Jean Perwin: Creative Legal Genius

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| August 22, 2007

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Jean Perwin

Jean Perwin is a Miami based attorney who specializes in Intellectual Property Law, Entertainment, and General Corporate Law. She is most recently a recurring author for Notes on Design, and has a just launched a new series of informational posts to answer all your burning trademark/copyright questions. For those unfamiliar with the genius of Jean, we asked her ten questions ranging from the widest-held copyright hooey to the reason she likes working with people like you.

Q: What do you wish designers knew about the service you provide?

Jean: I think designers tend to think that lawyers are too expensive; that they can’t afford them. But, the truth is that for the type of work designers generally need—a template agreement or registrations—it’s not that expensive and often it can save money and problems in the long run.

Q: Does every design practice need a lawyer?

Jean: I think every design business needs some legal advice especially when getting started. And it’s a good idea to have a relationship with a lawyer who you like and who you can call on when problems come up.

Q: OK- now some quick and dirty definitions for those too shy to ask themselves: patent, intellectual property, copyright, and trademark.

Jean: Intellectual Property refers to anything that is created as a result of the creative process. Patents, trademarks and copyrights are forms of intellectual property protection and they each protect different aspects of intellectual property.

A copyright is the ownership right created whenever you create a work in a tangible medium. It consists of five rights that the copyright owner owns and controls—the right to make derivative works, the right to reproduce the work, the right to display the work, the right to distribute the work and the right to perform the work. A patent is protection given to a non obviously original invention. A trademark is a name, logo, color, sound or combination that identifies goods or services in commerce. There is no difference between a trademark and a service mark. They are both trademarks. A service mark simply identifies a service as opposed to a product.

Q: What is interesting/special about working with artists and designers that made you choose this specialty? Are there particular strengths that designers can utilize when it comes to taking active control of their intellectual and creative rights?

Jean: The thing I like best about this area of legal practice is that you are often at the edge of the legal envelope. Since technology is always way ahead of the law, we have to try to figure out the best ways to protect our client’s work when the legal tools have not always been fully developed yet. Designers and artists are almost always in that category—using all the new creative tools available to come up with new and different images and projects. I think getting educated about the ways that the copyright law is designed to help designers profit from their work is the best way to become more effective at controlling and exploiting their work.

Q: What’s the most common legal battle you see designers involved in, and how can it be avoided?

Jean: The most common thing I see happen is designers who don’t protect their copyright rights BEFORE they get involved in work for a client who then uses it without paying for it or uses it in ways that were not contemplated by the original agreement. The best way to avoid it is with a template agreement used for every client which contains all the terms and conditions that make it clear which rights are transferring and which additional usage require additional payment.

Q: So what is the one thing you would tell designers BEFORE they begin a project?

Jean: Have an agreement that makes clear what rights the client has and what rights the designers are reserving to themselves.

Q: You recently spoke on a panel at the annual HOW design conference in Atlanta about the ‘do’s and don’ts’ of copyright and trademark in the age of the Internet. How has the Internet changed the way designers need to approach copyright and trademark, and what tips can you offer in this regard?

Jean: The internet and technology in general has made copying so much easier that protecting your work while taking advantage of the internet for ideas, information, marketing, selling and communicating is increasingly complicated. But there are things that can be done to take advantage of the legal protection that is available. As we talked about at HOW, trademark registration has become much more important as a way to protect websites and domain names. With a federal trademark registration, you can stop users of confusingly similar domain names. Without it, it’s much harder.

Q: One designer (or company) may create lots of different ideas, projects and tangible results. Does the process for protecting your rights and ideas change across medium?

Jean: No.

Q: It seems to me that being a freelancer and working in a company would call up different legal issues—for instance, freelancers have to cover their own backs, but employees have to make sure their ideas are credited as their own. How do certain legal issues (such as copyright and trademark, but also contracts for work and payment) differ between freelancers and in-house/small business designers?

Jean: The biggest difference between in-house designers and freelancers is the ownership of their work. Under copyright law, if you are an employee of a company doing design work, all of your work belongs to the company as work for hire. You essentially have no rights in it at all. The only way to change that is through an employment contract which either excepts certain things from work for hire or authorizes you to use your work in certain ways, for example for portfolio use.

Freelancers have the opposite problem. They retain all the rights to their work except those that they transfer—in writing—to their clients. So very often, a freelancer will work for a client and the client believes that because they paid for the work they own it. But they don’t. They only own what is transferred to them in writing. That’s why contracts are so important for freelancers.

Q: What are the most prevalent copyright/trademark myths that designers need to be familiar with? For instance, lots of people believe that if you print out a design and mail it to yourself, you have “copyrighted” it because it is postmarked – is that true?

Jean: I wrote a column for HOW many years ago called Top Ten Copyright Myths, and a recent update for this blog. It was one of the most popular columns because the myths were so prevalent—and, unfortunately, still are. The mailing yourself a copy of the work is a really old one and absolutely a myth. It gives you no copyright protection at all. Another one is that you don’t have to put copyright notices on your work anymore. This is not true either. A copyright notice (© your name 2007) should always appear on your work.

Read more from Jean on legal, copyright and trademark issues here on her most recent ‘Ask Jean’ Q&A column.

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