All laws begin their
existence as the solution to a problem. Copyright law is no different. Its
origin lies in the constitutional mandate that Congress has the power to
protect the arts by granting it the authority and the power to “promote the
Progress of Science and useful Arts, by securing for limited Times to Authors
and Inventors the exclusive Right to their respective Writings and Discoveries.”
Setting aside the 18th century understanding of the “useful arts” and our
current understanding of creativity, copyright law is now understood to be the proper
vehicle of protection for works of design.
Initially, access to
copyright protection required one to navigate a maze of arcane language and
procedure, usually with the assistance of an attorney steeped in the mysteries
of the Copyright Office. Today, standardized forms and the internet have made
access to copyright protection a relatively easy matter. The forms necessary to
register a work of the visual arts, the performing arts, literary works (which
include computer programs), music, sound recordings and films can all be easily
accessed at www.copyright.gov/forms/.
An application to register your work may be filed online at the same location,
but you will have to register as a user of the Copyright Office’s “eCO” system.
Online registrations have the added benefit of being cheaper to file and they
usually take less time to process. The filing fees for an application submitted
using paper forms is $45; submitting the form online reduces the fee to $35. The
ability to file a collection of works in one application may reduce the
effective “per work” cost of registration significantly.
The forms appear to be
very straightforward. In fact, they are deceptively simple. The forms actually function
as questionnaires that seek answers necessary to determine the status and legal
relationships relating to the creation and ownership of the works being
registered. For example, if a work was created as a “work for hire,” the
identity of the author should be the same as the copyright claimant. Many
first-time applicants will identify an individual as an author and then later
indicate that the work was made as a work for hire. While this is not an
illogical sequence of answers, the Copyright Office will reject such an
application. To be acceptable, the office requires a work for hire application
to identify the copyright claimant (usually the employer of the designer) as both the author and the copyright claimant.
Another common error
is the wording used in the actual “claim language.” Designers frequently find
their applications rejected or subject to mandatory amendment because they use
the word “design” in their application. Applications to register works of
design, such as the “design of a website,” are particularly vulnerable to
rejection. The Copyright Office will only accept a claim for those elements of a
work of design that fit historically copyrightable activities, such as the text
and images comprising a website. While no designer will argue that the design
of a website is not an artistic endeavor, the Copyright Office will only extend
registration to those elements that fit into their past practices. Works which
owe their existence to software coding are considered “text works” and are
registered with the same form used for poetry or a novel. However, there is
some flexibility. If the program also contains original visual elements, both
the text of the programming and artwork can be registered using the same form, Form
TX, by way of a claim that includes the “text of new computer program and artwork.”
It is a sterile statement, shorn of the romance of creativity. However, in the
halls of the copyright bureaucracy, it will get the job done.
Frank Martinez, a former designer and Design Patent Examiner, founded The Martinez Group PLLC in 2008. Frank earned a BFA in Fine Art from Pratt Institute in New York. He served as Production Director for Landor Associates in New York prior to attending
law school. Frank, after having been a Design Patent Examiner at the U.S. Patent and Trademark Office, has worked closely with design professionals for many years in both design and legal capacities. Frank Martinez by reason of his experiences understands
firsthand the business and intellectual property issues faced by designers. Frank is also an Adjunct Professor at The School of Visual Art, in the Designer as Entrepreneur MFA Design Program, where he teaches Intellectual Property and the Law.
Copyright law provides protection to designers, but like most trips to a new place, it requires you learn a few local customs and words of a new language to get the most from it.
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