Re: Copyright or Trademark a Program?

On Tue, Mar 09, 1999, Lakota Ramsey <lakotar[_at_]hotmail.com> wrote:
>
> Hello. I was curious about the intelletual property rights involved with
> a seminar program. For instance, if one creates the format of a program
> (e.g. a one-on-one interview with a leader in the entertainment field)
> as well as the title of the program can one copyright protect those
> "creations"? It was my understanding that phrases (like the title of a
> seminar) can only be trademarked. Is there a compelling reason it can
> not be copyrighted instead? I was also under the impression that in
> order to invoke Federal copyright protection the good/service must be in
> interstate commerce. Would the creator of this seminar have to conduct
> the seminar in other states? Would teleconferencing qualify? Would the
> creator have to sell copies of the seminar in other states to qualify?
>
> I am new to this list but I am very impressed with the quality of
> discussion and generosity of time.

A program "format" is an idea, and cannot be protected by copyright. There have been instances, however, in which trade dress law has been invoked to protect program formats. See, e.g., TOY MFRS. OF AMERICA, INC. v. HELMSLEY-SPEAR, INC., 960 F. Supp. 673 (SDNY 1997) (the process of registering participants for an annual convention and trade show was part of the show's owners' protectable trade dress).

A program title cannot be protected by copyright, because, as a matter of policy, titles and short phrases are not afforded copyright protection. They can, of course, be trademarks (actually service marks); and the names of continuing seminar programs and workshops generally are the service marks of their users -- but their protectability depends upon their distinctiveness and whether the user has sought registration or is relying on geographically-limited common law rights.

> I was also under the impression that in order to invoke Federal
> copyright protection the good/service must be in interstate
> commerce. Would the creator of this seminar have to conduct the
> seminar in other states? Would teleconferencing qualify? Would
> the creator have to sell copies of the seminar in other states to
> qualify?

Here you are confusing copyright with trademark. Copyright, by statute, is governed solely by federal law, regardless of where or how the protected works are published (if at all). Trademark, on the other hand, is a doctrine of common law in addition to the statutory law of individual states and the federal Lanham Act. In order to be registered on the federal trademark register, and to be afforded the benefits of such registration, a mark must be used in interstate commerce. Courts have differed in their interpretations of what qualifies as use in interstate commerce; but as a general rule the mark must be used in connection with the actual providing (not the mere promotion or advertising) of the services, either between two or more states or between the US and a foreign country. Holding the seminar in more than one state would almost certainly qualify; so would the holding of a teleconference, in which participants in several different states benefitted from the instantaneous providing of the services. But even if the mark were not in use in connection with services provided in interstate commerce, the user of the mark may still have common law rights within a given state or a limited geographic area.

This is, of course, not legal advice and not intended to establish an attorney-client relationship, since it is based on a general question, not on disclosure of the specific facts. Whatever this dispute is about, it sounds as if you should consult with a trademark lawyer familiar with the state and common law principles in your specific area.

Bob Cumbow
cumbr[_at_]perkinscoie.com
206-583-8566 Received on Thu Mar 11 1999 - 19:22:40 GMT