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Intellectual Property Overview

The term “Intellectual Property” or IP, refers to creations of the human mind that have some creativity.  The various kinds of IP, and the protections given to them, is divided into three broad categories: Patents, Copyright, and Trademark.

Patents

A Patent is a form of government protection for an invention.  There are two types of patents: a utility patent, and a design patent.  A utility patent is for a “useful” invention, such as a pair of scissors, or a way to cheaply purify water.  A design patent is protection given to the ornamental design of a functional item, such as a high heel with a spiralled heel spike, or curved drinking bottle.

An inventor must apply to the United States Patent Trademark Office (USPTO) for a patent.  If a patent is granted, then the inventor will enjoy a limited monopoly period for the item protected by the patent.  They will be the only one who can manufacture and sell the item. At the end of this time, the invention becomes available for use by anyone.  

In the United states, the current term of protections for a utility patent is 20 years from the earliest date of filing the invention.  For design patents, the date of filing is important. For design patents filed after May 13, 2015, the term of protection is 15 years from the date the design patent is issued.  For design patents filed before May 13, 2015, the term of protection is 14 years from the date the design patent is issued.

Copyright

A copyright is form of protection given to a work of creative art.  This could be a written story, a sculpture, a painting, a photograph, the list is almost endless.  The key to copyright is that the work must be “fixed in a tangible medium.” This means that the work must be created in such a way that it will last on its own until destroyed.  A story copied onto paper is fixed in a tangible medium, and may enjoy copyright protections. A sand castle that is built on the beach, only to be swept away by the next wave, cannot be protected by copyright.  A song that someone composes in their head and whistles will not be protected unless the songwriter later writes down the song, or records it so that it can be replayed.

Facts, or ideas cannot be copyrighted.  The names and numbers in a phone book cannot enjoy copyright protection.  There must be some sort of creative aspect to the work in question in order for it to enjoy protection, and only the creative elements will be protected.  In the phone book example, if the names and numbers were arranged in a colored font and displayed diagonally across the page, the organization of the names and numbers would be protected, but the names and numbers themselves could still be used by anyone.

Unlike patents, a creator does not have to apply to the government for copyright protection, it exists automatically once the work is created.  However, in order to enforce these rights, the copyright must be registered with the US Copyright Office. This can be confusing. As a rule of thumb, it is always a good idea to register your creative works with the US Copyright Office, as this will provide immediate protection for your works.  A subsequent blog post will explore copyright in detail.

The length of Copyright protection is the life of the creator of the work, plus 70 years.  For works made for hire, or anonymous or pseudonymous works, the length of protection is 95 years from first publication, or 120 years from creation, whichever is shorter.

Trademarks

A trademark is a form of protection that protects a word or logo that is associated with a particular good or service.  Trademarks were created as a form of consumer protection, that would help people to identify the source of a particular good or service.

Although a trademark has traditionally been a word, phrase, symbol, image, or a combination of those elements, other forms of trademark have been allowed.  Trademarks have been granted for specific smells, colors, and sounds. These non-traditional trademarks are only allowed in specific circumstances. A good example is the blue color that is associated with a Tiffany’s jewelry box, or the yodel used by the company Yahoo!

To be eligible for trademark protection, the mark itself must be used in commerce (although some exceptions exist).  Afterwards, the owner of the mark must apply to the USPTO to register the mark.

Although both patents and copyright protections have a limited duration, trademark protection is indefinite.  The mark will continue to be protected as long as it is used in commerce by its owner, and maintained. This means that the owner of the mark must be vigilant for others who may use the mark without permission.  If the owner of the mark does not attempt to stop unauthorized use, this can dilute the trademark, or even lead to its loss.

Further Reading

For further reading, you are encouraged to look at the other articles offered on our website.  Other good resources are:

Copyright Office Circulars: https://www.copyright.gov/circs/

These are lessons about copyright that are created by the US Copyright Office.  They are a great first step towards learning about copyright

The USPTO: https://www.uspto.gov/

The United States Patent Trademark Office page contains helpful FAQs about its areas of protection.

If you have any further questions about intellectual property, feel free to contact the team at Start Art Legal.  Jake and Matt can be reached at jake.janzen@startartlegal.com or matthew.dedon@startartlegal.com, respectively.  We will always respond to your questions.

Disclaimer

The information provided in this article is presented for informational purposes only.  This article contains general legal advice, and reading this article does not create an attorney-client relationship between the viewer and Start Art Legal.  This article may be considered advertising under applicable law and ethical rules.

Matthew Dedon