"Intellectual Property, Copyright" by khaase [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabaySince I began this wondrous blogging adventure with the Texas Freelance Association, I have spent a great deal of time delving into the world of copyright law. We have talked about copyright issues that freelancers might face on a semi-regular basis, as well as various exceptions to copyright protection. I have given a few examples of how the Fair Use Doctrine allows the use of copyrighted materials in certain circumstances and for specific purposes, and how copyright protection only extends to expressions of ideas, not ideas themselves. Hopefully this has been an edifying and entertaining journey so far.

That said, if you think of the world of intellectual property law as a body of water, we have barely gotten our feet wet. Today, I am going to show you the entire ocean. Well, a panoramic view of the ocean, anyway. Actually, this will be more like a satellite image of an ocean that shows you how big the ocean is, but offers little in the way of specific details like which coral atoll has the best surfing, or where one might expect to see whales.

Look, intellectual property is a big field of law, okay? That’s all I’m trying to say! Let’s just get started.

What Is Intellectual Property?

To understand what “intellectual property” is, we must first consider what “property” actually is. Property law is a vast area with centuries of history behind it, and now that I have been out of law school for over a decade, I finally realize that it can be quite fascinating. Most non-lawyers have never had to think about this before, but “property,” as a concept, is very difficult to define. The word often refers to a tangible object or plot of land, but in a legal sense, the concept of “property” has more to do with what rights a person has with regard to that object, land, etc. than to the actual object itself.

The most important property right is the right of exclusion—if I own my house, I have the right to exclude you or anyone else from it, for any reason or no reason at all. If you try to enter my house without my permission, the law of trespass allows me to hold you accountable for that. If you take my laptop without my permission, you could be guilty of theft. Many other rights held by a property owner derive from the right of exclusion, such as the right to consume, modify, lease, mortgage, sell, or give away property.

Property is divided into several different categories, based on the characteristics of the property itself and the types of ownership rights involved:

  • Real property (or real estate) includes land, structures attached to the land, rights to use land for certain purposes (such as an easement or right-of-way), rights to certain parts of a parcel of land or a structure (such as a condominium), and rights to use land or a structure at certain times (a timeshare).
  • Personal property includes tangible objects like a pen, cellphone, coffee mug, chair, lamp, original Van Gogh painting, or Ferrari 250 GTO. It might also include money in cash form (more on that in a moment).
  • Intangible property is often considered a subcategory of personal property. It includes money that is not in cash form (e.g. bank accounts), securities (stocks, bonds, treasury bills, etc.), insurance policies, and other assets that exist primarily on paper.
  • Intellectual property is the final category of property. The World Intellectual Property Organization (WIPO) defines it as:

creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.

Intellectual property is further divided into different types of rights and protections. I am listing these in what I believe is the descending order of their importance to most freelancers.

"Copyright, Patent, Trademark" by BusinessSarah [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0/)], via Flickr

Copyright

We have discussed copyright at some length. Copyrights give the authors of creative works the exclusive right to use, modify, exhibit, or exploit their works. Federal law defines works subject to copyright protection as:

[O]riginal works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

Any creative work is protected by common-law copyright from the moment the author creates or publishes it, but authors can obtain more concrete protection by registering their works with the U.S. Copyright Office.

Trademark

Trademarks and service marks (often collectively referred to as trademarks) are names and symbols used to designate goods or services that are made commercially available to the public. This includes brand names, words or phrases closely associated with a particular product or service, logos, and other symbols or images, generally known as “marks.”

A mark becomes entitled to legal protection when it is first used in commerce, to the extent that it is unique to the type of product or service to which it is attached. Trademark registration is available at the federal and state levels. The U.S. Patent and Trademark Office (USPTO) registers trademarks nationwide in accordance with a federal statute known as the Lanham Act. Registering a trademark with the Texas Secretary of State’s office provides protection within Texas.

Trade Secrets

Texas law defines a trade secret as:

information, including a formula, pattern, compilation, program, device, method, technique, process, financial data, or list of actual or potential customers or suppliers, that:
(A) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
(B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Unlike copyrights, patents, and trademarks, the purpose of legal protections surrounding trade secrets is to keep them secret. No government agencies register trade secrets, but state laws do establish procedures for designating information as “secret.”

Employees and contractors—including freelancers—of a business that maintains proprietary or secret information have a legal obligation to keep that information confidential. Texas adopted the Uniform Trade Secrets Act in 2013. Unauthorized disclosure of trade secrets can result in financial liability to the business.

Trade Dress

“Trade dress” refers to a product’s distinctive visual characteristics or packaging, which consumers are likely to associate with that product upon first glance. Examples might include the red-and-silver design on Coca-Cola cans or the yellow-and-green packaging of Crayola products.

"Crayola 1st No64 open" by Kurt Baty (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

The Lanham Act, mentioned above with regard to trademarks, prohibits the commercial use of any “any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact” that would reasonably be expected to mislead consumers about the source or sponsorship of a product. In other words, a beverage maker cannot distribute their product in cans that, because of a similar name or design, are likely to cause consumers to think the drink is a Coca-Cola product when it is not.

Patent

Patent protection is available exclusively under federal law, and is available for “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” This includes inventions, certain industrial or medical processes, and in some cases, computer designs and software. Obtaining patent protection involves a complicated application process with the USPTO.

Industrial Design Rights

This type of intellectual property right applies to the aesthetic or visual aspects of a product that are not related to its function, and therefore not directly covered by patent law. There is some overlap between industrial design rights and copyright, since both involve tangible creative works.

In the United States, design patents protect some types of industrial design. International registration of industrial designs is available through WIPO under a treaty known as the Hague Agreement Concerning the International Deposit of Industrial Designs. The United States became a party to this treaty in May 2015.

Plant Breeders’ Rights

Also known as “plant variety rights,” this form of intellectual property gives plant breeders exclusive control over seeds and other materials related to new plant varieties for a limited time period—up to 25 years in the U.S. The International Union for the Protection of New Varieties of Plants, based in Geneva, Switzerland, oversees registration and protection of new plant varieties for member nations. The United States has been a member since 1981.

Some overlap exists between plant breeders’ rights and patent rights, and the extent to which patent law applies to biological materials is currently a controversial topic in some circles.

 


 

Coming soon: More on the Fair Use Doctrine, defamation, software and intellectual property rights, and more fun stuff.

Photo credits: “Intellectual Property, Copyright” by khaase [Public domain, CC0 1.0], via Pixabay; “Copyright, Patent, Trademark” by BusinessSarah [CC BY 2.0], via Flickr; “Crayola 1st No64 open” by Kurt Baty (Own work) [CC BY-SA 3.0], via Wikimedia Commons.