Saturday, January 12, 2008

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. 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.


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 If you have an older unpublished work, then you definitely need the magic formula.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 What if the work was unpublished and only recently published?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.


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!


Kim said...

Wow , what an excellent post. Tim Holtz mentioned you on his blog so I popped over - how very nice to read an understandable summary! I'd love to figure out how to link back to this post from my blog , would you mind?

Tammy L. Browning-Smith, J.D., LL.M said...

Kim -

Thank you and welcome aboard. You are more than welcome to post the link - it would be my pleasure.

BTW - your work is BEAUTIFUL!

Feel free to stop by any time!


Arlene said...

Found your link over at Tim Holtz blog. Thanks for the great, in plain english explainations on the law. I would love to vote in your poll but none of the choices apply to me. I do not sell my work at this time but I think alot of people out there like me are concerned that another person will claim his or her art work as their own. And as you know it does happen.

Kim said...

Hey - thank you lol! I just popped in to ask a question and realized you'd commented back at me!
I need to check out this poll and see if there is an appropriate area for my concern.
I may be back. . . :)

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.