+ How Can I Protect My Music, Writing or Art?

If you are an artist, songwriter, or writer, you’ve probably heard of a copyright before. Often, artists don’t understand that they own the copyright to their work the moment it is created. After all, a copyright is merely the right to copy the work at issue. When you create something, you automatically have the right to copy it.

Copyright protection is what keeps stores from photocopying your work and selling it to their customers. That protection is available as soon as the work is created.

But, what is to stop someone else from claiming that they are, in fact, the author? This is where registering your copyright comes into play. Registering your copyright is not a difficult process in itself. You can go to copyright.gov and will likely be able to register your own copyright with very little trouble.

The issue with copyrighting your material isn’t the process itself, it is the fact that if you fail to register the copyright to your material, it becomes extremely difficult to enforce your rights. If someone else creates a similar work to yours, without any registration of the copyright, the other side can simply say they were not aware of your work, and they will be permitted to continue.

While registering the copyright is a snap, it might be wise to discuss with a lawyer beforehand, to ensure that you have fully protected all your rights. Further, when a copyright needs to be assigned to someone else or defended, a lawyer really become necessary.

+ How Can I Protect My Brand, Logo or Design?

Intellectual Property law recognizes several different methods for protecting one’s ideas or work. Generally, different types of intellectual property are used to protect different types of ideas. Trademarks, copyrights, and patents are three most often discussed types of intellectual property, although there are others as well.

Trademarks are used to protect a name, logo, slogan, or design. Trademarks can be applied even to very abstract ideas, like a shape or a smell.

As you develop the marks, logos, slogans (or smells) you will be using for your business, it’s important to register these marks, which will prevent competitors from using these marks. Without a trademark, it is more difficult (pronounced: ex-pen-sive) to stop someone else from using your idea. Worst yet, you could even be told to stop using your own logo!

Like copyrights, a trademark can exist without registering it. However, you run the risk of losing your ability to protect your trademark if it is not registered. However, unlike copyrights, a trademark can last forever as long as the mark is in actual “use.” The registration can last forever as well, if keep up with the filings and fees. If the trademark is important to you, this is usually money well spent.

+ How Can I Protect my Invention?

The patent is undoubtedly the most complex intellectual property available to a person or business. Patents must be applied for, and receive significant scrutiny at the United States Patent Office. Patents are good for 15 to 20 years, depending on what the patent is for. A patent can applied to machines, manufactured goods, industrial processes, chemicals and many other inventions. Even certain modified plants have patents.

A patent grants the holder the exclusive right to monetize the idea, invention or process. In exchange, the patent become publicly available, and can be used by anyone once the patent has expired.

To obtain a patent is a complicated process, especially compared to the relative ease of obtaining a copyright or trademark (both of which one could do accidentally). Patents must be applied for, and are not always granted by the patent office. To obtain a patent, the invention must be novel, non obvious, and useful.

+ How Can I Protect My Software and Designs?

For years, the big conversation at intellectual property law circles was whether software is patentable or whether there is another way to protect one’s code. The answer is complex and the law has been evolving over the last decade, towards greater ease in patenting software.

Entire books are written on this topic, but from a startup’s perspective, the answer is that software may be registered, but that may only protect the very specific lines of code making up the software. Such a copyright is unlikely to protect the innovation behind the software. Software often can be patented, but it requires great care and very careful drafting of the patent application. This is really something that should be left to a specialist, because failing to secure a patent after its been applied for is tremendously harmful to the inventor. It publishes the “secret sauce” of the invention, with any protect from the patent.

Similarly, architectural designs can be copyrighted, but may be limited to the literal designs themselves. While certain innovations in architecture could, potentially, be patented.

+ What Do I Do If Someone Is Using My Intellectual Property?

Typically, if someone has bothered to protect their intellectual property, it is because they believe it has value and they want to prevent others from diluting the value of their innovation, design or invention. Few things are more frustrating than to find that your work has been copied by someone else.

Often, when we think of these types of disputes, the first thing that comes to mind is filing a lawsuit. Fortunately for everyone, there are several options available before litigation becomes necessary. As much as we enjoy advocating for our clients in court, the fact is, litigation is rarely a profitable business decision.

We recommend that you meet with an attorney before confronting the other side. Everything that is done or written to an adversary, has the potential to come back to haunt you. Typically, your counsel will talk to you about the nature of the intellectual property that you are trying to protect, how it is used, and how you value it. Usually, a cease-and-desist letter comes next, which puts the other side on notice of the infringement. The cease-and-desist letter, if done appropriately, can open negotiations between the parties. Getting a letter out sooner, rather than later, is likely to lower the hardened positions of both parties. For instance, a swift notice about the name of a new company that sounds a lot like yours, gives the recipient time to change the name before brand awareness builds up. If someone has been operating under that name for years, it becomes difficult to adjust, both financially and emotionally. Once the discussion begins, there are several directions that the discussion can take, anywhere from laying the ground to litigation, to coming to a friendly agreement.

+ What If Someone Is Accusing Me Of Using Their Intellectual Property?

It is not uncommon for a new business to receive a notice from an existing business that they are infringing on the intellectual property rights of the other company. This is even common among universities, sports organizations and other non-traditional corporations. It is a frustrating experience to have someone tell you that your idea, is actually their idea.

That said, there are options available to you. Just because someone claims you are using their intellectual property does not make it so. Often, a negotiation will begin. Sometimes a deal can be reached. Other times, you have to stick to your guns.

If you received a notice asking that you cease using the property at issue, and you ignore it, you could find yourself a defendant in a lawsuit. At that point, you could be defending your right to continue to use the idea, and you could also be defending a claim for money damages. Litigation like this can sometimes be a balancing act. You are going to need to retain counsel. As you interview attorneys, you’ll hear a lot of them compare themselves to pitbulls. Sometimes that’s what is needed. Often, that approach just runs up the bill. We recommend having the conversation early about your goals and budget. Not every dispute is a knock-down drag-out scorched earth litigation. Sometimes you need that pitbull in your corner. Other times, you just need someone to help you execute effective business decisions.