Patent Pending Blog - Patents and the History of Technology

When Photos Enter Public Domain

Steve Nipper, world renowned Idaho Patent Attorney (and my partner), has a post on his The Invent Blog about a great site for a chart to figure out if a photo has entered the public domain.  The chart is on the Cornell University Law site, at copyright chart.  How this relates to me is that I bought a great book on invention and technology on ebay, published in 1919, and thus ALL the photos in the book are in the public domain.  Sweet!

Protecting a T Shirt Design

Believe it or not, I get asked a lot about how to protect a design on a T shirt.  Here is my take on how to do that.  The first thing that comes to mind is copyright.  You can get copyright protection for a photograph (assuming you are not ripping off someone else's photo), or a design, but you can't get a copyright on a short phrase, motto, saying, or the like.  To file for a copyright, download a form from the U.S. Copyright Office, fill it out, and send it in with the filing fee.

For a design, you could also get a design patent, which I'll prepare for you for $750.  The price eliminates 95% of the askers. 

You could file a Trademark on something, if it is used as a trademark, such as Nike, Pepsi, Coke, etc. 

As far as I can tell, words like "Vote for Pedro" are not protectable in any way, because they are not a trademark, not protectable by copyright, and not a design.  FYI, "Vote for Pedro" shirts are a hot item right now, and are a spin off from the cult hit "Napoleon Dynamite", shot in Preston Idaho.  Ask any techno geek or junior high kid.

A big problem with whatever you do to protect designs on a T shirt, is that the barrier to entry into making this product is very low, so 10,000 people could be set up overnight and cranking them out.  You can't enforce a patent or copyright against 10,000 people, even if it was valid.  So whatever you do, it is likely to be unenforceable.

When Does a Copyright Expire, So I Can Safely Copy Something?

This question is aimed at the duration of copyright.  People often want to use a photo or some other copyrighted work, and wonder how they can be sure the copyright has expired.  When a copyright expires, material can be lawfully copied. 

The current law is that copyright lasts the life of the author plus 70 years.  But a copyrighted is subject to the law that is in effect at the time it was created, and the laws have changed over the years.  Here is a simplified version of the laws that cover copyrighted material over the years, as pertains to duration:

Date of Work	Protected From	Term of Copyright
Created 1-7-78 or later	When work is fixed (tangible medium of expression)	Life of Author plus 70 yrs. or if corporate work, shorter of 95 yrs from publication or 120 yrs from creation
Published before 1923	In public domain	None
Published between 1923 and the end of 1963	When published with notice	28 yrs, renewable for 47 yrs, extendable for 20 yrs, for total of 95 yrs.  If not renewed, now in public domain
Published 1964 -1977	When published with notice	28 yrs first term, automatic extension 67 more years for second term
Created before 1-1-78 , but not published	1-1-78 , the effective date of the 1976 Act	Life of author + 70 yrs, or 12-31-2002 , whichever is greater
Created before 1-1-78 , but published between then and 12-31-02	1-1-78 , the effective date of the 1976 Act	Life of author + 70 yrs, or 2047, whichever is greater.

This link is to a Copyright office brochure on duration of copyright.

Copyright, To File or Not to File?

Copyright law is one of those areas where knowing a little about it can hurt you.  Some people who know a little about copyright law believe that you don't have to file a formal copyright application in order to own a copyright in their creation.  They are right, but that's not the entire story. 

Under current copyright law, if you just create something, you own a copyright in that thing, whether it is a statue, a book, a poem, a photograph, a piece of furniture, or a painting.  To keep someone from copying you, you just have to file for a copyright and sue them for copyright infringement, assuming a cease and desist letter doesn't work.  If you can prove you created it first, and they copied it, you can get in injunction and make them stop copying it.  That is a bit of a hollow victory after spending tens of thousands on a lawsuit, and it means that you will only enforce your copyright if it is a very important creation, like your company's flagship product.

However, if you had filed for copyright within 90 days of publication of your creation, or before it was copied, you could stand to win an injunction, attorney fees, and the damages specified in the statute, which is so many dollars per copy that has been made.  What that possible outcome adds up to is a huge hammer held over the head of the copier.  If he loses he will lose big time, and you will be made whole.  He will go to his copyright attorney and learn that he will lose big time if he gets sued, and he will come crawling to you with hat in hand and offer some kind of reasonable settlement, including not copying your creation.  That filing has given you tremendous leverage, and you can enforce your copyright without the lawsuit.

Copyright is so easy to file that you can do it yourself easily for the $30 filing fee.  The enforcement potential is huge, if you have taken the precaution of filing for copyright before you were infringed.  So file for copyright on any original creation, such as web sites, greeting cards, books, articles, drawings, photos, furniture designs, software, clothing styles, videos, animations, and anything that is an original creation.  Go to the U.S. Copyright Office for the forms to fill out for filing, and call me when your copyright gets infringed.  "Oh yeah, baby!" as Austin Powers would say.

Startup Company, Own Your Artwork!

Quite often a startup, or any company, for that matter, will hire an independent contractor to create something for them.  This might be a web designer hired to design a web page, an artist hired to design artwork for product containers, a software engineer hired to create software.  You naturally think that since you hired this person to do this job for money, that when the job is done and they get paid, that you own the work.  Copyright law doesn't work that way.  The creator of the work, if they are an independent contractor, owns the copyright until they assign the ownership of the copyright to you.  This actually happened to a client of mine: he hired an artist to design artwork to be put on packages for his products.  The artwork was designed, and after the artist was paid, he wanted another $15,000 to transfer the copyright.  Of course, the business owner didn't want one copy, he wanted 10,000 copes, so he had to have the copyright, which is the "right to copy".  The moral of the story is this: have the artist agree in writing to assign the copyright as part of the job, and as a condition for payment.  If he won't sign it, get another artist.

Copyright FAQ

Frequently Asked Questions about Copyrights

What is a Copyright?

A copyright is an exclusive right to reproduce and prepare derivative works of an original work of authorship. When compared with the patent right, a copyright is affirmative in nature because it gives the owner a right to do something other than just preventing other people from doing something.
A copyright protects the expression of an idea rather than the idea itself.
Section 102(b) of Title 17 of the United States Code provides "[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

What information do you need to file for a copyright?

Date and creation of the work.
Date of first publication.
Was the work for hire? Usually this is work done by an employee. If

Note that this list does not include ordinary art or writing, hired out, or architect's plans made for a client. That work is not "work made for hire." It belongs to the creator, unless it is assigned to the hiring party.


If there is an agreement that a work will be treated as a work for hire, the following specially ordered works can become works for hire: a work as a compilation or pre-existing materials, part of a motion picture or audiovisual work, translation, supplementary work, instructional text or answer material, atlases.
Is this a derivative work? A derivative work is a new version of something else. If the work is merely a variation, the underlying work must be copyrighted. Slight variations do not necessarily need to have separate copyrights, but if there are major changes, a separate copyright may be obtained. However, a new variation of an old uncopyrighted version may not be copyrightable.

Is the work entirely original, or is it a compilation or collection that has unique qualities because of your arrangement?

Year of completion.

Who is the owner?

The owner is the creator, unless that person was working as an employee and the creation was part of their job. Notice, however, that only applies to employees--others, sub-contractors for example, are treated differently.

How do I provide proper notice that a work is copyrighted?

Proper notice has the © symbol of the word "Copyright," the name of the owner of the copyright, and the date of first publication. The date of first publication is when the work was made public, not when it was created.

Proper copyright notice should be placed on all works in an obvious place. For designs in clothing, as close to the artwork as possible. For printed publications, on the title page or its equivalent. For software, on the title screen and on any printed material.

What about subcontractors?

If you hire work out to subcontractors, you have to specifically contract for the copyright and record those rights with the Copyright Office. This is a new development in the law aimed at preventing someone from exploiting the efforts of an artist who never gets paid. Without an assignment or license to use the work, you may not claim it.