By: Joshua Hancock, Law Clerk, Dorman Bell, LLP
IP is Complex
Often times people mistakenly use the terms of intellectual property law incorrectly. Intellectual property is complex. Essentially intellectual property describes a wide variety of intangible rights that are the result from original creative thought. There are many forms of intellectual property, but intellectual property is generally classified into the two following categories: Industrial Property and Copyright.
Industrial property includes everything such as:
- patents for inventions,
- trademarks, and industrial designs.
However, copyrighted material includes items such as:
- artistic works (drawings, sculptures, and paintings),
- literary works (such as novels and poems),
- films, and
Purpose of Intellectual Property Rights
Intellectual property rights are just like any other property right. The law of intellectual property is largely intended to encourage the development of art, science, and information by granting certain property rights to any individuals who create. These rights protect the individuals from the unauthorized use or misuse of their creations.
Copyright vs. Trademark in A Nutshell
When thinking of a copyright, the word itself is helpful. Simply put, copyright law gives creators the right to allow or not allow someone the right to copy their physical “work”. When thinking of trademarks, think distinctive signs and logos. Think big brands like McDonalds, Coca-Cola, etc. Distinguishing between copyrights and trademarks is far more complex than the previous four sentences, but the brief introduction may help keep their conceptual purposes straight.
Copyrights are usually sought after by authors, publishers, artists, architects, or any number of other creative professionals. Copyright law grants artists and other creators’ protection for their original creations, generally referred to as their “works”. In order to receive copyright protection, the work must meet certain requirements.
First, the work must be an original. In the copyright context, “original” means the work “must have been independently created by the author (opposed to copied from other works), and that it possesses sufficient creative authorship” See Feist Publications v. Rural Telephone Services Co., 499 U.S. 340 (1991). In other words, if the U.S. Copyright Office does not find the work as an original, it will refuse the work’s registration for copyright protection.
Second, the work must be either an expressive piece or in writing. Copyright does not extend to ideas or concepts. This tangible requirement ensures the copyrighted material is capable of being reproduced. The creators who receive copyright protection hold the exclusive right to use or authorize others to use the work on agreed terms.
The duration regarding the life cycle of copyrighted material is complex. The Copyright Act of 1976 (current law) went into effect on January 1, 1978. As a general rule, if the work was created after January 1, 1978, the copyright protection lasts the duration of the creator’s life plus an additional 70 years and renewal is not necessary. If the work was created before January 1, 1978, renewal registration is optional after 28 years. Please seek an experienced IP attorney for additional information.
Business and product owners file for trademarks. Trademarks protect symbolic images (marks) that relate to the goods or services provided by an individual or company. Generally, trademark protection ensures that the owners of marks have the exclusive right to use them or to the right to authorize their use for compensation in return. Registering for a trademark essentially provides legal evidence and public notice of ownership.
In order to file for a trademark, the mark generally must be distinctive. Distinctiveness applies to any symbol, word, or phrase as long as it does not closely resemble another mark. In addition to being distinct, the mark must also be used in some form of commerce. If multiple parties claim the ownership over the same mark, courts will usually grant protection to the first user of the mark. Though a trademark is valid for an unlimited time, the trademark must be renewed every ten years.
Seek Local Legal Advice
Intellectual property is largely governed by federal law, but state law also governs certain aspects. If interested in registering for trademark or copyright protection, its usually best to seek out local legal representation that has experience in intellectual property law.