fence transparency

This text is by Brandon Weiner in his capacity and does not, necessarily, reflect the views of different infinite mile contributors, infinite mile co-founders, the authors' employers and/or other affiliations.  

The Benefits of Developing a
Long-Term Intellectual Property Strategy
For Your Creative Businesses or Artistic Practice

Brandon Weiner

Introduction

Turning a start-up business or artistic practice into a full-time paid job has become the modern day holy grail for many creatives in Detroit. The opportunity is there, written in large letters on billboards, if not evidenced in our day-to-day lives. Resources and support groups abound to aid you on your quest, from business incubators and accelerators to workshops, shared office space and talking heads like me telling you exactly how to do it.

The role of intellectual property and the priority that should be placed on it by artists and businesses can be difficult to determine at times. Intellectual property should not be a high financial priority for many businesses in the start-up phase, however, a cohesive, long-term intellectual property strategy is crucial for becoming a second stage business1 or practice that consistently breaks even and is able to provide a full-time salary to its owners. Properly securing your company’s intellectual property rights may even be a prerequisite for investment, depending on the type of funding sought.

While intellectual property concerns often come up during the start-up phase, they are generally handled piecemeal as discrete tasks. The intent of this article is to help artists and creative businesses develop a fuller understanding of how intellectual property can and cannot be protected, what the benefits of protection might mean to your business, why using other areas of the law is essential to a cohesive, long-term strategy and when certain tasks should become a priority based on cost and other factors. It is important to note that at its core intellectual property is a doctrine primarily concerned with protection. With only a few exceptions, intellectual property law cannot create value and, instead, adds value over time by protecting/securing ownership, minimizing risk and liability, discouraging competition and/or infringement and accumulating assets in the form of rights and permissions.

The intended audience for this article is twofold: 1. Artists and creative practitioners, likely operating as a sole-proprietorship or single member LLC, who primarily sell their own services or make goods/works of art on a commission basis or for small retailers; and 2. Start-up and second-stage businesses that manufacture products, especially lifestyle and experience brands, or offer services in the creative industries (such as web development, motion content, fashion, marketing/branding, non-profit gallery or performance, studios/shared work space, etc.).

This article is not meant to be a comprehensive guide to either the entire field of intellectual property or any of the legal areas specifically discussed below. In-depth breakdowns are freely available online. Instead, the objective is to provide an overview that gives readers enough information to begin thinking strategically in key areas about developing a long-term intellectual property plan for their business.

Overview of Intellectual Property

The field of intellectual property is most commonly associated with patent, trademark and copyright. Patent protects inventions and provides its owners with a legal monopoly for a limited period of time. Securing a patent requires the highest level of investment in both time and money in the field of intellectual property. Patents may be important to some creative sector businesses, however, it is an area of the law that is beyond the scope of this article. Everything outside of patent is generally referred to as “soft IP,” which is the focus of this article.

Intellectual property is, in some ways, a hodge-podge of a field that continues to grow and expand.2 Copyright is a textbook example of intellectual property, however, it is legally rooted in first amendment free speech rights and other areas such as the regulation of unfair business competition. Many legal fields overlap with intellectual property and are sometimes merely considered related (as in the case of contracts) or, more ambiguously, float in and out of the intellectual property category (as often happens with privacy rights). Perhaps this is to be expected, as intellectual property itself is a relatively young area of law that developed in response to the desire to map the concept of “real property” onto things that were not land and that sometimes were not even that “real” in more than a trivial sense until being bestowed with legal protection.3

The protection of ideas, in one form or another, ties the field of intellectual property together. Which is ironic because one of the primary tenets of copyright law is that it is not meant to protect ideas, but rather the expression of ideas. But, like much in the law, it is important to pay attention to what the law does and not always what it says. Copyright is important to artists and creative businesses because it protects (primarily) expressed ideas. The level of creativity required for protection is quite low: “some creative spark, ‘no matter how crude, humble or obvious’”.4

Trademarks serve the legal purpose of protecting source identification. While that description might seem bland, on a practical level, the US Patent and Trademark Office is really determining what the public’s ideas are about you. They are tasked with legally defining how you are perceived and, as will be covered below, this not only applies to your name and logo but can also be extended to the total image or overall appearance of things such as business atmosphere. It is more than a little existential.

Most readers probably already know a little about copyright and trademark. The hope of this article is to give the reader a sense of how they interact as well as how other areas of the law can fit into an intellectual property strategy. Contract law can be vital to supplementing both copyright and trademark protections. Non-disclosure agreements (NDAs) allow for the protection of ideas, without any limitations regarding creativity, expression or whether or not there has been a use in commerce. Artists and businesses can often times find these such ideas more valuable than the ideas embodied in copyrightable works.

There are many other areas of contract law that are important to intellectual property that this article will not cover. For example, independent contractor agreements are relevant when anyone does paid work for you who is not a full-time employee. The goal with the contractor agreement, which can extend equally to non-paid collaboration agreements, is to exercise control over the rights and permissions at issue. It is not always necessary, or even desirable, to have complete ownership. However, being cognizant of the legal defaults and putting a system in place to aggregate rights and permissions will not only save you future headaches, but could lead to an increasingly valuable portfolio of intellectual property assets.

Privacy rights are another area of law that overlaps intellectual property, which this article will not cover. Privacy is an area that, over time, should be integrated into your intellectual property strategy. The photographer’s release is an example of one of the practices that should be in place for business owners to mitigate liability from misappropriation of name or likeness claims.

There are four important privacy torts to be aware of. Defamation and false light involve untrue statements or implications that are harmful to one’s reputation. Misappropriation of name or likeness and the right of publicity deal with the use of a protected attribute for an exploitative purpose without consent.5 In general, only individuals can bring a privacy tort claim, however, there are related areas of the law that offer limited protection to businesses. For example, trade libel deals with defamation of products and business services.6 An increasing number of businesses are employing the “individual as brand” model. In such cases where the reputation and/or perception of an individual is key to a business, privacy rights can play a more important role in the business’s long-term intellectual property strategy.

Building Blocks for an Intellectual Property Strategy

Copyright

What and Why You Should Care

Copyright gives authors of creative works a “bundle of rights” for a limited period of time (although it is pretty much in perpetuity at this point). The most important rights are the ability to limit others from reproducing, selling, displaying, performing, or creating derivatives of the copyrighted work.7 Examples include photographs, paintings, sculptures, writing, architectural works (to some extent), music and pretty much anything else you would think of as artistic or creative (with the notable exception of fashion, although specific elements may be copyrightable).8

The main purpose of copyright is to protect the expression of ideas, or creative expression. The bar is low. You could not protect two parallel lines drawn on a bar napkin, but, if you added a squiggle here or there, it would probably be enough. Aside from the expression being captured in some form (writing on a frosty mug is not out of the question), the other most relevant limitation is that the expression cannot be functional. That is the realm of patent.

Copyright only covers things that are not useful (at least in the eyes of the law). For example, a folding chair cannot be copyrighted because you can sit on it. It is, in fact, designed with that purpose in mind. But if the chair contains a painting on it, the painting could be copyrighted. And if the chair were a part of a Rauschenberg installation, the chair would enjoy protection as part of a compilation (more on compilations later). Still, you would not have ownership of every folding chair, the uncopyrightable underlying work in this case, but you would be able to exercise control over others’ uses of that particular chair and, importantly, other chairs that resemble it.

Artists and creative business should care about copyright because the idea/expression dichotomy is a legal fabrication.9 (Speaking of existential, try coming up with examples of ideas that are not expressed in some form somehow.) Copyright is about ideas and ideas fuel the creative industries. Consumers are increasingly being asked to make decisions about difficult to distinguish products and services. Ideas attached to products often serve as the distinguishing factor instead of substantial functional differences (which may not exist). Be it in the form of a company’s narrative, image, style or brand persona, a consumer’s ideas and perceptions about a company and its products are more important than ever. Moreover, business and sometimes seemingly everything, is mediated by digital mediums. That is the domain of copyright law. Wherever there is something published, posted, reproduced, viewed or streamed, copyright gives you a point of entry that can be used to control your company’s brand and protect its assets.

If utilized properly, copyright can be tremendously powerful. With that said, it is more important to some businesses than others. If your business primarily offers professional services, there are basic copyright practices to consider, but you might have little to gain by engaging in some of the more extensive copyright strategies below. Regardless of the scope of copyright activities, it is worthwhile to incorporate into every business’s intellectual property strategy because it is a cheap and easy way to protect against risk and, if you are proactive, there are well-established avenues to seek redress in which plaintiffs can reap large rewards.

How To Do It

Registration – These days, a work is copyrighted the moment it is fixed in a tangible medium. Yet, just because a work has a copyright, it does not mean it is afforded any real protection. Registration is the method for ensuring your copyrights are fully protected.10 The two main benefits from registration are a presumption of validity (which is more than legalese, especially when you are dealing with works whose copyrightability may otherwise be in questions) and the right to statutory damages for infringement (up to $150,000 per infringement, plus costs and fees). Whether or not it ever comes to a trial, the threat of statutory damages can be a powerful deterrent to would be infringers and/or competitors.

Registration is cheap and starts at $35 per work. It is also a relatively fast and easy system. Many types of works can be registered online and you usually receive a response in a couple of months. The Copyright Office is notorious for approving almost everything. Unlike patent or trademark registration, there simply is not much review, save for glaring errors and miscategorized works. As a disclaimer, I have heard whispers that the Copyright Office has recently had a more watchful eye, but, at any rate, copyright registration will continue to be far easier than other areas of intellectual property.

One particular type of registration deserves more attention. A compilation copyright protects the collection and assembly of pre-existing or non-copyrightable material that results in the formation of an original work.11 Common examples include books of short stories and furniture.12 Compilation copyright can be extended to other products, or components of products, that are not traditionally viewed as artistic works. Enforcing the copyright on individual elements under a compilation copyright may be difficult.13 But for lifestyle and experience brands, the individual elements may be less essential to protect as it is the combination of elements that creates the larger look, feel, and quality of the brand. 

DMCA Takedown Notices– Digital Millennium Copyright Act (DMCA) takedown notices give copyright holders a powerful and easy tool to enforce their copyright rights online. When internet service providers (ISPs) receive a DMCA takedown notice, they must remove the allegedly infringing content.14 The process allows sites like YouTube, Facebook, and Instagram to mitigate liability associated with hosting user-generated content. After the ISP has removed the content, the user has an opportunity to respond to the takedown notice and have the content restored. The party that initially filed the takedown notice, then, can either go to court to have the content permanently removed or allow the content to remain posted and walk away.

If infringing content has been published in print, rights holders would usually not only have to threaten/contact/negotiate with the infringer, but they would also have to contact each publisher individually and separately try to secure removal of the content (the process is the same for all non-digital mediums). Because of the DMCA takedown laws, the process online is largely automated. Once you have your letter, you can send it to any and every ISP where the content is posted. Initial removal is automatic and, in my experience, the majority of users faced with a DMCA takedown notice do not file a response in order to have the content reposted (partially because, if you do file a response, you should prepare to go to court to defend yourself and usually the potential financial expense, even if you win, is not worth it).

While having your copyright registered is not, technically, a requirement for sending a DMCA takedown letter, it is highly recommended. The tactical goal for most DMCA takedown letters is for the user to not respond. Without a registration, you cannot file a lawsuit and you cannot seek statutory damages, both of which severely undercut your leverage.15

If you are an artist that has received a DMCA takedown notice, you can have the ISP repost the content as described above. I would recommend consulting with an attorney who can figure out if the party has a valid claim, possibly negotiate an alternative arrangement and advise you on the risk of a lawsuit, its estimated costs and its chance of success.

You can improve brand protection by incorporating compilation copyrights into your DMCA takedown practice. While trademark is most commonly associated with protecting brand, its enforcement mechanisms are often clunky, especially when compared to DMCA takedowns. Infringing content on the web is usually in the form of an image and often involves someone lifting an image from your site or posting an image of your actual work or product. Compilation copyright can expand this one-to-one equation to encompass arrangements that may not include a specific image you have posted or a work or product you have authored.

For example, a compilation copyright in a photo may encompass a scene or arrangement of objects where the total experience and atmosphere are equally important to the particular product or artistic work highlighted. Such a compilation copyright would then potentially limit the ability of competitors to recreate an arrangement or atmosphere that too closely resembles that protected by your copyright. When the compilation copyright is registered for an actual product or work instead of an image of the product or work, it becomes possible to also limit the display of products and works, regardless of atmosphere, that too closely resemble the arrangement of the component parts in your work, even if none of the component parts are individually copyrightable.

By combining these two types of compilation copyright with a DMCA takedown system, businesses can protect against established competitors who seek to capitalize on your branding and product strategies, as well as discouraging new competitors from entering the market whose brand and products too closely resemble those of your business (possibly by limiting their ability to have a presence on social media and crowd-funding platforms).

When It Matters and How Much It Costs

Copyright is cheap compared to other areas of the law. Registration starts at $35 per work, though it can add up if you are continually registering new works. DMCA takedown letters do not cost anything to send (there are companies online that will automatically generate and send letters, but be careful because there are penalties for takedowns without any basis in the law). As a lawyer I am professionally and morally obligated to recommend consulting with a lawyer, but a lot can be done on your own. A good best practice would be to at least initially consult with a lawyer about your copyright assets and broadly discuss strategies that make sense for your business or practice.

As your business grows, it is more important for a copyright lawyer to be involved so that systems can be put in place that coincide with your intellectual property strategy and economies of scale can develop. This includes systems for continual copyright registration and DMCA takedowns and the development of solid legal foundations for any compilation copyrights. As with trademark, copyright measures that address brand protection can often wait until your company is committed to a specific look and feel for the brand.

A general rule of thumb regarding registration is that it is not essential to register works until there is an increasing risk of infringement, usually coinciding with public exposure or attention. If it is an image of your drawing on your personal blog that only gets traffic from family and friends, then registration probably is not needed. But if you are about to launch a new product line or unveil a new artwork and there will be significant media attention, then it is probably the right time to have everything registered.

Trademark

What and Why You Should Care

Trademark protects source identification.16 It is a consumer protection law meant to give consumers certainty over where a given product is from. For example, if you buy a bottle of Coca-Cola, you want to know that the bottle contains authentic Coca-Cola soda that comes straight from the production facilities of Coca-Cola. Trademark specifically protects the name of your company and your company logo from unlawful use by others.

If your name meets the criteria of distinctiveness, approval is pretty straightforward. However, many companies fall short of the threshold and, instead, must show what is called secondary meaning. For example, “Detroit Chairs” is neither fanciful nor arbitrary. In order to enjoy trademark protection Detroit Chairs would, in essence, need to prove that it occupies a place in the collective consciousness such that when the public hears the phrase “Detroit Chairs” they associate it with the company Detroit Chairs and not just a general class of objects existing in a geographical location.

Trademark is far more existential conceptually than it is in practice, as the determination of secondary meaning is generally made on a straightforward review of evidence. Common offerings include company websites, brochures/flyers/posters with the company name, mentions in the media, articles written about the business, products from the company and the like. This list belies another prerequisite for trademark approval: use in commerce. Trademark is not meant to protect someone’s great idea for a business that never gets started. It only protects business that are selling products, offering services or otherwise conducting business activities.

You should care about trademark for these two reasons: 1. It protects against an unlikely, but not remote, scenario in which a business with a similar name and similar products or services capitalizing on your brand equity devastates your market share; and 2. It provides an additional entry point for your business to safeguard its brand through trade dress protection.

For the purposes of artists and creative businesses, trade dress is to trademark what compilations are to copyright. Where compilations allow for the arrangement of non-copyrightable elements into an original work, trade dress provides protection for the total image and overall appearance of a product, even if separate elements are generic or have been used by others, so long as it is distinctive and helps consumers identify and distinguish goods and services.17 Trade dress can include "features such as size, shape, color or color combinations, texture, graphics or even certain sales techniques."18 Trade dress is broadly applicable and has been used to protect a variety of assets, such as: restaurant atmospheres, color, smells, sounds, “signature” golf holes, product configuration, trade shows, and written materials.19

How To Do It

Registration – As with copyright, there are benefits to registering your trademark. Perhaps the most relevant is that federal registration essentially plants a nation-wide flag notifying all other businesses that you have a priority claim to the name. Similar to copyright registration, you cannot sue in federal court unless your trademark is registered and registration allows you to seek increased damages and certain statutory damages.20

But unlike copyright, trademark registration is a good deal more expensive, takes longer to prepare, includes longer response times and may involve lengthy back-and-forths with the USPTO. The filing fee alone can range from $225 - $375. Registering trade dress is significantly more difficult than names and logos and will likely require working with a lawyer. If a show of secondary meaning is required, it helps to have a lawyer as well. In general, there is more to put together and more potential pitfalls than copyright. For example, the distinction between the principal and supplemental registries can be not only difficult to understand, but it can be confusing to even figure out which one you are being placed on at times. The difference in levels of protection is large enough that I often advise clients to save their money if they would likely be placed on the supplemental register and wait until the odds are better.21

An oft-underpublicized component of registration is the importance of selecting the proper classification of your goods and services. Trademark does not provide blanket protection against use of your company name by anyone anywhere. Instead, it grants protection based on categories of commercial activity. One class is included in your registration and additional classes require a separate fee.22 For example, if you own a restaurant that doubles as a performance venue, you would need to register under classes that include food service and live entertainment. Some classes are defined broadly, but if you have already taken the leap to register, it is likely worth a little extra money to ensure that you do not end up with a valid trademark that is useless in preventing a competitor from using your name or logo.

Common Law Trademark – Like copyright, registration is not the only way to gain trademark protection. Rights to your company name, logo and trade dress all have common law counterparts.23 Enforcement of trademark rights in state courts is not uncommon. Where copyright attaches the moment the work is fixed in a tangible medium, trademark rights begin to accrue as soon as there is a use in commerce. Perhaps counterintuitive to many artists and entrepreneurs’ desire to keep their new business name and products secret for fear of theft, the best way to accrue common law trademark rights is to get everything out there and use it publicly as much as possible.

Common law trademark does have limitations. Without registration, you are limited to state courts and do not have a presumption of validity. There is also a distinct difference in scope. Common law trademark rights only accrue where the mark is in use. For example, if you are primarily selling a line of designer chairs in Detroit and secondarily throughout Southeastern Michigan, you might have a good chance of enforcing your rights in Detroit and a so-so chance throughout the rest of Southeastern Michigan depending, specifically, on the locations where you have done more business. Engaging in commerce online allows your reach to expand, but do not count on being awarded a national market that easily as the analysis would likely still center on the specific locations of consumers and the general awareness of your business in those locations.24 In contrast to a registered mark, the geographic reach of a common law mark must be proved on a case-by-case (or location-by-location) basis.

Finally, if you have accrued common law trademark rights and someone else comes along and registers the same or similar name or logo, you will be able to continue your operations within the geographic regions you have previously carved out for your business. The downside is you will be prohibited from expanding beyond those boundaries, at least where the classes of services and goods are the same, but without common law rights you would be prohibited from operating under that name or logo at all.

When It Matters and How Much It Costs

In addition to the registration fee of $225 - $375 and the cost of adding classes, a lawyer may charge in the range of $300 - $500 to prepare and handle the registration. Legal fees for a trade dress registration will be substantially higher. There is more risk involved in registering trademark yourself than with copyright, but it certainly can be done. If you choose to register on your own, I would advise consulting with an attorney initially if possible. I would highly recommend hiring an attorney if the USPTO returns your application with comments during the registration process. The question of registration is really a matter of “when,” and not “if.” For second stage businesses, the risk of not registering at least a name trademark is too high compared to the relatively low burden involved in securing registration. Also, trademark registration can be a prerequisite to various forms of investment.

The two most common situations that, in my opinion, merit urgency in registering are where a start-up business wants to launch with a name that they know is the same or similar to an existing company, or, where an existing company becomes aware of a new company with the same or similar name. Common law trademark is a valuable placeholder, but should not be relied upon as a long-term alternative (the presumption of validity and increased damages are a powerful deterrent that puts your company in a far stronger position).

As with compilation copyright, trade dress could be something that forms the foundation of your company’s intellectual property strategy, while for other businesses it may not be that pertinent. If it makes sense for your business, it should be a factor in every stage of product development. Trade dress only becomes protectable over time and it must be consistent. It is a long-term asset protection strategy that will take planning and investment but that has the potential to protect elements of your company’s brand that are not protectable under any other area of the law.

Contract - Non-Disclosure Agreements

What and Why You Should Care

NDAs and confidentiality agreements do exactly what you would expect: they protect and limit how various types of information can be used. They can be employed in a range of scenarios, including meetings where sensitive information is discussed, working relationships where a party is exposed to or has access to confidential information and the review of materials.25

NDAs and confidentiality agreements generally cannot protect information that is already public. More importantly, they only protect the information clearly specified in the agreement.26 The cardinal sin with NDAs is to cast too broad of a net. It is better to have some NDA rather than none at all, however, the level of protection offered can decrease dramatically if one catch all NDA is used for every situation. The best way to ensure that what you want to protect actually gets protected is to take the time to write out exactly what the protected information is in as much detail as possible.

You should care about NDAs because they are able to protect information and ideas that cannot be protected by other areas of intellectual property. If you have a half-written novel about the great American chair thief, copyright will protect what you have down on paper, but it cannot protect your ideas for how the novel ends, whereas NDAs can, even if nothing has been written down. Additionally, copyright will only protect your version of the great American chair thief and not the concept of an American chair thief. A strong NDA, in conjunction with related agreements, may even prevent a party from discussing the concept of an American chair thief or making use of it in future works.

In trademark, there may be scenarios where it is desirable to meet and discuss a business and its name before the business is ready to launch. In such a scenario, trademark will offer no protection if someone who hears about the business goes off and takes your name. NDAs could prevent that scenario from occurring.

How To Do It

NDAs are contracts and binding contracts can be formed in a variety of ways. In addition to written contracts, contracts can also be formed verbally, through the course of performance, or, in some cases, implicitly. The best practice is to have written and signed NDAs. This gives the greatest amount of protection and enforceability because, presumably, the parties know what they are agreeing to.

For a variety of reasons, it is not always practical or desirable to ask for a signed NDA (for example, if you are seeking funding and know that confidential information will be disclosed, but also know that asking for a written NDA will offend the funder). Alternative methods include posting a confidentiality notice in the header or footer of a document or in an email containing confidential attachments. Such routes are better than proceeding without any confidentiality notice, but they may not get you very far and often are only partially enforceable at best. The key is to specifically define the protected information and the terms of its use (notices are often extremely broad) and to receive some act of affirmative consent from the other party (opening and reading a document is generally considered passive consent, if the reader is even aware of the conditions imposed by the sender).

When It Matters and How Much It Costs

Like with lots of contracts, you can piece together an NDA from resources online. If you are dealing with protected information that is important to you, it will be well worth your money to hire an attorney to draft the NDA to ensure that the agreement is enforceable and accomplishes exactly what you would like. When to use NDAs will depend on your particular business and whether or not you deal with confidential information or ideas that have great value to your company. It will also depend on whether or not the activities of your business put such information at risk.

In general it is good practice to have employees and independent contractors sign NDAs. This can also extend to collaborative relationships where another party is in a position to be exposed to the inner workings of your business. It may be desirable to have retailers and manufacturers sign NDAs, especially where traditional roles are blurred and elements of product or brand development are done in partnership. Most proposals and submissions would ideally include some form of confidentiality agreement.

My recommendation would be to use NDAs when there is even a question of whether or not one might be needed. The worst that happens is the party says “no,” which, if you choose to continue, should make you more conscientious about the information you choose to exchange. For readers that have not had extensive experience with NDAs and might have concerns about imposing on the other party or conveying a lack of trust by requesting a signed NDA, NDAs are a fairly routine (and necessary) part of many business transactions in the creative sector. Contrary to creating a negative implication, requesting a signed NDA can demonstrate that you value the assets of your business.

Conclusion

After plodding through the start-up phase myself with multiple businesses and individual practices, I know that law is far from being a new business’s biggest priority (even when you are an attorney). My goal here is not to make intellectual property even your first legal priority. Starting a new business is hard and developing it into a second or third stage business is even harder. Sometimes just the slightest edge can make a world of a difference. In time intellectual property protection is necessary for every business. But intellectual property is also a tremendously flexible area of the law that is rapidly adapting to and shaping the creative and social media explosion of the last decade. My hope is that by employing the intellectual property strategies above, to whatever extent possible in a given situation, readers can find that slight edge to help make their endeavors successful.


link - footnotes

1 See Neil C. Churchill and Virginia L. Lewis, The Five Stages of Small Business Growth, https://hbr.org/1983/05/the-five-stages-of-small-business-growth

2 See William W. Fisher III, The Growth of Intellectual Property: A History of the Ownership of Ideas in the United States, 1999, https://cyber.law.harvard.edu/property99/history.html

3 See Keith Smith, “How “real” is intellectual property?,” July 3, 2008, https://blogs.library.duke.edu/scholcomm/2008/07/03/how-real-is-ip-2/

4 Feist Publications, Inc. v. Rural Telephone Service Co., Inc.
499 U.S. 340 (1991)

5 Digital Media Law Project, “Using the Name or Likeness of Another,” http://www.dmlp.org/legal-guide/using-name-or-likeness-another

6 “Trade Libel: A Legal Guide,” November 5, 2012, http://kellywarnerlaw.com/trade-libel-legal-guide/

7 See 17 U.S.C. Sec. 106

8 See 7 U.S.C. Sec. 102

9 Mike Masnick, “Is There Really An Idea/Expression Dichotomy In Copyright?,” July 2, 2009, https://www.techdirt.com/articles/20090629/0317365399.shtml

10 See 17 U.S.C. Sec. 408

11 17 U.S.C. Sec. 101

12 Universal Furniture International, Inc. v. Collezione Europa USA, Inc., 618 F.3d 417 (4th Cir. 2010)

13 “Client Alert: Why a Compilation Copyright Registration May Not Be Enough to Protect Your Rights,” October 1, 2010, http://www.fr.com/news/client-alert-why-a-compilation-copyright-registration-may-not-be-enough-to-protect-your-rights/

14 17 U.S.C. Sec. 512

15 Schenck v. Orosz, No. 3:13-CV-0294, 2013 U.S. Dist. LEXIS 160690, 2013 WL 5963557 (M.D. Tenn.  Nov. 7, 2013)

16 See 15 U.S.C. generally

17 Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 765 (1992)

18 John H. Harland Co. v. Clarke Checks, Inc., 771 F.2d 966, 980 (11th Cir. 1983), cited with approval in Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 112 S.Ct. 2753 (1992).

19 “Trade Dress: The Forgotten Trademark Right,” March 26, 2008, http://corporate.findlaw.com/intellectual-property/trade-dress-the-forgotten-trademark-right.html

20 15 U.S.C. § 1114

21 Rich Stim, “What Good is the Supplemental Register?,”http://www.nolo.com/legal-encyclopedia/what-good-the-supplemental-register.html

22 15 U.S.C. Sec. 1112

23 United States Patent and Trademark Office, “Trademark FAQs,”http://www.uspto.gov/learning-and-resources/trademark-faqs

24 Shontavia Johnson, Trademark Territoriality in Cyberspace: an Internet Framework for Common-Law Trademarks, 29 Berkeley Tech.
L.J. (2015)

25 Paul Witman, The Art and Science of Non-Disclosure Agreements, Communications of the Association for Information Systems (Volume 16, 2005)

26 J.C. Bruno, “Enforcement of Non-Disclosure Agreements,” 81 Michigan Bar Journal 58

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link - issue 18: June 2015