Monday, June 20, 2016

Comics Startup 101 - Intellectual Property Overview

Comics Startup 101: Legal and Business Tips for the Independent Comics Creator
Part 5: Intellectual Property Overview

           This post is part of a series that grew out of my Comics Startup 101 panel I presented with comics creators at various comic book conventions around the Midwest. You can find the first post discussing doing a clearance search here, the second post discussing choosing a business entity here, the third post discussing contracts (part I) here, the fourth post discussing contracts (part II) here. Today, we will give a brief overview of intellectual property law that impacts comic book creators.
As always, I must disclaim that this is not meant to be an in-depth guide, nor is it meant to be complete legal advice. Any information provided in these posts is general in nature and should not be relied upon as legal advice. Meaningful legal advice cannot be given without a full understanding of all relevant facts relating to an individual’s situation. As such, you should consult with an attorney for specific legal advice that you might need. 

Intellectual Property Overview
As a creator, you should be aware of the laws relating to intellectual property. Generally speaking, there are three areas of intellectual property law – patent, copyright, and trademark. A fourth area of law, right of publicity, is sometimes lumped in with intellectual property rights even though it arises from a person’s right to privacy. In all likelihood, you will not have to worry about patents as you create your comic, and we will not discuss them here. Copyright, trademark, and right of publicity law will be important to you.
          Copyright protection is granted by federal law.[1] It protects “original works of authorship fixed in any tangible medium of expression.”[2] Included works of authorship are “(1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.”[3] The Copyright Act grants exclusive rights to the creator of the work for the life of the creator plus seventy years,[4] or 95 years from the date of first publication or 120 years from the date of creation, whichever is shorter, for works made for hire, anonymous and pseudonymous works.[5] Technically, you do not need to register your copyright.[6] However, in order to enjoy the full benefits of copyright protection, you must register your copyrighted work with the U.S. Copyright office within three months of publication of the work.[7] Some of the benefits of registration include 1) a public record of your copyright claim, 2) statutory damages and attorney’s fees in an infringement lawsuit (if registration is filed within three months of publication), 3) and the ability to prevent the importation of infringing copies of your work.[8] A copyright registration may be filed with the Copyright Office at any time during the term of copyright protection, but there are certain benefits to registering early within the copyright term as we discussed above.[9]
            Trademarks are used as source indicators for goods and services (also known as service marks).[10] Trademark rights can be protected as long as your trademark is in use, and, if the mark is registered with the USPTO, you have filed all the required documents showing continued use.[11] Trademark rights arise from use in commerce.[12] Generally speaking, the first person or company to use a trademark for their goods or services has acquired some rights to prevent others from doing so, even if the trademark is not registered with the USPTO.[13] In order to have the broadest protection available, a trademark should be registered with the USPTO. The benefits of registering a trademark with the USPTO include “[p]ublic notice of your claim of ownership of the mark; [a] legal presumption of your ownership of the mark and your exclusive right to use the mark nationwide on or in connection with the goods/services listed in the registration; [t]he ability to bring an action concerning the mark in federal court; [t]he use of the U.S. registration as a basis to obtain registration in foreign countries; [t]he ability to record the U.S. registration with the U.S. Customs and Border Protection (CBP) Service to prevent importation of infringing foreign goods; [t]he right to use the federal registration symbol ®; and [l]isting in the United States Patent and Trademark Office's online databases.”[14] It is important to note, however, that in order for a trademark to be registered with the federal government, it must be used in interstate commerce.[15] It is possible for an image or logo to be eligible for both trademark and copyright protection.[16] For example, Superman’s S shield arose as a copyrightable image/design, but it has also become an indicator of goods and services for DC Comics and a registered trademark for belt buckles,[17] toys,[18] sporting goods,[19] electronic games,[20] motion pictures,[21] comic magazines,[22] and many other types of goods. So, it is both copyrighted and a trademark.
            The right of publicity is the final area of law you will need to be aware of as a creator. Even though the right of publicity might not technically be an intellectual property right, it is nonetheless lumped in with these for good reason. It arose out of a person’s right to privacy.[23] However, as the law developed over time, it was accepted that in addition to a right to privacy, a person has a right to control how their likeness was exploited for financial gain.[24] The right of publicity allows someone, typically a celebrity, to control how their image or likeness is exploited for commercial purposes.[25] The right of publicity has been adopted in some form in over half of the states.[26] The right differs from state to state and can apply to “sound alikes; look-alikes; use of the celebrity’s nickname in a fictional work; use of address; statues; and the use of a robot that barely resembles the celebrity but evokes her image.”[27] Generally speaking from my own experience, the right of publicity is a very broad legal doctrine that can pose serious problems for creators trying to evoke the likeness of a living person or celebrity.

[1] U.S. Copyright Office, Copyright Basics, (last visited April 15, 2016).
[2] 17 U.S.C. §102(a).
[3] Id.
[4] 17 U.S.C. §302(a).
[5] Circular 15a, Duration of Copyright, 1, U.S. Copyright Office, (last visited May 24, 2016)..
[6] 17 U.S.C. §408(a).
[7] 17 U.S.C.  §407(a).
[8] U.S. Copyright Office, Copyright Basics, (last visited April 15, 2016).
[9] See Id.
[10] What is a trademark?, United States Patent and Trademark Office, (last visited April 18, 2016).
[11] How long does a trademark registration last?, United States Patent and Trademark Office, (last visited April 18, 2016).
[12] Must I register my trademark?, United States Patent and Trademark Office, (last visited April 18, 2016).
[13] What are “common law” rights?, United States Patent and Trademark Office, (last visited April 18, 2016).
[14] What are the benefits of federal trademark registration?, United States Patent and Trademark Office, (last visited April 18, 2016).
[15] See What is “interstate commerce”?, United States Patent and Trademark Office, (last visited April 18, 2016).
[16][16] See What is a copyright?, United States Patent and Trademark Office, (last visited April 18, 2016).
[17] Trad. Reg. No. 4656403, Registered Dec. 16, 2014.
[18] Trad. Reg. No. 2211378, Registered Dec. 15, 1998.
[19] Id.
[20] Id.
[21] Trad. Reg. No. 2226415, Registered Feb. 23, 1999.
[22] Trad. Reg. No. 1173150, Registered Oct. 13, 1981.
[23] Stacey L. Dogan & Mark A. Lemley, What the Right of Publicity Can Learn from Trademark Law, 58 Stanford Law Review 1161, 1167-73 (2006).
[24] Id at 1167-74.
[25] Id at 1174.
[26] Id.
[27] Id. At 1174-75 (internal citations omitted).

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