Copyright protects any original work of authorship that has been fixed in a tangible medium of expression. A work is automatically protected by copyright when it is created; however, copyright registration is required prior to filing a copyright infringement lawsuit. This is important because copyrights are not self-executing; rather, their value resides in the threat of enforcement through litigation (whether that threat is real or merely perceived by the would-be infringer). Copyright consists of a bundle of exclusive rights that include the exclusive rights to reproduce, distribute, display, and perform the copyrighted work; as well as to make derivative works. The term of a copyright extends for the life of the “author” plus 70 years. If, however, the copyright is deemed to have been created by a business, the term of the copyright will be the shorter of 95 years from publication or 125 years from creation. A copyright is relatively inexpensive to procure. The Copyright Office will charge a $55 registration fee. If expedited processing is required, the Copyright Office may grant expected processing for an additional charge of $800. The permissible reasons for granting a request for expedited processing include pending or prospective litigation; for customs-related issues; and in order to meet contract or publishing deadlines. If an attorney is retained to guide the copyright registration process along, attorneys’ fees will likely be approximately $400. Assuming one does not pursue expedited processing, it typically takes between three to six months to obtain a copyright registration.
A design patent protects a new, original, and ornamental design for a useful article of manufacture. A design patent prohibits others from making, using, offering for sale, selling, and importing the patented design. Design patent applications must be filed within one year after the first offer for sale, public disclosure, or public use of design. The term of a design patent is 15 years from issuance. Attorneys’ fees for preparing and filing a design patent application will typically range between $500-$1,000. The U.S. Patent and Trademark Office fees will likely be $480. Further, should a professional illustrator be used to prepare the required graphical depictions of the design, such services would likely cost approximately $500 (on average). A design patent typically takes approximately one year to procure.
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As a final point of comparison, independent creation is a defense to copyright infringement, but it is not a defense to design patent infringement. Copyright infringement requires actual access to the copyrighted work and substantial similarity between the copyrighted work and the accused work. An owner of a design patent need not prove an accused infringer’s access to his or her design.
Chiacchio IP is an active contributor to industry literature. We also give frequent presentations on topics relating to business patents and other intellectual property.