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.
Next week: Protecting your intellectual property.
[1]
U.S. Copyright Office, Copyright Basics, http://www.copyright.gov/circs/circ01.pdf
(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, http://www.copyright.gov/circs/circ15a.pdf
(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, http://www.copyright.gov/circs/circ01.pdf
(last visited April 15, 2016).
[9]
See Id.
[10]
What is a trademark?, United States Patent and Trademark Office, http://www.uspto.gov/learning-and-resources/trademark-faqs
(last visited April 18, 2016).
[11]
How long does a trademark registration last?, United States Patent and
Trademark Office, http://www.uspto.gov/learning-and-resources/trademark-faqs
(last visited April 18, 2016).
[12]
Must I register my trademark?, United States Patent and Trademark Office, http://www.uspto.gov/learning-and-resources/trademark-faqs
(last visited April 18, 2016).
[13]
What are “common law” rights?, United States Patent and Trademark Office, http://www.uspto.gov/learning-and-resources/trademark-faqs
(last visited April 18, 2016).
[14]
What are the benefits of federal trademark registration?, United States Patent
and Trademark Office, http://www.uspto.gov/learning-and-resources/trademark-faqs
(last visited April 18, 2016).
[15]
See What is “interstate commerce”?,
United States Patent and Trademark Office, http://www.uspto.gov/learning-and-resources/trademark-faqs
(last visited April 18, 2016).
[16][16] See What is a copyright?, United States
Patent and Trademark Office, http://www.uspto.gov/learning-and-resources/trademark-faqs
(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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