The Two Most Important Intellectual Property Considerations When Publishing
Our thanks to attorney and PubSense Summit faculty member Brent Sausser for this insightful post. Brent is a trademark/copyright attorney and founding member of The Law Firm of Sausser & Spurr, LLC. Brent’s practice focuses on copyright and trademark law. He founded The Law Firm of Sausser & Spurr, LLC, along with co-founder Alex Spurr, upon the principle that attorney assistance should be simple, straightforward, and affordable.
Within his practice, Brent works with entrepreneurs, artists, and authors in an effort to protect their intellectual property. Brett will present on “Legal Matters: The Least You Need to Know to Protect Your Rights” at the 2015 PubSense Summit!
We often have clients who inquire about the intellectual property considerations prior to publishing their work. The two most important questions you need to ask are, “Do I need to protect my work of authorship with a copyright, and do I need to protect my work with a trademark, or both?”
First, to distinguish the two, a copyright is the exclusive ownership of and the right to make use of, for a limited period of time, artistic works that are fixed in a tangible medium. For example, lets say you tell a story to someone about a quest for a buried treasure. The story itself, if told aloud, is not copyrightable. However, if it is written or your voice is recorded, the text or recording represents an enforceable copyright.
Next, a trademark is any name, symbol, figure, letter, word, or mark adopted and used to distinguish products or services from the ones manufactured or sold by other third parties. Authors often ask whether they can trademark their title, and the answer is, it depends. I’ll explain:
Lets start with a copyright. You don’t need to file for a copyright registration in order to obtain copyright. Copyright protection attaches to a work once it’s embodied in a tangible medium. Therefore, once the pen goes to paper you have a copyright in that work. However, you cannot enforce your copyright against others in court until you obtain registration with the U.S. Copyright Office. In addition, if you file for a copyright registration within three months of publication, you’ll obtain the right to statutory damages, which can be up to $150,000 per infringement.
The first question, should you obtain copyright registration? Yes, if you want to be entitled to statutory damages, if you want to have the ability to take legal action against infringers, if you want a legal presumption of ownership, or you want the ability to prevent the importation of infringing works through the U.S. Customs and Border Protection service. Otherwise, if you don’t file, while you already have copyright ownership in the work, if the work is later challenged, your ownership may need to be supported by other evidence.
As to the second question, should you obtain a trademark registration? Maybe. A title of a work is not entitled to trademark protection, unless, it is part of a series or it is associated with some good or service. For example, if you write one book titled, “The Knights Templar Treasure of Oak Island,” you would not be entitled to trademark protection for the title. However, if you wrote a series of books titled, “Modern Treasure of Oak Island,” “Modern Treasure of Atlantis,” “Modern Treasure of Charleston, South Carolina,” then you would be able to obtain a trademark for MODERN TREASURE for a series of books. Furthermore, if you sold goods, such as jewels, under either the character names or the title of the book, you would also be able to obtain a trademark registration.
When publishing, you should consider what intellectual property rights you’ll need to protect via registration. You can learn this information and more during the “Legal Matters: The Least You Need to Know to Protect Your Rights” session of the PubSense Summit. We hope to see you there!
Thanks for this article. I never thought about the trademark issue. there are so many things to consider in today’s world of publishing.
Thanks for this article. I never thought about the trademark issue. There are so many things to consider in today’s world of publishing.
Thanks, Tara! We look forward to seeing you at the PubSense Summit – we’ve got some phenom new sessions and faculty – getting excited!