Legally Brief™

COPYRIGHT PROTECTION – AUTHORS SEE THE DOUBLE EDGE OF THE SWORD (which is still not mightier than the pen/word processor)   

By Jane F. Collen

I had the pleasure of meeting author Gail Carson Levine at an Author’s Tea in Chappaqua NY.  We began chatting and I mentioned I was a lawyer practicing in the field of Intellectual Property – patent, trademark and copyright law, and Gail recalled her blog readers had a lot of copyright questions.  I quickly volunteered for the honor of doing a guest blog for Gail on two of my favorite subjects, which go hand in hand: writing and copyrights!

 COPYRIGHT PROTECTION – AUTHORS SEE THE DOUBLE EDGE OF THE SWORD (which is still not mightier than the pen (word processor))

             The right to a limited protection of the fruits of our creativity is so fundamental that it is guaranteed by our Constitution.  This blog is meant to serve as a primer on how to capture those rights bundled into Copyright, without inadvertently trespassing on anyone else’s rights, and does not serve to provide legal advice.


            Beginning at the source, Article 1 Section 8 states “Congress shall have Power. . . To Promote the Progress of Science and useful Arts, by securing for limited Times, to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries. 

            In order to be protectable by copyright, a work must be an original work, fixed in any tangible medium of expression.  The protection covers the work – whether it is a novel, a picture, a photograph, a motion picture, a dramatic work, a dance, sculpture, music, sound recording or architectural work—it does not cover the idea behind it. 

            There is no way to protect the idea with a copyright. (That is the job of patents – a much more complex form of protection.)  We can protect what we call it, how we present or perform it, how we write about it, how we manufacture it, but we cannot protect the idea.

            Therefore, sometimes it is not easy to establish if the work is an “original work of authorship”.  To be original, the work must be produced by “the author’s own intellectual effort,” as opposed to merely copying a preexisting work.  But it does not necessarily have to be novel; it just must have an appreciable amount of creative authorship.  Usually, however, the level of creativity required is exceptionally low.   You can’t protect a one word “composition” or a short bumper-sticker phrase. But just about anything else you write will be original, as long as you’re not copying the writing of someone else.  The best example of work which may not qualify for originality purposes may be just compiling a list, for instance. As the courts see it, “the sweat of the brow” that you put into your work won’t necessarily make it original.  But writing just about anything in your own words satisfies “originality”. The gamut of protection runs from courts finding a compilation of non-protectable facts is copyrightable if it “features an original selection and arrangement of facts” to finding even an original expression not protectable “when there is essentially only one way to express an idea”.

            Copyright protection actually conveys more than just one right.  The author has the right to reproduce her work, prepare derivative works, distribute copies of the work to the public (by sale, or lease, or rental or lending), perform the work publicly, display it publicly and perform it publicly by means of digital transmission.  As you can imagine there have been all kinds of lawsuits concerning the definition and extent of these rights.  The Copyright Law was recently revised (1998) to make the rights clear in the digital millennium.  In fact the revised law is called The Digital Millennium Copyright Law.  (Our forefathers did not foresee ebooks – as omniscient as they seemed to be.)


            “For how long do these rights last?” you ask.   For works created on or after January 1, 1978 for individual authors, copyright protection lasts for the life of the author plus 70 years.  (This term was just recently extended from author’s life plus 50 years by the 1998 revision).   For corporate authors, the term was extended to 120 years after creation or 95 years after publication. 


            The author owns the copyright.  Simple, right?  Not so fast!  What about your web site that you paid a graphic designer to create copy and art for?  Do you own that?  Are you sure?  There is such a thing as a “work for hire” if someone is explicitly hired to prepare a work, then the employer, or person who hired the author owns the copyright.  But sometimes it is difficult to establish that the arrangement truly is a work for hire.


            A work for hire usually is defined as a work prepared by an employee within the scope of his or her employment; or a work specially commissioned for use as a contribution to a collective work.  Are you thinking author/illustrator?  Well, you are right, but unless the parities agree in a written instrument signed by each party that the work shall be considered a work for hire, the illustrator, even if hired by the author, probably still has the right to make derivative works and reproduce the illustrations apart from the published book.


            And to add to your agita, websites created by independent contractors are NOT considered works for hire, so if you don’t want anyone else to have the same logo as you and the same web design, you must be sure to require a written copyright assignment from your web designer.


            Gail Carson Levine recently featured an interesting audio clip from NPR about the fact that the song Happy Birthday still enjoys copyright protection.  Even though the music, originally composed by the Hill sisters who were savvy enough to obtain copyright protection, just recently went into the public domain, the words are still protected since the copyright was assigned to a publishing company.  Which leads me to my point – copyrights are transferable by written agreement. 


            These days it is possible to claim copyrights in a work simply by putting the author’s name and the date on the (ideally) first publication or public display/performance of the work.  Unlike the old days, it is not necessary to register the copyright with the Library of Congress.  But registration brings additional rights, and makes the copyrights more easily enforceable.  Hence the double edge sword – be careful where you garner your ideas and your material – there are only limited circumstances that allow you to use copyrighted material without permission of the author, like for educational purposes, news, or parody.  You cannot use any copyrighted material for your own economic benefit.  The simple rule: Always make sure your work reflects your own creative intellectual effort.                                       

                                                                          ©Jane F. Collen October 2011.






Where is Location, Location, Location in the Virtual World?

 Jane headshot   

By Jane F. Collen




Lawyers Loosen UP!

Location, Location, Location” is no longer the key ingredient for success in business, or a career. Telecommuting is a recent but very real part of some legal practices these days.

Oh sure, there are still a large number of staunch old firms that cling to only using physical paper files, limit employee and even attorney access to the internet and have no electronic video teleconferencing capacity.  But I am lucky enough to be one of the founding partners in an IP law firm that protects these wonderful inventions and has been one of the forerunners to implementing their use in our practice.

Yes, that is right.  I amazed a competitor colleague way back about 15 years ago when our office first went paperless.  I explained to him how we scanned in all the mail, and then matched it to an electronic file, and that the paper was then recycled, except for any document where an original signature would be needed.  The older gentlemen thought I was pulling his leg.  He could not imagine a legal world without volumes of papers kept in rows of files in dark and dank basements.  “But how do you find it again?” he muttered to himself.   “It took a bit of adjustment,” I confirmed, “but now files are accessible from anywhere, by multiple users. . .” I trailed off, he was muttering to himself, “impossible” and his eyes had glazed over.

But my partners had had vision.  They saw that this technology was the wave of the future, and rather than shying away from change, we embraced it.  Businesses all function the same way, even law businesses: if you are not moving forward, you are losing ground.

At first it was hard to wean ourselves off paper completely; we found most attorneys printing out copies of documents forpaper ease in editing and drafting.  But in time we became adept at editing on line.  Now of course most attorneys could not function without red lining and sophisticated Word® software, dictation and secretarial typing is fading away.  We employ our PaperCut Protocol® to ensure that we don’t print out copies just to be discarded.  We reuse paper for printing out drafts, we use recycled paper (clean new paper made from recycled paper) whenever possible and we recycle all of our discarded paper, even though anything confidential requires shredding.

And now fifteen years later, this is more the rule than the exception: even some of the dinosaur firms are jumping on board.  We now would not have it any other way.  I deal with the United States Patent and Trademark Office and they now prefer electronic submissions.  We no longer have to file “certified copies” and originals, we must simple file “true copies”.

We have moved on to actively implement new changes, continually adjusting our policies to accommodate our technology. Our thrice weekly meeting of all the attorneys in the firm routinely incorporates our audio and video call in capability.

We were shocked when an attorney who had left us do to a relocation to another part of the country complained that her new, multi state, large law firm only had paper files, and if she wanted to work on a matter that originated in a different office, she had to wait for them to mail the file!

We now ask clients to specify – do you want us to generate paper, or do you prefer exclusively electronic communications.

And the best perk of all this push to paperless-ness and calling in?  Virtual presence.  An attorney can access the files s/he needs from anywhere.  This enables us to access a document in meetings outside the office or in court.  But more importantly it enables us to work from any location.  We have a few attorneys who live in different states than New York (where our firm is located).  Many days they are able to telecommute.  We have had several attorneys, who for family reasons, have had to temporarily relocate, and they telecommute to work from several states away on a daily basis.

Even the United States Patent and Trademark Office has telecommuting Examining Attorneys.  In fact over 64% of their staff telecommute daily, with a requirement to be in the office at certain prearranged times.

So take heart.  Although it is sometimes surprising how firms stick to traditions, most firms have either chosen to or been forced to adapt to the way technology has entered into the legal profession.   Of course you have to check the ethical rules in the state in which you are admitted, but technology has made it possible to practice with a firm in a state even if you are not living there.  Not only are there the more traditional opportunities of employment with a firm with multi-state locations, new opportunities to telecommute should only become more prevalent.

 Jane F. Collen is of counsel  at Collen IP, a New York based law firm specializing in Intellectual Property,


Secrets of Successful Entrepreneurs: Passion and the Right Business

By: Susan G. Parker, Owner of Corporate Content, Inc.

 Maybe you’ve always had the desire to own your own business. Perhaps, like Donald Trump, you had a parent who set the example and you want to “super size” it. Or maybe a job lay-off or disappointing career realities have caused you to re-think what you want to do with your life.

 No matter how you get to the starting gate, successful entrepreneurs all have three things in common:

  • Passion for what they do
  • Commitment to do what it takes to succeed
  • A business idea that aligns with public demand

Whether you shoot out of the starting gate or start slow and pick up speed, these ingredients are critical to become a successful entrepreneur.

Put Your Heart in Your Game

 Imagine you’ve dreamed of climbing Mt. Everest and you finally get the chance. You eagerly plan out the backpack you’ll carry, the gear you’ll need, and every detail of the excursion you can’t wait to make.   Now imagine instead that you are not a nature person, and not a fan of physical challenges and you’re told that you have the “great opportunity” to climb Mt. Everest.  See how different that feels if your heart isn’t in it?

 Your heart being in it is the big difference between entrepreneurs who make it and those who just seize an opportunity without passion behind it. There’s a big difference between knowing you can do something and wanting to do it.

 Consider the story of Charlie K., who was laid off as part of a reduction in force after 18 years at a Fortune 500 company. For many of the years, as an employee, he complained about how poorly things were run and how he could do things better. He marveled at how the company stayed in business with its wasteful ways and poor management.

 With his generous severance package in hand, he decided to put his money where his mouth was and run his own business. He purchased a pack and mail franchise and welcomed the good life of being his own boss.  Within 2 years he was miserable. Why?

  • He discovered he wasn’t a “people person” so the customer service aspect of a small store was rough.
  • The long fixed work hours of a retail business proved too much.
  • He didn’t have a passion for the work.

After years in a corporate setting, Charlie focused on proving he could run a business well, rather than what made his heart sing. The good news was that he ran the business well; the bad news was he didn’t like doing it.

Hot Sectors to Consider

 As you consider where your passion lies, make sure your vision is broad enough to include a product/service for which there is a demand. Take a good look at the world around you, the marketplace and what people buy and sell and make money on.  We live in a time of great change –with the global marketplace, the advent of online marketplaces and the changing needs and wants of our society. Ten years ago kids wanted cabbage patch dolls, not Xboxes.

 Do your homework on what is considered “hot” in your industry or geographic area as you select your entrepreneurial venture.  According to a recent article in Entrepreneur Magazine, following are currently hot sectors.  See if they resonate with you.


  • Real Estate (even in a “slow” market)
  • Anything to do with “Seniors”
  • Organic Foods and “Green” Products
  • Pets


Being an entrepreneur lets you forge your own path.  But whether you’ve always had an itch to run the show, or a recent job lay-off has got you thinking, make sure you’ve got passion behind what you do.  Success may be some steps away, but it’s easier to achieve for something you really want.

Asset Protection Basics: What Every Entrepreneur Should Know

By: Susan G. Parker, Owner of Corporate Content, Inc.

 Asset protection is a shorthand expression for protecting your wealth through legitimate means. It includes everything from saving on taxes and using the right business entity, to more sophisticated techniques such as establishing trusts to shield assets from unnecessary risk, such as lawsuits. If you have something to lose, it’s something you should look into.

 For business owners who conduct their business as a corporation, LLC or other separate legally formed entity, usually the business form itself shields the owner’s personal assets from liability. In other words, only the assets of the business entity itself may be at risk if there is an unhappy creditor or lawsuit.  For businesses conducted as sole proprietorships, without the layer of corporate protection, however, your personal assets are at risk. For all business owners, a basic understanding of asset protection is  important.

 Assets Held in Your Own Name

 Many assets that are held in an individual’s name may be automatically protected from the reach of creditors by state laws which provide protection from creditors for things like: one’s primary residence (homestead), pension plans, IRAs, college savings plans and insurance policies. However, not all states afford these protections and the degree of protection varies from state to state. 

 For example, in Florida, a person’s home cannot be reached by business creditors because of “homestead” protection laws. However, these protections do not exist in New York and even your personal residence can be subject to a lien by your business creditors in certain situations. By managing your affairs with asset protection in mind, you can avoid problems down the road.

 Common Problems in Asset Protection Planning

The goal of asset protection planning is to avoid the erosion of wealth from scurrilous claims, unnecessary expenses and needless confiscation.  Often it is only when things go wrong, that flaws in protection plans are revealed. Following are common problems that are encountered in asset protection plans:

  • Inadequate Personal Insurance Coverage: It is important to carry sufficient insurance to cover claims that can be covered by insurance. Keep in mind, insurance cannot and does not cover all things that can go wrong. Surprisingly, many people do not carry enough personal coverage for their:
  •  Cars
  • Rental properties
  • Homeowner’s liability
  • Umbrella liabilities policies to cover catastrophes not covered by automotive, homeowner’s or other insurance.

 If a claim is settled outside the policy limits, other personal assets are at risk unless protected from creditors.

  •  Confusion Over Title to Assets:  Assets held in one’s individual name are unprotected unless protected under a state law.  If property is held by a married couple as “tenants by the entirety” it generally cannot be reached by creditors. However, if a married couple merely owns as “joint tenants,” the asset can be reached if the same creditor sues both spouses.
  •  Poor Coordination of Estate Planning/Asset Protection Arrangements: It’s important to get a qualified expert to properly advise you about how to make sure your assets go to your intended beneficiaries and not to creditors! Common problems include:
    • Putting an asset in a family trust that pays all income to the spouse. If the trust doesn’t have so-called “spendthrift” provisions, which stipulate money can be paid only to the spouse, creditors may have access to the funds.
    • Life insurance is not creditor proof in all states. If you leave a policy to a loved one, and it is not creditor proof, the creditor can get the funds.
    • Homestead exemptions are capped and your home is worth more than the cap, or is jointly owned by someone who is not protected by the homestead exemption and has creditors.

 Easy Asset Protection Ideas

 It’s important to not have title to all of your assets in your own name if there is concern about creditors.  If you personally sign or guarantee business loans or financing, and your personally owned assets are not protected, they are likely at risk if things don’t go as planned.  Assets held by certain entities are tougher to reach by creditors. Talk to an expert about the role of the following in your asset protection plan:

  • Asset protection trusts
  • Limited liability companies
  • Joint Ownership with Spouse
  • Maximizing asset protection exemptions afforded by your state’s laws for home, pension, insurance etc.

 Other asset protection techniques that are relatively simple to implement include:

  • Carrying “umbrella” insurance protection coverage to shield you from personal-injury claims which exceed the limits of your homeowner’s or auto policies.
  • Maxing out your contributions to retirement and 401(k) plans.
  • Using accounts receivable financing (bank loans collateralized by accounts receivable) to the extent possible. The debt makes these assets less appealing to creditors.

When it comes to asset protection planning, it’s important to put these things in place long before the creditors are at your door. By then it’s often too late.

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