Anthony Clark

As an artist, whether you create music, drama, literature or art, you want your product protected. You don't want someone else taking your work without your permission. You may be afraid of "putting it out there" for fear of it being taken and used by others.

 

That's where intellectual property, or "IP," comes in. IP comes in three forms: copyrights, trademarks and patents. Patents protect inventions, which is for another time. This article addresses copyrights and trademarks.

 

Protecting the products of your creativity need not be very expensive or time-consuming. This article explains what IP is and briefly illustrates how copyrights and trademarks can be used as tools to protect works within the entertainment industry.

 

Note: This article only briefly touches on a field of law that is very extensive and complex. It is meant to be an introduction containing general information, not legal advice. Please consult an attorney if you have specific questions about your unique situation.

 

Below are the basics on copyrights and trademarks: what they are and why you should care.

Copyrights ©

A copyright is basically a form of protection for touchable works of expressed authorship.

 

A stick figure you draw on a napkin with a crayon while you wait for your lasagna at a restaurant receives automatic and immediate copyright protection because it is an original work fixed in a tangible medium of expression.

 

 

What is Copyrightable?

 

There are eight (8) categories of “things” that can receive copyright protection:

1. Literary (books)

2. Musical Works (songs)

3. Dramatic Works (plays)

4. Choreographic Works (dance)

5. Pictures (photos, drawings)

6. Audiovisual (movies)

7. Sound Recordings (whatever fits on a cassette tape, CD, record)

8. Architectural Works

 

Copyright protection applies to both published and unpublished works.

 

Works made for hire are a different issue that will be addressed in a later article.

 

The United States Copyright Office (a division of the Library of Congress, www.copyright.gov) is responsible for this IP area. The law covering copyrights is Title 17 of the U.S. Code.

Go ahead, “Google” it.

 

 

Your Rights as a Copyright Owner

 

When you create something, you are entitled to five (5) exclusive rights. If someone else exercises any of these without your “ok,” he/she is breaking the law:

1. Reproduction

2. Prepare derivative works based upon the work

3. Distribution

4. Public performance

5. Public display

 

There are limits to these rights, but this article is a quick overview. To learn more, read the copyright law, contact the Copyright Office, or call your favorite lawyer.

 

 

Advantages to Filing for Copyright Protection

 

So why file for copyright protection with the Copyright Office if you already get automatic copyright protection? The answer is simple: you get even more awesome protections that may really help you later in the money and proof of ownership departments.

 The benefits to filing are:

1. Legal formality that makes a public record of your copyright claim (gives notice to people who may want to infringe your rights)

2. You cannot bring an infringement lawsuit in court unless your copyright is registered

3. Registration creates a presumption of validity that you own the copyright, not thief guy (avoids time-consuming and expensive litigation)

4. You can get statutory damages and attorney’s fees in court (a.k.a. more money!) but only if you register within three (3) months after publishing the work or prior to the work being infringed; otherwise you can only ask for actual damagesand profits in court. Boo, life isn’t fair.

5. Protects against importation of infringing copies from other countries

 

P.S. You can register anytime during the life of the copyright.

 

 

Term

A copyright lasts for the life of the author plus 70 years. The reasons for this randomness are political and involve Mickey Mouse, but this doesn’t help you, so just take the knowledge and move on.

 

Example: you create a painting in 2005 and die in 2010; your copyright on the painting ends in 2080.

 

Moving on.

 

 

Trademarks ®

 

A trademark is a brand name; it is something that identifies a source of specific goods as belonging to one owner (example: the “swoosh” identifies Nike as the source).

 

The United States Patent and Trademark Office (USPTO, www.uspto.gov) is responsible for this area of IP law.  The USPTO only registers marks; you alone are responsible for enforcement.

 

 

What Can Be Trademarked?

 

There are many categories of “things” that can be trademarked:

·       Images

·       Logos

·       Phrases

·       Devices

·       Names

·       Designs

·       Words

·       Symbols

·       Any combination of these mashed together

 

 

Advantages of Filing for Trademark Registration

 

Federal registration of a mark is not required BUT it has its benefits:

·       It gives notice to the public of the your claim of ownership of that mark

·       It creates a legal presumption of ownership throughout the entire United States

·       It presents you with the exclusive right to use your mark on (or in connection with) the goods and/or services you listed in your trademark registration

·       You get a listing in the USPTO’s online databases

·       You are able to record the registration with Customs and Border Protection to prevent importation of infringing foreign goods

·       You get the right to use the cool federal registration symbol “®”

·       You can bring an action in federal court concerning your mark

·       You can use your U.S. registration as a basis to obtain foreign registrations

 

You can trademark your band name, for example, to prevent other parties from using it or capitalizing on it.

 

 

Getting a Lawyer

You will likely need to retain an attorney to successfully obtain trademark protection. Using a lawyer is not required, but most applicants eventually wind up using one for legal advice regarding trademark use, application filing, and to increase their chances of success in the registration process. All applications do not proceed to registration and can be rejected. Your registration can be denied, for example, if the name you pick is pre-existing or too descriptive or generic. A trademark attorney can help you avoid multiple pitfalls.

 

 

Term

 

The term of a trademark is basically ten (10) years (and you can keep on renewing), but there are rules about how often you have to file “Declarations of Use” and “Applications for Renewal” and additional action is required long before you hit that 10-year mark. As you can see, nothing is ever simple.

 

 

How to Prepare

 

Before you get all excited about starting the trademark application process, keep three (3) things in mind to make your search of the USPTO database more useful and simple (i.e., cheaper):

·       Know the mark you want to register

·       Know the services/goods in connection with which you want to register alongside that mark

·       Know whether you will file that application based on your actual existing use of the mark or a good faith (“bona fide”) intention to use that mark in the future

 

 

Conclusion

 

Copyrights protect original artistic works (your songs).

 

Trademarks protect logos and brand names use on services and goods (your band name).

 

You do not have to register either, but doing so offers financial benefits and increased legal protections. You can visit www.copyright.gov and www.uspto.gov to learn more about the IP registration process.

 

To sum it up, IP is your friend. It is a legal power to protect you and your creativity. For example, if you invent a new kind of guitar, you could apply for a patent to protect the actual invention. You could also apply to register a trademark in order to protect the brand name of the guitar. And you could also register a copyright for the television commercial you create to market the product. Different types of IP protect different elements of the creative process.

Society likes art because of its (mostly) beneficial effects on humanity, so it has created laws to encourage artists to share their talents in exchange for legal protections.

Take advantage of the IP laws so you can create freely. Don't deprive the world of your art. 

 

Sources:

www.copyright.gov

www.uspto.gov