Wednesday, October 31, 2007

Trick or Treat?! Copyright Collections!

HAPPY HALLOWEEN! It wouldn't be a halloween blog without something in costume, and it is our office Shar Pei as Shrek and his sister Princess Marguerite Brunnehilde as a Little Girl!

I think it is perfect that we are discussing collections on Halloween as registering a collection can be a TREAT but it is more often a TRICK!

The Copyright Office makes the attempt to work with those who create a large volume of work. However, the rules are "tricky" to say the least.

Two or more works may be considered for registration as a unit on a single application when submitted with a nonrefundable filing fee and a nonreturnable deposit of the work if the following conditions are met:

  • the selections are assembled in an orderly form;

  • the combined selections bear a single title identifying the collection as a whole;
  • the copyright claimant in all the selections and in the collection as a whole is the same; and
  • all the selections are by the same author, or, if they are by different authors, at least one of the authors has contributed copyrightable authorship to each of the selections.

These are the "official" guidelines. The important part is whether or not you can read between the lines. Here are few guidelines "from the trenches"that you will need in order to file the registration:

  • The works MUST be be published at the same time
  • The works MUST be of similar subject matter
  • The works MUST be intended to be a collection

Now that is loaded! The first question that arises is: "What is considered the same time...a month, a day, an hour, a year?" That is the million dollar question without a bright line answer. One could argue that a monthly collection would count. Another could argue that a year collection would count. The real key is whether or not it puts the public on notice as to the work and when it was published.

The next question: "What is similar subject matter?" Could similar subject matter be all bracelets, certain colors, winter themes, nature, acrylics....the list is endless! Once again, there is no bright line. The key is whether or not the subject matter would give the public reasonable notice as to your work and the works being registered.

A final quick question: "What is intention to register as a collection?" Many creators believe that this means that if it was created in a series or as part of a collection, then it will count. However, the key to the answer to that question is what the creator's definition of series or collection is!

The registration fee can take a serious bite out of the budget of a creator. Many creators believe that is it possible to "lump" all their works together and register. Honestly, that is a great way to lose a registration fee and precious time if it is needed.

The term collection has many defintions in the US Copyright Office just as it has many definitions to us. A little guidance from an experienced resource is certainly recommended if you plan on registering collections. There are ways to title the collections, claim publication dates, and the like that can make your process easier in the long run.

The TREAT is if you prepare correctly, you will have a registration that is valid and you've saved cash at the same time. Now...there may be some litigation concerns regarding the registration of copyrights as collections, but we'll save that for another day (unless you ask sooner!).

Have fun "collecting" all your candy and hopefully lots of treats! Of course Bufford and Marguerite have more costumes - so we'll publish those pictures soon. DONT FORGET TO VOTE - there is just a little bit of time!

Create with Your Head and Your Heart!


Monday, October 22, 2007

"A Little from Here...A Little from There!?"

When do pieces and parts make a new whole?

Here's to a great new week! I had a little foot surgery these past few days, so I am catching up.

This blog was suggested by the delightful Brenda Pinnick of Brenda Pinnick Designs. It is her work that is up above - so fun and fresh! Brenda is a gifted artist and has several licensees (that's people who license her artwork!). Her blog suggestion was one based on a question we all ask "How much can someone else use your designs until it becomes their own?" And this my friends is a LOADED subject!

Percentage Rule - THE MYTH!

This is for US Law only - there is NOT a percentage rule that I have ever been able to find. I have heard so many different things about the "Law of 7 Changes," "10%," "Fair Use," "Parody," etc. They are myths in my opinion when it comes to how much you can change of something to make it your own. I have a statement that I use when I speak about these subjects. It comes from my parents: "If it looks like a duck, quacks like a duck, and waddles like a duck - IT'S A DUCK!" Now, without getting too deep - parody and fair use may be reasons to use the work, but you still would have difficulty in claiming it as your own

I learned last year that some foreign countries do have percentages or number of change rules. You are encouraged to check those out. However, in the be safe...REMEMBER THE DUCK!

Kits - Parts or a Whole?
As a veteran of the craft industry (consumer that is!), kits are an integral part of the business. Whether it is Michael's or QVC, kits provide consumers a great opportunity to have everything at their fingertips to hopefully make a successful project! However, the question is: "Kit Designer's Components - Consumer's Assembly...Who Owns the Copyright?"

This is one of the "grey areas" of copyright law (and there are many). This is similar to a question that Collage Artists struggle with. The US Courts hold different opinions based on where you are in the country. There is no bright line answer. HOWEVER, remember our "DUCK?"

It is my opinion that the "DUCK" analogy applies here. A consumer may be using his or her own "creativity" to assemble the pieces of a kit. However, the components are the unique design of the Kit Creator. When one takes an original work and reworks the parts - it is usually referred to as a "Derivative Work."

Please read below to what the US Copyright Office states as a derivative work:

A “derivative work,” that is, a work that is based on (or derived from) one or
more already existing works, is copyrightable if it includes what the copyright
law calls an
“original work of authorship.” (emphasis added by author)

To be copyrightable, a derivative work must be different enough from the
original to be regarded as a “new work” or must contain a substantial amount
of new material. Making minor changes or additions of little substance to a
preexisting work will not qualify the work as a new version for copyright purposes.
The new material must be original and copyrightable in itself. Titles,
short phrases, and format, for example, are not copyrightable.

I do not have a definitive "blanket" answer on whether or not a new work created from a kit rises to the level of an "original work of authorship." However, most works from kits are simple format changes of the existing pieces of the kit. The kit itself is generally a copyrightable work. Therefore, works based on that kit usually do not have significant changes to make the work "new."

Once again - back to our DUCK - if someone were to look at the card, picture, jewelry, etc...based on the kit - Whose work would the viewer see? Would the viewer see the Consumer's work (not counting the physical labor it took to put the design together) or the Kit Designer's work?

Here's a perfect example, if I were to purchase one of Brenda's Kits from QVC (and let's pick on Brenda since she suggested this topic) and used her paper, embellishments, and the like from the kit using only my own glue and say a few pictures of my dog...who owns the copyright then? Let's look at our analysis:

1) How much creativity did I use - did I use all her papers, create standard objects? Did I create a new card scultpure that would set the papercrafting world on fire? What did I create with the kit components?

2) When someone skilled in our art (aka another artist familiar with our industry) sees my cards, etc. - What do they see? Do they see only my creation or do they see I used Brenda's paper, embellishments and the like?

The above questions are those that one should ask along with a few others. It is my opinion that my hypothetical projects based on Brenda's kit, using the majority of Brenda's kit components would not rise to the level of an "original work of authorship." Remember, in the copyright world it is a GOOD thing to be called original - it is not someone just trying to be "nice" or tell you that your work "stinks!"

Collage Artists usually end up using lots of pieces and parts from lots of artists or works. That mixture usually allows a Collage Artist to rise to the level of an "original work of authorship." HOWEVER, it is a case by case basis.

The real question - "Do you feel lucky? Do ya?"

This blog reaffirms the fact that most of these situations are truly fact specific and individual in nature. It is why a continuing relationship with legal counsel is so important. One misstep could cost you dearly.

Please remember, this is not an easy subject and this is my opinion. I have actually had to argue both sides in court...The key is looking at all the facts. However, in the long run, remember the DUCK. Also remember, it is a jury that you would have to convince if the facts really were to come to it. The important goal is to keep you away from that situation. Don't forget the Golden Rule of Copyrights: "When In Doubt...Leave It Out!"

Have a great week! I hope to have the next blog on collections. I believe there are services that allow you to receive a notice when I post a new blog...or you can just come back and visit often!

Create with Your Heart and Your Head!


Tuesday, October 16, 2007

Copyrights 101 - Using Resources Already Available

Your Tax Dollars Are Hard At Work!

While doing research for today's blog, I was visiting the "Holy Land of Copyrights"...The US Copyright Office Website. I ran across a few new features and decided I would take this blog to discuss a wealth of information that is at any one's finger tips if you just decide to use it.

The US Copyright Office holds a wealth of information and can answer many questions a copyright holder may have. Rest assured, it is the first place most attorneys go when questions arise. There are all sorts of resources, such as:

Circulars and Brochures - These are short (1-4 page articles) that go straight to the heart of a single topic such as Copyright Basics, Work for Hire, Specimens, Visual Arts, etc. These Circulars are not the "end all - be all" for copyright law, but they answer many general questions and open many copyright holders eyes to the rights and responsibilities in the copyright laws.

Factsheets - These are one page, quick reference guides and serve to answer questions such as fees, contribution to a collection, fair use and even RECIPES (yummm......).

Forms - The most up to date forms for each classification can be found on the website. As well, you will find the "step by step" directions. The US Copyright Office website is great to help you with PROCEDURE but not with substance. That is where a consultation with your legal advisor is necessary to make sure all your ducks are in a row. (Don't forget to review our blog on that!)

The information changes often. There is a fairly decent search engine and the US Copyright Office continues to improve it. It is not a visual database, but there is hopes that one day there will be.


You still cannot register your copyright on line. Even if you can...I don't know if it will be such a good idea. Our firm has signed up to be a "beta tester" so we will keep you informed. The US Trademark Office registration process is fantastic...but it is a different animal. It is hard to say whether or not the US Copyright Office will be able to adapt the copyright process into an "on line" viability. As soon as we know...we'll let you know!


Yes, even the US Government can entertain you! If you want to know some general copyright facts or even explain it to younger artists, try this program from the US Copyright Website:

Here's some great items. And for those of you questioning what I am doing pasting clip art, links, etc. - US Government Items are in the public domain and we are using them for comment!

There are many options available and we encourage you to use them! They aren't the definitive answers, but a place to start. The key to remember is: Every situation is different, but there are many facts that remain the same.

Many blogs review products, etc. At our site, we review the Copyright Office! You gotta love it!

Happy Midweek!

Create with Your Heart and Head!


Monday, October 15, 2007

Copyright Poll

Don't Feel Bad...See How Much You Are Like (or Not Like) Everyone Else!

If you get a moment, take our poll. It will be on until the end of the month. This is a great way to see how many people register copyrights...AND is totally anonymous. So go ahead and answer...

Create with Your Heart and Your Head!

Copyrights 101 - Registration..Some Thoughts

REGISTER???? It's that time. Here are some thoughts to get you going....

This is where the rubber meets the road. We've looked at what a copyright is, why you should register, what time impacts your decision, etc. Now it is time to register the copyright. Consider it...a title to a valuable business asset. You've decided to register...WHAT DO YOU DO???

Can I register the copyright myself?

Short answer...sure you can. Long answer...yes you can, but you must be warned - you wouldn't extract a tooth yourself, write the deed to your house yourself...why would you register your copyright yourself? No...this is not a shameless attempt from an attorney to get more business. I admit it, I have clients who register their own. Some of my clients have been registering their own copyrights well before they came to me and some after they came to me. The key is what type of copyrights are being registered, how often items need to be registered and how familiar you are with the process. Sometimes a quick legal consultation will suffice, other times...a little more indepth work may be required.

There are items you need to consider when registering a copyright. The question may seem simple on the copyright form, but it isn't necessary that simple. Here's what I mean...

Who owns the copyright? Are you really sure you own the copyright? Have you set up a business, perhaps an LLC or an Inc.? Should the business entity own it or maybe it shouldn't and you should assign it to the entity. Perhaps you are an employee of your company, then your company owns it automatically. Is this truly a Work for Hire? The first key to registering your copyright - KNOW WHO OWNS THE COPYRIGHT!

What type of work are you registering? Are you really registering the correct work? Are there 2D drawings to go with your 3D work? Are there sketches that go with your computer generated art? Did you take the photographs that you are using to display/promote your work? Are the instructions part of the work and who created them? The next key to registering your copyright - MAKE SURE YOU ARE REGISTERING THE CORRECT WORK AND ALL OF ITS PARTS?

What specimen are you going to send into the US Copyright Office? Did you know that there are requirements for sending in a specimen that include a copy for the Library of Congress? If you are registering a 3D work, did you include an accurate representation? Is the work published or unpublished? Is your work digital or 2D? How can you prove what specimen you sent in if the copyright office cannot find your work? Another important key to registering your copyright - MAKE SURE YOU ARE SENDING IN THE CORRECT SPECIMEN AND THAT THEY ARE APPROPRIATELY MARKED.

I don't want to scare you...really...

I hear so many people say that registering a copyright is "easy." It's only two pages (or one) and the instructions will walk you through it. That is correct, but only to a point. Issues of ownership, specimens, and the work to be claimed are often important items that get overlooked. If these areas are overlooked, it can invalid a copyright or make it terribly ineffective if you need to enforce your copyright. Our firm litigates copyright infringement cases for both Plaintiffs and Defendants. We see what a solid copyright registration can do to help or hurt a case.

Tomorrow we will discuss registering collections. We will also discuss a little more of the "template" idea that many artists use. These blogs have hopefully been getting you to realize that you need to register your copyrights...we don't want to scare you off now. We just want you to do it right the first time and every time. So hang in there with us. You'll be glad you did!

On a personal note, I hope you tried something new this weekend. I took my own advice and tried to spin yarn...the joy of visiting a local yarn store was heaven. The owner gave me a great demonstration and showed me different I just have to perfect my craft. My goal is to knit a shawl from my spun yarn...but I have to start somewhere. Hummm....guess that sounds like a lot of you and starting somewhere in registering your copyrights!

Have a great week!

Create with Your Heart and Your Head!


Thursday, October 11, 2007

Beads, Baubles & Jewels! - Protection for Jewelry


We're going to be out of the office for a few days, so I am posting this early! Thanks to Margot Potter, the "potpourri" discussion of the weekend is Jewelry. What can be done to protect it? Short answer...LOTS!


A piece of jewelry can be considered a 3D object/scuplture. As a 3D object, it is covered under copyright protection provided it meets the criteria we discussed earlier. Not only is the actual piece of jewelry protected, but any pictures, instructions, and the like would be protected. Jewelry Artisans of all types should register their copyright(s) just a painter or any other artist.


A piece of jewelry MAY also qualify for patent protection. If an artist created a new clasp or functional aspect to the jewelry, it is eligible for patent protection.

REST WELL by "beadie" friends! You are considered an artist just like everyone else. All of these blogs and information on copyrights and the like apply to you as well.

Have a great weekend and try something new this weekend - you never may like it! For fun, check out Robin Beam's Blog - she is posting a technique a day and don't forget to tell her that Tammy sent you!

Create with Your Heart and Your Head!


PS - The Bracelet is one of my is called "Tiffany's Disco Bracelet" and is made out of air dry clay. I created it for a book from Design Originals.

Tuesday, October 9, 2007

Copyrights 101 - Why Register?

Welcome Back! Sorry to take a few day break - but sometimes we are at the mercy of our tools!

It's time to discuss a popular topic - COPYRIGHT REGISTRATION. We've looked at timing and what a copyright is, but now the big question "How Do I Register My Copyright With the US Copyright Office." Things are not as simple as they appear and that is what I hope you will get from this information. Yes, the copyright forms are 1 or 2 pages and it appears as if you are checking a box...or are you?!

Here is a copy of an article that I enjoy using and a great reminder:

  • Registration establishes a public record of the copyright claim.
  • Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.
  • If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
  • If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
  • Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies.

Some of these bullets make look familiar from our "Time" discussion. However, they are important reminders. Registering your copyrights can be a chore, but one well worth the time. Many of our clients have a "routine" and once they items are created they are registered based on the individual client registration strategy.

Registration is also important if you plan on licensing your art. Many licensees want to see a registration certificate.

We'll next look at what it takes to register a copyright, but we felt is was important to remind you of why you need to do so. And DO NOT WORRY if you haven't registered anything in the past, you have to start somewhere.

Thanks again for your patience and enjoy the Fall!

Create with Your Heart and Your Head!


Technical Difficulties!

You've got to love computers! When you need them...they decide to take a vacation. However, we are back. My best plans for a weekend blog went by the wayside, but that just means you have a few more days to get those topics in.

We will post a new blog tomorrow and be back on track. I don't know how my friend Robin does it - a new blog every day. WHEW EEE!

Anyway...hang in there with us. We will be back and working in the cyber-highway ASAP!


Thursday, October 4, 2007

Copyrights 101 - Part 2 - Time

Copyrights 101 - Part 2

Today is all about time. For Marguerite - is it nap time or play time? The picture was just too cute and I had to share! What a better reminder of time than this!

There's more to the Copyright Saga....thank you for staying "tuned!" I hope you will see, copyrights are really not "scary." They are incredibly useful business assets!

Length of Ownership

A work that was created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author’s life plus an additional 70 years after the author’s death. In the case of “a joint work prepared by two or more authors who did not work for hire,” the term lasts for 70 years after the last surviving author’s death. For works made for hire, and for anonymous and pseudonymous works (unless the author’s identity is revealed in Copyright Office records), the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter.

(PLEASE NOTE - The above comments are only directly dealing with those works created AFTER 1978 and after all appropriate notice provisions were removed from the Copyright Act of 1978. This is where you will DEFINITELY need to seek your own counsel if you have questions!)

The above statement is directly from For most works, the copyright protection lasts "life of the author plus 70 years." That is a LONG time. It is important to note something that I put in bold up above. Copyright protection in the US is established at the "moment of creation." It is registration that affords you the opportunity to take advantage of the copyright protection. That is why registration is so important!

The Length of copyright has its own day because it is often overlooked. Copyright registration gives you the most "bang for your buck." It is the most inexpensive form of intellectual property protection and it does not have a use requirement to keep it active. Patents and trademarks have requirements for use and for the most part, additional filing requirements. Copyrights keep their protection length whether or not they are registered. However, it is the registration that gives you the enhanced features of copyright protection. (That is a separate blog).

The moral of today's story is simple - copyrights last a long time and shouldn't be overlooked. Copyright protection is established at the moment of creation - PERIOD. We learned yesterday that it must be a fixed, tangible medium, but that is it. Where else in the federal government system can you get over 120 years protection for only $45 in fees???

Time to Register

Back to what our friends at the US Copyright Office have to say:

Registration may be made at any time within the life of the copyright. Unlike the law before 1978, when a work has been registered in unpublished form, it is not necessary to make another registration when the work becomes published, although the copyright owner may register the published edition, if desired.

Read are the benefits of time for registering "timely:"

  • Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.
  • If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
  • If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

Time is important to copyright registration. While protection attaches at creation, if registration occurs in this time frame, benefits accrue. However, the key is that is it never too late to register.


Don't Forget

Don't forget to make suggestions for topics you would like to see. We are starting to get some serious activity on this blog - and lots of private comments (which is just fine with me).

It's a beautiful day here in Ohio and it doesn't even seem like fall.
Create with Your Heart and Your Head!

Wednesday, October 3, 2007

Copyrights 101 - Part 1

Let's Start At the Beginning....

As promised, here is the first installment of many when it comes to copyrights. Today we will be looking at what a copyright is...really. This month we will be taking a look at all the "ins and outs" from an educational perspective. My goal is to give you enough thoughts so that you can ask the rights questions for your business, art, etc.

Here's the US Copyright Office Definition...

Copyright is a form of protection provided by the laws of the United States (Title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
  • To reproduce the work in copies or phonorecords;
  • To prepare derivative works based upon the work;
  • To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  • To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
  • To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
  • In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

The to remembering what a copyright is: a unique expression with a bundle of rights attached that attaches at the moment of creation. (Tammy's condensed version).

Ideas, techniques, phrases, processes, and the like are not covered under copyright. Although, I can give you a quick preview of an upcoming blog - sometimes they can. However, most of the types of items listed in the first sentence are covered under patents or trademarks. Many artists fall into a trap in thinking that copyright is a "one-stop" shop. Consider this your vocabulary word for the day - COPYRIGHT!

Copyrights cover the following items:

  • 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
  • architectural works

That's enough for today to digest. That certainly is a lot...I know! But the key to securing the assets of your business when things have been but aside is to take things slowly but surely.


Margot's comment sparked an idea (which I would try to patent because it is an idea, but I am not). On Friday, I will pick one topic based on a comment or comments that I have received throughout the week. On Thursday I will go through all the comments and look at what people are saying, suggesting for topics and the like - I will then make that the subject of my Friday or Weekend Blog. This can be any subject. Remember, it is on a topic (not questions - which blog comments are not the best for!). So...I challenge you. You can try to "stump me" or just get a discussion going! The key - POST COMMENTS!

Have a great "midweek" and remember

Create with your Heart and Your Head!


Tuesday, October 2, 2007

Copyrights - Where to Begin?

Copyrights...Where to Begin?!

This picture tells it all in my opinion! This is Princess Marguerite Brunnehilde Browning-Smith, my 14 year old Maine Coon. When we were moving last year I had to stack a ton of stuff on a side desk - she decided to guard it. When I looked at the picture, I realized how funny. The desk is full of stuff, and she is sitting on the keyboard.

There is so much stuff and a feline in the middle - WHERE TO BEGIN?! That is the way it is for so many when it comes to copyrights. You've been creating art for so long and if you are like most, you haven't been registering it. You know you should, but now...there are "stacks" to be registered and a "cat" (i.e. lack of time, money, knowledge, etc.) stopping you from this important task. Well...take heart dear are not alone.

This month of October, as promised, we will be tackling copyrights together. We will look at what they are, how to go about registering them, what they mean, etc. This may take more than October, but it is a start. If there are specific topics you are interested in, please feel free to leave comments or email. We will see what we can do to help the cause.

It's time to slowly but surely start to remove the stacks and get the cat off the keyboard. She may not be happy, but you will be in the long run!

Here's to a GREAT month - and let's find lots to harvest in your art!

Create with your heart and your head!


The Fine Print!

Since there may be legal discussions going on...there must be a disclaimer!

This blog is for educational and information purposes only. It does not constitute the practice of law. The attorney who writes this blog is only licensed in the State of Ohio and Michigan. There is NO attorney-client relationship of any type. You must sign appropriate documenation and have appropriate new client counseling to be a client of Browning-Smith, P.C. Each and every situation is different and all readers must seek his or her own legal counsel. The information on this blog is not guaranteed for any purposes nor is it to be relied on.