The term intellectual property (IP for short) broadly refers to property rights vested in the intangible. The property rights associated with real property (land) and personal property (everything else) are fairly straightforward: the owner of such property has a right to possess it, to prevent others from possessing it, and to preserve its integrity, hence our laws against theft, trespass, and vandalism.
Intellectual property law, on the other hand, protects entities which have no physical form. This includes names and logos attached to products, inventions, and original works of authorship. Because nobody can physically possess these things, the laws of personal property cannot, and do not, apply. Accordingly, rather than protecting possession, intellectual property law generally protects exclusive rights to use or reproduce the intellectual property. IP laws may also, in some circumstances, protect secrecy.
Usually the person who first creates or invents something is the owner of the intellectual property, but often employers contract to own what their employees create on the job. Also, rights to intellectual property can be given away temporarily through a licensing agreement.
The 4 Basic Forms of Intellectual Property
There are 4 broad forms of intellectual property, and they all protect different things: they are copyright, trademark, patents, and trade secrets.
- Copyright: A copyright is an exclusive right held for a limited time by original works of authorship to reproduce, publicly perform, and publicly distribute copies of their work. In order to receive copyright protection, a work must be original, and it must be fixed in some tangible medium (written down, recorded, printed, etc.).
- Trademark: Trademark law protects consumers by empowering producers to prevent the use of their names and/or logos by others in manners that are likely to confuse consumers. This body of law only applies to words and images used to identify goods and services, or their source. Trademark rights can last forever, as long as the name or image is continuously used in commerce.
- Patent: Patent law protects inventors by granting them an exclusive right to manufacture and sell their inventions for a limited period of time, in exchange for public disclosure of their invention. To receive patent protection, an invention must be novel, useful, and non-obvious.
- Trade Secrets: Trade secret law protects secret information held by businesses, and allows them to sue when that information is stolen, or if it’s disclosed without their permission. To be protected by trade secret law, the information must actually be secret (not known to or easily ascertainable by the general public) and it must have independent economic value by being secret (this basically means that disclosing the secret would make the information far less valuable).
Who Should Be Concerned about IP Issues?
The short answer is "almost everybody." However, there are a few types of people who should be particularly concerned:
- Creative employees: workers whose job descriptions require them to make new creative works (writers, graphic designers, etc.) need to be aware of the fact that, generally, their employer owns the copyright on any works they produce in the scope of their employment. This rule does not apply to independent contractors. However, it is a good idea for independent contractors and those hiring them to come up with an agreement about who will own the IP rights in the work the contractor was hired to create, to avoid disputes in the future.
- Employees in high-tech industries: many lawsuits have started when an engineer moves from one company to another and end up taking trade secrets with them.
- Employers: As mentioned above, there can be some confusion as to who owns a creative work when it’s produced in the course of employment. Employers who wish to retain the IP rights in works created by their employees in the scope of employment should be aware of these issues.
What Are the Penalties for Infringement?
When intellectual property has been infringed, the owner can seek damages against the infringer who has violated the intellectual property. The damages may include any lost profits, punitive damages, and statutory damages. Additionally, some types of infringement might also incur criminal fines or require the confiscation of all infringing goods.
An infringement lawsuit may be filed in connection with intellectual property that is protected under state or federal laws. This may include material that is protected under copyright, trademark, patent, or other laws. These types of laws provide exclusive rights to own, sell, use, or distribute various items, logos, inventions, works of art, music, and certain words or phrases.
Do I Need an Intellectual Property Lawyer?
If you are an artist, author, engineer, or manager (especially in industries with a great deal of employee mobility), you are likely to encounter intellectual property issues at some point.
With that in mind, it is a good idea to consult with an intellectual property lawyer early in the stages of any major project. It is often the case that very minor intellectual property issues turn into large ones because they were not addressed early enough. An experienced lawyer can advise you on what isn’t and what is intellectual property, so that you understand your legal rights with regards to a project.