💡Intro to Creative Development Unit 10 – Intellectual Property & Legal Considerations

What's Intellectual Property?

• Intellectual property (IP) refers to creations of the mind, such as inventions, literary and artistic works, designs, symbols, names, and images used in commerce
• IP is protected by law through patents, copyrights, trademarks, and trade secrets, which enable creators to earn recognition or financial benefit from their inventions or creations
• Intellectual property rights are like any other property right and allow creators, or owners, of patents, trademarks, or copyrighted works to benefit from their own work or investment in a creation
• IP protection fosters an environment in which creativity and innovation can flourish by providing creators with the means to control how their works are used and by whom
• Intellectual property is divided into two categories: industrial property (patents, trademarks, industrial designs, and geographic indications) and copyright (literary and artistic works such as novels, poems, plays, films, musical works, drawings, paintings, photographs, sculptures, and architectural designs)

Types of IP Protection

• Copyright protects original works of authorship, such as literary, dramatic, musical, and artistic works (books, movies, songs, computer software, and architecture)
• Patents protect inventions and discoveries, granting the inventor exclusive rights to make, use, and sell the invention for a limited period (usually 20 years from the filing date)
  • Utility patents cover new and useful processes, machines, articles of manufacture, or compositions of matter, or new and useful improvements thereof
  • Design patents protect the ornamental design of a functional item
• Trademarks protect words, names, symbols, sounds, or colors that distinguish goods and services from those manufactured or sold by others and indicate the source of the goods
• Trade secrets protect confidential business information that provides an enterprise with a competitive edge (formulas, practices, processes, designs, instruments, patterns, or compilations of information)
• Geographic indications are signs used on products that have a specific geographical origin and possess qualities or a reputation due to that origin (Champagne, Roquefort cheese, Darjeeling tea)

Copyright Basics

• Copyright is a form of intellectual property protection that grants the creator of an original work exclusive rights to its use and distribution
• Copyright protection is automatic as soon as a work is created and fixed in a tangible form, but registration with the U.S. Copyright Office provides additional benefits
• Copyright owners have the exclusive right to reproduce, distribute, perform, display, and create derivative works based on the original
• Copyright protection lasts for the life of the author plus 70 years, or for works made for hire, 95 years from the date of first publication or 120 years from the date of creation, whichever is shorter
• Works eligible for copyright protection include literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works
• Copyright does not protect ideas, facts, systems, or methods of operation, but it may protect the way these things are expressed

Trademarks and Patents

• Trademarks are words, phrases, symbols, or designs that identify and distinguish the source of goods or services of one party from those of others
• Trademarks help consumers identify the source of a product and protect a company's goodwill and reputation
• Trademark rights arise from either (1) actual use of the mark in commerce, or (2) filing of a proper application to register a mark with the USPTO stating that the applicant has a bona fide intention to use the mark in commerce
• Patents are granted for new, useful, and non-obvious inventions and provide the patent holder with the right to exclude others from making, using, selling, or importing the invention for a limited period (typically 20 years from the filing date)
  • To obtain a patent, an inventor must file a patent application with the USPTO, which will review the application to ensure that the invention meets the requirements for patentability
• Trade secrets are a type of intellectual property that include formulas, practices, processes, designs, instruments, patterns, or compilations of information that have inherent economic value because they are not generally known or readily ascertainable by others, and which the owner takes reasonable measures to keep secret

Fair Use and Public Domain

• Fair use is a legal doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders, such as for commentary, criticism, news reporting, research, teaching, or scholarship
• Four factors are considered when determining whether a use is fair: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work
• Public domain refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws, either because the term of protection has expired, the rights have been forfeited, or the material was never eligible for protection
• Works in the public domain are free for anyone to use without permission or payment to the creator
  • Examples of public domain works include the works of Shakespeare, the music of Beethoven, and the inventions of Thomas Edison
• In the United States, works published before 1923, works published between 1923 and 1977 without a copyright notice, and works published between 1978 and March 1, 1989 without a copyright notice and without subsequent registration within 5 years are generally considered to be in the public domain

Legal Issues in Creative Industries

• Copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner
• Plagiarism is the act of presenting another person's ideas, research, or creative work as your own, even if it is not protected by copyright
• Trademark infringement occurs when a mark that is likely to cause confusion with an already existing mark is used in commerce without the permission of the existing mark's owner
• Right of publicity protects an individual's right to control the commercial use of their name, image, likeness, or other unequivocal aspects of one's identity
• Defamation is a false statement presented as a fact that causes injury or damage to the character of the person it is about, and can be a legal issue in creative works such as memoirs or docudramas
• Privacy laws protect an individual's right to privacy and can impact the use of personal information or images in creative works without consent

Protecting Your Work

• Register your copyrights with the U.S. Copyright Office to establish a public record of your copyright claim and secure additional benefits, such as the ability to sue for infringement
• Use proper copyright notice on your work, which includes the copyright symbol ©, the year of first publication, and the name of the copyright owner (e.g., © 2023 John Smith)
• Register your trademarks with the USPTO to secure additional protections and benefits, such as a legal presumption of ownership and the exclusive right to use the mark nationwide
• Use proper trademark symbols, such as ™ for unregistered marks and ® for registered marks, to indicate your claim to the mark and deter potential infringers
• Protect your trade secrets by implementing confidentiality agreements, non-disclosure agreements, and other security measures to prevent unauthorized access or disclosure
• License your intellectual property to others through contracts that specify the terms and conditions of use, such as the scope of the license, the duration, and any royalties or fees

Navigating IP in the Digital Age

• The Digital Millennium Copyright Act (DMCA) is a U.S. law that addresses copyright issues on the internet and provides safe harbors for online service providers that promptly remove infringing content upon notice
• The DMCA also prohibits the circumvention of technological measures used to control access to copyrighted works, such as encryption or password protection
• Creative Commons is a nonprofit organization that provides free, easy-to-use copyright licenses that allow creators to specify how others can use their work, such as for non-commercial purposes only or with attribution
• Open source software licenses, such as the GNU General Public License (GPL), allow users to freely use, modify, and distribute the software's source code, subject to certain conditions
• Orphan works are copyrighted works whose owner cannot be identified or located, making it difficult to obtain permission for use, and pose challenges for digitization and preservation efforts
• International IP treaties, such as the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), harmonize IP laws across countries and provide minimum standards of protection for creators