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The Internet is a wonderful thing. I pretty much live on it. It puts the collective knowledge of mankind at your fingertips. It also makes it very tempting and easy to lift a logo, art, image or some prose. It happens all the time. There’s a myth floating around that if something is on the Net, it’s in the public domain. Not so. Even if it doesn’t carry a ©, it’s probably still protected by copyright. But, stuff still gets stolen. The Web has become the new wild West when it comes to intellectual property rights.

Another problem is derivative works. If you read Part One of this series, you saw that one of the exclusive rights an artist has is the ability to make derivative works. In other words, monkey around with stuff they’ve created. Others don’t have that right. So, if you’re designing a logo, for instance, be careful not to do some “research” in one of those mammoth logo books and pull a design, make some minor changes and try to call it your own. Bad idea.

Infringements, Thievery and Other Five Finger Discounts

Simply put, an infringement is when someone rips off your hard work to use as their own without crediting you. They probably won’t fatten your wallet, either. I’ve had it happen and you feel quite violated as well as angry. Really, really angry. For example, I’ve had my articles lifted and even my entire site. All the culprit did was replace my name with his. He stole all my content, all my portfolio images … everything. A cease and desist letter, along with a few, shall we say, strong words from my attorney was all that was needed to fix things.

My buddy and noted identity designer, Jeff Fisher, had this to say.

jefffisher-byDanMacias.jpgCopyright infringement, or the ‘appropriation’ of original designs, is not a new issue, or one to be blamed on the Internet. Early design work from my 35-year career was being ripped-off (and discovered) long before my original efforts began appearing on the World Wide Web in 1998.

The fact that work is displayed online may make it easier for abuse to occur; but I’ve also found it makes it very easy for offending parties to be found. A vigilant international community of creative professionals often discovers rip-offs, or blatant copying, of my recognizable work. I also come across lifted works of my design peers on a regular basis. In addition, the Google reverse image search tool – which I refer to as ‘the designer’s best friend’ – has been very successful in finding over 100 examples of infringement of my work, in the last year alone.

For almost two decades, my project agreement has included the following clause:

‘The designer retains personal rights to use the completed project and any preliminary designs for the purpose of design competitions, future publications on design, educational purposes and the marketing of the designer’s business. Where applicable the client will be given any necessary credit for usage of the project elements.’

Little did I know that retaining such rights would be of added help in dealing with online copyright infringement of my designs. By retaining such rights, I have yet to run into an issue of anyone disputing my legal rights when contesting a design rip-off. I am able to file DMCA (Digital Millennium Copyright Act) complaints myself, without having to turn the issue over to the client whose design has been stolen. It has also been helpful to a have a law firm as a design client, when additional assistance is needed. I have had a great deal of success in having offending images removed. In some cases, I have received financial damages from the infringers. Several cases are now being dealt with by my lawyers.”

Some links that may provide additional info:

Gallery of Jeff Fisher LogoMotives logo designs being ripped-off, used without authorization and providing much more than creative ‘inspiration’

This Facebook gallery of ripped-off images has even more examples and info:

Google’s reverse image search: Indies Restaurant

Google’s reverse image search: A designer’s best friend in finding and fighting unauthorized usage harvests pros’ logos – including Jeff Fisher designs – and sells images on site

Another person I talked with is Divya Khullar. Divya is an intellectual properties attorney in Miami and my go-to guy for this kind of stuff. I wanted to know if there were any common mistakes people make when it comes to copyrights and trademarks. I also wanted to know how folks can better protect and defend themselves when it comes to infringements. Here’s what he had to say.

divya-khullar-p.a.jpg“Let me start by saying that Internet is a great resource for information. However, by its nature the Internet is not regulated and can inundate one with information. There is a lot of information online about intellectual property, but it is confusing, at best, to a lot of people. As an intellectual property attorney the question I get asked the most is what is the difference between a patent, trademark, and copyright? This question generally follows up with the question: ‘Why do I have to register my mark? Or, as I understand it, why should I be paying you?’ (an intellectual property attorney).

To answer the first question; what is the difference between P,T, and C? Let’s break it down. The biggest misconception about patents is that it is somehow a right to use or sell. The notion is very wrong. What patents give you is a ‘right to exclude’ others from using your invention within the territorial region where you have protection. For example, a patent in the U.S. gives you right to exclude anyone from manufacturing, importing, selling or using your invention.

Enough with the legal theories, let me tell you what you should know about patents.

For a common man who is trying to make some money or start a small business, patent is a wonderful thing. A patent is a legal monopoly to sell your idea for twenty years (14 years if it is a design patent). The government protects consumers from any sort of monopoly by enforcing anti-trust laws. However, the government makes an exception in case of patents to let you have monopoly on your idea for next 20 years, provided you teach the public (i.e.: file a patent) what is it you are doing and how you are doing it. Sleep over the last three sentences and let it sink it. It is the essence of patents.

Well, I cannot move on to the trademarks and copyrights without addressing a very obvious question of why I should patent. Here is the thought process: Can I just keep my idea a secret? No one will know. The attorney just wants to make money. If I do not tell anyone my idea will be with me for the rest of my life. I am smarter than this attorney. Sure, you may be smarter than me, I do not doubt that a bit. But, you are confusing trade-secret and patent. To start with answering the question, can you keep your idea a secret? Yes you can. So, let me introduce pragmatism as to the business judgment you are about to make. You may have heard about how Coca Cola ® keeps their recipes secret. Yes, they do and they own an army of attorneys to keep those secrets and enforce when someone even dreams about violating them. Your secret is only a secret until someone gives it out. If you have the muscle and money to litigate, sure try it. But, understand that litigation is a game of kings and you better have money of a king to fight the battle in court. If you are not a king, then pick a safer bet. Safer bet being get the monopoly for 20 years!

Now, I think it is a good point for me to move on to the next two intellectual properties – Trademark and Copyright. What is trademark? Why should one get a trademark and not copyright? What is the difference? Trademark is combination of trade and mark. So, what you may use for trade or business i.e. slogan, marks, name, and the like can be protected under trademark or servicemark. So what is copyright? Copyright is an “original work of an author”. ‘Original work of an author’ is a loaded statement. Let’s break it down. ‘Original work’ means that you did not copy, reproduce other’s idea and claim it as your own. It is purely your creation. ‘Author’ means that you manifested the original creation. If you designed a character with invisible ink, you are the ‘author.’ You do not have to show it to anyone or even release it in public. Now that is good in theory, but a fallacy in practice. Always, protect your creation.

One may still as, can I do both? Create my own mark for my business, copyright it and trademark it as well. Sure, you can get both copyright and trademark on the same thing. But, in practice, as Neil stated earlier, a business generally hires someone to create their logo. The artist then sells his copyright to the business for his fee. Then the business trademarks the logo so no one else uses the logo or the slogan. Trademark is, in a traditional sense, a goodwill that a business has created over years. Once you have built the goodwill that’s when the thiefs want a free ride and use something similar to that goodwill which confuses the consumer and give the thief’s instant recognition.

At this point one may ask, what are the benefits of registering my copyright or trademark? There are several. First, it puts the whole world on notice that the property one is trying to take belongs to another. It is like placing your name at the entrance of your residence along with a sign saying trespassers will be prosecuted. Second, courts give the registrant an upper hand in a conflict/litigation. Now what do I mean by the “upper hand”. Say for example, you only place or © and never registered your mark. You will have to pay someone, me, to prove to the court that you were the first one to create or use the mark. If you register your mark, the challenger has to pay his attorney to prove that he was the first one to create or use the mark. Simply put, who spends more money upfront to bring the litigation changes. That small investment makes it cheaper for the registrant to go after another or to defend their work. Additionally, the registration helps you get your attorney fees and in some cases treble damages (if one can prove willfulness).

Third benefit is that you get to bring the action against another in a federal court. It is important because it levels the playing field. I will not divulge more into it as this is a thesis topic in itself. But, for now just take my word for it. Additionally, there are treaties (Paris Convention, Trademark Law Treaty, Singapore Treaty, Nairobi Treaty, Madrid Agreement, etc.) that may allow acquiring registration in foreign countries based on the U.S. registration.

Last benefit is to use the U.S. registration to file for protection with the U.S. Customs and Border Protection (CBP) agency. CBP oversees all the imports into the U.S. and will block any unauthorized product imports that have your mark.

Let’s summarize what I am trying to say. Protect your idea and sleep peacefully!