Creative Works

University of New Hampshire

April 29, 2015

with Kim PeasleeIntellectual Property Attorney

What is a creative work?

is a manifestation of creative effort having a degree of arbitrariness, such that it is improbable that two people would independently create the same work.

A creative work

Why are creative works important?

“THE LIFE OF THE ARTS, FAR FROM BEING

AN INTERRUPTION, A DISTRACTION, IN

THE LIFE OF A NATION, IS VERY CLOSE TO

THE CENTER OF A NATION’S PURPOSE –

AND IS A TEST OF THE QUALITY OF A

NATION’S CIVILIZATION” – John F. Kennedy

What is the creative economy?

“Creative” generally means “cultural expression,” but it can also include “intellectual invention.”

Regardless, a Creative Economy consists of three main groups:

1) creators,

2) consumers, and

3) supporters.

The Creative Economy

Creative Works Revenue Received FY10 – FY15

$740,000 of the $2.56M

~29%

Creative Works Disclosures FY10 – FY15

74 out of 221

~33%

Creative Works Licenses FY10 – FY15

158 of 492

~32%

Impact of Creative Works at U.N.H.

Most recent data is from 2009

Relates only to cultural non-profits:

Employed 3000 people

Contributed $278 Million via direct and indirect methods

Does not include:

independent artists,

R&D,

for profit or educational cultural activities

Impact of Creative Works on N.H.

Most recent data is from 2012

Arts and Cultural Production

Contributed $700 Billion

~ 4.3% of G.D.P.

Greater than the contribution from Construction

Greater than the contribution from Transportation and Warehousing

Impact of Creative Works on U.S.

ARTICLE 1, SECTION 8, CLAUSE 8

PROMOTE THE PROGRESS OF SCIENCE AND USEFUL ARTS, BY SECURING FOR LIMITED TIMES TO AUTHORS AND INVENTORS THE EXCLUSIVE RIGHT TO THEIR RESPECTIVE WRITINGS AND DISCOVERIES

Genesis of copyright and patent law

United States Constitution

Protecting Creative Works using overlapping forms of IP: Patents

◦Design

◦Utility

Trademarks

◦ Trade Dress

Copyright

Trade Secrets

Some factors used in deciding on an IP protection strategy:

Cost of protection

Benefits of protection

◦ Exclusivity

◦ Ability to generate revenue

Risks of not having protection

◦ no ability to cross license

◦ injunctions

Desired scope of protection

◦ Examine the likely forms of infringement

Personal beliefs

Example 1: Game of Thrones book

Design Patent Protects what an article looks like, not

what it does (that is a utility patent)

New, non-obvious, ornamental designs of an article of manufacture (tangible and virtual (e.g. GUI))

Term of 15 years

Possible protectable elements:

Gears, buckles, rope binding, circular motif in center, …

Compare prior art and patent. What is different is what is protectable.

Trademark Source identification - All about

consumer protection

HBO has over 25 trademark applications either pending or registered for Game Of Thrones

Word mark and design

Multiple classes (e.g., from lip balm to entertainment services)

Likelihood of confusion

Copyright protects original expressions of

ideas once fixed in a tangible medium

Text (screen play, novel, etc.)

Cover art and other illustrations

Logos as ornamental designs

Paper sculptures

protects against copying, distribution, display, derivative works, etc.

Khalisi but not queen who raised three dragons

Example 2: Microsoft Windows product

Design Patent Protects what an article looks like, not

what it does (that is a utility patent)

New, non-obvious, ornamental designs of an article of manufacture (tangible and virtual (e.g. GUI ))

Term of 15 years

Possible protectable elements:

animation, associated GUI, series of 2D slices

Compare prior art and patent. What is different is what is protectable.

Trademark Source identification - all about

consumer protection

Microsoft has over 40 trademark applications either pending or registered for “Windows”

Word mark, design, sounds (8), animation?

Multiple classes (e.g., from computer services to trade shows)

Likelihood of confusion

Trade Dress Limitations – functionality

Copyright protects original expressions of

ideas once fixed in a tangible medium

Software code, APIs(?)

Manuals

Logos as ornamental designs

copying, distribution, display, derivative works, etc.

Limitations – merger (functionality)

UNH INNOVATION’S CREATIVE WORKS SYMPOSIUM: Identify, Protect, Commercialize

There are many forms of Creative Works

There are many ways to protect and commercialize CWs

Today’s Topics:

◦ Copyright and Trademark Fundamentals

◦ Fair Use and Open Source

◦ The UNH IP Policy

◦ Deconstructing a Copyright (IP) License

◦ Commercialization of Creative Works

BE CREATIVE IN THE WAY YOU ENGAGE IN THE CREATIVE

ECONOMY…

BE A CREATOR.

BE A CONSUMER.

BE A SUPPORTER.

Thank you!Please feel free to contact me with any questions.

Kimberly A. W. Peaslee, Ph.D.kpeaslee@uptonhatfield.com

(603) 224-7791

This presentation is for informational purposes only and does not in any way establish an attorney-client relationship between you and any attorney involved in preparing and/or making this presentation. Nothing contained in this presentation constitutes legal advice. Please consult a licensed attorney for specific legal advice relating to any or all of the subjects discussed herein. All of the information contained herein is subject to change at any time. Upton & Hatfield, LLP shall not be held liable for any losses or damages arising from the use of any information contained in this presentation.