Letter From the Editor-in-chief



Thomas A. Ward

Editor-in-Chief of New Matter

Welcome to the summer edition of New Matter for 2021.

The cover of this edition has been changed to comply with the California Lawyer’s Association (CLA) guidelines for all section publications. This will be the cover format for the foreseeable future, and a yearly change of background color will not occur as in the past. The Intellectual Property Section assigned color is mint green, while other sections have been assigned other colors.

New Matter will continue with different cover art based on IP issues for every edition. The cover art for the current issue is the "mask required" sign. At the time that the cover art was selected, we expected that the "mask required" sign would be a thing of the past that everyone would be glad to see gone. However, with the delta covid variant taking hold, unfortunately the "mask required" sign has a bit more life.

Regarding IP issues for the "mask required" sign, copyright law is the focus. As for works of the US government, signs are not usually subject to copyright protection. However, if the government hired a private contractor to create the seal or the sign is used by a non-government entity, copyright might well apply. Even if copyright protection exists, fair use might be a defense to infringement depending on the four-factor analysis set out in the Copyright Act of 1976 (17 U.S.C. § 107). For the first factor, purpose and character of use, because the use is not likely commercial or for making money, copying a "mask required" sign is likely allowed under this fair use factor. For the second factor, the nature of the copyrighted work, the creativity involved is not likely significant relative to the factual information provided by the sign further making copying a "mask required" sign fair use. The fourth factor, the effect on the value of the work, similar to the first factor there is no significant element of value obtained or damaged due to copying a "mask required" sign, so fair use is likely a finding under this factor. The third factor, substantiality of portion used, could apply if the sign is copied in its entirety. Overall, while neither I nor CLA are offering a legal opinion, I suggest a "mask required" sign can likely be copied without copyright liability.

As always, I continue to thank our New Matter editorial staff for accomplishing the work to get this publication to you. In particularly, thanks to Amanda Nye who is the Acquisition Editor, Anthony Craig who is the Production Editor, Dabney Eastham who is Senior Articles Editor, and Leaf Williams who is Associate Production Editor.

Also, thank you to members of the IP Executive committee and California Lawyer’s Association who provided support for each issue. On behalf of all the New Matter staff, we hope you are enlightened and informed by this issue of New Matter.

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