What is Copyright?
A copyright is a collection of rights that automatically vests in someone who creates an original work of authorship (independently created with at least a minimal degree of creativity) and fixes it in a tangible medium of expression (work can be perceived, reproduced or communicated for more than a short period of time).
Examples of copyrighted works include literary works, musical works, motion pictures and audiovisual works, sound recordings, dramatic works, pictorial works, and more.
The claimants in these works possess certain exclusive rights to reproduce the work, to prepare derivative works, to distribute copies of the works, to perform the works publicly (by means of a digital audio transmission if it’s a sound recording), and to display the work publicly (e.g., literary, musical, dramatic, or choreographic work; a pantomime; pictorial, graphic, or sculptural work; images of a motion picture/audiovisual work).
The U.S. Copyright Office does not give you a copyright. Rather, copyright exists automatically in an original work of authorship once it is fixed in a tangible medium, as explained above. However, copyright owners can and should take steps to enhance the protections of their copyrighted works. This includes the relatively simple and inexpensive process of registering your works with the U.S. Copyright Office!
Although copyright registration is not mandatory, there are several important reasons to register your works, including:
(1) it establishes prima facie evidence of the validity of the copyright and facts stated in the certificate (when created, who authored, who owns, etc.) when made before or within 5 years of the work first being published;
(2) if you register before any infringement or within 3 months after the work is first published, you are eligible for certain damages (e.g., statutory damages, attorneys’ fees and costs);
(3) once the work is registered, you are permitted to record it with the U.S. Customs and Border Protection to help fight the importation of infringing goods; and
(4) the work MUST be registered (or registration refused by the Copyright Office), before you can file an infringement suit!
The Copyright Office has a number of FAQs and informational materials that will help you determine the appropriate application and what to submit. You also have the opportunity to preview the application before you file. However, if you have a complex situation, you may want to seek assistance from an Intellectual Property attorney, who can help guide the process and ensure you are properly protecting your works.
For more information, go to https://www.copyright.gov
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Michelle is a Partner at Swanson, Martin & Bell, LLP and is licensed in Illinois and Indiana state and federal courts. With a Masters of Law in Intellectual Property, Michelle is the Vice Chair of the firm’s Entertainment and Media Practice Group and a member of the firm’s Intellectual Property Litigation and Transactional Services Practice Group. Her copyright and trademark practice focuses on intellectual property prosecution and related transactions, including performing trademark availability searches and providing advisory opinions, as well as preparing and filing trademark applications with the United States Patent and Trademark Office, and copyright registrations with the United States Copyright Office. Michelle also assists with the oversight of the firm’s extensive trademark docket and conducts required monitoring and maintenance of clients’ trademark portfolios, as well as provides clients with corporate counseling and innovative corporate solutions to address their respective needs.
Michelle further provides comprehensive representation in the drafting, negotiating and executing of various entertainment-related contracts and licenses, including but not limited to band member agreements, artist management agreements, session player agreements, performance agreements, sound engineer agreements, recording and personal services agreements, publishing agreements and licensing agreements. As a former artist manager, she has implemented many facets of national and regional tours, assembled benefit and charity concerts, communicated with various industry personnel, facilitated radio and internet publicity campaigns, arranged radio, print and internet interviews, and assisted in the development of press kits and websites promoting local talent. Michelle has also guest lectured on entertainment and intellectual property-related topics at The John Marshall Law School, DePaul University College of Law, Chicago-Kent College of Law and Azusa Pacific University (CA), as well as served as a panelist on various other entertainment-related continuing legal education courses. Michelle is an author and editor of the Litigation and Industry Updates Column of the ABA’s Entertainment & Sports Lawyers Journal and has also had numerous articles published by the Chicago Music Guide.
In addition, Michelle serves as Chair of Swanson Martin & Bell, LLP’s Community Service/Pro Bono Committee and proudly volunteers her time as President of the Associate Board and as a pro bono attorney to Lawyers for the Creative Arts, a non-profit organization that provides free legal services to eligible clients in all areas of the arts. She also currently serves as Events Chair for the Chicago Chapter of Women in Music, a non-for-profit organization dedicated to fostering equality in the music industry through the support and advancement of women. She recently served as Chair of the Young Lawyers Division for the Illinois Association of Defense Trial Counsel, where she was recognized as the Rising Star recipient and received a Meritorious Service Award and President’s Commendation.