Trademarks and Lawyers
BY ANDREW REESE
In the last column, we looked at what a copyright is and how you obtain one. In this column, we'll examine the registration of a copyright, the differences between a copyright and a trademark and some other facets of copyright law.
Why Register a Copyright?
Let's continue with the example we used last column--a dynamite new game. At the very second you type your original code into your ST, you have a copyright in it under federal law. And further, if you add a proper Copyright Notice to it, you are protected against infringement, i.e anyone copying your code. So why does anyone bother to register a copyright with the Copyright Office? A copyright is a form of property, defined and limited by federal law. As such, in order to maintain the rights given to a copyright owner, you must follow the federal law exactly. If the law said that you must have a Copyright Notice in three-foot glowing fuschia letters for it to be effective, well, you'd have to have a three-foot, glowing fuschia Copyright Notice or it would fail. But if you properly register your copyright with the Copyright Office, you may be protected even if your game was distributed with an improper Copyright Notice.
There's still another reason to register your game: as a creature of the law, a copyright can only be enforced through the courts. Even if you have a valid copyright, you can't even get into court to keep someone from infringing on your copyright unless and until you have registered it with the United States Copyright Office. (There's a certain amount of leeway allowed for published works, but the bottom line is, "No registration, no lawsuit.")
As a lawyer, I was often asked the question, "Well, can I sue?" My answer always was, "Sure, but the question is: Can you win?" Registration of a copyright not only lets you sue, but it also lets you collect attorneys' fees and certain specified damages from the date of your first publication. Moreover, since you must deposit a copy of your work with the Register of Copyrights, this gives you an easy way of proving the exact state of your program on the date of registration. You programmers--think how hard it would be to prove the exact state of your program on that fateful day that you gave a copy of it to a "friend."
The Mechanics of Registration
To register a copyright, you will need to obtain Form TX from the Copyright Office at the address at the end of this column. See Figure 1. There are several different forms for various types of works, so be sure that you ask for the correct one. You will also want to ask for a copy of Circular 61, which gives you some of the basic information you'll need.
Once you have completed the form, you will need to send it along with a check or money order for $10, payable to the Register of Copyright, and a deposit of your work. For computer programs, this means a paper copy of the first 25 pages and the last 25 pages of your code. Do not send a disk with either source or executable code; the Copyright Office does not want it. Also, special rules apply to databases which are beyond the scope of this column.
Once you have properly complied with all of the requirements for registration, the Copyright Office will send you a Certificate of Registration. While it does not in itself prove the validity of your copyright, it is convenient to have for reference.
|If you can complete your Form 1040 without getting audited, then you should be able to complete this
Copyright Registration Form TX. If it looks too intimidating, or if you just want to make sure it's done
right the first time, you probably should talk to a lawyer.
Copyright Versus Trademark
Although the complexities of our society have made clear dividing lines difficult, some basic distinctions can be drawn between a copyright and a trademark. A trademark is a word, phrase, slogan or title that is used to identify a product or service. For example, Atari, 520ST, 1040ST and Mega are all registered trademarks of Atari Corp., and START is a trademark of Antic Publishing, Inc. From the standpoint of the Copyright Office, these words are too trivial to merit copyright protection.
Do You Need a lawyer?
If you think that your game has real commercial possibilities (Be honest, now!), then you should probably see a lawyer versed in Intellectual Property--that's the specialty that deals with copyrights. But if you can complete your Form 1040 and the schedules for the IRS without being audited and don't plan to make buckets of cash from your game anyway, then you can probably do the basics yourself. It's all a matter of how much your game is worth to you--and to the rest of the world.
Finding a lawyer skilled in copyright is another question, however. It's not a specialty that's widely practiced outside of the publishing centers of the country. Still, most business lawyers, even in small towns, must address copyright issues at some time for their clients. You may find a competent copyright lawyer right around the corner from you.
There are three good ways to find a competent copyright lawyer--or any other kind, for that matter. First, ask your friends who may have had to deal with business lawyers for a recommendation: Even if their recommendations are for lawyers who don't practice copyright law, any ethical lawyer will always attempt to steer a client to someone who can do a good job in that area of law. Second, pick up your yellow pages and look at the listings under Attorneys--Copyright. Then call a few who are listed. Ask questions: What percentage of their practice is spent on copyright? How will you be charged? Is there a fee for an initial consultation? And don't be cowed by lawyers; you're paying the freight and you can run the train.
Finally, go to the law library in your county seat. It should be open to the public. Ask the librarian to let you look at the Martindale-Hubbell Directory of Attorneys for your state. It's a set of b-i-g books that list almost all practicing attorneys by city and gives the specializations, experience and an overall rating. It's not the best way to find a lawyer but it's way ahead of using a dartboard.
I hope that these columns have been of some interest and use to you. They probably raised more questions than they answered, so if you have any questions of a general nature that I could answer in future issues, please feel free to write. I cannot answer specific legal questions, nor give legal advice, however.
As of March 1, 1989, the United States began following the Berne copyright convention--the international treaty on copyrights. This changes the law somewhat. For works published after March 1, 1989, a copyright notice will not be required to have a work protected. It will still be useful as a warning to potential infringers.
Additionally, there is no deposit requirement for works that originate outside the U.S., although it continues for works of domestic origin.
Andrew Reese is the Editor of START and a former attorney
Form TX and Circular 61, no charge. Information and Publications Section Copyright Office, Library of Congress, Washington, D.C. 20559, (202) 707-9100 to order forms and (202) 479-0700 for information.