Never heard of intellectual property law? You might be surprised to learn the founders of our nation were keen on the concept and devoted part of the Constitution to the topic. Specifically, Article 1, Section 8 contains the following:
The Congress shall have Power…To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries…
For the past 200 plus years, Congress has passed intellectual property law to provide critical protections for the creators of artistic works, products, services, and inventions. That being said, more than a few people are confused about intellectual property law, so let’s break it down into digestible pieces.
What Is Intellectual Property Law?
Intellectual property refers to creative creations by either a person or company. You are surrounded by intellectual property almost all the time. Let’s assume you are reading this article through the Safari browser on your iPhone. We’ll discuss these types of intellectual property in greater detail later in this article, but for now, let’s break down the rights associated with this content.
- I own the copyright to this article because I wrote it.
- Apple owns the copyright to the code that makes Safari function because it created the code.
- The Big A owns the trademark to the iPhone name because the word reflects a product in commerce.
- Apple owns patents for various functions of the iPhone because it invented those processes.
The purpose of intellectual property law is to provide the creator of a work, invention, or symbol in question with the exclusive right to use their creation. If another party uses the work without first obtaining permission from the creator, then the person can be sued for “infringing” upon the creator’s rights. In some situations, the government can charge the infringing person criminally.
Types of Intellectual Property
How many types of intellectual property laws exist? There are three primary classifications, but some commentators argue there may be as many as six types. For this article, we’re going to focus on the three primary areas – copyright, trademark, and patent.
1. Copyright Law
Copyright law is likely the most common form of intellectual property law most people experience. The reason, of course, is the internet where sharing of videos, songs, photos, and other “works” raise a host of copyright issues.
What is Copyright?
The Copyright Office provides the following explanation:
Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.
A better definition might be that copyright is the right of a creator to exploit their creative content. Let’s consider Steven King. A prolific writer, Mr. King is known to produce three to four new novels a year – a figure that would make most writers faint.
Ah, but when does copyright start when Mr. King finishes a book? The answer is the moment the creator puts it into a fixed tangible form. For example, the moment Mr. King completes the transcript and saves it as a file on his computer or, even better, the moment he prints out the full transcript – 200 plus pages. At this point, Stephen King is the only person who has rights to the new novel.
Right To Exploit
You will read a wide variety of articles in which the authors struggle to define what owning copyright in a work means. You can boil all the legalese down to a simple concept. A copyright gives the creator of the work the right to exploit that work. The exploitation could include:
- Performing the work,
- Licensing the work for use in another medium,
- Selling the right to a third-party;
- Allowing people to use the work without paying such as with open-source software; and
- A variety of other options.
Let’s return to Stephen King again. He’s completed his book. Now what? Well, Mr. King is likely going to have a contract in place with a publisher. In the agreement, Mr. King will grant the publisher the exclusive right to create copies and sell them in a particular geographic area, such as North America. The publisher, in turn, will provide Mr. King with an advance and royalties on each book the publisher sells. In short, the traditional publishing model.
However, Mr. King still has other rights. He can, for example, sign a film development deal in which he agrees to grant a producer the right to turn the book into a movie. Mr. King has done just that with many of his books, including:
- 1976 Carrie
- 1979 Salem’s Lot
- 1980 The Shining
- 1982 Creepshow
- 1983 Cujo
- 1983 The Dead Zone
- 1983 Christine
- 1984 Children of the Corn
- 1984 Firestarter
- 1985 Cat’s Eye
- 1985 Silver Bullet
- 1986 Maximum Overdrive
- 1986 Stand by Me
- 1987 Creepshow 2
- 1987 The Lawnmower Man: A Suburban Nightmare
- 1987 A Return to Salem’s Lot
- 1987 The Running Man
- 1989 Pet Sematary
- 1990 Tales from the Darkside: The Movie
- 1990 Graveyard Shift
- 1990 Misery
- 1992 The Lawnmower Man
- 1992 Sleepwalkers
- 1992 Pet Sematary Two
- 1993 Children of the Corn II: The Final Sacrifice
- 1993 The Dark Half
- 1993 Needful Things
- 1994 The Shawshank Redemption
- 1995 The Mangler
- 1995 Dolores Claiborne
- 1995 Children of the Corn III: Urban Harvest
- 1996 The Lawnmower Man 2: Beyond Cyberspace
- 1996 Sometimes They Come Back… Again
- 1996 Children of the Corn IV: The Gathering
- 1996 Thinner
- 1997 The Night Flier
- 1998 Children of the Corn V: Fields of Terror
- 1998 Apt Pupil
- 1998 Sometimes They Come Back… for More
- 1999 The Rage: Carrie 2
- 1999 Children of the Corn 666: Isaac’s Return
- 1999 The Green Mile
- 2001 Hearts in Atlantis
- 2001 Children of the Corn: Revelation
- 2001 The Mangler 2
- 2002 Firestarter 2: Rekindled
- 2003 Dreamcatcher
- 2004 Secret Window
- 2004 Riding the Bullet
- 2005 The Mangler Reborn
- 2007 Creepshow III
- 2007 1408
- 2007 The Mist
- 2007 No Smoking
- 2009 Dolan’s Cadillac
- 2011 Children of the Corn: Genesis
- 2013 Carrie – again
- 2014 A Good Marriage
- 2014 Mercy
- 2016 Cell
- 2017 The Dark Tower
- 2017 It (2017 film)
Yes, 62 films. And this number doesn’t include development rights Mr. King has sold for television show development. Regardless, you can see how owning the copyright to a work can have great value.
Copyright infringement is the unauthorized use of a copyrighted work for which there is no accepted defense. Assume Mr. King writes a new novel. I purchase it off of Amazon. Next, I take the book apart, copy all the pages, bind the copied pages together, create a new cover, and start selling it to local bookstores. I would be violating Mr. King’s copyright because I am exploiting his “work” without his permission. How about a real-life example of copyright infringement in action?
In 1987, the group Beastie Boys released their hugely popular album Licensed to Ill. They included a track by the name of “Girls” on it. The tune was readily identifiable by its very unique beat. This beat proved problematic for a toy company who released a toy promotion video in 2013 that sounded oddly familiar.
Here is the original song:
Beastie Boys filed a lawsuit against GoldieBlox for copyright infringement and other legal claims. The parties ultimately settled with GoldieBlox agreeing to remove the ad, donate a million dollars to a charity of the Beastie Boys choosing, and apologize for using the song beat without permission.
Fair Use and Public Domain Defenses
In creating copyright law, Congress decided there were particularly situations where we as a society would benefit from allowing the use of copyrighted materials without the permission of the creator of the work. Defendants in infringement actions assert fair use and public domain as the two most common defenses.
What is fair use? Fair use is an exploitation of a copyrighted work we allow under intellectual property law. For example, we enable people to use short clips of films as part of movie reviews written up in papers, on websites or discussed in YouTube videos. We allow this use because criticism is essential in helping us understand the quality of something. For example, whether a movie is good enough for us to buy tickets or should be avoided like the plague.
Courts weigh four factors when considering whether the use of a work is fair use, including the:
- Purpose and character of your use,
- Nature of the copyrighted work.
- Amount and substantiality of the portion taken, and
- Effect of the use upon the potential market.
What does this mean in English?
- Have you changed the material sufficiently to transform it into something new?
- Is the original work truly creative or more a collection of facts?
- How much of the original work are you using?
- The effect upon the potential market for the original work.
Let’s consider an example – a movie review of Aquaman containing written text and a two-minute trailer for the film.
- Has the original work been transformed? Yes, we’ve created a unique review, which is a point for a fair use claim.
- Is the original work factual? No, so this factor would weigh against a fair use finding.
- How much of the original work are you using? A two-minute trailer is tiny compared to the full film, a point in favor of fair use.
- What impact will our review have on the potential market for the original work? Now, this does not mean will our negative movie review hurt the market? Instead, it means will people see our review instead of the movie? Of course, not. Another point for fair use.
The final score favors a fair use finding 3 to 1. And, yes, every case is decided upon these grounds. However, we can generally say that criticism and parodies of copyrighted works will almost always be allowed by the court as fair use.
Ah, ye’ old public domain defense. Let’s start by talking about what the public domain is not. It is not the right to use any copyrighted work that is in public. The word “public” refers to the fact we are going to let the public use these works, but not immediately. While we may allow creators the sole right to exploit their works, this right does not last forever. We employ different time periods under copyright law, but the most common is the author’s life plus 70 years.
Stephen King writes horror novels, so hopefully, he will not mind us killing him off for this article. Mr. King is 71 years old as of August 9, 2019. The average American male lives to 78, so let’s say Mr. King kicks off in seven years – 2026. He would control the copyright to his various works until 2026 with his estate then controlling the copyright for another 70 years – 2096. Anyone can use his original works after December 31, 2096, without worrying about copyright restrictions or paying a royalty to use the stories.
Do You Have To Renew Copyrights?
If you created the work before January 1, 1978, then you must renew every 28 years. You do not need to file for renewal if you created the work after January 1, 1978.
2. Trademark Law
What is your favorite brand of something – shoes, electronics, etc.? Now imagine purchasing a product with that brand name only to discover it is a cheap rip-off. Trademark law is designed to prevent such an outcome.
What Is A Trademark?
We define a trademark as a symbol, word, or phrase that identifies a product, service, or company under intellectual property law. While technically correct, you might be better off thinking of trademarks in a different way. How about, “A trademark is a symbol, word, or phrase that identifies a product, service, or company from a quality perspective.”
Consider a silhouette of an apple with a bite mark – the iconic symbol for Apple. You associate a particular level of quality with any product that has that mark. Maybe you view Apple products a the greatest on the market, or perhaps you have a negative opinion. Regardless, you decide to purchase an Apple product with a specific expectation of the quality you are purchasing.
Companies create and use trademarks in commerce for this very reason – to establish brands with consumers. If the company offers quality products or services, a consumer is more likely to buy the companies products when the consumer sees the relevant mark.
Technically, these words, phrases, and symbols are known as “marks.” Companies use the word trademark to identify a company that sells products or the products themselves. If a mark is in reference to a company offering services or the services themselves, we call it a service mark. The same rules apply to both types of marks, and they provide equal protection to their owners.
Trademark infringement is the unauthorized use of a mark in connection with the sale of goods or services that is likely to confuse consumers about the source of the products or services. The infringement claim also applies to marks that are substantially similar to the registered marks in question.
Let’s consider a humorous example. I was once traveling through China with some friends. The airline had lost my suitcase, so I needed jeans. We went to an outdoor market to pick up a pair. We had a good laugh when we started looking at the jeans on sale and identified the “Levy’s” brand. The name was, of course, a rip-off of Levi’s trademark.
Did the Levy’s mark infringe on Levi’s trademark for jeans? Yes. The company behind Levy’s is obviously trying to attract Levi’s customers. The infringement claim is bolstered by the fact the company is selling the same type of product as Levi’s. A massive lawsuit would’ve been filed against the company behind the Levy’s jeans if it sold the product in the United States. China, however, has feeble intellectual property laws, which allows this type of devious conduct to flourish with few consequences.
The primary defense in a trademark case is to attack various aspects of the infringement claim. A defendant might argue that the mark is not similar enough to the original mark. Ultimately, the critical argument for the defense to make is that its mark does not generate confusion for consumers. Let’s take another look at our Levy’s case above to see how this might play out.
Levy’s sells the same product as Levi’s – jeans. However, the company behind the allegedly offending mark might be able to make a good argument that consumers are not fooled or confused by the “Levy’s” branding. I certainly was not. In fact, our group thought the name was hilarious and purchased a few pairs. Not to wear – I bought authentic Levi’s in a store – but to show people back in the States the hilarious rip-off attempt. While the use of the Levy’s mark might be obnoxious, it didn’t cause any consumer confusion for us.
How Long Does A Trademark Last
A trademark lasts for as long as you use the mark in commerce. However, you should always register a mark to gain extra legal protection. A registered trademark lasts for ten years, but you can renew it for subsequent ten year periods. Importantly, you must also file an affidavit of use between the fifth and six-year after the mark is registered the first time.
Still confused? A visual explanation can help.
3. Patent Law
Copyrights and trademarks are a lovely form of intellectual property law and all, but neither is particularly useful when it comes to protecting an inventor’s work. Patent law fills this void.
What Is A Patent?
Much like we see with copyright, a patent is the right of an inventor to be the sole person authorized to exploit their inventions. The goal of patent law is to encourage individuals and companies to develop new ways of doing things by making it potentially lucrative to do so.
Although there are three classifications of patents – utility, design, and plant – it is often easier to think of patents as protecting four areas of invention:
- Machine – A new mechanism of some sort such a hybrid gas-electric engine for a vehicle,
- Manufacturing – An original method for manufacturing something such as a plastics press,
- Chemical Composition – A unique combination of multiple chemical compounds, and
- Processes – A new way of doing something.
Right To Exploit
Patent law grants the inventor the right to exclusively exploit their invention however they see fit. In some cases, the inventor may launch a company and sell the product the patent produces. Alternatively, an inventor might license the patent out to a larger existing company in exchange for an advance payment and royalty on sales.
In some cases, the inventor may make the patent available for use by others for free. On June 12, 2014, Elon Musk announced that his company Tesla would make all their patents available to the public and would not sue anyone using the patents in good faith, even competitors. His motivation for providing the patents to other inventors royalty-free was a concern that the patents were keeping others from achieving advances in electric car technology, which hampered the fight against climate change. Here’s what Musk had to say,
Patent infringement is more or less what you might expect. A patent holder accuses another party of using the patented invention without permission. Let’s use Tesla as an example. As an early entry to the mass production of electric cars, Tesla developed numerous advances in the electric car field. The company then patented many of those new machines, processes, and chemical inventions. If GM were to suddenly come out with an electric car incorporating Tesla’s patented technology, Tesla could claim infringement. Obviously, Tesla will not make such a claim now, but this hypothetical scenario represents a classic patent infringement claim and also shows how patents can limit development in a field.
In fact, patent trolls are a very real problem when it comes to the abuse of the patent system. Oddly, a comedian has summarized the issue better than most lawyers:
Patent Infringement Defenses
Lawyers assert three primary defenses when fighting a patent infringement claim:
- The patent should be invalidated because the Patent Office should not have granted it in the first place.
- The defendant’s actions do not infringe on the original patent.
- The defendant was the first party to create the invention in question.
Other defenses exist, but these classifications usually represent the main thrust. Patent law is a very complicated field, so we’re not going to write 25,000 words on patent litigation and defenses. You can read this write-up from a law firm if you would like to learn more.
How Long Does A Patent Last?
The answer to this question is more complicated than you might expect. Following is the general breakdown:
- Utility Patent – 20 years from the date of the earliest filing.
- Design Patent – 14 years from when the patent is granted.
- Plant Patent – 20 years from the date of earliest filing.
Prior to June of 1995, however, the following periods applied:
- Utility Patent – 17 years from the date of the earliest filing.
- Design Patent – 14 years from when the patent is granted.
- Plant Patent – 17 years from the date of earliest filing.
A patent holder must also file maintenance affidavits during the pendency of the patent term.
Can Patents Be Renewed or Extended?
Intellectual Property Law
Intellectual property law has existed in the United States since the founding of the country, and in other countries for thousands of years. While the field can be complicated and controversial, you should always keep in mind the goal is to encourage people to create new things by providing them with the right to exploit the items they create exclusively.
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