Today’s post is a very special one, close to my heart. Why? Well… usually, I’m very good about not “lawerying-out” on my friends or other non Intellectual Property lawyers. I don’t want to subject them to the full spectrum of why such and such is the law, and why things are they way they are. My friends didn’t go to law school and the non-IP lawyers didn’t study it for years like I did. I respect everyone’s right to bitch about the way things are or appear to be.
Any time anyone says “I really need to Trademark my poetry”, I can’t help myself. Instead of launching into some nice explanation, I just say “Copyright” in response. They say “Huh?”, and I come back with “You want to copyright your poetry.” At which point they indulge me and Miss Lawyer Pants explains herself.
So having done it more times than I can count – here’s the break down:
(First I start with the technical mumbo-jumbo.)
Technically speaking, a trademark is protection given by the US government over the mental association that a consumer has with the source of a product.
(My friends are generally smart enough to latch onto a few of those phrases, thankfully.)
So anything that creates a mental association with a product is considered a trademark.
(Then I launch into examples.)
Anything that you would consider a logo, a motto, or associated with a marketing / branding campaign is likely to be trademarked.
(Most people are nodding their heads by now, or offering examples of famous trademarks at this point – which is very good.)
(Now for the more difficult one.)
A copyright is protection over any type of artwork which can be and has been recored in some permanent medium.
(OR “Original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” But you know, that’s “lawyering out” a little too hard. We had a whole class in law school dissecting that one.)
It protects novels, songs, sculptures, choreography, and anything else you could think of creating.
(Then for the fun stuff.)
Under the Copyright Act, your rights attach whenever you create something: write it down, video tape it, write choreography notes for it, etc. But in order to actualize those rights…
(again, my friends are smart)
…you have to register the copyright with the Copyright Office. Basically, you give them a copy when you make it so that they have something for the Library of Congress (Cool!) and you have a registration that proves you wrote it.
(At this point, someone usually asks me about the validity of mailing yourself a copy of your work, and I sigh.)
The so-called “poor man’s copyright” is not a way to go about registering your copyright. The best it will do for you is act as one piece of evidence in a court case where you’re arguing that you wrote something first. Even if they stole the – let’s say, novel – from you verbatim, if they registered it they have what’s called “prima facie” evidence against you.
(Half the time, I then launch into the latin meaning of “prima facie”… but I won’t do it here. Lucky you, that’s for another whole caliber of posts!)
That means that the court will assume that their registration is valid, and it’s your (heavy) burden to prove otherwise.
(And at that point, you’ll wish you had just paid the $45 registration fee, because we lawyers don’t come cheap!)
So… getting back on point (yes, I am prone to tangents), A copyright is something that you have when you create a work of art, and it’s something you get a registration for to ensure that you have all the rights guaranteed to you for creating it.
(Those being: Reproduction, Derivative Works, Distribution, Public Performance, and Public Display)
And there my tangent usually ends, because they’ve gotten the point. And honestly, of all the lawyerly-ness that I can keep out of normal conversation, it doesn’t surprise me in the least that I can’t keep this quiet. I’m an educator. I learned all of this law stuff so that I could educate myself and other artists about what it means to have the law protect their work – and it is my end-goal to end up in a position where I do this for a living. This very conversation – except I’ll be doing it to many people at a time at conferences, or with particular clients who want to use that law for their own benefit.
That’s what I do. Or as I say about my own art, that’s what I can’t not do.
So, my friends, now you know that one copyrights their novel – and trademarks their band logo. Simple as that!
Miss Understood, Esq.
(c) Nicole L. M. Jurkowski 2010