FAQ Trademark, Copyright, Music Publishing: Lewisville, Dallas, Denton, Frisco, Fort Worth, Nashville, Austin

FAQ/SELF HELP

Click on a topic for more information

Collapse all descriptions

Copyright is an original work of authorship fixed in a tangible medium of expression; such as a song, book, or sound recording.

The practice of sending a copy of your own work to yourself is sometimes called a "Poor Man's Copyright." There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration. In the event of an infringement lawsuit it may not even be admissible to prove creation and ownership of the work.

NO. Anyone may complete the forms provided at www.copyright.gov and mail to the Copyright Office. There is also a new e-file option available on their website.

Copyright applications may be filed through the U.S. Copyright Office.
More information is available at: www.copyright.gov.

The Copyright Office has transitioned to an online filing system to replace the old TX, SR, PA, CON, etc paper forms.

More information about this is detailed on the Copyright Office website:
http://www.copyright.gov/forms/

The current filing fees charged by the Copyright Office are $45 per hard copy application or $35 per e-file application. This does not include any legal fees or postage that may be charged by a lawyer.

The short answer is No. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law.

The 1976 Copyright Act gives the owner of a copyright the exclusive right to do and to authorize others to do the following:

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

Trademarks

A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.

A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. Throughout this website, the terms "trademark" and "mark" refer to both trademarks and service marks.

A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. Examples of well-known trademarks include NIKE, CHANEL and ZYRTEC.

A copyright is an original work of authorship fixed in a tangible medium of expression; such as a song, book, or sound recording.

• Develop a list of possible names and discuss this list with your attorney.
• Your attorney will conduct a trademark search or "knockout" to exclude any existing marks that are identical or confusingly similar.
• Prepare and submit an application.
• It may take seven to nine months before the USPTO will respond to your application.
• If there are any procedural or substantive changes requested by the trademark examiner (an Office Action), you will then have six months to respond.
• If the refusal is overcome, or if no refusal issued, the mark will move to publication.
• If the mark is published and no oppositions are filed, the mark will be registered if it was filed as a "Use" application. If it is an "Intent To Use" application, a Notice of Allowance will issue and the mark must be used in interstate commerce.

Trademarks are subject to varying degrees of protection. The stronger the mark, the greater protection it will receive.

The trademark examiner will categorize a mark in one of four general categories:

generic marks
descriptive marks
suggestive marks
arbitrary and fanciful marks

On a scale of 1 to 5, a generic mark is a 1 and an arbitrary mark is a 5. A mark that is a 4 or 5 on the scale has the greatest level of protection and is either suggestive of the goods or service offered or has no connection to the goods, i.e., arbitrary. A mark that is a 1 on the scale has no trademark protection. A mark that is a 2 on the scale, has limited protection. A mark that is a 3 on the scale is usually a suggestive mark and is protected.

Resist the temptation to select a mark that describes the goods or services. It is difficult, if not impossible, to protect a mark that is descriptive.

If you decided to create a magazine about mountain climbing you might select names such as the "Mt. Climbing Magazine", the "Climber's Journal", "Mt. Everest", or even something arbitrary such as "Orion." See the chart below showing how each of these proposed marks are protected on a scale of one to five.

1	2	3	45
GENERIC	DESCRIPTIVE	SUGGESTIVE	ARBITRARY/ FANCIFUL
No trademark protection. "MT. CLIMBING MAGAZINE"	Limited protection with "Secondary Meaning." Mark describes the product. "CLIMBER'S JOURNAL"	Protected, but not as strong a mark as an arbitrary mark. Requires a second mental jump to connect the mark with the product. "MT. EVEREST"	Greatest level of protection. Mark has no connection to the product. "ORION"

While the federal application is pending ( from one to two years), the trademark should be identified with the ^TMsymbol. Use the mark with the ^TM on the actual product to which the mark applies, if possible, and on product labeling and packaging, and also in brochures, catalogs, advertisements, letterhead, business cards, and signage, as appropriate.

When using a word mark, or the word portion of a combination mark (word plus design), in a sentence, distinguish it from surrounding text by using all capitals and quotes.

After federal registration the mark should be identified with the _®symbol. Do not use the _® prior to issuance of the Federal Registration.

You may use the ^TMsymbol to show common law rights or state registration rights to a mark.

You must be using your trademark or service mark in interstate commerce (that is outside the borders of a single state) or have an intention to use the mark in interstate commerce before you can apply for a federal trademark with the United States Patent and Trademark Office.

You must be using your trademark or service mark within the state in order to file an application.

There is no requirement that you use an attorney to file your trademark application.

Generally, the USPTO will not accept slogans or phrases on a t-shirt because they do not function as a trademark but are viewed as expressing an opinion.

It is possible to trademark a brand name of clothing, if the trademark is used on the hang tag, price tag, neck tag, or packaging for the clothing.

An attorney can advise you on legal issues regarding existing trademark applications, registrations and/or common law trademark rights that may help you save money. We often advise clients to not move forward with a trademark filing or recommend they proceed with a state trademark filing. Each client's facts are different so the legal advice they receive will be customized to their needs.

No. A person acquires the right to exclude others from using a trademark by being the first to use it in the marketplace. Rights in a trademark are obtained only through commercial use of the mark. Coining a phrase or designing a logo is not enough to secure trademark rights. You must use the phrase or logo on or in connection with your product or service.

No. Filing an application does not guarantee that either the United States Trademark Patent and Trademark Office (USPTO) or the applicable state will grant you a registration.

If you have not yet used the mark, but plan to do so in the future, you may file based on a good faith or bona fide intention to use the mark in interstate commerce. You do not have to use the mark before you file your federal trademark application.

The mark must be used or displayed in the sale or advertising of the services and the services must be rendered used in interstate commerce.

The mark must appear on the goods, the container for the goods, or displays associated with the goods, and the goods must be sold or transported in interstate commerce.

Music Publishing Administration

See if your town has a songwriters' association. In Dallas/Fort Worth visit these associations:

Read books about the craft of songwriting such as

This Business of Songwriting by Jason Blume
6 Steps To Songwriting Success by Jason Blume
Inside Songwriting by Jason Blume
The Craft and Business of Songwriting by Jason Braheny
Writing Better Lyrics by Pat Pattison

Read books about the business of the music business such as

This Business of Music by William Krasilovsky and Sydney Shemel
Music, Money and Success by Jeffrey and Todd Brabec
Music Business Handbook by David Bakerville
Music Publishing by Tim Whitsett

Read books about the "Business" of the music business such as

This Business of Music by William Krasilovsky and Sydney Shemel
Music, Money and Success by Jeffrey and Todd Brabec
Music Business Handbook by David Bakerville
Music Publishing by Tim Whitsett
All You Need To Know About The Music Business by Donald Passman
Music Business Made Simple: Start An Independent Record Label by J.S. Rudenske
Also, you must visit www.enjoytexasmusic.com for great resources.

Music publishing is a relationship between the creator of a song (songwriter) and the copyright owner of the song. The copyright owner may be the songwriter or a third party publisher. A songwriter may convey ownership of the copyright in her songs to a publisher via single song agreements or exclusive songwriter agreements. The conveyance to the publisher is typically for the life of the copyright of the song. In exchange for the conveyance of the copyright in the song, the publisher should agree to use her best efforts to exploit the song, assist the songwriter in developing her craft, and pay royalties to the songwriter (typically 50% of the income the publisher receives from the song). The publisher also performs administrative duties on behalf of the songwriter.

An administration company does not secure any ownership in the copyright in the song. The agreement with the administrator is typically for a set number of years and not for the life of the copyright in the song. An administrator is paid a percentage of income for performance of the administrative functions of a publisher such as negotiating and securing mechanical, performance, print and synchronization licensees.

See the Copyright FAQs section of this website.

If you are a songwriter, you probably do not need an attorney until you have a contract from someone wanting you to assign your copyright or to use your song. If you are a recording artist or band, you probably do not need an attorney until you are playing frequent gigs and have a "buzz."

You should read the Music Business books recommended here before you contact an attorney. Many of your questions will be answered in those books.

Most states/counties have pro bono legal services available for the poor. Many states have specific pro bono associations for poor people involved in the arts. In Texas visit Texas Accountants and Lawyers for the Arts at www.talarts.org. You must meet certain income requirements to qualify for these services.

Some attorneys "Pitch" songs. Our office does not provide this service.

Some attorneys "Pitch" artists/bands. Our office does not provide this service.

The general rule is that when two or more people come together for a common purpose and share income and expenses they are operating as a general partnership under state law. By default, the band is operating as a general partnership. At a minimum, the band members should put into writing an understanding regarding sharing of profits and loses, who owns the equipment, and who owns the songs if members of the band write. You may desire to form a limited liability company or corporation to provide certain liability protections.

The Harry Fox Agency is the largest agency for the issuance of mechanical licenses on behalf of music publishers.

ASCAP, BMI, and SESAC serve as entities that license the public performance of non-dramatic songs on behalf of member copyright holders. Membership requirements and more information are available on their respective websites:

www.ascap.com
www.bmi.com
www.sesac.com

Permission to use a song in timed relation to visual images.

Perform or display at a place open to the public, or any place where a substantial number of persons outside of a normal circle of family and its social acquaintances is gathered; or to transmit or communicate a performance to one of the groups herein.

A license to reproduce the visual images of the music and/or lyrics of a musical composition.

A license that permits the reproduction of music in a form that may be heard with the aid of a mechanical device. (Derived from the exclusive right in the U.S. Copyright Act to reproduce copies and phonorecords).

A license from the owner of the master recording allowing for the reproduction and distribution of the master recording.

A sound recording (as set forth in the U.S. Copyright Act) is a work that result from the fixation of a series of musical, spoken, or other sounds, but not including the sound accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes or other phonorecords, in which they are embodied.

The 1976 Copyright Act gives the owner of a copyright the exclusive right to do and to authorize others to do the following:

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

Copyright is an original work of authorship fixed in a tangible medium of expression; such as a song, book, or sound recording. Visit COPYRIGHT FAQ for more information.

See the Trademark FAQ.

132 WEST MAIN STREET
LEWISVILLE, TX 75057
PHONE: 972-436-8141
METRO: 972-434-2318
FAX: 972-436-8712
E-MAIL
Map This Location