Guest column: Creativity means copyrights
| Saturday, Aug 29 2009 12:43 PM
Last Updated Saturday, Aug 29 2009 12:43 PM
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Jeffrey A. Travis
Tattoos, music, maps, technical drawings, books, poems, manuals — the list of what can be protected by copyright is a long one and continues to expand with each new mode of creative expression.
A copyright is an original work of authorship of any kind that is fixed in a tangible medium of expression.
To the point, a recent case by a tattoo artist was settled when it was discovered that a tattoo artist’s work had been used by an advertiser for a commercial on a famous NBA player.
Copyrights, compared to patents and trademarks, are also fairly easy to obtain. Rather than the lengthy examination processes endured by those seeking a trademark or patent, authors only need to pay a small fee along with a form application (now done electronically) with the Library of Congress. However, just because the application is a form, applicants need to be careful since entering incorrect information into some of the fields (e.g., assignment of ownership) can make your entire copyright registration defective.
A copyright is created whenever anyone creates an original work of authorship. Anyone who wants to enforce a copyright must federally register their work.
It is also important not to confuse what can and what cannot be copyrighted. For example, works not fixed in a tangible medium of expression, titles, names, slogans, lists of ingredients, ideas, methods, devices, or works in the public domain either cannot be copyrighted or would fall into different areas of intellectual property such as patents or trademarks.
Often, authors or artists will take an existing creative work and modify it with a unique creative flair of their own. What they often do not know, however, is that copyright laws give the original author the right to the work itself and also “derivative works,” or works consisting of editorial revisions, annotations, elaborations or other modifications.
The Copyright Office has stated that “to be copyrightable, a derivative work must be different enough from the original to be regarded as a “new work” or must contain a substantial amount of new material.
Making minor changes or additions of little substance to a pre-existing work will not qualify the work as a new version for copyright purposes …”
A derivative work can be hard to define. However, a simple example can help. Imagine a celebrity photograph as an original work. Then, another artist creates a pencil drawing of the same photograph.
This second drawing is probably not substantially different enough to be an original work but is a derivative work that the original author has rights over. Now, imagine Picasso doing his interpretation of the same photograph, which would probably look nothing like the original. This would probably fall into the realm of a new work.
To fully protect your works, file early since doing so allows you to obtain significant statutory damages and attorneys fees. For more information, you can review frequently asked questions at the Copyright Office’s Web site: www.copyright.gov.
Enforcing them is a different matter altogether and like most litigation can be quite expensive if a settlement cannot be quickly reached.
— Jeffrey A. Travis is an associate at BORTON PETRINI, LLP. He is a registered patent attorney with a practice focusing on intellectual property and business matters.
