Do I have Copyright Protection Even if the Application is Denied?

[R92024]

Hi,

I have a Design Patent that was granted in 2007, and has 2 years left to run.

I also applied for a Copyright back in 2004, which was rejected by the Copyright office... but I have their letter, and a copy of my application, including the artwork I submitted.

The artwork is exactly the same for the Design Patent and the Copyright application.

So, if necessary, I could prove in a court that I submitted that design in 2004.

Does that effectively give me legal protection of my design?

And does it mean that, although my Design Patent expires in 2 years, I still have protection?

The design has been used in commerce (which I can prove).

Many thanks for any input.

 

[FlyingRon]

Patent and copyright protections are two independent entities. They have different requirements and provide different protections.

You don't have to "apply" for copyright. Original work is protected by copyright as soon as it is expressed in tangible form. You can REGISTER the work which gives you additional rights (like access to the federal courts). Why was your registration denied?

Use in commerce has nothing to do with either copyright or design patents. That's a feature that allows (possibly) trademark rights to develop.

 

[R92024]

The copyright application was denied "because it lacks the authorship necessary to support a copyright claim."

But the Design Patent was granted... seems contradictory to me, which is why I feel it may be worth another copyright application.

I am hoping to sell, or license, the concept to a corporation, so before approaching them, I'd like to have as much legal protection as possible.

 

[quincy]

The copyright application was denied "because it lacks the authorship necessary to support a copyright claim."

But the Design Patent was granted... seems contradictory to me, which is why I feel it may be worth another copyright application.

I am hoping to sell, or license, the concept to a corporation, so before approaching them, I'd like to have as much legal protection as possible.

If you were unable to register your design with the US Copyright Office, your design was either not original to you or not very creative.

Could you please describe your design patent? Thanks.

 

[R92024]

Thanks for your reply, Quincy.

I have a Design Patent on the appearance of a clockface - it's basically a traditional clockface, with a specific design on it.

My design was considered original by the Patent Office for them to have issued the Design Patent. And they, I believe, make a far more thorough search of other similar patents. I'm not sure that the Copyright office actually look at other artwork.

I spoke with an 'Information Specialist' at the Copyright Office today. They agreed that the person in their office who denied the application back in 2004 made a 'strange' decision - in other words, implying that they were wrong to deny it.

The reason it was denied was because my design only contains one word, the rest is an image.
As the Information Specialist said, they should have looked at the overall image, not the fact that there was just one word on it.

The Information Specialist said it was worth reapplying, although she said the fact that I had the denial letter would also be proof that I at least had the design back in 2004. Interestingly, she did not say I should appeal the decision (although, of course, they're not giving actual legal advice).

 

[quincy]

Thanks for your reply, Quincy.

I have a Design Patent on the appearance of a clockface - it's basically a traditional clockface, with a specific design on it.

My design was considered original by the Patent Office for them to have issued the Design Patent. And they, I believe, make a far more thorough search of other similar patents. I'm not sure that the Copyright office actually look at other artwork.

I spoke with an 'Information Specialist' at the Copyright Office today. They agreed that the person in their office who denied the application back in 2004 made a 'strange' decision - in other words, implying that they were wrong to deny it.

The reason it was denied was because my design only contains one word, the rest is an image.
As the Information Specialist said, they should have looked at the overall image, not the fact that there was just one word on it.

The Information Specialist said it was worth reapplying, although she said the fact that I had the denial letter would also be proof that I at least had the design back in 2004. Interestingly, she did not say I should appeal the decision (although, of course, they're not giving actual legal advice).

Without seeing the design, I can't offer an opinion as to why your design was ineligible for copyright protection.

A clockface on its own would (generally) not have original or creative elements enough to qualify for copyright protection.

If you sell your clocks and the design distinguishes your clocks from all others, you might look into trademark protection.