Your Brand.

It is almost impossible these days to have a thriving, growing business without a strong brand. A brand may consist of a logo, a catch phrase, a particular look and feel to your products or even their packaging, or a particular look and feel to your store, etc. A brand will consist of anything that helps potential customers to identify you and your products as being unique from others.

A strong brand will result in a good and memorable experience for the buyer. It’s not just about having a good product or service, it’s about the buyer having a good experience while buying and using the product. This is achieved by delivering a consistent message at every point of contact with the customer. It also means making sure the visual (and maybe even auditory) aspects of your brand set you apart and are easily identifiable amid the sea of your competitors.

For establishing a good customer experience through your brand, I suggest you check out this article at YSF. I am going to spend the remainder of my post talking about how to create a brand that is visually unique.

When coming up with a company name or a name for your products or services, there is a sort of spectrum upon which all your options exist. And the far right hand side are names that are purely descriptive of what you are selling; at the far left side are names that have nothing to do with what you are selling, or are not even real words at all.

An example of an extremely descriptive name for a gym would be “The Gym.” A name may be descriptive because it is describing the product or service you are selling, or because it is describing the geographic location of your business. Descriptive names result in extremely weak brands. The reason they are weak is that every one of your competitors will be using the words from your name to describe their products as well. With “The Gym,” every other gym in the country will be using the work “gym” in their advertising somewhere. Therefore, because the name “The Gym” will be used everywhere, clients will have a hard time differentiating “The Gym” from every other gym. Your friend may tell you one day, “I just got back from The Gym.” And your response would be, “Oh, which one?” You see the problem?

On the extreme other end of the spectrum are names that are completely unrelated to the product or service that is being offered. Take Apple, Inc. for example. Apples have nothing to do with computers. So when someone tells you they bought an Apple computer, you know exactly what they are talking about, because no other computer company uses the work “apple” in association with their computers. One other great example: When Humble Oil was looking for a brand to use worldwide, they spend hundreds of thousands of dollars hiring linguists and other experts to come up with a word that didn’t mean anything in any language. What they came up with was Exxon. A brand name that is made up is referred to in the industry as “fanciful.” Fanciful brand names are the strongest because people won’t see them anywhere except when they are associated with your products or services. As a result, once people are aware of the name, they immediately associate it with a single source of products or services.

When finally decide on a brand that you feel is strong, the way to keep it strong is to prevent others from using brands that are similar enough that potential customers are confused as to whether your brand the the other guy’s are related. The way to do this is through trademark law. When you register your trademark, whether it is a brand name or a particular appearance in your store or of the packaging of your products, you are essentially putting the world on notice that your brand is taken. If anyone infringes upon your brand by creating something that is confusingly similar to yours, you have the right to make them stop and maybe even pay you damages. And when your brand is a registered trademark before someone infringes, they have to pay for all your costs and attorneys fees associated with your protecting your brand. The result of registering a trademark is that it is unlikely that anyone will ever infringe on your mark, and if they do, you have a really really big stick to waive at them and make them go away, i.e. the prospect of paying you damages AND attorneys fees. They know that you won’t hesitate to protect your brand because it will cost you next to nothing and will cost them an arm and a leg to fight back.

So here it is in a nutshell: 1) decide on a brand that is as unique as you can, 2) have an attorney perform a trademark search to make sure it is as unique as you thought it was, 3) register it, 4) monitor the market to make sure no one is infringing, and 5) protect it if necessary.

If you have any questions about creating and protecting a strong brand through trademark law, please feel free to contact me.

The post How To Build A Strong Brand appeared first on Juniper law.

. . . .

In the world of designers and artists, copyrights are what protect others from stealing your work. And as a designer, you generally own all the rights associated with your designs unless you are designing as an employee for someone else. This means that you can use your design to produce all the products you want for sale, from textiles to greeting cards. But what if you are just a small shop? What if your resources are limited and you can only produce a limited amount of product? What if you specialize in something like letterpress, think that people would like your design incorporated onto an iPad case or any number of other products, but you have no way of doing that yourself?

You generally have four options:

1)   Just stick with what you are good at and don’t use your design for applications other than letterpress;

2)   Pay another company to make other products with your design that you then market and sell yourself;

3)   Sell your design for a lump sum of cash to a bigger company that has broader resources and capabilities than your little shop; or

4)   License your design out to manufacturers who make and sell products around the world that you cannot.

Most designers stick with #1. And that’s fine if you are satisfied with the sales of your product and don’t want or need to expand. Slightly fewer designers will go with #2, but they often see a relatively small profit because of the cost of having the product made by someone else and the limitations of marketing and selling a new product type to a new market on their own. One exception to this, however, would be if you were branching out to other products that are still similar to your original products and thus have the same target customers. In that case, it would be easy enough to add the new product types to your line without having to add any more marketing than you already would for the products you produce in-house.

Even fewer designers succeed in achieving #3. And they are often revered by other designers who wish they could have their design featured on products sold by a major player. Not to mention the stack of cash the designer gets up front. These are the big leagues, right? Wrong.

Option #4 is where too few designers are looking, and it is where the most potential lies. For example, the letterpress printer from our hypothetical above may have a friend who makes and sells screen-printed fabrics. So what would happen if the letterpress printer allowed the screen-printer to use her design on his products in return for a portion of the profits? The letterpress printer would instantly have access to an established market built through years of work by the screen-printer without having to do any work herself. She won’t have to market, sell, make, or even pay for someone else to make the screen-printed fabrics. She could just sit back and collect a check every month.

Granted, that check likely won’t be nearly as large as the check from option #3 above (if you license to a larger company you will generally get less than 10% royalties or a one-time fee), but you get it over and over and over again. It’s not a one-time deal. And imagine what would happen if that same design were licensed not only to a screen printer, but also to someone who makes the iPad case she imagined from the start, a graphic designer, a textile manufacturer, a wrapping paper manufacturer, and any other manufacturer that she could imagine might use her design. Now she’s not getting one check a month, but many.

A Copyright is an amazing thing. You can sell the whole thing, as in option #3, and never look back, or you can literally split it into a million pieces and license those out for a portion of the profits. This allows you retain ownership while giving permission to those who have capabilities you don’t or who are established in markets it would take you years to penetrate, to sell products with your design, in return for giving you a portion of the profits.

And, yes, you are paid less money per product sold. But you also don’t have to market it, package it, ship it, or pay someone to make it, leaving you more time to design and license again and again. So, in the end, it ends up being closer to even than you would think. And if you’re letting someone use your design to make products different from those that you make, your design is now being marketed and sold to people in your new partner’s markets whom you likely never would have reached.

In the industrial age, the market was dominated by the sales of goods. But in today’s information age, real wealth is developed through the leveraging of intellectual property such as patents, copyrights, and trademarks, through licensing.

Where to Look for Licensing Opportunities

When looking for opportunities to license, conventions like Surtex^® come to mind first. If you are unaware, Surtex^® is a national convention that takes place every year in New York in May. There are literally thousands of businesses from around the world that converge on this one convention to sell and license designs. This would be a great place to get started, learn the industry best practices, learn what will be hot for the coming year, make valuable business connections, and hopefully sign a licensing deal. Attending Surtex^® would allow you to make connections with both international and local businesses.

But if you can’t make it to New York every year to exhibit at or at least attend Surtex^®, there are more ways to find licensing opportunities. One simple and very realistic strategy would be to first think of where you would like to see your design implemented – on what sort of products. Take our letterpress printer we used as an example above, she wanted to incorporate her designs on iPad cases. Second, do some research to find successful small local companies that produce those products.

You can search Etsy^®, national design blogs like Design*Sponge^®, or even your local craft or other industry fairs. Then reach out. It can be intimidating to make a cold call on a company about licensing, but any ambitious business owner would love to find ways of adding to or improving their current product offerings. And when two small businesses work together to form a partnership, they are on a more even playing field than if you were to try to license with a large corporation. And as a result, the splitting of profits will often be more equitable, maybe even 50/50 after all costs are covered.

For example, what if these wonderful fabric designs by Amy Butler could be etched into these Grove products made with beautiful wood and leather? Grove would benefit from great designs to offer its current customers and Amy Butler could tap a market she hasn’t yet touched.

Licensing Pitfalls:

Because the range of licensing possibilities are limited only by your imagination, very few licensing agreements will ever be identical. For this reason, you have to always be on your guard to make sure nothing is slipped into a licensing agreement that could do you harm. This topic is large enough to do several posts on, but I will attempt to highlight a few red flags to look out for: 1) Exclusive licenses, or licenses that give away more rights than they need to accomplish what they told you they want to use your design for. Never take someone’s word that they will only use your design in certain ways if the agreement gives them the ability to use it otherwise. 2) Promises not put in writing. Never accept a verbal promise, always insist that it be put in writing, and that the writing is non-ambiguous. It doesn’t matter what you think it means, it only matters what it could mean. Make the writing super super clear. 3) Infringing licenses. You can license the same design to many different people for use in many different ways. But make sure that when you enter into a license agreement with a company that makes wrapping paper that the license does not conflict with an earlier exclusive license you gave to a paper goods producer who primarily makes cards, but who may also be allowed to make wrapping paper according the license granted in your agreement with him.

I hope this post has been informative and has at least made you think more seriously about all the possibilities of licensing. Licensing can be very complex and intimidating, but there is no better way to learn than by jumping in and giving it a try.

But, as always, please seek advice and aid from a licensed attorney who can help you develop a licensing strategy tailored to your particular circumstances. This will not only help you develop a plan, but it will help ensure that you don’t have to learn the hard way how to protect your copyright and get your fair share from anyone using your designs.

DISCLAIMER

Please remember that the rules I laid out above are very general in nature and are intended only to give you a basic background on these issues. This is not actual legal advice for your situation. If you would like advice that fits your situation, please contact your local friendly attorney. You can find me at www.juniperlawfirm.com

The post The Untapped Gold Mine – Licensing Copyrights appeared first on Juniper law.

. . . .

One of the great benefits of being successful as a designer (or any kind of artist really) is that others will pay you (hopefully) good money to design for them. You may be hired on as a full-time employee or as an independent contractor on a job-to-job basis.

At first you may be excited and flattered that others appreciate your work so much. But after sending that design into the person or company that hired you, and spotting it being used in places and in ways you didn’t expect, you may begin to think you weren’t paid enough or that you didn’t insist on enough controls to your design’s use. But what can you do about it? You sold the design. They own it now and they can do whatever they want with it. Lesson learned. Try to do better next time. Right?

Well, not necessarily. Just because you sell your services as a designer, doesn’t necessarily mean you have sold your actual design. Lets consider the two situations I mentioned above as applied to a friendly letterpress printer:

1) Designing as an employee:

According to the copyright act, “In the case of [an employee preparing a work within the scope of his or her employment], the employer or other person for whom the work was prepared [owns the copyright].” This is called “works made for hire.” The only exception to this is if the employer and the employee have a signed agreement to the contrary.

Translation: If a letterpress printer is hired by a company as an employee, to design and print custom letterpress wedding invitations for the company’s clients, that designer/printer does not own the designs. The company, as the designer/printer’s employer, owns the designs. This is always the case, unless the company has a written agreement with the employee saying otherwise.

2) Designing as an independent contractor:

First of all, I must warn you that the determination of whether someone is an employee or an independent contractor is often very convoluted. And even when everyone intended an independent contractor relationship, it can still end up that the so-called “independent contractor” will be deemed an employee by the courts. This is what I like to call the “accidental employee.” But assuming it has been determined that you are an independent contractor, who owns your commissioned work?

Well, the general rule is that independent contractors own the rights to their work, even though they are creating it for someone else. This is why it is so very important to distinguish between employees (who don’t own their work) and independent contractors (who do own their work).

Take our letterpress printer as an example again. But instead of working as an employee of another company, the printer decides to go out on her own. And she markets her company as being able to design and print custom letterpress wedding invitations. In this case, when a client hires the printer to design and print invitations, the printer is not acting as an employee of the client, so she owns the designs she created and can prevent others from copying them or using them without her permission. She sold the physical invitations she printed the design on –and the client can do whatever she wants with them – but neither the client nor anyone else can print more invitations or otherwise use the same design.

As I mentioned, distinguishing between an employee and an independent contractor can be difficult. But here are a few of the key factors that go into the analysis:

• Independent contractors generally have more freedom about when, where, and how their work is done, whereas employees are held on a tighter leash.
• An employee’s relationship is generally indefinite, whereas an independent contractor is usually hired for a specific amount of time or for a specific project.
• Payment on an hourly, weekly, or other regular basis can indicate an employee relationship, whereas independent contractors are usually paid on a job-to-job basis, even if the ultimate bill is based on hours worked.
• Employees are usually supplied with the tools and material for completing a project, whereas independent contractors are usually responsible for working all that out on their own.
• Employees are generally required to only work for their employer, or at the very least to not work for competitors, whereas independent contractors can work for anyone.
• Employees are often required to work on the employer’s premises, whereas independent contractors may work wherever they want.

No one of these factors is enough. And there are many more factors that go into the analysis, some of which may or may not be satisfied whether it is an employee or an independent contractor. But these are some common factors that assist in making the distinction between employees and independent contractors.

Bottom line: employees don’t own their work, everyone else does. But (and this is important) there are many exceptions to both these general rules. Too many to go into here. So with all the exceptions and with the difficulty at times to distinguish between an employee and an independent contractor, here is what I recommend: if you are ever in doubt, find a friendly attorney who can give you some advice.

DISCLAIMER

Please, please, please remember that the rules I laid out above are very general in nature and are intended only to give you a basic background on these issues. This is not actual legal advice for your situation. If you would like advice that fits your situation, please contact your local friendly attorney. You can find me at www.juniperlawfirm.com

The post Designing For Hire: Who Owns Your Designs? appeared first on Juniper law.

. . . .

We all enter into contracts almost every day, whether we realize it or not. Every time you sign a receipt at the store you are entering into a contract. But what some don’t realize is that you don’t have to sign something for there to be a contract. You are forming a contract when you click “I agree” on your favorite website, or even when accessing some sites without doing anything more. When was the last time you actually read the “terms and conditions” of a website? Well if you do, you will often see language such as “By accessing this website, User agrees . . .” And there it is: your accessing the website IS your signature. (Here are the Google “Terms of Service.” Check out the second paragraph – the one-liner)

Now that I have illustrated the importance of understanding contracts for everyone, lets get to the topic of today’s post: breaking contracts.

If you thought it was against the law to break (or “breach”) a contract, you are generally wrong. A contract is law, but it is law only between you and the other party to the contract. In fact, contracts are so revered in our legal system that a lot of actual laws are allowed to be altered or altogether discarded as between two people so long as they have a contract saying as much.

So what happens then if you want to get out of a contract? Well, contract law specifically allows anyone to get out of a contract whenever they want, with very few exceptions. The only catch: you have to be willing to pay the price.

Generally there are three basic ways to breach a contract:

 1) Failing to satisfy an express condition

This usually means that you were required to do something before the other party will become obligated to do something for you. It could also mean that some event out of your control had to happen before the contract became effective.

Usually, if an express condition is not met, it just means the contract is off. And that’s that. But, if you intentionally do something to prevent the condition from happening so that the contract would be cancelled, you could be responsible for damages (which I will address below).

Example: A letterpress shop owner enters a contract with a band who promises that if they get signed, the letterpress shop has exclusive rights to print all their posters and will do it at a discount. If the band gets signed, there is a contract. If not, there’s no contract and no one’s obligated to do anything. But if the letterpress shop owner somehow prevents the band from being signed, they have breached the contract.

2) Material breach

A part of a contract which is viewed as essential by one or both of the parties, and upon which they relied when agreeing to the contract, is called a “material term.” And if you fail to live up to a material term in a contract, you may be responsible for damages.

Example: The letterpress shop and band have the same contract as above. The band is signed, but the letterpress shop fails to print the posters at a discount. This is a material breach because the band never would have entered into the contract if it weren’t for the promise of a discount.

 3) Anticipatory repudiation

If you do or say something which lets the other party know that you are not planning on living up to your end of the bargain, you may be responsible for damages.

Example: The band is signed, but before they order any posters the letterpress shop lets them know that they don’t intend to follow through on the deal. They haven’t actually failed to do anything yet, but they have made their intention known that they will fail to live up to the contract.

Ok, so now that we know the basic ways a contract can be breached, and that a common result is the need to pay damages, what are the damages?

 1) Expectation damages

These types of damages require that you put the other party in the position they would have been if the contract were performed. Usually it is a matter of paying money.

Example: If letterpress shop didn’t give the discount, they may have to return the money that represents the discount they promised.

2) Specific Performance

Specific performance would require you to live up to your end of the bargain, even if you don’t want to. This is usually used only in situations like when you are selling something that the other party can’t find elsewhere. It is almost never used when the contract called for you to perform some sort of service. Otherwise this would be like enslaving you.

Example: This would likely never happen with the letterpress shop since they are offering services. But if the shop was selling an antique letterpress that can’t be found elsewhere, and backs out of the deal after having signed a contract, they may be forced to sell.

3) Agreed remedies

It is very common for a contract to include a term spelling out what will happen when someone breaches the contract. Sometimes it is very vague, but often it is a specific amount of money that has to be paid. When there is an agreed upon remedy, the courts will often enforce it if it is reasonable.

Example: It is written in the contract that if the letterpress shop is late in delivering the posters for the band, they have to pay a fee for every day they are late.

Moral Of The Story:

Contracts are everywhere. People and companies use them to protect themselves and to make sure that they get what they are expecting in return for giving something themselves. But it is rarely against the law to break a contract. In fact, contracts are designed to be able to be broken. Often they include an agreed upon remedy right in the contract. But when they don’t, the law usually has a predictable method for determining what the remedy will be.

So if you are ever in a contract and want out, rest assured there is a way. It may be expensive, but you will almost never be forced to stay in a contract against your will.

If there is not an agreed upon remedy in your contract, or if you would like to find out if you have any other options for getting out, speak with a licensed attorney who can help you explore all your options.

P.S. Never get involved with influencing or helping a friend get out of their contract. You may become liable in addition to your friend for damages to the other party.

Here’s another useful article on breaching contracts.

DISCLAIMER

Please, please, please remember that the rules I laid out above are very general in nature and are intended only to give you a basic background on these issues. This is not actual legal advice for your situation. If you would like advice that fits your situation, please contact your local friendly attorney. You can find me at www.juniperlawfirm.com

The post Contracts Are Meant to Be Broken appeared first on Juniper law.

Check out my guest post today on Sycamore Street Press’s blog: Top 5 Legal Concerns For Small Creative Businesses!

The post Top 5 Legal Concerns For Small Creative Businesses appeared first on Juniper law.

If you are building the sort of business that you are passionate about, the sort of business that you would be involved with even if money were no object, if you are doing what you love in such a way that will teach your children and those around you to not be afraid to chase their dreams, then Juniper Law wants to work with you. Because that is what Juniper Law is to me. I have thought before about what I would do if I won the lottery or came into an inheritance that meant I didn’t have to work for the rest of my life if I didn’t want to, and I decided that, even then, I would build this firm to serve small businesses and help others realize their dreams. I decided that before I started the firm, and I wouldn’t have started it if I hadn’t come to that conclusion.

Ask yourself: “What do I desire?” And if you already are, or want to soon be chasing your dream, let Juniper Law help you get there.

Request your free creative-business strategy session, and let Juniper Law help you build the business of your dreams.

The post What Would You Do With Your Life If Money Were No Object? appeared first on Juniper law.

Just this past month I read a story about the FTC brining a suit against Amazon.com, Leon Max, Macy’s, and Sears for misleading environmental claims. In this case, these stores were claiming that certain products were made of bamboo, and thus implying an environmentally friendly product. But the fact was that they were making products out of rayon, which was made out of bamboo. But just because bamboo was used to make the rayon, doesn’t change the fact that rayon is made through a very environmentally unfriendly process.

So, in case you were wondering, yes, the FTC has issued guidelines on how to make green claims without misleading the public and opening yourself up to a lawsuit. Most of the guidelines are very common sense, but unfortunately we live in a world where if there isn’t a rule saying you can’s do it, people will, no matter how unethical.

A more full account of the guidelines can be found here, and the complete guidelines can be found here. But I am going to just list a few takeaway points below from my reading the guidelines earlier today:

• It is best not to leave your claim at simply stating that your product is “green” or
  “eco-friendly.” Give the specifics.
• But don’t make a claim such as “Green; made with recycled content” if the environmental costs of using the recycled content is more than using new content. This isn’t green, even though it is recycled, and its deceptive.
• Don’t claim the product is “free of” a substance, if there is another substance in the product that has the same negative effects.
• Don’t claim a product is “free of” something if that substance has never been associated with that product category.
• Recyclability claims should be qualified to let consumers know of the availability of recycling facilities that can handle the type of materials in your product. If there are only a few specialized plants in the country that can handle your material, don’t tell someone living nowhere near one of those plants that the product is recyclable.
• When claiming a product is made of recycled material, specify how much is actually recycled if the whole thing is not made from recycled material.

While several of the claims that are discouraged in the above list may technically be true, they may nonetheless be deceiving. For example, claiming your product is “free of” some harmful substance or environmentally damaging substance may induce a consumer to buy your product over a competitors because they view you as the more responsible producer and they want to support you and the cause. But if that thing that your product is “free of” has never been associated with your type of product, then it’s like telling someone that your popsicle is better because it doesn’t contain any rubber. No popsicles contain rubber, but your putting that on the box implies that everyone else’s popsicles contain rubber, and that yours is better for the consumer because there is no rubber in it. That is, of course, a crude example, but it makes the point. The FTC isn’t only keeping companies from lying. They are keeping companies from deceiving, even if they use the truth to do it.

Hope this helps! And as always, please feel free to contact Juniper Law if you have any questions on this or other legal topics.

The post Pitfalls in Marketing “Green” Products appeared first on Juniper law.

Part of the Federal Trade Commission’s job is to protect consumers. And part of that role means ensuring that consumers are not unfairly manipulated by companies trying to push their products. On their website, the FTC links to the Code of Federal Regulations which govern the use of endorsements in advertising. But most people don’t want to read pages of law, so the FTC boiled it down to three main points:

1. Endorsements must reflect the truthful experience of the endorser;
2. You can’t make claims that require proof you don’t have; and
3. Clearly disclose any material connection between the endorser and the advertiser.

Watch the video below for a little more explanation:

[youtube=http://youtu.be/D6SQOy1ukDQ]

The post Tips For Giving Endorsements Online appeared first on Juniper law.

1:

By granting Instagram a “non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use” your “content”, you are basically giving them the right to use your information whenever, wherever, and however they want, without getting your permission. And not only that, but because it is “sub-licensable,” they can SELL or give these same rights to third-parties without needing your permission. So what is the “Content” that they refer to and are able to use? The list includes any:

• data
• text
• files
• information
• usernames
• images
• graphics
• photos
• profiles
• audio and video clips
• sounds
• musical works
• works of authorship (which is a copyright term meaning anything that is copyrightable)
• applications
• links
• other content and materials

So basically anything you do or post or share, including your profile information, is included as “Content” under the license.

2:

This portion of the Terms of Service gives Instagram permission to sell the ability to third-parties to “display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with [advertisements] without paying you anything. So Instagram owns the ability to take your information and pictures and sell them to advertisers to use with their advertisements. And Instagram gets paid for it, and you don’t. So if you have a large following on Instagram that fits the profile that a company wants to advertise to, that company can post advertisements using your username, pictures, or any other information listed above. And here’s the kicker: Instagram states that it “may not always identify [those advertisements] as such.” !!!!! So you’re followers may get advertisements with your username and picture(s) and other information and not even know that it is an advertisement. It may look like you sent it, or are at the very least affiliated with, if not endorsing, whatever is being advertised.

There are a few other things I noticed that were noteworthy to me, as an attorney, but which may not be of special interest to everyone else. So I will spare you the monotony.

If you want to do something about the Terms of Service, too bad. Simply by accessing Instagram in any way, you are essentially signing a contract agreeing to them. The only way to get out of it is to delete your account and never go back until the terms change.

If you are a business owner and regularly post pictures of your products, Instagram can use those images and any related information without compensating you. It may be a good thing: free advertising and increased visibility. Or not: pictures of your products or use of your business username associated with an advertisement that you do not want to be associated with.

I understand that Instagram is a business. I understand that they have to make money somehow. And I am not advocating that everyone delete their accounts. But I think, at the very least, everyone should be very aware of what they are agreeing to when they use the service. Intellectual property is the source of a large portion, if not most, of the wealth in this country today. And to just hand Instagram unlimited use of your pictures and any other information you knowingly or unknowingly share with them, is asking a lot.

By the way, the new policies don’t go into effect until January 16, 2013.

The post What You Need to Know About Instagram’s New Policies appeared first on Juniper law.

The reasoning behind this, from the government’s point of view, is that this gives people incentive to register their works, which then makes any court action a lot simpler once someone has a registered copyright. To me it seems like a contradiction. On the one hand the law says you have the rights automatically, even without registration. But on the other hand the law says you can’t enforce those rights until you register. It seems to me that the rights are hollow if you can’t enforce them. And if you can’t enforce them, are they even rights at all? Well, the only thing that saves the seeming contradiction is that the automatic “rights” that vest upon fixation allow you to register your work even after someone copies it. If you didn’t have any rights before registration, then someone could copy your work, and if they registered it first, they would have the rights.

So it might be more accurate for people to think of it this way: Upon fixation, you automatically have an exclusive claim on “potential rights.” You don’t have the rights yet, but you can get them if you register the work, and you can prevent others from obtaining rights in your work or a copy of your work.

Okay, so now that we understand that you can register your work after someone copies it, and you can then enforce your rights, is there any reason to register your work before someone copies it?

YES! Here is a comparison of the remedies available to a copyright owner if the copyright is infringed:

With a copyright registered AFTER the infringement:

• Injunction preventing infringer from further infringement.
• Money damages equal to the actual amount of loss the copyright owner sustained.
• Money damages equal to the profits the infringer made through the infringement.

With a copyright registered BEFORE the infringement

• Injunction preventing infringer from further infringement.
• Attorney fees
• Any costs associated with enforcing your copyright

AND, at the copyright owner’s choice, EITHER

• Money damages equal to the actual amount of loss the copyright owner sustained.
• Money damages equal to the profits the infringer made through the infringement.

OR,

• Automatic damages with a minimum of $750, and a maximum of $30,000 if the infringement was not willful, or a maximum of $150,000 if the infringement was willful.

Proving actual damages and the infringers actual profits can be very tricky at times. And often, the automatic damages (what are called “statutory damages”) are bigger than the actual damages and profits you could recover.

But the really big incentive to register your copyright before infringement is the ability to recover attorney fees and costs. These alone could cost tens if not hundreds of thousands of dollars if you take the case to court. And you have to pay for it out of your pocket if you register after the infringement. But, if you register before an infringement, you get it all for free if you win the case, because the infringer is forced to pay. But most often, just the threat of having to pay costs and attorney fees will cause the infringer to stop infringing and write you a check without ever having to go to court.

And it only costs $35 to register a copyright, guys. After learning all the benefits and knowing it only costs $35, why wouldn’t you register your copyright? Unless you don’t think your works are good enough to be copied. But if you’re selling a good amount of any work, then it’s good enough to copy because lots of people would like to have something they could sell themselves.

True, you may need to hire an attorney to register the first couple copyrights and to train you how to do it in the process. But once you learn how, you can usually do it yourself or have an employee do it. And did I mention that it only costs $35?

Now go register your copyrights for all your works you think are worth protecting!

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