Lesson 10: Intellectual Property
What You’ll Learn: For creatives, ideas are like having money in the bank. But you not only need to monetize them, but keep them falling into the wrong hands or being ripped off by a competitor. This lesson teaches you how to protect your works, which is far easier to do when you’re a business.
“There is no shortage of remarkable ideas; what’s missing is the will to execute them.”
~ Seth Godin
Have you ever heard the saying, “Ideas are a dime a dozen?” I doubt the person who coined that phrase ever had a single idea in their lifetime. Ideas have value, some more than others. They even have more value when they are turned into tangible products or services. And they can become priceless if they are protected as intellectual property.
As you think about your creativity in business terms, you will undoubtedly have ideas you want to protect. This is not something amateurs should do. Whether it’s a new seasoning recipe, a movie script that Ryan Reynolds would be perfect for, or some new lines of code that would greatly simplify 3D renders, you need to go the extra step and make sure they are properly protected.
In most cases, intellectual property (IP) protections should be handled by an attorney specializing in this law area. There are some things you can do on your own, but knowing the finer points of intellectual property law, especially if it has national or international implications, requires an expert. An intellectual property attorney can help you navigate the often complicated and time-consuming process so that you can protect your work with the full force of the law, which can vary widely by country.
Following are the primary types of intellectual property protection you may need in your business. In reading through these options, realize that no attempt is made here to provide any legal advice. These are simply guidelines, and there are exceptions to the rules. Again, seek the advice of an intellectual property attorney who can provide you with the necessary counsel.
Return to Main Office
Introduction: Are You Ready?
1. Thinking Like a Business
2. Business Structures
3. Access to Capital
4. Creating Revenue Streams
6. Finding Customers
8. Creating a Winning Pitch
9. Effective Negotiation
10. Intellectual Property
11. Managing Your Money
12. Going Global
As a creative, you are probably most familiar with the copyright. It is used primarily for creative works, including literary works, computer programs, databases, films, music, choreography, art, photographs, architecture, advertisements, maps and technical drawings. You cannot copyright an idea, procedure, method of operation or mathematical concept. Also, copyrights may not extend to titles, slogans or logos, depending on the circumstances.
There are two general protections offered in a copyright. There are economic rights, which allow the owner to derive a financial reward for the use of their original work, and moral rights, which protect the non-economic interests of the creator.
The economic rights provide for financial compensation and allow the creator to control its use. Permission is required to use a copyrighted work in print, public performance, a recording, broadcast, translation into other languages or adaptation into a derivative form such as a novel into a screenplay by another party.
Unlike other forms of intellectual property, copyright protection is extended automatically upon the creation of the work. There is no need to register the work to gain protection. You can, of course, voluntarily register the work at the state or federal level as this additional step can help in legal proceedings or the assignment or transfer of rights down the road.
Titles, short phrases, slogans, or the listing of product ingredients are not copyrightable because they don’t contain enough elements of authorship to demonstrate any form of original expression. That said, brand names, slogans and phrases used in connection with a product or service that has been protected under trademark law may be protected within the trademark portion of intellectual property law.
Copyright law doesn’t extend to what is known as “useful articles,” either. These would be things like lamps, clothing, sinks or computer monitors considered utilitarian. For example, you can copyright the print or fabric a piece of clothing is made from, but not the item of clothing itself. The design can’t be copyrighted because it is only a unique cut of the copyrightable fabric.
Any work created after Jan. 1, 1978 is protected under copyright law for the creator’s life plus an additional 70 years after their death. If it is a joint work with two or more people, the protection is extended to 70 years after the death of the last surviving creator. For works made for hire, anonymous and pseudonym works, the duration is 95 years from publication or 120 years from its creation, whichever period is shorter.
A patent protects an invention and grants its inventor exclusive rights pertaining to its use. The idea of protecting intellectual property is so important to the economy that its protections were outlined in the U.S. Constitution: Congress shall have power… to promote the progress of science and useful arts, by securing for limited time to authors and inventors the exclusive right to their respective writings and discovery.
Patents are handled by the United States Patent and Trademark Office (USPTO). The most common patent, the utility patent, offers protection for 20 years from the date of filing but is not enforceable until the date the patent is actually issued. Design patents protect ornamental designs, and plant patents offer protections to new varieties of reproducing plants.
A patent application is submitted to the patent office, which is reviewed by an examiner to determine whether or not it can be patented. If a patent is granted, the USPTO will give you the exclusive right to make, use and sell your invention in the United States. Some countries offer the same protection of a U.S. patent within their own borders; others do not.
A patent can be worth a fortune, but they are also expensive to pursue. A typical patent application can cost between $8,000 and $20,000 per patent. The actual application and review process is excruciatingly slow, taking two to three years to be processed. The market can change tremendously in that amount of time, and thousands of inventions have become irrelevant while the patent application is still under review. For small companies, this can be a significant barrier, but it is the only way you can legally protect a product or service you invent.