I recently heard a member of an up and coming band discussing the band’s soon-to-be-released second album, … cd, … simultaneous release of approximately twelve musical mp3’s – until I pass from this earth, could we all please just refer to such a thing as an “album?”  Thanks.

To his credit, this guy was fairly savvy as to the need to protect the band’s audio and graphic/album art intellectual property. But when he mentioned that they planned to “patent” their new songs, it became obvious how easily confusing the intellectual property protection lingo can be.  So I thought the most basic of primers might be of some use.

What is the difference between a patent, a trademark, and a copyright? Quite simply, “the thing.” What “thing” you are trying to protect is what determines whether you will seek a “patent,” a “trademark,” or a “copyright.”

Patent

The U.S. Patent and Trademark Office provides the full and complete definitions of what a patent is, and what a trademark is, and even links to the sections of the United States Code that define these terms – just in case you need a do it yourself lobotomy.

But at its most basic, think of a patent as a new machine or device you’ve invented.  Some, or all, of the parts of the machine may be subject to one or several patents.

And know that patent protection can encompass less “physical” inventions or discoveries as well, including – but not limited to – new and useful processes, and new and original ornamental designs.  And patent protection may also extend to “anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.”

“Asexually reproduces?” That just sounds wrong.

And what patent protection does is allow the patent holder to EXCLUDE others from making, using, offering for sale, selling or importing the patented invention for a term of 20 years. So a patent is not the right to make something, it is the right to exclude others from making the same thing. Competitors may “invent around” your invention – make something similar that does the same thing, but they can’t copy or sell YOUR thing without your permission.

Trademark

Think of a “trademark,” at its most basic, as a logo;  a stylized tag of some sort – a word, name, symbol, or even a device, that identifies the source.

Just as the purpose of any logo is to identify the source, the purpose of a trademark is to distinguish your goods – you as the source – from goods provided by others.

Registering a trademark provides national notice that you are using your mark – your logo or other identifying item – thereby allowing you to prevent others from using a confusingly similar mark.

While you may be able to use your mark in your geographic area without having registered it, unless you have registered it, someone else may be able to use the same or similar mark in another part of the Country; and you might be unable to stop them.

Copyright

Copyright, at its most basic, is protection provided to authors or creators of original creative works – “original works of authorship” as termed by the U.S. Copyright Office.

The work can be literary, dramatic, musical, artistic, and more – creative work ranging from books, music and film, architectural drawings, photographs, paintings, sketches, to choreographed dance moves.

And while your “original works of authorship” are protected from unauthorized use even if you do not register them with the Copyright Office, registration makes proof of your authorship easier, and conveys very significant and powerful rights and statutory damages.

The Band & the Album

So the new album by The Up and Comers (my fiction, not their real name), would generally be protected by (1) registering the album and music videos with the U.S. Copyright Office, to protect the lyrics, music and performances from unauthorized use, and (2) register the band’s unique trademark properties – the name, symbols, etc., which are associated with the band as the source of their own music.

No patent would be involved – unless perhaps they invented a new device to record their music, or a new method for distribution of their music, or a new music format – a song recorded on a human hair, for example – at which point we would presumably have to repurchase our music library in yet another format. Perhaps the new term for “album” would become a “lock” – of hair. From a hair band.

No! “Album” – it’s an “album.” It will forever be “album.” We agreed on that.

*Note – this summary is INCREDIBLY oversimplified. Take if for the “shorthand” that it is.

So you and your writing partner have just polished off that first draft – she wrote the jokes and you wrote the drama. Or the two of you have just pitched to that studio with the winged horse, galloping up the mountain with the halo of stars, and the million dollar offer is a phone call away.

Congratulations!

So how does it feel to be business partners? And aren’t you glad the two of you hammered out your partnership agreement at the outset as to how to divide the payments, who would have creative final say, who would have the final answer in response to notes and changes from the studio?  Maybe you and the studio can agree on the ending you wanted but didn’t write because your idiot-savant writing partner didn’t like it?

What – No partnership agreement? No “writers’ prenup” about decision making, division of profits, etc.? Under the laws of most states, when the two of you first put pen to paper jointly, you entered into a legal “partnership;” just as though the two of you had started “Heckle & Jeckle’s Auto Repair” or “Abott & Costello’s Widget Factory.”

Writers generally don’t think of their writing partners as “business partners,” but even if this is merely a hobby, a lark, a frolic, a diversion – if there is ever money involved, it will be a business partnership.  And as so often happens, what if during the frolicking process, one of you gets serious; wants to take the script to the next level, show it around, pitch it to the world – but the writing partner just wants to return to his day job as Master-Barista at the Burnt Bean?

When you, the serious auteur, have labored on to craft the script into a masterpiece, and sell it as the next… whatever, will Master-Barista be at your door claiming his contributions were the elixir that brought the sale?  Could you stomach having to share your millions with that java-slinging hack?

The remedy is a simple but through partnership agreement at the outset of the relationship.  Such an agreement doesn’t have to be anything fancy, but should cover all the reasonably foreseeable events – who is anticipated to contribute what? Both to spend equal time on the project?  One to write structure, or story, or character, or jokes, and the other to contribute… other? Who owns what in the event someone walks away from the project before completion? Who maintains creative control in the event of a departure? Who has the 51% vote on notes received or suggested changes from a buyer?

Could it be that a dispute and ambiguity involving the ex-partner’s claimed ownership might foil the very sale of the script?! Well, … yes!

But by anticipating such events at the outset – when everyone is happy and buoyed by the promise of a future masterpiece – life, and business, can be much simpler (and fairer) if disagreements or departures occur later.

The simple fact is that a partnership, even a writing partnership, can be as complicated and thorny as a marriage; but often with the partners not having anticipated the seriousness of their future relationship – after all, there was no ceremony and no one popped champagne.

But confirming everyone’s expectations in writing – at the outset – can make life and business amongst the parters far richer – and successful.

Screenwriters often question whether to register their scripts, frequently resulting in conflicting information.  I have heard various producers, agents and consultants give disparate advice, including “don’t bother,” “theft almost never happens,” “yes, register your script,” or “well, if you think you have a great idea.”

Nonsense. There is no question – register your script.

But the follow on question is, “Should I register with the WGA – the Writers’ Guild of America, or with the U.S. Copyright office?”

The answer depends on your battle strategy – and make no mistake, in the unlikely event you are a victim of copyright infringement – fighting to get your due is indeed a battle.

So would you rather go into battle with a loincloth and a sling, or a shield, sword and pointy weapons?

Your answer is clear – U.S. Copyright office registration.

While I wholly support the WGA and its great work, the fact is that WGA registration does only one thing – establish documentation of your authorship; that is, establish what you wrote as of what date.  Thus, the WGA registration is merely an improvement on the old “poor man’s copyright,” proof that as of a certain date, your work was written and in existence, therefore helping you  to prove that the work, or some copyright protectable element of the work, was stolen by some unoriginal, plagiarizing, neer-do-well, scumbag.  But that’s all the WGA registration offers – a witness to what you registered with them on a particular day.

U.S. Copyright office registration likewise establishes evidence of authorship as of the registration date.  However, with Copyright office registration come the weapons of “statutory damages” and potential recovery of attorney’s fees.

Statutory damages are a big deal – even if the copyright holder has suffered no provable damages, the infringer can be made to pay statutory damages of up to $150,000 (§ 504). And beyond that, the infringer may be made to pay attorney’s fees, in the judge’s discretion (§ 505).

These significant benefits only result from registration with the U.S. Copyright office (§ 412).  And they do not result from registration with the WGA.

While the copyright holder must still prove infringement – a difficult task to be sure, these statutory remedies are powerful weapons afforded works registered with the U.S. Copyright office – and for about the same price as WGA registration.

So – thou shalt register thine creative works. And thou shalt register them with the U.S. Copyright office.