How Long Are Copyrights Protected? Not So “Elementary, My Dear Watson!”

Copyrights, trademarks, trade secrets and patents are “intellectual property,” as compared with “real property” or real estate –land and buildings – or “personal property” – other physical property. A company’s intellectual property is often its most valuable asset. Thus of course, ensuring maximum protection for that property is a critical concern for such business.

A recent court decision from Chicago reaffirms the sometimes not-so-obvious rules on a copyright’s life span. Author Leslie Klinger, who according to his website is one of the foremost authorities on Sherlock Holmes, sued the Conan Doyle Estate, Ltd. in February, 2013. Mr. Klinger asserted that certain elements of two Sherlock Holmes characters – Holmes and Dr. Watson – created by Sir Arthur Conan Doyle were no longer protected by copyright. If correct, Klinger would of course no longer have to obtain the estate’s permission to utilize those elements in his own published writings.

The judge’s ruling was split. Elements based on character development, dialogues, settings, and other story aspects in the pre-1923 books and stories are freely usable because they were published before 1923 and thus are now in the public domain. The judge found that other elements published in 1923 or after were still subject to copyright, thus requiring Klinger or anyone else to obtain a license from the estate (and to pay any required fees) in order to include them in published works.

As long as a creative work is subject to copyright, the author or anyone to whom he/she assigns the copyright – has the exclusive right to reproduce, publish, distribute, publicly display, or create derivative works from that work. Anyone else wishing to do so must receive permission from the author or other owner of the copyright. However, while creative works – writings, songs, music, computer code, screenplays, sculptures, paintings, photographs, and more – are born with copyrighted status from the moment of creation, the legally protected term of that copyright does not always start at that moment.

The length of protection depends on where the work was created, as each country has its own law with one or more international treaties thus affecting protections of that work in other nations, as well as when the work is “published.”

For original works created in the U.S. the law has changed over the years and is somewhat complex. For many works published after January 1, 1978, the copyright lasts for life of the author plus 70 years. However, if an individual created a work for an employer or under a particular contract that qualifies it as a “work made for hire,” copyright extends for 95 years. Further, if any work was published prior to 1978, the rule is 95 years from when the work was first published, not the date of creation. This is the “95 year rule” applied in the Conan Doyle Estate case.

To strengthen the protection for copyrights in the United States over their life span, it is a good idea to register them with the U.S. Copyright Office. For help in understanding these issues and protecting your copyrights, contact the firm’s “of counsel” attorney, Helena Kobrin.

How Long Are Copyrights Protected? Not So “Elementary, My Dear Watson!”

Copyrights, trademarks, trade secrets and patents are “intellectual property,” as compared with “real property” or real estate –land and buildings – or “personal property” – other physical property. A company’s intellectual property is often its most valuable asset. Thus of course, ensuring maximum protection for that property is a critical concern for such business.

A recent court decision from Chicago reaffirms the sometimes not-so-obvious rules on a copyright’s life span. Author Leslie Klinger, who according to his website is one of the foremost authorities on Sherlock Holmes, sued the Conan Doyle Estate, Ltd. in February, 2013. Mr. Klinger asserted that certain elements of two Sherlock Holmes characters – Holmes and Dr. Watson – created by Sir Arthur Conan Doyle were no longer protected by copyright. If correct, Klinger would of course no longer have to obtain the estate’s permission to utilize those elements in his own published writings.

The judge’s ruling was split. Elements based on character development, dialogues, settings, and other story aspects in the pre-1923 books and stories are freely usable because they were published before 1923 and thus are now in the public domain. The judge found that other elements published in 1923 or after were still subject to copyright, thus requiring Klinger or anyone else to obtain a license from the estate (and to pay any required fees) in order to include them in published works.

As long as a creative work is subject to copyright, the author or anyone to whom he/she assigns the copyright – has the exclusive right to reproduce, publish, distribute, publicly display, or create derivative works from that work. Anyone else wishing to do so must receive permission from the author or other owner of the copyright. However, while creative works – writings, songs, music, computer code, screenplays, sculptures, paintings, photographs, and more – are born with copyrighted status from the moment of creation, the legally protected term of that copyright does not always start at that moment.

The length of protection depends on where the work was created, as each country has its own law with one or more international treaties thus affecting protections of that work in other nations, as well as when the work is “published.”

For original works created in the U.S. the law has changed over the years and is somewhat complex. For many works published after January 1, 1978, the copyright lasts for life of the author plus 70 years. However, if an individual created a work for an employer or under a particular contract that qualifies it as a “work made for hire,” copyright extends for 95 years. Further, if any work was published prior to 1978, the rule is 95 years from when the work was first published, not the date of creation. This is the “95 year rule” applied in the Conan Doyle Estate case.

To strengthen the protection for copyrights in the United States over their life span, it is a good idea to register them with the U.S. Copyright Office. For help in understanding these issues and protecting your copyrights, contact the firm’s “of counsel” attorney, Helena Kobrin.

En Route, Annapurna Sanctuary

The first day's hike is finished on this Nepalese Monday. It is about 5:30 and the late-day sun dries out my sweat-laden body. A young child cries up the "road." It's a one-trail village perched on a ridge.

Residents sit across the way in the "Tourist Hotel" drinking tea and downing rice with their right hands. Chickens strut everywhere, pecking at your spit and anything else worth eating.

The light begins to filter through the low-lying clouds. I sit perched on a stone wall, rhododendrons and bean vines all around. A giant yellow spider perches upside-down in her vertical nest.

Today, we document relations with our 25-ish Tibetan refugee guide Bubu (no last name given, Bu for short).

Agreement betweenTim Bowles, Mike Nichols,Steve (Boots) Parker and Bubu

Bubu will be employed by the above three men at 15 rs/day for carrying an equal amount of weight with the said three men, for washing dishes with soap and for sharing in the fire-starting, cooking and wood collecting.

When we are in village areas, the above three men will give Bubu 5rs/day for food. When we are in the Annapurna Sanctuary, we three employers will supply Bubu with the necessary food.

The trip will last three weeks and will extend from Pokhara, Ghandrung, Annapurna Sanctuary, Jomosom, Baglung and back to Pokhara.

The employers will supply the necessary carrying basket.

50 rs will be paid in advance and the remaining wages upon return.

/s/ Tim /s/ Mike /s/ Boots /s/ Bubu

Nandanda, Nepal
October 22, 1973

Asa Philip Randolph, 1963

March on Washington, August 28, 1963, Leads to the First National Anti-Discrimination Protection

Over 200,000 demonstrators took part in the August 28, 1963 March on Washington for Jobs and Freedom. The event’s impact – famously known for Dr. Martin Luther King Jr.’s “I Have a Dream” speech – lead to the landmark Civil Rights Act of 1964.

The protest had a WW II precursor. In 1941, A. Philip Randolph, founder of the Brotherhood of Sleeping Car Porters, called for a march on D.C. to protest employment discrimination against African Americans in the defense industry. The specter of 100,000 marchers descending on the capital pressed President Roosevelt to issue Executive Order 8802, creating the Fair Employment Practices Commission to investigate such racial inequality. In response, Randolph called off the march.

Mr. Randolph was instrumental in conceiving the 1963 March. That spring, he sought Dr. King’s support for a planned June march “for Negro job rights.” In May, at the height of the Birmingham Campaign for equal racial access to that city’s commercial businesses, King joined Randolph and other Black leadership to call for such a move upon Washington later that year, eventually scheduled for August 28. Stated goals included passage of a comprehensive civil rights bill to ban segregation in restaurants, transportation and all other public accommodations; voting rights protections; public school desegregation; a federal works employment training program; and “a Federal Fair Employment Practices Act barring discrimination in all employment.”

Thanks to the courage of the many who stood up to confront non-violently the widespread hatred and intolerance of the time, the resulting 1964 Civil Rights Act remains America’s principal anti-discrimination law, prohibiting segregation in public places and banning employment discrimination on the basis of race, color, religion, sex or national origin.

February 6, 2020

Dr. Martin Luther King, Jr.

Civil Rights March on Washington, D.C.

August 28, 1963

March on Washington, August 28, 1963, Leads to the First National Anti-Discrimination Protection

“Reverse discrimination” is a variant of religious discrimination. Reverse discrimination means a plaintiff asserts the employer wrongfully discriminated against him/her because plaintiff did not adhere to the employer’s religious beliefs. In reverse discrimination cases, the plaintiff claims religious discrimination based on the religious beliefs of the employer, and the fact that the employee does not share those beliefs. The plaintiff claims his/her lack of adherence to the religious beliefs promoted by company management was what led to the unlawful discrimination the plaintiff later faced. To establish this claim, plaintiff has the burden of proving all of the following: (1) plaintiff was subjected to some adverse employment action; (2) at the time the adverse employment action was taken, plaintiff’s job performance was satisfactory; and (3) plaintiff can show some additional evidence to support the inference that the employment action was taken because of a discriminatory motive based upon plaintiff’s failure to hold or follow his/her employer’s religious beliefs.

In Venters v. City of Delphi, the plaintiff was able to prove she was wrongfully discriminated against based on this theory of “reverse discrimination.” Plaintiff’s supervisor gave plaintiff a bible and other religious materials and then told her she would no longer work at that company unless she started going to church and following God’s way. The supervisor asserted plaintiff practiced incest and bestiality and she should commit suicide. Plaintiff asked supervisor to stop but he continued making similar statements. After her termination, plaintiff sued for religiously motivated discharge.

The court noted that her claim was not that her employer refused to accommodate her religious practices, but that her employer discharged her because she did not measure up to her supervisor’s religious expectations. Plaintiff’s supervisor didn’t simply share his religious beliefs with her; instead he made it clear if she did not conform to those views she would be discharged. The court determined under these circumstances of religion in the workplace, the plaintiff need only show that her perceived religious shortcomings played a motivating role in her discharge. The court concluded plaintiff had a right to work without being compelled to submit herself to her supervisor’s religious scrutiny.

We all agree disruptive workplace incidents distract from harmony and productivity. One of the more prevalent and sometimes inadequately addressed workplace disruptions concerns rude, boorish employees. Their bullying can include personal insults, verbal attacks, inappropriate teasing and sarcasm, belittling another’s intelligence or capabilities, and maligning someone’s reputation through gossip and rumor-mongering.

Is Rude Workplace Behavior Unlawful? Although California has adopted anti-harassment laws, it has yet to enact “civility” laws. Several states have attempted such regulation, including California’s unsuccessful Healthy Workplace Bill of 2003. By declaring all abusive workplace conduct unlawful, such bills seek broader protection for employees facing workplace harassment, regardless of whether the abuse was directed to an employee belonging to a protected classification (race, gender, national origin, religion, etc.). Even without such formal prohibitions, employers may be at risk for ignoring bullying behavior.

Potential Legal Theories Targeting Workplace Bullying: Although there is no anti-bullying law in California per se, affected co-workers have filed claims under the protection of the Americans with Disabilities Act (ADA) and/or workers’ compensation laws claiming such bullying created stress and anxiety. Employees targeted by bullies have also sued employers for damages for the intentional infliction of emotional distress allegedly caused by such bullying incidents. Employee suits alleging such harassment was linked to a protected classification are also common. In EEOC v. Nat’l Educ. Ass’n, a male allegedly acted in a particularly obnoxious fashion towards his female subordinates, often screaming profanities and physically intimidating them, while reportedly treating his male subordinates in a more playful, bantering fashion. The court found harassing conduct need not be motivated by sexual desire to support an inference of sexual discrimination. Even if the bully’s target is of the same gender, the victim might successfully sue for unlawful sex harassment. In Singleton v. United States Gypsum Co., John Singleton’s male co-workers allegedly engaged in workplace bullying by insults and sexually explicit gestures and comments. The appellate court found Singleton could have been harassed because of gender, even though the alleged workplace bullies were also male.

How to Resolve Co-Workers’ Complaints: The wrong thing to do is ignore such a situation. Granted, it’s logical to presume all workers are mature, responsible adults. However, even where the bullying in the workplace does not seem based on some protected classification (age, religion, national origin, etc.), don’t just assume people can and should work these matters out by themselves. Treat these bullies in the workplace complaints just as seriously as a claim for sexual harassment or other harassment on a protected classification. Investigate in a thorough and neutral manner with the intention of truly addressing and handling the problem.

How to Confront the Bully: Of course, do not overreach to unnecessarily documenting the accused wrongdoer’s every shortcoming, big, small, or microscopic. The person in question could later attempt to characterize over-documenting as attempts to create false grounds for terminating him or her. The best approach is to ensure workplace policies clearly state what code of conduct is expected at the workplace, including how workers are to behave with one another. If an employer finds an individual has crossed the line and is potentially engaging in office bullying, show him or her the appropriate workplace policy, discuss the resolution, and discipline and document accordingly. Any resolution should include the appropriate corrective training. Always apply company policies consistently and fairly: don’t single out certain individuals for bullying behavior while ignoring others.

Under California law, whenever the employment relationship ends, for any reason whatsoever, and the employee has not used all of the employee’s earned and accrued vacation hours, the employer must pay the employee these hours. As paid vacation benefits are considered wages, such pay must be included in the employee’s final paycheck with the appropriate deductions. The employer must pay out accrued but unused vacation at the employee’s final rate of pay, regardless of the rate of pay at which it was earned. For example, if the employee earned ten hours of vacation while making $15 per hour and who later is terminated or quits while making $20 per hour must receive $200 in vacation wages with the employee’s final paycheck. See California Labor Code Section 227.3.

No “Use it or Lose It”: In California, vacation pay is another form of wages which vests as the employee earns it. Vests means the employee has lawfully earned the wages. Accordingly, it is illegal to deny an employee earned vacation pay not used by a specified date (“use it or lose it”) under California law.

California’s Division of Labor Standards Enforcement (DLSE) has repeatedly found policies requiring all vacation taken in the year it is earned (or in a very limited period following the accrual period) are unfair and unenforceable.

However, the DLSE does recognize vacation accrual policies which cap how much vacation time may continue to accrue. Thus, a sample vacation policy in an employee handbook might state, “The maximum vacation benefit for which an employee is eligible at any point is one and one-half year’s vacation pay at the employee’s current yearly accrual rate. Once that maximum has accrued, no further vacation time or benefit will accrue until the employee has used some of the time, reducing the total time available below the current maximum. At such time, the employee resumes accrual of vacation time up to a point where the maximum is again reached.”

Employers may also refuse to pay employees with money in lieu of vacation time, except upon termination of employment.

Under California law, if an employer requires an hourly California employee to attend an out-of-town business meeting, training session, or any other event, the employer is obligated to pay for the employee’s time getting to and from the location of that event. Time spent driving, or as a passenger on an airplane, train, bus, taxi cab or car, or other mode of transport, in traveling to and from the out-of-town event, and time spent waiting to purchase a ticket, check baggage, or get on board, is, under such circumstances, time spent carrying out the employer’s directives, and thus, is characterized as time in which the employee is subject to the employer’s control. Such compelled travel time therefore constitutes compensable “hours worked.”

On the other hand, time spent taking a break from travel in order to eat a meal, sleep, or engage in purely personal pursuits not connected with the traveling or making necessary travel connections, is not compensable.

For local work assignments, when an employee is intermittently required to report directly from home to a work site other than the company’s office, the employer must pay the employee travel time for any time in excess of the employee’s normal commute time to and from the regular site. If an employee is routinely directed to report to one outside work site or a succession of them (or to return straight from such site(s) to home at the end of the work period), then that employee’s normal commute time is the duration of each such trip [regardless if the time varies to/from home and various sites] and no such time is considered compensable work time.

The employer may establish a different pay scale for travel time (not less than minimum wage) as opposed to the regular work time rate. The employee must be informed of the different pay rate for travel before the travel begins.

With the exception of specific vehicle operating expenses (including gas, maintenance, insurance) if the company’s travel expense policy authorizes an adequate “per mile” rate for such operations (as set by the IRS), the company’s travel policy must also reimburse for all out-of-pocket business-related travel expenses incurred in the course of an employee’s work time.

Religion in the Workplace, Have Faith in the Law

Bill, a hospital supervisor, learned that one of his subordinates, Harvinder, has been wearing a miniature sword strapped to and hidden underneath her clothing. Harvinder is a baptized Sikh who wears the 4-inch dull and sheathed sword (called a kirpan) as a symbol of her religious commitment to defend truth and moral values. Bill instructed Harvinder not to wear the kirpan at work because it violated hospital policy against bringing weapons in the workplace. Harvinder explained to Bill that her faith requires her to wear a kirpan in order to comply with the Sikh Code of Conduct, and gave him literature explaining the kirpan is not a weapon. Harvinder also allowed Bill to examine the kirpan so he could see it was no sharper than a butter knife.

It may be surprising to learn that if Bill were then to inform Harvinder she would be terminated if she continued to wear the kirpan at work, the U.S. Equal Employment Opportunity Commission (EEOC) would consider the hospital liable for religious discrimination in the workplace. In the face of a potential conflict between a religious practice such as Harvinder’s and an employer’s policy, in this case the company’s obligation to maintain a safe and secure workplace, that employer must almost always take the initiative to see if a reasonable accommodation for that religious practice can be reached.

Only where an employer can show that any accommodation for religious practice would impose an undue economic hardship is that company excused from permitting that practice to continue. Employment laws establish that resolution of religion in the workplace issues is a case-by-case proposition. An undue hardship is found where the proposed accommodation imposed more than a de minimus (trifling or minimal) cost to the employer. Examples where courts have found accommodations imposed undue hardship include “additional costs in the form of lost efficiency or higher wages.” Balint v. Carson City, Nevada (Ninth Circuit Court of Appeals [9th Cir] 1998) 180 Federal Reporter, Third Series (F.3rd) 1047, 1051, note 4.

Thus, faced with Harvinder’s request to continue wearing her kirpan in the workplace, Bill would have to explore whether the company could accommodate the request without a disruption in operations that would amount to more than a minimal or trivial distraction. If Harvinder’s request was to carry a loaded gun based on her religion’s principles, Bill would obviously have a much easier decision since such a weapon creates a hostile work environment to say the least, nearly certain to significantly divert fellow hospital workers from full attention to their duties. However, a ceremonial object no sharper than a butter knife – and kept out of sight of other workers in any event — can probably be accommodated since it would be difficult at best to distinguish between that object and the eating utensils brought by other workers and utilized daily on the premises.

If you have any questions, please contact me or any of our other employment law attorneys.