What is a copyright?

  • Copyright protection exists for original “works of authorship” fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
  • Works of authorship include the following categories:
    • 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;
    • sound recordings; and
    • architectural works.

Do you need a copyright registration in order to file a lawsuit?

  • Yes. A recent Supreme Court decision, Fourth Estate Public Benefit Corp. v. LLC et al. held “registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright. Upon registration of the copyright, however, a copyright owner can recover for infringement that occurred both before and after registration”.
  • There are ways to expedite the registration process where the certificate is received in 7-15 days by paying an additional government filing fees. Please be advised that this expedited procedure is reserved for emergencies, for example, where you must file a lawsuit related to the work in question.

What does a copyright NOT protect?

Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. Copyright protection isn’t available until the work is in a tangible medium of expression, such as a paperback book or audio recording. Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.

Why should I obtain copyright protection?

Once obtained, a copyright gives you exclusive rights to your artistic works. These include the right to:

  • to reproduce the copyrighted work in copies or phonorecords;
  • to prepare derivative works based upon the copyrighted work;
  • to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  • in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly
  • in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
  • in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

How long does a copyright last?

The length of the copyright protection varies depending on the date of first publication or creation. According to the U.S. Copyright Office, all registered works created after January 1, 1978 are protected all throughout the author’s lifetime plus an additional 70 years. If the copyright was created as a work for hire for a company or any other legal entity, the work has copyright protection that lasts for 95 years from the date it was first published or a term of 120 years from the year it was created, whichever expires first.

Why is it essential to have an attorney assist in protecting your copyright in the U.S.?

Copyright disputes can occur during both the registration and enforcement periods. We will clearly identify the best type of protection for your work and help you avoid registration errors and rejections that only lead to delays and added expenses. We’ll help make sure you file a copyright application in a timely manner to ensure you neither lose any of your rights nor face intellectual property disputes in the future.

What is a Recordation with U.S. Customs and Border Protection?

What is a CBP Recordation?

Many companies mistakenly believe that registering a trademark or copyright with the U.S. Government provides the same protection and remedies as recording those materials with U.S. Customs and Border Protection (CBP). The processes achieve two different goals. The reason to register a trademark or copyright with the United States Patent and Trademark Office (USPTO) is to give the public notice of one’s ownership of the trademark or copyright. On the other hand, the purpose of recording a trademark or copyright with U.S. Customs is to partner with U.S. Customs to prevent the unauthorized importation of merchandise which bears a recorded trademark or copyright. U.S. Customs prevents counterfeit products from entering or exiting the United States (and included in transit goods) when registered trademark or copyright holders record their trademarks or copyrights with U.S. Customs.

Does CBP Take Recordations Seriously?

CBP takes Intellectual Property Rights (IPR) enforcement very seriously, in fact, it’s a priority. Shipments not destined for the U.S., that are merely in transit (for example from China for a brief stop in Miami to the ultimate destination in Latin America), are no exception. The fact that CBP enforces IPR rights for in transit merchandise surprises many — but lets face it, if CBP is to protect IPR rights, why should it stop at products solely destined for the U.S.?

When a trademark or copyright is recorded with U.S. Customs, infringing merchandise may easily be detected by U.S. Customs at all 328 official ports of entry across the country. Once a trademark or copyright is recorded with U.S. Customs, the owner’s information is entered into an electronic database accessible to over 60,000 U.S. Customs officers in the United States and overseas. U.S. Customs uses this information to target suspect shipments for the purpose of physically examining merchandise which ultimately prevents the importation or exportation of infringing goods. To make sure a trademark or copyright is properly recorded with U.S. Customs, consult with Diaz Trade Law. Diaz Trade Law is familiar with the process and familiar with teaching CBP how to look out for infringers.

What are the Advantages to Recording a Trademark or Copyright?

The most obvious advantage to recording a trademark or copyright with U.S. Customs, is that U.S. Customs will monitor and seize infringing merchandise at the ports of entry so that the trademark or copyright holder does not have to locate and prosecute every unauthorized importer, distributor, retailer illegally using its trademark or copyright.

U.S. Customs has the authority to issue monetary fines against anyone who facilitates the attempted introduction into the U.S. of seized and forfeited counterfeit merchandise. U.S. Customs may go to the U.S. Attorney’s Office and request that those involved in the illegal activity be criminally prosecuted under the Trademark Counterfeiting Act of 1984. First time violators of this Act are subject to penalties of up to ten years imprisonment and/or a $2,000,000 fine, while repeat offenders are subject to 20 years imprisonment and/or a fine up to $5,000,000.

Is it an Easy Process?

Trademark and copyright recordations may now be filed online with U.S. Customs’ new Intellectual Property Rights e-Recordation (IPRR) online system. CBP’s IPRR system allows holders of registered trademarks and copyrights to record their registration with CBP, so that CBP can police the borders for infringing goods. Once recorded, it is entered into an online search system named IPRS. CBP officers can be trained to identify and interdict counterfeit goods. Before logging on to record a trademark or copyright, a trademark or copyright holder should be extremely knowledgeable with the Customs regulations found in 19 CFR Part 133, and the specific questions that will be asked on the application. Otherwise, consult with Diaz Trade Law. Diaz Trade Law is already familiar with the process.

What are Grey Market Goods?

It is advisable to attempt to obtain “gray market” protection from U.S. Customs. “Gray market” goods are foreign-made articles bearing a genuine trademark or trade name identical with, or substantially indistinguishable from one owned and recorded by a citizen of the United States or a corporation or association created or organized within the United States, which are imported without the authorization of the U.S. holder.

What is the Benefit to my Company?

If you took the time to register your trademark or copyright with the U.S. Patent and Trademark Office then consider taking the extra step to record that trademark or copyright with CBP. Wouldn’t you want CBP to stop infringers, even if they are just passing through for a brief moment?

It is extremely beneficial for a company to record its registered trademark or copyright with U.S. Customs, as U.S. Customs may be a company’s greatest, and most cost effective ally when it comes to trademark and copyright enforcement.

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Why is Recording a copyright with U.S. Customs and Border Protection Essential?

  • CBP recognizes the importance of intellectual property protection and provides assistance in stopping the infringing products at our borders.  CBP’s Intellectual Property Rights Recordation (“IPRR”) system allows holders of registered trademarks and copyrights to record their registration with CBP, so that CBP can police the borders for infringing goods.  Once recorded, it is entered into an online search system named IPRS.
  • Considering the incentives for counterfeiters along with the potential losses for intellectual property rights holders, companies that import merchandise must consider recordation a necessity. Importantly, when you record your marks, you must go to an expert in this area – as this is your opportunity to train CBP on the methods of policing your mark – and only trained experts can work on this proficiently, so you have the best results with CBP, like Hermes did. To learn more about the top four benefits of recording your intellectual property, review this article.