Nolo’s Patent, Copyright, and Trademark Blog

Dear Rich: I have a question. I am an illustrator. Is it true that the government is setting up a database of visual arts works? And is it true that any works that you don’t place on this register will become “orphan works” that anybody can use without your permission? I’m so glad you asked. The answers to your questions are “maybe,” and “not exactly.” An orphan work is one that is owned by a hard-to-find copyright owner. For example, in 1975, a child sends a drawing to Elvis Presley. In 2008, a biographer wants to include the drawing in a Presley biography. The problem is that the artist can’t be found and the publisher doesn’t want to reproduce the image without permission. Two bills have been proposed in Congress that address this issue. The proposed bills would allow the publisher — after performing a diligent search –- to reproduce the image. If the artist later appears, the publisher would have to pay a reasonable fee for the use. An unlikely crew of special interests favor the House version of the bill, including librarians, free-speech types, copylefties, academics, writers, photographers, and big industry groups like the RIAA (and, of course, Google). Under the House bill, anyone who wants to use a work must (1) document their “good faith” search for the owner, (2) file a “Notice of Use” with the Copyright Office before using the work, (3) provide attribution if they know the name of the creator, and (4) include a special “orphan works” symbol when the work is published.   

 Illustrators and artists are concerned about the bill because it would establish a registry of visual arts works. They’re worried that if a piece of artwork doesn’t show up on a registry search, all rights to that artwork may be lost. First, keep in mind that orphan or not, copyright is always preserved in the work. Second, there’s nothing in the law that says that a failure to appear in the registry automatically creates an orphan. For example, even if the drawing of Suda (above) did not appear in a registry, I would still have a hard time claiming it was an orphan … since the artist and his work are easy to locate on the web (Steve, please don’t sue).

Dear Rich: I have a question. I’ve tried filing a provisional patent application electronically at the patent office but the USPTO refuses to validate my application cover sheet (a PDF form). It’s driving me nuts because I can’t figure out the problem. I’m so glad you asked. Chances are you’re using the wrong version of Adobe Acrobat. Although many people are using Acrobat 8.0 (and higher), the USPTO EFS system currently only accepts forms prepared with Acrobat 7.0.8 which you can obtain using the links on this USPTO page. (You can get all the EFS requirements here.) And of course, if you’re interested in the other kind of acrobat…

Dear Rich: I have a question. Last week, you talked about trademark logos. How do you search the USPTO database to find conflicting design logos? I’m so glad you asked. You can search design logos as follows:

1. go to the USPTO website
2. under Trademarks (on the left), click “Search TM Database”
3. then click “Free Form Search (Advanced)”
4. enter a word or words in the search box that signify what you’re looking for followed by [DE] (which stands for “design element”).

So, for example, if you were looking for design logos that included a meerkat (no not this meerkat) you would type: meerkat[DE]. Cute, huh?

For more on trademarks, check out Attorney Stephen Elias’ book Trademark: Legal Care for Your Business & Product Name (Nolo), now in its 8th edition.

Dear Rich: I have a question. How long does it take to get a certificate of registration after using the Copyright Office’s new electronic filing system? I’m so glad you asked, because on December 31, 2007, I received a certificate of registration for a work that I filed on September 27, 2007. So the turnaround is approximately three months. And don’t expect the traditional double-sided certificate with the red seal and examiner’s initials. The Copyright Office is unveiling some new formats for the certificate including a just-the-facts form and a more detailed, Web 2.0-style form. You can read the whole story on the new forms at the Copyright Office.

Grand total spent on electronic filing: 15 minutes to file; 90 days for receipt of certificate of registration.

To learn more about the process of protecting your works from copycats, pick up a copy of The Copyright Handbook: What Every Writer Needs to Know, by Attorney Stephen Fishman (Nolo).