A Business Guide to Copyrights, Trademarks, and Patents
The process of protecting creative ideas, business brands, or technological innovations is crucial to ensuring that businesses and creative people are rewarded for their innovations. Protecting intellectual resources is elemental for a business being able to function and an artist being able to sustain their art. This is the realm where copyrights, patents, and trademarks reside. Deciding which is best for which scenario can be confusing, but each serves a specific purpose and offers a varying degree and length of protection.
Copyrights are protections for authorship of any creative work. Literature, music, movies, and artwork can all be copyrighted. Copyrights specifically protect the original author's distribution, reproduction, adaptation, performance, and display rights. The owner of a copyrighted work therefore has complete control over how and where their creation is used. In order to be granted an official copyright, an author must send the work being copyrighted with their application and a fee to the U.S. Copyright Office for review. In the U.S., copyrights for works published after 1978 last for the life of the author plus 70 years, passing on to heirs when the author dies. Copyrights can also be sold or transferred to other entities. Older works require periodic renewals for the copyright to remain valid.
Patents and Intellectual Property
While copyrights protect creative works, patents protect the intellectual property rights for technical innovations. Intellectual property is any creation of the mind that is granted legal rights, but in the case of patents, it refers to inventions. The patenting process is a bit more complex than that for a copyright; in this case, the filer must prove that their invention innovatively solves a problem. This is broken down into three requirements to be proven for patent acceptance: The invention must be new, inventive (or non-obvious), and industrially applicable. The last requirement is important because it requires the inventor to prove the tangibility of their invention, rather than patenting a hypothetical thought experiment. All patents fall under one of three categories: utility patents (functional products or processes), design patents (decorative design of useful products), or plant patents (for new living plant varieties). Generally, patents are good for 20 years after filing and cannot be renewed, instead becoming part of the public domain.
Trademarks are similar to copyrights, but they are used for commercial or business intellectual property, like logos, business names, slogans, or other elements of brand identity. For example, an LLC would need to trademark their business name to protect it from being used by a different business entity. Trademarks do not expire as long as they continue to be used by the filing business.
Creative materials not protected by copyrights, trademarks, or patents are considered part of the public domain. Works in the public domain can be reproduced, altered, or improved upon and have essentially no legal owner. Public-domain works can include government works, scientific principles, older works with expired copyrights or patents, and certain legislative writings.
Fair use is a section of copyright law that allows the use of a copyrighted work without the author's permission in certain circumstances. Fair use can be argued if the work is used in a criticism, commentary, news reporting, or for teaching or research. Sometimes, fair use can be subjective, but it is never allowed to make the user money. If the copyright holder believes that their work is being used in a way that isn't covered by fair-use guidelines, they can sue for damages. If a judge rules that the use is not fair use, then the person is committing copyright infringement and can be required to pay financial penalties to the copyright holder.
Copyright infringement occurs when a work that is not public domain is used in a way that does not constitute fair use. Fines can range anywhere from $200 to $150,000 for each work infringed. Copyright infringement can be accidental, as copyrighted works published after Jan. 1, 1978, are not required to display a notice of copyright. Therefore, it is important to always assume that a work is not public domain until it is confirmed otherwise, as a work can still be copyrighted even if a copyright notice is not visible. There is typically a statute of limitations of three years on copyright infringement cases, meaning that copyright holders cannot sue more than three years after the alleged incident of copyright infringement occurred.