What Is Intellectual Property?

Intellectual property is a broad term that refers to a number of different intangible property rights.  These rights include patented ideas and inventions, trademarks and service marks (used to identify products and services) and copyrighted works of authorship.  Each of these protects a specific bundle of rights of the property owner.

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What Is Copyright?

The founding fathers of the United States provided for copyright protection in the U.S. Constitution, which authorizes the enactment of laws to "promote the Progress of . . . useful Arts, by securing for limited Times to Authors . . . the exclusive Right to their respective Writings . . . ."  Thus, copyright protection is intended to strike a balance between the public's interest in having access to works and the interest of authors in protecting and exploiting their works.  Under this arrangement, an author will receive an exclusive period of protection for a copyrighted work.  Once this period of exclusivity ends, the work will enter the public domain and become freely available to the public.

What Is a Public Domain Work?

The public domain is not a place.  A work of authorship is in the "public domain" if it is no longer under copyright protection or if it never was entitled to copyright protection.  Works in the public domain can be used freely and reproduced in any manner by anyone without the need for permission.  The public domain is the quid pro quo for the governmental grant of copyright exclusivity.  It frees works for unfettered use by researchers and scholars in order to build upon the past contributions of others.

Sometimes portions of a copyrighted work may consist of both new copyrighted material and pre-existing public domain material.  For example, a newly-published version of a public domain work may contain a foreword or annotations that are entitled to copyright protection.  On the other hand, a new translation of a public domain work will obtain full copyright protection as a work derived from the public domain work.  While it is possible to reproduce public domain portions of otherwise copyrighted works, it may at times be difficult to segregate such materials from protectible portions of a copyrighted work.

How Does Copyright Differ from a Patent?

A patent provides protection for new and useful, novel and non-obvious inventions.  Utility patents cover inventions with respect to useful articles.  Patents can also cover chemical compositions, processes, methods of doing business and even ornamental design features of a useful article.  The term for patent protection is 20 years from the date of filing the patent application and 14 years from the date of issuance of design patents.

The patent grant gives the patent owner the right to exclude others from making, using, offering for sale or selling the invention claimed in the patent.  Upon expiration of a patent, the patented invention or design becomes freely available for use by anyone.

How Does Copyright Differ from a Trademark?

A trademark is a word, name, symbol or device that is applied to products to indicate their source and to distinguish them from the goods of others, such as Maytag for washing machines.  Similarly, a service mark is used in connection with the offering and promotion of a service, such as McDonald's for fast food restaurant services.  A service mark identifies and distinguishes the source of a service rather than a product.

The owner of a mark has the right to prevent others from using a confusingly similar mark in connection with confusingly similar products or services.  Unlike the fixed term for patent and copyright protection, a trademark can be protected indefinitely as long as it remains in use.

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How Does a Work Become Copyrighted?

Copyright vests in a work as soon as it is created and fixed in a tangible form of expression.  In other words, you can obtain copyright protection for any original work that is sufficiently permanent to permit it to be perceived or reproduced for more than a transitory period.  For example, a horse race lasting less than a minute is a transitory event that is not copyrightable.  In contrast, a videotape of the same race would constitute a copyrightable, fixed and tangible form of expression.

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What Types of Works Can Be Copyrighted?

The following categories of works are entitled to copyright protection:

• literary works;
• musical works, including any accompanying words;
• dramatic works, including any accompanying music;
• pantomimes and choreographic works;
• pictorial, graphic, and sculptural works;
• motion pictures and other audiovisual works;
• sound recordings; and
• architectural works.

What Types of Works Cannot Be Copyrighted?

Copyright protects the manner in which an author expresses a fact or an idea.  It does not protect the underlying fact or idea.  While you can copyright your particular expression of a fact or an idea, others must be free to express the fact or idea in their own works.  Thus, the copyright laws expressly exclude protection for ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration of these concepts.

The following forms of works are also denied copyright protection:

• works that have not been fixed in a tangible form of expression (for example, improvisational speeches or performances that have not been written or recorded);
• titles, names, short phrases, and slogans; familiar symbols or designs (such as a circle or triangle); mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents;
• works consisting entirely of information that is common property and containing no original authorship (such as standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources);
• forms that are dictated by the material embodied in the form, such as form for providing personal statistics (intended to avoid granting one individual a monopoly on the manner in which to display types of data or information); and
• any work prepared by an officer or employee of the United States Government as part of that person's official duties, such as a judicial opinion.

What Rights Are Protected by Copyright?

The author of a copyrighted work receives the following bundle of rights that remain exclusive during the copyright term:

• to reproduce or make copies of the copyrighted work;
• to prepare derivative works based upon the copyrighted work, such as a translation into another language or a movie adaptation of a novel; 
• to distribute copies of the copyrighted work to the public;
• to perform publicly copyrighted audiovisual works, such as literary, musical, dramatic, and choreographic works, pantomimes and motion pictures; 
• to display publicly a copyrighted audiovisual work, such as pictorial, graphic, or sculptural works, including the individual frames or images of a motion picture; and 
• to perform copyrighted sound recordings publicly by means of a device for audio transmission.

How Long Does Copyright Last?

A series of revisions to the U.S. copyright laws have made increasing extensions to the copyright term for new works and extensions of the copyright terms for preexisting works.  The copyright term for individual authors is now life of the author plus 70 years.  The copyright term for corporate copyright owners is now 95 years from publication or 120 years from creation of the work, whichever occurs earlier.  Thus, it has become increasingly difficult to determine with any degree of confidence when a work has entered the public domain.  Indeed, one can only say with certainty that works created before 1923 in the United States are now in the public domain.

How Is a Copyright Infringed?

Copyright excludes unauthorized use of another's copyrighted work, such as by making copies of the copyrighted work or by producing a work derived from the copyrighted work.  In order to establish a claim of infringement, the copyright owner must show that that the accused infringer: (i) had access to the copyrighted work; (ii) copied from the work; and (iii) produced a work that is substantially similar in appearance to the copyrighted work.  Copyright does not protect against independent creation of a work, even one virtually identical to the copyrighted work.  Thus, two artists could have independently painted the Mona Lisa without infringing each other's copyright.

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