In the last two postings I shared several financially related reasons why businesses should escort United States copyright registration to the head of the intellectual property line. Today we conclude with our last but no less important reason.
This last reason is a great one for folks who need to refile applications with no “harm no foul.” To begin, what if the government examiner rejects your copyright application because there is insufficient ‘originality’ and ‘creativity?’ You may first ask yourself what exactly IS originality and creativity for works such as visual art, music, software, etc. Your next question may well be: how MUCH creativity and originality is sufficient to squeak by to a registration?
This dilemma often arises with what I refer to as a “borderline work.” A great example of a borderline work is a logo, or short word phrases, with a fanciful flower design associated with the words. Because short phrases and logos alone do not qualify for registration, then copyright eligibility is based solely upon the design element (in this example, a fanciful flower design. Solution? Instead of stewing over originality and creativity, your best bet is to add at least one additional design element to the originally filed work.
Returning to our example, you could add a second fanciful flower design to the originally filed word phrase with design. Keep in mind that the government non–attorney filing fee is only $35.00 (for electronic filing at the time of this writing). Consequently, even if your next application is again rejected for insufficient design, you can resubmit with even more fanciful floral designs or other designs. Why? Because there are no filing deadlines for copyright registrations; the work need only be sufficiently original and creative which is where we started with this discussion.
On the other hand, what happens when a patent application is rejected because an invention is not novel or sufficiently different from previous works? If not appealed, the application must be refilled with additional technical information to sufficiently distinguish it from previous inventions. The problem is that a filing deadline for this second patent application may have expired for reasons we need not address here. Furthermore, it becomes more likely that another inventor, who independently arrived at the same invention, may claim priority over the insufficient application. Such a situation may require a complex proceeding known as interference to determine who invented first. What a mess!
For works which qualify for both copyright and patent applications, which path would you take? To answer you must understand subject matter that qualifies for either path. Consequently, my next posting will differentiate works protected by United States copyright registration, patents or both.
© 2010 Adrienne B. Naumann, Esq.