Practice Areas

Copyrights, Trademarks & Confidential Information

Copyrights, Trademarks & Confidential Information

Copyright Protection

Protect Your Business and Original Creations

Throughout Maryland, Northern Virginia, the District of Columbia, Montgomery and Prince George’s Counties, Attorney Barbara Berschler counsels business owners, non-profits and individuals interested in the protection of their own copyright works as well as the proper use of the copyright protected works of others. In the case of copyright related issues, Barbara Berschler knows how to protect a client’s rights in copyrighted works, how to defend against infringement claims, and how to comply with the requirements of the Copyright Act and Digital Millennium Copyright Act (DMCA). The explosion in the amount of content being generated and disseminated by digital media, along with the concomitant ease of copying it, with or without permission, makes it all the more important to work with a copyright savvy lawyer. Barbara Berschler provides a broad range of services that enable her clients to face the many challenges associated with the ownership and use of copyright protected works.

If a client’s United States Patent and Trademark Office (USPTO) trademark application is challenged by an Opposition filed with the Trademark Trial and Appeal Board (TTAB), Ms. Berschler will be there to seek resolution of the dispute with the Opposer in a smooth and cost-effective way. Similarly, if procedural questions arise, Ms. Berschler is versed in methods to address them such as by conferring with the examining attorney or by filing a Petition with the Director of the USPTO., the person who has the overall responsibility for the administration of the Office.

Frequently Asked Copyright Protection Questions

What is copyright protection?

Under federal law, if you have created an original work of authorship, such as a novel, drawing, or song, and fixed it in a tangible medium of expression (for example, wrote the work on paper, took a photograph of it, or made a recording), you probably own the copyright in the work. I say “probably” because you must have created the work and it must possess a level of originality. That means that you did not just make a list of names and put them in alphabetical order.

What kind of works does copyright protect?

The general categories of subject matter which may be protected by copyright include: books, articles, compositions, plays, pantomimes, dances, paintings, drawings, sculpture, films, sound recordings, buildings.

What generally is not protectable under copyright?

Individual words, names and short phrases (slogans) are not protected by copyright. But they may be protected by trademark law, so be careful. Titles to works are not protected by copyright but may be by laws against unfair competition if the title is strongly identified in the public’s mind with the author.

Who owns the copyright in a work?

Generally, ownership of the copyright in a work belongs to the human being who initially created the work. However, if the person is by copyright when he or she created the work, most likely the employer laws against the copyright. This situation is known as a “work made for hire.”

What is a “work made for hire?”

A “work made for hire” is a special term defined in the Copyright Act. There are two possibilities. The first is a work that is created by an employee within the scope of employment. The second is a work that is specially commissioned and which falls within one of nine general categories specified in the law. These categories are: collective work, motion picture or other audiovisual work, translation, supplementary work, compilation, instructional text, test, answers to a test, atlas. In the case of a commissioned work, there must also be a written agreement between the author and the entity acknowledging that it is a work made for hire.

How long does copyright protection last?

All of the following time periods refer to works that were created on or after January 1, 1978. In the case of a work created by one human being, the copyright lasts for the life of the author plus 70 years. If more than one person was involved in the creation of a work, the copyright will last until the last of the creators has died plus 70 years. If the work is owned by a corporation or other entity because it was a “work made for hire,” then the copyright exists for 95 years from its first publication, or 120 years from its first creation, whichever situation expires first.

What must you do to own copyright in a work?

As the law now exists, you do not need to do anything special to have a work you create be protected by copyright. However, in order to make your rights easier to establish, should there be any problems, it would probably be wise to include a notice on the work that indicates you are asserting copyright protection. Frequently such a notice appears as follows: © + year of creation + name of the owner of the copyright. By way of example: © 2016 Barbara I. Berschler. It would also be a good idea to register the work with the U.S. Copyright Office, located in Washington, D.C. Registration within three months of publication gives you added protection if you have to sue someone for infringement of your copyright by allowing you to seek attorney fees and claim “statutory” damages, which may be easier to prove than actual damages.

What is the public domain for purposes of copyright?

In the context of copyright law, the public domain encompasses: facts, ideas, works for which copyright expired, works for which the owner has abandoned their copyright, and many federal government publications. If a work is in the public domain, it is available for anyone to use. We see countless books using classical works, like Shakespeare. No one has to ask permission or pay a fee. Likewise, people can develop derivative works based on public domain material without permission. An example of that is the musical “Westside Story” which was based on “Romeo and Juliet.”


Protect Your Brand

When planning to adopt a trademark or create a logo to enhance your brand, attorney Barbara Berschler gives her clients guidance in identifying strong marks which are more easily protected from infringement. If a client wants to register a trademark with the United States Patent and Trademark Office (USPTO), Ms. Berschler carefully explains and goes through the entire process with them so that the client’s goal can be achieved.

Whether an issue relates to the federal Lanham Act or to state and the common law, Barbara Berschler arms you with the knowledge and tools needed so that you can take appropriate action in the protection, defense and use of your trademarks.

Confidential Information

Trade Secrets In A Competitive Market

A business relies on its confidential information, also known as trade secrets, to compete effectively in the market place. The confidential information need not be new or extraordinary to qualify for trade secret protection. It is any valuable information you may have accumulated, discovered, developed or generated in connection with the operation of your business which is not generally known and for which you have taken reasonable steps to preserve the secrecy.

Confidential information can be your customer and supplier lists, business and marketing plans, price lists, software developed for you, internal procedures you have developed and techniques and systems. Not only do you want to be sure that your trade secrets remain secret when an employee leaves, but also when you enter discussions with suppliers, independent contractors, and potential buyers of your business.

Through her comprehensive review and drafting of non-disclosure agreements or NDAs that affect confidential information, Ms. Berschler looks out for her client’s best interests.