Intellectual Property Basics
As a reminder, this is not legal advice; it’s for general education only. It’s not, nor is it intended to be, a subsitute for legal counsel. The law is constantly changing, so don’t rely on anything in this post because I cannot and do not promise accuracy or truthfulness of the contents.
What is Intellectual Property?
I mention “intellectual property” a LOT. But what does that even mean? What is intellectual property, and why does it matter? Well, fortunately, it’s not as complicated as it sounds. For the most part, it kind of makes business sense because it’s meant to protect business interests, but as time goes on, it’s been getting a little bit more complicated, nuanced, and harder for non-specialists to understand in depth. Even this post will only be touching the surface of IP law - there’s entire classes dedicated to just one small subset of a type of IP.
So to start, the most basic understanding of intellectual property is this - it’s property that is intangible. Basically, you created something that has value, but the value is in the concept of it, not the physical item. A great example is writing a novel. Hopefully, it’ll get published and turned into a book. But it’s not the actual book that’s an important possession to the author; it’s the unique combination of words that the author wants to make sure no one else writes. The book is considered chattel, a physical possession goverened by other property laws, like real property. You wouldn’t believe how often I get asked about someone’s real property issues because of the confusion.
The Four Main Types of Intellectual Property
US laws recognize four primary types of intellectual property: patents, trademarks, copyright, and trade secret. Most things fit into one of these categories, but some can be covered by more than one type.
Patents (including design and plant patents): protects an idea, like a brand new, never before created invention. The “inventor” gets monopoly rights for a certain period of time and can stop other people from making the smae thing. Patents must be registered with the USPTO prior to becoming publicly available.
Trademarks: protects business identifiers, like names, logos, slogans, and signature colors or scents. The owner/holder can stop other people from using the same or very similar name/logo in the same or very similar type of business. Trademarks can be registered with the USPTO.
Copyright: protects works of art and creative endevors and is sometimes used as a catchall (software is copyright protected, for example). It’s inherent in the creation and by default owned by the “author,” which is sometimes a business. The author can stop other people from copying, displaying, pubicly performing, and creating derivative works, just to name a few. Copyrights can be registered with the US Copyright Office.
Trade Secrets: protects business secrets that keep their value by being secret. These are usually the purpose of non-disclosure agreements (in my line of business, anyway). They cannot be registered anywhere because that would defeat the purpose.
Why You Should Care About Your Intellectual Property
Are you making money off of a side gig? Have you written the code for an application? Or posted a video on TikTok that got posted on YouTube an now someone else is making money off it? Did you make a Disney-themed product and sell it on Etsy? Or have you taken a picture that was used in a news article without your permission? All of these scenarios involve intellectual property.
The most common IP issues I’m asked to handle are:
A fledgling business needs to make sure their business name is okay to use (trademark clearance and registration)
That fledgling business found out someone else is using their name (trademark enforcement)
An indie software developer got a contract to sign from a company that wants to hire them (copyright licensing and trade secret)
A company wants to use an influencer to promote their product (copyright and sometimes trademark)
An online business wants to make sure their website terms and privacy policy make sense for their business (copyright, trademark, and trade secret)
An app or software is ready to go to market (copyright, usually)
There’s more than that, obviously, but these are what I see the most. Intellectual property is all about protecting you and your intangible assets even though it’s not a physical thing. There’s value in what you’ve created and you should be the one to receive the benefits of it.
I wrote this, so I am the owner of the copyright in it. Please don’t steal it. Ask for permission before using my stuff; I’m always happy to connect with small businesses or new attorneys and provide nuggets of wisdom.
