artsandcraftslaw

Happy 2012

2012-01-28T09:23:00.000-08:00

Welcome All!

Hold on tight in 2012 - with the New America Invents Act in effect for patent law and continual copyright and digital laws being presented it promises to be a bumpy and fast ride!

Copyrights - The Hot Topic

2011-07-23T12:41:00.000-07:00

Many of you are probably taking a look at our blog due to the recent Associated Press article regarding copyrights and crafters. In the world of re-use and recycle, the issue of what can a person use or not use continues to be a "hot topic."

Just to clarify something that was in the article - a few times the word "ideas" was used. While an idea in the purest form is protected under patent law and NOT copyright law, it is my hope that the reader will understand what the outstanding reporter, Amy McCoy of the Des Moines Register was trying to say. Idea can be interchanged with "works" or independent, creative works of authorship.

At the end of the day, it is up to each individual to truly "police" his or herself. It is also important that we, as an artistic or creative community - which include both artists and manufacturers - work together and communicate.

We welcome your comments about the subject of copyrights, the articles, etc. And I PROMISE to blog more. You see, I have that promise a few times on this blog but hope springs eternal!

Copyright Registrations

2010-04-28T08:46:00.000-07:00

Happy Spring!

If you are reading this post, I am probably "preaching" to the choir. However, I cannot emphasize the importance of copyright registration in protecting your rights or even establishing them.

The new online US Copyright Registration System makes registration painless and quick. I have even considered breaking my own rules and offering a few tele-seminars or online classes on how to use it so that more people and companies will take advantage of this important tool.

I usually equate copyright registration to an approximate $35 insurance policy. SHOULD something go wrong and someone takes your work, it allows you to be able to collect attorneys' fees, enhanced damages, and the like. There are deadlines for these benefits, but they are well worth it. Also, it is important to have the registration completed should one need to immediately enforce their copyrights. Currently, a special handling for the US Copyright Office is $760 versus $35?! WOW!

Contact your favorite Intellectual Property Attorney today to set up a registration plan, visit the US Copyright Office and familiarize yourself with the requirements, talk to your friends....do whatever it takes.

Sorry to be on my soapbox today and usually we are a little more informative but this is a "friendly reminder." Now back to our regularly scheduled programming....

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

Orphan Works - Make Your Voice Heard

2010-03-17T21:04:00.000-07:00

Happy St. Patrick's Day!

Even though the blog is updated sporadically, we have multitudes of followers. Thank you for your loyalty!

The US Government is asking for your input, insight, and feedback regarding Orphan Works. We have known for some time that SOMETHING was going to have to happen...well...it appears as if everyone on all sides are trying to attempt to make it look at least a little fair.

Anytime comments are solicited from a federal agency and it affects your livelihood, we encourage you to participate. Rest assured, in the upcoming days, you will find our response on this call for comments. Please feel free to post your comments, letters, etc. to this post.

All comments must be submitted by Wednesday, March 24 by 5:00 p.m. EST.

Please read below and we'll do our best here to keep you up to date!

One Voice DOES Make a Difference!
Tammy L. Browning-Smith

Last year President Obama appointed and the U.S. Senate confirmed Victoria Espinel to be the first U.S. Intellectual Property Enforcement Coordinator. Her job is "to help protect the creativity of the American public" by coordinating with all the federal agencies that fight the infringement of intellectual property, which includes creating and selling counterfeit goods; pirating video games, music, and books; and infringing upon the many other creative works that are produced by artists in this country.

As you know, the unauthorized copying, sale, and distribution of artists' intellectual property directly impact the ability of artists and creators to control the use of their own creativity, not to mention their ability to receive income they have earned from their labor. This impacts U.S. employment and the economy, and our ability to globally compete.

As required by an Act of Congress (The PRO-IP Act of 2008), Ms. Espinel and her White House team are preparing a Joint Strategic Plan that will include YOUR FEEDBACK on the costs and risks that intellectual property infringement has on the American public.

Here's how to make yourself heard!
1. Send an email to Ms. Espinel and the Obama Administration: intellectualproperty@omb.eop.gov2.

2. Include in your email: your story, why intellectual property rights are important to you, how piracy and infringement affect you, and what the U.S. government can do to better protect the rights of creative Americans.

3. Also include in your email: your name, city, state, and what type of artist you are.

4. DO NOT include any personal or private information as all comments will be posted publically on the White House website.

All comments must be submitted by Wednesday, March 24 by 5:00 p.m. EST.

(From the Copyright Alliance)

Strangers!

2009-05-20T11:19:00.000-07:00

Greetings! We've been long lost strangers and we hope to rectify that!

'Tis the tradeshow season. May just returned from Surtex and are getting ready to head to the Licensing Show. I heard a wonderful comment from Ketra Oberlander from Art of Possibilities when she said: "I'll know in October if it was a good show or not." How right she is.

We're just touching base with all of you and reminding you to follow up. Right now, the most important thing is to FOLLOW UP and set your base of support in place. We've been receiving calls from some asking what to do next. There are lots of agreements that can be drafted, but it is best to put your energy on landing the deal, registering your copyrights, and making sure if you are showing any ideas...you have them protected.

Keep up the great work and sorry for being such a stranger!
Tammy

Tammy L. Browning-Smith, P.C.

Opportunities in the New Year

2009-01-01T19:17:00.000-08:00

Happy New Year One and All!

I hope this finds you all enjoying a joyous holiday season and relaxing for a busy new 2009!

First question on most of your minds...What is going on with Orphan Works? It died when the Legislative Session ended in 2008. HOWEVER, January 8th is just around the corner. That is the start of the new Legislative Session. Rumors are swirling that new Orphan Works legislation will be forthcoming. HOWEVER, we firmly believe that the message has finally gotten to all sides of the issue that the visual arts community is not going away and needs a seat at the table. We stand ready, wiling, and able to help bring forth solutions to solving a problem, while balancing the interests of those who make their living from their work.

The Craft and Hobby Association Winter Show is quickly approaching January 24-28th in Anaheim. The focus will be on "Green" opportunities in the craft industry and an expanded Licensing and Design Section will be forthcoming. If you are interested in licensing...this is a GREAT place to be, network, find artists, find opportunities, and be part of a 30 plus Billion Dollar a year organization.

I am proud to announce that I will be speaking on International Law issues on January 25th. It promises to be full of tips and tricks for successful international relationships. Our firm is constantly fielding questions regarding the "ins and outs" of working across borders. The seminar will be from both a US perspective and an International Perspective. It promises to be full of information...that is for sure. There is so much to put in just 1 hour of time!

2:00 PM - 3:00 PM
Creating Successful International Relationships Business Seminar S114
	Speaker: Tammy Browning-Smith Room 207A The World is getting smaller. Today a business must work across international borders to succeed, but often face complicated legal and communication issues to make these deals a reality. Tammy Browning-Smith works extensively with international relationships, she can break it down and show you how! This seminar, for both US and International Attendees, will focus on issues that international business deals must consider to make their relationship a success, including: • Different Laws, Taxes, and Customs across the Globe • Protecting Your Ideas and Products across borders • Hints & Helps for Greater Profitability Plus…all attendees will leave with an International Resource Guide for further research.

The second item that we will be participating in is a "consulting series." This is basically a one on one with me for a 1/2 hr. The sessions will be for educational purposes only, but will give participants an idea of where to go and what type of resources they may need to look for. There are several different professionals sharing their time...it promises to be great!

I speak throughout the year and this is one of my most enjoyable and busiest venues. CHA has made it possible to attend many different seminars at a reasonable prices and have a special express pass for a fixed fee ($50???) that allows you to attend many different seminars. It is a GREAT deal.

Here's to a Create New Year (and hopefully more posts from me!)

Create with your Heart and Your Head!
Tammy

URGENT ORPHAN WORKS UPDATE!!!

2008-10-02T17:55:00.000-07:00

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?!

2008-07-03T21:38:00.000-07:00

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

2008-06-06T09:18:00.000-07:00

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

2008-05-29T06:36:00.001-07:00

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

2008-05-08T12:18:00.000-07:00

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!

2008-04-30T18:24:00.000-07:00

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...

2008-04-20T21:46:00.000-07:00

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...

2008-01-31T07:28:00.002-08:00

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...

2008-01-31T07:28:00.001-08:00

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

2008-01-17T07:16:00.000-08:00

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?

2008-01-12T18:29:00.001-08:00

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

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!

2008-01-08T17:27:00.000-08:00

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

The US Copyright Office On Line!!!

2007-11-19T20:08:00.000-08:00

Newsflash! Newsflash! Newsflash!

The US Copyright Office is considering going on line. Our firm is a beta-test firm!

We of course are excited and apprehensive at the same time. The filing of trademarks was revolutionalized when the US Patent & Trademark Office allowed trademarks to be filed on line. The on line filing features also lead to enhanced features such as reviewing files on line and the like.

The US Copyright Office is testing the option at the moment. It is only for single use filing. This means at this time collections must still be filed via regular mail. There also appears to be a cost reduction for filing on line.

Rumors have been swirling around for quite some time that the US Copyright Office hopes to eventually have a visual database. This would be a monumental task that would be made much easier if filings were completed on line.

I am INCREDIBLY optimistic AND cautious at the same time! This may make the filing of copyrights much easier and encourage more filings. However, it may also encourage false filings or ineligible filings. It may also make archiving procedures incredibly difficut for law firms and others should the US Copyright Office one day be unable to locate a specimen. As well, it will also be difficult to tell what the real specimen is for a multipage document...is one to scan all 500 pages in of a book???

We hold strong hope! We have already started the process and we will report more later. Our poll for the month deals with the topic. Please vote - your vote is anonymous!

Finally, we are pleased to announce a new addition to our office staff. Princess Marguerite Brunnehilde Browning-Smith will be the new office pet - inspecting packages, greeting clients, and the like. She has not had to work for 14 years while her brother came to the office. However, we sadly report that this past week her Shar Pei brother Bufford passed away unexpectedly. Our office is lonely without him. Marguerite has agreed to try and take up the task. Here's how her first day went:

It's never a dull moment around here! We appreciate your comments. We were inundated with many private comments after our last blog and we appreciate them all. Most were incredibly supportive. What was funny was some people tried to attack us - when we actually were advocating for everyone to be fair and that some people may have a legitimate gripe. Geezzz...we wish people would read or ask questions!

Surprisingly, we had many anonymous comments as well. Please note - if you post anonymously we read your comments, but we delete them. Anonymous posts do not give us an opportunity or others the opportunity to respond. Furthermore, they are usually inaccurate or misleading. We are happy to post comments - good or bad. However, we ask you to use your name.

Don't forget to vote in our on line poll...it should be fun!
Have fun this holiday season!
Don't forget to create with your head and your heart!
Tammy

Nastiness and Blogging - Our Take on CK Hall of Fame Disaster

2007-11-19T11:02:00.000-08:00

Greetings and Happy Thanksgiving!

As a general rule, we try to stay away from controversy and keep these blogs informative and hopefully entertaining. However, we have been getting requests for our comments on the subject. Until now, we haven't really known how to respond to make it educational and informative to all. Alas...it hit me...so I can now weigh in.

The Situation

Here is our understanding. Every year Creating Keepsakes holds a contest for a Hall of Fame. The winners get their layouts published and recognition (and perhaps some prizes). The rules clearly state that one must take all the photos as well as do his/her own work.

It appears that this year one (or more ) of the applicants used pictures of others. First CK and other "officials" came out to state that there was a mistake and then ended up disqualifying a participant. It is our understanding that another winner withdrew as well. Then...the blogs and media went wild! There has been so many rumors and the like over this whole situation.

Our Take
I look at this as follows when it comes to issues:
1) Are Rules Really the Rules?
2) What Happens When There is a Problem?
3) What can one do to prevent the nasty blogs/press?

Are Rules Really the Rules?
Let's get real, we have all heard that rules are meant to be broken. However, when dealing with livelihoods and reputation - the rules are the rules. Once a mistake was uncovered, the applicant should have been disqualified. HOWEVER, if they had bent the rules before - it set a bad precedent... The moral of the story - if you are going to submit something - KNOW THE RULES! If you take the time to make the rules - ENFORCE THEM.

What Happens When There is a Problem?
Basically, how can a company really handle what could be a public relations crisis or nightmare. I have dealt with this more times than people realize. My father was a Union President. He constantly handled crisis situations and I was always amazed at how he was able to resolve them. I have tried to take my cue from him. Here goes:

1) Breathe! In a swift, but calm pace gather the facts. Allow yourself a few moments to collect what you want to say and find out what really happened. I am not saying take a long time, but take enough time to find out what is wrong. In the long run, it is easier to explain why you took so long versus issuing retractions.
2) Be Honest! Knowing the facts and being upfront are important. HOWEVER, please consult legal counsel if you think what you are going to announce could have an adverse impact on you or your company in any way. Now is the time to use the professional team of support you have in your corner.
3) Appoint one spokesperson and be done with it! There needs to be one single and unifying voice in the company.
4) Be prepared to take your lumps and move on. Take the time to see what happened, correct the problem, and then move on. We'll discuss the "back lash" further down.
5) Remember, it could and may come back to remind you later on. However, don't let it get to you. If you've admitted your mistake, taken steps to correct it, and handled the public with respect and dignity - you've done all you can do.

What Can One Do to Prevent Nasty Blogs/Press?
I get this question so often about so many things. The short answer - you can't. Sorry, didn't want to give you any false hope. HOWEVER, there is a line for free speech - especially commercial free speech. If it is crossed, then it is actionable. Here are some items to remember:

1) Libel is written words and Slander is Spoken Words (S- Spoken...that's how I remember).

2) The use of trademarks and copyrighted work in order to make comments about is not always FAIR USE. Many times, it is far from it.

3) You are responsible for what you have written...and taking it down later does not remove your liability. Venting or blowing off steam is fine, but it can cost you!

4) If you sponsor a blog, you have the right to monitor it and remove comments. Just make sure you have it clearly stated or listed. It may not be necessary, but it is important. Many of you have seen the signs "We Reserve the Right to Refuse Service to Anyone." That could be the case for a blog. However, if you are inviting public comment and going to remove it, make sure it is for the right reasons. You don't have to be a hostage on your own site, but you do have to make sure the civil liberties of others are respected.

I did not mention the names of the designers who were in question. Their names are all over the Internet and I understand that she (they) are suffering from it. Rumors fly that people have even called her restaurant and booked all her reservations and then not showed. Obviously, this crosses the line. No matter what the action, if you interfere with someone's business...you cross the line! Sometimes people let the best of their emotions take them away.

Now, if people didn't win, I understand that $$$ can be derived from a win. I would be a little upset too if I found out that those who didn't follow the rules won. I'm human and we're all human. However, when our "being human" affects a person's livelihood or a business's bottom line, then it crosses the line.

I'd love to hear your comments on this. If you have comments on the CK Hall of Fame disaster, I encourage you to make your comments known on those boards. If you have comments on this blog and our take on it, then I encourage you to leave them below!

Get Ready to Feast this Week!
Remember to Create with Your Heart and Your Head!
Tammy

PS - Thank you to Rebecca for encouraging me to post this!

We Remember...

2007-11-12T18:48:00.000-08:00

Happy November and all...

Sorry - we've been under the weather around here and trying to finish some major projects. HOWEVER today would be lost if we did not take a moment to recognize those who fight so bravely to protect all that we hold dear! There are many in my life who to whom I admire for this along with the hundreds of thousands to whom I will never be able to shake their hands:

Grandpa Browning- A WWII veteran who fought in the Pacific
Grandpa Henson - A Highly Decorated WWII Veteran who taught me my entire life that a life built on character and respect is a life worth living
Bob Browning (My Dad) - A Navy veteran who served even when he didn't have to
Shirley Sweet - A WWII Army Captain - a nurse who fought in the front lines and a heroine to us all
Cousins Radebaugh - They still proudly serve the Army today. Joey and Jamie have both served 2 tours in Iraq.
Wesley - A dear friend (and the closest thing I have to a brother!). Every since we were young he has always wanted to serve and he is set to go back to Iraq for his 3rd tour.

We also remember the families that support them. From Aunt Martha, Uncle Joe, and even Toni - they show such a great amount of courage and bravery that is unimaginable to most of us. The closest thing I will say in regards to a political statement is this - support for those who serve is a bi-partisan effort!

I know this isn't legal, but in a way it is - we have a legal system because of men and women who say: "I serve, so that you may live free!"

It seems weird to say : "Happy Veteran's Day" - its like saying - "Happy Risk Your Lives for our Freedom Day!" Instead I say - THANK YOU! and May The Creator Bless You and Keep You!

Tammy

Trick or Treat?! Copyright Collections!

2007-10-31T10:14:00.000-07:00

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!

Tammy

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

2007-10-22T16:20:00.000-07:00

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 US...to 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!

Tammy

Copyrights 101 - Using Resources Already Available

2007-10-16T16:43:00.000-07:00

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.

THE FUTURE...

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!

FUN....

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:

Taking the Mystery Out of Copyright

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!

Tammy

Copyright Poll

2007-10-15T21:21:00.000-07:00

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 YES....it is totally anonymous. So go ahead and answer...

Create with Your Heart and Your Head!
Tammy

Copyrights 101 - Registration..Some Thoughts

2007-10-15T15:39:00.000-07:00

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 tricks...now 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!

Tammy

Beads, Baubles & Jewels! - Protection for Jewelry

2007-10-11T10:13:00.000-07:00

HAPPY WEEKEND!

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!

COPYRIGHT PROTECTION

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.

PATENT PROTECTION

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 know...you 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!

Tammy

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

Copyrights 101 - Why Register?

2007-10-09T12:12:00.000-07:00

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:

WHY REGISTER YOUR COPYRIGHTS???

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!

Tammy

Technical Difficulties!

2007-10-09T12:00:00.000-07:00

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!

Tammy

Copyrights 101 - Part 2 - Time

2007-10-04T09:41:00.000-07:00

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 copyright.gov. 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 on...here 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.

Your Thought for the Day: IT'S TIME TO REGISTER YOUR COPYRIGHTS!

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!
Tammy

Copyrights 101 - Part 1

2007-10-03T12:22:00.000-07:00

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.

FRIDAY IS "SUBJECT WILD" DAY!

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!

Tammy

Copyrights - Where to Begin?

2007-10-02T09:32:00.000-07:00

HAPPY OCTOBER!

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 friends...you 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!

Tammy

It's the Most Infringing Time of Year!

2007-09-26T21:40:00.000-07:00

CHRISTMAS IS LESS THAN 100 Days Away!

It is hard to believe that the season most of us in the industry work all year for is coming again. Our firm has been reviewing agreements for Christmas 2009 recently...talking about planning ahead.

This time of year tends to be an busy one in regards to copyright infringement. Giftware and Decorations can be found in almost any type of store and handpainted items are popular at the holidays. With the increase in merchandise, comes the increased potential for copyright infringement. Our firm has already received 2 cases of infringement based on the 2007 Christmas lines from various retailers.

Honestly, there is no way to truly stop copyright infringement. Watermarks, passwords, etc. are great ways to slow infringers down, but not stop them! An active copyright registration program and a keen eye are your best defenses (or offense!) in the copyright infringement arena.

If you do see a case of infringement - on the internet, in a catalog, in a store, etc. We recommend a few steps to help you in the process:

1) Before you confront anyone - secure a copy of the item with a receipt.
2) Do not make matters worse with an immediate confrontation. It is better to pull all of your documentation (which will be asked for), consult legal counsel, and determine a "plan of attack."
3) Note what other items are being sold with the infringing item - is it part of a special launch, a coordinating line.....
4) Document, document, document - who, what, when, where, how
5) Seek Legal Advice - it may not be as costly as you would think

Many artists and inventors try to handle the infringement by himself or herself to save money. Please know that is VERY understandable. However, many cases have been seriously compromised with self help. Remember, even if the infringing item is removed from a shelf, you may still be able to seek compensation.

An attorney's job is to keep her client OUT of court. That is what our firm believes. With a copyright registration in hand along with your evidence, there are many opportunities for settlement or even licensing arrangement. Even if you did not register your copyright according to the law, you still have options.

It is very important to point out that not all copyright infringement is willful. However, liability may still exist.

The best ways that artists and inventors are going to stop infringement is by registering their works appropriately and being willing to hold the infringer responsible. Our firm sees the legal community's responsibility as providing artists and inventors with all the tools necessary to help them win the battle.

Is this a controversial subject - ABSOLUTELY!? However, that's what the comments section of this blog is for. Also, our next few blogs will be discussing copyrights and their registration in greater detail. Something was started and I'm on a roll. If you can't tell, when it comes to copyrights - I'm pretty darn passionate.

The weekend is almost here and so is Christmas! It's hard to believe!
Create with your heart and your head!
Tammy

Safely Blogging Along

2007-09-24T19:42:00.001-07:00

The Wonderful World of Blogging!

One of my greatest hesitations about blogging was security and safety. So many fail to realize that when one blogs, the information is out for EVERYONE to see as a general rule. That can be great and that can be HORRIBLE! Since I work daily to help people protect ideas and my father was a police officer, I thought I would make one of my first blogs about "Blogging Safety." Safety from a personal standpoint and an intellectual property standpoint.

1) Publication. Bloggers and Comment Posters need to realize that generally everything is open to the world. If one is sharing an idea, adding to an idea, sharing a technique, showing artwork, etc., the time will start "ticking" for any registration.

2) Connecting The Dots. It is very easy for someone to connect the dots on the Internet these days. Even if one does not post his or her hometown or contact information, sometimes with an accumulation of information, it is as if you posted your full name, address, phone and the like. Remember, most people think nothing of information and love learning the small stuff about someone. Some people will take the small stuff to do big things. Not only from a personal safety issue, but the same is true in regards to trade secrets, marketing, etc.

3) Register It! If one posts something on a blog and would be furious if someone took it or copied it, then it should be registered. I can guarantee you that once a month I will be registering my blogs as a collection with the US Copyright Office. Patentable ideas, processes, and the like are even more dangerous to post without first registering.

4) Be Kind! This is from a business perspective, when it goes into the written word - it could come back and bite you. If you are talking about a product or a person and it is not complimentary - I highly suggest you avoid it. It could come back to get you. There are varying laws for slander, defamation, intentional infliction of emotional distress, and the like. There is the 1st Amendment in the US, but commercial speech does not fall under the biggest blanket of protection.

5) Watch the Use of Names. I know this sounds like a safety issue, but it can also be an endorsement issue and Right of Publicity Issue. Therefore, get permission before you use someones full name or a products full name if you are going to do more than mention it in passing, discuss it and/or its features, etc.

This list is not comprehensive, but it is "food for thought." The greatest tip I can give is:

WHEN IN DOUBT - LEAVE IT OUT!

Therefore friends - go forth and blog...blog...blog!

Have a great week and enjoy!
Create with your heart and your head!
Tammy

WELCOME!

2007-09-23T13:16:00.000-07:00

Thanks to the encouragement of numerous friends (check out my links), I now have a blog. I've always tried to stay away from them as many people don't really want to hear the ramblings of an attorney. However, I've been told over and over again - I'm not like your typical attorney.

Since I practice in a unique field of law, I decided to give it a try. Some days, it will just be ideas or what is going on in the office. I can guarantee you that some times it will be things like "Don't do this at home" or "Look what you can do!" No matter what, you will not find a list of my clients unless I get specific permission. However, you will find lots of fun stories, etc. I'd love to hear your ideas and what you'd like to see.

Here's to a GREAT adventure!