MBNews Sepemebr 2018 by Monument Builders of North America

MBNews / September 2018 / 1

2 / September 2018 / MBNews

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Donald A. Mounce, APR +1.800.233.4472 X-473 mbnews@monumentbuilders.org

PRODUCTION MANAGER Richard L. Martin

MBNews EDITORIAL ADVISORY BOARD

Leadership Issues Keep On Truckin’

EC Liaison – Matt Worthington Worthington Monuments matt@worthingtontx.com

By Alison Raymer, CM, MBNews Editorial Advisory Board Chair

EAB Chair – Alison Raymer, CM Emerson Monument Company alison@emersonmonument.com

MBAdvocacy Creating a New Normal

Dustin Anderson, AICA Dakota Monument Company dustin@dakotamonument.com Marc Arntzen Gem City Memorials, Inc. gemcitymemorials@sbcglobal.net

By Marilyn Harris-Davis, JD, MBNA Advocate

Safety Insights Workplace Misconceptions

Perry Giles, CM Giles Monument Company, Inc. perry.giles@gilesmonument.com

By Craig Hall

MONUMENT BUILDERS OF NORTH AMERICA

Insurance Insights Fall Protection

EDITOR

136 South Keowee Street Dayton, OH 45402 +1.800.233.4472 FAX +1.937.222.5794 info@monumentbuilders.org www.monumentbuilders.org

By Mike Windham

Intellectual Property Insights Protecting Your Assets

HEADQUARTERS TEAM Kimberly A. Fantaci Executive Vice President +1.800.233.4472 X-106 info@monumentbuilders.org

By Tony Watson

Intellectual Property Focus Copyright Laws

Krista Saul, CPA Accounting Manager +1.800.233.4472 X-107

By Alison Raymer, CM, MBNews Editorial Advisory Board Chair

James Perry Association Executive +1.800.233.4472 X-104

MBNA Design Contest

Cassandra Shaffer Association Manager +1.800.233.4472 X-115

Industry Calendar/New Members

Rebecca Nelson Events Manager +1.800.233.4472 X-113

Industry News

Tina Schneider Chief Administrative Officer +1.800.233.4472 X-101

Classified Ads

ON THE COVER

The Smith-Whiting memorial was produced by Monica Johns, CM, AICA, with Johns-Carabelli Company in Cleveland, Ohio, and was recently honored by AICA for large monument recognition.

Mission To define and promote memorialization in a viable, innovative and diversified way for the membership and to enhance the awareness of memorialization by the general public and the remembrance industry.

MBNews /

POSTMASTER – Send address changes to MB News, 136 South Keowee Street, Dayton, OH 45402. Telephone: +1.800.233.4472 Fax: +1.937.222.5794 E-mail:info@monumentbuilders.org Web: www. monumentbuilders.org Closing date: Four weeks proceeding date of publication. We reserve the right to accept or reject any advertising or editorial material. Subscription rate is $70 annually for members, which is included in the annual membership dues. The rate for non-member subscriptions or additional subscriptions requested by MBNA members is $125 a year. Single issue price is $12. ©2018 Monument Builders of North America MBNews (ISSN 0192-2491) is published monthly with the Buyer’s Guide in April by Monument Builders of North America (MBNA), 136 South Keowee Street, Dayton, OH 45402. Periodical postage-paid at Dayton, Ohio and additional2018 mailing offices./ 3 September

LEADERSHIP I

By Alison Raymer, CM, MBNews Editorial Advisory Board Chair

Keep On Truckinâ&#x20AC;&#x2122; The US Department of Transportation. Every time I have a conversation with another monument company owner/manager, I seem to get a different response regarding what he or she believes the rules actually are. Due to what seems to be mass confusion, I set out to gain clarification of the laws and how they relate to monument companies. And the verdict I have reached is...it is complicated. The Federal Motor Carrier Safety Administration was created as a part of the

4 / September September2018 2018 // MBNews MBNews

Motor Carrier Safety Improvement Act of 1999 (49 U.S.C. 113). This administration works with Federal, State, and local agencies to ensure compliance with a plethora of overlapping rules and regulations. Who Must Comply A company is required to obtain a USDOT number if you have a gross vehicle weight rating, or gross combination weight rating, or gross vehicle weight of 4,536 kg (10,001

pounds) or more, whichever Many monument companies mass of a vehicleâ&#x20AC;&#x2122;s chassis, is greater; and your vehicle body, engine, fluids, may be surprised to learn that is also involved in interstate fuel, accessories, driver, they have been operating commerce. For those who passengers and cargo. get inter- and intra- mixed That means the weight without a USDOT number. up, interstate commerce is of your vehicle, crane, In fact, their combined gross where your trucks travel your monument load, out of the state to carry out vehicle weight requires that your installation supplies, your business, intrastate concrete and personnel, they comply. is within your business is all included in your operation state. GVWR. By USDOT rules Additionally, many states also require and regulations, your vehicle cannot be loaded vehicles engaging in intrastate transportation beyond its gross vehicle rate. to obtain a USDOT number. In fact, 36 states Many monument companies may be surprised and other jurisdictions require carriers to have a to learn that they have been operating without USDOT number. a USDOT number. In fact, their combined gross According to the Federal Motor Carrier Safety vehicle weight requires that they comply. Administration at the time of publication, the following states require a USDOT number for Safety intrastate commerce: Part of obtaining a USDOT number involves Alabama, Alaska, Arizona, California, complying with federal driver and truck safety Colorado, Connecticut, Florida, Georgia, Idaho, standards. These standards include: Indiana, Iowa, Kansas, Kentucky, Maine, Driver safety standards: proper medical Maryland, Massachusetts, Michigan, clearances, drug screenings, log hours, and Minnesota, Missouri, Montana, New Jersey, New more. York, Nebraska, Nevada, North Carolina, Ohio, Driver safety standards are important to Oklahoma, Oregon, Pennsylvania, Puerto Rico, your company and you may not even realize South Carolina, Texas, Utah, Washington, West it. Letâ&#x20AC;&#x2122;s say that your truck is involved in an Virginia, Wisconsin and Wyoming auto accident that involves a fatality. You If you run trucks in any of the will be able to pull your driver records and aforementioned states and do not have a safety compliance records and prove that your USDOT number, you are at risk of incurring company has not been negligent in itâ&#x20AC;&#x2122;s hiring, hefty penalties and fines for non-compliance. licensing or operating standards. If you do not You are also at risk of incurring additional legal have those records, you might not be able to problems should one of your non-compliant prove that you have not been negligent in your trucks be involved in an injury causing accident. operations. We will discuss more on that below. Truck safety standards: proper post trip inspections, annual compliance inspections, etc. Gross Vehicle Weight Rating It is important that your fleet is wellBut first, if your state does not require a USDOT maintained and in working order. The last number, you engage in interstate commerce, thing anyone wants is for your truck, with but you are uncertain about the rating of a full load, to have a mechanical issue that your vehicle, this is the information for you. causes an accident while in service. Should that The gross vehicle weight rating (GVWR) is accident involve a fatality, it will be difficult to defined as the maximum operating weight/ prove non-negligence if you cannot prove, via MBNews / September 2018 / 5

documentation, that your fleet is wellmaintained. While complying with the safety standards can be overwhelming, it is really a great practice to put in place to ensure the safety of your team and other motorists, as well as help reduce the risk of liability within your organization.

If you run trucks in any of the aforementioned states and do not have a DOT number, you are at risk of incurring hefty penalties and fines for non-compliance. You are also at risk of incurring additional legal problems should one of your non-compliant trucks be involved in an injury causing accident. We will discuss more on that below.

Applying For Your USDOT Number Applying for your USDOT number is as easy as completing an application online. However, keep in mind, that once you complete the application, you will likely be visited by a DOT Officer to review your safety program and compliance. Organization tips for compliance:

card, drug screening results, etc. ●

On a company-wide calendar, jot down the dates that your vehicle’s annual inspections and driver’s medical cards expire. This will help you ensure you are not late at getting updated inspections and cards.

●

Create a three-ring binder with plastic sleeves inside. In each binder include a copy of the driver’s license, medical card, truck annual inspection, etc to ensure that the driver has everything he or she will need should they be pulled over.

● On

a folder with blank post trip inspection reports handy for your driver to complete after each and every trip that he or she completes. File these and keep for the required amount of time along with the bills of lading. The materials and information available in this article are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney and/or certified USDOT specialist to obtain advice with respect to any particular aforementioned issue or problem.

● In

For More Information For more USDOT information on this topic please visit the following websites at:

● Number

each truck and trailer that your company owns. These numbers are not reusable, so if truck #1 goes out of service, you will never have a truck #1 again.

● Create

a folder for each truck and trailer and label the folder with the truck or trailer’s number. the inside of the folder, staple a truck maintenance log. This is where you will log every maintenance action that is taken on this vehicle. the folder, include a copy of the receipts from maintenance as well as annual inspection reports. a folder for each driver and organize by name.

● Keep

www.transportation.gov - The US Department of Transportation

● Create

www.fmcsa.dot.gov - The Federal Motor Carrier Safety Administration

● On

And, for our Canadian readers, please visit: www.fmcsa.dot.gov/international-programs/ canada/canadian-federal-requirements MB

the inside of each folder have a checklist for all documentation that you need for your drivers: employment application, medical

MBNews / September 2018 / 7

By Marilyn Harris-Davis, JD, MBNA Advocate

Creating a New Normal One of the objectives of the Advocacy Program for MBNA is to engage our members in the development of viable legislation that will lead to market equity. We all know the issues that we face are the result of some of the challenges faced by the cemeteries. There is, indeed, a ripple effect. We know that cremations are infringing on burials and, consequently, cemeteries are becoming increasingly “creative” in their pricing. A prevailing issue is that state regulations have not adapted to this changing dynamic in the death care industry. The result, in most states, is that cemeteries are exploiting the “reasonable” component of the law, and the state regulators have no clue how that should be addressed. Consequently, the regulators are avoiding the issues and not enforcing the regulations that currently exist. Many cemeteries are asking that our members “consider” reimbursing their cemeteries with a percentage of the cost for the monument. They consider that request to be reasonable, given the diminished number of burials occurring recently. They cannot require such, however, but even the request for that consideration falls into the “creative” pricing arena. Some of our members engage in that reimbursement and some do not. A consistent practice in response to that type of request may be a future consideration. 8 / September 2018 / MBNews

However, we need to work with our legislators to define such “reasonable” requests versus “inequitable” practices. Gray Areas Historically and currently pursuant to the Moore vs. Jas. H. Matthews & Co. case, a cemetery which imposes a rule of exclusive installation (by the cemetery) constitutes a violation of antitrust laws. A subsequent case with which we are all familiar, Roseborough Monument Co. vs. Memorial Park Cemetery Association, went a step further in that it allowed cemeteries to “have the right to establish reasonable rules, regulations and specifications for anyone to perform the work.” Therein lies one of the gray areas which seems to be open to interpretation. A request for a percentage, or a referral fee from an outside monument dealer, in the current market could be interpreted as “reasonable” by a particular regulator. The law needs to be developed into a framework that acknowledges the evolution in the industry while maintaining the value of memorialization. Monuments and memorials are definitely not going away! We need to find common ground with the cemeteries (no pun intended) relative to the everlasting need for memorialization. We are all in the business of death care and beyond. However, legislation needs to catch up with reality.

Mid-Term Elections The upcoming mid-term elections present an opportunity to bring these issues to the attention of not only current legislators but also potential ones. Death and memorialization is a common denominator. We all know that corporate entities in this industry have lobbyists who protect their clients’ interests. I recommend that we, as MBNA members, formulate a “legislative wish list” that will address the issues of “market equity” and acknowledge the evolutionary process relative to the changing landscape in the industry. We must find “reasonable” initiatives that benefit monument builders and diminishes the stress on the consumers. We need to have a say in what’s “reasonable” and try to eliminate the gray areas. MBAdvocacy Strategy 1. Please contact advocate@ monumentbuilders.org to share your practices, if any, relative to percentages or referral commissions when placing monuments in cemeteries. Requests for such considerations seem to be increasing. While we understand that every state is unique, having a goal toward a consistent practice could lead to a powerful tool for MBNA. 2. Legislative Wish List – MBNA members can email advocate@monumentbuilders.org to submit their ideal scenarios for legislation. It would also be helpful to know any legislators with whom our members have had any contact or discussion. Legislative success is a journey and not a sprint.

August

3. Technology is our friend! Members can make comments and share ideas on our Facebook page and tweet to our legislators…but please make sure to send copies of anything to me. 4. The mid-term elections present a unique opportunity for us to lay out our issues and create a dialogue for the new normal in this industry. MB MBNews / September 2018 / 9

SAFETY I

By Craig Hall

Workplace Misconceptions who have the There are several Specifically, for equipment training, knowledge, training, misconceptions an operator-training card should be and experience about having a given, which should document the year, to train operators workplace safety and evaluate their program. Expense, make, model, and size of each piece competence. time, and the actual requirements needed of equipment your employee has been 1910.178(l)(2)(iii) All operator training for compliance are trained or certified to operate. and evaluation the toughest for shall be conducted by persons who have most business owners to overcome. the knowledge, training, and experience to Safety programs do not need to cost a small fortune, nor do they need to monopolize train powered industrial truck operators and hours in a day, to comply or even understand. evaluate their competence. This means if you, as the supervisor, But, let’s face it…the regulations are confusing, and it is difficult to determine what have the experience and knowledge, you can train and certify your own employees. is applicable to you and your company. You just need a program for training and Requirements for equipment operator documentation that such hands-on skills have certification are no less confusing and, in an been evaluated. effort to comply, most business owners are forced to spend extra money to hopefully find Myth – Forklift operators have to be rethe solution. In your industry, there are two certified every year. types of equipment most of you use, so our focus will be on crane and forklift operator Fact – Not true. certification. 1910.178(l)(4)(iii) Forklift Operator Myths Versus Facts Myth – You must use a third-party certification company to train and certify your employees to operate a forklift. Fact – Not true. 1910.178(l)(2)(i)(A) Under the direct supervision of persons 10 / September 2018 / MBNews

An evaluation of each powered industrial truck operator’s performance shall be conducted at least once every three years. The hands-on portion should be done every three years unless there has been an accident, a display of recklessness, or an equipment change. Classroom training and written training do not need to be redone

S for normal recertification.

Safety programs do not need to cost a small fortune, nor do they need to monopolize hours in a day, to comply or even understand.

Myth – If you are trained and qualified on one forklift you can operate any other forklift under the same certification. Fact – Not true. If the manufacturer, size, or style of forklift is different, the operator must show proficient operation of each. Free resources that could help you with your training program: www.youtube.com/watch?v=ZFIBNDuHUEA www.free-training.com/OSHA/FORKLIFT FORKMENU.HTM Hopefully that will help you with forklift certification. Crane certification will not be so easy. Crane Operator Myths Versus Facts With the new crane operator regulations, such as 1926.1427, it has become very confusing who must comply. With an average of nearly 100 deaths a year involving cranes, it is very important that all personnel be trained on crane operation. This includes overhead cranes and truck mounted cranes. Notice I said trained, I did not say certified. There is a lot of confusion regarding those requirements. Let’s use the fact versus myth method to seek some clarity. Myth – Trained and certified mean the same thing.

Fact – Not true. Trained generally means materials, guidance and skills qualification have been given to verify proficiency on a task. Certified generally means a formal program given by a qualified, certified or licensed trainer that meets guidelines required to perform work tasks with a certification being given to document proficiency.

S Myth – Telescopic (chainfall) and hydraulic gantry cranes require certified operators.

Fact – Not true. These types of cranes are omitted from the standard and only require training. Myth – Anyone who operates a crane is required to take an operator certification class. Fact – Not true. 1926.1427 Employers who use cranes for construction work must comply with the standard. What this means is, if you are placing materials on the ground and are not placing them on a structure it is not considered construction. According to the definition of structure a concrete slab does not meet the intent of the definition. For example, if you use your truck crane to set a monument on a concrete slab, that would not be a construction activity. Now if you use a crane to set a piece on top of pillars, that would be construction.

Documentation With all types of training, there needs to be documentation. Specifically, for equipment training, an operator-training card should be given, which should document the year, make, model, and size of each piece of equipment your employee has been trained or certified to operate. Should you find you need to have crane operator certification done, http://www.nccco. org/ is a very respected certification program. There are others but make sure they meet OSHA compliance with the new crane standard. MB Craig Hall is an industrial and commercial safety specialist based in Houston, Texas. He can be contacted at bighauus@att.net or +1.281.635.1124 for additional questions. MBNews / September 2018 / 11

INSURANCE I

By Mike Windham

Fall Protection

The Occupational Safety and Health Administration (OSHA) says falls are the leading cause of worker fatalities. In 2016, fall-related incidents killed 370 workers out of 991 reported construction fatalities. Every year, on average, another 100,000 workers are injured in fall related incidents on construction sites. These deaths and injuries are preventable. OSHA’s standard says, “Each employee on a walking/working surface (horizontal/ vertical surface) with an unprotected side or

edge which is six feet (1.8 m) or more above a lower level shall be protected from falling by use of guardrail systems, safety net system or personal fall arrest systems.” Now, I know, most of you are shaking head and thinking, “My people don’t work that high off the ground. I don’t think I need to read any more.” Give me another moment before you change the page. You don’t have to be six feet above the surface to have a fall related injury.

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High Places Let’s talk about loading docks that are four feet above the lower level. How much time do your workers spend on the loading dock, unloading and receiving new inventory, moving inventory to be processed, then moving finished inventory to the setting truck? What is the potential for an employee to fall off the dock when performing any of these jobs? What have you done to prevent a fall off the loading dock? How high is the bed of your truck? It’s about four feet, right? How many times do your workers climb onto the back of your setting truck or delivery truck? Do they climb on board and off out in the field, when setting monuments? Have you talked with them about the fall hazard when climbing onto or off the truck’s bed? How often do you have a worker use a ladder to attach or detach a sling from a piece of work? People fall from ladders every day. What about holes dug for foundations? Can a worker trip and fall into one of those? Stepping into a six-inch deep foundation hole can cause a serious leg, knee or ankle injury. Housekeeping Tips In the shop, are there hazards like slippery surfaces, air hoses, and trash? Any one of these hazards can cause a slip, trip, or fall. In your office, do you have a step-ladder or a step stool for reaching those “hard to get” files, a box, or a set of plans, etc.? This is why housekeeping is important. Again, every day, someone falls while reaching for an overhead item they need. You can prevent fall related injuries with some planning and foresight. In the monument industry, it’s easy to forget the potential for a slip, trip, or fall while working at ground level or less than four feet above the ground. The monument industry is both a “manufacturing” and a “construction” industry, and the potential for a fall-related injury is always present. OSHA requires employers to teach and train workers about “on the job” hazards. Slips, trips and falls are hazards at any work location.

Employers must make sure working conditions are free from known dangers. If someone thinks or says they see a hazard or danger, the employer needs to address that danger. Personal Protection If personal protective equipment is necessary, then it is required and must be used by workers to protect against injury. OSHA says the employer must provide personal protective equipment at no cost to the employee. And, do not forget, the employer is required to train workers about job hazards, including fall protection, in a language the worker can understand. This is especially important when English is the worker’s second language. OSHA says to prevent employees from being injured from falls, employers must: 1. Guard every floor hole into which a worker can accidentally walk by use of a railing, toe board or floor hole cover. 2. Provide a guardrail and toe board around every open-sided platform, floor or runway that is four feet or higher off the ground or next level. 3. Regardless of height, if a worker can fall into or onto dangerous machines or equipment, employers must provide guardrails and toe boards to prevent workers from falling and getting injured. 4. Other means of fall protection that may be required on certain jobs include safety harness and line, safety nets, stair railings and handrails. As an employer, you should raise the awareness among your workers about common fall hazards and how falls can be prevented. The first step with any job is to plan to do the job in a safe manner without an incident or injury. Teach your people to begin a job by deciding how the job will be done. They need to determine what tasks will be involved, and what sort of safety equipment will be needed to complete the task. MB If you have questions, call or email Mike Windham for a free consultation. Email amwindham@aol.com or phone 601 750 6366. Dynamic Training Solutions LLC is located at 546 South Pine Lake Drive, Batesville, MS 38606 MBNews / September 2018 / 13

INTELLECTUAL PROPERTY I

Protecting Your Assets As a monument “A discussion came up on the Monument company, which was a challenge because dealer, you put Builders Facebook group that showed a I had to uncover a lot of heart and thought Chinese-based website who had images several layers of operations before into creating of my monuments on their page,” says I got to the proper memorials for your customers, Watson. “They were claiming the exact source.” “They apologized, working with images we promoted as being theirs!” explained that they them to come up were just showing with the perfect remembrance for their family. Nothing can be quality work which we should consider a compliment, and they said they would take more discouraging than to then see someone them down. After a few months, they still have else inappropriately copy your creativity. not done so,” says Watson. While Oscar Wilde said, “As many international businesses do not “Imitation is the sincerest form operate under the same parameters as US of flattery,” guarding your businesses in regard to intellectual property artistic intellectual property legal protection, it is a challenge to seek from illegal duplication is cooperation and/or compensation. But we plan becoming more difficult. It to pursue this through several channels.” was a tough lesson to learn Tony Watson, “I have been in contact with the greataccording to Tony Watson, AICA, AICA granddaughter of the immortal artist Pierre President of Watson Signs & Renoir, who is a global activist in protecting Monuments in College Station, Texas. intellectual property rights, as her family “A discussion came up on the Monument has had to fight this battle for decades,” says Builders Facebook group that showed a Watson. “She has put me in touch with her Chinese-based website who had images of lawyer, as they have taken on this cause. my monuments on their page,” says Watson. “These types of internet-based operations “They were claiming the exact images we are ruthless in their illegal theft of intellectual promoted as being theirs! property. Like many others in business, they try to take short-cuts, and it is often at our “My wife, Emily, has a clearer head on individual detriment.” these types of business matters than I do, so I took her suggestion to calm down, not get Key Learnings upset, and to logically approach the problem “Unscrupulous operations which steal our in a business fashion. I contacted the 14 / September 2018 / MBNews

I N T E L L E C T U A L

P R O P E R T Y

I N S I G H T S

intellectual “Make sure to also add a copyright logo to photo with all property do not drawings and files,” all of your images and to file a documented have the same adds Watson. “This ethical persuasion is in the case you photo with all drawings and files. This as we do, in that need it to justify is in the case you need it to justify your our professional your intellectual focus is to help property. intellectual property.” grieving families,” “Some lawyers says Watson. “These types of companies are I consulted advised me of that to, again, verify simply out to make a quick buck, with no concern first use. And this is an important rule of law for how. all monument builders need to become better “We have had to take steps to protect our familiar with in our global business environment.” website images. While we like them to be posted One area that often comes into question with to display the quality of our work, they are way memorialists is how they can then properly too easy to steal.” use a trademarked logo, such as one of the “We have invested in some very inexpensive departed’s favorite sports teams. Watson says software that ‘time-stamps’ all of our photos,” the monument industry needs to follow proper says Watson. “This software is called Blog Stomp, procedures on this if we expect others to follow and we highly recommend its use. the laws on intellectual property of monuments. “Doing such is our first line of defense from “I am a big supporter of Texas A&M it being inappropriately acquired, as it makes it University here in our town, and I have talked difficult to copy. And it provides legal proof of to professionals in the legal and marketing our intellectual property ‘first-use’ in case there is areas on campus about this very issue,” says a legal challenge.” Watson. “While they are not overly concerned “We are also working with our IT consultants about funeral monument use as much as they to place a corporate watermark on all of our photos. It may not be a super-attractive addition to your art, but it is virtually impossible to extract it from the photo,” says Watson. “It is a Photoshop process, so it is a fairly easy addition to your marketing efforts. We have even had local competitors showing our work on their showroom walls, so nothing is safe from the unscrupulous.” Trademarked Logo Use “Make sure to also add a copyright logo to all of your images and to file a documented MBNews / September 2018 / 15

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I N T E L L E C T U A L

P R O P E R T Y

I N S I G H T S

are massOne area that often comes into question with And they have produced and given us some memorialists is how they can then properly profitable tips that we need shirts and to follow,” says use a trademarked logo, such as one of the materials, Watson. departed’s favorite sports teams. Watson since they “We as an says the monument industry needs to follow have complex industry need licensing proper procedures on this if we expect others to become more agreements/, public and unified to follow the laws on intellectual property of we should in this battle. When make the we are recognized monuments. effort to set as fighting this the high standard. violation, we gain “Most universities have trademarking/legal/ respect and cooperation.” compliance operations that you can easily “I want to thank Tony Watson for sharing his contact and get response from relative to logo experience with MBNA,” says Bobby Mattos, guideline usage, particularly when you explain AICA, 2018-19 MBNA President with Bras and the details of our profession. They are often Mattos Monuments in Hayward, California. “It very honored that a fan wants their logo on the is important for all to understand that this monument for eternity.” article is intended for education and insight “As long as the logo is not altered or only to MBNA’s MBNews readers. inappropriately used, and the trademark is “This is not intended nor should be accepted properly used, they are very easy to work with as formal legal advice. All MBNA members in our industry. Such a confirming email and should consult their personal attorney or an photo should also be added to the project file, intellectual property legal specialist for any just in case” adds Watson. formal decisions.” “Many in the legal industry indicate that “MBNA does face a new business world we are not in any way violating the trademark where we equally need to be conscious of through the usage in our industry. But, again, protecting our creative property while at the I think it is important to advocate what we same time setting the standard to respect the request.” intellectual property of others. Ethical behavior “Most organizations and teams only want is best established by our setting such an to have knowledge of the aspect, and formal example,” says Mattos. agreement on its use, in order to protect the “I recommend all monument dealers trademark from entering ‘public domain.’ If in North America ensure that they obey not, they could legally lose their valuable intellectual property best practices, which trademark,” says Watson. MBNews Editorial Advisory Board Chair Alison “We recently installed a marker for a little Raymer, CM, outlined for both the US and girl, and the family wanted the Texas A&M logo Canada in her article on page 18 of this issue. used. Once we contacted the university, they And, to protect our artistic creativity while gave us a formal approval in very short order.” avoiding legal problems for our individual businesses, maximum protection should be paid to your website and other print and social Joint Effort Needed marketing efforts so that such examples as “The Renoir advocates are experts in creative intellectual property protection and have a have been discussed here do not happen to substantial background in global legal affairs. you.” MB MBNews / September 2018 / 17

By Alison Raymer, CM, MBNews Editorial Advisory Board Chair

Intellectual property. tangible medium Copyright protects original works of This is an issue of of expression. MBNews that all Copyright covers authorship, while a patent protects memorialists need to both published and inventions or discoveries. Ideas and read in earnest. unpublished works. Occasionally discoveries are not protected by the this topic comes up What does copyright copyright law, although the way in on Facebook and protect? which they are expressed may be. other social media, Copyright, a form of and there tends to intellectual property be a great deal of law, protects original misconception regarding the copyright laws. works of authorship including literary, dramatic, This article will discuss both US copyright laws musical, and artistic works, such as poetry, and Canadian copyright laws. novels, movies, songs, computer software, and architecture. Copyright does not protect US Copyright Laws facts, ideas, systems, or methods of operation, There are several Frequently Asked Questions although it may protect the way these things regarding copyrights that are addressed on the are expressed. See Circular 1, Copyright Basics, US Copyright Office website under their FAQ section “What Works Are Protected.” tab. (The US Copyright Office website is www. copyright.gov) These questions and answers are How is a copyright different from a patent or a taken directly from that site. trademark? Copyright protects original works of What is copyright? authorship, while a patent protects inventions Copyright is a form of protection grounded or discoveries. Ideas and discoveries are not in the US Constitution and granted by law protected by the copyright law, although the for original works of authorship fixed in a way in which they are expressed may be. A 18 / September 2018 / MBNews

C O P Y R I G H T

trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.

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When is my work protected? Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.

works may be eligible for statutory damages and attorney’s fees in successful litigation. Finally, if registration occurs within five years of publication, it is considered prima facie evidence in a court of law. See Circular 1, Copyright Basics, section “Copyright Registration” and Circular 38b, Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA), on non-US works.

Do I have to register with your office to be protected? No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a US work. See Circular 1, Copyright Basics, section “Copyright Registration.”

I’ve heard about a “poor man’s copyright.” What is it? The practice of sending a copy of your own work to yourself is sometimes called a “poor man’s copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.

Why should I register my work if copyright protection is automatic? Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered

Is my copyright good in other countries? The United States has copyright relations with most countries throughout the world, and as a result of these agreements, we honor each other’s citizens’ copyrights. However, the United States does not have such copyright relationships with every country. For a listing MBNews / September 2018 / 19

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of countries and the nature of their copyright relations with the United States, see Circular 38a, International Copyright Relations of the United States. Canadian Copyright Laws The Canadian Intellectual Property Office website is www.ic.gc.ca/eic. This website has some wonderful videos regarding intellectual property (IP) and IP strategies for businesses. Frequently asked questions and answers, taken directly from their site, are: What is a copyright? In general, copyright means the sole right to produce or reproduce a work or a substantial part of it in any form. It includes the right to perform the work or any substantial part of it or, in the case of a lecture, to deliver it. If the work is unpublished, copyright includes the right to publish the work or any substantial part of it. The cremation rate is at 50% and rising.

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Do I need to register the copyright in my work in order to be protected? No. Registration is not required for protection in Canada. However, a certificate of registration of copyright is evidence that copyright exists and that the person registered is the owner of the copyright. Copyright exists automatically when an original work or other subject-matter is created, provided the conditions set out in the Copyright Act have been met. What are the benefits of copyright registration? The certificate of registration provides evidence that the copyright exists and that the person registered is the owner of the copyright. Being on the Register of Copyrights may also assist those wishing to seek permission to use the work. What is protected by copyright? Copyright commonly protects the following: literary works, such as books, pamphlets, computer programs and other works consisting of text dramatic works, such as films, plays, screenplays and scripts musical works, such as musical compositions artistic works, such as paintings, drawings, maps, photographs, sculptures and plans Copyright also applies to performers’ performances, sound recordings and communication signals (radio waves). How long does copyright last? Generally, copyright lasts for the life of the author, the remainder of the calendar year in

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which the author and complete the Registration is recommended (US) for dies, plus 50 forms to submit by years following mail or fax. a number of reasons. Many choose to the end of that register their works because they wish to calendar year. How do I request Copyright the registration of have the facts of their copyright on the in publications an assignment or public record and have a certificate of with multiple license? registration. authors lasts You can register until December an assignment or 31 of the 50th license by filing year after the with the Copyright last author dies. Copyright in government Office the original agreement or a photocopy publications lasts for the remainder of the of it along with the prescribed fee per work calendar year in which the work is first affected by the assignment or license. You published and for 50 years after that. Different can submit your request by mail, by fax rules apply to performers’ performances, or online. The Office will retain a copy of sound recordings and communication signals. the documentation and return the original Please note that other exceptions also exist. documentation along with a certificate of For more information, read the Copyright Act. registration. Do I need to mark my work with the copyright symbol? No. Marking your work with the copyright symbol is not mandatory under Canadian copyright law. The marking consists of the symbol ©, the name of the copyright owner and the year of first publication. Although it is not always required, the mark is a useful reminder that your work is protected by copyright. This symbol may be used even if your work is not registered. How can I register the copyright in my work? You may submit a completed application form with the prescribed fee. You can file online at a reduced fee or print

I want to remain anonymous. Can I use a pseudonym? Yes. If you are the author of the work as well as the owner of the copyright of the work, and you wish to remain anonymous, you may use a pseudonym in place of your name. Note that you must still include a complete mailing address. Additional Information For additional information, please check on the web for more details, and talk to other professionals in the marketplace on these issues to get their insights. When in doubt, you can always check with an attorney who specializes in intellectual property. MB MBNews / September 2018 / 21

MBNA announced the winners of the Design Competition at the recent MBUniversity event. Every member is able to submit entries into multiple categories, and there were nearly 200 entries this year. The winners were featured in the May 2018 issue of MBNews and we will continue to showcase other entries throughout the year in MBNews. Make sure to plan during this year to enter your work in the 2019 contest. Information can be found at www.monumentbuilders.org.