Intellectual property law can be a complex field to understand. Learn about the nuances of IP and your rights, and how they might affect you.
Intellectual property is the blanket term the law gives to a family of less-tangible assets. Unlike so-called real property, intellectual property can be an idea, a work of art or an invention that potentially has value to its owner. The law protects many types of intellectual property, doing so in a variety of ways. Though it is always advisable to check with an intellectual property attorney for advice, these are some of the most common forms this property takes.
Copyright is one of the most commonly used forms of intellectual property protection. Under federal law, almost any original work produced by an individual or entity (such as a media corporation) is automatically protected by copyright. This generally grants an exclusive right to financially profit from a written, graphic, audio or other artistic, journalistic or reference work. You do not usually have to register your copyright with the government in order to enforce your ownership of it, though it is common for very valuable properties to be submitted to the Library of Congress.
Holding copyright protection does not mean you have 100 percent control over how your original work gets used. American law and international agreements recognize several instances when another party might appropriate some of your work for their own project. The law covering this subject is immense and complicated, but people are often free to use portions of your work if it is for legitimate purposes of:
In addition to these “fair use” exemptions, some of your property may be incorporated into a larger work, such as the famous “Amen Break,” which is a single drum riff from the 1970s that has been sampled into thousands of other songs. Fair use is determined on a case-by-case basis by many courts, with several factors considered, such as the fraction of the original work sampled, the degree to which it was transformed by the other party and the purpose of the sampling.
Trademarks are common words, signs and symbols that identify and help brand a company or product. Unlike copyright, an image is not necessarily protected by a trademark as soon as it is created, which encourages brands to register their trademarks before publishing them. Trademarked logos, slogans and other properties are fairly well protected from infringement, though details of this protection vary with several factors, notably:
- The prominence of the trademark and the public’s presumed awareness of it
- The geographic location where the trademark is used
- The type of company, product or service the trademark identifies
Patents are legal protections for inventions. New objects, techniques and some discoveries can be granted a patent that protects the owners’ right to use the patented item. In order to qualify for a patent, a new idea must be:
- Novel, and not a pre-existing idea or invention
- Useful, which is usually interpreted broadly by the Patent Office
- Not obvious, which usually means an idea that wouldn’t occur to just anybody
Many things can be protected by a patent. Examples include:
- Physical objects, such as machines and electronics
- Pharmaceutical drugs
- Specific gene sequences discovered or used by a genetics company
- Industrial techniques and methods of doing things, such as medical treatments and fabrication methods
Patents are generally granted for a limited time; usually 10 years. During this period, the owner of a patent can license the invention for use by others and charge a fee. After a patent expires, generic versions of the formerly protected property may become available.
Trade secrets are very similar to patents, but they are not published for others to see. A company may choose to keep an industrial technique secret, for example, instead of seeking a patent in order to avoid disclosing the details of the protected process. Though they are not formally registered with any government agency, trade secrets may still be protected by the court. An employee who deliberately leaks a secret to a competing business, for instance, may be sued for violating the company’s intellectual property, even though the secret was not on file with a government agency.
Many companies opt to keep their most valuable properties secret. The recipe for Coca-Cola, for example, is famously a trade secret, as is the recipe for KFC’s 11 herbs and spices. Some defense contractors and other companies in sensitive industries also claim trade secret protection for their processes and inventions.
Publicity rights are a form of intellectual property that vary from state to state. At its heart, the right of publicity is the right of an individual to control how their likeness is used for commercial purposes. If, for example, a picture of you appears on the front of a box of cereal, you are probably entitled to either have it removed or to claim a royalty for your likeness. In many cases, your name is also protected this way, though the details of enforcement vary considerably. A very distinctive name, such as “Mortimer Higgleton LeFarage III,” is unique enough that it probably only identifies a single person in the world. A more common name, such as “Joe Smith,” may be entitled to less protection, provided there are no other elements that definitively identify you as the Joe Smith in question.
The right to privacy is not strictly a part of intellectual property law, but state laws protecting privacy touch on how your information may be used. A party may be held to have invaded your privacy when it published private details about your identity, lifestyle or personal affairs. The laws here vary enormously between jurisdictions, from the very sparse protections some states offer to the near-total “right to be forgotten” that some European countries impose on internet search companies such as Google. Your right to privacy may also be diminished if you are a public figure, such as a celebrity or politician.