Marketing law Essay Example

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    Law
  • Document type:
    Assignment
  • Level:
    Undergraduate
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Marketing Law 5

Marketing Law

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Marketing Law

In this modern day and age, it is imperative that people understand rules and regulation that govern issues regarding their innovations should be handled. For this reason, it is important to understand what Intellectual Property Rights are and why they are necessary in this competitive world. Intellectual Property (IP) refers to any activity in form of invention (creation of mind), artistic work, literally, symbols, names, designs and images whose exclusive rights are recognized (World Intellectual Property Organization,2001). Intellectual Property Rights (IPR) on the other hand refers to the rights given to the owner and the creator of a work that is because of human creativity. Intellectual property Rights can be divided into two groups: industrial property, which refers to trademarks, patents, industrial designs and Copyright, which refers to artistic work such as drawing, sculptures, and architectural designs, musical works, novels, films, plays, and poem (David, 2006). In the scenario given regarding Mercurio, all the cases mentioned revolve around Copyright. This paper will analyze the scenario, including the intellectual property rights arising, and how they can be protected by law.

The scenario given talks of Mercurio who is an international artist, he has even won an international acclaim for his sculptures and paintings. In the course of his work as an artist, Mercurio visited Africa where he came up with a very brilliant idea of producing sculpture in a shape of a tiger. He develops wooden sculpture in the shape of a stretching tiger and names it Tiger Stretch. From the legal perspective, he had exclusive Intellectual Property Rights regarding this sculpture. This is because his creation falls under artistic works that is protected by intellectual property rights. Intellectual property relates to items of knowledge or information that can be incorporated into tangible objects, just as Mercurio converted his brilliant idea into a stretching tiger. Mercurio work being artistic in nature falls under intellectual property rights known as copyright. This refers to the exclusive rights given to the creator of an original work for a given period. This term may also be used to mean the act that with reference to literary or artistic creation can only be made by the originator of the idea or with his authorization (William, 2010). These rights give Mercurio specific rights to his creation that can only be exercised by him such as the right to prohibit distorted reproduction.

Copyright also ensures that any original creation cannot be copied, adapted, or distributed without authorization from the copyright owner for a given period after which the work is said to have entered the public domain. Copyright law protects form of expression of ideas but not the ideas themselves. This means that copyright law protects the creativity exhibited by an individual in the choice of words, colors, and shapes (Stephen, 2008). In this scenario, Mercurio came up with a sculpture in a shape of a stretching tiger. This shape is therefore protected by law. This means that Mercurio have exclusive rights over the shape of his sculpture. Consequently, he can sue Petunia for her actions. We are told that Petunia is a poor young artist getting lessons from Mercurio, without Mercurio knowledge, he make a copy of the tiger drawing. This in itself is copyright infringement. A copyright infringer refers to any individual who without the authorization of the copyright owner exercises any of the copyright exclusive rights. In this case, Petunia not only make a copy of Mercurio tiger drawing but also goes ahead to make a number of wooden sculptures that are identical to the Tiger Stretch. He sells his sculptures at unbelievably law price as compared to Mercurio’s sculptures.

In the case above, Mercurio is the plaintiff and Petunia the defendant. The term plaintiff refers to an individual who initiate a lawsuit before a court of law, also known as the complainant. A defendant is an individual or a party required to answer the plaintiff in a lawsuit before a court of law. Mercurio can sue Petunia in a court of law for infringing copyright infringement as mentioned above. In a court of law, copyright infringement is normally determined without regarding the state or intent of the infringers’ mind. Petunia made unauthorized copy of Mercurio tiger drawing which constitute an infringement. In such a case, Mercurio would be required by a court to prove ownership of the copyrighted work in order to prevail over the defendant. Mostly direct evidence is the best in such a case (IT Law Wiki, 2009).

In the second scenario, Mercurio makes 700 copies of Everest article about contemporary art and scanning a copy of the same and posting it in his website. This article contained a review of his work and the author (Everest) had praised his work describing his tiger sculpture as incredibly elegant. Mercurio did this without the authorization from Everest, thereby infringing copyright laws. The law demands that only copyright owners should have exclusive statutory rights to exercise control over the reproduction of copies and other exploitation of the work for a given period. This gives Everest (plaintiff) the right to sue Mercurio (defendant) for copyright infringement. If this happened, Mercurio would be in trouble because of direct evidence that can be readily available. In the third scenario Mercurio, also make a very big mistake of selling Leon’s manuscript after he forgot it in his studio. He cunningly changed some of the text in that scrip including the location and the names. All this he did in order to gain more publicity. Unfortunately, he did not change the manuscript-underlying story, which is protected by intellectual property rights. This gives Leon (plaintiff) exclusive rights regarding the manuscript and hence he can lawfully sue Mercurio (defendant) for copyright infringement.

In the last scenario, Ivan who is a young talented artist starts producing tiger sculptures almost similar to those of Mercurio Tiger Stretch sculpture. Mercurio believes that he stole the design from Everest article on contemporary art. If Mercurio (plaintiff) can be able to prove his claims, he can sue Ivan (defendant) for copyright infringement.

In all the above scenarios, there are different civil remedies that can be taken. In all the scenarios, the plaintiff may seek permanent or preliminary injunction to prevent infringement. Permanent injunction is usually granted if the court establish a liability or a threat of continuing infringement. The plaintiff may also decide to recover actual damages and profits of the infringer. In addition, if the plaintiff can be able to prove that the infringement was willful, the court may decide to increase the statutory damages. An infringement is said to be willful if the infringer knew the activity constituted infringement and disregarded that possibility. The defense for such cases may be innocent infringement if the defendants can show that they were not aware and had no reason to believe that what they were doing constituted infringement (IT Law Wiki, 2009).

References

David Vaver, Intellectual Property Rights: Critical Concepts in Law, Volume 1 (2006).

IT Law Wiki, Copyright Infringement, (2009)

<http://itlaw.wikia.com/wiki/Copyright_infringement > at 20 September 2011

Stephen Fishman, The Copyright Handbook: What Every Writer Needs to Know (2008)

William Caenegem, Intellectual Property Law in Australia (2010) 152

World Intellectual Property Organization, Understanding Copyright and Related Rights (2001) <

http://www.wipo.int/freepublications/en/intproperty/909/wipo_pub_909.html> > at 20 September 2011