Understanding Intellectual Property

ABCs of Intellectual Property

Below is a comprehensive, but plainly stated review of intellectual property laws and concepts.  For instance, learn the difference between copyright, trademarks and patents.

What is a copyright?

Copyright is a law that provides protection for “an original work of authorship fixed in a tangible medium”. So, what does this mean?

It means that for a work to be protectable, it must be:

A. original and have artistic value,

AND

A. be fixed in a tangible medium, such as written, filmed, recorded, sketched, drawn, painted, photographed, etc.

Accordingly, copyright protection provides the author with certain exclusive rights to that original work of authorship.

What does copyright protection do?

Copyright protection provides the author of the work with the exclusive right to reproduce the work (i.e. make copies) and to distribute copies of the work.  This means that the author is the only one who can make copies of the work and distribute them, unless he allows others to do this.

In the case of textual, musical, dramatic and choreographic works, the author of the work has the additional exclusive right to publicly display or perform the work.

When is a copyright to a work created?

The copyright to a work is created as soon as the work is created, or once the “pen lifts from the paper.”  It is NOT necessary to file a copyright application in order to create a copyright in a work.  So, why file a copyright application?  See Why should you file copyright applications for your works if they are automatically protected? below.

What is protectable under copyright?

The following types of works are protectable under copyright:
Literary works;
Musical works, including any accompanying words;
Dramatic works, including any accompanying music;
Pantomimes and choreographic works;
Pictorial, graphic and sculptural works;
Motion pictures and other audiovisual works;
Sound recordings; and
Architectural works.

So, this includes:
Songs, including the sound recording, lyrics, melody;
Song recordings or performances
Plays, television shows, radio shows including spoken text, plot and directions for action
Choreography
Radio presentations
Television presentations
Movies
Visual artwork
Paintings
Photographs
Textile designs
Website pages
Art sketches
Graphic design work
Sculpture (wood, metal, ceramic, etc.)
Video
Textual works, such as poetry, fiction, non-fiction, blog content, website content, source code, manuals, guides, etc.
Architectural drawings, works and structures (“the overall form as well as the arrangement and composition of spaces and elements in the design”)

Can I copyright an idea?

No.  Ideas are not protectable, only tangible expressions are.  Therefore, if you have a new idea for a painting method (let’s say using a certain type of tool to create a painting), the idea would not be protectable under copyright.  However, the paintings which are created using this method would be protectable.  Therefore, only the tangible expressions of that idea are protectable, i.e., the paintings themselves, not the idea or invention for the method of painting.

What is a trademark?

A trademark is a brand name, logo or name –or “mark” – used to designate the source of goods or services.  Examples of trademarks are: the Nike swoop, Coca-Cola, Pepsi, HR Block and John Deere.  These marks tell the consumer which company created the goods, and therefore can act as an indicator of quality.

What is the difference between copyright and trademark?

Copyright and trademark are two totally different types of intellectual property rights that protect different things.  While copyright protects a unique creation of work, or artistic creation, such as design, photograph or software, a trademark protects the brand or name of goods or services.  Examples of trademarks are the names Coca-Cola, HP, Williams-Sonoma and Disney.  Therefore, while Disney has created and owns copyrights to their original movies, televisions shows and merchandise, the name Disney is a trademark.  A trademark is the designation of the source of the goods or services offered under the mark.  When you buy a bottle of Coca-Cola from your local convenience store, you know what it will taste like: Coke.  The mark or name on the bottle tells you the source of the goods, and you know that you can depend on that mark to let you know the quality of the goods.  Logos, which can be copyrighted as unique works expressed in a tangible medium, can also be trademarked, as they also work to designate the source of the goods.  Examples of logos that are protectable under both copyright and trademark are the Girl Scouts logo with silhouettes of girls, or the Starbucks logo with the mermaid.  These logos are both original works of art and also are instantly recognizable as a source designator for goods.

What is a patent?

A patent is a right granted to the creator or owner of an invention or discovery.  Thus, patent protects inventions and grants the owner of the patent the exclusive right to create, manufacture and sell the patented product.

What is the difference between a copyright and a patent?

While copyright protects artistic and creative creations, patent protects inventions and discoveries (which both tend to be more functional in nature).

If I sell an original work, do I lose the copyright to that work?

No.  The copyright to the work remains with the author or claimant of the copyright.  Therefore, if you sell a painting to an art dealer, you still have the exclusive rights to make copies of the work and to sell or distribute the copies of the work unless you sell or license the actual copyright to the work.

Can I sue someone for copyright infringement without having a copyright registration?

No.  In order to sue someone for copyright infringement in the United States you must have a copyright registration.  In some cases, the courts will allow you to sue someone for copyright infringement if you have filed a copyright application and a registration is pending with the Copyright Office.

Why should you file copyright applications for your works if they are automatically protected?

There are a couple of very important reasons why you should file copyright applications for your works.

1. You must have either a copyright registration or a copyright application pending in order to sue for copyright infringement in the United States.

2. You will not be entitled to statutory damages or attorneys’ fees for infringement if a copyright application is not timely filed.  “Timely filed” means that the copyright application is filed either within 3 months of first publication of the work or before any infringement begins.  If you file your copyright application either after 3 months of first publication or after the infringement begins, you will only be entitled to the infringer’s profits and your losses due to the infringement, which can be very difficult to prove.

3. In order to use the Customs and Border Protection’s Intellectual Property program (which is explained here) (LINK: CUSTOM AND BORDER PROTECTION ARTICLE TO BE POSTED), you must have record a copyright registration with them.  They cannot enforce your rights without a copyright registration.

Being entitled to statutory damages is a big deal.  Entitlement to statutory damages generally ensures an easier copyright infringement case, assists in getting an attorney who will take your case on contingency (they get paid only if you collect damages), and increases your leverage significantly in stopping the infringement.

An example of this leverage:  A client of mine is religious about filing copyright applications for her collections as soon as they are shown either on her website or at a tradeshow.  She discovered that one of her textile designs was being knocked off and carried by a retail website.  Because she timely filed the copyright application, she was automatically entitled to statutory damages of up to $30,000 plus her costs and expenses for hiring me to handle the matter.  We sent a cease and desist letter to the infringer and they ignored it, and kept selling the infringing textile design.  Because they ignored our demand letter and continued to sell the infringing item, their actions became willful infringement, and she was entitled to statutory damages of up to $150,000 plus attorneys’ fees.  Now, while she didn’t get $150,000 in damages in this case, as we settled before the case went to court, she did obtain a settlement of over $20,000.  She owns a very small company, and she was able to invest this money in her company, and was able to continue creating new artwork.

How do I file a copyright application?

Filing a copyright application with the United States Copyright Office is pretty easy, once you get used to doing it. Tutorial videos on how to file several different types of copyright applications via the e-CO (or “electronic copyright office”) are offered on our  Tutorial Videos section.

The government fee for filing most types of copyright applications is $35.

What kinds of file formats does the Copyright Office accept for electronic filing?

The Copyright Office accepts a surprisingly varied array of different file types, including: .doc, .docx, .bmp, .jpg, .pdf., .xcl, .zip and many, many others.  You can find a list of the different acceptable formats here.

What will I need in order to file a copyright application?

You will need to have:

• The name of the author, and the name and address of the claimant of the work,
• An electronic copy of the work to be protected (otherwise known as “deposit materials”) in an acceptable format,
• Information about the YEAR of creation of the work or collection of works,
• Information about the DATE of first publication of the work or collection of works (see below for a definition of “first publication”), and
• A credit card or check routing and account information, or a deposit account with the Copyright Office.

Do I need to demonstrate evidence or proof of these dates of creation and first publication?

No.  While evidence may be helpful in supporting your lawsuit in an infringement matter, it is not necessary to submit actual evidence of the year of creation and date of first publication with your copyright application.  You simply need to provide the relevant dates on the copyright application.

When will I receive the registration for my copyright application?

According to U.S. Copyright Laws, publication is “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.”

In most cases and if the application has been submitted properly, the Copyright Office should issue a registration within 3 to 4 months after the filing of the application.  You can find current estimated processing times here.

Do I have to file a separate copyright application for each of my works?

No!  You can file your unpublished works in what are known as “collections”.  “Collections” are a group of works that:

1.    All created by the same author;

2.    All owned by the same claimant (or copyright owner);

3.    All consisting of the same media (i.e., visual arts, sculpture, music, etc.)

While filing as a collection can limit your statutory damages to one set of damages, collection filing will decrease your costs of filing.

What do you mean by “first published” or “first publication”?

According to U.S. Copyright Laws, publication is “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.”

So what does this mean for you?  A date of first publication generally means the date on which the works were first distributed and offered to the general public.  Some examples of “publication” would be posting the works on a live website, promoting the works at a tradeshow or publishing the works in a catalog.  This date is important, because it tells the Copyright Office when the public had access to the work to use and copy it.  For example, if an artist creates a painting, puts it in their attic and doesn’t show it to anyone, there is no real likelihood that it could be copied, as no one has seen it.

© 2015 Copyright Collaborative