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We recently had an opportunity to talk about copyright law in our weekly Spanish language program on Radio Información thanks to the insights provided by Barbara Alexander, Esq. Managing Attorney at Alexander Legal LLC.
We decided to talk about this topic after running into several local businesses that were violating copyright laws and risking lofty legal penalties without even knowing it. As marketing consultants, we take pride in the quality and integrity of our work, take great care to protect our clients from compromising situations.
We encourage you to read through our interview with Barbara Alexander, Esq. and contact her if you have any questions.
The following is the list of questions we reviewed with Barbara Alexander, Esq. in preparation for the radio program:
What is intellectual property and what do intellectual property laws protect?
Intellectual property are the intangibles that add value to your business. Intellectual property law protects creations of the human mind. Real property is tangible and exists physically, but intellectual property exists only after someone has thought of it or created it. Intellectual property encompasses inventions; literary and artistic works; designs; symbols, names, and images used in commerce. The 3 main areas of intellectual property law are; patent, trademark, and copyright.
What are some of the most common mistakes that business owners make when it comes to intellectual property (examples: logos, marketing materials, store front designs etc.)?
- Choosing the wrong names for your business and/or products and services are common mistakes.
- Some business owners choose names that are confusingly similar to other businesses.
- Some choose names that make for weak trademarks, and therefore, make it more difficult to secure trademark protection.
- This stems, in part, from not doing sufficient research before making the decisions. It’s very easy for anyone to do a Google search. Business owners can also search the United States Patent and Trademark Office (the USPTO) trademark database themselves. For a more comprehensive trademark search that covers all 50 states, the Internet, business names and domain names, business owners should hire an intellectual property attorney.
- Hiring someone to design your logo without have a written agreement in place that covers who owns the copyright in the logo.
- Thinking that because a domain name is available, it is safe to adopt the name. If there is someone using a .com name and you select a .net name that is identical to or confusingly similar to another business, it can cause problems.
- Thinking they understand how intellectual property works and that they understand the intellectual property rights of other individuals and businesses. More often and not, the business owner is incorrect or does not fully understand the situation.
What are some steps business owners and marketers can take to protect their creative works?
Filing registrations with the U.S. Copyright Office can protect creative content, such as a website or marketing materials.
Filing trademark applications with the United States Patent and Trademark Office (the USPTO) to federally register trademarks, which includes business names, products and services names, designs, and logos.
Filing patent applications with the USPTO to protect inventions (could be a product or a way of doing something) that are unique and not obvious to secure patent protection.
Work-for-Hire agreements – to ensure that you maintain ownership even if a third party created the content, design, logo for you.
What are some of the consequences that business owners can face if a vendor creates marketing materials with photography that is not licensed or copyright that can been copied from somewhere else. Who is liable? The vendor or the business owner.
If a business owner is using marketing materials that includes photography that is not licensed, the business owner can anticipate possibly receiving a cease and desist letter from the copyright holder. These letters typically make one or more of the following requests: payment of an appropriate license fee, a photo credit, and/or a demand that the business owner cease using the image. It’s possible, but not likely, that a copyright holder could decide to file a copyright infringement lawsuit first, instead of sending a demand letter. Depending on whether or not the copyright is timely registered, in a lawsuit, the copyright holder could be eligible for statutory damages of up to $150,000 for each willful infringing use of the photograph as well as the copyright holder’s legal fees and costs.
Who is liable — the vendor or the business owner – would depend on the specifics of the agreement between them and whether the vendor represented that they had the proper license and they indemnified the business owner/customer.
What are some good resources for business owners who want to learn more about this topic? When should someone seek legal aid?
There are many resources available online that can explain what intellectual property is and how it works generally. The government websites themselves – the U.S. Copyright Office and the USPTO are the best resources to review. The USPTO will sometimes offer free webinars. The American Intellectual Property Law Association website has some resources that non-members can access.
They is not a substitute, however, for talking to an attorney about your specific situation/concerns.
There is no wrong time to seek legal assistance. It’s better to do so earlier rather than later. And if you have received any communications from a third-party or their attorney, alleging that you have infringed on a copyright, trademark, or patent, you should contact an intellectual property attorney as soon as possible.
About Barbara Alexander
Barbara Alexander is the Managing Attorney at Alexander Legal LLC, an intellectual property boutique law firm located in metro Atlanta. Alexander Legal assists clients, small and large, with a range of trademark, patent, and copyright matters. An initial phone consultation is free. You can contact Barbara via email at [email protected] or via phone at 404-900-6881. You can also go to www.thinkalexanderlegal.com for more information about the firm and its services.
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