Intellectual Property For Artists And Creative Entrepreneurs: Copyrights, Trademarks, Trade Names, Patents – An Introduction

If you are an artist or other creative entrepreneur you are involved in the world of intellectual property whether you know it or not. Intellectual property deals with the things that are created and gives them certain rights and protections under the law. These include rights for artistic, musical, film and literary works, the creation of symbols, designs and phrases, inventions and processes. In general, these types of intellectual property fall under the categories of copyrights, trademarks and patents.

In working with the creative community it never ceases to amaze me how little understanding and how much misinformation there is on the subject. Recently I asked my students what they have been taught about copyrights – “Well you can copy up to 30% of someone else’s work to create your own”. Really, let me get this right, you can copy up to 30% of a portrait I created?” “Which 30%, the bottom, the top how about the middle 30% with the face?” Trust me, if you copy the middle 30%, the part with the face, there will be trouble and you may lose.

Early in my career as management consultant I had intellectual property lawyers as clients. They paid me to calculate damages caused when others stepped over the line with regard to their client’s copyrights, trademarks, trade names and patents. These monetary damages can climb quickly, quickly enough to pay the client, lawyers and consultants like me a pretty penny.

It would be nice if the rules regarding intellectual property were clear and easy to understand – they’re not! I have a friend who is an intellectual property lawyer and he jokes, “Put two lawyers in a room and you have twelve opinions!” You need to know the basics so that you can protect your property and don’t infringe on the rights of others as you develop your creative works.

In future articles I will cover the basic concepts of copyrights, trademarks, trade names, a bit of patents and the new creative commons. Again you need to know the basics, you don’t need to become a lawyer but you may need to consult one if you are unsure. I will be writing about the laws as they pertain to the United States, you national laws may vary.

Here are the basic types of intellectual property:

 

Copyright (Source: U.S. Copyright Office)

  • Copyright is a form of protection provided by the laws of the United States to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.
  • Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
    • To reproduce the work in copies or phonorecords;
    • To prepare derivative works based upon the work;
    • To distribute copies or phono records of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
    • To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
    • To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work.
    • In the case of sound recordings,* to perform the work publicly by means of a digital audio transmission.
    • In addition, certain authors of works of visual art have the rights of attribution and integrity as described in section 106A of the 1976 Copyright Act.
  • It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope. One major limitation is the doctrine of “fair use,” which is given a statutory basis in section 107 of the 1976 Copyright Act. In other instances, the limitation takes the form of a “compulsory license” under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions.
  • Do I have to register with your office to be protected? – No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work.

For more information please visit the U.S. Copyright Office

Trademarks (Source: United States Patent and Trademark Office)

  • Trademarks were created to protect words, names, symbols, sounds, or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods. Trademarks, unlike patents, can be renewed forever as long as they are being used in commerce.
  • A trademark or trade mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or services from those of other entities.
  • A trademark is a type of intellectual property, and typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements.  There is also a range of non-conventional trademarks comprising marks which do not fall into these standard categories, such as those based on color, smell, or sound.
  • You will probably have a trademark for your business and if you are a graphic designer you may be creating trademarks for others.  It is important to understand the basic concepts.

For more information on trademarks you can visit the United States Patent and Trademark Office

Patents (Source: United States Patent and Trademark Office)

  • A patent is an intellectual property right granted by the Government of the United States of America to an inventor “to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” for a limited time in exchange for public disclosure of the invention when the patent is granted.
  • This right was established over 200 years ago in Article 1, Section 8 of the United States Constitution: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
  • There are three types of patents
    • Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;
    • Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and
    • Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

For more information on patents visit the United States Patent and Trademark Office

Creative Commons

The Creative Commons was founded in 2001 as a way to help you modify the terms of your copyright with a global license. You keep your copyright but can change the rights you grant from none to all, commercial or non commercial, allow derivative works or not and set a level of attribution.  I encourage you to find out more about the Creative Commons Licenses – they may suit your needs and strategies!

Noted Australian artist Hazel Dooney has some interesting thoughts on Creative Commons in her blog Self vs. Self – Remember: Art Is War. I encourage you to check out her article: Shifting With The Paradigm.

Ok, you have some reading to do! Next we will take a more indepth look at copyrights and how they affect your art or creative business.  As usual with this type of subject I am not giving you legal advice, which is good because I am not an intellectual property lawyer!

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About Neil McKenzie

Neil McKenzie is an author, educator and consultant to artists and arts organizations. He is the author of The Artist’s Business and Marketing ToolBox – How to Start, Run and Market a Successful Arts or Creative Business available in softcover from Barnes & Noble and Amazon and as an eBook from iTunes, Amazon and Barnes & Noble. He has developed and teaches the course “Artrepreneurship” at the Center for Innovation at Metropolitan State University of Denver, and is also a visiting professor at University College at the University of Denver. Neil has over 30 years’ experience as a management consultant and marketing executive, working with some of the world’s top brands. Neil is a frequent lecturer to artists and arts organizations, a guest columnist for Colorado Biz Magazine, where he covers the creative sector of the economy, and the author of several articles for Americans for the Arts, a national arts organization. Follow Neil on Twitter: @neilmckenzphoto