The Barefoot Photographer®

a photography blog

Monday, May 11, 2009

Protecting Intellectual Property

Lately I have been reviewing which blog posts are getting the most action.  There are a few subjects that get regular hits long after the post is fresh.  In the next couple weeks I will revisit these topics to get a little deeper into them.

Last summer I wrote a blog about intellectual property and protecting my trademark.  That is one of the most popular blog posts.  It still gets regular hits.  I have had photographers email me about it and one leave a comment.  Many are grateful to have the info -- both those already with a business and those just starting out.  The blog was also highlighted on a legal website to highlight the importance of protecting your trademark or copyrighted material.  I have always felt if you go to the expense and trouble to trademark your business name, website name, and work hard to build a brand -- you have to protect it.  

Intellectual Property can be material copyrighted, a trademark, or a patent.  Since I am not an inventer -- I am skipping the patent info.  You can look it up here if you are interested.  As photographers we have to be careful and protect our copyrighted material.  If you enter contests, read the fine print.  Some entry forms have you sign away the rights to a photo you may submit to them.  Recently there was a flap about a photo gallery on Oprah's website.  There is a great blog about this here; check for the post on April 21, 2009.   This blog is filled with excellent information about the legal side of photography; spend some time with it -- bookmark it by all means.

So what is the difference in trademark and copyright?  A trademark is a brand, a specific mark, name, or symbol identifying a person or product.  Copyright is the legal protection given to published works, forbidding anyone but the author from publishing or selling them.  As photographers, we have our work, our photos, that are protected by copyright.  No one should use the photo without the permission of the photographer.   Some of us have taken steps to register our work for copyright protection.  Others place a watermark on their photos with the symbol for copyright, © to show it is protected.  Even if you do neither -- you are still the owner of the rights to the work.  For way more info than you ever wanted on copyright protection check out the Digital Millennium Copyright Act.

When I was browsing around some art/creativity type blogs yesterday I found one by a California potter (she has a beautiful blog and pottery) that was about how someone was using her marketing and design ideas to sell the same thing on Etsy.  I like Etsy.  It seems copying is becoming a big issue with Etsy shops, and the whole online craft community.  How sad is that? You have crafters and artists copying others and selling on the same place. Etsy and other sites needs to see about nipping this in the bud.  They would not like the reputation as a place where intellectual property is not respected.  There are always going to be those who copy rather than be creative.  Taking someone else's idea, design, photo, etc. is stealing.

Back to trademarks -- establishing a name; your brand.  You can use the "TM" on your name to show it is your trademark.  TM does not indicate a registered trademark.  To show that your mark is registered with the U.S. Government you need to use the ® symbol.  When I applied for my trademark I did it for two classes.  One class is for prints -- actual photographic prints.  The other class is a service and it includes all photography services.  My focus at this point in time is workshops, lectures, restoration, and writing about improving your photography.  That is not saying in the future I would not take a commission to photograph a wedding or other event.  I have been asked to do this and I would have taken the last wedding had I been free that Saturday evening.  Many people hear about me and want me to do portrait work for them.  I am really considering getting into portrait work.  I like working with people -- it is a natural step.

When I find someone is using my trademark, or a name very similar to it, I will contact them via email.  I will let them know that I own the rights to the name and it is registered with the U.S. Patent and Trademark Office.  I will gladly supply them with a link to the registration or send them, via snail mail, a hard copy.   Anyone starting a photography business (or any business for that matter) can easily Google to see if their name choice is a registered (or nonregistered, but in use) trademark.  It is very easy to do a search with the U.S. Patent and Trademark Office to see if something is registered or in process.  Before you spend your marketing budget on a name that may belong to someone else, do your homework.  Just because your business name may be available in your state, that does not mean it is not being used nationally as a trademark.

Many of us in art, craft, and photography are small businesses.  Even though we are small businesses -- we need to stick up for ourselves.   You would not see someone starting a new photography business called "My Lifetouch 2."  And if they did -- Lifetouch would be all over it.  So many people seem to think you can slightly alter a trademarked name by adding  "my, our, 2" or by putting an "s" on the end of the name and it is different enough.  It is not.  There is a name out there now -- very similar to mine -- confusingly similar.  I met a photographer from that area two weeks ago and she mentioned to me that she had heard the name in her area and thought it was me.  That is troubling.

If money is an issue -- and we know that protecting intellectual property can be costly -- go after the offender/infringer to reimburse you for your legal expenses incurred while protecting your mark or copyrighted material.  If someone has been contacted and yet they continue to ignore the request or claim that they are in the right using the property, move ahead with your legal rights and have your attorney notify the party that they will be held responsible for reimbursement.

One last thing; I think about photography businesses using the same or similar names -- do you really want your work linked with that of someone else?  There are some who have used my name or similar name and frankly -- I don't want anyone to see the work and think it is mine.  

Oh and an update on that post from last summer...the infringer I was writing about changed the name in question after I contacted her web host.  The web host was very helpful and very respectful of trademark rights.  And I must say -- she has a great looking site and does some awesome photography.  Most webhosts are helpful in this situation.  They don't want the exposure of hosting a site that infringes on  someone's intellectual property.  You can find steps to take with the hosts if you check out their Terms of Service sections on their websites.  


No comments:

Blog Top Sites

Arts Blogs