Who owns what?
Picture/drawing
of what/whom? Similar to what? Variation/derivation of what? Likeness of public figure? Likeness includes a trademark?
Trademark
Protects against
unauthorized use of a symbol. $325.00 filing fee. Fee is nonrefundable even if registration is refused. US protection is for
10 years (file Certificate of Use for $100 in each class after 5th year), renewable as long as its in use. Record with Treasury
Dept. to prevent importation of "counterfeits". State registration is available for intrastate coverage. Check laws
of foreign countries for registration abroad. Often registration takes a year. Cannot trademark "merely descriptive"
names.
Copyright
Protects
art, written materials, including labels; brochures; posters; and catalogs. US protection is author's (or copyright holder's)
life plus 70 years.
Copyright 20___ XYZ, Inc. All Rights Reserved
Copyrights
to work done while employed belongs to the employer. $30 registration fee in US, and takes a few months. For info. call US
Copyright Office. US Government material is not copyrighted, but is in "public domain". Art in museums is owned
by someone (often, the museum) and cannot generally be photographed or copied without permission. Celebrities own their likenesses,
even if not exactly their likeness. Likenesses of buildings and products containing trademarks may also be protected. In some
cases, the building may be trademarked.
Contracts
Rights (first rights; first North American rights;
first North American serial rights, other rights): "licensing"; permission; derivative works; restrictive covenants
(noncompetition).
Common
contract clause:
Copyright, Trademark, Patent Waiver. All writing, materials, graphics, names, designs, illustrations, software, computer codes,
ideas, compositions of matter, inventions and other works of [Contractor] which are created while performing the services
for [Employer or Client] (the Work) shall belong to [Employer or Client]. [Contractor] assigns, transfers, waives and forever
releases to [Employer or Client] all rights which [Contractor] may have to copyright and to other statutory and common law
protection of the Work. The right to use, license, sell, reproduce, distribute, display, perform, copyright and legally protect
the Work shall be the sole and exclusive property of [Employer or Client]. [Contractor] also hereby transfers, assigns, waives
and forever releases to [Employer or Client] the rights to all derivative works of the Work.
Work for Hire
Employees.
If you do work while employed by another, the employer owns the copyright (absent agreement otherwise) 17 United States
Code section 101.
Independent
Contractors. Contractors (as opposed to employees) do own the copyright to the work they create while performing services
for their clients. The only way for an employer to truly own the copyright of any work done by a Contractor is to obtain an
assignment of each and every work done by the Contractor. The law says, however, that such assignments can be revoked. Therefore,
the payment of money with such an assignment (which is refundable by the Contractor if revoked) is one way for employers to
get a clearer right to the materials.
Fair Use
Copyright penalties will not apply if reproduction
or use of the work is for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship,
research considering the purpose of the use (ie commercial or nonprofit); the amount used relative to the whole work; the
effect of the use on the market.
Penalties
Injunction, impoundment, destruction of work, damages,
plus (for copyright) "statutory damages" of $20,000 or (if copyright notice appeared on the work) $100,000.
NOT INTENDED AS LEGAL ADVICE - CONSULT
WITH A QUALIFIED ATTORNEY BEFORE RELYING ON THIS INFORMATION
Copyright 1999, 2000, 2001, 2005, 2006, 2007 Louise Aron All Rights Reserved
