Module 10
Creativity & Society
Experience 17
1
Experience 17
Society can protect your Creativity
One of the many amazing achievements of the Founding
Fathers was to recognize how this new country would
protect and reward its creative persons. This was done
by the construction of the U.S. Patent system. The
Venetians originated the concept of patents and the
British adopted the idea of Letters Patent in 1623. The
U.S. system begun in 1790 and now in place, is
considered to be the best in the world. Only three
patents were granted that year. Now about 350,000
applications are submitted annually. As President
Abraham Lincoln observed “The patent system added the
fuel of interest to the fire of genius”. Interestingly, the
comedian Jay Leno on his Election Day show pointed out
that Lincoln himself was also an inventor … of the penny,
the town car and logs for example !
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It is very important that you understand the positives
and negatives of the patent system.
Firstly, you should be clear what a patent actually is, in
general. You can regard it as a written legal contract
between yourself and the American People represented
by the US Patent Office. You have created something of
value that you are going to share with, and later transfer
to, the American People. In exchange for the receipt of
this knowledge, the US society grants to you a Monopoly
to benefit financially from your knowledge for 20 years
in the USA. Note that the Monopoly applies only within
the USA. This means that no entity can make or sell
your creation within the USA. It is possible to obtain
similar rights in other societies elsewhere, but these
rights are granted by other countries and have to be
applied for separately.
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Since the founding of the USA, more than 9 million
patents have been awarded. About 50,000 issue each
year. Each one had to meet the criteria of being
(a) new (b) useful and (c) not obvious to one skilled-inthe-art.
Most of these 9 million patents have expired and can
now be used by anyone without payment of any kind.
The first was awarded on July 13, 1790 to S. Hopkins of
Vermont and deals with a process for making soap from
wood ash. The patent was signed by President George
Washington, Secretary of State Thomas Jefferson and
Attorney General Edmund Randolph. So, if you want to
start your own company but don’t have an idea you only
need to go back twenty years to 1997 and all those
original ideas created before that year are now available
for exploitation.
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Since patents decline in value as their expiration date
approaches, probably all of those up to 1998 can also be
considered for commercialization. By the time your
fledgling company is ready to roll, patents granted
around 1998 will be essentially worthless.
Many patents granted in the past are quite amusing and
may have merit nowadays as the basis for children’s toys.
You should make connection with the world of patents
because patents are the ongoing record of the world’s
creativity. Recall that when the ideas embodied in these
nine million patent applications were first examined all of
the patented ideas were NEW, USEFUL and NOT
OBVIOUS TO ONE SKILLED IN THE ART !
5
Two of the books on our reading list deal with patented
inventions and you should enjoy scanning the following;
Totally Absurd Inventions.
http://www.totallyabsurd.com/toiletsnorkel.htm
The books, America’s Goofiest Patents, by Ted Van
Cleave, Andrews McMeel Publishing, as well as
Absolutely Mad Inventions, by A.E. Brown & H.A.
Jeffcott, Jr., Dover Publications, Inc., 180 Varick St.,
New York, NY, 1970, are also worth reading.
Inventions Necessity is Not The Mother Of, S.V.
Jones, Quadrangle/The New York Times Book Co. , 10
East 53rd. St., New York, NY, 1973, is also amusing.
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Societies in many countries recognize the potential
benefits of a patent system in theory, but not in practice.
A patent is only of value if it can be asserted successfully
in a Court of Law. In the USA, it is extremely foolish to
disregard an issued US Patent because the holder of the
patent can seek legal redress which can be very costly to
the infringer. As a legal contract, a patent has a very
precise form.
Go to USPTO.gov on internet to see patent examples.
It is usually written by a patent attorney or a patent
agent. This can be quite expensive. It is therefore
desirable to write the first draft yourself before you go to
see an attorney. This will reduce your costs. Let’s see
how to do this. The first section of the patent is a listing
of all articles and other patents which you compile, that
are possibly related to your creation. The length of this
list immediately indicates how unique your invention is.
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A long list shows that many other people have made
inventions in the same general area. This list helps the
People’s representative, who is called the Patent
Examiner, check in their files for other patents that you
may have overlooked.
Following this list, there is a short section under the
heading Abstract. This summarizes the invention in
general terms.
Thereafter, there is a long Background section that
tells the American Public what was the situation in the
world up to the point when you came on the scene.
Then you explain your invention and how it is better
than anything that existed before you started to tackle
this particular problem. In this section it is vital not to
try to impress the Patent Examiner with your powers of
deduction or reasoning abilities. This is a mistake
scientists and engineers often make.
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If you proudly emphasize that your solution was arrived
at by careful reasoning you may run into trouble. The
Patent Examiner may then respond that anyone skilled in
the art could have reached the same conclusion by
similar orthodox reasoning and therefore your invention
does not meet the third requirement for patentability
specified above.
It is therefore preferable for the purpose of obtaining a
patent not to give explanations of how you believe the
invention works. The liberal use of such phrases as
“unexpectedly” and “surprisingly” are helpful in avoiding
rejection of your application on the basis of “obviousness
to one skilled in the art”.
The next section of the application consists of Roman
numeral numbered examples of specific instructions of
how to carry out the invention so that any of the
American People can do this 20 years later, in the most
straightforward way.
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The first example must therefore be your best way of
performing the invention. In other societies this need not
be the case, and the best mode of the invention may be
hidden among a bunch of not so good examples.
German patents sometimes have the reputation of being
less than straightforward.
Finally, after the examples comes the vital heart of the
patent; the claims. There are usually several. The first is
the broadest claim. It is followed by as many as ten or
twenty other claims of increasing narrowness. You can
regard the first claim as equivalent to a fence that a
pioneer in the West might have put around his house so
as to enclose a large amount of land and to say “I claim
all that is inside this fence”. But then the pioneer might
say to himself “If I am too greedy, a neighbor or Native
Americans might come along and dispute the amount of
land I have claimed.
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“Perhaps I should put up another shorter fence, inside
the first, to claim a smaller area”. This would correspond
to the second claim of the patent. If this sequence of
thoughts is continued, eventually the pioneer might have
a fence enclosing only the acre of land immediately
around his house.
This would correspond to the last claim of the patent,
but clearly would be more defensible than the first claim
because it is less comprehensive. Your goal in
negotiating the claims with the Patent Examiner is to get
your first claim to be as broad as possible. The Patent
Examiner’s negotiation goal is to make your first claim
as narrow as possible. Ultimately, you and the Patent
Examiner reach an agreement as to the scope of the
claims so that you are rewarded for your invention but
that the American People are not paying too high a price
for what they are receiving in exchange for the 20 year
monopoly.
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This is a good place to point out that the most revered
scientist of modern times worked for some time as a
Patent Examiner in the Swiss Patent Office. That was
Albert Einstein. Although initially Einstein could not
obtain a position as a professor or scientist (because
none of his professors would recommend him !), one
can argue that the only job he could get as Patent
Examiner, was the perfect one for him. Why ?
Because he spent his days sitting at a desk reading
about other people’s creative accomplishments in their
patent applications. This must have given him lots of
time to think. Remember how hard it is to find time to
think ! Anyone looking at Einstein sitting at his desk,
apparently doing nothing, would not know if he was
mentally considering the novelty of a patent application
before him, or speculating about riding on a beam of
light through time.
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In contrast, if he had been a young Assistant Professor
at a university he would have been very busy organizing
and teaching introductory Physics courses and might
never had the time to think the thoughts and ask himself
the questions that revolutionized the world. So Einstein’s
great contributions were conceived while he was a Swiss
Patent Examiner negotiating with inventors.
Maybe you should consider a career in society as a
Patent Examiner in Washington, DC, or in some other
country ! On-the-job training is provided and Patent
Examiners are well paid. Former Patent Examiners are in
keen demand later for employment by major companies
because of their experience in the Patent Office.
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In the past, all of this negotiation with the Patent
Examiner to arrive at the issued U.S. patent had to be
conducted by someone approved to appear before the
Patent Office. This is usually a patent lawyer or a patent
agent. The cost of their time is considerable so that it is
expensive to obtain a patent. You can try to keep the
cost down by doing as much of the paperwork as
possible and acting as an assistant to the patent
attorney.
However, nowadays it is apparently possible for the
inventor to file patents online without legal assistance.
The book Filing Patents Online by Sarfaraz K. Niazi,
CRC Press, Boca Raton, FL, 2003. provides detailed
instructions on how to do this.
Another source is Patent it Yourself by David
Pressman, Nolo, Berkeley CA, 2005.
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There are organizations that offer to evaluate the merit
and patentability of your ideas as a prelude to selling the
idea for you. However, these are frequently so ethically
questionable that the U.S. Federal Government has
actually published a pamphlet warning of the dangers of
dealing with them.
Check website “Reading Assignments” to see pamphlet.
Patents are classified into three categories.
The most valuable category is the so-called Utility Patent
that we have been discussing. This is awarded for any
new useful process, a new machine or a new composition
of matter.
A less dramatic category is the so-called Design Patent.
Such a patent lasts only for 14 years and protects the
ornamental design of some manufactured article.
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Only the appearance is protected, not the structure or
utility. It is not costly to obtain a Design Patent and the
filing fees are lower than for the Utility Patent category.
The third category of patents deals with any distinct and
new variety of an asexually reproduced plant, including
cultivated mutants, hybrids, and newly found seedlings,
other than a tuber-propagated plant or a plant found in
an uncultivated state. If you created a Black Tulip (you
might want to read the novel by Alexandre Dumas) you
would apply for a Plant Patent.
At this point you may ask why does the US Society make
it so difficult and expensive to set up this contract that
we call a US Patent ?
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One answer is that the issuance of a US Patent confers
upon the awardee the right to maintain a monopoly in
the US for many years that may be financially, extremely
valuable. Accordingly, the documents defining the
extent of these rights must be legally precise to perhaps
withstand attack at some future time. Such attacks to
contest claims or to invalidate issued patents do occur
quite frequently.
When an individual member of society does not wish to
protect his creation by a US Patent there are other
actions that can be taken. Firstly, the likelihood that
someone may come along to copy your invention may
be deemed small. Or, the creation may depend upon
some factor that can be kept secret. The best example
of this is the formula for the soft drink, Coca-Cola. The
formula is not patented and anyone is free to make and
sell a similar or even identical beverage.
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However, since the precise composition is a carefully
guarded secret of the Coca-Cola Corp. it would not be
easy to create an identical drink.
In the past, some employees of the Coca-Cola Corp.
allegedly stole formulae information and marketing plans
and tried to sell them to the competitor that
manufactures Pepsi Cola. Of course, trade secrets are
property like diamonds, gold and silver, and their theft is
a crime. Therefore, protecting your invention as a trade
secret is certainly an option. Nonetheless, it is
somewhat difficult for an individual member of society to
build a new company upon something that must be a
carefully kept secret. It is also hard to sell a secret
without telling the potential buyer what exactly is being
purchased.
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These obstacles are avoided when you are the owner of
an issued patent that describes precisely what the
creation is and what are the allowed claims. Of course,
the question of the substantial cost of the patent still
remains as a grave impediment to the individual member
of society. This cost will be often in the range of several
thousands of dollars.
For a time, the US Government provided a means of
resolving this dilemma through its Document Disclosure
program. In a nutshell, in this program, you were able to
write up your invention in a simple form, without the
assistance of a patent attorney or patent agent, and
send it in to the Dept. of Commerce (Box DD,
Commissioner for Patents Washington, DC 20231)
together with a check for $10.
Unfortunately this Program has been discontinued and is
only mentioned here in case it is reintroduced later.
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The description was receipted and preserved on file for
two years. During that period of time, you could contact
potential investors or buyers, confident that you had a
federal record of your invention to establish your
ownership of your conception. If you did not succeed
during that 2 year period in finding buyers or backers,
there was nothing to prevent you sending in the same
Disclosure Document again with a new date and another
$10 check.
Nowadays about all you can do is to file a provisional
patent and that only lasts for one year. Within that year
a regular patent must be filed to maintain protection of
your idea and keep the original filing date. A provisional
patent for an individual costs about $160.
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You may have heard of the notion of protecting your
invention by sending yourself a registered letter
containing a description of your invention that you keep
unopened after delivery. It is doubtful that the alleged
advantage of this procedure is much more than an old
wives’ tale. Your original conception in your creativity
idea diary, duly witnessed and dated, together with a
record of continued diligence in innovation in your
Creativity Diary would be far superior in any future legal
dispute as to the priority of inventorship.
Now go to the US Patent Office website www.uspto.gov
and write a paragraph on issued patents (with their
numbers and dates) related to your Midterm idea.
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Foreign Patents
Patents can be obtained by filing applications in any
country that you consider might be a large market for
your creation. As in the USA, the patent grants a period
of monopoly to the inventor. However, if the legal system
of the country does not rigorously enforce patents it is not
worth the considerable expense of obtaining a patent.
The pirating of computer software, movies and music
recordings is very difficult to combat, particularly in Asia,
and legal protection does not seem to be effective there.
In Europe, there is now a simplified mechanism for filing
in countries within the European Union. The examination
is conducted only once and is valid for all EU member
countries. After the general EU approval is granted,
specific versions in the languages of each country
(German, French, Spanish etc.) have to be submitted to
each country where the monopoly is sought.
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The system developed in Japan is worthy of specific
mention because of a special irritating variation. There it
is possible to file an application that is published without
examination by the Patent Examiner. This application
need never be carried beyond the preliminary stage.
However, because it constitutes a recognized official
record it can be cited as prior art against someone else’s
US Patent Application. Originally, Japanese society
emphasized innovation and the abundance of highquality Japanese-made cars, motorcycles, cameras and
electronic gear in the world’s markets is evidence of the
success of this approach. Nonetheless, it is not so easy
to find a comparable level of accomplishment in
creativity in Japanese society.
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The education system in Asian countries does not
emphasize creativity and there was a Seattle newspaper
article entitled “Creativity Lacking in Chinese
Schools”. When China and India more fully grasp the
crucial importance of creativity in their societies the world
will undergo amazing changes. The unemployment level
for young people, like yourselves, in many countries,
including currently protesting Iran, is close to 30%.
An exception to this apparent lack of creativity is the fact
that a Japanese inventor, Yoshido Nakamatsu, holds some
2300 patents. This is the world record number for the
number of patents held by an individual. It is intriguing to
analyze this record mathematically with respect to time.
Assume Nakamatsu has been inventing for 23 or 46 years.
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Then he has been creating about 100 or 50 patentable
inventions per year ! That is, about 2 or 1 inventions
per week for nearly a quarter or half a century, without
a break. What a wonderful record of creative
accomplishment !
It would be interesting to determine how many of the
Nakamatsu patents were also filed in the USA and if
there are any other names on the patents. Remember,
you must sign an affidavit with a US Patent application
stating that you are the true inventor. Has Nakamatsu
never had a colleague who has co-invented something ?
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Trademarks and Trade Names.
Another interaction of US society with creativity comes
into play with Trademarks and Trade Names. This
section ties into our earlier discussion of the importance
of names. Trade Names are the designations that
companies employ to describe themselves in doing
business. Microsoft is an example of a Trade Name.
Google and Ford are also Trade Names. If you had a
company, it would have to have a name, and it is
challenging to try to create that designation.
Make a list of 10 companies you know and comment on
what the Trade Name of each tells you.
Trademarks, in contrast, are the names of the goods or
services that the company sells. So in the phrase “Du
Pont Teflon” the word “Du Pont” is the Trade Name
while the word “Teflon” is the Trademark of the fluorinecontaining plastic made by the Du Pont Company.
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You will have perhaps encountered this plastic as a nonstick coating for cooking utensils.
Trademarks should be followed by the letter R enclosed
in a tiny circle to show that it is registered. So you
should never see “Teflon” without that little encircled R.
Watch out for examples in your everyday life. It is vital
to take care to protect an excellent trademark for it can
easily pass into common usage and lose its uniqueness.
An example of this is provided by the word Nylon. This
word was coined by the Du Pont Company, perhaps
from a combination of New York and London. In any
event, the use of Nylon without the encircled R became
common. The word then lost its capitalization, became
nylon with a small “n” and passed into everyday use and
into dictionaries. Thus, the value of Nylon as an
exclusive trademark vanished. Can you recall another
example of the loss of a trademark by failure to attach
the encircled R ?
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Besides words, Trademarks can also be designs (the
Nike Swoosh), phrases (See the USA in your Chevrolet),
slogans (Fly the friendly skies, Mountain fresh) or
symbols (IBM, iPod, Apple) or combinations thereof.
You should always consider officially registering your
trademark either on the Federal or State level at the
earliest possible moment to preserve it as your unique
property.
To do this, you must be actually using your trademark or
have the intent to use it in interstate commerce.
Trademark Law protects your trademark either on goods
or services from use by other persons or entities.
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However, the US Patent & Trademark Office may
refuse registration on statutory grounds if the
trademark sought;
1.
is merely ornamentation and does not function as a
trademark to identify the goods or services coming
from a particular source.
2.
is immoral, scandalous or deceptive.
3.
may disparage or falsely suggest a connection with
persons, institutions, beliefs or national symbols, or
bring them into contempt or disrepute.
4.
consists of, or simulates the flag or coat of arms or
other insignia of the United States , or a State or
municipality, or any foreign nation.
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5.
6.
7.
8.
9.
is the name, portrait or signature of a particular living
individual unless he has given written consent ; or is
the same signature or portrait of a deceased President
of the United States during the life of his widow, unless
she has given her consent.
so resembles a mark already registered in the USPTO
as to be likely, when used on or in connection with the
goods of the applicant, to cause confusion, or to cause
mistake, or to deceive.
is merely descriptive, or deceptively misdescriptive of
the goods or services,
is primarily geographically descriptive or deceptively
misdescriptive of the goods or services of the
applicant.
is primarily merely a surname.
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Other manifestations of Trademarks are associated with
services such as Fedex, and with certifications
exemplified by ASTM (American Society of Testing
Materials) or UL (Underwriters Laboratories), and with
collective marks indicating membership in an
organization such as USGA (United States Golf
Association) or ACS (American Chemical Society).
Another aspect of Trademarks is represented by the
word LOGO.
The Vancouver 2010 Winter Olympics logo called
“Ilanaaq” can be seen in the next slide. The 2018 Winter
Olympics held in South Korea also had to create a logo.
Another example of the need for ideas.
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Trade Names
In some situations Trademarks are the same as trade
names. Coca-Cola is a prime example. Both the
product and the company have the same name. The
identification of all companies are recognized trade
names. For example, Boeing is the trade name of the
company that makes aircraft. Each state requires that
companies have licenses to do business and that the
company trade name be registered. Even without the
formal existence of your company there are definite
benefits to federal registration.
Some of these are:
1.
The filing date of the application for registration
becomes the date of the first use of the trademark in
commerce and establishes nationwide priority of use.
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2.
The right to sue in Federal court for trademark
infringement.
3.
The right to have US Customs stop the importation of
goods bearing an infringing trademark.
4.
A basis for filing trademark applications in foreign
countries.
The last item listed brings up the question of the value
of trademarks in other societies. This recalls a situation
of some years ago where an individual registered, in
the tiny Principality of Monaco, some of the most
notable trademarks of US companies as his own
property. The US companies had not bothered to
register their trademarks in tiny Monaco.
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These companies were then forced to buy their own
trademarks from that individual in order to comply with
the regulations of the European Union.
A more recent example from Russia is provided by the
news from Moscow that Starbucks Corp. regained the
right to use its trademark logo in Russia after a long
struggle with a Russian lawyer, Sergei Zuykov, who had
the logo annulled for lack of use in Russia. He then
registered the logo and asked $600,000 from Starbucks
for its release.
Starbucks was not so successful in South Korea with a
competitor. There a brand name of Starpreya was
adjudged not to be too alike the name Starbucks. The
South Korean company logo is the face of a woman
within a circle of green supposedly the northern Europe’s
goddess Preya. See next slide.
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36
These might be used as examples of criminal or sharp
practice creativity in societies.
The point here is that you should be aware of the value
of trademarks and logos in many societies.
Starbucks was also involved in a dispute about the
naming of specific types of coffee. Here we have the
importance of creative names again ! A full page ad in a
Seattle newspaper noted that Starbucks is apparently
using Ethiopian names (Sidamo, Harar and Yirgacheffe)
and that Oxfam together with the Ethiopian Government,
are complaining that Starbucks is somehow preventing
the Ethiopian coffee growers from securing trademarks
based on these Ethiopian names. The first coffee was
grown in Ethiopia in the year 850 !
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Copyright
Societies also have instituted systems to reward
creativity that has a strong artistic component. These
systems award the creators the right to benefit
exclusively from their accomplishments. In the United
States the system is administered by the USPTO and you
should go to their website
http://lcweb.loc.gov/copyright/ to get up-to-date details
because there have been recent changes that older
books won’t cover. Copyright will be important in your
creative life if you write a song, article, book, sermon,
computer program or play, or make a building, map,
cartoon, sculpture or movie, or take a unique
photograph. Copyright is a form of protection provided
by the laws of the US (and other societies) to the
authors of “original works of authorship”.
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It is vital to know that the protection is available to both
published and unpublished work.
In a nutshell, copyright means that no one can use your
creation without your permission. Copyright begins as
soon as the creation is in fixed form. So a song you sing
in the shower is not copyrighted until it written down or
recorded. So again you see how important your
Creativity Diary will be.
No publication or registration or other action in the
Copyright Office is now required to secure copyright.
Nonetheless, there is a Registration Procedure which is
worth doing if you believe your photo, for example, is
going to be reproduced worldwide. A number of years
ago a UW student before taking this class took a
wonderful snapshot of the singer Janis Joplin at a
concert the evening before she ended her life.
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This is the photo of her that is repeatedly used in
articles and books but the student received no
financial benefit because he had not taken the
necessary steps to establish that he was the
creator of that image.
To register your work, send to the Library of
Congress, Copyright Office, 101 Independence
Ave. SE, Washington, DC 20559-6000 the
following in one package
1.
A properly completed application form
2.
A check for $45 (the filing fee)
3.
Two copies of the work
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You can do all this yourself; the employment of an
attorney is not required.
When a work is published, it may bear a notice of
copyright to identify the year of publication and the
name of the copyright owner and to inform the public
that the work is protected by copyright.
The notice for visually perceptible copies should contain
three elements. These are a circle with the letter C
inside it; the year of first publication; and the name of
the owner of the copyright.
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For recordings, the letter P inside a circle replaces the
letter C and the three elements are attached to the
phono record so as to be visible. As far as you are
concerned, the copyrights on your artistic creations
last for your lifetime and 70 years thereafter.
However, there is no such thing as an international
copyright. Notwithstanding, most countries do offer
protection under certain conditions and these have
been greatly simplified by international treaties and
conventions.
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Assignments
Respond to the sections of the text high-lighted
in Green within the Experience into Canvas.
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Purchase answer to see full
attachment