Patent copyright

March 24, 2011 9:40 AM

Do the images in a patent have copyright?

A friend of mine wants to illustrate an article for a magazine using an image found in a US Patent. The magazine is Peru based. She want's to know if she can freely publish it or if she needs to pay something / give a specific credit for the right.

posted by Omon Ra to law & government (11 answers total)

Any image, as soon as it's set down somehow (e.g. on paper), is immediately granted a copyright under US law.
posted by prefpara at 9:50 AM on March 24, 2011

What prefpara said. See also: http://www.copyright.gov/help/faq/
posted by jeffamaphone at 9:54 AM on March 24, 2011

Since the US Patent Office issues the patent document, then who is the owner of the copyright to the patent document? I was under the impression that documents issued by the US Government were free of copyright (the NASA photographs, for example).
posted by Omon Ra at 10:00 AM on March 24, 2011

The USPTO received the image from the applicant who first recorded it, so most likely that entity owns the copyright on the image.
posted by prefpara at 10:02 AM on March 24, 2011

I am an attorney, but I am not your attorney or your friend's attorney. This is not legal advice.

This is a complex issue because of the international component and changes in the law since the drawing was created. Your friend should contact a competent intellectual property attorney in Peru, preferably one with experience with US copyright and patent law.

Any image, as soon as it's set down somehow (e.g. on paper), is immediately granted a copyright under US law.

That answer is insufficient. The image was created before the enactment of the 1976 Copyright Act and the 1988 Berne Convention Implementation Act. As a result, it may actually be out of copyright for failure to comply with the formalities required at the time.

One must also consider the state of the law in Peru at the time of the image's creation and changes in the law since then. Furthermore, the US Patent Office limits the claim of copyright on drawings in patents, or at least does now (what the state of the law was in 1967 when the application was filed I do not know). Specifically there's a limited license to "facsimile reproduction by any­one of the patent document or the patent disclosure, as it appears in the Patent and Trademark Office patent file or records." That's why Google, freepatentsonline, and any number of other sources can maintain databases of patents and applications.

As a result, the answer will also depend on what exactly the asker's friend wants to do with the image and where it will be published. These are all things that the friend should discuss with her attorney.
posted by jedicus at 10:02 AM on March 24, 2011 [2 favorites]

Any image, as soon as it's set down somehow (e.g. on paper), is immediately granted a copyright under US law.

This has only been true since 1989.
posted by grouse at 10:03 AM on March 24, 2011

I was under the impression that documents issued by the US Government were free of copyright (the NASA photographs, for example).

That only applies to "a work prepared by an officer or employee of the U.S. government as part of that person's official duties." 17 USC 101.
posted by jedicus at 10:05 AM on March 24, 2011

Oh, I missed that the image originated in Peru. Apologies.
posted by prefpara at 10:06 AM on March 24, 2011

The image didn't originate in Peru, its from the US. My friend edits a Peruvian magazine and she wants to include it in an article on transportation.
posted by Omon Ra at 10:08 AM on March 24, 2011

As with many legal questions, it kind of depends.

Generally, because the patent application is a government document, it doesn't enjoy the same kind of copyright protection. However, if copyright notice on certain aspects of the drawings or text is included in the right way, it may be subject to protection. So, it depends on what is actually on the application.

"Patents are published as part of the terms of granting the patent to the inventor. Subject to limited exceptions reflected in 37 CFR 1.71(d) & (e) and 1.84(s) , the text and drawings of a patent are typically not subject to copyright restrictions. The inventors' right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States for a limited time is not compromised by the publication of the description of the invention. In other words, the fact that a patent's description may have been published without copyright restrictions does not give you permission to manufacture or use the invention without permission from the inventor during the active life of the patent."

See here for the general explanation and here for where protection might specifically apply.

Basically, your friend is going to have to see if this notice appears in the relevant portions of the patent document.
posted by HonoriaGlossop at 10:10 AM on March 24, 2011 [1 favorite]

I am a lawyer (and I was in fact a patent litigator), but I am not the OP's lawyer and this is not legal advice. Once again, it's distressing to see folks give so many off-base answers (and with such assurance) about a legal topic on AskMe. But fortunately, HonoriaGlossop is right - the images in patents are usually not subject to copyright claims. But sometimes they are, though fortunately, the patent applicant has to place a notice in the patent's specification. I've seen such notices before. For example, here's one:

A claim of copyright is hereby made by Open Market, Incorporated with respect to the software code contained in the microfiche appendices, as of the date of first issuance of a U.S. patent based on this application. The copyright owner has no objection to the facsimile reproduction by anyone of the microfiche appendices as they appear in the Patent and Trademark office patent file or records, but reserves all other copyright rights whatsoever.

posted by Conrad Cornelius o'Donald o'Dell at 11:32 AM on March 24, 2011 [1 favorite]