Intellectual Property protects creations made by the intellect of people. There are many different kinds of intellectual property. First, copyright, which protects original works. Second, patents, which protects inventions. Third, Trademarks, which protects names and symbols.

Ultimately, the takeaway is that intellectual property is a first-in-time approach in the modern era. The first to create is the one who claims ownership. Additionally, many people have the right to use intellectual property, but there are rules on who is allowed to recreate property. Thus, creators have an incentive to continue creating.


The goal of copyright is to protect creators so they feel free to produce works that benefit the public good. Generally, the rule is that the copyright extends through the life of the creator plus 70 years.

To establish a copyright, three elements must be met:

  1. Originality – Not copied
  2. Work of authorship
    1. Literary works
    2. music
    3. dramas
    4. pantomimes and dances
    5. pictures, graphics, and sculptures
    6. motion pictures
    7. sound recordings
    8. architectural works
  3. Fixation – created in a physical form.

Additional Notes

Protects original works of authorship. Facts cannot be copyrighted. The purpose is to promote the progress of science and useful arts for limited times.

This is set out in U.S. Constitution Art. 1 § 8.

Eldred v. Ashcroft

537 U.S. 186 (2003).

Eldred is the plaintiff.


Is the Copyright Term Extension Action Constitutional?


Congress has the authority to determine the “Limited Times” of a copyright.


CTEA is a valid statute.


Prior to the CTEA, copyright lasted for the life of the creator plus 20 years. After that, the works went into the public domain (free to use by all). Disney and others were worried that their creative works would no longer be theirs (Mickey Mouse) and lobbied extensively to extend the term. So the CTEA extended the term from 20 years after death to 70 years.

Eldred struggled with this extension. He was attempting to create an online library of works in the public domain but was unable to because the extension pushed the copyright well into the future. So, he challenged the Constitutionality of the statute saying that it violated the founders intent.


The majority says that Congress has the power to determine what the term of a copyright is. As a result, the law is fine.

However, the dissent argues that the purpose of the copyright term is to increase artistic creativity. The extension inhibits that creativity for the sake of prolonging large companies opportunity to claim money for the estate. Additionally, there is no incentive for the extension outside of those large companies. That is, less than 1% of creative works continues to make money after 75 years of creation. As a result, it is not fulfilling the purpose of creation, lining the pockets of large companies, while providing no monetary benefit for the other creator estates.

Additional Notes

“To 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.”

U.S. Const. Art. 1 § 8

So, the debate in this is really the policy arguments to progress the science and the arts v. Congress’s authority to determine the “limited times.”

The Fair Use Defense

Worry about infringement can be mitigated by the fair use defense. 17 U.S.C. § 107 states the fair use doctrine as such:

“Use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

There are several factors to consider:

  • Purpose of the use
  • Nature of the copyrighted work
  • The amount of copyright used
  • The effect of market value for use of the copyright

Additional Notes

Copyright owners do not need to register or give notice of copyright, just as long as the elements have been established. However, people are still allowed to use materials and can use the fair use defense if debated.

Harper & Row, Publishers, Inc. v. Nation Enterprises

471 U.S. 539 (1985).

Harper and Row are the plaintiffs. They won at trial, lost during the appeal, and made this appeal.


Can Nation use the fair use defense?


The work is in fair use depending on the answers to the factors below:

  • Purpose of the use
  • Nature of the copyrighted work
  • The amount and substance of copyright used
  • The effect of market value for use of the copyright

Was not fair use. Reversed and remanded.


After President Ford’s time in office, he made a contract with Harper and Row to publish a memoir related to the tapes of Watergate. To prepare for publishing, Harper and Row made a deal with Times that they could release an article about the book and be the first ones to portray any part of the book. They paid $12,500 up front and promised to pay the remainder $12,500 unless this part of the deal was not upheld.

Some time before Times has the article scheduled to release, an individual went to Nations with a manuscript of the book. Nations took parts of the book and quickly published them to be the first ones. As a result, Times withdrew their payment of $12,500 and Harper and Row sued nations for that amount.


The court explores each of the elements above.

For the purpose of the use, it was found that the nature was to participate in news reporting. This is a feature of the fair use defense. However, Nations’ intended purpose was to “scoop” and ultimately be the first person to report on this finding. Thus, their goal was to impede on the copyright owner’s interest.

Second, the nature of the copyrighted work. Here, it is more than a historical representation. The work shows the emotion of the writer and hopes to capture his expression throughout the book.

Third, the amount of the portion used. The amount here was quite limited, comprised of 300 words. However, the substance of the portion was significant, capturing the most expressive parts of the book.

Finally, the effect on the market. Here, the market effect is very easy to follow. The article was published and Times withdrew their article. Additionally times refused to pay the $12,500 because of this effect.

Additional Notes

The defense by Nations was that the content used was “fair use.”

Each of the factors are weighed by the reasonableness.

Purpose of the Use

The argument that benefitted Nations is that they used the material for news reporting. This is a very important aspect. However, this was used for a commercial purpose, taken in bad faith. Thus, the purpose here leans against Nations.

Nature of the Copyrighted Work

Here, this is a nonfiction work. Fiction is typically more protected than nonfiction works. The reason for that is because this involves historical “facts”, truth, and information. This cuts in favor of Nations.

Amount and Substance of Use

Here, nations had only used about 1% of the actual book. However, because it was the most important part of the book (“it was the heart”), this cuts against Nations.

Effect on the Market

Because the market was adversely affected (less publishing, loss of profit from the deal) there was a large effect on the market.

Ultimately, the compilation of these factors determined that the copyright had been infringed.


A patent is an invention and protects the inventors rights to exclude others from making, selling, or using the patented item.

There are five elements to a patent.

  • Patentable subject matter – Process, machine, manufacture, composition of matter. You are unable to patent laws of nature (such as math).
  • Utility – Needs to be useful (even if it is only minimal)
  • Novelty – Must be new
  • Nonobviousness – Unique from what a normal person would think of.
  • Enablement – Detailed to enable someone to make and use the item.

These are often met, but later invalidated during litigation.

The takeaways are the elements, that the patent only lasts for 20 years, and how fragile patents really are (could be easily challenged).


A trademark is used to identify goods that are distinguished by “word, name, symbol, or device.” A service mark is the same thing except for services instead of goods. The purpose to protect trademarks is not for societal growth, but instead focuses on societal protection (from poor products).

The elements for a trademark include:

  • Distinctiveness – Separates the mark from others products
  • Non-functionality – If it is functional, it is a patent. Trademarks are different because they do not affect the use, cost, or product quality. A product is functional if it has a use or purpose.
  • First use in trade – First to use is the first to claim within that market. The same trademark can be used by several companies as long as they are not in the same trade.

Additional Notes

While patents and copyright has the goal of increasing the arts and sciences, trademarks are there to protect the consumer from poor products.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 1L Spring, Property

Will Laursen

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