URGENT ORPHAN WORKS UPDATE!!!

Greetings All!

I know it has been a while, but we thought we were done with Orphan Works for the session and then we would get to come to the table to create a working solution. I have to report that this is trying to literally be passed in the middle of the night. The Senate passed a version of Orphan Works and now the House is trying to do the same.

PLEASE CONTACT YOUR CONGRESSPERSON NOW!
TELL THEM NOT TO ADOPT S.2913 OR HR 5889
They are trying to move Orphan Works tonight Oct 2 or tomorrow morning!!!

http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11980321
Please help us stop Senate Bill 2913 and House Bill 5889 by CONTACTING your Members of CONGRESS and telling them to vote NO.
Call Congress For Free: 1- 800-828-0498.
For Background info on Orphan Works Legislation:
http://www.artistsfoundation.org/orphan.html

Orphan Works...Where Does It Stand?!

The Procedure for Copyright Registration Now (First Line) and Under the Proposed Orphan Works Legislation (Second Line & Third Line for Collections)

Happy 4Th of July for All My American Friends!

First and foremost...thank you for all of your support and kind words regarding my writings opposing Orphan Works. The Orphan Works Legislation is still active and our opposition needs to be STRONG.

Many of you have asked what you can do now....CALL YOUR CONGRESSPERSON AND SENATOR!

Here's the directions (with a BIG thank you to Dena)

1 ) Telephone your members of Congress at the U.S. Capitol Switchboard at (202)224-3121 and ask them to

SENATE:

Please place a hold on the bill S. 2913 – and open it up for public debate. This bill will devastate artists small business owners across the state and country. (You may also use the form letter and rebuttal letter as speaking points.)

HOUSE:

Please VOTE NO on bill H.R. 5889 when it comes for a vote. It has rocketed through the Senate and there is a fear it will be slipped through before the end of the legislative calendar (which may be less than 30 days!). This bill will devastate artists small business owners across the state and country. You may also use the form letter and rebuttal letter as speaking points.

The key is to not let up on the pressure. Many of you have asked how this will affect the average person. One of my biggest problems with these bills have been the procedural HAVOC it would create. It would clearly take the process of Copyright Registration out of the hands of the average citizen and make it an "attorney only" process. You will see below a chart that was created regarding the differences.

**There is an important note with this chart. There is a HOPE that someday there would be a visually search database, but the technology is at least 10 years away according to most experts. Therefore, key search words would still need to be employed.***

We must not loose momentum. We are making an difference. The key is to have this stopped now and for good. There are several options and alternatives and I'll be highlighting those. Sorry to keep you waiting so long for another blog, duty called all over the country!

Create with Your Heart and Your Head!
Tammy L. Browning-Smith

Orphan Works and Washington DC

Greetings All!

For two days I had the chance to truly be part of the political process, hitting the "Hill" to advocate against the Orphan Works Act. It was an amazing adventure and it brought home two things:

1) YOU MUST not only write but call your Congressperson and Senator. Many Senators and Congresspersons state that more than once these past weeks that our letters have been the "winner" when it comes to the most regarding an issue. This correspondence made it easier for us to get appointments and have people take note. Many on the Hill believe that this is not a controversial issue and that it will not harm anyone - your correspondence makes a difference!

2) Tell everyone you know to write and call. The other suggestion is to also go to your Senator and Congressperson's website and email comments directly off the form they provide. They do get those MUCH quicker. REMEMBER...the key is to WRITE and CALL!

Here is the example I sent and I used the "Small Business" Category. Please use your own words. The key is the legitimate numbers of contacts! The Senate has fast tracked this Bill and we must make our voice heard NOW! :

Please vote no on the Copyright Reform/Orphan Works Act. It would devastate small business for many artisans of all type in Ohio. There are ways in expanding Fair Use or creating stronger definitions in the Bill that the true orphans can be used. This bill with its provisions for searches, notices, and the like make it very difficult for a small non profit, individual and the like to use an Orphan and isn't that who this bill is supposed to help?!
Thank you for your time on this important subject!

I met some outstanding businesspersons and artists these past two days. I will continue to share their stories as it is their livelihood that will be devastated. These bills are truly Copyright Reform and do not address Orphan Works in any way. I can only hope that the creative communities and non profits can come together to work on a solution that will help create a Bill that addresses concerns and that does not include Registries that would give billions to private, special interests.

Keep on fighting the good fight. There are several thousand hits a day to this website, if you all acted...we could stop this. The key is to act in simple ways to make a huge impact!

We Shall Overcome!
Tammy L. Browning-Smith
(One Very Tired Attorney Who Met with 14 Offices in 1 1/2 days!)

The Fight Against the Devastating Consequences to the Orphan Works Act Continues

Greetings!

The Grass Roots Effort to stop the Orphan Works bills is going full steam ahead as many are beginning to truly understand the devastating effect these bills would have on the visual arts.  

Please check out http://www.owoh.org for the latest information, schedule of information, and the like.  

Your emails, calls and postcards ARE making a difference.  Please keep them up and don't forget to education yourself on the bills as well.  Be prepared to say why you oppose this and how it will affect your business.  Don't just take our word for it...

Keep fighting the good fight!

Tammy 

Orphan Works - House of Representatives

Greetings!

Here is the letter that I sent to the House of Representatives. NOTE - the letter to the House is different than the Senate because the proposed bill is different. The House Bill does not have a requirement for a Private Database. I have been surprised in my dealings with the members of the committee from both houses. The real issue is education. Please make sure you read the Bills and can answer questions (i.e. I don't like XYZ and this is why). Many congresspersons are trying to get their heads around this and understand it. You do have permission to cross post this. It is similar to the Senate letter, but different as well! Keep fighting the good fight and we welcome any questions!

PS - We are SERIOUSLY considering a "fly in" where artists would come to the capital and meet with the delegations in their states in groups of 4 ish. Start thinking about it, we still need to formulate this a little more!***

May 6, 2008

RE: Orphan Works Act of 2008 – H. R. 5889
Dear Distinguished Members of the Committee:

Thank you for the opportunity to comment on the proposed Bill. THIS IS A SERIOUS BILL WITH SERIOUS ECONOMIC IMPACT. Our law firm focuses extensively on the creative arts industries and represents both manufacturers and individuals through counseling, registration and litigation. After a thorough review of the proposed Bill, the following comments are offered from a legal professional who would be "in the trenches" if this Bill were to pass.

Nullification of the Copyright Act of 1976
Artists relied on the provisions of the Copyright Act of 1976 that did not require them to place the copyright notice on their work in order for them to own their copyright. The additional provisions of this bill do not change the language of §401(a). The Act clearly states that "copyright…subsists from its creation." The Bill does not state that this language will be changed to "copyright…subsists from its creation provided that you register, use the correct search terms, and can pay for it." This Bill puts a large requirement on individuals to register and use large amounts of financial resources to protect an artistic work.

Databases and Reasonable Search
Copyright registration continues to be the most accessible intellectual property protection available to the public. The fees are minimal and the forms understandable so that an average person could complete the task with relative ease. The proposed bill changes that premise. It is my understanding that the House Bill does not have a Private Database provision. While that is applauded, it still creates a terrible issue regarding the "reasonable search" requirements. Google databases and the internet are not sufficient nor are Artists required to register with them. Copyright Registrants will need to use carefully selected terms in order to insure that a work is able to be found. The expertise required will force registrants to seek legal counsel and other professionals at substantial costs in order to obtain protection. This makes a "user friendly" system inaccessible to many and then will create orphans because many will no longer be able to register their works..
Millions of artists relied on the provisions of the Copyright Act of 1976 that did not require them to use a copyright statement. The Artists who followed that law are now being punished and the new provisions in essence create an Ex Post Facto law that punishes the Artists for following a law in the first place. This is outrageous.

Reasonable Compensation & Relief
The majority of creative individuals do not make large sums of money.
The term "Reasonable Compensation" opens the door for a significant amount of litigation. Highly qualified individuals disagree on what "reasonable compensation" would be on any given license. Daily our firm works with licenses and knows the complexity that goes into them. It is impossible to determine the value of a license without having the license actually go to full term. Allowing an infringer to only pay "reasonable compensation" would require an artist to wait for compensation and then would limit his or her abilities to exploit the art, as the art is already in use in public. For example, an infringing use of artwork on textiles would prevent the rightful owner from entering into a potentially far more profitable exclusive licensing arrangement with a manufacturer of his/her choice.
Litigation is expensive. Many artists are only able to bring such cases forward because of contingency arrangements made with a law firm. This type of litigation has not over burdened the court system nor has it been shown to be abused. This type of litigation permits an injured person his or her day in court. This Bill would remove such an opportunity. Not only would it remove any financial incentive for attorneys and artists to work together, it would also make it almost impossible to bring a case forward because of the heavy financial requirements placed on the artist. The financial (and technical) requirements of this Bill truly assume that an artist is "guilty of failing to comply until proven innocent" instead of the reverse.

Works Based on the Infringed Art
The most appalling and morally outrageous part of this Bill pertains to the registration of new works created from the infringed upon work and the prohibition of the injunctive relief if a work"…. integrates the infringed work with a significant amount of the infringer's original expression." The US Courts have never adopted a bright line test in regards to the changes of an original work in order for the new work not to be an infringer of the old. This bill suggests that there is a rule for changing an existing work and making it a new work, yet it fails to state the exact rule.
Failing to specify a rule creates legal havoc. Not only does it create legal havoc, it causes substantial confusion to the public and requires significant money to be spent in order for a judicial body to determine what is a "significant amount."

International Implications
The global marketplace will become even more difficult to navigate because of this bill. International Artists’ rights will be greatly compromised here in the US. This invites sanctions under the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
Furthermore, if a manufacturer were to rely on the US "Safe Harbor" for orphan works and ship the merchandising containing an infringing work to a Berne Convention country, the manufacturer could face stiff penalties for infringement as the Berne Convention does not recognize such a term as "orphan works" and states that copyright ownership is free from formality. The Berne Convention gives US Citizens the rights to protect their work in other countries, but this bill would mean that US Citizens may not be able to protect his or her own rights in their homeland if "formalities" were not followed.

Everyday Application
This Bill will take the copyright registration and enforcement out of the hands of the individual artists and place them squarely in attorneys’ hands. It establishes systems to determine what is fair and what is reasonable in a field where individual facts and situations dictate the outcome, thus making "bright line" rules burdensome and unfair. The windfall for the legal profession will come at the cost of untold artists whose works will be free for the taking. Citizens will no longer be able to register their own copyrights without significant expertise or expense, and in fact this Bill essentially states that copyright registration is not sufficient to protect one’s work. This Bill takes a piece of the government out of the citizens' hands and places it in the hands of a select few.
Furthermore, the Bill gives persons the opportunity to register their use of an Orphan Work, but it does not require any visual if available. The registry does not give a person full absolution and it is very possible that a company will open itself to liability if it cannot truly prove a "reasonable search" and that it complied with all the technicalities of the requirements. A cottage industry of attorneys tolling for opportunities will surely develop.
Useful Articles
The most difficult part of the Bill that will truly create the most legal difficulties comes to the term "useful articles." Useful Articles share such a broad definition that it could be a nightmare. The definition from 17 U.S.C. §101 states:
A “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article”.
A picture on a wall portrays the appearance of the article, but it also decorates a room. Fabric is argued to be a useful article, yet there are functions that it is not a useful article and a mere decoration. The House of Representatives reliance of the definition used in the current law demonstrates a lack of understanding of the impact that this Bill will have and the legal havoc that it will create.
There are many emotional arguments against this Bill, but there are even greater procedural and legal issues that makes this Bill impossible for the average person to use.

Economic Impact
A prime example of an impact of this Bill that has not been considered is tourism. Rural Art Communities, Amish Crafts persons, and Artisan Communities will be dramatically affected by this. Most of these communities contain unsophisticated creators that bring about substantial tourism dollars to many economies. At this time, the only manner that many of these works are protected are under the current Copyright Law. Many of these works would be made orphans and subject to mass production. The charm, uniqueness and even financial incentives for creating unique, originals will be gone. The items created by these special creators would readily be available for the mass market without a cost effective and reasonable way for these creators to seek compensation.
Please know that our firm is willing to answer any questions that you may have or provide testimony on this matter at any time. We are a law firm that handles these issues on a daily basis. Our representation is diverse including famous brands, famous artists, manufacturers and those waiting to be discovered. I personally hold a Juris Doctor and a Master of Laws in Intellectual Property. We live copyright law on a daily basis and would see first hand what consequences this Bill would have on both sides of this issue.
Thank you for your consideration in this matter.
Sincerely,
Tammy L. Browning-Smith, J.D., LL.M
BROWNING-SMITH, P.C.
TBS/cat

ORPHAN WORKS OF 2008 - The time to act is now!

The Artist Community is all abuzz. This past Friday the Orphan Works Act of 2008 (in the House of Representatives) and the Shawn Bentley Orphan Works Act of 2008 (in the Senate) were introduced. I do not need to tell you the devastating effect this would have on many creative industries. We will continue to educate the public on this issue. The letter below is the letter that our firm sent today to the Senate for the Comment Period which ended Today (they gave us alot of time). The time to act is now...calls to your congressional delegation and telling your friends is imperative. We will have more information as it becomes available.
________________________________________________

April 30, 2008

United States Senate
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

Sent Via Facsimile

RE: Shawn Bentley Orphan Works Act of 2008 – S. 2913

Dear Distinguished Members of the Committee:

Thank you for the opportunity to comment on the proposed Bill. Our law firm focuses extensively on the creative arts industries and represents both manufacturers and individuals through counseling, registration and litigation. After a thorough review of the proposed Bill, the following comments are offered from a legal professional who would be "in the trenches" if this Bill were to pass.

Nullification of the Copyright Act of 1976

Artists relied on the provisions of the Copyright Act of 1976 that did not require them to place the copyright notice on their work in order for them to own their copyright.[1] The additional provisions of this bill do not change the language of §401(a). The Act clearly states that "copyright…subsists from its creation."[2] The Bill does not state that this language will be changed to "copyright…subsists from its creation provided that you register, use the correct search terms, and can pay for it." This Bill puts a large requirement on individuals to register and use large amounts of financial resources to protect an artistic work.

Public Notice and Private Databases

Copyright registration continues to be the most accessible intellectual property protection available to the public. The fees are minimal and the forms understandable so that an average person could complete the task with relative ease. The proposed bill changes that premise. The use of private databases creates two very significant problems:

1) Private Databases force individuals to become intimately familiar with search terms and remain current on any case law that would direct what constitutes a "qualifying search." The bill requires the use of search terms that require the average public to become attorneys or highly skilled researchers to know what terms to use so that a work of art can be located.

2) The cost for registration for both the US Copyright Office and any private database(s) could be substantial to most artists who create multiple works in a short time frame. As well, if an artist does not feel comfortable filing such documentation due to the burdensome requirements, he or she will need to hire an attorney which will prevent the vast majority of artists from registering copyrights.

The use of search terms and registration with the US Copyright Office and private databases takes some of our country’s greatest treasures and places them in the hands of private individuals. The Federal Government is privatizing part of a constitutional function (the protection of intellectual property). The burden placed on the individual artist is a far greater crime under this Bill than the potential that a work of art will not be able to be used because the owner is not found. The passage of this Bill would eventually mean there will only be works of the past. It will be almost impossible for the individual artist to survive and protect his or her work while making a living as an artist.

Reasonable Compensation & Relief

The majority of creative individuals do not make large sums of money. The large corporations, libraries, museums, and the like that are attempting to have this bill passed hold the position that national treasures are being lost because the creator cannot be found. This could not be further from the truth. There is a great amount of art available for use and many times the compensation asked is minimal.

The term "Reasonable Compensation"[3]opens the door for a significant amount of litigation. Highly qualified individuals disagree on what "reasonable compensation" would be on any given license. Daily our firm works with licenses and knows the complexity that goes into them. It is impossible to determine the value of a license without having the license actually go to full term. Allowing an infringer to only pay "reasonable compensation" would require an artist to wait for compensation and then would limit his or her abilities to exploit the art, as the art is already in use in public. For example, an infringing use of artwork on textiles would prevent the rightful owner from entering into a potentially far more profitable exclusive licensing arrangement with a manufacturer of his/her choice.

It is true in the realm of merchandising that you only get "one shot" at the public. The artist's right to fair compensation and further exploitation would be ruined. In this scenario, the artist would only be able to be compensation for the use and not the loss of the art's exploitation value. Even personal injury victims are allowed some type of future or speculative damages, but creators of art would not be permitted such rights.

Litigation is expensive. Many artists are only able to bring such cases forward because of contingency arrangements made with a law firm. This type of litigation has not over burdened the court system nor has it been shown to be abused. This type of litigation permits an injured person his or her day in court. This Bill would remove such an opportunity. Not only would it remove any financial incentive for attorneys and artists to work together, it would also make it almost impossible to bring a case forward because of the heavy financial requirements placed on the artist. The financial (and technical) requirements of this Bill truly assume that an artist is "guilty of failing to comply until proven innocent" instead of the reverse.

Works Based on the Infringed Art

The most appalling and morally outrageous part of this Bill pertains to the registration of new works created from the infringed upon work and the prohibition of the injunctive relief if a work"…. integrates the infringed work with a significant amount of the infringer's original expression."[4] The US Courts have never adopted a bright line test in regards to the changes of an original work in order for the new work not to be an infringer of the old. This bill suggests that there is a rule for changing an existing work and making it a new work, yet it fails to state the exact rule.

Failing to specify a rule creates legal havoc. Not only does it create legal havoc, it causes substantial confusion to the public and requires significant money to be spent in order for a judicial body to determine what is a "significant amount."

Thieves are not allowed to keep the stolen property, but this Bill would allow infringers to steal work and call it their own. Mistakes happen and innocent infringement occurs. However, an artist loses twice under the proposed bill. An artist loses money and future opportunity when the work is stolen. The artist loses a second time when the infringer is allowed to register the work and then claim it as "new" which creates commercial value. Once again, a criminal can't be tried twice for the same crime, but this Bill permits a victim to lose twice from a crime.

International Implications

The global marketplace will become even more difficult to navigate because of this bill. International Artists’ rights will be greatly compromised here in the US. This invites sanctions under the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Furthermore, if a manufacturer were to rely on the US "Safe Harbor" for orphan works and ship the merchandising containing an infringing work to a Berne Convention country, the manufacturer could face stiff penalties for infringement as the Berne Convention does not recognize such a term as "orphan works" and states that copyright ownership is free from formality.[5] The Berne Convention gives US Citizens the rights to protect their work in other countries, but this bill would mean that US Citizens may not be able to protect his or her own rights in their homeland if "formalities" were not followed.
Everyday Application

This Bill will take the copyright registration and enforcement out of the hands of the individual artists and place them squarely in attorneys’ hands. It establishes systems to determine what is fair and what is reasonable in a field where individual facts and situations dictate the outcome, thus making "bright line" rule burdensome and unfair. The windfall for the legal profession will come at the cost of untold artists whose works will be free for the taking. Citizens will no longer be able to register their own copyrights without significant expertise or expense, and in fact this Bill essentially states that copyright registration is not sufficient to protect one’s work. This Bill takes a piece of the government out of the citizens' hands and places it in the hands of a select few.

68% of all Americans say that this nation is in a recession.[6] The nation is at war against terrorism. Untold millions of American's are without jobs. The need for this type of Bill that would take opportunities for the average American to make a living is shocking and beyond comprehension. National Treasures are not going unused, but large corporate interests are trying to get to items that they couldn't use thus far, so that profits can be reaped. It's about the economy and not copyrights. It's time to get back to the problems facing the nation and move forward to creating a fair economy for all.

Please know that our firm is willing to answer any questions that you may have or provide testimony on this matter at any time. We are a law firm that handles these issues on a daily basis. Our representation is diverse including famous brands, famous artists, manufacturers and those waiting to be discovered. I personally hold a Juris Doctor and a Master of Laws in Intellectual Property. We live copyright law on a daily basis and would see first hand what consequences this Bill would have on both sides of this issue. Our office number is (440) 398-0098.

Thank you for your consideration in this matter.
Sincerely,


Tammy L. Browning-Smith, J.D., LL.M
BROWNING-SMITH, P.C.

TBS/cat

[1] 17 U.S.C. §401 (a) – the language clearly states "may be placed" but a requirement is not established.
[2] 17 U.S.C. §302 (a)
[3] Page 4, Line 1
[4] Page 11, Line 1
[5] Berne Convention, Article 5 (2)
[6] http://americanresearchgroup.com/economy/ - April 21, 2008 American Research Group, Inc. Poll

Long Time...No Blog...

Greetings All!

Sorry it has been SO VERY LONG since I have blogged for all of you. Time sure does fly.

I just wanted to talk a little bit about something that keeps coming up over and over again - NON DISCLOSURE/CONFIDENTIALITY AGREEMENTS (NDA).

Here is a quick reminder for all of you:

If you are showing a copyrighted/copyright protected item - if someone takes it - that is an instant action waiting to happen. That is why registration is so important. In the day and age where artist are climbing all over each other for work - if you make it hard to see, the company may move on to someone else. Think seriously about non-disclosures if you are showing your 2-D artwork. If you want a compromise...there are plenty. How about showing a sampling or even having certain "public collections?"

HOWEVER, the minute the artwork because a product idea, is placed on a product showing an new idea, you are sharing something like a method, process, or improvement, you need a Non Disclosure/Confidentiality Agreement. These items are protected by a patent. If you do not have a patent and share, there is a strong likelihood the idea could be taken and nothing could be done to stop the other party. This is true if you are a manufacturer OR an artist.

In the day and age where we work in the speed of light - it is easy to forget something so small. However, something so small can lead to something VERY BIG later on. It is important to know and trust the other side - don't be afraid to get references, ask questions, and the like. Even though you have a "piece of paper" signed - it is truly only as good as the other side.

This is a short and sweet...to the point blog. I just wanted to hopefully share my opinion on the whole controversy about when an NDA may be needed. It is very important to be cautious, but not so cautious you end up losing a sale.

I missed you all and I promise to be back sooner!
Create with your head and your heart!
Tammy

Showing Your Stuff...

SHOW YOUR WORK WITH PRIDE

A promise is a promise! Thank you so much for voting on my poll. It will help tremendously. If you have not done so yet, please do. There is still time. Your input is INVALUABLE. Don't forget, the seminar Intellectual Property 101: Copyrights, Trademarks & Patents will be offered Monday, February 11, 2008 from 12 - 1 PM. Even if you have taken a seminar from us before, you will learn something new! The focus is truly going to be on economical ways to protect your works.

To thank you for your help, this blog is dedicated to those who plan on showing their works at either CHA Winter 2008 (or Surtex, etc.). Our firm gets these questions often. It is also why we are so busy at this time of year. This list is not exhaustive, but it is a start.

**Please remember that each situation is different. These tips are "generally speaking." Common sense rules apply. If you don't feel comfortable, don't share and when in doubt...leave it out!***

IDEAS, PRODUCT CONCEPTS, TECHNIQUES

If you have an idea, product concept or technique that you would like to "shop around" then please be aware that ideas, product concepts, and techniques are generally protected by a patent. If you do not have a patent (and I am not going to lie, they can be expensive), then your next option is a Confidentiality Agreement. Ideas, Product Concepts and Techniques are protected by patents and if you don't have a patent, the general rule is that your idea can be taken. In the real world, please know that many times inventors or artists shop their ideas around before they get a patent just to see if the expense of a patent is worth it. However, they do so with a Confidentiality Agreement or at their own peril. The key is knowing who you are showing your work to and don't be afraid to get references! There are honest and reputable people in our industries...just proceed carefully.

ARTWORK

If you are like most artists, then your best work for a show comes about 24 hours before the show begins! As well, most artists exhibit a large array of their work (old and new)at these shows. An artist never knows what piece of art (big or small) will help them land the big deal. Therefore, more is better!

The ultimate way to protect your art from being stolen is to keep it locked in a closet and never show it. That would defeat the purpose of a show. Honestly, there is no way to protect your artwork from being infringed upon or stolen. There are ways that artist can deter such actions when it comes to shows. An important reminder and one of the "cheapest ways" to protect your work- always stay true to your "style." If you have a recognizable style, it deters others from trying to copy it for fear that they will get caught quickly!

COPYRIGHT REGISTRATION! That is the key to help protect your artwork when you show it at a show. If you have time in advance, then make sure you submit the registrations before you go. If you don't have time, then make sure you do so IMMEDIATELY after you return. In most cases you may have up to 3 months after your first publication to register your artwork. However, in most cases artists show a mix of old and new work at a show. The "old" work generally does not have the 3 month grace period. Its tricky, but a quick look at the US Copyright Office website or a call to your Intellectual Property Attorney should be able to answer most questions.

While individual registrations for each piece of work is ideal...it is not practical in most situations. Collection Registration is a start and a great way to get most of your work protected in the most economical manner possible. You will want to check out our blog on Collection Registrations to find out more information. Collection Registrations generally do not mean your entire booth in one copyright registration form. So know the rules! Copyright Registration will give you the chance to defend your work, seek damages and possible attorney fees (which can be the most expensive part of defending your work usually) if done in a timely fashion. The important issue is TIMELY FASHION!

VISITORS

This is the ultimate goal - GET PEOPLE TO SEE YOUR WORK. However, what do you do with them when you get them to visit? There are tons of great seminars and offerings to help you with the marketing end. However, legally speaking, there is one great thing that you can do...GET THEIR CONTACT INFORMATION. This also helps when it comes to the marketing end as well. It is great for everyone! Have a sign up sheet on your table for people to request more information. If you hand someone a portfolio page/ information sheet, then make sure you get a business card. The key is getting names and information.

Why are names important? If your artwork gets taken, then it will be important to prove access to your work. Lists of people who had access to your work, generally end up being very useful. Please, this is not saying that people who want your portfolio page/ information sheet are out to steal your work. FAR FROM IT. For many reasons, it is a great idea to have the contact information for people to whom you give your information to. A final note on the issue of visitors, don't be afraid to write information down about the person on the back of their business card even when they are standing there. No one will fault you for it and it is a great mind "jogger" later on.

GENERAL "GOOD IDEAS"

Here are a few final tips that will help for many reasons, including legal ones. The list isn't exhaustive and comes from a legal perspective. I do have to admit that I have significant trade show experience, so that may come out as well.

• Take a picture of your booth when it is complete. It's always a good idea to have a picture of your booth, what you displayed, etc.
• Keep a copy of the Show Catalog and any other information passed out about your booth. This is information that participants receive from the sponsoring organization. Don't forget the website information as well! That is easy to download.
• Bring copies of your booth contract, shipping information, a few extra shipping labels, and any other paperwork you have on the booth. Originals are ok, but copies are better in case something gets misplaced. One never knows when he or she will need it (or need to ship something home!).
• Keep a copy of every piece of literature that you made available to the public. Keep this at home and put it in a file before you leave. Having one copy of marketing materials for reference is essential on many fronts and filing it away before you leave will make sure you have it later!
• Keep notes during the show...a little notebook will help later on. You never know when you may need it.
• DO NOT sign any contracts or agreements at the show. In the flury of excitement or activity you may be inclined to "sign right away." This is a BAD idea for a multitude of reasons. Now...if you have been working on an agreement before the show, then by all means...seal the deal. However, if someone offers you a deal right then and there and expects you to commit, proceed with EXTREME caution. You may hear the story about presenting it to a buyer at the show, etc. It may be "ok" to have them show it to a buyer, but do not make any promises or commitments.
• Have your professional team's phone numbers handy. It pays to have your professional team in place and have their numbers handy in case of questions. Your professional team may include your agent, attorney(s), accountant, insurance agent, massage therapist or anyone you rely on. For example, every show we set aside time (and it is always used) for questions that come up during the show. Our clients (and some new ones that we meet at the show) give us a call and we work to solve the issue at hand. Sometimes it helps to have an extra ear of someone who has been there. Another excellent resource in a pinch is your fellow exhibitors. Please know that most of the people you will meet at CHA, Surtex, and the like have been in your shoes and are happy to help.

We wish you success beyond your wildest dreams in this the "Convention Season." We will be a the CHA Winter Show, but due to safety concerns are a little hesitant to pass out our cell phone number on a blog. However, if you click the link to our website we will be checking messages and/or email periodically throughout the show. Even if you just want to say "HI", we would love to meet the close to 2,000 readers of our blog a day!

Thank you again for your help with our poll! We will be blogging again after the 14th of February, so enjoy your "time off" or catch up on some back blogs!

Create with Your Heart and Your Head!

Tammy

Wishing Our Friend Safe Journeys...

First off, let me say, I know this is an Arts and Crafts Law Blog. You've come here for information. However, we are also human here. Sometimes, information and inspiration comes in different forms and education comes when we least expect it!

SAFE JOURNEYS IN YOUR NEW HOME RENEE! WE SHALL MISS YOUR PRESENCE BUT NOT YOUR SPIRIT!

The licensing industry, art world, and the world in general was dealt a serious blow this week with the passing of Renee Bolusky (Chrysalis Studios) from this life to the next. Renee, a talented artist and amazing human being, fought the brave and courageous battle with cancer. She left behind a wonderful husband, two beautiful daughters, loving family, and amazing friends. It is hard to believe that she was under 50 years old (remember, women don't tell their age!).

I wish I could offer an explanation for her passing, but I cannot. I do know that such a compassionate, vibrant being of light (even to the end) does not leave us. Do you ever wonder where a "wild idea from nowhere" comes from or how about that sudden burst of creativity? I have no doubt it comes from people like Renee who have passed from the other side.

Here at Browning-Smith, P.C., we are deeply saddened at her passing. Not only were we honored to call her a client, but we even more treasured the opportunity to call her a friend. If her family permits, we will continue to see that her outstanding talent continues to brighten this world...just has she did for 40+ years. Please know that our hearts go out to them and to all who have lost a loved one. We ache with you.

We are not posting her picture or her artwork here. We encourage you to visit her website. We want you to notice her logo - it is the pink ribbon with butterfly wings. She saw her cancer as a new opportunity. The lessons Renee taught us are many, but one of the most important ones to remember is that...

Beauty is everywhere, in everything, and in everyone.

Enjoy & Celebrate Life!

Tammy & Everyone at Browning-Smith P.C.

All Hear This!!! - Terms of Use/License to Use Your Project

IS ANYONE PAYING ATTENTION???

Thank you for your continued voting in our poll! Keep it up and encourage your friends to do the same. The information is valuable and will help us help you! As well, keep up the comments and don't be afraid to make your comments public. Your comments and questions help others!

This blog will start to tackle a common yet misused tool in the Intellectual Property Toolbox - the Licensing Terms, Terms of Use, Fine Print, or Words That No One Reads. Everyone has seen the statements on some artwork, books, fabric or the like. They are statements such as:

"For Personal Use Only"

"Not for Commercial Sale"

"The projects in this book are for personal use only and may not be mechanically produced in any form."

Here's a great definition from Wikipedia:

Where intellectual property is concerned, Terms of Use may be set up in order to let an audience know specifically what can and cannot be done to the work with or without the creator's permission. For written work, terms of use may say that it cannot be distributed by email or other means. Artistic works may stipulate a requirement for compensation in the way of payment, advertising, artist credit and/or other items or services.

Why Have Such a Statement?

A Terms of Use Statement helps both the creator and the purchaser. The creator can sell instructions, designs, products and the like to a purchaser without having to worry (in theory)

The Perfect Statement

There is one misconception that should be cleared up immediately. There is no "magic statement" or "perfect statement." The best statement or Terms of Use is one that tells the purchaser or user exactly what can or cannot be done with your work or creation. Any statement that clearly lists what the purchaser can and/or cannot do with your creation (or a derivative of the creation) is your "perfect statement."

No Statement at All

Many times a purchaser will only see the copyright statement on a creation that is purchased. That is particularly entertaining on a "How to" book or piece of fabric. If one wishes to be SUPER technical - without permission, a person cannot display, use, or create derivative works from a copyrighted work.

I know...that sounds silly. YES! I'm telling you that if you buy a book on how to make something but the author or copyright holder does not give you permission to make the item or follow the instructions you can only read the book. HOWEVER, HOLD ON.

While it is not a true legal term, the argument is always that there is an "implied" license for a person who purchases a how to book to make the project. That only seems fair. Should that implied license also go to re-selling the book? There is a law that says in MOST circumstances one can resell the work once it is sold to them (First Sale Doctrine). What if the artist or creator does not wish for the item to be re-sold on ebay, but doesn't care about anywhere else???

While there are unique circumstances for every creation and every artist, there is one item that remains the same....TERMS OF USE. In this day and age, you can't install a computer program without agreeing to them, you can't watch a movie without seeing them....why shouldn't you own or use a copyrighted work without them?!

Very soon we are going to put up on our website a collection of Terms of Use statements. I recently became intrigued by them when I was at the hospital getting an X-Ray and the sticker they gave me that said "I WAS A GOOD PATIENT" had a great Limited License or Term of Use statement. It is true, I'm always thinking about this this stuff.

REMEMBER, Vote! And Don't Forget to Leave Your Questions!

Create with your Heart and Your Head!

Tammy

Copyright Notice - Does Anyone Even Notice?

Thank you for the great feedback on the last blog regarding techniques. I encourage more of you to use the comment section. I get several comments "off blog" but please use the comment section to share your questions. There are great comments that help me springboard to new answers, etc. No one will bite - we promise!


YOUR HELP IS NEEDED! Please vote in the on line poll. We have an upcoming seminar at the Craft & Hobby Association Winter Show the issue addressed is Patents, Trademarks and Copyrights 101 and will be geared to how to protect your work. I would like to take it further and really focus on cost effective ways to protect your work. However, it is going to be important to know what is really going on right now with the status of the economy. Are artists more worried about proving their work as theirs? Selling it? et. al. Therefore, your votes are important. Please vote. If I get over 100 votes, I promise after the seminar to post a Top Ten List of the most cost effective ways to protect ones work. A big THANK YOU in advance.


Ok...now the topic at hand. And this is another launch pad subject. How do you claim your copyright on your creation? What if there is no language at all. This is always a fun topic.


COPYRIGHT NOTICE

The Magic Copyright Formula

C with a Circle, Copyright or Copr. + Year of First Publication + Comma + Name of the Owner of the Copyright of the Work

Ex. Copyright 2008, Browning-Smith, P.C.

The use of a copyright notice is no longer required under the current Copyright Act. Notice was required under the 1976 Copyright Act. This requirement was eliminated when the United States adhered to the Berne Convention, effective March 1, 1989. Although works published without notice before that date could have entered the public domain in the United States, the Uruguay Round Agreements Act (URAA) restores copyright in certain foreign works originally published without notice.


That's a mouthful from the US Copyright Office. Basically, copyright notice is not required after March 1, 1989. If the work was before March 1, 1989, it was. If you have an older unpublished work, then you definitely need the magic formula. Older works are tricky. Our firm gets many requests to "clear" work for public domain usage and we tread lightly. What if the work in some places did have the copyright notice? What if the work was unpublished and only recently published? Did the copyright owner renew the copyright? Is the work subject to trademark law? It's never easy and we'll leave public domain for another day. The moral is just because something does not have a copyright notice on it does not mean it is in the public domain.


There is something interesting I recently uncovered after years of trying to come up with unique ways to put the copyright notice on a piece and include the date without making the piece "less desirable" because it has a date on it.


The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful article.


Those words are directly from the US Copyright Office. I think it is a landmine. "USEFUL ARTICLE"...hummmmm.... And what is stationery, greeting cards, etc. - which definition? While it is certainly advantageous to leave the date off, proceed carefully. However, it is up to you.


WHY IS THE COPYRIGHT NOTICE SO IMPORTANT?


Ok, please don't shoot me for saying this...Because it gives notice to the world of your claim of copyright. As well, some countries still require it. I can almost guarantee the first defense I hear in an infringement lawsuit is..."I didn't know anything about a copyright." The US Copyright Office does not have a true visual database for searching nor are there any truly comprehensive visual databases available. Therefore, searching is almost a nightmare. But remember, there is a key to copyright law...


The Key to Copyright Law is the fact that there can be more than one of the same creation if it is truly a unique creation brought forth independently of the other. It is VERY difficult to meet that threshold in the day of the Internet since you can find almost anything on the net (except for a good visual art database to search and Google images does not work). Really and truly, you shouldn't have to worry about searching copyrighted material if you create your own unique works.


HOWEVER, if you are a manufacturer, then copyright notices are very helpful to find an artist. This is where the goal of your artwork is key. If you truly wish to license your creations (or even sell them), then the copyright notice is another great way to let people know who the magnificent artist is that created the wonderful work!

**A QUICK NOTE, many times one will see the statement "All Rights Reserved" after the copyright notice. According to US Law, that is no longer necessary. However, with that being said, some foreign countries still require it. However, most countries subscribe to the same treaties that the US does and therefore would honor the US Law. It's a toss up and something to consider.**

Our friends that do not create in the US have a set of issues regarding copyright notice that make is very difficult at times to figure out what to do. However, the best practice is to always put it on the piece...why take a risk?

Copyright Notices are your friend. They help you protect your work, claim your work, and even market your work. Placement does not have to be in the middle of the piece, but it needs to "give reasonable notice of the claim of copyright in the work." Simple English - It needs to be noticeable. I like to tell people that it needs to touch the creation in some way (on the bottom of a 3D Object, in the selvage on a canvas, the back of a picture....).


HEY...this one I tried to use simple English, but I don't know how I did. If you have questions, just let me know. Our next blog will be on Usage or License Statements (sometimes known as Angel Policies or Statements of Use).


Have a GREAT week, don't forget to vote in our poll, sign up for CHA, and...

Create with Your Heart and Your Head!
Tammy

Happy New Year!!! It's Technique Time!

Happy New Year!

After a much needed hiatus, we are back and blogging with a vengeance. We have a series already set to run every few days covering all sorts of requested topics and ones that are very relevant to current events! So try to keep up.....we are!

A Quick Reminder: If you haven't done so yet, you may want to register for the Craft & Hobby Show coming up in Anaheim, California February 9-13, 2008. There will be a great trade show and excellent seminars including one by our firm.

TECHNIQUES!!!

This one is for all of you who have ever wondered what can be done with a technique one develops.

In the Hobby & Craft or Do-It-Yourself Industry, techniques sell product. Let's face it, there may be formulation differences, but paint in the end is paint...something to cover and add color to a surface. HOWEVER, the way the paint goes on a surface, what it looks like when it dries, the color variety, etc. comes from the techniques used.

There are two types of techniques - common/public domain and new/proprietary. Common or public domain techniques are those that are well known by the public and used often. These would be using a paint brush and dipping it directly into paint or rubbing a rubber stamp over an ink pad. However, new or proprietary techniques are those that either expand on the common techniques or are brand new. A great example of an expansion of a technique would be rubbing a rubber stamp across an ink pad and then misting the stamp lightly with water before placing it on the surface to create a watercolor effect.

As creative folk, new techniques are created on a daily basis. The key questions are....HOW DO YOU PROTECT A TECHNIQUE? AND CAN YOU USE SOMEONE ELSE'S TECHNIQUE?

HOW DO YOU PROTECT A TECHNIQUE?

The short answer...A PATENT. For the purposes of this blog, we will only focus on a Utility Patent. Utility Patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement. A technique is a process...therefore...a patent is in order.

A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. Generally, the term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions.

The right conferred by the patent grant is the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.

Techniques are generally covered by patents. Copyright or trademark laws would cover the final look or a new given to the technique. Therefore, whenever a new technique is created, if the creator truly wishes to protect it, patent law applies. The next blog in this series will look at what is necessary to apply for a patent.

CAN YOU USE SOMEONE ELSE'S TECHNIQUE?

This is a loaded question...truly! If there is a common technique...then absolutely. The technique is in the public domain, and can be used.If not, the world wouldn't be able to go around. However, the new technique is a different issue. If the technique is not covered by patent, then technically...it can be used. HOWEVER, there are several cautions. Patent Law is complicated and whether a technique is patentable or eligible for patent protection is a long process. It is also very difficult to search the patent records to determine if there is a patent on a technique. That is why the area of patent law is a highly specialized field of law.

Some artists and others believe that it is acceptable to copy a technique as long as credit is given. While giving credit is nice, that does not excuse copying a technique if it is protected. Since using a technique is a difficult question to answer and truly a "case by case" issue, these are some general guidelines:

1) Is the technique covered under a patent?
2) Who created the technique and can you obtain permission?
3) Where did you learn the technique - could it be covered under a confidentiality agreement or trade secret?
4) Does the technique create a finished product that would be covered under copyright or trademark protection?

It is also VERY important to point out that many times the instructions to a technique are covered under copyright protection. Therefore, the technique may or may not be protected, but the writing may be protected.

The copying of a technique is a risky option, just like copying in general. Therefore, the "Golden Rule of Intellectual Property" applies - "When in doubt, leave it out!"

This is a very complicated subject and we have truly only touched a small amount of the surface. However, your comments and questions are more than welcome. Please leave them in the comments section and I will try my best to answer them for everyone to see.

Here's to a great new year of creativity!
Create with Your Heart and Your Head!
Tammy