The term intellectual property, or “IP,” refers to broad property rights vested in the intangible. In short, intellectual property laws protect entities that do not have a physical form. Owners of these types of property have the right to:

  • Possess it;
  • Prevent other individuals from possessing it; and
  • Preserve its integrity.

This forms the basis of laws against:

  • Theft;
  • Trespass; and
  • Vandalism.

Intellectual property law encompasses copyright laws, patent laws, and trademark laws. Additionally, each state may have its own specific intellectual property laws and codes. An example of this would be how Montana intellectual property law is specifically addressed in the Montana Code Annotated.

As an artist, inventor, scientist, or creator, you should take measures to ensure that others do not wrongfully profit from your original ideas. The purpose of intellectual property laws is to encourage new:

  • Ideas;
  • Technologies;
  • Artistic creativity; and
  • Inventions for economic growth with the confidence that their creative work and ideas will be protected.

This may include names and logos which are attached to products, inventions, and original works of authorship. Because no individual can physically possess these things, the laws which apply to personal property cannot and do not apply to intellectual property.

In response, intellectual property laws generally protect the exclusive rights to use or reproduce the intellectual property rather than its possession. In some circumstances, intellectual property laws may also protect secrecy.

Generally, the person who first created or invented something is considered to be the owner of the intellectual property. However, some employers provide in their employment contracts that the employer owns what the employees create on the job. Additionally, the rights to intellectual property may be given away temporarily by using a licensing agreement.

What Is Copyright Law?

A copyright is the right to prevent others from using your originally authored work Copyright law is similar to trademark law, which covers logos and brand names, protecting inventions. The item or work that is to be copyrighted should be an original; meaning, not a reproduction or copy of property that is already copyrighted.

Under federal copyright law, a copyright entitles the owner to many exclusive rights, such as the right to:

  • Reproduce the copyrighted work as they wish;
  • Distribute copies of the copyrighted work to the public for sale;
  • Perform the copyrighted work;
  • Rights to produce a license that are derived from other copyright materials; and
  • Licensing rights to manufacture and make a product.

Copyrights can protect endless types of creative work, such as:

  • Recorded or sheet music;
  • Books and novels;
  • Software codes, video games, and CD-ROMs. However, it is important to note that these may not be protected if they have already been distributed through a copyleft agreement; and
  • Various forms of art, such as paintings, plays, dance choreography, and sculptures.

According to federal law, you can obtain a copyright to your work automatically once you have “fixed” your original work in a “tangible medium of expression.” What this means is that you must have independently created the work, and not adapted it from something else. Additionally, the work must be placed in a sufficiently permanent medium so others can reproduce, view, and/or communicate it.

Copyright protection arises the moment that an author fixes a work in a tangible form, without the author having to do anything. Once a type of work has copyright protection, the inventor or creator decides who can use the work, and for what purposes the work can be used. Simply put, once the work is protected, no one else can use the work without the creator’s permission.

What Is Copyright Infringement?

There are a number of reasons you should formally register your copyright. While your work does have automatic copyright protection once it fits the above description, you are limited in your remedies if you do not properly register the copyright.

An example of this would be how copyright registration will affect:

  • Lawsuits: If you are a U.S. copyright owner, you must register your copyright before initiating an action for copyright infringement;
  • Damages: You cannot obtain damages for infringement for any period before the copyright is registered; and
  • Evidence: The registration of copyright, in addition to some other criteria, serve as proof of the validity of a copyright.

It is important to note that an owner and creator of original work can register a copyright in the U.S. Copyright Office. Generally, an owner must fill out a form specific to the work that the owner wishes to register, and submit a fee.

Copyright infringement occurs when a person violates the exclusive rights of the copyright holder. An example of this would be how only the copyright owner of a play may perform the play in public places for profit. As such, if another person or company attempts to perform the play in public for profit, they could be held liable for copyright infringement. Another example would be when a person sells copyrighted songs without permission.

Penalties for infringement can include civil charges for lost profits, as well as other consequences such as confiscation of the unauthorized material. Federal charges can also apply in some infringement cases; penalties for copyright infringement will be further discussed later on.

How Does The First Amendment Apply To The Internet And Copyright Infringement?

The First Amendment states that the federal government, and state governments through the 14th Amendment, may not pass legislation which interferes with citizen’s freedom of:

  • Press;
  • Religion;
  • Speech; and
  • The right to assemble.

However, private companies and organizations who are acting in their own capacity may restrict this right. Server operators, which act as the private regulators of internet material, may include in their terms of service agreement restrictions which limit First Amendment Rights in order to protect the integrity of their systems.

Generally speaking, the First Amendment has not been accepted as a defense to copyright infringement. However, copyright restrictions are not considered to be a limit on speech by the courts; rather, they are viewed as an important instrument to promote free speech by offering protection to people for the expression of their ideas and thoughts. As such, the unlawful reproduction and distribution of copyrighted material is not protected by the First Amendment, and is prosecutable under Federal law as copyright infringement.

A copyright infringement is generally considered to be a strict liability offense, and does not require the offender to be aware that their actions are against the law. The absence of knowledge or intent is not a recognized defense in most copyright infringement cases. However, contributory copyright infringement does require that the offender knew, or should have known, that they were:

  • Inducing;
  • Causing; and/or
  • Materially contributing to the commission of a direct infringement.

What Else Should I Know About Intellectual Property Infringement?

Individuals who should be particularly concerned about intellectual property infringement include:

  • Creative employees, or employees whose job descriptions require them to make new creative works, such as writers, graphic designers, etc;
  • Employees in high-tech industries; and
  • Employers, as there may be some confusion regarding who owns a creative work when it is produced in the course of employment.

When intellectual property has been infringed, the owner may seek damages against the infringer. The damages may include any:

  • Lost profits;
  • Punitive damages; and/or
  • Statutory damages.

Some types of infringement may also incur criminal fines, or require the confiscation of any and all infringing goods, as was previously mentioned. An infringement lawsuit may be filed in connection with intellectual property which is protected under state or federal laws.

Do I Need A Lawyer For Help With First Amendment Protections And Copyright Infringement?

If you have been accused of copyright infringement and are facing legal action, you should consult with a copyright attorney specializing in copyright infringement. Your lawyer can help you understand all of your legal rights and options, and will also be able to represent you in court, as needed.