Applying the "Think Different" (a look back at the last three years)

It's pretty safe to say that no single company has ever inspired me more than Apple Computer. I have read (maybe) ten books in my life and Steve Jobs' biography makes that very short list. The first time I walked into an Apple store two things occurred to me; one, if there is a heaven this must be what it looks like, bright white, open and beautiful. The second thing that I immediately realized is, this place isn't just built for selling computers, but it was also built to sell their brand, the lifestyle and most importantly the human experience.

Three and half years ago Hero called a 250 square foot office on Main Street, "home". We were busting at the seams there, using a hallway for our poster inventory and printing our posters in a friend's basement, miles away. People would walk by and bang on my window, and proceed to yell to me that they wanted to come in, to purchase a poster. Although it was cool to sell our posters using the same system as a meth dealer, it was time for a change.

We needed more space, but we also needed more money for said space. It was time to get even more creative than we were already trying to be, but instead of being creative with a "Built To Spill" poster, we needed to be creative with our entire business. In times like those, I have to take a step back and look at everything I love and admire, and everything that inspires me, to see how I can apply it to my personal situation. I immediately thought about the Apple Store and thought, "WHAT IF?". The design industry for the most part is a closed door world, hidden away on the third floor of some office building. What if we took it to the street and opened the door? What if we invited other creatives or fans of creativity, into a space and offered them a chance to experience all things design? What If we applied what we had always loved about Apple and started to "Think Different" about our own little business?

Three years later, we're on the street level and we have had an open door that entire time. People have been able to come in, look over the four-foot counter that separates our store from the design studio, to see what we're designing. They have been able to look in the back and see us screen printing our current project, they've been able to look at the walls to see the posters we've created over the past 4 years and they have been inspired from shelves and shelves of designer toys from artists all over the world. It is 700 square feet of all things design and creative, all happening in real time, right in front of your eyes. Three years later, in our hometown of Buffalo, more people than ever know who we are and we realize we are selling so much more than our posters, toys and design services. Just like our inspiration, Apple, we are selling ourselves, our brand and our own personal human experience.

The second best thing about this entire experience, which came as a surprise to me, has been the people. Many of our customers have become some of our best friends. After all, we help their loved ones pick out their gifts for birthdays, Christmas, and other special events in their lives. We have spent many of our favorite nights in Buffalo with these people in our tiny little store, drinking, eating and listening to good music, all while celebrating our common bond, a love for design. Some come in every other month, some a couple times a month and a few every single week. They don't always buy something, but for us it's not just always about making money, it's about getting out of our chairs, putting the project or client on hold, and just shooting the shit with a good friend. The people, our customers and friends, have made this business enjoyable to us and they make going to work even more exciting than it already is.

What has been the BEST thing about this entire experience for me, you ask? It is doing what I love for a living, with my favorite person, who is both my partner in life and in business, all while our dog is laying at our feet. I may not be a wealthy man and my bank account can prove that, but I am a happy man and my laugh lines are a badge of honor. This little store has supported my dreams while others are still dreaming.

Thank you for three great years! Let's make it thirty more!

Mark Brickey
Husband, Designer, Printer, Store Owner, Businessman, Friend, Dog Owner & Community College Drop Out

Copyright 101 for Designers

I got woken up early this morning, so I was lurking around at my favorite blogs and I came across this great article on Design*Sponge that I just had to share.

Copyright 101 for Designers

By Amy J. Everhart

As a designer, your designs are your lifeblood. Just as a jeweler keeps his jewels in a locked display case, you should safeguard your designs. I don’t mean the physical product embodying your designs, but the intangible right to them: the copyright. Yet maybe because a copyright isn’t something you can see or touch, creators often neglect to safeguard it. An understanding of the copyright basics goes a long way toward protecting why you’re doing this in the first place: the art.

What is a copyright? Skip ahead if I’m getting too “101” on you, but it never hurts to start at the beginning: What is a copyright in the first place, and why should you care if you have one? A copyright protects creative works, including works of visual art, and is actually a bundle of rights. In the case of a work of visual art, a copyright includes the rights to copy, display, sell, perform and make derivative works from your work.

When do I have copyright protection? The minute you create a design and it’s embodied in a tangible medium (meaning no longer just an idea in your head but sketched out on paper or something you can touch), you, as the author, own the copyright to that design. This is true even if the work is not registered with the U.S. Copyright Office and even if you don’t place a copyright symbol (©) on the work. But, as you can see below, doing both is important even if not required for copyright protection, because it will enhance and maximize your protection.

Do I need to register my design with the Copyright Office? You don’t have to register your work with the Copyright Office to acquire copyright protection. So why bother slogging through that frustrating registration process, not to mention spending the money it costs to register? Three reasons: 1) registration within five years of publication gives you a presumption of ownership; 2) registration is a prerequisite to filing a lawsuit for copyright infringement; and 3) registration makes available certain infringement remedies that might not be available to you otherwise, including the potential to recover attorneys’ fees and “statutory,” or a specific range of, damages Congress built directly into the Copyright Act. Also, don’t wait until someone has copied your work to register it. You’ll want to file that copyright-infringement lawsuit immediately and not have to wait for the Copyright Office’s stamp of approval on your registration. Also, you generally can’t seek attorneys’ fees or statutory damages unless you register the copyright before the work is copied.

How do I go about registering? The U.S. Copyright Office has gone high tech and now offers an online registration option. Go to www.copyright.gov and click on the “Electronic Copyright Office.” From there, you can find tutorials, options for paper registration (tempting, but I recommend the electronic system) and a link to enter the online registration system. If you can get past the “select a password” segment without pulling out your hair (I have a few bald spots from the picky system’s rejection of no fewer than 15 proposed passwords), the online system should navigate you through the registration process. As a designer, you’ll likely be registering a work of visual art, although your design may fall into a different category, such as multimedia, so you’ll want to read the various categories to make sure you register your work in the right one.

Do I need a copyright notice? As a designer, who wants to muddle their work with legal symbols? Once upon a time a copyright notice (©) was required for copyright protection. Nowadays it’s not, but, like registration, it has its own perks, notifying others that you claim rights to the work and precluding a defendant in a copyright-infringement lawsuit from successfully claiming innocent infringement.

Who owns the copyright? Remember, the rule is that the creator is the original owner of the design. The only way to transfer copyright ownership is to do so in a signed writing. Likewise, you should always clarify with a client in writing who owns the copyright. Clients might believe that, because they’ve paid for a work, they own the copyright to it. If you want to reserve your right to the copyright, make sure you and the client both understand that to be the case in a signed writing and that the same writing clarifies how the client may use the work.

What about designs created by employees? There is one exception to the rule that the creator originally owns the copyright: Employees who create a work within the scope of their employment do so as a “work made for hire” for the employer. In that case, the employer owns the design. Regardless of this default rule, if you’re the employer, you should still, for purposes of clarification and certainty, have your employees sign an agreement up front transferring to you the copyrights to all works created on the job. (If you’re the employee, try to carve out rights to use the work at least in your portfolio.) What about independent contractors you retain to design for you? A writing clarifying ownership is even more important in that case, because independent contractors don’t qualify as “employees” for purposes of the “work for hire” rule.

When is your use of someone else’s work fair, and when do you need a license? When can you use someone else’s work in yours without a license? Unfortunately, this is a question without an easy answer. For starters, not every element of art is protectable by copyright. Raw ideas and stock themes are not protectable and are fair game to anyone. Second, you can use works that are in the public domain, meaning no one owns them. The trick is to determine whether the work really is in the public domain. Simply because you find clip-art online with the website owner’s promise that it’s free doesn’t necessarily make it so. The only way to know for sure is to get permission from the owner of the work. At least make sure you have a warranty as to ownership from the clip-art provider, and, even then, use at your own risk. Finally, not every copy is infringement. Certain uses of others’ copyrighted works may be fair and not require a license, depending on several factors: 1) whether your new work is “transformative” or alters the original work with new expression, meaning or message (such as comment, criticism or parody); 2) the nature of the work (factual works are more likely to be found fair than fiction or creative works); 3) the quantitative and qualitative amount of the original work used and how much of your work uses the original; and 4) whether your work usurps the market of the original. Whew! Got that? The rule of thumb: When in doubt, get a license.

So there you have it — now that you have the building blocks to protect your art, you can get back to creating it. Of course, your legal circumstances are as unique as your designs, so keep in mind that the information in this article is meant only as a reference tool and not as legal advice, and some of the legal concepts discussed may be subject to exceptions and qualifications.

Amy J. Everhart founded her Nashville, Tennessee, law firm (www.aeverhart.com) to counsel clients in the creative industries, entrepreneurs, inventors, business owners and others in the areas of copyright, trademark, entertainment, the arts and the Internet. She is the author of the copyright, trademark and entertainment law blog “Lightbulb Moments,” located at www.aeverhart.com/lightbulbmoments.