However, laypeople often put incorrect information in their copyright application, potentially delaying the processing of their application and jeopardizing the value of any resulting registration. One common source of error is the first publication date.

Has Your Work Been Published?

The first publication date is the date your work was first published anywhere in the world. But, what is publication? In copyright law, publication has a specific definition that differs from what you might find in a dictionary:

“the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication”

See the U.S. Copyright Office FAQ and Copyright Basics Circular.

Displaying your work to the public is NOT publication. Therefore, in my opinion, most blog articles are NOT published, although logically you might think otherwise if you did not know this definition. Making copies of your work and renting, leasing, or lending them, or selling or otherwise transferring ownership of them, is publication. Offering to distribute copies to a group for further distribution or display is publication.

What if I Can’t Remember the Exact Date of First Publication?

The date of first publication should be given in a month/day/year format. But sometimes, first publication occurred many years ago. What if you do not know the exact date? How can you give a month and day?

The Copyright Office instructs that if you do not know the exact date of first publication, you should give an approximate month, date, and year. See Copyright Office Help. So just try to pin the date down as best you can, and give your best guess.

In court, your copyright registration will serve as prima facie evidence of its contents, requiring a defendant to produce some evidence contesting the information it contains before you would need to produce evidence to support it.

Conclusion

Whether a work has been published, and if so on what day, can be a difficult question to answer, particular for certain types of works like online texts and computer programs. If you have questions about the date of first publication of your work, talk to a copyright attorney or at least give the Copyright Office a call or email.

Unfortunately, it is rarely possible to register multiple works together in a single copyright application.

Registering Collections of Unpublished Works

Unpublished works (essentially, works where copies have not been sold) can be registered together if the same person or entity owns every work in the collection and at least one author contributed to the creation of every work. See the U.S. Copyright Office help pages. In the typical situation where a single author/artist has created each of the works and retains ownership of them, this requirement is satisfied.

Page 9 of the Copyright Basics circular put out by the U.S. Copyright Office details additional qualifications:

1. The combined elements must bear a single title identifying the collection as a whole; and
2. The elements of the collection are assembled in an orderly form

Exactly what this means is not entirely clear. If you give the collection a title (e.g., “Photographs 2007″) and assemble the elements in an “orderly form” your collection would seem to qualify. These requirements to not appear to be a serious obstacle. The more detailed Copyright Office guidelines with examples do not even mention these other requirements.

In any case, the staff at the Copyright Office is quite helpful and usually responds quickly to questions sent by email and can also be reached by phone. Please contact them if you have any questions about your unpublished collection.

As a data point, when I went to the Copyright Office to register a large number of (unpublished) secure exams, the staff recommended that I file one application for each set of exams that were released together. I believe they could have all been included in one application, although that could make licensing and copyright management more difficult. If anyone has any input on this issue, please leave it in the comments.

Registering Collections of Published Works

A group of published works can also be registered together under certain circumstances. To be registered in a single application, the published works must all be:

1. First published on the same day;
2. First published in the same unit of publications; and
3. Owned by the same person or entity.

See the U.S. Copyright Office help pages. For examples, see here.  The first and third requirements are clear-cut, the second less so. Generally, two works are published in the same unit of publication if they are sold together as a single unit.

Conclusion

It is a good idea to consult a copyright attorney if you are weighing whether you can or should apply to register multiple works together. In a future post, I will discuss the advantages and disadvantages of registering multiple works with a single application.

Business Names, Slogans, Brand Names, and Other Short Phrases

Business names, slogans, brand names, and other short phrases cannot be copyrighted. They are explicitly excluded from copyright protection. Any kind of name, title, catch phrase or short advertising expression will fall under this exclusion. Listings of ingredients, including recipes, formulas, and labels, are also not protected by copyright (although text descriptions, directions, or explanations may be copyrightable).

Trademark Protection for Names and Slogans

Ideas for business names, brand names, and slogans can be protected by trademark law if you intend to use them in commerce. Trademark law protects brand names, logos, slogans, and anything else that is used in commerce to distinguish your products or services from those of others. Trademark law grants exclusive rights to such marks to the first user, under certain circumstances.

For example, if you place your logo or brand name on your products so that customers can easily identify them and distinguish them from the products of competitors, that logo or brand name is protected as a trademark. Similarly, slogans, brand names, and other marks used to advertise your services are afforded trademark protection.

Although some protection for trademarks arises automatically when you begin using them in commerce, it is necessary to register your trademark at the federal level to protect it nationwide, or to get any protection for a trademark you have not yet begun to use in commerce.

To protect a great idea for a brand name or slogan that you want to use in business, contact a trademark attorney to apply for a trademark registration. If you have an idea for a name, slogan, or title that you do not plan to use in business, it cannot be protected- just keep it a secret!

Trade Secret and Patent Protection for Recipes and Formulas

Recipes and formulas are not protected by copyright or trademark law. The only way they can be protected is by patenting them or keeping them as trade secrets. A recipe or formula may be patented if it is new and not an obvious combination of known recipes or formulas.Patents grant you exclusive rights to an invention for a period of 20 years.

However, many recipes and formulas, such as the formula for coca cola, are kept as trade secrets because they are difficult to reverse-engineer from the finished product. Trade secret protection can last indefinitely as long as you keep the information confidential and restrict access to it.

Logos

Logos can be protected by both copyright and trademark law. To be protected by copyright, they must have a minimum level of originality. A geometric shape alone is not sufficiently original, however most logos are. To be protected by trademark law, there must be an intent to use it in commerce.

Copyright protection lasts the lifetime of the author, plus 70 years. However, it only protects against copying of the trademark. If another business independently develops their own, strikingly similar logo, you are out of luck. Copyright law does not stop them from doing that.

Trademark protection can last indefinitely as long as the logo is in use in commerce, however a trademark registration must be renewed periodically. A trademark registration protects against another business using a confusingly similar mark, regardless of whether they copied your design.

Conclusion

This is a brief introduction to the protection of logos and names, titles, slogans, and other short phrases as intellectual property. To learn more about patents, trademarks, copyrights, and trade secrets, please see some of my other posts, some of which I have linked to in the body of this post.

Recently, a client of mine had an unusual copyright issue come up and I found this book to be very helpful. It is perfect as a quick reference, comprehensively covering most common copyright issues from registration and transfer to cease and desist and take-down letters to litigation.

Running a few hundred pages, it does not go in depth into every topic or canvas the relevant case law, however it does an excellent job of laying out the basic principles and of giving clear examples in the Appendix. I found it very handy for quickly checking and verifying certain points that arose.

I recommend it as a copyright reference for practitioners and as a primer and reference for those in a copyright-intensive industry such as publishing, producing/recording, or art.  The only downside is the $150 price tag.

This is Terrible Advice

No Fortune 500 companies are going to read Seth Godin’s blog, see the light, and decide that those cease & desist letters really were not worth it after all, and maybe they should stop sending them out. To the extent that Godin’s readership consists of people who actually might seek intellectual property (IP) protection, I imagine they are primarily entrepreneurs and small business owners. Godin’s article will encourage them not to seek out such protection.

These people do not need anyone to convince them NOT to protect their IP. Not protecting your IP is easy-just don’t do anything! Lots of people do that because they are not aware of the importance IP can have to the success of their business. Not protecting your IP because Coca-Cola or MGM is sending out 10 cease and desist letters today is a mistake of monumental proportions and it is irresponsible to encourage entrepreneurs to make that mistake.

What Entrepreneurs Need to Know About IP Protection

Entrepreneurs need to know up front what IP protections are available and what their costs and benefits are. And there are benefits- potentially enormous benefits. Recent estimates place the total value of patents in the U.S. at $200 Billion. Brand value (integrally tied to trademarks) makes up a third of the total value of fortune 500 companies (that’s well over $1 trillion folks).

Registering a trademark is not about suing everyone who says the words “thank you”, it is about protecting your brand from competitors and avoiding costly legal conflicts. Patenting an invention allows you to lock your competitors out of the marketplace for a period of 20 years, and if you can get a patent for a valuable invention you came up with in the shower, more power to you.

An initial patent search and provisional application are essential to any entrepreneur planning to start a business around an innovative new product. They cost a lot less than “tens of thousands of dollars” (try ~$2,000) and without them potential investors and partners will not even talk to you. Without a search, you do not even know if your invention has any value. These protections are just part of the cost of entering that kind of business, and they are far from the largest cost involved (try prototyping or manufacturing an initial run).

So don’t dismiss IP protection out of hand. Figure out the costs involved and the likely benefits and do a cost/benefit analysis.

Should I Spread My “Ideas” Around as Godin Suggests?

Not if they have value to you. If, considering the risks involved, the cost of trying to protect your idea is greater than its benefit to you, then sure you should find something else to do with it. Maybe, as Godin suggests, telling everyone about it will build your reputation and be beneficial to you.

But for a company to spread its brand around freely or spread its new, heavily researched product around to its competitors in order to “Build a reputation as someone who creates great ideas” would be destroying enormous value- and insane. In this digital age, IP protection matters more than ever.

Copyrights protect your creative works, such as books and other texts, recorded music, pictures and photographs, and movies and other audiovisual recordings. The owner of the copyright to a creative work has the right to prevent others from making or distributing copies of the work without permission.

Copyrights now arise automatically when such a work is created, without any action on the part of the author and without any cost. The copyright is initially owned by the person or people who made the creative work, unless the work was made as a “work for hire” for another entity, for example by an employee for his or her employer as a part of the employee’s job, in which case the employer owns the copyright.

Registering Your Copyright With the Government Costs Money

Unfortunately, copyrights are not worth much if they are not registered with the government. For example, you cannot bring a copyright infringement lawsuit based on an unregistered copyright. Therefore, there is no practical way to enforce your copyrights unless they are registered. I explain many of the benefits of copyright registration here.

It costs $35 to register a copyright online with the Copyright Office, or $50 to register a copyright using a paper Form CO with printed barcode, or $65 for registering a copyright using a simple paper form. Almost all copyright registrations can be applied for either online or using Form CO, depending on your preference. Beyond the cost savings, it is a good idea to file electronically because the wait time for a copyright registration is about one year longer for paper filings than for electronic filings.

Because there is a wait of up to 9 months for an electronic application to be processed and up to 22 months for a paper filing, it is best to apply for registration early. If you find it necessary to obtain a rush copyright registration in order to file suit against a copyright infringer, the cost of expedited processing of your application at the Copyright Office is $760.

A full list of copyright costs is available at the Copyright Office website here.

For Many Copyrights, the Cost of a Copyright Attorney’s Help is Justified

Of course, if you use a copyright attorney to help you with the application for copyright registration, you must add the attorney’s fees to the government costs given above. You can expect an attorney’s help with preparing and filing a copyright application to cost a minimum of a couple hundred dollars.

If you have some experience with filing copyright applications, and/or your copyright claim is very simple, you may be able to get away with not using an attorney. But, I would recommend using a copyright attorney at least for the first time you register a certain type of work, especially if there are any issues such as a work for hire, transfer of ownership, multiple authors, multiple works, a portion of the work you are not claiming copyrights to, etc.

A copyright attorney will save you a lot of time trying to figure out the Copyright Office system and will avoid costly mistakes that could result in delay of your copyright registration or necessitate a whole new application.

Thus, the total cost of a copyright registration including a copyright attorney’s help is about $200-300, or potentially much more if you choose to use an expensive attorney.

Patry is at his best when dealing with facts. Patry is undeniably a copyright expert and has an array of interesting and important historical information and data at his command. I enjoyed learning more about the history of copyrights and about the statistical shortcomings of the copyright industries. However, such content is unfortunately uncommon. Although the book is over 20% citations, Patry seems mostly to cite to the opinions of others, not to supporting facts or research.

This lack of intellectual rigor unfortunately causes the book to go off the rails on multiple occasions, never moreso than when he attacks the free market, and particularly Alan Greenspan, for our nation’s copyright ills. Frankly, the free market could not have less to do with copyright law, which is wholly a creation of government, as Patry acknowledges. It puzzles me that Patry attacks the copyright industries throughout the book for their anti-competitive lobbying, but fails to come to the conclusion that the problems with copyright law are simply a result of successful rent-seeking by large corporations, similar to the agricultural subsidy debacle and other government failures.

Instead, Patry spends most of the book eviscerating the movie industry for its use of metaphor. Metaphor is a common rhetorical tool and I remain unconvinced that it is a significant cause of the problems we face in copyright law. As a lawyer, surely Patry is familiar with the idea of putting forward the best and most convincing argument possible in support of one’s position. This obsession with the use of metaphor also seems unproductive as his book is not going to end the use of metaphors- I suppose he is attempting to reduce the effectiveness of such metaphors on the public?

The damages to you include any lost profits due to the infringement. You can also recover any profits made by the infringer due to the infringement, which are not accounted for by your damages.

However, it can often be difficult to prove how much money you lost as a result of someone’s copyright infringement.  Did the infringing sales cost you sales, and if so how many? How much revenue could you have gotten from licensing the work? The answers to these questions are frequently speculative. That is one reason why the law provides for statutory damages for copyright infringement. Another reason is to deter infringers from violating copyrights even where the damages would be very slight or nonexistent.

Under U.S. law, a victim of copyright infringement may choose to either prove and collect actual damages and profits, or to collect statutory damages.

What Are Statutory Damages?

When the amount of the damages are set by a statute (law), these damages are known as statutory damages. Because the amount is set by statute, the plaintiff does not need to prove that they lost that amount of money in order for the court to award it.

Amount of Statutory Damages for Copyright Infringement

In the case of copyright infringement, the damages are provided for by Title 17, Section 504 of the U.S. Code, which sets forth a range from $750 to $30,000 per infringed work, regardless of the number of times the work was infringed by the defendant.

In other words, if you made 100,000 illegal copies of a single book and sold them, the maximum amount of statutory damages the owner of the book copyrights could recover from you would be $30,000 (in such a case, the owner might choose to prove actual damages instead).  However, if you made one illegal copy of 17 different songs (works), you could be liable for up to $30,000 x 17, or $510,000.

Adjustments for Willful or Good Faith Infringement

In cases of willful infringement, where the infringer knew that the rights to the work belonged to sombody else and knowingly copied and distributed it (or otherwise infringed it) anyway, the maximum statutory damages per work are increased to $150,000.

In cases where the infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the minimum statutory damages are reduced to $200 per work.

Calculation of Damages Within the Statutory Range

The amount of the statutory damages, within the range provided by law, is to be determined “as the court considers just.”  Court cases make clear that this amount should be commensurate with actual damages that may be difficult to prove, taking into consideration the need for a deterrant effect on the infringer.  Statutory damages are not intended to be a windfall or lottery-win for the copyright holder, completely out of proportion with the scope of the actual damages.

An excellent post on Ron Coleman’s Likelihood of Confusion blog discusses this point in more detail. More discussion can be found on the same blog here and here.

Please note that this post was last updated on July 21, 2009, and does not incorporate any changes to the law after that time. Any questions? Anything I left out? Let me know in the comments, please.

Brett does an excellent job of describing fair use, laying out the legal test in language that is easy to understand, and explaining what you can do to lessen the risk of being sued. He also stresses that the issue is, generally, too complex for a layman to analyze on their own with any confidence.

The first thing is to never believe anything about copyright law unless you hear it from a copyright lawyer. Not a regular lawyer, a copyright lawyer…

What is Fair Use?
Sometimes it is permissible to use limited portions of a
copyrighted work, including quotes, for purposes such as commentary, news reporting, scholarly reports… The quoted material, however, must not be unreasonably large and must not destroy the market for the original work (quoting the salacious portions of Monica Lewinsky’s memoirs).

…

In determining whether your copying constitutes “fair use” the courts will look at:

1) The purpose and character of your work-Are you making money from the copies?
2) Nature of copyrighted work-Is it a form book meant to be copied?
3) Amount of work taken-Are you taking 90% of the work or 2%?
4) Economic impact of taking-Are you taking the 2% that makes people want to buy the original (Lewinsky passages)?

…

Large corporations often use a track record of putting infringers out of business to extract settlements. The smartest move for you is to review your copyright material beforehand to check for any potential copyright problems. If you own a business, be sure to include “fair use” policies in your employee handbook. With copyright issues, an ounce of prevention can be worth about seven figures of cure.

There is a lot of other good stuff in the full article. If this interests you, be sure to read it all. Do you know of anyone that got in trouble for copyright infringement or who successfully relied on a fair use defense?  If so, I would like to hear about it in the comments.

What Communication You Will Receive From the Copyright Office

You will not receive an acknowledgment that your application has been received (although if you file online, you will get an electronic filing receipt).  Rather, some time later after your application has been picked up by a registration specialist, you will either get a phone call or letter if further information is needed to process your application or a certificate of registration indicating that your work has been registered or a letter explaining why your application has been rejected.

When You Will Hear From the Copyright Office: Paper vs. Electronic Applications

So how long will it be before you hear from the Copyright Office?  The Copyright Office, like the Patent Office, has a substantial and fluctuating backlog of applications.  The time it takes for your application to be processed depends on the current backlog.  This post was written in July, 2009.  The goal is less than six months for paper applications and less than one month for electronic applications.

However, as an article in the Washington Post recently discussed (HT: Just-n-Examiner), the transition to the new electronic filing system has apparently created a backlog much larger than normal.  Paper applications are now taking about 18 months! Electronic applications are processed much faster- in about 6 months.  To encourage applicants to use the more efficient electronic filing system, paper filing fees are due to increase to $65 in August 2009, while electronic filing fees will remain $35.

These are good reasons to use the electronic filing system. If you are not comfortable using it, I recommend using the services of an attorney who specializes in copyright/intellectual property law.

Your Effective Copyright Registration Date

The Washington Post article I linked to also quotes a few artists, some of whom are delaying pursuing business opportunities until they receive their registration. I wish they had consulted a copyright attorney! It is probably not a good idea to delay for a year or more just to get your registration in hand. As long as all the required application elements are present and in an acceptable form, your copyright registration is effective the date the Copyright Office receives your application. This date is not affected by the amount of time it takes to process your application.

Of course, you may be concerned that you might have failed to supply all the required elements in an acceptable form, or that your application will otherwise encounter some sort of difficulty at the Copyright Office that results in a registration not being issued.  However, most applications for copyright registration are relatively straightforward and approved without any problems.

You have to balance the costs and benefits to you personally, but especially if you have used a qualified copyright attorney to file your application, I think  fear of a potential problem with your application will rarely outweigh the huge downside of delaying your business plans for 18 months or even for six.

Summary

If you use a copyright attorney and file your application online (electronically) today, you should get a registration in about 6 months, but the effective date of your registration will be today. You should discuss this with your copyright attorney, but it most likely is not worth waiting for your registration before getting serious with your creative work.

If you need to have the ability to sue immediately upon release of your work, it may be worth investing in a $685 special handling fee chargd by the Copyright Office to expedite your registration.

Any questions or comments?  Anything I left out?  Let me know in the comments.