Bespoke IP

The Fall shopping season has begun. While the rest of us buy clothes, the fashion industry is shopping for new IP protection, reports the NY Times. Fashion designs have very little protection under copyright, but the newly-revised Design Piracy Prohibition Act aims to change that, prohibiting copying of the overall appearance of clothing, handbags, belts and eyeglass frames. This specialized form of copyright would be for a term of three years.

In contrast to the designs themselves, fashion logos and designer names are already protected, by trademark law. In fact, the WSJ recently reported that designer Joseph Abboud can no longer use his own name as a trademark - he sold it. After two years out of the business, he's back, but under a new brand name ("jaz"), and in competition with the owners of his own name.

BTW, the customized form of protection proposed by the Design Piracy Prohibition Act serves as a reminder that there are many forms of IP, each with different (but sometimes overlapping) subject matter. A short list includes:

• Copyrights: Works of authorship, such as books, movies, music, software, art, characters.
• Trademarks: Logos, brand names, slogans, book and movie titles (sometimes), characters.
• Trade Dress: Overall look of a product or service.
• Patents: Inventions, processes, business processes (incl. Internet), software, designs.
• Trade Secrets: Confidential information with economic value
• Moral Rights ("Droit Moral"): Creative rights, such as the right to receive credit (attribution) or not have a work destroyed; limited applicability in U.S.
• Mask Works: Semiconductor chip layouts
• Designs: vessel hulls (boats) and fashion designs (if the proposed bill is enacted)
  

Facebook Faceoff

The dispute over who owns the Facebook IP turns out to be a three-way affair, perhaps like some of the hook-ups on the site itself.

In 2004, the founders of of a site called ConnectU sued Facebook, alleging copyright infringement and theft of trade secrets. The ConnectU founders - Harvard students at the time - claim that they conceived the idea of a collegiate social networking site, and asked another student, Mark Zuckerberg, to write the source code.

Zuckerberg, the suit alleges, began to write code, but then jumped ship and used the code - and the idea - to start what is now Facebook. ConnectU foundered, while Facebook prospered.

Today, the NY Times reports, another Harvard student - Aaron Greenberg - has appeared, with emails between himself and Zuckerberg that allegedly prove he created an on-line facebook before Zuckerberg/Facebook or ConnectU. Greenberg says Zuckerberg lifted his ideas. He's bitter, but he's not suing. (At least, not yet.)

Who's on top in this three-way tussle? Allegedly, there was no contract between ConnectU and Zuckerberg, and Zuckerberg was not a formal employee of ConnectU. If true, ConnectU may find its suit disconnected, because without a contract or an employment relationship, trade secrets are generally not protectible and the programmer owns the copyright.

Likewise, Greenberg apparently has no legal claim, because his ideas weren't secret - his system was public - and because he doesn't claim anyone stole his code.

The lesson for ConnectU: get it in writing. Without a Non-Disclosure and Invention Assignment Agreement, the other guy gets the girl (or guy) while you stay home alone playing video games. The lesson for Greenberg: first doesn't always win. And the lesson for the rest of us? See a lawyer before you start bringing in partners and collaborators. Class dismissed.