Does your business create, own, sell, or license copyright-protectable content?
Are your trademarks and services marks adequately protected?
Is your web presence adequately protected?
Do you collect any personally identifying information from others?
Gretchen McCord’s unique experience as an attorney can be an asset to your business. Gretchen has represented creators and copyright owners of all sizes, from individual authors and artists to major corporations; and she has worked with users of protected works, from schools and libraries to entrepreneurs and local businesses to international companies. Her unusual experience uniquely positions her to assist your business in ensuring that you are fully protecting the company’s content, minimizing your risk in interactions with clients and the general public, and complying with copyright, trademark, and privacy laws. Among other things, she can help you:
- Establish ownership of works created for the company (Did you know that you do not own the copyrights in works created for you by independent contractors unless the appropriate documentation is in place?)
- License your own works to others or license your use of works belonging to others
- Audit your risk in using third-party works
- Adequately protect your company in contracting with others for creation of content, whether websites, traditional publications, artwork, or other
- Create Terms of Use and Terms of Service appropriate for your web presence
- Determine availability of trademarks and service marks
- Obtain maximum protection for your trademarks and service marks
- Police against infringement of your copyrights and trademarks
- Evaluate and respond to claims by others that you have infringed their rights
- Review contracts to ensure they protect your rights and those of your customers when it comes to both privacy and content
- Establish and implement privacy policies that comply with applicable laws
Common Copyright Myths You Should Know
Reality Check: Not unless you have a written assignment of copyright and other rights. Unlike employees, with no written documentation stating otherwise, independent contractors own the copyright in what they create for someone else, no matter how much the hiring party paid.
Reality Check: Under current copyright law, everything (that meets very minimal requirements) is protected by copyright automatically at the moment it is created. This is true even if there is no copyright notice (the “C in a circle”) or other indication of a claim of copyright. Unless the copyright owner has given you permission to use it, your use probably infringes the copyright.
Reality Check: A copyright is infringed when someone copies, makes derivatives, distributes copies to the public, and/or performs or displays a work in public without the owner’s permission, regardless of whether they profit financially from it, or even whether the copyright owner sells or licenses the work.
Reality Check: Making changes to an existing work may constitute creating a “derivative” of that work, which is an infringement of the copyright owner’s rights. There is no minimum quantitative requirement for infringement.
Reality Check: Ownership of an item, whether a hard copy or digital, is completely separate from ownership of any copyright in the item or even limited permission to use it in certain ways. The Copyright Act does give the owner of a lawfully made copy of an item to further distribute it to the public (but not to make copies to distribute; rather, to “dispose of” that copy any way you wish).
In the case of a digital work, you may not even own the work. Many “purchases” of digital works (such as most ebooks) are actually subject to licenses that dictate how you can and cannot use the work. In this csae, check the license to see what it allows.
Common Trademark Myths You Should Know
Reality Check: Trademark infringement occurs when you use a mark (usually the name of a product or service, a tagline, or a logo) that is similar enough to a previously existing mark that your use of it is likely to cause confusion between consumers as to whether your product or service is somehow connected with the owner of the other mark. The fact that your logo is original to your designer means that either the designer or your company owns the copyright in it; but you cannot know whether your use would infringe someone else’s trademark rights without conducting an appropriate investigation into the current use of already existing marks.
Reality Check: Although domain names often include trademarks, registration of a domain name does not convey any trademark rights in the name used. Federal or state registration of your trademarks provides a range of benefits, including the ability to prevent others from using similar marks in a way likely to cause consumer confusion, but the only right granted by a domain name registration is the right to use that domain for your website (and even doing that could potentially infringe on someone else’s trademark). If the goal is to obtain rights to use the name beyond in a domain name, registration as a trademark should be considered.
Reality Check: Actually, the opposite is true. This is challenging, because often, from a marketing perspective, a company often wants to choose a product name from which consumers can immediately know what the product is. Because the purpose of trademark law is to distinguish one good or service from another, the more “distinctive” the mark is, the “stronger” its protection. Indeed, generic names for goods or services cannot be protected as trademarks at all. Marks that describe the product, but not generic, can only be protected if they have “acquired disctintiveness,” meaning that despite the fact that the mark is descriptive of the product, consumers have come to associate it with your particular product. Read more about the spectrum of trademark strength categories here.
Reality Check: The purpose of trademark protection is to protect consumers from being confused by believing that the source of two trademarked products are the same or somehow related when they are not. If Joe’s use of Jane’s mark is not likely to confuse consumers, the use does not infringe. This could happen when the two use the same or similar marks on completely unrelated goods or services, for example, DOVE candy and DOVE soap or APPLE records and APPLE computers.
Reality Check: When you federally register a mark, you indicate whether it is a “word” mark or a “stylized/design” mark. The protection provided by the registration for that mark then corresponds to the type of mark you’ve registered. Registration for a design mark protects the design components of the mark, whereas registration for a word mark protects the words themselves, regardless of the style of presentation. A design mark that also has words could be infringed by someone who copies the design but replaces the words with entirely different ones. A word mark that has a design component could be infringed by someone who copies the words but presents them in an entirely different design.
