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    APB you Lawyer Loungers

    I want to create and use a mascot for the Lounge. How do I go about protecting the copyright so that we won't find it stolen and put to nefarious uses on other websites or products?
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    Re: APB you Lawyer Loungers

    First of all, a copyright automatically comes into existence as soon as the work is created. You don't have to do anything else. That being said, there are advantages you can receive by taking further steps.

    First, it is helpful to place a copyright notice on the page. The notice acts as an admonition that you have not donated the work to the public. This is the old

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    Re: APB you Lawyer Loungers

    Thanks, Art. That's all I needed to know. I'll go with "the old
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    Re: APB you Lawyer Loungers

    That's not enough.

    You need to verify whether you are violating antbody's trademark. THere are firms that specialize in doing such searches, but it is expensive.

    Putting a copyright on a page does not protect such a symbol, a trademark would.

    I'd carefully consider the benefits of doing this vs. the potential costs of doing this without a trademark search. Not to mention the legal issues in attempting to enforce the trademark.

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    Super Moderator jscher2000's Avatar
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    Re: APB you Lawyer Loungers

    These two legal regimes work quite differently.

    Copyright
    Generally speaking, the person who creates a piece of artwork (I assume this will be artwork) owns the copyright from the moment of creation. In the U.S., however, if it is created by an employee in the course of her employment, it is owned by the employer from the moment of creation. This is known as a work-made-for-hire. Most independent contractor jobs do not create work-made-for-hire, so don't be surprised if you are presented with a copyright assignment form as part of (or even years after) your consulting gig.

    Although it is true that you own the copyright automatically, you can't actually enforce it without registering it with the U.S. Copyright Office (foreign nationals exercising certain treaty rights do not have to meet this requirement). The form is relatively simple, and the process can be simple and inexpensive, as long as there are no complications. The most common complications include multiple authors, preexisting works, and transfers of ownership. If this were highly valuable corporate property, you probably would use a copyright attorney. However, in this case, I don't think it will be needed.

    <A target="_blank" HREF=http://www.loc.gov/copyright/forms/formvai.pdf>Form VA with Instructions (PDF)</A>
    <A target="_blank" HREF=http://www.loc.gov/copyright/circs/circ40.pdf>Circular 40: Copyright Registration for Works of the Visual Arts</A>
    <A target="_blank" HREF=http://www.loc.gov/copyright/circs/circ40a.pdf>Circular 40a: Deposit Requirements in Visual Arts Material
    </A>

    Now, I don't know that you ever would pursue Woody's Lounge v. Evil Infringer, but one advantage of early registration is the ability to threaten "statutory damages." These are damages that the copyright owner is entitled to collect even if there are no monetary losses and the infringer did not profit from the infringement. The threat of $100,000 in damages, plus recovery of your attorney's fees, carries more weight than a mere moral sanction when it comes to getting material taken down. The official registration certificate also is useful in asking the host to remove the material when the site owner won't do it. So although it seems to be a needless formality, it has great practical value.

    Unfortunately, the intellectual property laws are not self-enforcing. If threats and pleading (in the nonlegal sense) and public shaming in webzines and elsewhere don't clear up the problem, and Art and Howard won't take the case for free, you might just have to live with it.

    Trademark
    Will the mascot be a trademark? A character (Betty Crocker, Mickey Mouse, pets.com sock puppet) can become a symbol of a particular service if recognized as such by relevant consumers. It must be more than a smiley, of course, but there really isn't a bright line where you know you've got one.

    In the U.S., trademark rights arise as a result of use, and therefore you might not need to worry much at this point. If the Lounge were to contemplating a public offering, of course, then it would make sense to button it up with a trademark registration.

    Howard raises a good point about searches. You don't want a mascot that looks suspiciously like someone else's mascot. Problem is, many mascots are not search-able because people take the tack mentioned above and don't bother registering them. If you're curious about how you would search for a mascot, here's a sample using the U.S. Patent and Trademark Office database (sorry, I am not familiar enough with all the other database for all of the locations touched by the Lounge):

    Step 1: Identify the numeric codes for the design elements of your mascot using the PTO's <A target="_blank" HREF=http://www.uspto.gov/tmdb/dscm/index.html>Design Search Code Manual</A>. Let's suppose hypothetically that your mascot includes a witch. The code for "witches" is 04.01.25 ("Other supernatural or legendary fictional legendary [personages] including: Witches, genies, Robin Hood, Paul Bunyan and other giants, the Pied Piper, and Wizards).

    Step 2: Log on to the TESS system and choose "free form" search: <A target="_blank" HREF=http://tess.uspto.gov/bin/gate.exe?f=login&p_lang=english&p_d=trmk>U.S. Trademark Electronic Search System</A>.

    Step 3: Enter your numeric query as follows: <font face="Comic Sans MS">040125[dc]</font face=comic>

    Step 4: Boggle at the notion of 1065 filings containing designs of witches. Adjust your query by adding limitations. For example:

    <font face="Comic Sans MS">040125[dc] and live[ld]</font face=comic>
    477 of the marks are registered or pending; the rest, in PTO parlance, are "dead." Death at the Trademark Office, however, does not necessarily mean that the mark is not in active use with potent common law rights. It is merely one data point.

    <font face="Comic Sans MS">040125[dc] and (computer or software or network or networks or internet or chat or (bulletin ADJ boards))[gs]</font face=comic>
    111 of the marks (live or dead) list one of these keywords in the description of goods and services. The risk in doing this is that Mickey Mouse probably doesn't list these keywords, but it would be a mistake to interpret that to mean that one could use Mickey Mouse as a web site mascot.

    There are many ways to slice this, and if you were to order up a professional search (e.g., http://www.carr-ferrell.com/.

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    Re: APB you Lawyer Loungers

    Thanks, Howard.
    In this case we aren't dealing in a critical property so I think we'll skip all the heavy stuff.
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    Re: APB you Lawyer Loungers

    Thanks, Jefferson.
    I reckon you've covered everything. This is no million-dollar Mickey Mouse so I think Drk will be satisfied with the simplest approach.
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    Re: APB you Lawyer Loungers

    Now <A target="_blank" HREF=http://www.wopr.com/cgi-bin/w3t/showthreaded.pl?Cat=&Board=ann&Number=63858&page=0 &view=expanded&sb=5&o=0&vc=1>this</A> is the kind of answer you get when you ask some who has a clue!

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    Re: APB you Lawyer Loungers

    <img src=/S/yep.gif border=0 alt=yep width=15 height=15> Thanks millions for all the info everyone, you've provided quite a degree of clarity on this issue...

    I don't anticipate any problems... He's a handsome guy, (Rakishly Handsome, as some might say.. <img src=/S/wink.gif border=0 alt=wink width=15 height=15>) but he's no million dollar mickey mouse to any degree.

    At this point in time, I don't feel that the lounge attracts the type that's looking to deliberately infringe on copyright. I have taken steps to ensure that the creation date of this mascot is documented on several levels, so that should anything arise, I will have the tools I need to prove his creation date, and that he was in fact, created by me. He's not a public work, but he was created for use by the lounge.

    If such a time arises when Woody's Lounge becomes 'high exposure', It will behoove us to take appropriate steps to further protect the mascot, but right now, i'm comfortable with a simple note near the image, and the steps i've taken to prove his date of creation.

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    Moderator:<font color=448800> Pix Place, Internet Explorer</font color=448800>
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    Re: APB you Lawyer Loungers

    <img src=/S/clever.gif border=0 alt=clever width=15 height=15>
    So, my friend..when is our Mascot going to make his Grand Entrance???? <img src=/S/grin.gif border=0 alt=grin width=15 height=15>

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    Re: APB you Lawyer Loungers

    There is no such thing as copyright on a mascot, it is trademark law that applies.

    The biggest risk is not one of somebody copying the mascot, rather it is the RISK of your infringing on an extant trademark.

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    Super Moderator jscher2000's Avatar
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    Re: APB you Lawyer Loungers

    <hr>There is no such thing as copyright on a mascot, it is trademark law that applies.<hr>
    Well, we're talking about a .gif here, and not a live action character. Copyrights can be registered on drawings, photographs, and sculptures as visual art, including images of commercial personae. For example, the Copyright Office registered a drawing of the Ronald McDonald logo as visual art (number VA-206-496). I don't (yet) see any reason that copyright would not apply to the .gif simply because it is the Lounge mascot.
    <hr>The biggest risk is not one of somebody copying the mascot, rather it is the RISK of your infringing on an extant trademark.<hr>
    I guess we'll know when we see it!

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    Re: APB you Lawyer Loungers

    Hey hey Mr Butterfly Nebula

    Mickey Mouse wasn't a million dollar property at inception either. Think positive or dream big and cover your a.. from the start.

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