Branding is a popular word these days. Companies, professionals, entertainers, and politicians – everyone is trying to figure out how to reinforce or, in some cases, reinvent their brand. What is branding? According to the American Marketing Association, branding is defined as a “name, term, sign, symbol or design, or a combination of them intended to identify the goods and services of one seller or group of sellers and to differentiate them from those of other sellers.” Basically, what that means for you and me is that our brand is everything about us that we portray to others – especially to those we’d like to engage with professionally, commercially, etc. You are your brand and your brand is you!
You’re working hard to build your brand. You’ve found your niche market – you’ve promoted your service, experience, and skill on LinkedIn, Facebook, Twitter and even Pinterest! But how do you prevent others from using elements of your brand without your permission and what remedies are available to you if you discover it?
1. Copyright original work associated with your brand– According to the law, you are automatically the owner of your original work. The federal Copyright Act gives protection for the following:
Literary, musical, and dramatic works
Pantomimes and choreographic works
Pictorial, graphic, and sculptural works
Motion picture and other audio-visual works
Do be aware that if you have created these items as an employee, or have contracted someone else to do them for you, you might not be the copyright owner. However, most freelance photographers and public relations professionals retain the copyright of their work. As copyright owner there are some exclusive rights bestowed to you, such as the right to do or authorize the following:
Reproduce the work
Prepare derivative works based on the work
Distribute copies or recordings of the work
Perform the work publicly
Display the work publicly
As the copyright owner you may enjoy protection for as long as you live, plus 70 additional years. After that time has elapsed, the work becomes part of the public domain.
So now that you have identified that the work is originally yours to do as you wish, should you copyright it?
Well, that’s totally up to you but here are a few things to keep in mind: The copyright belongs to you at the moment of creation. So, you can simply place the copyright symbol (©) on your work to let others know it’s your original work, but you will have to prove that its yours in a court of law should you need to challenge an infringer. However, when you register your work you establish prima facie (at first view) evidence in court – meaning registering has allowed you a presumption of fact that the work belongs to you – leaving you with very little burden of proof. The U.S. Copyright Office has more information about how to copyright your work.
Trademark law protects your company brand or names of your products from being used by another company. In Hermes v. Does, plaintiffs won a judgment against Does, who operated a large network of websites selling counterfeit products with the Hermes trademarks and designs by using 34 domain names similar to the Hermes website. Hermes was awarded statutory damages of $100,000,000.00!!! The U.S. Patent & Trademark Office has more information about trademarking your brand.
2. Watch your brand online and in social media – When someone uses one of the exclusive rights you possess as it pertains to your original work, it constitutes infringement. For example, if someone copies your work without your permission, it infringes upon your exclusive right of reproduction. A person desiring to use a copyrighted work must (1) get permission from the copyright owner, (2), comply with the terms of compulsory licenses established by law, or (3) assert that such use falls within the use of “fair use.” Monitor your brand online and in social media to make sure that no one is infringing on your rights as copyright owner. Remember that with the addition of the internet and social media, there are more opportunities for others to misuse your brand. So be vigilant! Even using your original photo without your permission is infringement! Tools such as mention and Google Alerts can be helpful in monitoring your brand.
3. Determine if it is in your best interest to pursue a lawsuit – If your work is registered, you have a better chance to sue successfully. However, it would probably be in your best interest to try a few other things first. There is a good chance that the person using your work, does not realize that they are infringing on your rights. You have the option of contacting them and asking them to remove your work. Most people, in good faith, will do as you have requested. If it is an enormous, deliberate, infringement on your work, such as with the Hermes v. Does case, then you can pursue further legal action by filing a Digital Millennium Copyright Act (DMCA) Infringement Notice and/or pursuing a lawsuit.
You’ve worked hard to build your brand! Make sure that others aren’t undermining your efforts by infringing on your copyrighted and/or trademarked work. Be watchful out there and Happy Branding!
© 2013 Candie A. Price
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