Intellectual Property

Intellectual property (IP) is typically defined as the property-based rights associated with various types of creations such as copyrights, trademarks, patents, and trade secrets. 

For example, if you create a logo for your business, you will usually own all rights pertaining to the use, distribution, or sale of that logo.

It may be possible to register your logo as a trademark or copyright depending on the circumstances.

Your rights to the various types of IP are seen as a limited monopoly over the protected property. As such, these rights can expire after a certain period of time.

If someone uses your IP or copies it without your permission, then you may be entitled to compensation or an injunction to prevent further infringement.

Yes. There are four general kinds of intellectual property:

• Trade secrets
• Trademarks
• Copyrights
• Patents

Our firm is able to provide counseling for copyrights, trademarks, and trade secrets. We do not provide counsel regarding patents.

A trademark is a designation of origin for a particular set of goods or services.

Trademarks can be in the form of design logos or words, and in very limited cases in the forms of color or sound.

Having a registered trademark does not automatically prevent other people from using your brand name or logo in every field or service, but it may prevent people from using your brand in the same or related goods or services.

Prior to applying to register your trademark, it is crucial that you talk with an attorney to determine whether there are any potential blocks for your brand name or logo.

Whether you currently own a trademark that is in the application stage and encounter an issue or if you are choosing a new trademark, you should consider contacting a trademark attorney.

In strictly legal terms, a copyright is an original work of authorship fixed in a 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.

There are several rights associated with a copyright, including, but not limited to, reproduction, distribution, public performance, and public display.

This definition applies to most original works of authorship, such as literary works, musical works including accompanying words, dramatic works, including any accompanying music, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound records, and architectural works.

Authorship is important because only a person who is legally the owner of the work is eligible to apply for the copyright.

Copyright protection generally does not extend to ideas, basic plot lines or tropes, and systems or processes.

For more information about your specific circumstance, contact an IP attorney.

Put simply, an intellectual property attorney will know the best strategies and practices for protecting your IP:

An attorney can help you register your IP or counsel you prior to registering your IP.

They can also help you properly license rights to your IP to third parties so you can maintain your IP and make it profitable.

Most importantly, an attorney can help you assess potential damages for infringement of your IP and discuss appropriate strategies that make sense for you.

While you may not feel you need an attorney for some tasks like copyright registration, it is never a bad idea to consult with an attorney to effectively protect your IP.

Fair use is a legal defense for copyright infringement. However, this defense largely rests on the specific facts of the case, and there is a large area of uncertainty on how to apply it.

Put simply, you are admitting that you infringed someone’s copyrighted work, but you claim to have a defense or a justification for your use. If your defense is unsuccessful, then you have already told the court you copied, and the court basically just calculates damages owed to plaintiff.

To assess fair use, the court reviews four factors on a case-by-case basis: 

• The purpose and character of the use (i.e. Was your use for parody, commentary, criticism, etc.?)
• The nature of the copyrighted work (i.e. Was the plaintiff’s copyright for something that involves more facts or creative elements and what is protectable?)
• The amount and substantiality of the portion taken (Did you copy a small portion or sound bite, or did you copy an entire book?)
• The effect of the use upon the potential market of the copyrighted work (Is your infringement preventing financial gain from plaintiff in related markets?)

Certain uses have been stipulated as more worthy of protection under fair use, but there are limits to how those uses can apply (i.e. news reporting, educational uses, criticism).

Many issues surrounding fair use are still in the process of being decided, so there is no bright-line rule for fair use, generally.

Should you receive a DMCA-takedown notice and/or a cease and desist letter threatening suit for copyright infringement, you should absolutely consult with an IP attorney immediately. 

If you have any questions about potential projects or creations, then you should also consider consulting an attorney to avoid infringement where possible.