Digital Media Law

Key Concepts in this Chapter

Four Main Types of IP

Copyright

• Protects original works of authorship fixed in a tangible medium (e.g., books, music, films, photographs, software).
• Grants exclusive rights to reproduce, distribute, perform, display, and create derivative works.
• Arises automatically upon creation — registration strengthens enforcement.
• Limited duration (life of the author + 70 years in most cases).
• Exceptions: Fair use, compulsory licenses.

Trademark

• Protects words, symbols, names, and designs that identify the source of goods or services.
• Goal: Prevent consumer confusion and protect brand identity.
• Can last indefinitely if in use and renewed.
• Includes related protections like trade dress and service marks.

Patent

• Protects inventions and processes that are new, useful, and non-obvious.

• Utility patents (20 years), design patents (15 years), and plant patents.

• Must apply with the USPTO; requires detailed disclosure of the invention.

Trade Secret

• Protects valuable, confidential business information (e.g., formulas, methods, customer lists).

• Protection lasts as long as the information remains secret and reasonable measures are taken to keep it confidential.

Why IP Matters in Media

• Controls how creative content is distributed, monetized, and licensed.

• Prevents unauthorized copying, branding misuse, and exploitation of inventions.

• Encourages investment in creative and technological innovation.

Digital Challenges

• File sharing, streaming, and user-generated content complicate enforcement.

• Global distribution requires navigating multiple countries’ IP laws.

• Online platforms face both DMCA safe harbors and takedown obligations.

Enforcement & Remedies

• Civil remedies: injunctions, damages, attorney’s fees.
• Criminal penalties for willful infringement in some contexts.
• Importance of contracts and licensing agreements in managing IP rights.

Test Your Knowledge

1. Copyright protection subsists in ‘original works of authorship’ that are fixed in a tangible medium. Which two elements are required?

 Novelty and nonobviousness

 Publication and registration

 Secondary meaning and distinctiveness

 Originality and fixation

2. Which statement about ownership is MOST accurate?

 A ‘work made for hire’ requires either an employee acting within scope or a qualifying commissioned work with a signed WMFH agreement

 All works created by independent contractors are automatically ‘works made for hire’

 Employers automatically own employees’ patents without any agreement

 All trademarks are owned by advertising agencies who design them

3. Lanham Act §43(a) primarily addresses:

 Patent claim construction

 Copyright registration formalities

 Unregistered trademarks and false designation of origin/false advertising

 DMCA anti‑circumvention

4. Which federal statute created a federal civil cause of action for trade secret misappropriation?

 Defend Trade Secrets Act (DTSA) of 2016

 America Invents Act (AIA)

 Digital Millennium Copyright Act (DMCA)

 Lanham Act

5. In copyright law, independent creation is:

 Available only for factual works

 Only a partial defense to damages

 Not a defense—copying is presumed

 A complete defense because there is no copying

6. A trade secret generally must derive independent economic value from not being generally known and be the subject of:

 Reasonable measures to maintain secrecy

 Copyright notice

 Publication in a technical journal

 Government registration

7. For an anonymous/pseudonymous work or work made for hire created today, the basic federal copyright term is:

 Life of the author + 70 years

 95 years from publication or 120 years from creation, whichever expires first

 75 years from publication

 50 years from creation

8. Which is one of the author’s exclusive rights under 17 U.S.C. §106?

 Right to create derivative works

 Right to obtain a patent

 Right to seize counterfeit goods at customs

 Right to register a domain name

9. Which of the following is NOT a requirement for a U.S. utility patent?

 Nonobviousness

 Novelty

 Originality

 Utility

10. The idea–expression dichotomy means copyright protects:

 Facts and short phrases

 Only the expression of ideas, not the ideas themselves

 Ideas and procedures themselves

 Computer hardware designs

11. ‘Nominative fair use’ allows use of another’s mark when:

 The user owns a similar domain name

 The user is a nonprofit

 The product cannot be readily identified without the mark, only so much as necessary is used, and there is no suggestion of sponsorship

 The user wants to parody the mark

12. Which of the following is generally NOT protectable as a trademark?

 A fanciful coinage

 A suggestive term

 A generic term for the product itself

 An arbitrary term

13. Trademark dilution (blurring or tarnishment) protects:

 Only registered marks with ®

 Any local mark regardless of fame

 Only famous marks against uses that impair distinctiveness or harm reputation even without confusion

 Only noncommercial uses

14. The core test for trademark infringement in the U.S. is:

 Copyright substantial similarity

 Likelihood of confusion

 Actual dilution

 Strict liability

15. Since the America Invents Act (2011/2013), the U.S. operates primarily under which priority system?

 First‑to‑invent

 First‑inventor‑to‑file

 First‑to‑publish

 First‑to‑market

16. A design patent primarily protects:

 The functional aspects of an invention

 A secret formula’s confidentiality

 The ornamental design of an article of manufacture

 A company’s brand identity

17. Which best states Factor 1 of the fair use analysis?

 Purpose and character of the use (e.g., transformative vs. commercial)

 Nature of the work (creative vs. factual)

 Amount and substantiality used

 Effect on the potential market

18. The ® symbol may lawfully be used in the U.S. only when:

 A mark is federally registered with the USPTO

 A state registration exists

 The owner has common‑law rights

 A mark application has been filed

19. Which safe harbor can shield hosting platforms for user‑uploaded infringing content if they expeditiously remove upon proper notice and lack actual knowledge?

 DMCA §512(c)

 Section 230(c)(1)

 FTC Act §5

 Lanham Act §43(a)

20. Which category of mark is typically the STRONGEST and inherently distinctive for trademark protection?

 Descriptive (without secondary meaning)

 Generic

 Suggestive

 Fanciful/coinage

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Ideas for Future Study

• Copyright in the Digital Age: How do streaming and social media change enforcement strategies?
• Trademark & Social Media: What happens when brands are impersonated online?
• Patent Policy: Should software and business methods be patentable?
• Trade Secret Protection: How do companies protect confidential information in a remote-work world?
• International IP: How do treaties like the Berne Convention and TRIPS influence global media rights?

Parting Thought

Intellectual property law is a balancing act — rewarding creativity and innovation while ensuring the public can benefit from new ideas and works. Do you think the current balance serves the public well in the digital era, or is it time to rethink the rules?