COPYRIGHT LAW

Technically, all art is instantly copyrighted the moment it is created. The United States copyright law mandates that art is copyrighted as soon as it is ``created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.`` Proving copyright, however can be difficult if your artwork is not federally registered. Once federal registration is complete, it will be easier to seek recourse against those who use your artwork without permission. In fact, most jurisdictions will require a copyright registration before a complaint for copyright infringement can be filed in the federal courts.

If you desire federal protection for an original work, you will need to submit an application with the United States Copyright Office. Your application should be accompanied by nonreturnable copies of the work you intend to be copyrighted. Online application is available; if you apply online, you will need to submit electronic copies of your work. Upon submitting your application, you will need to pay a fee, which can vary considerably based on whether you pursue single or group registration — and whether you register online or via a paper application.

The copyright process for music may depend on whether you intend to obtain copyright protection for a musical composition or a sound recording — or both. A musical composition could involve either a notated copy of the work (such as sheet music) or a phono record such as a CD. According to the United States Copyright Office, sound recordings involve the express fixation of sounds or spoken words. Compositions and sound recordings can be registered together if both elements share ownership. Applications with the United States Copyright Office must include completed forms, filing fees, and copies of the work. Registration can occur online or via paper applications.

Copyright protection extends to original works, but not to the names of said works. However, federal law allows for the trademarking of a product's name and its source. Depending on the nature of your work and its name, trademark protection may be available. While trademark protection and eligibility to use the TM symbol begins as soon as you use a selected name or logo, federal trademark protection requires application with the United States Patent and Trademark Office. Prior to applying, it is important to conduct a trademark search and specify the basis for filing. You will also be required to pay an application fee. If your application is accepted, you will be eligible to use the ® symbol; otherwise, you can continue to use the TM symbol. State trademark registrations may be obtained as well. In California the trademark registration process can be done online at the California Secretary of States website.

Your company's logo provides valuable identification of your brand in a competitive market. Avoiding infringement is critical; this can be accomplished via both trademark and copyright protection. While trademarking covers identifying markers such as names and logos, copyrighting focuses on creative works of expression — which could include the artwork or layout used in your company's logo. Unfortunately, many logos are not copyrightable. To qualify, your logo must be “original” which means it must be independently created, and it must reach a requisite level of creativity established by the federal government, which has been defined in case law as a “modicum of creativity”. A modicum is a minor amount of creativity so the threshold is very low. If you believe your logo meets this threshold, you can apply for federal copyright protection with the United States Copyright Office. You will need to provide information about the logo creator, pay a small fee, and submit a copy of your logo.

Copyright infringement can best be avoided by running a clearance check on any creative works you intend to use, BEFORE you use them. If you want to use a picture, a work of art, a poem, or a song on your website, in your blog, or in your presentation, you should first attempt to identify who the copyright owner is and seek a license (i.e., permission to use the work). If you can’t find the owner, or you can’t obtain the license, you should run an analysis on whether your use may be a “fair use” and thus not copyright infringement. Often you can find what you need by searching for public domain images, literary works, or sounds, which do not require a license for use. Remember, copyright protection is for the life of the author, plus fifty (50) years post-mortem, however there are many variations for different types of works and the duration of the copyright protection can vary greatly depending on when the work was created as well as other factors. Many times you can find what you are looking for in the way of images and music if you sign up for a subscription website like shutterstock or ghetty images, or premiumbeat.com or stockmusic.net.

Infringers can best be deterred by registering your copyrightable works with the United States Copyright Office. This simple action will establish a public record of ownership of the copyrighted material and puts others on notice of your claim to copyright. Additionally, federal registration will grant you prima facie evidence of copyright ownership and the ability to readily demand unauthorized users of your copyrighted works to cease and desist, pay a retroactive license fee for their unauthorized use, and or sue the potential infringers in court and seek statutory damages, actual damages, or disgorge any profits, whichever is greater. Often, the mere knowledge that you're able to sue with a lower burden of proof is enough to dissuade others from using your material without permission. Keep in mind that some seeming acts of infringement may constitute 'fair use.'

If you are believed to have used copyrighted work without express permission from the original author, you could be sued for infringement. You may initially receive notice of the alleged infringement and the desired remedy — often referred to as a cease and desist and demand letter. From there, the person or organization that has supposedly been damaged by your alleged infringement may proceed with a lawsuit in hopes of securing damages. They may seek their actual damages, which are often minimal, or ask the court to force you to disgorge your profits, also often minimal, or seek statutory damages, which can be as high as $150,000 per unauthorized use of a copyrighted work. Depending on your situation and alleged use of the copyrighted material, you may be able to turn to the 'fair use' doctrine as a complete defense. A fair use is not an infringement.

While copyright infringement is typically thought of as a civil matter, infringement cases sometimes lead to criminal charges at the federal level. Occasionally, civil suits and federal charges are filed for the same case. Generally, however, criminal liability is saved for the most egregious instances of federal copyright infringement. To be deemed a criminal matter, an act of infringement must involve clear purposes of financial gain, or the reproduction or distribution of copyrighted works totaling at least $1,000 in retail value. Willful copyright infringement for the purposes of monetary gain can lead to harsh criminal penalties, including six-figure fines, imprisonment, or both.

The penalties for copyright infringement can vary considerably from one case to the next. Repercussions largely depend on whether the infringement suit occurs on a strictly civil basis or becomes a matter of criminal law. With criminal infringement cases, infringers may face hundreds of thousands in fines or several years in prison. In civil suits, penalties typically involve monetary damages. These cover not only the full dollar amount of the damage incurred via unauthorized use of the copyrighted work, but also any additional profits made by the infringer or statutory damages, whichever is greater and at the election of the plaintiff fin the lawsuit. Furthermore, those found guilty of infringement may be required to cover the plaintiff's attorney fees and court costs.