Intellectual Property Law

  • Copyright registration, including music, visual arts and desig
  • Trademark registration, including name selection
  • Trade Secrets protection

“Intellectual property” is a catch-all term for the field of law concerned with copyrights, trademarks and patents, as well as trade secrets and the associated rights. The category covers the creative side of music. Mark A. Baker Law assists those claiming interests in intellectual property in protecting and exploiting those interests by counseling and advising across a broad range of issues, including proper registration of copyrights, and issues related to “fair use” of others’ protected copyrights; branding issues and trademark protections, and pursuit appropriate trademark and service mark registration.

What is a Patent?

Patents are limited duration property rights granted by the U.S. Patent and Trademark Office, to protect inventions or discoveries, in exchange for public disclosure of the invention or discovery. The registration process is lengthy and cumbersome, and requires that the attorney have specialized educational credentials, usually in engineering or the sciences. I do not practice before the Patent Office.

What is Copyright?

Quite literally, copyright is the right to copy and is granted by Federal law to the author of both unpublished and published “original works of authorship” which are “fixed in a tangible medium”. Ideas are not protected from “infringement” since they remain in the province of the mind, and not fixed in a tangible medium (though there are ways to protect against the theft of an idea). The domain of copyright includes literary, dramatic, musical, and artistic works, such as poetry, novels and songs, and certain other intellectual works, such as computer software and architecture.

Copyright protection provides the owner the exclusive right to: reproduce the work in copies (such as sheet music) or phonorecords; prepare derivative work based upon the work; distribute copies or phonorecords of the work to the public by sale or other transfer of ownership; perform the work publicly, in the case of literary, musical, dramatic and choreographic works, pantomimes, and motion picture and other audiovisual works; display the work publicly, in the case of literary, musical, dramatic and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and perform the work publicly (in the case of sound recordings) by means of a digital audio transmission.

A common law copyright exists at the moment the work is created. However, to obtain the full range of copyright legal protection, the work must be registered with the U.S. Copyright Office. Upon registration, the owner has access to the federal courts and may be awarded compensatory damages (such as for lost profits), statutory damages up to $150,000, plus attorney’s fees for each infringing copy. If the infringement is willful, higher damages may be awarded. In certain cases involving willful copying for profit or financial gain, criminal penalties may come into play.

Copyright policy is intended to address the conflicting interests of creators to protect the fruits of their labors, and the interests of our society in promoting the free exchange of ideas and First Amendment freedoms of expression. Therefore, in exchange for exclusive rights to use copyrighted works, the exclusivity is limited in duration. Under current law, the term of copyright for a work depends on multiple factors, including whether it has been published, and if so, date of first publication. As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author, plus an additional 70 years. For works first published prior to 1978, the term will also vary based on multiple factors. The law gives copyright protection to in existence but not published or copyrighted prior to January 1, 1978. The term is generally the life of author plus 70 years, and is guaranteed at least 25 years of statutory protection. In addition, if the work was published before December 31, 2002, the term is extended another 25 years.

Works that are excepted from copyright protection:

Work made for hire – work prepared by an employee within the scope of his or her employment, or a work specifically ordered or commissioned for various statutorily-defined purposes. Works that haven’t been fixed in a tangible form of expression, titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents; ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration; works consisting entirely of information that is common property or containing no original authorship (like standard calendars, lists or tables taken from public documents or other common sources Works in the “public domain” lack copyright protection and may be freely used by anyone. Works may fall into the public domain for 3 reasons: the term of the copyright has expired; the author failed to satisfy statutory requirements and failed to perfect the copyright; or it is a work of the U.S. Government. Determining when a work has fallen into the public domain generally requires “doing the math” based upon the date of the original creation. Here are the basics:
  1. if published prior to 1923, it is in the public domain;
  2. for works published between 1923 and March 1, 1989, you have to determine whether proper statutory formalities were followed: if published between 1923 and 1978 without a copyright notice affixed, it is in the public domain (BUT – if a work during this period has a copyright notice affixed, it is protected for 95 years from the date of publication); if published between 1978 and March 1, 1989, without a notice AND without registration , it is in the public domain (on the other hand – if the work published during this period has a notice, but not a registration, then it is protect for 70 years from the death of the author ); if published between 1923 and 1963, with a notice, but the copyright wasn’t renewed, it is in the public domain (renewals only concern works published during 1923-1963, and required renewal in their 28th year to remain copyrighted); and
  3. after March 1, 1989, all works, whether or not published, are protected for 70 years from the date the author dies.

How to copyright your music: The process to obtain a copyright is surprising simple and affordable. With web access, you can register online by going to the Copyright Office website (www.copyright.gov), uploading a copy of your music and paying the $35 application fee. Online registration is cheaper (it’s $50 to register by mail), will cut the wait-time considerably (average wait-time time for mail is 12-15 months) and will allow you to check status of your pending applications.

What is a trademark?

A trademark or service mark is the Federal protection provided to a distinctive word, phrase, symbol, and/or design that identifies and distinguishes the source of goods of one party from those of others. Goods are physical commodities used in interstate commerce, and can be natural, manufactured or produced. A service mark is the same, except that it identifies and distinguishes the source of services of one party from those of others. Service marks are intangible activities, performed by one person for the benefit of others, whether or not for pay.

“Trademark” is often used interchangeably with “service mark”.

The duration of a trademark is generally 10 years, and may be renewed for successive periods of 10 years, provided all notice requirements are met.

A trademark application may be filed based on a bona fide intent to use the mark on a product or in association with a service that will soon be offered in interstate commerce, but which is not currently in use. Where the mark is not currently in use, it must actually be used in commerce within 6 months after the application, which may be extended under appropriate circumstances. Upon grant of the trademark, the owner’s rights are superior to any other person who adopted the same or similar mark after the date of filing the application.

Registration of a trademark provides the owner the right to prevent others from using the same or a confusingly similar mark which is likely to confuse consumers, thereby diluting the strength of your mark. Registration provides several advantages to the holder, including public notice of the claim; legal presumption of ownership and exclusive right to use the mark nationwide on or in connection with the goods/services listed in the registration; ability to bring a legal action in Federal court concerning the mark; use of U.S. registration to obtain registration in foreign countries; ability to record the registration with the U.S Customs and Border Protection Service to prevent import of infringing goods; use of the Federal registration symbol.

A band name may be trademarked (actually, service marked) for “entertainment services in the nature of performances by a musical group” if it’s used to identify live performances. Other protectable categories include domain names (if they identify a product or service), images, symbols, logos, slogans or phrases, colors, product design, and product packaging (“trade dress”).