Copyright Notice - Does Anyone Even Notice?

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


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


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


COPYRIGHT NOTICE

The Magic Copyright Formula

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

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

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


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 If you have an older unpublished work, then you definitely need the magic formula.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 What if the work was unpublished and only recently published?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


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


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


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


WHY IS THE COPYRIGHT NOTICE SO IMPORTANT?


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


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


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

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

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

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


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


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

Create with Your Heart and Your Head!
Tammy

Trick or Treat?! Copyright Collections!

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

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


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

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

• the selections are assembled in an orderly form;


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

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

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

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

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

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

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

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

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

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

Create with Your Head and Your Heart!

Tammy

Copyrights 101 - Using Resources Already Available

Your Tax Dollars Are Hard At Work!

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

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

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

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

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

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

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

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

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

Copyrights 101 - Why Register?

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

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

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

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

Copyrights 101 - Part 2 - Time

Copyrights 101 - Part 2

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

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

Length of Ownership

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

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

The above statement is directly from 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 - Where to Begin?

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