What is Intellectual Property?
At its most basic, it is a creation manifested in design, word, method or invention. Some of the ways your Intellectual Property, or your creation, may be protected include the registration of a Trademark, Copyright, Patent or a combination of all three. Generally, people seek to protect their Intellectual Property when they are looking to capitalize monetarily on their creation. This may come in the form of protecting one’s product, one’s business name, or one’s reputation in the market place. The bottom line is that you have created something you do not want others using. Protecting your Intellectual Property, ideally means setting yourself up with the legal right to stop someone else from using or infringing upon your creation. In some cases, waiting too long to take the necessary prophylactic measures, to protect your Intellectual property, may mean you have lost out on that protection.
Where do IP rights come from?
Interestingly, our United States Constitution has provided for protection of Intellectual Property via Copyrights and Patents. All Intellectual Property in the United States may be protected by Common Law and/or Statutory Law. It is important to know how the law relates to each of these avenues of protection. In some instances, the right for protection is restricted by time, and in others there are requirements that must be met to renew that right of protection. How you choose to protect your Intellectual Property may affect the arguments you one day make to a Judge or Board, to enforce your right of protection. It may even determine the damages you are entitled to.
What is a copyright?
A copyright is an exclusive legal right to an original work of authorship. This right allows the work to be copied, sold, used (IE: in a publication or to create a derivative work), and to transfer these rights to another party. To be eligible for a Copyright the original work must be “fixed in any tangible medium of expression”. Among others, this includes; literary works, music, scripts, sets, architecture, sculptures, graphics, live performance, pictures and drawings. Not included are ideas, procedures, processes, systems, methods, or discovery.
It is important to note that the creator of the original work of authorship, is not always the natural owner of the Copyright. This is exemplified where a work is “made for hire”. For example, if an architect, at the discretion of his employer, designs a building, it is the employer not that employee who holds the Copyright.
How do I obtain a Copyright?
The good news is that if you have an original work of authorship fixed in a tangible medium, you already have a Copyright under Common Law. The bad news is that you are not getting all the benefits you would be entitled to if you had registered your Copyright. The right under Common Law allows you to put others on notice that the exclusive right to sell, use, copy and so on, belongs to you. However, it is only when you register your Copyright, pursuant to the Federal Copyright Act of 1976, that you may sue in Federal Court for infringement and possibly be awarded actual damages, statutory damages, and/or attorney’s fees. It does, however, matter when you resister your Copyright. This may determine what damages or expenses you are entitled to. Ideally, you want to register your Copyright before its first publication, or within three months of its first publication. You may have legal counsel register your Copyright, or you may go directly to the website of the United States Copyright Office (https://www.copyright.gov/). The Copyright does not, like a Trademark, have the potential to last forever. The life of the copyright depends on several factors. Generally, and perhaps most relevantly, a Copyright for a work created after January 1, 1978 remains in effect for the life of the author plus seventy (70) additional years.
In summary, once you have determined that you possess an original work of authorship which is fixed in a tangible medium of expression, do not wait to have it registered with the United States Copyright Office. Having the wisdom to register promptly, could save you money and heartache in the future.
The take way
Trademarks, Copyrights, and Patents are just some of the very important ways you may protect your Intellectual Property. If you are serious about your brand, your business, growth and reputation then find out what your Intellectual Property is and take the steps to protect it today.