Copyright Public Domain Class of 2021

    Beverly A. Berneman

    In Brief:  On January 1, 2021, a large inventory of vintage content went into the public domain.

    In 1976, the Copyright Act was completely overhauled. The system of protecting copyrights changed giving longer protection and making it easier to claim a copyright. But pretty much all of the pre-1976 works were going to be treated differently. So the Copyright Act grandfathered in and extended the protection for these pre-1976 works. Originally, works created in 1923 or before were still in the public domain. On January 1, 2021, any works created from 1925 went into the public domain.

    Those works include (this list is by means exhaustive):

    Literary Works:

    · F. Scott Fitzgerald, The Great Gatsby
    · Theodore Dreiser, An American Tragedy
    · Alain Locke, The New Negro (collecting works from writers including W.E.B. du Bois, Countee
    Cullen, Langston Hughes, Zora Neale Hurston, Claude McKay, Jean Toomer, and Eric Walrond)
    · Aldous Huxley, Those Barren Leaves
    · W. Somerset Maugham, The Painted Veil
    · Dorothy Scarborough, On the Trail of Negro Folk-Songs
    · Edith Wharton, The Writing of Fiction


    · “Always,” by Irving Berlin
    · “Sweet Georgia Brown,” by Ben Bernie, Maceo Pinkard and Kenneth Casey
    · Works by Gertrude “Ma” Rainey, the “Mother of the Blues,” including “Army Camp Harmony Blues”
    (with Hooks Tilford) and “Shave ‘Em Dry” (with William Jackson)
    · “Looking for a Boy,” by George and Ira Gershwin (from the musical Tip-Toes)
    · “Manhattan,” by Lorenz Hart and Richard Rodgers
    · “Yes Sir, That’s My Baby,” by Gus Kahn and Walter Donaldson
    · Works by “Jelly Roll” Morton, including “Shreveport Stomp” and “Milenberg Joys” (with Paul
    Mares, Walter Melrose and Leon Roppolo)
    · Works by Duke Ellington, including “Jig Walk” and “With You” (both with Joseph “Jo” Trent)
    · Works by “Fats” Waller, including “Anybody Here Want To Try My Cabbage” (with Andy Razaf),
    “Ball and Chain Blues” (with Andy Razaf), and “Campmeetin’ Stomp**”**


    · Harold Lloyd’s The Freshman
    · The Merry Widow
    · Stella Dallas (silent version)
    · Buster Keaton’s Go West
    · Lovers in Quarantine
    · Pretty Ladies

    WHY YOU SHOULD KNOW THIS.  You can now enjoy and use these works without having to pay a license fee.


    That’s the Way the Pocky Crumbles

    Beverly A. Berneman

    In Brief:   Trade dress protects the “look”. The “look” has to be non-functional and create a connection with the consumer. When the “look” is purely functional or for manufacturing convenience, like the design of a cookie, it’s not protectable as trade dress.

    Pocky is a cookie stick that comes in several flavors including chocolate or strawberry. The cookie was first produced in Japan in 1966. Pocky’s manufacturer, Ezaki Glico Co., Ltd. can boast of world-wide popularity for its cookie sticks.

    Lotte International America Co., decided to get into the cookie stick game. It came out with its own version called Pepero. There’s no question that the Pepero cookie stick is identical to the Pocky cookie stick.

    Ezaki Glico sued Lotte International for trade dress infringement in New Jersey district court. 

    The Third Circuit Court of Appeals ruled that the cookie sticks were not protectable as trade dress. U.S. Circuit Judge Stephanos Bibas, writing for the panel stated that: "Trade dress is limited to features that identify a product's source.” The Court held that the shape of the cookie stemmed from a utilitarian advantage; not from an attempt to serve as distinctive trademark. "The claimed features are not arbitrary or ornamental flourishes that serve only to identify Ezaki Glico as the source," "The design makes Pocky more useful as a snack, and its advantages make Pocky more appealing to consumers."

    Ezaki Glico argued that invalid trade dress should be limited to essential product designs. The court rejected this argument.  "So long as the design improves cost, quality, or the like, it cannot be protected as trade dress.”

    WHY YOU SHOULD KNOW THIS. Goldfish crackers are protected trade dress. You can’t really separate the shape of the crackers from the cracker itself. So why wouldn’t the same philosophy apply to Pocky cookies? The key is in whether the design is essential to the function of the product. A goldfish design is not essential to a cracker. But the design of the cookie sticks can only be in the shape of a stick.


    The 2020 Crippys – The IP Criminals Hall of Fame

    Beverly A. Berneman

    In Brief:  In past years, we have awarded Crippys to those who achieved infamy by committing Intellectual Property crimes over the last year. Here are the winners of the 2020 Crippys.

    SECOND RUNNER UP CRIPPY: Goes to Anthony Levandowski. Anthony co-founded Google’s self-driving car program. He left Google and founded his own business that was later acquired by Uber. Google accused Anthony and Uber of stealing its trade secrets. Google accused Anthony of downloading confidential Google files that detailed the self-driving car program. Uber fired Anthony when he refused to cooperate with Uber’s internal investigation. Uber and Google settled. But the civil suit sparked an investigation that resulted in a 33 count grand jury indictment against Anthony. Anthony pled guilty to one count of trade secret theft. Considering the massive billion dollar scale of the crime, the judge sentenced Anthony to 18 months in prison and ordered Anthony to pay of $700,000 in restitution. From this we learn that a civil suit can launch a federal criminal indictment.

    FIRST RUNNER UP CRIPPY: Goes to Hao Zhang, a professor at China’s Tianjin University. Zhang and five other people were charged with economic espionage, theft of trade secrets and conspiracy for attempting to steal trade secrets related to wireless technology for a film bulk acoustic resonator. Zhang and his co-conspirators engaged in a complex conspiracy to bring the trade secrets to China. After a four-day bench trial, Zhang was found guilty and sentenced to 18 months in jail and a fine of $476,835.00. From this we learn that being a professor doesn’t mean that you are too smart to avoid criminal prosecution.

    GRAND PRIZE CRIPPY: Goes to the group of cyber-criminals who are exploiting the Coronavirus outbreak. These tireless hackers are using vulnerabilities in IT systems that have been stressed by massive remote working and learning. They have caused a spike in data security breaches that has put IT professionals on high alert. These intrepid criminals send millions of phishing emails posing as the Centers for Disease Control and Prevention and the World Health Organization to get people to click on links for more information about the Coronavirus. Then they steal private information and spread computer viruses and ransomware. Nothing like exploiting pandemic stress for nefarious purposes. Strangely, no one is stepping up to accept this award.

    WHY YOU SHOULD KNOW THIS:  As we look forward to a better year than the last one, extra vigilance is going to be needed to keep IP criminals at bay.