INTELLECTUAL PROPERTY

Copyright is a form of intellectual property protection that gives the creators of original literary, dramatic, musical, and artistic “works” – including comic books, novels, poems, plays, choreography, musical compositions, paintings, photographs, architecture, software, databases, technical plans, and maps – the exclusive legal right to control if and how other people copy, adapt, distribute, display, and broadcast those works.

However, the ability of the creator (or other copyright holder) to assert that control isn’t absolute. Why? Because important exceptions exist. The most famous of these exceptions is known as the “fair use” exception. (The “fair use” exception is encoded in law in Section 107 of the United States Copyright Act of 1976.)

THE "FAIR USE" EXCEPTION

What the “fair use” exception allows is for people to copy, adapt, distribute, display, and/or broadcast other people’s works – without their permission – for the purposes of criticism, parody, commentary, scholarship, research, teaching, news reporting, and search engines. Four factors are considered (and “balanced” against one another) in order to determine whether a particular use of a copyrighted work is “fair”:

  1. The nature and purpose of the use of the copyrighted work: uses that are most likely to be considered “fair” include educational and other non-commercial uses and commercial (for-profit) uses that use the copyrighted work in a “transformational” way by adding or doing something that is truly new and unique
  2. The nature of the copyrighted work itself: uses that are most likely to be considered “fair” include those that use a copyrighted work that was produced mostly through “fact-gathering” (as with a technical study or news report) rather than through true “creativity” (as with a novel or song)
  3. The amount and substantiality of the portion of the copyrighted work that is used in relation to the copyrighted work as a whole: uses that are most likely to be considered “fair” include those that use only a small or marginal portion of the copyrighted work
  4. The likely effect of the use of the copyrighted work on the potential market for or value of the copyrighted work: uses that are most likely to be considered “fair” include those with the least potential to hurt the commercial market for (sales of) the copyrighted work

    “Fair use” is determined on a case-by-case basis – when a copyright holder sues an unauthorized user for copyright infringement.

COPYRIGHT INFRINGEMENT (ALSO KNOWN AS PIRACY)

Copyright infringement – often also known as “piracy” – is the unauthorized copying, adapting, distributing, displaying, and/or broadcasting of a protected literary, dramatic, musical, or artistic “work” in a way that doesn’t satisfy the requirements of “fair use” or any other exception to copyright.

Copyright infringement can result in both criminal and civil penalties. Criminal penalties may include a fine of up to $500,000 and/or imprisonment for up to 5 years for a first offense and a fine of up to $1 million and/or imprisonment for up to 10 years for repeated offenses. Civil penalties may include injunctions (through which the court prohibits the copyright infringer from continuing to copy, adapt, distribute, display, and/or broadcast the work); seizures (through which the court orders the impoundment of all copyright-infringing materials and related equipment); and monetary damages (through which the court makes the copyright infringer pay the copyright holder the equivalent of the copyright holder’s actual financial losses and lost profits).

If you wanted to, do you think you could sing Adele’s “Hello” or Justin Bieber’s “Sorry,” record it, make copies, sell it for money, and keep all the profits? Do you think you could open a restaurant, put a big Golden Arches out front, and call it “McDonald’s”? Do you think you could take apart a Samsung Galaxy S, figure out how works, open a factory, and sell your own smartphones?

Do you know that by doing these things you’d be breaking the law? And, if so, do you know why? It’s because Adele’s “Hello” and Justin Bieber’s “Sorry,” McDonald’s’ name and Golden Arches, and Samsung’s Galaxy S are somebody else’s intellectual property.

WHAT IS INTELLECTUAL PROPERTY?

“Intellectual property” (or “I.P.” for short) refers to creations of the human mind (also known as the “intellect”) that are a non-physical (or intangible) form of property. Just like physical (or tangible) property, intellectual property is something that people can own. Intellectual property is the original expression of an idea that later becomes something tangible.

Imagine you’re a writer and you come up with an amazing idea for a new story (like the author J.K. Rowling did with Harry Potter and the Philosopher’s Stone). Or imagine you’re a business owner and you come up with an amazing idea for a new slogan (like the sportswear company Nike did with “Just do it”). Or imagine you’re an inventor and you come up with an amazing idea for a new machine (like Willis Carrier did with the first modern air-conditioning unit). At that very first moment, the story or slogan or machine that’s inside your head is just an idea, and ideas themselves can’t be property; they can’t be owned. (We all can imagine whatever we want.)

But at the moment that idea is expressed – for example, by being written down (in the case of a story) or advertised (in the case of a slogan) or diagrammed (in the case of a machine) – it becomes a kind of property. And when something is property – whether physical or intellectual – it becomes ours. When an idea is expressed and becomes a new creation or invention, the creator or inventor becomes its owner.

WHAT ARE INTELLECTUAL PROPERTY "RIGHTS"?

People who own physical property – from clothes to computers to cars to houses – have what are called ownership “rights” to that property: they get to decide when and how to use it, whether to let others use it, and whether to sell it. If someone takes something you own – like a necklace or your favorite pair of sneakers – without your permission, they have violated your rights. By stealing something that doesn’t belong to them, they have committed the crime of theft.

These same general rules apply to people who own intellectual property: just like the owners of physical property, they get to decide when and how to use it, whether to let others use it, and whether to sell it. The creators and inventors of all sorts of intangible things – novels, poems, textbooks, movies, TV shows, paintings, sculptures, music, lyrics, websites, sound recordings, product names, company logos, advertising jingles, product packaging, tools, machines, computer programs, formulas, medicines – have intellectual property rights to those things. Other people need their permission before they can use them.

WHAT ARE THE MAJOR KINDS OR INTELLECTUAL PROPERTY RIGHTS?

The three major kinds of intellectual property rights are “copyright,” “trademark,” and “patent.”

WHY DO INTELLECTUAL PROPERTY RIGHTS EXIST?

The main purpose of intellectual property rights is to give people a reason to create or invent things. If copyright, trademark, and patent didn’t exist, individuals and companies might worry that others would steal or unfairly profit from or unjustly harm the reputation of their creations or inventions. If individuals and companies couldn’t be sure that they’d have an opportunity to benefit financially from and to maintain artistic control of their creations and inventions, they might be a lot less willing to invest their time and money in creating and inventing things.

Because society as a whole benefits when people create and invent things, our legal system encourages individuals and companies to do so by ensuring – through the enforcement of copyright, trademark, patent, and other intellectual property rights – that they’ll receive recognition, profit, and protection from unfair competitors (including pirates, counterfeiters, and thieves).

Intellectual property rights are intended to strike a balance between (a) protecting the interests of people who create and invent things and (b) protecting the interests of the general public. Creators and inventors get to benefit financially from their creations and inventions while the rest of us get to use and enjoy them – from superhero movies to hybrid cars to life-saving medicines to the knowledge that wherever we happen to be on the face of the Earth, a “Big Mac” and a “Coca-Cola” will be a “Big Mac” and a “Coca-Cola,” rather than poor (and potentially dangerous) imitations.

MORE INFORMATION

If you’d like to learn more about copyright, please visit the United States Copyright Office (USCO) website at http://www.copyright.gov/. The non-profit Copyright Society of the USA runs a great website for kids of all ages at http://www.copyrightkids.org/.


If you’d like to learn more about trademark or patent – or about other kinds of intellectual property rights, including industrial design and trade secrets – please visit the United States Patent and Trademark Office (USPTO) website at https://www.uspto.gov/. The USPTO website also has interactive specialized pages for teens at https://www.uspto.gov/kids/teens.html and for younger kids at https://www.uspto.gov/kids/kids.html.

A patent for an invention – a process, a machine, an article of manufacture, or a composition of matter (for example, a new chemical compound or plant variety) – gives the inventor the exclusive legal right to prevent other people from commercially manufacturing, using, selling, importing, or distributing that invention without the inventor’s permission.

LIKE TRADEMARKS, PATENTS ARE NOT AUTOMATIC

An inventor who wishes to patent an invention must apply to the federal government. The application must be detailed enough to demonstrate that the invention meets the criteria for “patentability”. It must be:

  1. novel (not previously patented or known or used by other people);
  2. useful (have an identifiable and specific real-world application); and
  3. non-obvious (reflect some degree of unique insight into the particular problem being solved

In exchange for providing the public – through the federal government, which publishes each patent application – with knowledge of the invention, the inventor is granted the right to enjoy a “monopoly” (or total control) over the new process, machine, article of manufacture, or composition of matter for a period of 20 years.

Anyone who manufactures, uses, sells, imports, or distributes the patented invention during the period of patent protection without the permission of the “patent holder” commits “patent infringement.” However, after the patent expires, the invention enters the “public domain” and may be manufactured, used, sold, imported, or distributed by anyone.

The very first United States patent – for the process of making potash (which is an important ingredient in fertilizer) – was issued to Samuel Hopkins in July of 1790 and signed by President George Washington himself. The United States’ most famous inventor – Thomas Edison – received more than 1,000 United States patents and 2,300 worldwide.

A trademark is any distinctive sign, design, symbol, or expression that’s used to establish and maintain a “brand identity” by distinguishing the goods and/or services of one company from the goods and services of other companies.

EXAMPLES OF TRADEMARK

Some of the most famous examples of trademarks are the instantly-recognizable logos of companies such as Apple (the apple), KFC (Colonel Sanders), Mercedes-Benz (the three-pointed star), Nike (the swoosh), Pepsi (the red, white, and blue globe), and Starbucks (the mermaid) and slogans of companies such as BMW (“The ultimate driving machine.”), Capital One (“What’s in your wallet?”), Kay Jewelers (“Every kiss begins with Kay.”), State Farm (“Like a good neighbor, State Farm is there.”), and Subway (“Eat Fresh.”).

Trademarks date back to when craftspeople would put personal marks on their goods to identify their source and to certify their quality. (A “brand name” sword or horseshoe would sell for much more at the public market than a generic – and potentially less well-made – one would.) Trademarks allow consumers to know exactly what they’re buying without the need to test the good or service first. If you order a pizza from a place called “Domino’s” that comes in a box with the domino on it, you should know what you’ll be getting. If you go to a “Burger King” and ask for a “Whopper,” you should know what you’ll be getting. If you go into a “Louis Vuitton” store and purchase a purse with the LV monogram on it, you should know what you’ll be getting.

UNLIKE COPYRIGHT, TRADEMARKS ARE NOT AUTOMATIC

  • A company that wishes to trademark a distinctive sign, design, symbol, or expression – which may include everything from a particular color combination to a specific kind of packaging – must apply for a trademark registration from the federal government.
  • Trademarks are renewable every 10 years (for a fee), but only so long as the trademark is actually used to identify the source of a particular good or service.
  • If the “trademark holder” doesn’t use the trademark or if the trademark itself becomes so “generic” that it stops being identified with a particular company, the trademark loses its legal status. This has happened in the past to such trademarks as “aspirin,” “escalator,” and “thermos.” (Others, such as “Band-Aid,” “Kleenex,” “Post-It,” and “Styrofoam,” today remain protected trademarks despite their widespread generic use.)

PURPOSE OF TRADEMARK 

The major purpose of a trademark is to identify the commercial source or origin of a product or service by ensuring that only one company has the exclusive legal right to use it. Anyone who uses the trademark without its owner’s permission or who uses a very similar sign, design, symbol, or expression that’s likely to cause confusion among consumers about the source or origin of a product or service commits “trademark infringement” – which in some situations is also called “counterfeiting.”


By most accounts, the oldest United States registered trademark still in use today is the Samson Rope company’s logo, which depicts the Biblical figure Samson wrestling a lion. It was registered for the first time in May of 1884.

Copyright gives the creators of original literary, dramatic, musical, and artistic “works” (whether they are published or unpublished) the exclusive legal right to control if and how other people copy, adapt, distribute, display, and broadcast those works.

Works covered by copyright include, among many other things, comic books, novels, poems, plays, choreography, musical compositions, paintings, photographs, architecture, software, databases, technical plans, and maps.

COPYRIGHT IS AUTOMATIC BY LAW

The creator of an original work does not need to apply for copyright protection or to register the work with the federal government. Also, copyright itself, like all intellectual property rights, may be sold to another person, so the “copyright holder” is not always the work’s creator. As a general rule, anyone who copies, adapts, distributes, displays, or broadcasts the work without the permission of the copyright holder commits “copyright infringement” – which in some situations is also called “piracy.” (There are several exceptions, including a “fair use doctrine” that creates allowances for criticism, parody, commentary, scholarship, news reporting, and search engines.)

COPYRIGHT DOES NOT LAST FOREVER

In the United States, it generally protects the original work for the lifetime of the work’s creator plus 70 years. (What this means is that anyone who wishes to copy, adapt, distribute, display, or broadcast The Adventures of Tom Sawyer may do so, because its author, Samuel Langhorne Clemens – better known by his pen name, Mark Twain – has been dead for more than a century.)