[amayausers] Re: Copyrights
- From: "Don Hanson" <terradon@xxxxxxxxxxx>
- To: <amayausers@xxxxxxxxxxxxx>
- Date: Thu, 2 Nov 2006 16:54:22 -0600
Roland,
If you are going to dispense with legal advice, you really should talk to an
attorney who practices copyright and trademark law. Or, at least, read ALL
of the www.copyright.gov site. Almost all of your errors below are in the
Frequently Asked Questions http://www.copyright.gov/help/faq/
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."
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
"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.
"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.
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.
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.
How any of that applies to setting up a preferred vendor agreement is really
tough to answer without knowing the copyright/trademark status of the
design/s in question. Before committing large resources, you'll want to make
sure that you have the proper authorizations from the people with the power
to give those authorizations. Then you'll want to work out an agreement that
is beneficial to all. You can pour yourself and a lot of money into setting
up a program only to have it go nowhere. You'll probably have to drive the
marketing and hope that your backers are influential enough to drive
business to you.
Don Hanson
Terradon Embroidery
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