Copyright 101 for Businesses and Artists

Published on | Permalink

Introduction

You’ve created something original – a painting, a book, a manual, a graphic design, etc. – now what?  Whether you are an artist or a business owner, you have big plans for this original work, but you are not sure how best to protect the fruit of your hard work so that competitors do not use your work without permission or take credit for it.  This article will explain the basic copyright rights you currently have in your original work and how to best protect this asset.  

What is Copyright?

U.S. federal law provides copyright protection for original works of authorship from the moment the work is created in a fixed, tangible form. This means that if the work is independently created, has a minimal degree of creativity, and is written down, recorded or somehow preserved, it has immediate copyright protection.  As the old adage goes: as soon as your pen lifts from the paper, you have a copyright in the work you’ve created. 

What Works Are Protected?

A non-exhaustive list of works that can be protected include:

  • Literary works (books, manuals, etc.)
  • Musical works
  • Dramatic works
  • Choreography
  • Visual art (paintings, sculptures, drawings, diagrams, graphics, etc.)
  • Movies and other audiovisual works
  • Sound recordings
  • Architectural works

What Is Not Protected?

There are certain creations that are not protected by copyright law.  For instance, ideas are not copyrightable because they are not in a fixed, tangible form.  For example, if you have an idea for a new novel, the idea is not protected.  However, once you have expressed the idea in a fixed, tangible form and have written the new novel, it is protected by copyright law.  

Other items which are not protected include: titles, names, short phrases, and slogans.  These may be eligible for protection as trademarks.  For more information about trademarks, see this recent article here.

How Can I Protect My Original Work?

A copyright in an original work of authorship exists automatically once it is in a fixed, tangible form.  However, as the owner of this copyright, you can take steps to enhance its protection by registering the original work with the U.S. Copyright Office.

While registering your work is not mandatory, it is necessary if you wish to enforce your exclusive rights to the copyright through legal action.  Thus, we recommend registering any work in which the public will have access to the work.  Once the public has access to the work, it is more likely that an unauthorized user will infringe on your rights and you will need the full legal protections of registration.

Why Should I Consider Registration?

Here are some benefits to registering your original work with the U.S. Copyright Office:

  • Validity: Registration establishes evidence of the validity of the copyright and the information stated in the certificate when the registration is made before or within five years of publication.
  • Notice: Registration places the public on notice of your rights in your original work.  This can be very helpful in the event you must enforce your rights against someone who is using your copyrighted work without your permission.
  • Legal Action: Registration is a requirement if you wish to pursue legal action against an unauthorized user who is infringing on your rights.  Additionally, registration means you may receive statutory damages and attorneys’ fees, if you are successful in court.  Statutory damages are damages awarded without the need to prove actual loss.  Even if you wish to avoid court, this can be powerful leverage when attempting to negotiate a settlement with an opponent.

How Do I Create a Copyright Notice?

A copyright notice is a statement placed on the work which notifies the public that a copyright owner is claiming ownership of the work.  A copyright notice is not mandatory, but it is recommended.

A copyright notice consists of the following:

  • The copyright symbol “©”
  • The year of first publication or, if the work is unpublished, the year it was created
  • The name of the copyright owner

If William Shakespeare was alive and published Romeo and Juliet today, he would provide the following notice on the play: © 2019 William Shakespeare

This notice should be placed on the work to ensure that the public knows that the author is claiming copyright ownership.

Conclusion

Whether you are a business owner or an artist, you may have valuable copyrights which, in order to obtain effective legal protection, should be registered with the U.S. Copyright Office.  By registering your work, you may take legal action against unauthorized use of the work and are defending your right to ownership.  Without registering your work, you run the risk of someone claiming your work as theirs and losing valuable legal remedies.

If you wish to discuss your original works or any other intellectual property concerns, please contact David B. Billing or Laura Lamansky, the authors of this article, or any of the other attorneys in the Intellectual Property and Entertainment Law practice team of Stafford Rosenbaum LLP. 

Law clerk Joseph S. Beckmann assisted in researching and writing this article.

Top 5 Reasons You Should Register Your Trademarks

Published on | Permalink

Introduction

You may not even know it, but your business already has trademarks.  Trademarks are the branding devices such as logos, slogans, company names, or product names that a business uses to stand out from its competitors.  It is a business’s branding that customers remember and use to identify the source of products and services, and recommend those products and services to others.  A business may use trademarks on everything from business cards to billboards. 

Whether your business is a start-up or an established business, registering your business’s trademarks with the United States Patent and Trademark Office (USPTO) can be an essential step to protecting your business’s branding and the goodwill associated with it.  While the use of a trademark will provide your business with some basic rights in your local market area, rights in the trademark will be stronger nationwide and easier to enforce if the trademark is registered with the USPTO. 

Here are the top 5 reasons you should register your business’s trademarks:

  1. Gain Legal Rights Which May Help Prevent Competition from Using a Trademark Like Your Business’s

Whether your business is selling a product or a service, as a business owner, you’ve worked hard to stand out in your field, develop repeat customers, and build a top-notch reputation.  You, like every business owner, want to protect the business from a competitor who attempts to benefit from your business’s hard-earned reputation and goodwill.  If you register your business’s trademarks, your business gains legal rights which may help prevent competitors from unfairly using the same trademark or a confusingly similar trademark to promote their business. 

Here's an example.  Oldbiz has been manufacturing exceptional widgets for twenty years under the brand name Old Time Widgets.  A competitor, Newbiz, has recently emerged in the widget market.  Oldbiz soon learns that Newbiz is manufacturing a cheap, poorly made widget under the brand name Old Timer Widgets.  Not surprisingly, customers begin to purchase the less expensive Old Timer Widgets manufactured by Newbiz under the mistaken belief that they are manufactured by Oldbiz, the long-time widget manufacturer with an excellent reputation.  Now, Oldbiz has lost sales, and has suffered harm to its excellent reputation because of the confusingly similar branding used by Newbiz for its inferior widgets. 

If Oldbiz had registered its Old Time Widgets trademark, it would have had stronger legal rights than without registering it.  With the registration, Oldbiz would have had more leverage, which would make a satisfactory outcome more likely.  For instance, Oldbiz could have had more legal leverage to confront Newbiz by sending a cease and desist letter, negotiating a settlement, or, if all else failed, instigating litigation. 

In some cases, attorneys’ fees, treble damages, statutory damages, and the infringer’s profits may be awarded to the plaintiff after litigation if the infringer’s infringement of the registered trademark was willful.  These severe damages alone can intimidate an infringer from continuing the litigation fight to the bitter end.  A critical reason to register your business’s trademark is to robustly protect the trademark and your business from competitors who may seek to benefit from your business’s success. 

  1. Registration Puts the Public on Notice

If you register your business’s trademarks with the USPTO, you are providing legal constructive notice to the public on a national level that your business owns the trademark and has the rights that accompany the federal trademark registration as of a particular date.  Putting the public on notice of the trademark rights of your business can be a critical component in the resolution of a trademark dispute.  It is much easier to prove trademark infringement by a competitor by using the federal trademark registration to establish the exact date whereby your competitor had legal constructive notice of your business’s use and ownership of the trademark. 

Returning to our example above, if Oldbiz had registered Old Time Widget as a trademark with the USPTO, Oldbiz could have used the date of registration in a cease and desist letter, in negotiations, and in court to prove that Newbiz had legal constructive notice of Oldbiz’s prior use and ownership of the Old Time Widget trademark as of the date of the registration.  Establishing willful trademark infringement by Newbiz for its use of the confusingly similar trademark, Old Timer Widgets, would be much easier if Oldbiz had a registered trademark showing prior use and ownership.   

In addition to achieving constructive knowledge of your business’s trademark rights, registering the trademark with the USPTO will allow your business to use the highly coveted “®” symbol wherever the trademark appears.  This symbol is reserved for those who have registered their trademark with the USPTO.  Use of the symbol provides additional notice to the public of your business’s exclusive rights to the trademark. 

  1. Registration Establishes a Presumption of Ownership 

Additionally, trademark registration with the USPTO provides your business with the presumption of ownership of the trademark, which is very helpful when dealing with an opposing party who is infringing on your business’s trademark rights.  Once successfully registered, your trademark is presumed to be a valid trademark and validly owned by your business.  This is a strong presumption that weighs heavily in your business’s favor should a trademark dispute be litigated.  Your opponent in litigation would need to overcome this strong presumption in order to prevail in a trademark infringement action in which your opponent also claims ownership of the trademark. 

In our example of Oldbiz and Newbiz, if Oldbiz had registered Old Time Widgets as a federal trademark with the USPTO, Oldbiz would have thereby established a presumption of ownership and priority of use of the trademark.  Should Oldbiz then pursue Newbiz in an action for trademark infringement, this presumption of ownership would be very difficult for Newbiz to overcome as it would be required to present substantial historic evidence of prior use of Old Timer Widgets.

  1. Registration Establishes Nationwide, Federal Rights

Unlike registering your business’s trademarks in your business’s home state, a federal registration with the USPTO means your business is establishing nationwide, federal trademark rights.  Considering most businesses operate a website and can easily establish customers all over the United States, most business owners should consider the advantages to securing nationwide trademark rights.

Back to our example of Oldbiz and Newbiz:  Oldbiz mainly operates in Wisconsin.  Newbiz has a principal place of business in Florida.  Both operate websites which anyone in the United States may access and use to order widgets.  Neither company has federally registered its trademarks.  Now because both companies have been developing some limited rights based solely on use and not a USPTO registration, any fight between the two businesses over trademark rights will likely be lengthy, tedious, and very expensive.  If Oldbiz had registered its trademarks prior to Newbiz’s entrance to the market, Oldbiz would have established nationwide rights in Old Time Widgets and anything confusingly similar.  These rights would be senior and take priority to any rights acquired by Newbiz for use of its confusingly similar trademark.

Establishing nationwide rights means your business is protected on a greater scale than either registering the trademark with your business’s home state or by gaining certain rights by solely using the trademark.

  1. Increase Your Business’s Value

Your business’s brand, reputation, and goodwill are essential assets.  Registering your business’s trademarks means you are proactively protecting your business’s intangible assets.  In fact, when you register your business’s trademarks, your business becomes more valuable partially because of the legal protections (as discussed above) that federal registration provides.

Registering your trademarks with the USPTO not only protects your valuable assets, but the registration itself can add value.  In certain highly-competitive, brand-focused industries like technology and the growing wine, beer, and distilled spirits industries, a strong portfolio of federally registered trademarks that thoroughly protects all of your business’s branding, will substantially increase the value of the business.  Even if your business is not in a brand-focused industry, knowing that a seller has proactively registered its trademarks can give a prospective buyer peace of mind and some assurance that it will not have to incur the expense of attempting to protect and defend unregistered trademarks against competitors.  Gaining the legal protections of USPTO trademark registrations means your business’s intangible assets become more secure and valuable.

Conclusion

Business owners should register their trademarks as early as possible to establish full protection under federal law and prevent competitors from registering the same or confusingly similar trademarks.  The benefits of federal registration almost always outweigh the expense. 

The attorneys at Stafford Rosenbaum LLP can assist you in analyzing your business’s branding and trademarks and recommend a strategy for the use and registration of your business’s valuable trademarks.  If you wish to discuss registering your trademarks or any other intellectual property concerns, please contact Scott Seid or Laura Lamansky the authors of this article, or any of the attorneys in the Intellectual Property and Entertainment Law practice team at Stafford Rosenbaum LLP.