Thursday, January 31, 2008

Showing Your Stuff...


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!***


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.


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 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!


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.


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!


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!

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.

Thursday, January 17, 2008

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


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!

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!

Tuesday, January 8, 2008

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.

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?


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.


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 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!

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.