Many creative people make original intellectual property they want to protect as copyrighted works from unauthorized use by others and perhaps monetize.
Before you can enforce your intellectual property (IP) rights or consider selling them, it is beneficial to know what type of IP you have. In this guest post, contributed from the office of a practiced IP and O1 / Artist visa lawyer in NYC, you will learn what copyrighted works and trademarks are, how to register and protect them, and how to monetize their use by others.
What is a Copyright?
Copyright is a type of IP that gives the owner the exclusive right to publish or make copies of their creative work. Copyrights can be given, sold, or traded to others or inherited by others. The owner may also grant or sell a limited use license of a copyrighted work.
Copyrighted works are usually literary, artistic, educational, or musical creations and must be fixed in a tangible medium. Standard copyrighted works include:
- Digital Art
- 3D printer designs
- Interior design
- Clothing design
- Set design
- Costume design
- Video games
- Educational or Instructional materials
Copyright protection does not extend to concepts, processes, or methods of operation. Copyrights are not granted to ideas, methods, or systems, such as instructions for making or building something, scientific or technical methods, business operations or procedures, mathematical principles, formulas, and algorithms. Patent protection may be more applicable to these types of creations and inventions.
How Do I Copyright My Work?
A work is the creator’s copyright from the moment of its creation, and the creator can use the well-known copyright symbol © on an original work without taking further steps. Usually, the title of the work is followed by the copyright symbol and the year created or first published. This practice is enough to put others on notice that you are the copyright holder of the work; however, it is rarely enough to prove ownership should you have to litigate over copyright infringement.
To obtain legal protection should someone infringe your copyright, you must register your copyright with the US Copyright Office. The easiest way to do this is to visit their website and complete an application online.
How Do I Protect My Copyright?
The first step in protecting your registered copyright is to monitor for instances of copyright infringement. The action may be as simple as googling the title or a snippet of your work and seeing if any use of your work appears online. You can also employ one of the many reputable, effective services that will monitor the web and other production channels for you.
Should you find infringement, you should direct your IP attorney to draft and send a certified cease and desist letter. Usually, these letters include an invitation to contact you and arrange for authorized use of your copyright.
If infringement litigation is necessary, you as the plaintiff/copyright owner must prove two things: that you indeed own the copyright, and that the defendant infringed the copyright.
To prove ownership, you must show that the work is original and subject to legal protection via copyright registration. To prove infringement, you must show that the defendant copied or reproduced your artwork as a whole or in part for financial gain.
It is often more prudent to strike a licensing deal with an infringer so you can both avoid the expense of litigation and monetize the behavior that is already happening illicitly.
How Do I Monetize My Copyright?
You can monetize a copyrighted work by licensing one, some, or all the rights you have in the work to someone else. You have a “bundle of rights” in your copyrighted work under US IP law. The six rights you have in a copyrighted work include:
- The right to reproduce the work.
- The right to make derivative works.
- The right to distribute.
- The right to publicly perform the work.
- The right to publicly display the work.
- The right to digitally transmit the work (applies to sound recordings).
You can license any or all of these for any period. Your agreement must be in writing and signed by all parties.
What is a Trademark?
A trademark is a word, phrase, symbol, or design, or combination of these, as well as colors or variety of colors used, that identifies and distinguishes your goods or services from those of others.
Technically, the term “trademark” refers to marks that identify goods, while a service mark identifies and distinguishes one party’s services from those of others. But as a general matter, both trademarks and service marks are referred to as “trademarks.” They are treated the same under IP law, the only difference being to mark a registered trademark with ™ and an unregistered service mark with ℠.
How Do I Protect My Trademark?
Your trademark is essential to your brand. Your customers relate to and identify your mark with the quality of your goods or services. To avoid customer confusion caused by trademark infringement, you should be proactive in protecting your mark from unauthorized use.
Register Your Mark
While mere use of a trademark establishes your common law rights to it, you should consider registering it with the United States Patent and Trademark Office (USPTO). Registration of a trademark with the USPTO has several commercial advantages, including:
- notice to the public of your claim of ownership of the mark.
- the legal presumption of your ownership of the mark nationwide.
- your exclusive right to use the mark on or in connection with the goods or services outlined in the registration.
Registered trademarks are marked with an “R” in a circle ®. Once registered, the USPTO will prevent any similar marks from being registered, helping avoid brand confusion.
Stay Up to Date with Your Mark’s Status
The USPTO will not send reminders for maintenance documents, so once you register your mark, set a reminder for the 5th year after that date to update documentation before that year ends. If you fail to update your mark’s status, you may lose your mark.
Monitor for Unauthorized Use of Your Marks
Employing any one of the IP monitoring agencies will help you determine if others are using your mark on unauthorized goods and services.
How Do I License My Trademark?
Just like with copyrights, you can license the use of your trademark to monetize it. You must execute a written agreement signed by both parties and record that agreement with the USPTO.
Commonly found examples of trademark licensing include:
- Allowing sports team or collegiate trademarks to be printed on clothing.
- Coca-Cola allowing independent bottlers to use the Coca-Cola trademark on bottles of their product.
- Disney allows printing of Mickey Mouse images on items such as wristwatches.
- Popular designers are trademarking their stylized name and allowing others to affix it to other goods.
If you have further questions about your IP or copyrights, or trademarks, contact an experienced IP attorney.
About the Author
Veronica Baxter is a writer, blogger, and legal assistant living and working in the great city of Philadelphia. She frequently works with and writes on behalf of The Yao Law Group.