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Ask the Lawyer
Your questions are answered by Tom Frederikse, of Clintons, London UK. Contact Tom. Question What are moral rights? Answer Moral Rights are the rights of an Author to be credited as the author of his work. This should not be confused with an author's right to claim ownership of his work. Of course any author can tell anyone that he is the author of his own work, but when the Author sells on or licenses his work to a third party, his Moral Rights ensure that such third party must reasonably credit the Author. This is obviously quite a big problem for certain industries - such as advertising - where it is not practical to credit the author within the published advertisement. Therefore, it is standard that the author provides a waiver of his moral rights in order to allow the licensor to use the work without providing a written credit. Please note that this in no way prohibits or restricts the author from telling people that the work was created by him or her or claiming "paternity" in any other way, such as in his or her portfolio, once the work has been published in mass media. Question Am I correct that an idea to be submitted to you does not need to be patented already? Answer You are correct. An "invention" can be patented but an "idea" cannot. This is because an "idea" is an intellectual creation, whilst an "invention" is a device, a method or a process which must also be "useful" or "industrially applicable". So, instead, of seeking a patent for an "idea", an author of an expressed idea must rely on copyright for protection. Therefore: a poem, a book, an artwork, a film or a sound recording can be protected only by copyright, but a machine, a device or a method can be protected only by obtaining a patent. A patent must be applied for in each separate country (and a registration must be obtained before protection is given), but copyright protection immediately arises in a created work as soon as it has been written, drawn or recorded (and no registration is needed for copyright protection anywhere in the world). It is, however, helpful to have some kind of evidence to show that you were the first to create your Idea and, in this way, you do register an Idea as yours when you enter it on OpenAd. The process of submitting an Idea requires you to declare full authorship and ownership of the Idea and all elements within it. The Idea, as presented on OpenAd.net, will be considered as "created and owned by you" from the day it is submitted on the website. Question I have closed the company that in whose name I have been submitting ideas - I'd now like to transfer those ideas onto my new company - how can I do that? Answer Click for a Template "IP Assignment" for use by Authors who either set-up a company through which to trade (and therefore would need to assign the IP from oneself to the newly founded company) or by Authors who have traded as a company but are intending to set-up a new company or buy or merge with a new company through which to trade (and therefore would need to assign the IP from the old company to the new company). Please enter the new company as the “Assignee” and the former company as the “Assignor”; or, if you’re a company was formely a freelacer account and you have now set up your own company, please enter your new company as the “Assignee” and yourself as the “Assignor”. You need to fill out the Template Assignment and send it to us hardcopy in order for the transfer to take effect. Please note that this is not intended - and is not necessary - for a company which is simply changing its name (so long as the name change is done properly through the relevant national "Companies House" and the company itself is not changing its identity in any other way). In that case, you need to send us a copy of the certificate of change of trade name or personal name. Question Can a company use excerpts of pop song lyrics in its adverts? Answer Possibly. There is no copyright infringement unless the original work has been "substantially" copied. So, if you were to use short and generic phrases, it would not be considered acceptable, while longer and more recognizable copying would constitute infigement. For example: the phrase "I can't get you off my mind" appears in may pop songs (including the song of that name by Hank Williams) yet this phrase is not owned by any pop star - and indeed I would bet that this phrase will again appear in a "new" pop song within the next few months. On the other hand, a slightly longer phrase, such as "Yesterday all my troubles seemed so far away, now it looks as though they're here to stay" may be more troublesome because it probably is more "substantial". It should also be noted that, aside from copyright problems, the use of pop song words might bring up trade mark concerns if the use of the words causes the audience to think there is a link between the advertiser and the group or songwriter. This was seen recently in the case of Apple Computers v. Apple (Records) Corps, in which the use of the word APPLE was alleged to cause confusion the minds of the consumer. Question Can I use a quote from Pushkin's Eugene Onegin in my idea? Answer Yes. All copyright protection in the original works of Pushkin (including his poem "Eugene Onegin") ceased in the years following his death in 1837. Even with today's long copyright period of 70 years after death, such protection for Pushkin's works would have ended in 1907. Please note, however, that copyright in a particular published version of his poem (that is, the typographical setting, a new arrangement or an adaptation) may still be protected if it was published within the last 50 years, or arranged or adapted by a living person (or someone who died within the last 70 years). In general, however, quotes from literary and poetry works will be an infringement of copyright if the quote constitutes a "substantial" quantity of the work. As with lyrics from songs, a few words or part of a line of a poem is unlikely to be "substantial", though the choice of words may be important. For example, an inconsequential or commonly-used line such as "Roses are red, violets are blue" will not be a problem, whilst "Shall I compare thee to a summer's day?" is commonly associated with a certain poem/poet (though in this case there is no problem because Shakespeare has been dead for more than 70 years). It should also be noted that, aside from copyright problems, the use of quotes from a book or poem might bring up trade mark concerns (or "passing off") if the use of the words causes the audience to think there is a link between the advertiser and the author or poet. Examples of this include "They f*** you up, your Mum and Dad" (which is commonly associated with Philip Larkin, as it comes from his famous poem "This Be The Verse"), and "That's what Tiggers do best" (which is commonly associated with A.A. Milne, as it comes from his famous book "The House at Pooh Corner"). |
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