Response to a Higher Ed Communications Listserv Question

I posted this this morning in response to a question on a Higher Education Communications Professionals Listserv….  I thought it would be helpful here…

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Trademark is about marketing – it’s about protecting the brand equity and good-will and investment in an “indicator of source” in a particular market. The goal is to protect consumers from confusion as to the source of the product or service.

To make a long story short – it’s a subjective question.  A “merely descriptive” statement like “educating tomorrow’s leaders” CAN eventually become an indicator of source if you can prove the slogan is actually associated with your institution in the marketplace. We call this establishing “secondary meaning.”  Accordingly, “Explore. Experience. Excel” is more “arbitrary” when connected to an institution, and easy to qualify as a trademark right from the start.

Higher Education is about differentiating your product.  In some ways, it’s harder than most consumer-goods branding because, in many cases, higher education is a seen as a commodity – like bread or beer, and the only way to truly distinguish your school from others is by:

1.  Actually having a different product (programming). That’s hard due to the nature of accreditation, and the culture of higher education itself.
2. Communicating the few actual differences you DO have effectively.
3. Becoming memorable based on those distinctions.

Obviously, there are whole books written on the subject of TM, going into all the fine distinctions between different situations. I’m not going to cover all of that in this, or any other, email.

The important thing is to come up with something that’s truly original, register it (you can file an “intent to use” registration before the slogan shows up in the market), and then USE it.

Stories

“The most powerful force in the world is the feeling that one is not alone.”

Last night Abra and I attended the live series finally of our local radio theatre group Rabbit Hole Theatre (http://www.rabbitholeradio.org/). The program was the last in their series “Mythologica,” which consisted of several episodes of the myths at the core of several cultures around the world.

Two lines stood out and made me think:

“The most powerful force in the world is the feeling that one is not alone,” and

“Our stories are what bind a culture together.”

When you think of those two statements together, it’s easy to understand the power of family, religion, patriotism, community, class, and even rooting for your favorite sports team.

Creative people have the duty to preserve, present, capture, and refine those stories. That’s why I love working with creative people – they always have a home.

Copyright Ownership and Transfer

Ownership vests in the creator unless transferred in writing.

I’ve been involved in several discussions just during the last week concerning who owns the copyright of a piece of creative work. The discussions have taken place primarily in the context of graphic design of a brochure, so we’ll go with that, but the concepts transfer easily to other commissioned work.

First, ownership vests with the creator of the work at the instant the design becomes a “tangible” expression of the idea (digital files are “tangible” for this purpose). In the case of a graphic design, then the designer owns the copyright UNLESS:

1. The work was created by an employee in the scope of the job, thus the designer on staff at the design studio does not own the work, the design STUDIO (the designer’s employer) owns the work. It’s a bit confusing in the employment situation because legally the employer CREATED the work rather than the employee, so the employer does not need a separate writing for each piece of work created by an employee. Just think of the paperwork! The only exception to this is that tenured university professors own the copyright on their articles – even if created “on the clock” as part of their job. I guess it helps to have a former professor as judge when you’re a professor litigating to retain ownership of your articles!

2. The work was created as part of a “work for hire” contract (where those words or words that mean the same thing) are used in the written contract. Note, there can be no effective “work for hire” oral contract – because copyright only transfers via a writing.

So, if you’ve contracted with an independant creative person to do some work for you, that person owns the copyright on the work (even after you’ve paid) unless they have specifically transfered the copyright to you in writing. The copyright and the physical work are “separable” – thus something like a painting or a sculpture can be sold and resold, with the copyright always remaining with the artist by default unless transferred in writing or created within the scope of full-time employment.