How to Protect Your Creation

by Jeffrey E. Jacobson

Swiftly on to the page comes the super hero: faster than light, stronger than stone, a new hero for the ages, your own new creation. But, do you own it? How do you protect yourself from being ripped off?

Well, the law is supposed to be there to protect you and/or allow you to go after the people ripping you off. The copyright and trademark laws, as well as some other esoteric rules, commonly referred to by that newly chic, glamorous phrase "intellectual property law" are there to protect your very own super hero or other comic creation. Let us take a simple journey down the road to protect your new creation (with copyrights and trademarks).

Under the current law, when you "fix the expression of your idea in a tangible form or medium of expression" you obtain copyright protection. What that fancy phrase means is that protection by copyright law starts as soon as the creation is made. In other words, as you finish your drawing or story, you have automatically obtained your copyright.

The copyright only protects certain things. These copyrightable things or elements are limited to the creative (or even some not so creative) expression. The ideas underlying the expression are not covered or protected by copyright. This means that many people can have an idea, a concept, for example, of a hero with the power to see through things. The copyright would not protect this idea of x-ray vision; but, it will protect the manner in which you express and illustrate this idea (power). Thus, the story line that our hero developed his x-ray power from ingesting large amounts of radioactive swamp water when he was being raised in the Bayou might very well qualify as protectable expression. The copyright protects the expression that you create and gives you the exclusive right to own and use that expression. This will protect you and your expression from literary thieves.

Copyright notices are real important. Although our American law no longer requires them, it is the right thing to do. The notice is made up of the letter "c" in a circle, year of publication (printing) or creation, and the name of the copyright owner. The precise order is not exactly prescribed by the law; however, the symbol followed by the year and name of the owner is the most common form of notice utilized. You can spell out the entire word "copyright," use the abbreviation "copr.", or the universal copyright symbol (c). Because of our nation's observance of some international treaties which mandate reciprocal treatment, the best practice is to use the universal copyright symbol. In other words, you can get automatic copyright protection in a lot of other countries by using the universal copyright symbol of the "c" in a circle.

Registration of your copyright with the Copyright Office of the Library of Congress in Washington, D.C. is also no longer required. Yet, like the copyright notice, it is good practice. Registration is simple and relatively inexpensive. For forty five dollars, you can register your rights in your unpublished work or your locally published work. The TX (for written nondramatic text) or VA (for the visual arts) copyright forms are the appropriate ones to use. If you have an entire finished comic book, you should use the "TX" form specifying that you have created the words as well as the pictures. If your story has no illustrations, you still use the "TX" copyright form. If the pictures have no words, then you use the "VA" form. If you are publishing your books on a periodical basis, you can register several issues on the "SE" form. The "SE" copyright form is for registrations of serials or periodical publications. This form is for works issued or intended to be issued in successive parts with numerical or chronological designations, and intended to continue indefinitely. Also, if you contribute stories to a periodical, you can keep your copyright by having them publish your own copyright notice on your contribution or near in the publication. These articles (or stories) can then be registered on the "VA" form (if only pictorial images), the "TX" form (if only words or words together with illustrations), or on the GR/CP form. That form permits a group of several contributions within the same year to a periodical to be registered in one set on one registration. The GR/CP form goes along with the "TX" or "VA".

These various forms are easily obtainable online from those nice folks at the Copyright Office in Washington. Their mailing address is: Register of Copyrights, Copyright Office, Library of Congress, Washington, D.C. 20559. There you can find forms, general information, and a copy of the copyright law.

For the copyright registrations, you send them a completed form, with your forty five bucks and one copy of your work (if unpublished) or two copies (if it's been published, printed or distributed). I suggest you put a self-addressed, pre-stamped postcard into your copyright application package detailing and listing the items submitted. I generally list the title, number of copies, type of application (i.e. TX or VA), and the dollar amount of the check submitted on the card. The Copyright Office mail room will stamp the card acknowledging receipt. Despite there being a wonderful new person in charge of the lands of copyright, we are dealing with the federal government here. There are thousands of these applications arriving in Washington, D.C. and occasionally there have been losses. You don't want your copyright registration application to be included in these m.i.a.'s, so a return receipt with proper postage or the less expensive prepaid postcard demonstrates prudence. In the event of a loss, at least you can contact the office with their acknowledgment. It gives them an incentive to help you, since this proves their fault on the loss. You can even use a large stamped index card as a postcard. Put the postcard on top of the check, and registration form; this will usually catch their attention. Approximately four months after the bureaucrats get your materials, you will receive your copyright certificate with an effective date which is retroactive to the date the office received your materials (the same as the one stamped on the self-addressed postcard). You can send in your application by certified mail with a return receipt requested; but, the postcard is cheaper.

Although you don't need a copyright notice nor copyright registration any longer for you to obtain copyright protection, these formalities should still be used and followed. The full benefits of the copyright and the laws are only available to you where there is a notice and registration. These benefits include better rules for damages as well as recovery of attorneys fees and court costs should you get ripped off.

A newly created character is much harder to protect. One good way of obtaining copyright protection in your character is through registration of a style sheet. These are drawings depicting your new guy (girl, mutant, robot, being or other entity) in many poses, that will help you protect this new creation. But it's not so easy. Remember, the copyright only protects the expression, not the idea. That means that a drawing of a man is just an expression of the idea of a man. The copyright protects the "special" nature of your expressed creation. The elements of your character which are the same for every man (woman, hero or mutant) will not be protected by the copyright. There may be more on this in our next article.

Now let's explore the character's name. You cannot copyright a name. You may be able to get a trademark in the name, image and/or appearance of the character through use in commerce. If you thought copyrights were a little complicated, get ready for trademarks.

A trademark is generally a symbol, word or logo used in business to sell things. It is a mark that, to the public, represents where the goods came from (or services for a servicemark). Once a mark is used in commerce, you acquire common law rights to that word (symbol or logo) subject to another's previous use. These common law rights may be eligible for registration. There are federal and state registrations of trademarks.

First, let's explore this "pre existing users" business. If someone lived in a real remote area, we could imagine they never heard of "Superman." If they created a character and called it Superman, they would not get any rights to the name because someone else got it first. How do you know? Well, you do something called a trademark search.

A trademark search can be done "on-line" through various computer services, ordered from one of several companies that specialize in conducting searches, or obtained through a law firm. At the least, the search will ascertain if anyone has registered this mark (name, symbol, logo, etc.) with the Patent and Trademark Office in Washington, D.C. You will also find out if anyone has an application for registration which is just pending or if there is an "intent to use" notice in process. Additionally, the people who do this search for you can investigate all the state registrations as well as various directories and data bases to see if there are any other common law users. At the most, this can be done on a worldwide basis, but that is probably too much under the circumstances.

Once your search is complete, you can either register your mark with the federal government based on your desire to reserve it subject to printing your first books ("intent to use" application), or you can start your work. You cannot register the trademark, however, until you are using it. Each state registers these marks. State registrations are quick and also inexpensive. It generally takes between four and six weeks. You can get applications from the Secretary of State in your state's capital. Many of these forms are also available online.

Once your use crosses state lines, you are using your mark in interstate commerce. This means you can apply for federal registration. This process can take about a year from application to registration. The current filing fee if you mail in the application is three hundred and seventy-five ($375.00) dollars. It is less expensive to file online.

You also have to pay a separate fee for each class of merchandise that you want to register your mark for. The trademark is registered based on the kinds of things you are selling. The trademark means where the goods came from to the public. The purpose of these laws are to protect the public so they know the source of goods and products. The source of these products is important to the consumer because he or she will associate a certain degree of quality with the originator (or source) of the product. Thus, you register for publications or in other categories (for those other goodies like T-shirts, key chains, backpacks, toys, etc.).

By the way, two different people or companies can own the same trademark for different things. That's how you end up with Cadillac cars and Cadillac dog food. The government is concerned with whether two producers of different noncompeting goods with the identical or very similar name will confuse the buying public. Minor variations in spelling may or may not help you in obtaining a registration. Recently New York federal courts held that the comic buying public was sophisticated enough to differentiate (and not be confused) between one book called "Plasmer" and what became "Warriors of Plasma". This is an oversimplification, but if you send us a self-addressed, stamped envelope with questions, we'll try to help.

We have just completed our first journey down these copyright waters. There are many more issues and variations to the copyright and trademark topics. It seems not much in life is simple. Copyrights and trademarks are no different. There are many more gray subjects in this area than black and white rules. There are rumors that the copyright filing fees are going to be increased, again, soon. Trademark registration fees are always being raised. The speed in which you secure registration of your rights and make your applications can be crucial in the protection of your creation. So, in conclusion, get your forms in as soon as you can and remember "know your copyRIGHTS."

Jeffrey E. Jacobson and Bruce Colfin are avid comic book readers -- their New York law firm, Jacobson & Colfin, P.C., THE FIRM (R)  is located at 60 Madison Avenue, Suite 1026, New York, NY 10010, 212/691-5630. They specialize in copyrights, trademarks and entertainment law. They do a great deal of work in music, video, the arts, and most importantly, comics.

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