Intellectual Property Forum The Intellectual Property Forum

Please login or register.

Login with username, password and session length
Advanced search  

News:

The forum software has been upgraded.  New registrations are not currently permitted while we iron out any bugs and other matters.  Please report any problems you find.

Pages: [1] 2

Author Topic: "Optioning" "Copyrighting" Performance Series concept (Dance/Stage/Film)  (Read 4516 times)

JJB

  • Newbie
  • *
  • Posts: 6
    • View Profile


Hello to the Purveyors of all things intellectual and of property,

Help!

I have created an accessible, dance comedy performance concept that has grand possibilities. How do I secure this concept as my own? How do I make it (currently a stage production) an "option" for Stage AND Film?

Do I simply copyright possible titles? I am hoping to be able to sell it as a musical theater, video, and/or feature film property.

Please lend a thought if you have a moment

Warmest Regards,

J.

Logged

Yak

  • Senior Member
  • ****
  • Posts: 500
    • View Profile

JJB,

I would first suggest reading this copyright basics circular from the US Copyright Office (http://www.copyright.gov/circs/circ1.pdf)
and check out the FAQ section (http://www.copyright.gov/help/faq/).

Generally, copyright only protects original works of authorship once they are fixed in some sort of tangible form.  This can include plays and other dramatic works.  Copyright does not protect ideas, concepts, or methods performing.   In other words, copyright protects the expression of ideas, not the ideas themselves. 

When the play is written and the performance is described or filmed, that writing or recording is owned by the author.

Short phrases and titles are usually not protected by copyright.

Also be aware that independent creation is a defense to copyright infringement. 

Logged
Not legal advice... Batteries are not included... Any resemblance to real persons, living or dead is purely coincidental... Eating raw or undercooked meat, poultry, eggs or seafood poses a health risk.

MYK

  • Lead Member
  • *****
  • Posts: 1168
    • View Profile

I believe there was a discussion on copyrighting of a series concept a few months ago.  In order to do it, though, from what I recall, you had to have two or more works already extant in the series.  Try searching the forum for that discussion.

Disclaimer: I have minimal knowledge of copyright issues.
Logged
Disclaimer: not only am I not a lawyer, I'm not your lawyer.  Therefore, this does not constitute legal advice.

Isaac

  • Lead Member
  • *****
  • Posts: 5163
    • View Profile

I believe there was a discussion on copyrighting of a series concept a few months ago.  In order to do it, though, from what I recall, you had to have two or more works already extant in the series. 

That sounds more like a trademark issue.   Although book titles are generally not trademarks, a series name like "For dummies" might be a registerable trademark.
Logged
Isaac

Kaitlin

  • Senior Member
  • ****
  • Posts: 695
    • View Profile

Unfortunately, we don't have a lot of experienced copyright people on the board, and I'm one of those that does not have a lot of copyright experience. 
Here are a some thoughts, however.

Yak gives a good summation and, as he points out, titles aren't subject to copyright.*  What is subject to copyright is an original work of authorship fixed in a tangible medium of expression.  Also note that the minute your work becomes so fixed--recorded on film or digitally, written down as a screen play, etc.--you have a copyright in the work in that form.  To enforce this right, however, you'll need to have the copyright registered--what is commonly referred to as "copyrighting" it.

Do NOT try to get a trademark on your title thinking that will protect the underlying work.  The function of trademarks is to show that a good or service comes from the same source as other goods/services bearing the same mark.  It's like: when you see golden arches at a fast food restaurant, you know it's a McD's.  Having a trademark in the arches doesn't protect the formula for their hamburgers nor their menu.  All a trademark does is provide a means for customers to trust that goods/services advertised with that certain mark all come from the same place.   If someone else uses golden arches in connection with restaurants, it would likely confuse customers--so McD's can sue for infringement.

As for the series aspect, there is a concept in copyright related to copyrighting a series of works, but I believe this is usually used for compilations -- anthologies, magazines, and such.  That's probably what MYK was thinking of and may or may not be relevant to your project.

What Isaac is talking about is, as he points out, something different from copyright: namely, the concept in trademark law that you may have a family of marks whereby a phrase or certain tag line, e.g., may be used to show that all the marks with this common aspect are connected.  E.g., when it comes to food, McD's probably has a "family" mark in the "Mc" which they use on so many of their food products.  (You couldn't go out and sell McMangoes, e.g., even though McD's isn't selling them.)  Such families can also be found in the context of titles of written works, showing that although the titles vary, the works all come from the same publisher or other common source, such as the "for dummies" series.   While you might want to use a trademark in connection with the performances you're creating, you need to remember that trademark involves a whole other set of issues distinct from copyright and will not protect the underlying work. 

If you're serious about protecting your work from being copied, you really should consult with someone who works in entertainment law or otherwise knows how copyright plays out in the performing arts. 

If that's totally out of your budget, read up on copyright basics as Yak suggests, then see how far you can get talking with the copyright office staff.  The actual cost of applying to register a copyright is quite cheap--but keep consulting to make sure you're registering the right thing to get you the protection you want.

-----------
*Yak says "usually," but my understanding has always been that this is never the case.
« Last Edit: 12-31-10 at 07:26 pm by Kaitlin »
Logged
This post is an off-the-cuff musing and should not be misconstrued as legal advice. THERE IS NO ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. Proper legal advice requires full disclosure of facts-not appropriate to a public forum-and attorney research time and effort which has not been expended here.

Isaac

  • Lead Member
  • *****
  • Posts: 5163
    • View Profile

*Yak says "usually," but my understanding has always been that this is never the case.

Haiku are very short.  Is it your opinion that Haiku are ineligible for copyright protection?
Logged
Isaac

Kaitlin

  • Senior Member
  • ****
  • Posts: 695
    • View Profile

My comment above
Related just to titles
Not to works themselves

                                       Copyright 2010 "Kaitlin"

:)

"Copyright does not protect names, titles, slogans, or short phrases."
http://www.copyright.gov/help/faq/faq-protect.html
« Last Edit: 12-31-10 at 07:24 pm by Kaitlin »
Logged
This post is an off-the-cuff musing and should not be misconstrued as legal advice. THERE IS NO ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. Proper legal advice requires full disclosure of facts-not appropriate to a public forum-and attorney research time and effort which has not been expended here.

Isaac

  • Lead Member
  • *****
  • Posts: 5163
    • View Profile

"Copyright does not protect names, titles, slogans, or short phrases."
http://www.copyright.gov/help/faq/faq-protect.html

I think there are probably exceptions to this rule.   Some creative person could come up with a Haiku or even shorter work that is usable as a title or slogan.
Logged
Isaac

Yak

  • Senior Member
  • ****
  • Posts: 500
    • View Profile

I have a lot of clients who contact me about copyrighting t-shirt slogans.  Hesitantly I have filed a few of them at the insistence of the client.  However, if memory is correct, none of them have registered.  It is always the same language refusal from the CO.  Something like... needed sufficient amount of authorship.  So I typically still advise against trying to copyright slogans, titles, very simple designs, etc. due to the likelihood they will not register.

JJB, like kaitlin said from my experience having someone advise you and file a copyright application isn't outrageously expensive. At least not compared to other IP protection. 
Logged
Not legal advice... Batteries are not included... Any resemblance to real persons, living or dead is purely coincidental... Eating raw or undercooked meat, poultry, eggs or seafood poses a health risk.

Isaac

  • Lead Member
  • *****
  • Posts: 5163
    • View Profile

I have a lot of clients who contact me about copyrighting t-shirt slogans.  Hesitantly I have filed a few of them at the insistence of the client.  However, if memory is correct, none of them have registered.  It is always the same language refusal from the CO.  Something like... needed sufficient amount of authorship.  So I typically still advise against trying to copyright slogans, titles, very simple designs, etc. due to the likelihood they will not register.

I agree that the advice is generally, and even nearly always good.   Very few t-shirt slogans are registerable.

I would point out that statements in copyright brochures simply reflect the positions of the copyright office at some point in the past.  The brochures don't get updated very often and in some cases they contain statements appear to be contrary to case law.   The brochures are probably good indicators of how the copyright office will respond to registration requests.

Logged
Isaac

Yak

  • Senior Member
  • ****
  • Posts: 500
    • View Profile

I would point out that statements in copyright brochures simply reflect the positions of the copyright office at some point in the past.  The brochures don't get updated very often and in some cases they contain statements appear to be contrary to case law.   The brochures are probably good indicators of how the copyright office will respond to registration requests.

That is an excellent point.  
Logged
Not legal advice... Batteries are not included... Any resemblance to real persons, living or dead is purely coincidental... Eating raw or undercooked meat, poultry, eggs or seafood poses a health risk.

Kaitlin

  • Senior Member
  • ****
  • Posts: 695
    • View Profile

I would point out that statements in copyright brochures simply reflect the positions of the copyright office at some point in the past.  The brochures don't get updated very often and in some cases they contain statements appear to be contrary to case law.   The brochures are probably good indicators of how the copyright office will respond to registration requests.

That is an excellent point.  

Actually, in this case the Copyright Office is following well established case law. 

According to Nimmer, even though copyright protection for titles is not expressly precluded by either the constitution nor the Copyright Act itself, "it is nevertheless clear, as a matter of statutory construction by the courts...that titles may not claim statutory copyright."   

And while he says there are a few cases "which suggest that some protection may be achieved for titles under the doctrine of common law copyright,"  he considers that such suggestions "must be regarded as contrary to the generally prevailing rule that titles may not claim copyright protection under either common law or statutory copyright principles."

1-2 Nimmer on Copyright § 2.16 (Titles)

« Last Edit: 01-04-11 at 08:59 pm by Kaitlin »
Logged
This post is an off-the-cuff musing and should not be misconstrued as legal advice. THERE IS NO ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. Proper legal advice requires full disclosure of facts-not appropriate to a public forum-and attorney research time and effort which has not been expended here.

Isaac

  • Lead Member
  • *****
  • Posts: 5163
    • View Profile

And while he says there are a few cases "which suggest that some protection may be achieved for titles under the doctrine of common law copyright,"  he considers that such suggestions "must be regarded as contrary to the generally prevailing rule that titles may not claim copyright protection under either common law or statutory copyright principles."

My remarks did not consider common law copyright, so if this were the only thing available, that's the essentially same as no copyright protection in my opinoin.  I also did not intend my "contrary to law" remark to apply to this particular situation.   In my opinion, the copyright office position on character copyright is an example of a position that I do not believe reflects case law.

Let me express my opinion in a different way.  I can select a short work and use it as a slogon or title.  I don't believe that the fact that the work has been used title precludes the work from being copyrightable.  I'd be happy to see any case law suggest otherwise.

Further Nimmer's remarks do not seem to include slogans.   If the copyright office's statement is going to be correct, it must be correct about slogans, titles and short phrases.
Logged
Isaac

Kaitlin

  • Senior Member
  • ****
  • Posts: 695
    • View Profile

Hi Isaac. 
I feel you're trying to spar with me when I never meant to take up the sword of argument here. 

Further Nimmer's remarks do not seem to include slogans.   If the copyright office's statement is going to be correct, it must be correct about slogans, titles and short phrases.

Just to clarify, here as before I've been restricting my comments to titles-- the point that was originally raised and the one to which I responded.  That is why the Nimmer reference relates only to titles.

And it's not been my intent to either make an argument or offer an opinion that anything should or should not be copyrightable.  Am just saying that it's a well-used mantra of copyright practice that "titles are not copyrightable".  Not making an argument for or against this view (although I do see the merit of it: how do you refer to a work by its title without infringement if the title is copyrighted?); I'm just saying it's the prevailing view and anyone trying to copyright a title is going to be butting his head against a wall.
Logged
This post is an off-the-cuff musing and should not be misconstrued as legal advice. THERE IS NO ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. Proper legal advice requires full disclosure of facts-not appropriate to a public forum-and attorney research time and effort which has not been expended here.

Isaac

  • Lead Member
  • *****
  • Posts: 5163
    • View Profile

Hi Isaac. 
I feel you're trying to spar with me when I never meant to take up the sword of argument here.

We're just having a discussion on a blog.  This isn't a fight.

Quote
Just to clarify, here as before I've been restricting my comments to titles-- the point that was originally raised and the one to which I responded.  That is why the Nimmer reference relates only to titles.

That's fine.  My impression was that you were defending the copyright office circular statement as being based on law, and that statement covered a bit more.

Quote
Not making an argument for or against this view (although I do see the merit of it: how do you refer to a work by its title without infringement if the title is copyrighted?); I'm just saying it's the prevailing view and anyone trying to copyright a title is going to be butting his head against a wall.

Titles could still be protectable by copyright, with the protection not extending to preventing referring to the book by title.  But I agree that trying to copyright a title is not something I could recommend.  Most book titles are not complete poems.


Logged
Isaac
Pages: [1] 2
 



Footer

www.intelproplaw.com

Terms of Use
Feel free to contact us:
Sorry, spam is killing us.

iKnight Technologies Inc.

www.intelproplaw.com

Page created in 0.128 seconds with 17 queries.