On Being Nice

Last week, I wrote this article about ways to fight back against infringers that didn't require commencing a lawsuit. It was well-received and widely read. In that article, I threw in a blurb describing why you should be nice to your adversaries and how doing so could lead to a better legal outcome for you. To my surprise, I got a lot of pushback on that. Several readers found the advice to be downright controversial. Their general view was "I'm the victim, so why do I owe it to someone who stole from me to be nice?"

It's a legitimate point and hard to argue against. But I'll try anyway.

From my seat, being nice makes practical sense. Judges and juries are people too, and like us mere mortals, they're susceptible to all sorts of biases. And since these are the people who will determine your legal fate, you want them to LIKE YOU. Making an effort to show magnanimity in light of your victimization can do just that. It's really that simple. "But Greg, it shouldn't matter if I'm likable. The judge and jury have a civic duty to do justice even if the victim is a jerk." Yes, absolutely right. Except the law is never as one-sided as it appears from your side. While you may feel victimized, it may in reality be a gray area. Most cases fall closer to the middle than any one side, which is why your appearance, your attitude, and your facial expressions may be enough to sway a jury your way (or not).

I'm not saying you have to be friendly to your adversary. I'm not saying you need to walk over to him in front of the jury, shake his hand, and call him your mate. But neither should you rail against him, call him names, and undermine him. Let your arguments stand on their own without interference from your emotions. You can - and always should - be direct in your dealings when it comes to legal matters, but that doesn't preclude being nice either. In a legal setting you will be adversaries, but that doesn't mean you need to be enemies as well.

Here's another reason. We have a real kindness deficit in this country. American culture is adversarial by design (our government and judicial systems were built on principles of adversity, as juxtaposed with the British system, which is inquisitorial) and when it goes unchecked, it can make us meaner, less trusting, and more litigious. It can lead to situations like one I experienced today. A young Hispanic man approached me while I waited for my train at Back Bay Station in Boston. He smiled and introduced himself in broken English. He showed me his cell phone and told me it wasn't working, and he began to ask if he could make a call on my phone. Before he finished his statement, I pointedly told him "No!" It took him a few moments to register my denial and he sputtered out a few more words before looking dejected and shuffling off to ask someone else for help. Before he left, he meekly thanked me for my time.

I was immediately crushed by how casually cruel I had been. I shut him down before he could even ask for help... how easy it was for me to be so dismissive and disrespectful to someone I didn't know. And the more I thought about it, the more I realized that none of my rationalizations withstood any kind of scrutiny. Yes, I didn't know him. Yes, I didn't trust him. Yes, he might have stolen my phone. But so what? I can afford a new one. I can easily wipe the memory of the old one from my computer so sensitive data couldn't be accessed. Assuming I was right to distrust him, what was I was protecting anyway? I was so disrespectful to someone I had just met, imagine how effortless it would have been if I had actual animosity towards him.

Being nice takes work, it takes effort. It's especially hard when you think someone has wronged you and your instinct is to treat them like the worst rat bastard that ever lived. I ask you to take the higher road; don't act like I did today. Be the better person and treat your adversary with respect. That's how you win allies in and out of court. BE NICE. Because even if you lose your case, you can at least walk out of that courtroom with your head held high.

Ask Greg: Why You Don't Need To Register Your Copyright or Trademark Even Though You Should

I get lots of questions from artists with legal conundrums. Lots. And most of those questions tend to be variations on some common theme. So when I notice a pattern emerging, I'll wait for a bunch of similar questions to build up and then do a blog post on it - usually framed around an interesting new story, personal experience, or some other flight of fancy. Sometimes I'll discuss it in such a way that the question I'm answering is buried in the overall telling, that way it's not obvious that I'm addressing an issue that several people are facing. The question I'm answering today is a little different though, since it may in fact be the most asked question I receive. So instead of addressing it in conjunction with some framing device, I'm just going to attack it head on so there's no ambiguity. And if you like this no-nonsense approach, let me know in the comments section and I'll make Ask Greg a recurring column.

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Q: When should I copyright my work?

A: Never. Never ever. Let me say this as clearly and as loudly as I can: you never need to copyright your work because under U.S. Copyright Law, copyright attaches to the work automatically from the moment the work is "fixed in a tangible medium of expression." That copyright is there to protect your right to own and exploit the work and it exists independently of any other considerations: you don't need to tell anybody that the copyright belongs to you and you don't need to attach the famous © symbol. You don't even need to sign your work (although you should absolutely do all those things anyway). There. Question answered, your job is done.

Okay not really. Because this question isn't really asking whether you should copyright your work, it's asking whether you should register your work. And that is a wholly different calculus. I've talked in the past about where you should register your work (the most common is the U.S. copyright website) and how you can get that registration, so I won't go into that again here. Instead, I will tell you why registration is worth it, even though you don't have to.

Why You Don't HaveTo Register Your Work

Because Copyright Law already protects your ownership over the work. The law doesn't stop working for you just because you elect not to register your copyright with the government. Also, registration fees can really add up since each piece of work must be registered individually. So the more art you create, the more expensive it will get for you to register your art. Someone asked me last week if they could batch register a group of works at the same time. The answer is no, unfortunately. Registrations protect individual works of expression, so unless the separate pieces are meant to be viewed as part of a whole (i.e. short stories in an anthology), they have to be registered solo.

Why Registration Worth Is It

Well first off, if you decided to sue someone in for infringement - i.e. someone uses your work for profit without your permission - you will have to register the work with the Copyright Office before you can bring the lawsuit into court (it's cheaper to register online). So frankly, having that registration beforehand is just easier. But beyond that, registration is a great way to protect your copyright because it creates an official government record demonstrating when your work was created. They even send you a fancy registration certificate for your records. So if you do eventually sue someone for infringement, that registration is proof that your work preceded the infringing use. Of course, having a copyright registration isn't the only way to prove that your work came first... but it is the best way by far. That's partly because as an official government record, copyright registrations are granted a lot of authority in a courtroom setting (government documents are self-authenticating, which means your lawyer doesn't have to prove that the registration is what it claims to be. This, by the way, is good deal for you - the less time your lawyer spends proving a document's authenticity means you're spending less on attorneys fees).

You can read all about registration procedures and a few other benefits here if you're so inclined. The basic gist is that registration isn't really necessary most of the time unless you need to sue someone. Think of it this way: Copyright registration is like auto insurance. You may never need it, but if you get into a car crash, it'll save your butt. That said, if you don't register your copyright but you do suffer from infringement, there are still all sorts of ways you can go after the infringing party - cease and desist letters, DMCA takedown notices, and demands for licensing fees, among others.

Added Bonus: What About Trademark Registration?

While Copyright Law protects works of artistic expression fixed in a tangible medium (i.e. art), Trademark Law protects any word, name, symbol or device, used by a person in commerce (i.e. a logo you use in business, your company name, or even a catchphrase). Trademark registration shares many of the same characteristics as a copyright registration - the main difference is the manner in which the work gets infringed.

Similarities: Just like copyright, you don't need to register your trademark in order to have protection under the law. Once you start using a trademark in commerce, it will automatically have some level of protection against infringement. If you do decide to register your mark with the U.S. Patent and Trademark Office (USPTO), it will requires a fee and you'll get a tony little certificate of registration indicating that there is now an official government record of your trademark.

Differences: Unlike copyright, if you don't register your trademark with the USPTO, the protection you'll have over your mark will be regional only - an official registration gives you nationwide protection (for example: I start a company called "Greg's Beets." If I register my company name, then anyone in the country who uses that name could be subject to a trademark infringement lawsuit. On the flipside, if I don't register the "Greg's Beets" corporate name with the USPTO, my mark will only be protected within the state). If you want, you can actually register your mark directly with the state as well: the USPTO website has a page devoted to all the state sites where you can register your mark. Most registrations have to happen with each state's Secretary of State.

One Last Note About Symbols

When you have a piece of copyrighted art, you are allowed to use the © symbol whether or not you choose to register with the Copyright Office. The © is a gift and you should absolutely use it at every opportunity because it signals to the world that your work is protected (a lot of people assume that if the © is missing, the work is not copyrighted; even though that's not true, don't give them the opportunity to think that).

The same applies in trademark situations: You are allowed to use the ™ symbol even if you don't register your mark and your work is protected whether or not you use it. But as with the ©, you should still use it. The ™ indicates that you intend to use the mark in commerce. It's just good business to get in the habit of putting a ™ on your trademarks.

That said, do not use the ® symbol without officially registering your mark with the USPTO. That mark is reserved squarely for marks that have been registered and use of it could result in a fine of some kind.