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Copyright protects the original expression of an author that is fixed in a tangible medium. In lay men’s terms – copyright protects your WORK and a copyright exists the moment it is created (i.e. fixed in a tangible medium). Copyright only extends to pictorial, graphic, sculptural, musical, literary, pantomimes and choreographic, sound recordings, architectural and audio-visual works of art and does not apply to facts, ideas or concepts.
Trademark law is about preventing consumer confusion. Therefore, a trademark protects your BRAND, i.e. your brand name, logo, slogans, colors, sounds, smells and any other brand-identifying marks.
Registering your trademark with the USPTO is the strongest way to protect your brand from infringement because (1) being listed in the federal database provides public notice of your trademark, (2) it creates a legal presumption that you own the trademark which saves time and $$ if you’re brought into court, (3) once registered, you can bring a lawsuit in federal court and finally, (4) it gives you NATIONAL protection whereas without federal registration, you may only see protection based solely on your use within a specific geographic area.
The trademark registration process can take up to 10-18 months to complete and the USPTO is currently experiencing delays in processing due to an unprecedented surge in new applications.
While a copyright exists in a work the moment it is fixed in a tangible medium, that does not mean it is registered. Registration brings a few key advantages: (1) it establishes a public record of the copyright, (2) before you can file suit for infringement, you must have registered your copyright, (3) in the event the registration is made prior to infringement or within 3 months of publication, the copyright owner is eligible for statutory damages and attorney’s fees and costs in a successful litigation.
As of February 2022, the average processing time for applications submitted to the Copyright Office is 3.4 months.
Trademark. When you file a Trademark application, the application only covers 1 mark registered in 1 particular class of goods or services. One application costs between $250-$350 depending on the type of application used. Thus, if you are registering a mark in multiple classes of goods, you will need to submit multiple applications.
Copyright. The general cost to register a copyright ranges between $45-$125 depending on a number of factors including the # of authors of the work and whether it is digital or paper filing.
Short answer, no. Long answer, you should. While there are a million videos and articles out there that can explain the process of registering a copyright or trademark, it’s best to have a lawyer as your advocate in the event you run into any hiccups (and also to help prevent any hiccups from happening in the first place).
The main benefit is the shield from personal liability the LLC provides to its members. Further, LLC’s have something called “pass through taxation” where profits made by the LLC are “passed through” to the owners and thus avoiding double taxation.
Costs of forming an LLC vary depending on both the state and even the county where your business is located. In New York the cost of formation ranges from $550-$1500 due to the publication requirement which cost varies from county to county. Other states, like North Carolina, do not have a publication requirement and the cost of formation is considerably lower.
Anytime you are entering a business relationship (or even a creative partnership because remember, your art is your business!), you should have a contract in place to outline the terms of your agreement along with each party’s rights and remedies in the event of a dispute.
The Lit Esquire PLLC is a New York based law firm and Jessica Lit, Esq. is only licensed to practice in New York state, however, many of the services provided by the firm are covered under federal law – so get in touch with us today about your particular needs and if we can’t help, we will point you in the direction of someone who can!
Lawyers are expensive and while The Lit Esquire PLLC strives to provide affordable legal services, sometimes even affordable is not in our budget. Check out our blog for more information about free legal resources and organizations available for artists.
The Lit Esquire PLLC was created to be a legal safe-haven for artists and creatives from all disciplines. So whether you’re brand new to your craft or a seasoned professional with your own creative business, we’re here for YOU!
*Please note, due to a conflict of interest, The Lit Esquire PLLC does not currently accept or represent clients in matters related to the theatre industry.*
