The artwork was created by asking an artist to create several pieces of similar artwork for a fee. Unfortunately, no work for hire agreement was completed before making this arrangement and the artwork is now complete and payment has been made. So...
Like the attorneys above have stated, an assignment agreement does not constitute "publication" for copyright purposes. The definition of "publication" in the copyright context is: "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance,
or public display constitutes publication. A public performance or display of a work does not of itself constitute publication."
For more information about copyright law and the basics, you can find a helpful guide on the Copyright Office's website at: http://www.copyright.gov/circs/circ01.pdf.
Be advised that filling out a copyright registration form incorrectly may result in the invalidity of your entire application. If you are still not 100% sure about how to fill out the form correctly, I would definitely suggest hiring a copyright lawyer.See question
I have been interested in creating a web-based business. Under the advice of those on this site, I contacted a lawyer and was about to begin the process of filing a trademark app for a business name when I discovered I cannot file unless I am alr...
Yes, there is a way to protect a trademark before you actually begin using it in commerce.
There are two main types of trademark applications you can file with the United States Patent and Trademark Office (USPTO): 1) the Actual Use (or AU) application, and 2) the Intent-to-Use (or ITU) application.
The AU application requires use in commerce before filing. The ITU, however, only requires that you have a bona fide (or good faith) intent to use the mark in commerce in the future; no actual use is required at the time of filing.
The ITU application is very similar to the AU application. In fact, it requires less information and work to file the initial application. Unlike the AU application, the ITU application does not not require you to provide a specimen (or a sample of the mark as you use it with your products/services). You merely need to submit the mark itself, as you plan on using it. Also, the initial filing fee for the ITU application is exactly the same as the filing fee for the AU application.
The main difference is that filing an ITU application requires a 2 step process. First, you file the ITU application. Then, once you actually start using the mark in commerce, you file what is called an Amendment to Allege Use/Statement of Use. In the Amendment to Allege Use/Statement of Use, you will need to provide the specimen, your dates of first use, and an extra $100 filing fee. You have 6 months from the day you file the ITU application to file the Amendment to Allege Use/Statement of Use, but that can be extended for up to 3 years.
There are many benefits to filing an ITU application rather than waiting until you actually use the mark in commerce to file an AU application. Some of those benefits are:
1) Your priority date will date back to the day you file the ITU application. This is important because it means that you can claim first use before you actually started using the mark, getting a priority date of up to 3 years earlier. You will have priority over any one else who uses the same or confusingly similar mark after your priority date.
2) You will have nationwide priority over others who use the mark after your priority date. A major advantage of having federal trademark protection (as compared to state or common law trademark protection) is that your rights in the mark span across the entire U.S., not just your area or region or state.
3) You will have assurance that your mark is registrable before you invest a lot of time and money into producing your goods/services. Especially since you are building a new business around your conceived mark, you should know whether you can use your mark on labels, print advertisements, or packaging before you actually begin to sell your products/services under that mark. This will save you a lot of time, money, and potential burden in the future if, for some reason, your mark is not allowed.
You can learn more about the ITU application at www.uspto.gov. I also wrote a more detailed article on this very topic, which you can see at www.pivotalip.com.See question
I am a student/freelance photographer. My instructor dropped my camera and broke it. He allowed me to use the school camera to take some shots with. I copyrighted my pictures after taking them. The school has priinted my photos, along with the cop...
First and foremost, it is important to understand the distinction between tangible property and intellectual (or intangible) property. Ownership of a physical object does not relate at all to ownership of the underlying copyright embodied in that object. For example, just because you own a painting and have it hanging in your living room does not mean you own the copyright (the artistic intellectual property) in the painting.
That said, ownership of a camera is not at all related to copyright ownership of photographs taken with that camera. However, this may be an important factor in a work-made-for-hire analysis. Under the work-made-for-hire doctrine, employers automatically own the copyright to works created by their employees during the scope of employment. Unless the school is trying to argue that you were an employee of the school at the time you took the photographs, then ownership of the camera is irrelevant.
Without a written contract stating otherwise, and without being an employee of the school, you (the photographer) are the sole copyright owner of your photographs.
The school may, however, be able to use your photographs pursuant to the Fair Use doctrine. 17 U.S.C. 107. Although the fair use concept is quite complex to explain in full here, I will attempt to provide you with a brief overview. Fair use is considered to be an exception/defense to copyright infringement where the copyrighted work is used "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." 17 U.S.C. 107. The significant part of this excerpt is "teaching." Four factors should be taken into consideration when analyzing fair use:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
17 U.S.C. 107. Without knowing how the school uses the pictures on their website, I cannot give you a determination, or even a guess, as to whether their use qualifies as a fair use. Hopefully you can use the factors above to analyze the circumstances.
You can try sending the school a cease-and-desist letter in order to assert your claim of right in writing. Best of luck.See question