Copyrights– A Powerful Tool for Protecting Merchandising Properties

Gregory J. BattersbyArticles

While many property owners look to the trademark laws to protect their merchandising properties, they should also consider protection under the Copyright laws of their home country. Copyright protection covers any original works of authorship and typically includes the following:

  • Literary works;
  • Musical works, including any accompanying words;
  • Dramatic works, including any accompanying music, pantomimes and choreographic works;
  • Pictorial, graphic, and sculptural works;
  • Motion pictures and other audiovisual works; and
  • Sound recordings.

While trademark rights extend for so long as the property owner continues to use the trademark, copyright protection extends for a finite period of time depending upon the type of work, when it was created and whether it was published or not. In most instances, the term is for the life of the author plus 70 years. For works of corporate authorship, the term is typically 95 years from publication or 120 years from creation, whichever first occurs. Upon expiration of a copyright, the rights enter the public domain and may be used by others.

While that may sound like a long time, the copyright terms for some of the “classic” properties are now expiring. The earliest version of Mickey Mouse, a 1928 landmark animated short, Steamboat Willie, will be entering the public domain when the film’s copyright expires next year. Legally, that means anyone could copy and reproduce the 1928 version of Mickey Mouse.

The original story of Winnie the Pooh, written by A.A. Milne, entered the public domain last year and Peter Rabbit went into the public domain in 2014. In the next decade, early versions of such characters as Superman, Batman, Donald Duck, The Hobbit and James Bond will also enter the public domain.

Fear not, property owners. Most owners of those character rights have turned to the trademark laws to protect their interests which will last for so long as they are used or licensed.

Copyright rights arise upon the creation of the original work. It is no longer necessary to apply a copyright notice or even register it with the Copyright Office, although both are good practices as it gives notice to potential infringers and offers certain procedural and substantive advantages in litigation, including the ability to seek statutory damages and attorneys’ fees from an infringer.

The three elements of the copyright notice are:

  • The symbol or the word “Copyright,” or the abbreviation “Copr.”;
  • The year of first publication of the work; and
  • The name of the owner of the copyright (e.g., a complete copyright notice might be: Kent Communications 2023.

Registering a copyright with the U.S. Copyright Office is relatively simple and inexpensive. In the United States, the process requires only the submission of an application for copyright registration (obtainable at www.copyright.gov); deposit of the work for which copyright protection is claimed; and the payment of the statutory fee of $45 for the electronic filing for a single author or $65 for a standard application filed electronically. The filing fee for a paper application is $125.

A copyright registration affords the property owner the exclusive right to: (1) reproduce the copyrighted work in copies or phonorecords; (2) prepare derivative works based on the copyrighted work; (3) distribute copies or phonorecords of the copyrighted work through sale or other transfer of ownership, or by rental, lease, or lending; (4) publicly perform or display the copyrighted work, including the individual images of a motion picture or other audiovisual work; and (5) publicly perform the copyrighted work by means of digital audio transmission sound recordings.

Unlike trademarks or patents, under the Berne Convention and the International Copyright Conventions, a copyright in one country is typically honored in most other countries.

In order to prove infringement, a copyright holder must establish ownership of a valid copyright and that the alleged infringer had actually copied the copyrighted work. Since proof of actual copying may be difficult, if not impossible, to prove, infringement can typically be demonstrated by showing that the infringer had “access” to the copyrighted work and that the two works are “substantially similar.”