[amayausers] Re: Copyrights
- From: "Roland R. Irish III" <signman@xxxxxxxxxxxxxxxxxxx>
- To: amayausers@xxxxxxxxxxxxx
- Date: Fri, 3 Nov 2006 09:11:52 -0500
And now, for the rest of the story....
>
> For one, you, and many others are confusing copyrights and
> trademarks. The
> two are very different laws.
> http://www.copyright.gov/help/faq/faq-general.html#patent
>
> "AND there is NO LONGER any '10% change and its a new logo'
> loophole."
>
> There never was a 10% change loophole. It is a derivative work.
> http://www.copyright.gov/circs/circ14.html
>
> "Except for 'parody' use-you cannot use any
> logo in any way, shape or form for any reason without permission
> of the copyright holder."
>
And here it is, right from the gov't page...
Who May Prepare a Derivative Work?
Only the owner of copyright in a work has the right to prepare, or to
authorize someone else to create, a new version of that work. The
owner is generally the author or someone who has obtained rights from
the author.
Again, plain english....NO ONE CAN USE ANY PART OF A COPYRIGHTED LOGO
TO MAKE SOMETHING ELSE....
> A parody defense could be applicable to copyrights, but not to
> trademarks.
> When you talk about "logos", if it is a large company, it will be
> trademarked, in addition to copyrighted.
>
> "...if YOU design a logo for a client, and don't
> transfer the ownership of that logo in writing to them-YOU still OWN
> that logo."
>
> You own the copyright.
> http://www.copyright.gov/help/faq/faq-protect.html#title
>
Yes, you own the copyright AND the artwork...it is YOUR design,
not theirs. Until you 'sell' them the artwork to use, and transfer the
copyright, you own THE ARTWORK.
> "Many companies don't realize this...some do, and they 'buy
> the rights' to use that logo for 'certain products' and have to
> go back to the 'copyright owner' to get permission for anything else!"
>
> Not even close. A transfer of copyright contains very specific
> language.
> http://www.copyright.gov/circs/circ1.html#toc If the copyright is
> transferred, it is the right to copy that art, on any substrate, in
> any
> manner. Use of a logo on "certain products" would imply that the
> company
> later trademarked the logo A trademark is usually specific to "certain
> products". Though, even that is fuzzy. A trademark that has achieved a
> degree of recognition and is licensed for a wide variety of items
> may be
> considered by the courts to be protected for nearly all products.
>
Where did you find that statement? I didn't....the first item in the
gov't page is this...
Transfer of Copyright
Any or all of the copyright owner?s exclusive rights or any
subdivision of those rights may be transferred, but the transfer of
exclusive rights is not valid unless that transfer is in writing and
signed by the owner of the rights conveyed or such owner?s duly
authorized agent
Right there...'any' or 'all'....by contract, you can specify exactly
what items he has the right to use that design on.
It is NOT 'use it on anything you want'-you CAN specify what it
is...how do you think Harley Davidson, the Red Sox,
name a team or big brand-can sell a 'license' to produce and resell
their logos? it is NOT a blanket license but
you 'buy the right' to use that copyrighted logo ON SPECIFIC ITEMS.
A supplier producing Harley Davidson goods....leather wallets, tee
shirts, crop tops, bandannas...must PAY
a license fee (and it is several thousand dollars) for EVERY SINGLE
DIFFERENT ITEM AND EVERY SINGLE
DIFFERENT DESIGN with that Harley image. No matter what...
> "So if you develop a logo for a client for polo shirts and hats...and
> only charge him for those products and not a fee to develop the logo
> and sell that logo to him...then if he uses YOUR logo for business
> cards, signs, banners...YOU have the right to sue him for violation
> of copyright laws. <snip>"
>
> Now, you really go off the deep end and repeat common misstatements
> of law.
> What you charge a customer for and how you word it on your invoice has
> absolutely nothing to do with whether or not a copyright has been
> transferred. Only a rather specifically worded transfer of
> copyright will do
> that.
>
Rather specifically worded transfer? Again, where is the page for
that one?
Here is what the government says...
Any or all of the copyright owner?s exclusive rights or any
subdivision of those rights may be transferred, but the transfer of
exclusive rights is not valid unless that transfer is in writing and
signed by the owner of the rights conveyed or such owner?s duly
authorized agent. Transfer of a right on a nonexclusive basis does
not require a written agreement.
A copyright may also be conveyed by operation of law and may be
bequeathed by will or pass as personal property by the applicable
laws of intestate succession.
Copyright is a personal property right, and it is subject to the
various state laws and regulations that govern the ownership,
inheritance, or transfer of personal property as well as terms of
contracts or conduct of business. For information about relevant
state laws, consult an attorney.
Transfers of copyright are normally made by contract. The Copyright
Office does not have any forms for such transfers. The law does
provide for the recordation in the Copyright Office of transfers of
copyright ownership. Although recordation is not required to make a
valid transfer between the parties, it does provide certain legal
advantages and may be required to validate the transfer as against
third parties.
There is nothing in there about 'specifically worded transfer'...it
all depends on 'various state laws and regulations',
or however you want to word it...but if you word it wrong and leave
loopholes, a lawyer will walk right through them.
But, see the second line...'transfer of a right on a nonexclusive
basis does not require a written agreement'.
So if you tell them-'go ahead, use this design for whatever you
want'...then they can, and will!
But if you PUT IT IN WRITING...'this design is for use only on
shirts, jackets, hats'...then they CANNOT use it on
business cards, signs, coffee mugs....just like I said!
Having purchased artwork for one of my companies, to reproduce on
items for sale-I had to sign an agreement
that limited me to ONLY shirts and hats. They own the artwork-
although I commissioned it with my sketches'...and
they included the 'c' and date-and they ONLY sold me the rights to
use it AS SPECIFIED.
If I want to make greeting cards and posters, I have to go back and
sign a new contract and pay them another fee
to use the same designs.
The artists? Well known commercial artists that illustrate childrens
books-by commission. They do this for
the largest publishers of books in the US...and make their living
this way-by controlling HOW their artwork is used
and getting paid for it. Doesn't matter if you 'commission' them to
create it for YOUR product-they still own
all production rights and will only sell you specific rights.
and the first question on the government site...
who can claim copyright?
Who Can Claim Copyright?
Copyright protection subsists from the time the work is created in
fixed form. The copyright in the work of authorship immediately
becomes the property of the author who created the work. Only the
author or those deriving their rights through the author can
rightfully claim copyright.
In the case of works made for hire, the employer and not the employee
is considered to be the author. Section 101 of the copyright law
defines a ?work made for hire? as:
a work prepared by an employee within the scope of his or her
employment; or
a work specially ordered or commissioned for use as:
a contribution to a collective work
a part of a motion picture or other audiovisual work
a translation
a supplementary work
a compilation
an instructional text
a test
answer material for a test
an atlas
if the parties expressly agree in a written instrument signed by them
that the work shall be considered a work made for hire.
The authors of a joint work are co-owners of the copyright in the
work, unless there is an agreement to the contrary.
Plain english again...and my lawyer is versed in this. and just 10
months ago a local judge upheld MY claim against a local
store for having a sign made with a design I originated-and he DID
NOT PAY TO GET THE RIGHTS TO USE, even though
his copyrighted logo was part of it.
IF YOU DO NOT BOTH AGREE (with an invoice, bill, reciept, something)
that the logo you design is a 'work made for hire'-
then YOU OWN THE COPYRIGHT AND HE CANNOT USE IT....
In my case, I was not suing because he used his logo in the sign-I
was suing because he used the design for the sign 'frame',
a distinctive oval shape, suspended from a psuedo train bridge, with
a train on top.
I did NOT have to go to federal court, because the I was in small
claims court to sue for my bill for the design work.
I 'could' have gone further and sued for copyright violation because
MY ORIGINAL ARTWORK had 'the c in a circle' and
a date on it, and a bill for the design time if he was going to use
it which he did, without paying me.
To go to federal court, I would have had to prove financial loss,
etc. etc. which in this case was only a couple hundred dollars-
not worth spending thousands on a lawyer. But the judge agreed, I
wasn't paid for my design and therefore the guy
HAD to pay me because he used it!
Next time that other signshop tells a customer they can save him
money using someone else's sign design-they will
think twice about it-because I am sure he went back to THEM for
telling him that!
> Whether you can sue for copyright infringement would depend upon
> whether 1)
> you are entitled to a copyright <it is original work and not
> derivative of
> another work> and 2) you have registered the copyright.
>
> "So now you have a club or business with a nice logo...they need to
> put the 'c' in a circle on it, with a date...and from that day on
> they 'own' the copyright. Nothing to file with the government. I tell
> them to mail themselves copies of this logo, signed and dated,
> by registered mail-and don't open it! Just put it in the safe. Now
> they have a copy of their logo, with the copyright symbol, and
> it is in a government sealed and datestamped envelope!"
>
> The C (circle c) has not been required since 1989.
> http://www.copyright.gov/circs/circ1.html#noc Nor is it sufficient
> to use it
> and "own" the copyright. You "own" the copyright the instant it is
> put into
> finished, tangible form.
And the rest of the story....logos, artwork, 'visual copies' as
opposed to music,
etc............this is what the law says..
Form of Notice for Visually Perceptible Copies
The notice for visually perceptible copies should contain all the
following three elements:
1. The symbol © (the letter C in a circle), or the word ?Copyright,?
or the abbreviation ?Copr.?; and
2. The year of first publication of the work. In the case of
compilations or derivative works incorporating previously published
material, the year date of first publication of the compilation or
derivative work is sufficient. The year date may be omitted where a
pictorial, graphic, or sculptural work, with accompanying textual
matter, if any, is reproduced in or on greeting cards, postcards,
stationery, jewelry, dolls, toys, or any useful article; and
3. The name of the owner of copyright in the work, or an abbreviation
by which the name can be recognized, or a generally known alternative
designation of the owner.
Example: © 2006 John Doe
The ?C in a circle? notice is used only on ?visually perceptible
copies.? Certain kinds of works?for example, musical, dramatic, and
literary works?may be fixed not in ?copies? but by means of sound in
an audio recording. Since audio recordings such as audio tapes and
phonograph disks are ?phonorecords? and not ?copies,? the ?C in a
circle? notice is not used to indicate protection of the underlying
musical, dramatic, or literary work that is recorded.
> http://www.copyright.gov/help/faq/faq-general.html#mywork To sue for
> infringement, you have to first register the copyright by filing
> the proper
> forms with the Library of Congress. Mailing a copy to yourself also
> known as
> the "poor man's copyright" serves only to establish the date that
> the art
> was created before, should the person you are suing claim that they
> created
> the same art before your registration date.
> http://www.copyright.gov/help/faq/faq-general.html#poorman
>
> But, really more to the point. If this organization already has a
> logo,
> someone did the artwork and may still hold a copyright to it. If it
> is a
> large organization, the logo has likely been trademarked. In either
> case, if
> you create a stitch file of the logo, you MAY be able to claim a
> copyright
> to the file, providing you had the proper permission to use the
> underlying
> artwork. But, there has only been one fairly recent court case that
> makes it
> very unclear as to which copyright category a stitch file belongs
> to; visual
> art or computer program. The two are very different and it will
> take many
> more cases to clear up the confusion created by the recent case in MN.
>
No one mentioned copyrighting a stitch file...that was not the question.
Copyright law (and I just read all down through your referenced pages)
does not cover digitizing-because that is not a 'publishable work'.
It is
merely the operational sequence to run a machine.
However, the 'output' of your digitizing-actually sewing out a logo-
is covered-because you have 'produced' a copyrighted logo and cannot
do that without proper permission.
What has been held up in court, and it does depend on how you word
your contract or invoice-is WHO OWNS THAT DIGITIZED FILE (or with
screenprinters- the ACTUAL SILKSCREEN ITSELF with the image burned
in it).
When you make a digitized file, or burn a set of screens to make
teeshirts
for a client...if you bill them for 'silk screens' or
'digitizing'....and do NOT
specify this as 'setup charge' then any good lawyer in court can have
the
judge determine that since YOU charged the customer for a 'product'
(the silk screen or digitized file) then YOU HAVE TO GIVE IT TO HIM.
Been upheld in courts all over the country...and the subject of several
well written and researched articles BY LAWYERS in several national
Screen and Graphic magazines.
However, if you only charge for the 'service' (setup fee-not 'screen
charge')
then you are charging for a SERVICE, not a PRODUCT and therefore
have nothing the customer can claim. You still cannot use the file to
make
more hats or shirts to sell to someone else-if that 'artwork' (logo,
design, whatever)
is copyrighted.
>
Now some background...I do not have a legal degree, never claimed
to...and have recommended
that a lawyer be consulted by 'the club or company' at their expense.
MY lawyer successfully dealt with an issue far more expensive than
this simple
deal about 12 years ago-when I was up against the legal teams
representing CocaCola, Pepsi,
Mountain Dew, several others. It was for copyright
infringement....and because of the PARODY
law, set by a court case in Ct. or NY, I can't remember-a rock group
being sued for
plagarism....I won. Never got to court-they couldn't touch me.
I immediately came out with a new version of the products I was
producing for several distributors
across the country with new artwork AND INCLUDED THE 'c' in circle,
AND THE DATE,
AND MY COMPANY NAME AND ADDRESS...so the distributors were no longer
caught in the
middle. Not one more peep out of the big lawyers...they couldn't
touch me.
Even in the original artwork, I had NOT used any of their copyrighted
and trademarked logos-
but they were trying to claim that they owned 'all similar' material
and per the law...they did NOT.
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