Lawmakers have ingrained the concepts of copyright and patent into our legal system for centuries as part of the overall legal concept we know as intellectual property law. The difference between copyright and patent, however, can be murky.
Samuel Clemens (more famously known as Mark Twain) advocated tirelessly for both copyright and patent reform. Not one to keep his views private, Clemens naturally chimed in on these subjects. Regarding copyright, he quipped, “A day will come, when, in the eye of the law, literary property will be as sacred as whiskey, or any other of the necessaries of life.” (speech in Montreal, Quebec, 1881). He famously defends patents in A Connecticut Yankee in King Arthur’s Court, writing “A country without a patent office and good patent laws is just a crab and can’t travel any way but sideways or backward.”
I. What Is A Copyright?
The United States Copyright Office defines copyright as “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.” Congress and courts have added to this basic definition attempting to clarify and modernize the concept of copyright. Fundamentally, copyright protects original works of creativity such as JK Rowling novels, photographs of models, music, and movies. These works can even include architectural plans and computer software.
a. Dances and Fortnite Example
Copyright law has protected dance choreography since 1976, but the original legislation provided no clear definition of choreographic works. House and Senate Reports of that era did state that “‘choreographic works’ do not include social dance steps and simple routines.” This tiny, twice repeated, clarification proved to be the undoing of actor Alfonso Ribeiro in his lawsuits against Epic Games, the creator of Fortnite: Battle Royale and Take-Two Interactive, the creator of NBA2K16. Epic Games included the dance, known as “The Carlton,” as an in-game purchase in both games. The short series of ungainly dance moves clearly represents the iconic dance Ribeiro made famous in his role as the patently uncool Carlton in the series The Fresh Prince of Bel-Air. However, the United States Copyright Office refused to award the copyright, stating that the dance represents a “simple dance routine,” rather than an intricate work of choreography.
As Ribeiro’s case illustrates, copyright requirements can be stringent. A work must be original, expressed, fixed in a tangible media and of sufficient size. That is not to say a work need be spectacularly original, or even of high quality to receive copyright protection.
One of the coarser copyright examples, the movie Dirty Grandpa meets all requirements for legal protection. While it may not contain a single original element, the screenplay combines countless, tired and predictable bits of raunchiness into a never-before written script. The act of putting this fiasco onto paper fixes it to a tangible media. The original idea for the screenplay could have been the drunken ramblings of the author’s bitter uncle. Because said uncle did not record his concept in a manner “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration,” he has no copyright.
b. How Long Does Copyright Last?
Congress has significantly modified United States federal copyright law since its inception in 1790. Original copyright law granted a mere 14 years of protection, with the right of renewal for an additional 14 years if the author survived the first period. How long a copyright term lasts increased gradually until 1978, at which time copyright law established the life of the author plus an additional 70 years as the duration of copyright. Copyright law protects works created for hire, anonymously, or under a pseudonym are protected for 95 years from the date of first publication or for 120 years from the date of creation, whichever comes first.
What happens when copyright expires? The work in question becomes part of the “public domain.” Many people are confused by this term. Some seem to feel so long as a work is available to the public, then anyone can use it. No. The time periods discussed the paragraph above still apply. Once they expire, then anyone may use the work without copyright restriction. In fact, here are a few well-known works about to enter the public domain in 2019.
c. Exclusive Rights
Owning copyright grants the holder six exclusive rights to:
- produce and make copies of the original work,
- publicly display the work,
- publicly perform the work,
- perform sound recordings publicly via digital audio transmission,
- prepare derivative works based on the original work, and
- distribute copies to the public by transfer right or sale.
No other person or entity can claim these rights without the author’s explicit permission. Copyright examples abound in today’s media-saturated world. In one recent case, tattoo artist S. Victor Whitmill sued Warner Brothers for a copyright infringement based on their use of the facial tattoo he created exclusively for Mike Tyson. It seems Warner Brothers’ use of the tattoo on actor Ed Helms in the movie The Hangover Part II violated his copyright. The case settled out of court with Warner Brothers paying an undisclosed sum to Whitmill.
d. Filing A Copyright
If you need to file a copyright, I have some good news. The Copyright Office has made the filing process fairly easy, and you can often handle the filing on your own. Here’s a helpful video on how to file a copyright.
e. Copyright and Fair Use
The fair use defense is the primary defense in copyright infringement cases. Fair use exemptions of copyright law originated as a protection of the free press. In its most basic form, the concept of fair use allows the verbatim copying of copyrighted material for “transformative” purposes. This exemption allows for commentary, parody and scholarly examination of a given work. The United States Postal Service asserted a fair use defense when it mistakenly used a copyrighted picture of a Statue of Liberty replica in Las Vegas as the model for a postage stamp. The actual Lady Liberty now resides in the public domain, and copyright no longer protects representations of her. The court ruled in the photographer’s favor concluding, “Mr. Davidson’s work was original and…the Postal Service’s use of it was not permitted by statute.” The court awarded Davidson 3.5 million dollars.
II. What Is A Patent?
You would be surprised how few lawyers have a true understanding of the basics of patent law since it is not taught as a mandatory class in law school. The essential difference between copyright and patent is, while copyrights protect tangible works, patents grant property rights to inventions.
a. Types of Patents
The United States Patent and Trademark Office (USPTO) recognizes three types of patents:
- utility patents,
- design patents, and
- plant patents.
The Patent and Trademark Office awards utility patents to “any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof.”
Design patents cover “new, original, and ornamental design[s] for an article of manufacture.”
Plant patents protect discoveries of distinct varieties of plants that can be “asexually reproduced.”
You cannot patent an idea.
Patent requirements stipulate the inventor must clearly describe and register the patent with the United States Patent and Trademark Office. Patents run the gamut from the silly (The Automatic Pet Petter – US 20060207518 A1) to the revolutionary (Apparatus for utilizing solar radiant energy – U.S. 389124A).
b. Patent Law Purpose
Designed to spark creativity, the patent system encourages innovation by allowing an inventor to profit from their labor but also bring the invention into the public domain. Anyone can submit a patent application. Rocker Eddie Van Halen successfully met the patent requirements for novelty and non-obviousness with his “Musical Instrument Support” (US 4,656,917). Though Van Halen provided a complex explanation in his patent application, the device is essentially a board that drops down from the back of a guitar enabling him to shred horizontally. Prince modified the design of the “keytar,” a keyboard/guitar hybrid, to patent his treasured “Purpleaxxe,” more formally known as the “Portable, electronic keyboard musical instrument.” (US D349127S).
Theoretically, Van Halen’s utility patent serves him better than Prince’s design patent. A utility patent documents a new product and exhaustively describes the function of an invention, while a design patent describes the specific look, often of an existing product. Of the two types of patents, the utility requires more effort and more money and offers more extended legal protection. How long a patent term last depends on the type of patent. A utility patent lasts 20 years compared to the 14 years of a design patent. Owning a utility patent allows the holder to control and collect royalties for any iteration of their invention. Though design patents, notably “Mounted mechanical fish” (US D440525S1), aka Big Mouth Billy Bass, can make millions. As a historical side note, Al Green received more royalties for Take Me to the River as sung by Billy Bass than any other recording of the song.
c. Filing A Patent
Filing a patent is more difficult than registering a copyright. Most inventors use a lawyer. Here’s what the Patent & Trademark Office has to say on the subject.
d. Patent and Fair Use Defenses?
The fair use defense does not apply with patents as they are not tangible artistic works. They are processes, designs, and objects of manufacture. Creating any one of these things without licensing or permission would therefore automatically violate the patent. For example, if Frank Lloyd Wright time-traveled to the present, he could copyright his architectural plans (subject to fair use). However, if he created a new concrete casting system, he could patent it and retain exclusive rights to its use. That is not to say he couldn’t sell or license either copyright or patent. A person can sell, license, and even lease both copyright and patent. Walter Hunt sold his patent for the safety pin for $400 in the late 1800s, never imagining it would go on to make thousands of dollars for its manufacturer. Most patents, however, never generate a significant amount of money.
III. Patent and Copyright Differences
The difference between copyright and patent is copyright protects the concrete expression of an artistic idea, while a patent protects an invention. The length of protection is vastly different for each type of legal designation. Because the law defines copyright protection by the life of the artist plus 70 years, we determine how long copyright lasts by the age of the artist when they created the work and the age to which they live. The type of patent defines how long it lasts – 20 years for a utility or plant patent and 14 years for a design patent.
Another notable difference between copyright and patent is copyright does not require maintenance fees, while patent maintenance fees can be quite high. Perhaps this is why singer Paula Abdul abandoned her patent of the “Dynamic microphone support apparatus” (U.S. 20090196451A1 – a cement-filled hemispherical mic stand) in 2019 though it was eligible for nine more years of legal protection.
Something as simple as an e-book requires a host of patents and copyrights. The book is a fixed expression of the author’s creativity, and copyright thus protects it. This protection is especially necessary for digital media as electronic information can be manipulated, revised, and forwarded without the knowledge of the author and overt evidence of tampering. The device displaying the book (e-reader, tablet, laptop, etc.) is an invention protected by patent. The software that enables the device is protected by both copyright (the code) and patent (the functionality). Though the difference between copyright and patent is legally significant, both copyright and patent protect the increasingly sophisticated models of intellectual property that our technological age has produced.
There was a time when the difference between copyright and patent law was easy to detail. Technological innovations are blurring the lines.