave for your copyright needs is the wise choice.

For more information on the possible consequences of incorrectly registering your work, see the question that addresses the benefits of federal registration.

A Poor Man's Copyright is a term used to describe a way authors try to obtain copyright protection without going through the registration requirements for the United States Copyright Office and is commonly misperceived as a valid protection for an original work of authorship. To avoid the formal requirements of copyright registration, authors mail themselves a copy of their original work of authorship from the U.S. Post Office. Once the package arrives the author does not open it but rather retains the package for later proof that the original work was created on a certain date. Because the package is unopened, these authors think that in a court or some other tribunal they can prove they created the work prior to another person claiming copyright on the same work.

While Poor Man's Copyright may be used as evidence to establish a date of first creation, this method of copyright protection is not nearly as beneficial as a registered copyright. In the first place, federal registration is required before an author can bring suit. Whether an author is claiming copyright protection of common law or has "filed" a Poor Man's Copyright by mailing the work to himself/herself, the author will have to register the work before a suit to enforce the copyright can be instituted. Thus, the author will have to undergo the fees and procedure that the author originally sought to avoid. More importantly, by failing to register the work the author may have precluded himself/herself from obtaining statutory damages and a suit to enforce the copyright would likely be too uneconomical to maintain.

For more information about the possible harmful effects of a Poor Man's Copyright, see the question that addresses the benefits of registration.

Although there is a definite answer to this question, that answer depends on when the original work of authorship was created, whether the author is an individual or an employer, and when the work was first published, if it has been published at all. The reason there is no single, consistent term for protection is that the Federal Copyright statutes have been amended many times throughout the years and the specific copyright law that was in effect at the time the work was created and/or published governs the duration of protection.

As a result of the differing copyright laws, before we can give you a definite answer as to how long your work of authorship will be protected under copyright we will have to know more facts about the work in question. At Gunn, Lee & Cave, our attorneys have the experience and knowledge required to ask the right questions and give you answers to questions such as this. Setting up an initial meeting with one of our attorneys is the first step to getting the specific information you want. Give us a call and we will be happy to schedule a meeting.

Peer-to-peer networks ("P2P networks") are file-sharing networks that allow users to distribute computer files among other users on the P2P network. The computer files that are distributed can be anything from a recipe you typed into in a word processing program to a picture of your kids that you saved on your computer from your digital camera. P2P networks give its users the ability to transfer these computer files from one P2P user to another over the internet. Although these programs do have some legitimate uses, they are predominately used to share computer files such as copyrighted songs and movies. Distributing these songs and movies is a violation of the copyright owners' rights.

In September 2003, record companies started a nationwide campaign to enforce copyrights on songs that they own. While the record companies did not actually create the works they are suing on, the copyrights to these songs have been transferred to record companies and the companies now retain the right to sue. Under the record companies' litigation campaign the companies seek out potential infringers by tracking the names of internet account holders. That is, the record companies determine which internet account is distributing the copyrighted works they own. As a result, if your name is the one listed on the bill for your Internet services, you are the one that gets sued. It makes no difference to the record companies whether you are the person who distributed their work. It may be your kids, their friends, a burglar that broke into your house, or someone who is stealing and using your internet account!

While the litigation campaign started by record companies is controversial and ethics can be debated, to a person receiving the lawsuit, a solution must be found. At Gunn, Lee & Cave, we can defend you against this type of debatable litigation. The first step is to call us and schedule a meeting. What strategy we pursue will depend on the specific facts of your case. We should be able to tell you in an initial consultation whether your case is worth fighting or if you should simply settle with the record companies. Let us know; we would be happy to help.

Unfortunately, there is no clear answer to this question. The simple answer is that whether this practice rises to the level of infringement depends on the facts of each case. In copyright law the doctrine of fair use could apply to this situation. Fair use itself is not a clearly defined doctrine within copyright law, but generally if a court finds that such a practice was "fair" then you can do so. However, predicting what a court may consider fair is a risky proposition. The better practice is to obtain the author's explicit permission to use the work and construct a license agreement that outlines your allowable uses.

At Gunn, Lee & Cave, our attorneys have knowledge and experience to craft license agreements that will protect you and your use. Of course, we will have to obtain the author's permission before any actual use can occur, but if the author is willing, we can represent you in license negotiations.

The © symbol is one way of putting others on notice that an author is claiming copyright on an original work of authorship. The © notice symbol helps prevent potential infringers from claiming that their infringement of a copyrighted work was "innocent". Innocent infringement is one way that potential infringers can limit their financial liability for infringing a copyrighted work. If an infringer can prove that his/her infringement was indeed innocent, monetary damages from a copyright infringement lawsuit may be reduced significantly.

The public domain is the term used in copyright law to signify that a work belongs to the public. When an original work of authorship is first created (i.e., fixed in a tangible medium of expression) the copyright of the work generally belongs to the author automatically. However, at some point in time the work will eventually pass into the public domain. There are several ways work can pass into the public domain. If an author publishes the work without claiming copyright protection or clearly assents to the work passing to the public domain, the public essentially becomes the owner of the copyright. Additionally, if the term of copyright has expired the work will also pass into the public domain.

Work passing into the public domain is an affirmative defense under the broader doctrine of fair use. If someone is accused of infringing a work, this person may be able to assert the fact that a work is in the public domain as a defense to the infringement. Nonetheless, the person accused of infringing will have to go through the litigation process before being exonerated. Rather than relying on a work being in the public domain as the basis for copying it, the better practice is to consult with an attorney before use.