Once a month, NJArts.net publishes an article on arts law written by an attorney associated with New Jersey Volunteer Lawyers for the Arts. Here is the article for May.
In the world of entertainment, there is a major piece of property that you cannot touch or feel but you see it play out on a daily basis. This piece of property is the MVP (Most Valuable Property) and generates billions for the entertainment industry.
At this point you might be wondering, “What property is this?” The property is intellectual property. Specifically, copyright and trademark, and they play an important role in keeping the life blood flowing through the industry.
A good way to summarize the role each play is to view copyright as protecting your content, i.e. “works of authorship” (music, film, play, artwork, etc.), while trademark protects your brand/business (source of goods or services). In order to fully grasp their roles, you need to understand how copyright and trademark law operate. So here is a little crash course on both.
Copyright is a form of protection granted to original works of authorship. Under U.S. copyright law, protection is automatic once the work is fixed into a tangible medium. That is, once you type your screenplay, paint your picture or record your music, you have a copyright.
In the entertainment business, whoever owns the copyright makes the most money. A copyright is not a single right but a “bundle of rights.”
As the copyright owner, you have the exclusive right to:
• Make copies
• Perform the work publicly
• Create works based on the work (i.e., make a sequel, Broadway show, novel, etc.)
• Display the work publicly
• Distribute the work
• In the case of sound recordings, perform the work publicly by means of a digital audio transmission.
You can also sell or license the rights individually or as a whole. For example, in film distribution, you can give one company the domestic distribution rights while another company is responsible for international distribution.
As with all property, you must take steps to protect your assets. For instance, you purchase insurance on your home or apartment to protect it in case of fire, flood or disaster. In order to fully protect your copyright, you must register it with the U.S. copyright office at copyright.gov.
Why registration? You need to register in order to sue someone for copyright infringement, and registration prior to infringement opens the door to statutory damages. This is important because if you cannot prove how much money you lost because of the defendant’s infringement of your work and you can’t prove how much profit the defendant made (you don’t want to mess with Hollywood accounting), you are able to make a claim for statutory damages which ranges from $750 to $30,000, within the court’s discretion. However, if you can show that the defendant willfully infringed on your copyright, then the court can increase the statutory damages award up to $150,000.
A trademark is a symbol used to identify the source of the goods or service, and the law protects against consumer confusion. As such, you can build your brand around a trademark (i.e., establish goodwill). A trademark can be in the form of a logo, phrase, color, sound or even a fragrance.
Although each state has common law trademark rights, in order to fully protect your trademark, you want to file for registration with the United States Patent and Trademark Office (USPTO), uspto.gov. Where copyright registration is fairly simple, trademark registration is more technical and involved. Also, in order to obtain full trademark registration under the Lanham Act (trademark law) you must show that the mark is being used in commerce. That is, the mark is not just sitting on a file in your computer. You must be out there using the mark to market your film.
However, before you make an investment of time and money into using a mark, you want to conduct a comprehensive search to see if someone else might be using it. A prior use does not mean you could not use the mark, but a legal analysis should be done to see if your proposed use of the mark would infringe the rights of others.
When you have a federally registered trademark, it creates the legal presumption that you have the exclusive right to use the mark for the goods or services registered and you are able to prevent others from using the mark on the same or similar goods or services throughout the United States and its territories. Additionally, when your mark becomes famous (well known/acquired secondary meaning), you can prevent everyone from using it on anything — think Coca-Cola.
Now you have an overview of your MVPs and the role they play in the entertainment business, you will be able to protect and exploit them on your way to stardom!