Know Your Rights
By Andy Herz
The legendary New York-born soprano Maria Callas (“La Divina”) once told an interviewer, “I don’t need the money, dear. I work for art.”
If only it were that easy for all of us.
As both a producer and intellectual property attorney, I and my clients frequently seek to thread the needle of creative fulfillment and commercial success. This is the first in a series of Legal Buzz columns intended to offer some practical tips and perspectives on that challenge: how to protect your rights and profit from your art, without sacrificing your creative vision.
The Lifecycle of Creative Projects. Creative projects typically follow five phases from inspiration to opening night:
1. Development à2. Pre-production à 3. Production à 4. Post-production à 5. Distribution
Each phase involves distinct tasks and legal issues. Each monthly Legal Buzz column will highlight key issues in each phase, beginning with protecting your rights during Development.
Let’s say you have the first draft of a script for an original stage play or the pilot for a television series. You want to set up a production company and get the show on the road. Let’s consider Trademark and Copyright issues – both critical steps in protecting your rights before you devote the next year or five to bringing your vision to life.
Evaluating and Registering Trademarks.
While your most important creative assets should be protected through copyright, also consider trademark issues before choosing a production company name. Trademarks are legally registered words and/or designs which identify your company’s services or products within certain pre-defined categories. Producing and distributing staged or televised entertainment puts you in the broad “arts and education” Class 41 – which includes “services having the basic aim of the entertainment, amusement or recreation of people” and the “presentation of works of visual art or literature to the public for cultural or educational purposes.”
There are several types of trademarks: “word” marks such as “Verizon;” logo marks, like Apple’s one-bite Apple silhouette; and combined word and logo marks such as Nike’s “swoosh” below the phrase “just do it”.
Searching Trademarks. Choosing the trademark name and/or logo for your production company is an important exercise in both branding and legal analysis. You want a mark that screams creativity and success. But you don’t want to run afoul of an existing trademark, which inevitably leads to a pointless waste of time and money. A niche music label dedicated to indigenous African, Latin American and South American artists might do well with a colorful globe and the name “Universal Music” – but the legion of lawyers at Universal Music Group will have different ideas, starting with a cease-and-desist letter. It’s always cheaper and easier to just come up with a different mark.
When selecting a trademark, it really does make sense to consult with an intellectual property attorney. But, before settling on a name, you can take some preliminary do-it-yourself steps to avoid costly red flags.
The US Patent and Trademark Office (USPTO) website at www.uspto.gov has all the resources you need to get started. First try a basic word search at: http://tmsearch.uspto.gov/bin/gate.exe?f=searchss&state=4804:a9m0hk.1.1
Stick with the default “Combined Word Mark” and plug in your desired mark. Then you or your attorney will have to review the results for any identical or highly similar marks in the same Class 41 of entertainment-related goods and services.
The USPTO site also offers a more detailed, structured trademark search.
If you are satisfied that there seem to be no problems based on this “down and dirty” trademark search, you could reasonably go forward with use of the chosen name. If armed with both plans to rely heavily on their trademark and sufficient cash in hand, some companies will order more expensive but far more thorough formal search reports from companies like Thompson Compumark, Corporation Service Company, or Trademarkia
Trademark Symbols and Registration. Once you settle on your mark, start using the ™ symbol whenever it appears in print or online. This simply indicates to competitors and the rest of the marketplace that you consider the company name to be your trademark. No formal registration is required.
You do have to register your mark though to use the “registered” trademark symbol ®. An overview of the either online or paper registration process and costs – filing fees range from $275 to $375 per class of goods and services – can be found here.
Evaluating and Registering Copyrights
Copyright is an exclusive legal right to print, publish, perform, film, or record literary, musical or other artistic material, and gives you the right to authorize others to do the same.Copyright does not protect an idea – only the specific expression of that idea. There is no copyright protection for “a story of a farm girl who feels persecuted in her drab hometown by a mean old woman, travels magically to a colorful new world and meets new friends – only to realize she really would rather be at home after all.” These are all ideas and could be expressed in any number of ways. But the specific expressions of these ideas captured in the motion picture “The Wizard of Oz” are definitely protected.
Searching Copyright Records. If your script or other work to be registered is wholly original, you won’t have to worry about searching trademark records. But, if your work is an adaptation of or related to any pre-existing work, you or your attorney must conduct copyright searches through the US Copyright Office’s online copyright records.
Copyright Symbols and Registration. Almost any original expression created after April 1, 1989 is covered by copyright as soon as it is expressed on paper, film or other tangible form.While not legally required, you should still put the world on notice of your inherent copyright by placing a © symbol on anything you write or create. Place this symbol on the bottom of the first page of your work, each page of your website, etc in a form like this:
“Copyright 2014 – Awesome Productions, LLC. All Rights Reserved.”
Include the © symbol from the outset because it (1) informs the world of your authorship; (2) establishes evidence of the year of first publication (in case someone copies later); and (3) makes it very difficult for anyone to copy your work and later claim they were unaware of your asserted copyright.
But, in the case of copyright, definitely take the next step and register your work with the US Copyright Office. The cost is cheap ($35 per online single author registration and $55 for other applications) and the benefits are significant:
A registered copyright is strong evidence in court of your copyright’s validity and the accuracy of facts stated on your registration form. If you ever have to sue, the registration is powerful ammunition. Without a registered copyright, you will likely recoveronly your provable actual damages (lost sales) or profits earned by a copyright infringer. Those are often non-existent or hard to prove. But, with a registered copyright, if you prevail, you may recover both your attorneys fees and statutory damages – up to $150,000 per willful infringement.
There are five types of copyright registration forms: (1) Form TX for literary works that are not to be performed (such as fiction, non-fiction and textbooks); (2) Form PA for literary works that are to be performed (such as screenplays, stageplays and musical compositions); (3) Form VA for published or unpublished visual artworks; (4) Form SE for individual issues of a serialized work such as periodicals and journals; and (5) Form SR for published or unpublished sound recordings – when the copyright claimed is the actual recording rather than (or in addition to) the underlying musical or dramatic work captured in that recording.
All forms can be downloaded or filled out online at www.copyright.gov and can be submitted either digitally or by mail. Registration is effective when your deposit material and check are received by the Copyright Office. But the office has a typical backlog of 3-5 months for electronic submissions and 7-13 months for paper submissions. So it’s best to submit your registration by overnight courier or other trackable mail so you have a record while you wait. Certainly keep a copy of your registration form.
Avoid self-inflicted wounds. In practice, far too many artists and producers launch into major projects without giving any of these intellectual property issues careful thought. That’s just too risky. You don’t want to invest hundreds of hours and potentially years of your life but risk it all by failing to understand and protect your rights.
Next Time: Moving from Development to Pre-Production; Bringing in Co-producers and Other Partners
Andy Herz is an artist-friendly intellectual property attorney and producer, focused particularly on technology and entertainment projects. If you have a question you’d like to see answered here or a project you’d like to discuss, contact him at email@example.com.