Discussion:
What is the name of your state?: Maryland
I have been trying to get the right to use a company's imagery in merchandise that this company does not sell. They are being uncooperative, so I've been trying to explore my options. Upon further research, I found that the company has never put any protections on any of their imagery, although they have been using it for 20 years. Is there an understanding that they will have rights over this image due to their long term use of it? Or would I be free to register it under my own name and use it?
Thanks for any help you can provide,
-Fishhead
Answer:
Originally posted by fishhead202
What is the name of your state?: Maryland
I have been trying to get the right to use a company's imagery in merchandise that this company does not sell. They are being uncooperative, so I've been trying to explore my options. Upon further research, I found that the company has never put any protections on any of their imagery, although they have been using it for 20 years. Is there an understanding that they will have rights over this image due to their long term use of it? Or would I be free to register it under my own name and use it?
Thanks for any help you can provide,
-Fishhead **A: the company indeed has legal copyright over the imagery nothwithstanding the absence of formal registration with the government.
Answer:
Thanks for the quick answer. I'm honestly a bit confuzed as to why a company would shell out the money to copyright its material if it is covered by default, but I'm sure I'm missing something.
Is it that they don't have the right to sue unless they get the image trademarked? Also, if they are the ones using it, does that mean that they are the only ones who can trademark it? The impression I got was that they own the image, but until they actually register it, they can't do anything to stop someone else from using it.
The icon is that of an animal. It's somewhat abstract and futuristic looking. If I simply remove the eye, is that sufficient to be a new trademarkable image?
Thanks again!
-fish
Answer:
Don't confuse trademark and copyright -- they are two different animals.
"why a company would shell out the money to copyright its material if it is covered by default"
There are a whole bunch of reasons why a copyright owner would choose to register his copyright. You hit on one of them -- the copyright owner cannot sue for infringement unless the copyright is registered. Although a copyright owner can register a copyright at any time -- including the day before filing a lawsuit for infringement -- the owner can only sue for actual damages, that is, the actual amount of damages he suffered as a result of the infringement.
However, if a copyright owner registers his copyright, then, if an infringement occurs, he can not only sue right away, but he may be entitled to injunctive relief -- that is, having the court force the infringer to stop infringing, and ordering siezed or destroyed any infringing products the infringer has -- as well as statutory damages. Statutory damages allow a copyright holder to pursue a monetary claim against an infringer whether or not their are actual damages. So, if someone has a work that may be infringed and they REALLY want to protect it, registration is the way to go.
Finally, registration also establishes ownership of the copyright, and puts the entire U.S. on notice -- that is, if a copyright is registered, you can't claim to have not known about it -- which could be important if the copyright owner is claiming "willful" infringement, which can also be charged as a criminal violation...
"Also, if they are the ones using it, does that mean that they are the only ones who can trademark it?"
Again, don't confuse trademark with copyright. A copyright can ONLY be obtained by the person or entity who created the work. Copyrights are a property right that can be transferred to someone else, but only the creator of a work can obtain the rights initially to a work.
That's all copyright stuff. Trademark is different. Again, even if they don't have a registered trademark, they may still have other trademark rights associated with the mark.
"If I simply remove the eye, is that sufficient to be a new trademarkable image?"
Only a trademark attorney who can review ALL of the facts will be able to defintively answer that question. However, in general, it is unlikely that such a simple change would create an image different enough from the original to garner protection on its own.
Answer:
Thanks for all of the information, it's really clearing up a lot of things. i believe that I would be looking at a trademark, as it is an image that I am inquiring about. Imagine something like the Falcon from the Atlanta falcons. It seems that the company hasn't registered anything. Thanks again for the information. I'm trying to sort out if there is any chance of doing what I'd like before seeking out an attorney.
-Fish
Answer:
Have you checked the USPTO's website to determine whether or not they have a registered trademark? If they do, fuggetaboutit. If they don't, it might be worth talking to a local attorney before investing any money.
Answer:
Yes, I've looked, and they don't seem to have registered any of their imagery. If we are talking trademarks, would the company still have the same rights as you had mentioned in regards to the copyrights?
-Fish
Answer:
Trademarks are a lot different than copyrights. However, like copyrights, you don't have to register a trademark to have rights. Copyright is fairly simple -- if you have a creative work, its copyrighted, unless the copyright has expired or it has been given over to the public domain.
Trademarks, unless registered, are generally much more complicated than are unregistered copyrights. Whether or not a person can protect a mark will depend on a lot of things, including the goods being sold under the mark, whether or not the mark is being used consistently, the geographical region(s) the mark is being used in, how distinctive the mark is, etc.
Since this kind of analysis is extremely fact-specific, again, it is recommended that you talk with a local attorney who can review all of the facts
Answer:
OK, great. Thanks again for all of the information
-Fish