Yesterday, we covered key differences between trademarks and copyrights. (There are a bunch more, so we’ll save them as future blog fodder.) Today, we zero in on just how important it is to take a thoughtful approach to copyright protection. With an exceptionally small time and money investment, your registered copyright may well work harder and faster for you than your trademark, should a problem ever arise.
1. You have to register quickly to reap the big benefits.
If you’re like the typical brewery or business, you have all kinds of marketing efforts going on at once. Maybe you have a designer or two working on the next label or a massive overhaul of the website. That means you’re creating copyrightable intellectual property at a surprising rate. The good news is, as we touched on yesterday, all that protectable material automatically gets a sort of “copyright,” and you don’t have to lift a finger or write a check to get it. The bad news is, the rights you get in the material are thin compared to the rights you get if you register the copyrighted works within a statutorily mandated time. What kind of rights do you get if you register?
Here’s the big one. Statutory damages. Unlike with a trademark dispute, where you’d typically be fighting hard to make someone “stop” or “change names,” copyright law sets a dollar amount you get if someone is infringing on your copyrighted work (and can also get them to stop). You don’t have to get out the calculator and try to put a number on just how much a misuse of your work damaged your business. The range is an automatic $750 to a whopping $30,000 per infringed work, and not a penny less. And, if the infringement was willful, the court can award up to $150,000. (If you’ve ever wondered why those music-pirating cases amounted to millions of dollars, consider these numbers times 100 downloaded songs.)
Now, we’re not fans of litigation and we shake sticks only when the peaceful way out isn’t possible. But, if there’s ever a stick to shake, it’s this one. If you have a legitimate concern that, say, your artistic logo has been ripped off in certain impermissible ways, this provision does a lot for you. It’s a lot easier to avoid court altogether and convince a problematic infringer to stop an even borderline-infringing use when you have these statutory damages available. (And, note that copyright law is immediately enforceable nationwide, and no matter whether the infringer is a brewery/alcohol biz or not, whereas trademark law requires that your trading territories cross and typically only applies to closely related businesses).
Changing gears a tad, it’s also important to note here that you can recover attorney’s fees through copyright law. Assuming the polite but powerful cease and desist didn’t work and you have to seek a court judgment, if you win and have registered your copyright, you can potentially get your attorney’s fees paid for—yet another reason the other side may want to avoid court in the first place.
2. Register within three months, but be selective.
So, to get the big sticks we’ve mentioned (and there are more), you have to register early. Wait, and you lose the sticks forever, though you’ll still have enforceable rights—just not as powerful ones. The timeline to get to the US Copyright Office with your registration is 3 months, and the clock starts ticking whenever you publish your copyrighted work in a public way. Posting a new label design on Facebook? That’s publication for these purposes. So, that’s why, if a brewery is not strategic about protecting copyrightable material, it’ll never get the full benefit of copyright law.
It’s our position that it’d be a waste of time and money to attempt to register every copyrightable thing your brewery puts out. That doodle you made on the back of your coaster? Well, it’s copyrightable. The doodle isn’t important, but your brewery’s logo and beer labels are. If it’s important to your business, brand, or brewery identity, that’s the material you want to best protect. That’s the material to copyright, and it’s material that might extend beyond what’s protectable with a trademark. Even your tap handle design, though it’s functional, could have protectable aspects. By deciding early on what sorts of things you want to protect, it’s best to come up with a game plan to protect them, so the three-month shot clock doesn’t run out.
3. As part of your strategy, know what you own—or how to own it.
This is an area of copyright law that even the savviest business owners can slip up in. Even though your brewery has paid an artist to make something, unless that artist is on your staff and it’s a typical part of the person’s job, the copyright doesn’t necessarily belong to you. You’d have a right to use it, sure, but all those important rights we’ve covered would belong to the artist. This is a problem, because the artist (and we hope they wouldn’t) could make all sorts of uses of the artwork you thought belonged to you. Depending on the kind of use, trademark law might stop them, but there are all kinds of uses TM law wouldn’t help.
A way out of this is to form a particular agreement with every artist who is going to make those important kinds of work you’ve identified. And, for work that’s already been made, a brewery could sweep those copyrights under your control by requiring that the artist assign their rights to you. Only certain kinds of language will work in these sorts of agreements, so it’s important to connect with your IP-savvy legal advisor and get it right.
Valuable IP can be affordable to secure, it just takes planning.
For breweries in the planning stages right now, it’s early enough to form a proactive strategy to protect your copyrightable and trademarkable material, making sure to collect those statutory “sticks” to best protect all your essential intellectual property. Even for existing breweries, it’s not too late to right the ship and make sure copyright is a part of your business plan as new beers and marketing campaigns unfold. Here at Reiser Legal, we believe that just as you take a measured approach to growing your business, it’s worth giving time and thought to make your intellectual property assets as valuable as possible. To that end, we offer affordable IP packages that cover both your trademark and copyright needs, and we can also help you form a proactive legal branding strategy to best achieve your business goals moving forward.