< PreviousCopyright is Automatic! Z. PETER SAWICKI AND JAMES L. YOUNG | Intellectual Property Z. PETER SAWICKIJAMES L. YOUNG Mr. Sawicki and Mr. James L. Young are shareholders at Westman, Champlin & Koehler. Pete and Jim both have over 30 years of experience obtaining, licensing, evaluating and enforcing patents. Each has also developed an extensive practice regarding the clearance, registration, licensing and enforcement of trademarks. They work closely with clients to understand their values and business plans and provide customized and effective strate- gies for intellectual property asset procurement, growth, management and protection. To contact Z. Peter Sawicki, call (612) 330-0581 or call James L. Young at (612) 330-0495. Please email them directly at either psawicki@wck.com or jyoung@wck.com. Thankfully, clients are always asking us questions. For ex- ample, a client might ask, “Can I copyright this video?” or “. . . this photograph?” or “. . . this hat design?” We hear about disputes over music copyrights and copyrighting songs in entertainment news all the time. As IP lawyers, we understand what our clients are asking (and even oc- casionally, we understand what those entertainment news reports claim to be about) but we do so with a little bit of a cringe. Most think that to obtain a copyright you must do something in addition to chronicling the creative work. Not true. SOME HISTORY This view of “copyrighting” ap- pears, at least to us, to be a holdover of what copyright law used to be. Be- fore 1989, when the U.S. joined the Berne Convention (an international treaty on copyright law), U.S. copy- right law required that in order to obtain a copyright, the “work” had to be registered with the U.S. Copyright Office. This was a formal requirement – and an affirmative act was required to obtain a copyright in an original “work.” By the word “work,” we mean a song, a painting, sculpture, jewelry, or anything having some “artistic” ex- pression. By “work” we do not mean “any idea, procedure, process, system, method of operation, concept, princi- ple, or discovery”. 17 U.S.C. §102(b). Copyright is not intended for the lat- ter. The Berne Convention introduced the notion that a copyright exists the moment a work is “fixed,” rather than requiring a formality such as regis- tration. A copyright in a work comes into existence the moment the work is created. In order to be part of the Berne Convention, U.S. law had to be revised to comply with this pro- vision (and a few other provisions) of the Berne Convention. The Berne Convention requires no formalistic procedures to obtain and maintain copyright rights. In other words, the Berne Conven- tion requires member countries to recognize that a copyright comes into existence automatically. What does automatically mean here? 17 U.S.C. §102(a): “Copyright protection sub- sists, in accordance with this title, in original works of au- thorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, re- produced, or otherwise commu- nicated, either directly or with the aid of a machine or device” When your client writes song lyrics, paints a painting, chisels a sculpture, or assembles jewelry, the copyright comes into existence automatically. These are all situations where the work is a “tangible medium of expres- sion” (which also includes computer memory). A “tangible medium of expression” is NOT a live performance, such as a baseball game or live concert. In con- trast, a recording of that baseball game or live concert is a work “fixed in a tangible medium of expression.” Be- fore the advent of smartphones, most venues prohibited video and/or audio recordings (and some still do) because the person recording is the copyright owner of that recording! With virtu- ally everyone having a smartphone at concerts, most performing artists/ven- ues have essentially given up policing attendees making video/audio concert recordings, although the creation of smartphone camera controls (read: lock camera off) may eventually be technically possible in concert venues. SO WHY REGISTER? If the existence of copyright is auto- matic, then why register? Doesn’t the existence of a registration procedure cause confusion? A major reason for registration involves enforcement and evidentiary value. Registration de- fines what the “work” is and provides a presumption that the registrant is the owner of the copyright. For such reasons, before a complaint can be filed for infringement, it is mandatory that a registration be obtained. Fourth Estate Public Benefit Corp. v. Wall- Street.com, 586 U.S. ___ (2019). Another reason to register is that ATTORNEY AT LAW MAGAZINE · MINNESOTA · V OL. 9 NO. 4 10actual damages in most copyright infringement cases may not be suf- ficient to support the expense of liti- gation. If a copyright registration is obtained within three months of the publication of the work then the fed- eral copyright statute provides for statutory damages. 17 U.S.C. § 412. Registration is also important to stop counterfeit goods, both from importation and from internet sales. The copyright registration can be registered with U.S. Customs, which will then seize goods that are within the scope of the registration. Copy- right protection can stop both the use of copied images on a website and sometimes even the sale of the actual goods. Copyright registration in this situation is not necessary. However, a registered copyright makes it easier to assert the client’s rights. SHOULD A CLIENT REGISTER EVERYTHING? No! Register what’s important to protect the client’s revenue streams. Registration is usually simple. The U.S. Copyright Office explains the process in great detail on its website: www.copyright.gov. For those works that are not submitted for registra- tion, it is a good idea to store a physi- cal copy or a pdf of the work in the event that registration may be neces- sary in the future. Another reason to register is that actual damages in most copyright infringement cases may not be sufficient to support the expense of litigation.”LA W FIRM OF THE MONTH CHIEF OPERATING OFFICER AND EXECUTIVE COMMITTEE: LYNN MATTSON, CHRISTOPHER JOHNSON, SARAH CRIPPEN, AND AMY CONNERS Established in 1926 by law school friends Jim Best and Bob Flanagan, Best & Flanagan LLP is a firm founded on relationships. In nearly a century, the firm has grown to more than 45 attorneys who are experts in an array of diverse but complementary practice areas, including real estate, business law, litigation, intellectual property, government relations, employment and labor, family law, private wealth planning, and more. Generations of Min- nesotans, from individuals and families, to nonprofits, closely held businesses and Fortune 500 corporations, have looked to Best & Flanagan for reliable counselors and attorneys at law who understand their unique challenges and local values. At the helm of the organization is Sarah Crippen, Managing Partner and chair of the em- ployment and labor practice group. She is an MSBA certified labor and employment specialist and previous chair of the firm’s litigation section. Crippen says that, today, many attorneys practicing in the Twin Cities legal market find themselves at a professional crossroads. The le- gal landscape was forever changed by the Great Recession, and there is a growing trend of local firms being absorbed by larger entities. Many lawyers inside these new mega-firms feel they are just a number among hundreds of attorneys scattered across the country and even the world. To some, Best & Flanagan is the perfect antidote. A long-established local firm with sophis- ticated practices and deep ties to the community, Best & Flanagan prides itself on identifying with the people it employs and represents. The result is long tenure of attorneys and a loyal client base with rich referral opportunities. The firm’s Executive Committee represents a cross-section of the attorneys who have found their professional home at Best & Flanagan. Crippen joined the firm as a summer associate in 1990 while earning her law degree at the University of Minnesota, and she has remained to build a robust practice as a counselor, litigator and investigator. FLANAGAN BEST & Succeeding on the Strength of Relationships for Nearly a Century BY H. K. WILSON ATTORNEY AT LAW MAGAZINE · MINNESOTA · V OL. 9 NO. 4 12FLANAGAN “ The flexibility here to practice the kind of law that excites us most and build our own practice in the way we want to, lets everyone move into their own strengths.”Christopher Johnson is a member of the firm’s Family Law section whose practice focuses on complex family law matters. He has made notable contributions to the body of law in Minnesota as a past member of the Minnesota Supreme Court advisory committee and task force. He joined the firm as a lateral more than two decades ago and plans to finish his career there. Johnson describes Best & Flanagan as a “firm of entrepreneurs” with an excellent record of “matching client needs with the right personali- ties.” Amy Conners is an experienced business litigator and counselor who joined the firm as a lateral just five years ago. She has served as co-chair of the statewide Minnesota Lavender Bar Association and has earned numerous pro- fessional honors. In her view, the firm’s strength is its flex- ibility that allows lawyers to grow in authentic directions. “I like my role as a trusted advisor, and my favorite part of my day is talking with somebody about a problem and developing a relationship with them,” says Amy Conners. “The flexibility here to practice the kind of law that excites us most and build our own practice in the way we want to, lets everyone move into their own strengths. This is a great place to build your career. I don’t think of this as a place to just come to work; it’s a place to plant roots, grow and stay. I think that has value whether you’re a lateral like me or starting your career here.” This diverse committee reveals many things about Best & Flanagan’s culture – its flat organizational structure; its inclusive and meritocratic values; its transparency; and its spirit of camaraderie. Crippen says this all adds up to greater accountability to colleagues and clients — and bet- ter results. “Being an independent, Minnesota-based firm makes us uniquely accountable in a good way,” Crippen says. “We want our clients to be with us for decades to come. We work with a lot of small-to-medium, closely held busi- nesses, where many are family owners. We’re usually talk- ing to the owner or an officer of the business, and we try hard to work out an approach that is uniquely tailored to their needs. We think this is preferable to having rates and the way we staff teams dictated by management in a differ- ent city or completely different part of the country.” Elizabeth “Libby” Davydov is an emerging leader at Best & Flanagan, elected to the partnership in January of this year. She is in good company, as nearly 40 percent of the firm’s full equity partners are women. Davydov helps closely held businesses, nonprofit organizations and indi- viduals manage their business needs ranging from struc- tural and tax issues to M&A and employee benefit plans. As an outside general counsel and business advisor, Davydov places a high value on the firm’s collaborative and team-centric culture. “We staff our clients with people we know and trust will be good listeners and relationship partners,” she says. “We value people who have a high EQ in addition to their expert legal knowledge.” Personally, Davydov has benefited from strong mentor- ship while working alongside Daniel Grimsrud, a senior attorney in her practice group. She says, “This is truly still an apprenticeship profession. You can’t get all the skills you need to learn in law school, so you really do learn on the job. Dan has been phenomenal at providing me with guidance while treating me like an adult. There’s a period of getting to know each other, but whatever hierarchy there is breaks down over time. I will say this about my transition to partner: Nothing in my day-to-day workflow changed. I think it shows that we’re not making old-school, hierarchical distinctions between practitioners here. We’re just trying to move the ball forward for clients. I can’t say enough good about the mentor Dan has been.” As to Best & Flanagan’s position in the marketplace, she says, “Minneapolis needs firms our size. We’re more rela- tional and more local. When our clients have a particular need, we won’t just send them a random lawyer we don’t know. As we’re heading through a big baby boomer turno- ver, succession planning and transitioning is taking an in- creasing portion of our time. This is a process that is very personal to our clients, and they want to work with advi- sors who are familiar with their history and their goals.” We staff our clients with people we know and trust will be good listeners and relationship partners” “ EMERGING AND EXISTING LEADERS (FRONT) JENNIFER LAMMERS, ROBERT MCLEOD, LIBBY DAVYDOV, DANIEL GRIM- SRUD, (BACK) KYLE HARDWICK, ASHLEIGH LEITCH, AND DAVID JOYSLIN ATTORNEY AT LAW MAGAZINE · MINNESOTA · V OL. 9 NO. 4 14At a Glance BEST & FLANAGAN LLP 60 South Sixth Street, Suite 2700 Minneapolis, MN 55402 (612) 339-7121 bestlaw.com PRACTICE AREAS Appellate Advocacy & Strategic Motions Bankruptcy & Creditor Remedies Business & Corporate Law Construction Law Employment Law Family Law Government and Internal Investigations & Defense Insurance Intellectual Property Litigation Municipal Law & Land Development Non-Profit & Tax-Exempt Organizations Private Wealth Planning Public Finance Real Estate Shareholder Disputes and Litigation Grimsrud echoes, “Mutuality is a hallmark of our firm. Especially for firms our size, EQ and human skills are so critically important. It allows us to understand different clients and adapt our approach to their needs.” Jennifer Lammers and Robert McLeod both joined Best & Flanagan as lateral hires in January 2020 after their previous firm experi- enced a merger. Lammers is a partner in the Private Wealth Planning practice group. She assists her clients with estate planning, busi- ness succession planning, probate and trust administration, elder law, and trust and estate litigation matters. McLeod is a partner of the same practice group and is listed as among the Top 100 Lawyers in Minnesota for his ac- complished probate, trust, guardianship and fiduciary litigation practice. “For us, it was an opportunity to review our practice and see what firm truly fit the needs of our clients,” Lammers says. “We represent in- dividuals, and Bob is involved in a lot of fam- ily disputes that are messy and complicated. We also have relationships with banks that are trustees for our clients’ trusts. This firm was built on trusts and estates, and it’s easier for us to maintain those relationships inside an orga- nization that is tailored for that. It’s been an easy transition for us.” Working in a practice area that often crosses over into other legal territory, McLeod says it’s useful to be in a close legal setting where collaboration with other lawyers is natural. “It’s common for a trust that owns real estate or has business interests to have tax problems or be involved in a dispute. The people we need to work with are right next door, and everyone’s door is open. That proximity makes it so easy.” Lammers and McLeod say that being at a smaller, local firm has posed more opportunities to grow their practices. “We have complete control over rates and who we want our clients to be,” Lammers says. “We’re still able to do complex litigation and represent large clients, but we’re also able to represent matters that don’t demand as much time and treat them with the same quality. You can do that when you don’t have a ton of overhead.” In the current Minneapolis legal landscape, many lawyers feel like Goldilocks trying to find the right fit. For those who feel that a nation- al firm is too big, and a boutique practice is too small, Best & Flanagan may be just right. “There are fantastic lawyers at every size firm in this state, and I believe you can have a robust, successful and sophisticated practice at any size firm,” Lammers says, “Sometimes, you just get lucky, and find a wonderful fit.” “There are fantastic lawyers at every size firm in this state, and I believe you can have a robust, successful and sophisticated practice at any size firm.” AMY CONNERS, SARAH CRIPPEN, CHRISTOPHER JOHNSON, LYNN MATTSONFirst introduced in Congress in 1878, and finally ratified on August 18, 1920, the 19th Amendment to the US Constitution changed the political landscape with one simple sentence: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Woman Suffrage icons like Elizabeth Cady Stanton, Lucretia Mott and Susan B Anthony never got to see the end of the work they helped lead, going back a full 72 years to the first women’s rights convention in Seneca Falls, NY. But winning the right to vote was not the end of the story. “Today is the commencement rather than the end of our work,” said Minne- sota suffragist Clara Ueland when the MN Legislature became the 15th state to ratify the amendment on September 8, 1919. The wise women of the suffrage movement realized that having the right to vote was only as powerful as their ability to exercise that right, and to be able to advocate for the changes they envisioned for a more just and inclu- sive democracy. “Not privilege, but justice,” read a signature banner from suffrage rallies, portraying their intentions to seek the vote as a tool to be more fully empowered within our government. Notably in 1921, one of the first bills drafted, lobbied for and passed in the MN Legislature by a woman was a state anti-lynching bill, led by African American activist and suffragist Nellie Griswold Francis. The 19th Amendment indeed was only the beginning of an ever- increasing enfranchisement of women, especially both women and men of color. Native American women were not citizens and therefore could not vote until 1924. The McCarran-Walter Act of 1952 finally granted all Asian-Americans the right to be citizens and to vote. Afri- can American women and men could not fully exercise their right to vote until the passage of the Voting Rights Act of 1965. And the voting age for young Americans was finally lowered to 18 from 21, during the Vietnam War era. At the forefront of fighting for voting rights and civic engagement has been the League of Women Voters. The League was a deliberate creation by national suffrage leaders such as Carrie Chapman Catt to create a new organization to “complete the full enfranchisement of women and increase the effectiveness of women’s votes in furthering better government.” And that mission still stands strong, 100 years later. Nationally, the League has more than 750 local chapters across all 50 states, represent- ing more than 300,000 members and supporters. In Minnesota, we have 35 local Leagues spread throughout the metro area and greater Minnesota, and have grown 15% in the past 2 years, now over 2,100 members. Together today, League volunteers (still largely women, but men are welcome too!) persist as a significant force in educating and empow- ering voters and defending our democracy. Our founding mothers would be delighted to know we’re still conducting civics education on important issues within our local communities, are holding hundreds of candidate forums across the state to inform voters, and are register- Votes for Women – 100 Years Later BY MICHELLE WITTE ATTORNEY AT LAW MAGAZINE · MINNESOTA · V OL. 9 NO. 4 16ing voters by the thousands, including more than 8,000 newly naturalized citizens every year. We’re also advocat- ing at the State Capitol on important issues such as ra- cial justice, redistricting and voting rights, environmental protection, and helping women prepare to become elected public officials. The Minnesota State Legislature now seats just over 32% women. And the demand for our work to ensure that all eligible voters can vote and that every vote matters is needed more than ever today, as we continue to fight against challenges such as the gerrymandering of political district boundar- ies, threats against all people being counted during the upcoming census, new cyber security concerns within our election system, the rising tide of misinformation, and other efforts designed to suppress voter confidence and turn out. Clearly, full enfranchisement for all is still be- ing realized, and the League of Women Voters, along with other democracy partners, are still an important and vital source for making our democracy work – for all! More information on the 19th Amendment Centennial and signature events, and how to get involved in help- ing to empower voters and defend democracy visit www. lwvmn.org MICHELLE WITTE IS THE EXECUTIVE DIRECTOR FOR THE LEAGUE OF WOMEN VOTERS OF MIN- NESOTA. SHE ALSO RECENTLY COMPLETED 5 YEARS OF SERVICE AS AN ELECTED OFFICIAL ON THE SOUTH WASHINGTON COUNTY SCHOOLS BOARD OF EDUCATION. Under the U.S. Constitution most states gave the vote to white men who owned property. Over the past 200 years, constitutional amendments and court rulings have expanded voting rights for minorities and women. Nonetheless, voting remains difficult for many because of state and local laws that limit access to the ballot box. Voting Rights Timeline Only white men age 21+ who own land can vote 15th Amendment to the U.S. Constitution granted voting rights to African American men 19th Amendment to the U.S. Constitution granted voting rights to women Indian Citizenship Act granted Native Americans citizenship and voting rights 24th Amendment to the U.S. Constitution eliminated poll taxes in federal elections Voting Rights Act of 1965 eliminated literacy tests, and prohibited racial discrimination in voting 26th Amendment to U.S. Constitution lowered voting age to 18 Americans with Disabilities Act ensured that individuals with disabilities can vote Help America Vote Act replaced outdated voting machines and improved election procedures Voting Rights Act extended for another 25 years 1776 1870 1920 1924 1964 1965 1971 1990 2002 2006 AttorneyAtLawMagazine.com 17May is Mental Health Month and there is no better time to re- mind lawyers and judges about the importance of self-care to reduce our risk for depression, anxiety and other mental health issues. We all know this is a stressful profession. Triggers and causes include the intensity of the business of law, the fact that we help people when they are experiencing this worst thing that ever hap- pened to them, and the constant challenge of our adversarial system. In our profession we tend to be reactive (we don’t have work until someone else has a problem) but in the case of mental health, we must be proactive. As a profession we experience major depression and substance use disorder at rates significantly higher than the population as a whole. We have a higher rate of suicide. We also experience greater rates of anxiety, chronic stress and divorce. Lawyer assistance programs have been on the forefront of education and direct assistance for decades, but we all need to talk about it. Chronic stress we experience may trigger depression, anxiety, or other illnesses, and may lead to a sense of helplessness, increasing anxiety and the inability to complete even mundane tasks. We may feel shame because lawyers aren’t supposed to feel helpless. If we have a particularly intense period, we may perceive that as a new normal, rather than a sprint from which we must recover. Drinking becomes a way to evade dealing with our stress until the drinking itself becomes the problem. We’re paid to solve the problems of others and isolate because we feel we should be able to solve our problems ourselves. No one needs to do this alone. Minnesota’s Lawyers Concerned for Lawyers offers free and confidential peer and professional support to lawyers, judges, law students and their immediate family members on any issue that causes stress or distress. This includes up to 4 free counseling sessions statewide, peer support, groups, and individual resources. Services are available 24 hours a day. www.mnlcl.org. The National Task Force on Lawyer Well-Being has created Lawyer Well-Being Week, May 4-8. A myriad of resources will help individu- als and organizations examine how to support each other so we can all do our best work: https://lawyerwellbeing.net/lawyer- well-being-week/. JOAN BIBELHAUSEN IS EXECUTIVE DIRECTOR OF LAWYERS CONCERNED FOR LAWYERS. SHE IS COMMITTED TO HELPING LEGAL PROFESSIONALS AND THEIR ORGANIZATIONS THRIVE IN A STRESSFUL PROFESSION. 651-646-5590 . 866-525-6466 . help@mnlcl.org 24-Hour Helpline: 888-243-5744 Mental Health Month: Help is Available BY JOAN BIBELHAUSEN ATTORNEY AT LAW MAGAZINE · MINNESOTA · V OL. 9 NO. 4 18In November of 2019, cafeteria work- ers at a Minnesota high school took hot meals from students with a lunch bill of $15 or more and threw them in the garbage. The action, in violation of state law, was halted quickly when admin- istrators became aware. “It feels a bit like Whack-A-Mole,” says Jessica Webster, Staff Attorney with Le- gal Aid’s Legal Services Advocacy Project (LSAP). “Something new comes up every year.” Webster has been trying to eradicate lunch-shaming practices in Minnesota since 2008. In 2011, she partnered with or- ganizations that fight hunger and enlisted the help of pro bono attorneys from local law firms to investigate and document pu- nitive practices across the state. In 2014, Webster completed her investi- gations and Legal Aid issued a scathing report that caught the attention of policy makers and the public. The Legisla- ture passed Minnesota’s 2014 Lunch Aid Act, the first law in the nation to prohibit lunch-shaming. But despite the law, school lunch debt problems persist. In the spring of 2019, Valerie Castile wiped out $8,000 of school lunch debt for seniors at a local high school so they would be allowed to walk at graduation. She made the donation in honor of her son Philando, a school lunch- room worker and victim of police shooting who often paid students’ lunch debts. Webster has documented numerous districts that con- tinue to push the boundaries with stigmatizing and sham- ing practices, including the threat that seniors cannot participate in graduation. Complaints come from rural, suburban, and urban school districts around the state, and national news stories surface regularly about philanthro- pists paying school lunch debts. “I cringe every time I see posts about angel funds and lunch debt donors, because that is not a systemic fix,” Webster says. “We all feel good about generous efforts, but philanthropy is not the answer. In response to graduation threats, Webster wrote a de- mand letter to the state education department commis- sioner, documenting school districts that continue to threaten to block students from graduation ceremonies. She also asked for a formal opinion from the State Attor- ney General. Within two weeks of receiving the request, Attorney General Keith Ellison issued a written opinion prohibit- ing schools from denying students the opportunity to participate in graduation ceremonies due to unpaid meal debts. Under Minnesota law, the Attorney General’s writ- ten opinion on matters relating to public schools is deci- sive unless the question involved is decided otherwise by a court of competent jurisdiction. “The Attorney General’s opinion is an important step forward,” says Webster. “It’s clear, and it’s broad. The opin- ion is binding and can be used if there is a court challenge.” Five years ago, most school districts in the state had lunch-shaming policies. These practices are now illegal. A new bill with bipartisan support stalled during the last legislative session and died, but legislators are trying again this session. The bill would broaden and clarify the law, ensuring clear and respectful policies and keeping trans- actions between parents and schools. Webster and her colleagues at LSAP remain relentless in their efforts with legislators and other advocates, work- ing to ensure that all children have full access to the ben- efits and privileges of education. They will not rest until all Minnesota students are guaranteed access to school lunch without shame or stigma. MID-MINNESOTA LEGAL AID PROVIDES FREE CIVIL LEGAL ADVICE AND REPRESENTATION TO MINNESOTANS WHO CANNOT AF- FORD AN ATTORNEY. LEGAL AID SERVES PEOPLE WITH LOW IN- COMES IN 20 COUNTIES AND PEOPLE WITH DISABILITIES STATE- WIDE. Legal Aid Protects Students from Lunch-Shaming BY LEYKN SCHMATZ AttorneyAtLawMagazine.com 19Next >