GLOSSARY OF TERMS
The following is a concise A-Z GLOSSARY of common terms used in solving legal problems for the creative arts and innovation community.
DISCLAIMER: The terms listed here are provided to website visitors for information-only purposes and the selection of these terms should not be construed as as legal advice. Reference to these terms does not establish an attorney-client relationship with California Lawyers for the Arts.
See “derivative work.”
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
Negotiated in 1994, TRIPS is an international agreement governing intellectual property rights (IPRs). Administered by the World Trade Organization (WTO), this treaty outlines minimum standards for certain types of IPRs for all members. There are currently 161 countries that are a contracting party to TRIPS.
Alternative dispute resolution (ADR)
This term, also known as “arbitration,” describes a process for two or more parties to resolve a dispute without involving the legal system or a trial. The process itself often includes mediation and collaboration as a way to reach a resolution.
A legal proceeding that is brought before a higher court and where a lower court’s decision is reevaluated.
When an artist samples, borrows or adapts, in whole or in part, from an original work to create another new, original work that incorporates the previous, third party content.
See “Alternative dispute resolution (ADR).”
This term, in copyright law, describes the design of a building that is expressed in a tangible, expressive medium, such as in architectural plans, drawings or in physical form (building, bridge, etc.).
This term, in copyright law, describes a painting, illustration, sculpture, drawing, photograph, illustration or other graphic or visual work that is expressed in a tangible, expressive medium..
The amount billed to a client for work done on his or her behalf. Attorney’s fees can be billed in several ways, including, but not limited to:
- A flat, fixed fee;
- An hourly rate;
- Statutory fees (for example, a percentage of a designated amount, such as the value of an estate);
- Contingent fees (for example, a percentage of the amount recovered in a case and no charge if there is lack of recovery);
- A mix of the aforementioned fee structures.
Berne Convention for the Protection of Literary and Artistic Works
First accepted in 1886, the Berne Convention is an international agreement governing copyright. Administered by the World Intellectual Property Organization (WIPO), this treaty creates provisions and guidelines around the minimum rights to be granted to artists. There are currently 168 countries that are signatories to the Berne Convention.
A type of “dilution,” blurring takes place when the use of a trademark, service mark or name creates confusion in the eyes of the public. By using the well-known mark, a third party is impairing the distinctive quality by association.
Breach of confidence
A claim that can be filed against an individual or company if private information, that was originally given in confidence, was then disclosed to the public. In order to be successful in this action, the claimant must prove that the disclosure was detrimental to the product, service or invention.
To transmit a signal or program through television, radio or similar means and that is intended for public consumption.
A mark that is owned by a commercial group (such as a trade association or similar). These marks are often treated like trademarks and are used by third parties (someone other than the rights holder) to note that certain goods or services conform to a fixed set of standards. Unlike collective marks, a group that holds the rights to a certification mark are required to allow any third party use so long as the certification standards are met.
These organizations, often representing specific countries or territories, have the authority to negotiate and execute licenses, along with collect royalties, for copyrighted works on behalf of its members.
A mark that can be used by third parties that are part of a group, organization or association that owns the rights to the mark. A collective mark is often used to identify a certain characteristic or quality represented by the organization. Unlike certification marks, a collective mark cannot be used unless one is a member of the organization.
A work where a number of contributions, each a separate and independent work, are compiled or assembled into a collective whole (for example, an anthology, encyclopedia or magazine). The new, collective work often qualifies for copyright protection in addition to each individual work. Also see “Compilations.”
When a work is used for commercial purposes, most often for some form of monetary compensation. A commercial use can often includes advertising, promotion and marketing even if direct revenue is not collected from the use.
A work that is undertaken by an individual at the request of a third party and usually with some form of monetary compensation, although this is not required. In most cases, a contract is used to stipulate the terms and conditions of the arrangement.
In the European Union (EU), designs that are novel and have individual character, can qualify for community design rights. There are both registered and unregistered forms of community designs. A registered community design has 25 years of protection, where an unregistered community design has only 3 years.
In the European Union (EU), a community trademark is one that is registered (or might be pending registration) for protection throughout the European Union (versus in an individual country). This is a unified system within the EU to help alleviate the expense and hardship of applying for trademark protection within each member state.
This term describes a type of advertising where a company shows, mentions or describes a direct competitor for the purpose of demonstrating the difference between similar products. Comparative advertising is usually used to show why one product is supposedly superior to another.
A variety of third party content, usually literary works or data, are selected and compiled in a way that qualifies as a new, original work. Also see “Collective works.”
This type of license, available in some countries, allows a third party to use an artist’s intellectual property (IP), under certain conditions, without permission. In these cases, under law, a third party can pay a fixed fee (or one negotiated under arbitration) for the intended use.
A program, in any media, designed by a computer, that contains a series of rules, instructions or statements that result in a computer performing a single or series of operations. This term may also be used to describe any recorded information (such as source code, formulas, etc.) that enable the creation, production or compilation of a computer program.
A communication, oral or written, that is intended to remain private or is given in confidence. Requirements of confidentiality can often be included under the terms of a contract between two or more parties.
An agreement between two or more parties that creates obligations that are enforceable under law.
A term to describe when a copyrighted work is first fixed in a way that can be reproduced, communicated or perceived.
A new work that is identical or extremely similar to another original work. Copying can also be used to describe a style or behavior that is imitated.
By law, a form of protection granted to an original, expressive work. Copyright grants the artist a body of exclusive right to protect the work from third party use without permission. In the United States, this includes most forms of still and rich media (for example, literature, drama, music, architecture, photos, illustrations, film and audio recordings), but excludes ideas, processes, procedures and some systems.
Copyright management information (CMI)
Information embedded or conveyed with a work about its rights holder or origins. CMI is most relevant in performances, media that can be displayed or digital works. This information can include unique identifiers (such as a copyright notice); information or identification of the author, performer or copyright holder; the title; terms and conditions of use; or, unique numerical identifiers.
An official document that denotes a work has been filed with the U.S. Copyright Office. Although registration is not required for a work to be protected by copyright, if the work is registered within three months of publication or prior to an action of infringement taking place, this official filing makes it easier for the rights holder to take legal action. The act of registration also makes it possible for the rights holder to recover lawyer fees and statutory damages without having to prove monetary harm.
Products that are imitations, forgeries or artificial replicas of other, protected products. Claims of trademark or patent infringement are often involved in cases of counterfeiting.
Creative Commons (CC)
A non-profit organization that has developed and supports a fixed set of online, standard licenses for use with digital media.
By using, registering or selling a domain name, a cybersquatter is attempting to benefit from the goodwill and reputation of another’s trademark.
The amount of compensation, in financial terms, owed to a claimant for a violation of third party intellectual property rights (IPRs). Damages can fall into two areas: compensatory, which is intended to provide remedy for an injury or loss, and punitive, which is intended to fine or punish the party who committed the violation.
A collection of individual works, material or data that are compiled or arranged in a specific way. Databases are often accessible by electronic means. See “Compilations” or “Collective works.”
A term used to describe making technically false or misleading statements that damage the reputation of another. Defamation can occur in writing, commonly known as libel, or verbally, known as slander. False light, which is not recognized in all states, is similar to defamation except that there are fewer required elements that a claimant must prove.
The individual or entity that is defending and protecting themselves against a claim from a third party (the party against whom the claim or suit is brought).
An expressive, original work that incorporates elements or pieces of a previously created work. The new work may quality for copyright protection depending on transformative, original nature.
A product that is created, in whole or in part, from its features. These features can include, in particular, the contours, colors, shapes, lines, textures or materials that are used within the product or for ornamentation purposes.
In the United States, ornamental designs that apply to functional items are granted legal protection as design patents (for example, jewelry, furniture, etc.). In some other countries, a registered design right may also be available.
Digital rights management (DRMs)
See “Technical protection measures (TPMs).”
The use of a trademark or recognizable name in a commercial setting that is sufficiently similar to another, well-known mark. This use, by association, is likely to reduce the public’s ability to recognize that the well-known mark is unique. See “Blurring” or “Tarnishment.”
A disclaimer is used when attempting to delimit the scope of obligations and/or rights that may be enforced by two or more parties in a legal or contractual relationship. The use of a disclaimer may be covered by a contract or others types of terms and conditions. A disclaimer is often used by third parties in an effort to limit exposure to possible damages in business relationships.
A claimant, in a dispute resolution, chooses one of two options. There is an adjudicative approach, where litigation or arbitration is used and third parties decide the final outcome (for example, legal action). There is also the consensual approach, where parties attempt to reach an agreement one-no-one or with the help of a neutral moderator (for example, mediation, negotiation or collaboration).
The rights granted to a copyright holder to make a work available to the public by selling, leasing, lending or selling the work. The rights holder is also able to prevent unauthorized copies of the work from being made or distributed. Once a copy is sold, a copyright holder can no longer control that copy. See “First sale doctrine.”
A term used to describe the address or location of an Internet site.
Although not clearly outlined in copyright law, a dramatic work is often understood to include any performed action that is presented to the public (such as a drama, play, musical, speech, etc.).
Duration of protection
The length of time that a work may be protected as intellectual property. The length of protection is dependent on the type of work (patent, trademark, copyright, etc.) along with the country or jurisdiction that has granted the rights.
When a work is used for non-commercial purposes, although uses can also sometimes include those that are commercial in nature. Editorial use often includes work in context or when used as a descriptive visual reference (such as to describe or show a specific place, person or event).
For patent eligibility, an inquiry is often made to the appropriate patent office to assess the utility and novelty of an invention. An examination is to evaluate whether there is interference with any other, previously patented, invention.
The rights granted to a copyright holder, including to reproduce, prepare derivative works, distribute copies, to perform or to display the work. This term can also describe a license that is granted by a rights holder to a third party that limits the artist (the rights holder) from offering the work to another party with the same previously granted, exclusive rights. Exclusive rights can be granular, such as limitations of a territory or language, or can be extremely broad, such as restricting any future use of the work.
Exhaustion of rights
See “First sale doctrine.”
In certain common law jurisdictions, fair dealing is a fixed list of exceptions and limitations to the exclusive rights of a copyright holder. These exceptions are less flexible than fair use and often include non-commercial private study or research; review, criticism or quotations; illustration for teaching purposes; news reporting; and at times, parody, pastiche and caricature.
In U.S. copyright law, the fair use doctrine provides certain exceptions and limitations to the exclusive rights of a copyright holder. These exceptions usually involved uses that are “transformative.” Examples may include commentary, criticism and parody. With a fair use defense, there are four factors that a court considers, which include:
- The character and purposes of the use (including commercial versus non-commercial);
- The nature of the copyrighted work;
- The substantiality and amount of the original work that was used (in relation to the whole);
- The impact upon the market (potential or actual and including value) of the original, copyrighted work.
When an individual’s identity, usually someone in the public eye, is associated with a service or product in a way that may mislead the public into believing that the individual approves or sponsors the service or product.
Making technically false or misleading statements that damage the reputation of another. False light, which is not recognized in all states, is similar to defamation except that there are fewer elements that need to be proven in a claim. Defamation can occur in writing, commonly known as libel, or verbally, which is known as slander.
First sale doctrine
Distribution rights are granted to a copyright holder to make a work available to the public by selling, leasing, lending or selling the work and preventing unauthorized copies of the work. This right is limited by the first sale doctrine, which means that, once a copy is sold, a rights holder can no longer control the 'physical' copy of the right (as opposed to the copyright, which is still retained).
When a work is set or stored in a tangible medium where it can be reproduced, communicated or perceived.
Freedom of expression
In the United States, this is the right of an individual to express themselves without censorship or restraint. Freedom of expression is protected under the U.S. Constitution’s 1st amendment.
When actions by a third party are done without malice or any intention to deceive.
Unlike vertical agreements, horizontal agreements are made between two or more competing companies who are at the same market level and release similar products, goods or services. These contracts often contain clauses around production, distribution, pricing and sharing of information which may result in violations of antitrust laws or similar.
A link on the Internet that points to a specific, fixed element within an online document (or the whole document).
Text on the Internet that contains hyperlinks.
Internet Corporation for Assigned Names and Numbers (ICANN)
A non-profit organization that is responsible for maintaining and coordinating the Domain Name System (DNS) of the Internet.
Infringement occurs when a copyrighted work is used without permission. This act infringes the exclusive rights of the copyright holder, which includes the right to distribute, display, reproduce, perform or make derivative copies of the work.
A court order that requires a third party to refrain from or to undertake specific act or acts. Failure to abide by an injunction may result in fines or other penalties.
A legal term that refers to original creations produced by an artist, such as inventions, artistic and literary works or names and designs. Intellectual property grants ownership and provides for protections as afforded by law. Common examples of intellectual property include copyright, trademarks, patents and registered designs.
Internet service provider (ISP)
See “Service provider.”
In patent law, a requirement that an invention, when being considered for a patent, should be non-obvious, or in other words, sufficiently inventive.
A work that is created by two or more authors (or artists). The intention is that the contributions of each artist are relatively equal, inseparable and are able to be blended into a united whole.
The authority that has, by law, the ability to grant judgments, make decisions, try cases and decide legal matters in certain types of cases or in specific geographic areas.
Making technically false or misleading statements, in writing, that damage the reputation of another. See “Defamation.”
Formal permission, usually in written form, from a rights holder to allow a third party to use a piece of intellectual property. This document can contain certain terms and conditions or restrictions and can grant exclusive or non-exclusive rights.
Limitation of liability
A clause or provision in a contract that places limitations on the amount of responsibility (usually financially) that a company or individual will agree to in the case that a lawsuit or claim is filed. In the case of infringement, it is the maximum amount that a third party will agree to be responsible for in the case of a legal claim.
A work that contains numbers, words or other symbols or indicia regardless of the media in which it is embodied (such as a book, film, manuscript or tape).
Concluded in 1891, the Madrid Agreement is an international agreement governing trademarks. Administered by the World Intellectual Property Organization (WIPO), the “Madrid System” allows a rights holder to protect a mark in more than one country by acquiring an international registration. There are currently 55 countries that are signatories to the Madrid Agreement.
A model release is a waiver of liability that is signed by an individual that appears in a work where the work shows that individual or their identifiable likeness. The document grants certain rights to the artist (and usually other third parties that may want to reproduce or show the work). The language of the model release stipulates the rights that are given and is often a requirement for public and/or commercial use of a work (although can often be omitted for in context or editorial use).
Recognized by certain countries, moral rights grant an artist the right to the integrity of a work, the right to attribution and the right to have the work published pseudonymously or anonymously if so desired.
An original composition, arrangement or a new version of a previously released composition or arrangement where new copyrightable elements have been added.
A license with non-exclusive rights allows the artist (the rights holder) to offer the work without limitation to another third party with the same rights as previously granted and with no additional restrictions. Unless otherwise stated, all licenses are considered non-exclusive.
In order to qualify for novelty, which is required to obtain a patent, the material elements of an invention cannot have been previously disclosed or shared in a publication (such as prior art) or in any previously existing technology.
In copyright, to qualify for originality, a work must be created through intellectual labor, cannot have been copied from another and has to contain a minimum amount of creativity.
Works that are under copyright, but where the copyright holder or the owner’s estate cannot be identified (or found).
Paris Convention for the Protection of Industrial Property
Adopted in 1883, the Paris Convention is an international agreement governing certain types of intellectual property (patents, trademarks, industrial designs, trade names, etc.). Administered by the World Intellectual Property Organization (WIPO), this agreement provides some common forms of protection (including national treatment, priority right and common rules). There are currently 176 countries that are signatories to the Paris Convention.
When an artist imitates, with humor or comedy, another artist’s original work. In the United States, parody, if using work that is under the copyright of another, may be protected by the fair use defense.
In some countries, the law of passing off protects a trademark holder from having a third party claim association or connection with their goods or services without permission. This goal is to prevent misrepresentation in the eyes of the public.
A patent grants a rights holder exclusive rights for a limited period of time to a product, process or invention. The duration of patent protection and the rights granted may depend on the country where the patent is held. A patent prevents third parties from using, selling, making, distributing or importing the work without the rights holder’s permission.
The qualities that an invention must have to receive a patent. Although the requirements may vary by country, this generally involves (1) that the subject matter is of a type that qualifies for a patent; (2) that the invention be new (novel); (2) that the patent not be obvious, and in some countries, involve an inventive step; and, (3) that the patent be of use to the public.
Peer-to-peer (P2P) software
A network of computers that communicate directly (versus through a centralized server). In most cases, this includes a group of two or more computers that are linked together by various methods.
The rights granted to an artist to perform a literary, musical, dramatic, choreographed, audio or motion work to the public. These rights do not extend to performances that are limited to family or small social circles.
See “Right of publicity.”
See “Counterfeiting” and “Infringement (copyright).”
The appropriation of another artist’s language, expressions or ideas (that were captured in a fixed, tangible form) and presenting this as one’s own, original work.
The individual or entity that initiates a claim or suit against another party.
With patents and trademarks, along with industrial designs, the right of priority is a limited in duration (and existing after the first filing of an application) right. The duration of protection is dependent on the type of rights being acquired and the country. Right of priority allows the individual filing the application to have time to file additional applications in other countries and use the original date of filing on these other applications.
The right of any individual to expect his or her private affairs (including living occupation, habits, date of birth, etc.) to be kept personal. Protection of privacy rights are dependent on jurisdiction and are distinct from the right of publicity. See “Right of publicity.”
A waiver of liability for photos that contain clearly identifiable buildings, places or third party property (such as automobiles, graffiti or murals, etc.). The document grants certain rights to the artist (and usually other third parties that may want to reproduce or show the work). A release is recommended for any photos of property that may be used for commercial purposes and protects the artist against any legal claims that may be raised by the property owner.
In the case of patents, public disclosure is any form of non-confidential communication, written or oral, where an invention is made available to the public. This may result in the immediate loss of patentability depending on the type of disclosure and the country.
Public display rights
The rights granted to an artist to display a literary, musical, dramatic, choreographed, graphic or pictorial work to the public. These rights do not extend to public displays that are limited to family or small social circles.
A work is in the public domain if the artist no longer retains an exclusive right over the work. The work may have been voluntarily released into the public domain by the artist, have been created by an entity that does not retain rights (such as certain U.S. federal government agencies) or the copyright to the work has expired. Works that are in the public domain can be freely shared, copied and reproduced by the public.
To distribute copies of a work to the public. This may include distributing copies, renting, leasing or lending.
When two or more countries agree to extend to citizens of another nation the same rights that exist for their own citizens.
In the case of infringement where a claim is filed, the monetary damages that may be awarded by a court to help give relief to the rights holder.
A right, granted under copyright law, that allows only the rights holder to make reproductions or copies of a work. This includes forms of copying that result in “substantial or similar” works and may not be restricted to the work in its entirety.
Right of publicity
Also called personality rights, an individual has the right to control the use of his or her image, name, likeness or other certain recognizable identifiable elements from commercial use without permission. It should be noted that this is distinct from right of privacy. See “Personality rights.”
Right to be forgotten
The ability of an individual, especially in the online environment, to assert autonomy and be represented without past stigmatisms. The right to be forgotten is being used [primarily in the European Union (EU)] to request the removal of negative Internet listings when searching under an individual name.
Rome Convention on the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations
First accepted in 1961, the Rome Convention is an international agreement governing and protecting rights around phonograms, performances and broadcasts. Administered by the World Intellectual Property Organization (WIPO), this treaty addresses both the artists and distributors of these works. There are currently 92 countries that are signatories to the Rome Convention.
Monetary compensation, usually as a fixed amount per sale or as a percentage of the gross or net profits, that a rights holder receives for each use of a work. The amount of royalties is usually determined by contract and often allows third parties to license, manufacture or distribute the work.
Internet service providers (ISPs) are allowed to qualify for safe harbor provisions in certain countries. These safe harbors protect the the ISP from liability if specific requirements are met. Most importantly, the ISP must have adopted and implemented a policy that allows for the removal of infringing content.
Often applied to music, sampling is the act of taking a portion of a sound recording and reusing this content in a new work.
Scénes á faire
French for “scenes to be made,” these are characters, elements of a story, language or other parts of a narrative that may be indispensable but are not protected by copyright. Even though the expression and/or application are protected, these types of generic theme-based elements are often necessary parts of any genre story.
A computer program used to locate websites, content and visual media on the Internet. Content is usually searched by keywords, indexed and then results are returned via a visual interface.
When a third party is indirectly responsible for another entity or individual’s directly infringing acts. The infringement, in some way, has been contributed to or facilitated by the third party.
A phrase, word, symbol and/or design that distinguishes or identifies the source of services as deriving from one entity versus another.
A provider of network access or online services (including routing, transmission or providing of connections for digital communications). A company only legally qualifies as a service provider if the material that is being requested is selected by the user and is not modified between delivery and receipt.
Also called substantial similarity, this is the standard (measure) that most courts use to decide whether a third party has infringed another’s copyright.
A term used to describe making technically false or misleading statements, verbally, that damage the reputation of another. See “Defamation.”
Statute of limitations
The period of time that a rights holder has to file a lawsuit. In most cases, once this period of time has passed, the legal claim is no longer valid. The duration is dependent on the type of legal claim and the country where the lawsuit is being filed.
In cases of infringement, a copyright holder may be able to receive compensation per work (statutory damages). These types of damages can be significantly larger than actual damages or profits.
When the use of a trademark or name harms, by association, a well-known mark (creates a negative or damaging perception in the eyes of the public). See “Dilution.”
Technical protection measures (TPMs)
Technical tools, used by a rights holder, to restrict access or use of a copyrighted work. Often used with software, discs and other digitally distributed media.
A particular geographical area. For legal matters, this may include an area identified in a contract or a territory that is part of a country, but is not recognized in full partnership with that country’s affairs.
A form of intellectual property, trade dress can protect a product’s physical or visual appearance (especially if these characteristics are used to represent the source of the product to the public). Significant factors may include the shape, size, design or color of the product itself or the product’s labels, packaging or other distinctive aesthetic elements.
Confidential information, usually conveyed in a business setting, that may give a company or individual a competitive advantage. Protection of trade secrets, depending on the country, can be covered under unfair competition, previous case law or national provisions.
A phrase, word, symbol and/or design that distinguishes or identifies the source of goods as deriving from one entity versus another.
A standard of trademark protection used to measure both trademarks and service marks. The most unusual marks, those with coined or fanciful terms and those that are suggestive or arbitrary qualify as distinctive marks. These types of marks are recognized by consumers as a source indicator of certain products, goods or services.
In U.S. copyright law, the fair use doctrine provides certain exceptions and limitations to the exclusive rights of a copyright holder. In this case, a transformative use may include whether the copyrighted work was changed to create new meaning or expression or whether there was an increased value to the original work by creating new insights, aesthetics or understanding for the public.
See “Inventive step.”
Unlike horizontal agreements, this is an agreement made between two or more competing companies or businesses who are at a different market level in a supply chain. Less contentious than horizontal agreements, these contracts can also contain clauses around production, distribution, pricing and sharing of information and may result in violations of certain antitrust laws or similar.
Trademarks and service marks, due to their reputation and regardless of registration, that are protected from third parties’ imitating, translating or reproducing that mark without permission. The protection, like standard mark protection, is usually fixed around set services or goods.
World Intellectual Property Organization (WIPO)
Started in 1967, WIPO is an international body that was developed to promote and encourage the protection of intellectual property on an international level. WIPO currently has 188 member states and administers 26 international agreement and treaties.
WIPO Copyright Treaty
An agreement developed under the Berne Convention, the WIPO Copyright Treaty is an international agreement governing the rights of artists and authors in the digital environment and includes protection for both computer program and databases. There are currently 93 countries that are signatories to the Berne Convention.
World Trade Organization (WTO)
Started in 1995, WTO is an international body that was developed to regulate trade between nations. WTO administers the TRIPS agreement, which impacts international intellectual property rights, and currently has 161 member states.