My most recent articles addressed patent and trademark/service mark retainer agreements between the client and the intellectual property attorney. This article addresses several important points that United States copyright registration application retainer agreements should include.
As with the trademarks and patents, the copyright retainer agreement should clearly and explicitly state the attorney fee, government fee, and costs for drafting and filing of the copyright registration application [hereinafter application]. For example, is the attorney fee hourly or flat? Is there an initial deposit requirement for fees, and if so is the amount of deposits provided? The agreement should also state whether the fees include follow up in the copyright office if the application is within the copyright office for more than six months without a communication about registration. This follow up generally requires at least a certified letter to the appropriate copyright office division, such as for literary works or visual arts.
In many cases follow up will also require subsequent e-mails as well as telephone conferences. These additional activities may require considerable time over the drafting and filing process, as well as additional expenses such as postage and long distance telephone line charges. In other instances, a copyright examiner will contact the attorney by e-mail if there is an ambiguity in the application or another matter that requires modification.
The agreement should also state whether the attorney fee includes written correspondence, telephone conferences or office visits between the attorney and client, or perhaps the attorney, client and third persons. As with the other retainer agreements, the copyright retainer agreement should explicitly explain the circumstances by which the client is entitled to a return of fees. These circumstances should be consistent with the jurisdiction’s law which determines when such fees must be returned.
For matters specifically addressing copyright, the retainer agreement should confirm whether the client is the sole author and/or owner of the work that is submitted for copyright registration. For example, for a literary work such as a manuscript is there more than one person that contributed text? If so, there may be a co-authorship issue. Is there more than one person who owns the copyright to the manuscript? For these questions, the informed intellectual property ‘consumer’ must understand that authors of copyright eligible works are not necessarily the copyright owners of those works. This very important legal distinction makes all the difference for persons or entities entitled to financial compensation from proceeds of the manuscript.
The retainer agreement should also “come clean” and explicitly inform the potential client that there is no guarantee that a work will obtain U.S. copyright registration status. This information is important because many persons assume that when they submit the application, they will automatically obtain registration. Clients should also know that if someone copies their registered work, then it is the client’s responsibility to bring the unauthorized copying (infringement) to the attention of the judicial system.
©2012 Adrienne B. Naumann
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