The term intellectual property law, also commonly referred to as “IP law,” is the legal term that refers to the broad property rights given to ideas and inventions. In short, intellectual property laws are the set of laws that protect inventors, artists, and creators.
Owners of these types of property typically have the right to:
- Possess their intellectual property;
- Prevent other individuals from possessing their intellectual property; and
- Preserve integrity of their intellectual property.
What Is Covered by Intellectual Property Laws?
Intellectual property law is the set of federal laws that encompass copyright laws, patent laws, and trademark laws. In addition, each state may have its own specific intellectual property laws and codes that provide additional protections. For example, Montana intellectual property law provides additional intellectual property protections within the Montana Code.
Artists, inventors, scientists, and creators, should take measures to ensure that others do not wrongfully profit from their original ideas. They may seek such protections with the United States Patent and Trademark Office by registering their ideas, marks, copyrights, or inventions.
The purpose of intellectual property laws is to encourage new:
- Artistic creativity; and
- Inventions for the continued economic growth of the United States with the confidence that a person’s creative work and ideas will be protected.
Intellectual property protections may include names and logos which are attached to products, inventions, as well as original works of authorship. Because no individual can physically possess intellectual property, the laws which apply to personal property cannot and do not apply to intellectual property.
Because of this, intellectual property laws generally protect the exclusive rights to use or reproduce the intellectual property rather than protecting its possession. In some circumstances, such as with trade secrets, intellectual property laws may also protect secrecy.
Generally, the person who first created or invented something is considered to be the owner of that intellectual property. However, some employers provide in their employment contracts that the employer is the entity that owns whatever the employees create on the job. Additionally, the rights to intellectual property may be given away temporarily by using a licensing agreement, or permanently by transferring ownership to a new party.
What Is A Copyright?
A copyright is one type of intellectual property. A trademark is the legal right to prevent others from using an originally authored work. Copyright law is similar to trademark law, which covers logos and brand names, and protects inventions. In order to qualify for copyright protection, the item or work that is to be copyrighted must be an original work, and not a reproduction or copy of property that has already been copyrighted.
According to federal copyright law, a copyright entitles the owner of the copyright to a list of exclusive rights, including:
- The right to reproduce the copyrighted work;
- The right to distribute copies of the copyrighted work to the public for sale;
- The right to perform the copyrighted work;
- The right to produce a license derived from other copyright materials; and
- The right to licensing rights in order to manufacture and make a product.
Some of the most common examples of creative works that a copyright can protect include, but may not be limited to:
- Recorded or sheet music;
- Books, poems, and novels;
- Software codes, video games, certain computer sequences, and CD-ROMs, although these may not be protected if they have already been distributed through a copyleft agreement; and
- Various other forms of art, such as paintings, plays, dance choreography, and sculptures.
Under federal law, an individual receives a copyright to their work automatically once they have “fixed” their original work in a “tangible medium of expression.” For example, once a song has been written or recorded, it will automatically receive some form of copyright protection.
Additionally, the individual must have independently created the work, and not adapted it from something else. The work must then be placed in a sufficiently permanent medium so that others can reproduce, view, and/or communicate it.
When Does Copyright Protection Occur?
Once again, copyright protection becomes available the moment that an author fixes a work in a tangible form, without the author having to do anything else. Once a work has copyright protection, the inventor or creator then may decide who can use their work and for what purposes their work can be used.
Additionally, once the work is protected, no one else can use the work without the creator’s express permission.
What Is Copyright Infringement?
Copyright infringement occurs when an individual or entity violates a copyright owner’s exclusive rights, without the express consent of the copyright owner. In addition to the aforementioned exclusive rights, the following are some common examples of copyrights and copyright infringements:
- Infringement of the Right of Reproduction: Copyright owners maintain the exclusive right to reproduce their work in any fixed form. As such, when a person reproduces a work by copying and selling it, that act is considered to be infringing an owner’s right of reproduction;
- Infringement of the Right of Public Performance: If a person publicly performs an original protected work without the copyright owner’s permission, that act would be considered infringing the copyright owner’s right of public performance;
- Infringement of the Right of Distribution: An individual or entity may infringe on an owner’s right of distribution if they sell unlicensed copies of the copyright owner’s original work, such as a work of literature or art;
- Infringement of the Right to Derivative Works: Copyright owners possess the exclusive right to modify their original work, as well as to create a new work based on their older copyrighted works. As such, when a person creates a derivative of an original work without express permission of the copyright owner, it is considered an infringement of the right to derivative works; and
- Infringement of the Right of Public Display: Copyright owners have the exclusive right to publicly show their work, including publishing their work online. If a person publishes a copyright owner’s original work online, without the owner’s express permission to do so, it would be considered infringing the copyright owner’s right of public display.
What Does It Mean When a Copyright Is Assigned?
Assignment of copyright occurs when the rights of the copyright owner are transferred to another person or legal entity in exchange for consideration. The most common consideration given for the assignment of a copyright is money.
Thus, assignment of copyright is essentially selling an intellectual property. Further, once the rights to the copyright are transferred, the former copyright owner will no longer possess their exclusive rights or how the assignee utilizes the copyright.
What Does It Mean When a Copyright Is Licensed?
When a copyright is licensed, the copyright owner keeps control over their exclusive rights in a copyright, but also permits another person or legal entity to exercise some of their rights. Once again, a license will be executed with consideration, likely money.
Copyright owners who want to retain control over how their original work is used typically prefer licensing over outright assignment.
Are There Any Limits on Assigning a Copyright?
In short, it depends. For both assignment and licensing of a copyright, the original copyright owner generally can decide which exclusive rights they transfer.
The most common examples of limits a copyright owner may place on the transfer of a copyright include:
- Limits on the amount of time the assignee or licensee has the rights to the work;
- Limits on the territory in which the work may be utilized;
- Limits on how the work may be used; and
- Limits on nonexclusive rights.
It is important to note that a transfer of a copyright owner’s exclusive rights, which transfers those rights to the transferee alone, must always be in writing in order to be valid. However transfers of nonexclusive rights, may be by either written or oral agreement.
Do I Need a Lawyer for Help With Transfer of Copyright?
If you are involved in a transfer of a copyright, it is in your best interests to consult an experienced copyright attorney.
An experienced copyright attorney will be able to ensure that you obtain or maintain the rights that you are seeking to obtain or maintain in regards to the copyrighted work. Additionally, should the other party misuse the copyright, an attorney will be able to file a suit against that party and represent you in court.