After a long and relaxing summer away from the oven, Jaime and I are back to our old tricks — helping you and your biz grow leaps, bounds and danishes!

Our fourth BAKERY’s Half-Dozen: 6 Weeks to A Tastier Business course is now open for new students — register here! The class will begin on September 27, 2010, but be sure to register soon because space is limited and there are only a few weeks to register.

The Half-Dozen course is an introductory course for small business owners, artists, and designers who would like to learn more about the fundamentals of running a successful business in the age of the Internet. Over the span of six (pretty intense but fun) weeks, you’ll gain an understanding of the following key business components: business plans, marketing plans, media kits, press kits, public relations, networking (both social and offline) and advertising.

This course is great for:

• New/startup businesses
• Young businesses
• Procrastinators (ha! you know who you are — this is your kick in the pants to get moving!)
• Offline/brick and mortar businesses looking to expand or market online
• One-person businesses
• Artisans, designers, and crafters
• New bloggers

You can learn more about the course schedule and read the FAQs on the Half-Dozen website. We can’t wait to e-see you there!

As before, Scott reminds us that these responses should only be read as general legal comments about copyright and trademark law and are not a replacement for attorney advice from an attorney that you hire, retain and that is familiar with all of the facts and circumstances of your situation.

In providing these answers in a general form and without knowledge of all the specifics related to each situation, the provision of these general answers do not create any form of attorney/client relationship as between you and Scott or Cozen O’Connor (the firm Scott is at). Scott does however apologize for wanting us to underline the word “not” twice.

1. This hails from the other side of the copyright fence. I’m interested in altering some vintage radios with my designs. Is there a point at which a vintage design becomes “public domain?” Or is the copyright held indefinitely by the owner? Where would one find this information? Can I copyright a design I make based from a vintage design?

One of my favorite things about the nature of the intellectual property law practice is that I get to work with such creative and interesting people.  Here, the first consideration that comes to mind is whether the design of the vintage radios is even protected by copyright. Typically, copyright law does not protect useful objects unless there is some creative aspect of the objects that can be separated from its functionality. So, the design of a vintage radio will only be copyrightable to the extent that the design constitutes a form of artistic expression that can be separated from its function.

If there is copyright protection for the design of a vintage radio, that copyright protection is limited in time (like all copyrights). Once the copyright expires, the works become available for anyone to use and part of the public domain. The duration of a copyright is impacted by several factors, including when the work was created and published, whether it is a work that was created for hire, or whether the work is made anonymously or using a fictitious name.

Generally, works created but not published or registered with the United States Copyright Office before January 1, 1978, and any works created after January 1, 1978 (regardless of publication or registration), are entitled to copyright protection for the life of the author plus seventy years after the author’s death. However, works created and registered before January 1, 1978 are entitled to a full copyright term of ninety-five years. Similarly, works made for hire, anonymously, or with a fictitious name are typically protected by copyright for ninety-five years after publication or 120 years after creation, whichever term expires first.

Lets look at some examples:

• A work is created and registered with the Copyright Office in 1964. A ninety-five year copyright term applies, so the copyright expires on December 31, 2059.

• A work is created in 1985. The author dies in 2010. The life-plus-seventy term applies, so the copyright expires on December 31, 2080.

Unfortunately, there is no list that compiles expired copyrights. If the information is not available on the work itself, you could search within the records of the Copyright Office, which keeps records of registered copyrights. However, because not all copyrights are registered with the Copyright Office, you could also do some historical digging to determine when the radio was manufactured and sold to determine if the work is within the public domain (assuming it had copyright protection). In the event that the radio designs are not within the public domain, you could also considering seeking a license or permission from the copyright owner to use them in your artwork.

In answer to your question about whether or not you can copyright the design you make, the original and copyright protectable elements of the work you create may be entitled to copyright. In other words, copyright law requires that copyrighted works be original to the author and not copied from something else. Thus, generally only the original elements you contribute to the vintage radio design will be copyrightable, not the vintage radio design itself.

2. “Is there a way to protect your designs?  I’m a handbag designer and have been doing it for five years. A few months ago, someone that I know of has been copying my designs and selling the work in the same area as me. I know that handbags are different from original artwork, but is there a way to protect an idea or keep someone from selling work VERY similar to yours if you came up with the original idea?  It’s obvious that people are starting to confuse our work. I am constantly asked if I am “such in such person”… When I reply “no,” I am told, “sorry, someone else is doing the same kind of work to their bags.”

Is there anything I can do to trademark or copyright my designs?”

This issue can be very frustrating for many fashion designers. Unfortunately, under current U.S. copyright law, handbags themselves are a difficult type of design to protect. Handbags may (under very specific circumstances) be subject to trademark protection.  Trademark law, in general, provides a wide spectrum of protection from words and phrases to logos and symbols and even to sounds and smells.

A unique type of trademark, called trade dress, allows for the protection of the design and packaging of materials. Under trademark law, in order to protect your handbag from another designer copying your work, you will have to establish things such as:

• The handbags are not merely functional – there must be a distinctive design to the bags apart from their utilitarian purpose.

• The handbags are “inherently distinctive” or have acquired “secondary meaning.”  This means that upon seeing your handbags, the public automatically associates them with you as their designer.

• The handbags and the other designer’s handbags are confusingly similar – the test for trademark infringement is “likelihood of confusion.”

Noting that there already appears to be confusion on the part of the public, you may want to consider evaluating the potential protection here under trademark law.

As before, Scott reminds us that these responses should only be read as general legal comments about copyright and trademark law and are not a replacement for attorney advice from an attorney that you hire, retain and that is familiar with all of the facts and circumstances of your situation.

In providing these answers in a general form and without knowledge of all the specifics related to each situation, the provision of these general answers do not create any form of attorney/client relationship as between you and Scott or Cozen O’Connor (the firm Scott is at). Scott does however apologize for wanting us to underline the word “not” twice.

1. What are the differences between images that are public domain, royalty-free and rights-managed?”

This is an interesting question and comes up often in relation to determining what permission or license (if any) is needed to use an image.  Initially, it is important to remember that images are one of the many types of works that receive protection under the Copyright Act. With images generally protected under copyright law, a user of an image will want to know if permission or a license is necessary before using an image or whether it is in the public domain.

Public Domain Works are, quite simply, not protected by copyright law.  This includes (1) works that do not fit within the scope of protection of the Copyright Act, although images are usually protected, (2) works for which the copyright has expired (the expiration date will depend on when the work was first created and published), or (3) works that are donated to the public domain by the author. Works in the public domain are available for copying and use by anyone.  The challenge is determining whether a work is in the public domain and this requires analysis of the date of the image and the applicable copyright law.  See the answer to the fourth question relating to vintage radios for more information relating to the duration of copyrights.

Royalty-free Works on the other hand, are protected by copyright and require a license from the copyright owner, but this license does not involve the payment of any royalty or fee to the licensor. Although the license may not require you to pay a royalty fee and may permit you to copy and distribute the image, usually a license will prohibit modification of the image.

Rights-managed Works involve a license between the copyright owner’s agent (the party managing the work – referred to here as the “licensor”) and the user (the “licensee”). This is slightly different from a more traditional license where the owner of the copyright acts as the licensor. Together, these two types of licenses are the most common types of licensing arrangements; the licensor generally receives monetary compensation for the use of its works.  Rights-managed Works generally have more stringent licensing requirements such as, restrictions on the length of time, the medium in which the images can be used (such as in print, online, etc…), the size of the image, and format in which the work can be used.

Although each of these types of works allows for a different level of control by the copyright owner, they each require consideration before using the image in question. Whenever a license is involved, it is important to confirm that the license provided equals the way in which the licensee plans on using it.

2.  I’m a designer working primarily with public domain images, and most of my clients are independent crafters. Here’s one of the questions that comes up quite a bit from them: How does copyright work with arts and crafts in regards to derivative works? Specifically, can an artist cut out an image from a copyrighted book from the 1960s and use the original image unaltered in their craft (such as a note card or a necklace)? What if the image is altered or part of a collage? Many of my clients are under the impression that as long as you are using/recycling the original art and not making any copies of it, you’re okay. Is that true?

I know in one case a court found that adding a frame to original copyrighted work was considered creative (and therefore derivative) and not okay, and in another adding a copyrighted image to a tile was not considered creative (and thus not derivative) and therefore was okay. Is the crux of the issue whether something is transformative/creative/derivative? Or is something else going on? A more general version of this question would be what are some common pitfalls or misconceptions (for example about fair use) that crafters who sell their items need to look out for when creating work with images that did not create themselves.

I appreciate the detailed information in this question but even more so because the poster sums up the issue quite nicely at the end. This question essentially is, can you use someone else’s image in your own work?

Assuming the work is not in the public domain (see the answer above to the first question), in order to use someone else’s work in your own work and create what is considered to be a “derivative work”, you must get the permission or a license from the copyright owner. Unfortunately, this is often misunderstood, and even the most creative derivative works should have permission or a license from the copyright owner.

In addition, there is an important difference between owning the object in which a copyrighted work is embodied, such as a book, and ownership of the copyright. For example, buying a copy of a book does not mean you own the copyright in the text or the images – you have essentially just purchased that copy of the copyright protected work. In other words, owning the book does not give you the right to use images or text from that book in your own work or otherwise unless you obtain permission or a license. In fact, using the work without the copyright owner’s permission is copyright infringement.

While recycling is a great thing to do, it doesn’t really apply in the context of “recycling” copyright protected art or text in a book. Under copyright law, the copyright owner has the exclusive rights to prepare derivative works or distribute copies of the work. As such, cutting out a copyrighted image and using it in a craft (and likely creating a derivative work) is still copyright infringement.

3.  I’m currently a Graphic Design student. I’ve been working a lot on photography lately and I would like to know if there is a rather simple way I can copyright my images. I must have thousands of images by now, and registering them w/ the copyright office would be very expensive. I’ve talked to some pro. designers/photographers and one of them told me that they just email a CD of their photos to themselves as a record (keeping the package unopened, and archived, I guess). Is this a good and legally strong method for copyright?

Here’s the good news – under current U.S. copyright law, your images are protected by copyright as soon as you create them, whether digitally or using film. There is no need to register your images with the Copyright Office to obtain a copyright.

Here’s the bad news – unless you register your works with the Copyright Office, it impacts your rights with regard to infringers (you know, the bad people who use your photos without paying or crediting you). Copyright law favors registration and if you register your photos within a specific timeframe, you have the ability to obtain statutory damages (in other words you don’t have to prove how much you were damaged) and attorneys’ fees.  This ability is often a powerful tool in resolving infringement issues. In addition, you need to register or file for registration (depending on where you are suing) with the Copyright Office before you can sue someone for copyright infringement.

The reference to mailing a work to oneself is often referred to as the “poor person’s copyright” although I have never seen reference to emailing it.  The idea of the poor person’s copyright stems, I believe, from the idea of being able to prove that you created your work first and such the infringer must have copied you. For lots of reasons (including that there wouldn’t be a dramatic moment in court where the envelope is opened), this doesn’t work.  Email especially doesn’t work because it is possible to mess with the time and date that an email is sent.

We have not forgotten about you. Erin and I needed some R&R this summer. Scott is currently hard at work answering your copyright questions, which should be done and posted shortly. Erin and I are also hard at work planning the next installment of our beginner BAKERY course. If you want in, email us here to be the first to know when registration is open. HINT: It will be soon!

Just a reminder that TODAY is that last day to email us your trademark and copyright questions to be answered by legal veteran Scott Schwartz. You can also post them in the comments here.

Hey there Bakers! We have an exciting opportunity. Over the past few years, as the rise of Internet artist and designer portfolios, we have also seen the rise of copyright infringement and what we might want to call “copycat” art. We have seen friends’ work taken and reused by large retailers for profit without permission. So how do you go about protecting yourself from falling victim on this great big place called the Internet? Well, we wanted to get you the best advice possible, so we teamed up with legal veteran, Scott Schwartz who hails from major law firm Cozen O’Connor.

Scott has agreed to answer selected questions regarding protecting your work, dealing with copyright issues, and what to do when you find  someone using your work (Scott calls that infringement). So, email us your questions or put them in the comments on this post and he will answer them in an upcoming post.

Scott reminds us that his responses should only be read as general legal comments about copyright and trademark law and they are not a replacement for attorney advice from an attorney that you hire and that is familiar with all of the facts and circumstances of your situation. Scott is really looking forward to responding to the selected questions but his answers do not create an attorney/client relationship.

Here is some more information about Scott:

Scott has a practice focused on all aspects of  trademark, copyright and unfair competition law and related  litigation. He represents clients in a wide range of industries and  at different stages of their corporate development helping them  identify and protect their intellectual property rights and assets.  Scott routinely counsels clients on branding issues such as clearing  and registering their trademarks and addressing enforcement issues. Scott joined Cozen O’Connor’s Philadelphia office in June 2002 and  is a member of the Intellectual Property Department. Before joining Cozen O’Connor, Scott was in-house counsel at Intel Corporation for  more than three and a half years as a senior attorney responsible  for implementing and managing global trademark enforcement and  protection strategies for marks including the Pentium® and Intel  Inside® trademarks. He also served as an associate at the  intellectual property law firm Woodcock Washburn. He is a regular speaker on the topic of trademark and copyright law. In addition to appearing on local news programs discussing issues  from the iPhone trademark to the Wal-Mart “Smiley Face”, Scott has spoken at multiple International Trademark Association programs and  CLE courses put on by the Pennsylvania Bar Institute and the Delaware Valley Chapter of the Associate of Corporate Counsel. He has been quoted on intellectual property issues in BrandWeek, Best’s Review, and California Lawyer Magazine. In addition, Scott previously chaired the U.S. Legislation and Regulations Subcommittee  and New Regulations Subcommittee of the International Trademark  Association. Scott is an adjunct professor at Drexel University in the  Entertainment & Arts Management Program of the Westphal College of Media Arts & Design where he teaches Copyrights and Trademarks for  Entertainment & the Arts. Scott also proudly serves as a board  member of Federation Early Learning Services. Scott received his bachelor of arts degree from American University and his law degree from the University of Buffalo School of Law. He  is admitted to practice in Pennsylvania, New York and Washington, D.C. Scott is also a member of the Screen Actors Guild, having  appeared in his youth in various commercials as well as more  recently in an independent film.

image credit: sergey komarov

Interns are so incredibly essential for start-ups, whether you need a spare hand to ship product or are desiring a human body to bounce ideas off of. Yet sometimes the wrong intern can be detrimental to your business — and you’d be better off without one. Here’s how to avoid making the mistake of choosing the wrong intern — and finding the best!:

1. Know your needs. Sure, managing someone else sounds glamorous, but the truth is — some people aren’t cut out for the job. Take a good look at yourself and your skill set. If you’re not great with managing people, you’ll need a self-starter who doesn’t mind motivating him/herself. On the flip side, if you love being involved daily, your intern will need to be prepared for a give/take relationship.

2. Pay attention to details. Spelling error in a cover letter? Poor formatting of a resume? Sure, you can’t judge a book by a cover, but you can judge it by its grammar… We all know that some people are very good workers and just plain horrible at spelling. That’s fine and totally acceptable, but when it comes to applying for a job, even if you stink at spelling, someone should review your resume or the least they could do is Spell Check. Otherwise, how do I know you’re not going to overlook important details in my business?

3. Commit. Having an intern deserves quite a bit of attention, so be sure to carve out some time in your schedule to find the right fit. If you can’t devote a few hours in your day to finding someone, how will you set aside time to manage them?

4. Check referrals. It may take an extra half hour, but if you’re serious about an applicant, follow up with their referrals. It’s always good to get a feel for the person you’ll be working with — and the best way to do that is to ask around.

5. Be honest. Tell the intern how much he or she will be working on a weekly or daily basis. Be realistic about these hours and the workload, and don’t try to make your place of business seem like a day at the park. Even if you aren’t paying them, it’s still work. Tell them what they can expect up front.

6. Don’t assume. Interns are usually young, mostly either college students or just out of college. Don’t assume that they know the terminology or the way you do things right off the bat. Remember, this is usually their first experience working in “the real world” so be sure to offer them the proper training and walk through everything. If you want things done a certain way, show them how to do it that way from the get-go.

7. Challenge your intern. Interns are working with you to learn. If you have an intern stuff envelopes all day, what is really being taught other than how to get a paper cut on every finger? Challenge your intern with some more advanced tasks to keep the excitement and interest.

8. Refer, recommend, or hire. Once your intern is done working for you, offer him or her a nice referral letter or Linked In recommendation to bolster their resume. Remember that this person helped you out (probably with no pay) so it’s time to pay it forward and help your intern take the next step in his or her career. Or, if it was working out very well and you have an opening — offer the job!

I am a graphic designer and I’ve been told (by professors and mentors) that listing your rates/pricing online is tacky. I am noticing more and more lately, prices for design of a web site, brochures or other collateral materials being listed like a restaurant menu on designer’s websites or blogs.

I see the benefit of both positions but the word “tacky” sticks in my mind. Although, consumers do seem to be geared toward “value meal” decision making so, maybe it’s “less tacky” now?

Love,
PriceLine

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Hi PriceLine!

What a great question! I tend to agree with your professors and mentors in this case, actually. I don’t necessarily see listing prices online as tacky, but I do think that graphic design is more of a service and less of a product, which calls for a detailed explanation of pricing. Two reasons for this:

1. Graphic design is complicated and prices can vary, so I think any potential customer would understand that a menu of services may not be the right approach. What you’re offering doesn’t always fit into a nice little package that can be easily duplicated from client to client. Most graphic work is custom and client-specific so no one price will fit all. After all, no one likes to think that their project will be anything less than 100% custom, so pricing should be included in that!

2. If a customer contacts you for pricing, rather than simply looks online, you now have the potential for a personal relationship with that customer, which is always a good situation. Responding to price quotes is your opportunity to shine and really showcase your work and personality. You can’t get that in an online menu of pricing!

So yes, I’m going to agree w/ your mentors. Keep the pricing off your site and add a contact form for easy communication.

Good luck!

Love,
BAKERY

Dear BAKERY,

As a small business owner dealing with some large-sized customers I often find it to be a challenge when handling returns, especially the return of seasonal goods. Large vendors can (much) more easily swallow the loss involved in returned goods compared to a small business like mine. I know that in order to “play in the big leagues,” so to speak, I also have to have a similar policy. Even with a restocking fee, having returned goods definitely affects my bottom line. However, losing a customer because of this would be a shame. Any advice?

Love,
Stockpiled

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Hi Stockpiled,

Ugh, the dreaded restocking fee. I can see how one customer or two customers who are just the average Joe were to purchase something then decide they didn’t want it, that they could return it. Usually shops ask for a 10% restocking fee, and sometimes no fee at all.

But, I guess I am confused as to why you are allowing large customers to return items? How many items are being returned at once? Are these vendors that are purchasing wholesale? In my opinion, if you are a company and you place an order with another company — once you buy it, it’s yours. It should no longer be the original sellers’ problem after that. These vendors should order what they think they need and reorder more if they begin to run out. If they’ve ordered way too many items and you’re accepting items back in stock, it might be a good idea to up your restocking fee to dissuade them from over-purchasing. Everyone loses money with seasonal items that don’t sell. It’s your choice whether you want it to be you or them.

Another thing you could do is look at the past history of these clients and see how many items they have ordered in the past and then how many came back to you. Suggest that they order a few less than they did last year and remind them how many items they sent back, along with the fact that they spent extra money on restocking fees. Try to act like you’re really thinking about saving them time and money by not having to send anything back to you. They will appreciate that you have their best interest in mind.

If you find that it really puts you at a loss and you feel there’s no way out, you can opt to mark seasonal goods as “final sales”. That would eliminate your problem altogether

Love,
BAKERY

image credit: jereitman2

Want to be involved in the hottest new business consultancy online (and yes, that’s us!)? Join our next Half Dozen course: 6 Weeks to a Tastier Business!

Registration will close on Monday, when our first session begins. The course is 6 weeks, strictly online and just $120, which averages to nothing more than an AWESOME deal.

Forget your bikini body; get your business into shape this spring and sign up now.
Course info here and FAQ’s here!

See you Monday!