Intellectual Property for Social Media 101
I’m really excited to join the Editorial Team here at Social Media Club, and to have the opportunity to inform and hopefully entertain you a bit about the intersection of social media and the law. I thought it best to start out with an overview of the different types of intellectual property out there so that you can arm yourself with knowledge as you navigate the social media landscape.
Let’s start with copyright. Copyright protection protects works of original expression, such as songs, movies, works of choreography, literary works, computer programs, and even boat hulls. The protection attaches at the moment of fixation in a tangible medium. Copyright protection does not protect ideas, but the expression of an idea.
While this protection is relatively simple to obtain, your best bet is registering the work with the Copyright Office of the Library of Congress. Registration can be done online, and costs $35 for a basic registration.
The importance of registering the work for copyright is that it acts as evidence that you are the owner of the copyright in the work and have the right to exercise the exclusive rights afforded to the owner of a copyright. These rights include the right to reproduce, adapt, publicly display, make derivative works from the original work, publicly perform, as well as a digital performance right that is given to owners of sound recording copyrights.
In addition to providing evidence of your status as owner of the copyright, having registered your work also gives the owner the right to collect certain types of damages in a copyright infringement claim, including attorney’s fees, that owners of unregistered works are barred from recovering. While the circle © notice is no longer required to receive copyright protection, it is a good idea to place the notice with the year or years of creation on your work.
The term of copyright protection is currently the life of the author plus 70 years after his or her death for an individual author, or life of the last surviving author of a joint work plus 70 years. The term for works for hire, anonymous works, and pseudonymous works is 95 years after the work’s first publication, or 120 years after the creation of the work, whichever is earlier.
As you have likely seen, the penalties for copyright infringement can be stiff, and can include not only monetary fines, but also criminal penalties.
Another type of intellectual property protection is trademark protection. This type of IP is intended to indicate the source of a good or service, and can apply to logos, slogans, names, and in some instances scents and even colors like the famous Tiffany blue. Trademarks are very important in building a brand and reputation for a company, especially online. They are also very important in disputes over domain names, as well as user and page names on social media sites.
Trademark protection is available on three levels, the common law, state registration, and federal registration. Federal registration is the strongest level of protection in the United States, as it provides you with evidence of ownership of the mark and also gives you the right to enforce that mark in every state in the Nation.
The standard for determining ownership in trademark infringement cases is whoever was first to use it in commerce, making documentation of the mark’s use with particular goods or services important. Registration is done on a class basis depending on the type of goods or services with which the mark is being used. As long as the mark is being used in commerce, the protection does not expire, though trademarks do risk becoming generic, at which point they are no longer protected.
Registering a mark for federal protection can get expensive depending how many classes of goods or services the mark is being registered for, as the filing fee with the United States Patent and Trademark Office is $325 per class.
Yet another area of intellectual property is that of patents. There are two types of patents granted in the United States, utility and design patents. In order to have a patent issued for an invention or process or the like for a utility patent, you have to show that proof that it is novel, and that it is not obvious or useful.
Registering for patent protection is a rigorous process involving an examination to ensure that the invention has not been published in prior art. If a utility patent is issued by the USPTO, it is protected for 20 years, during which the patent owner has the exclusive right to use, make or sell the invention.
Proof of novelty is also required to obtain a design patent, as well as proof that the ornamental elements of the design are not utilitarian or useful. The term for an issued design patent is 14 years, and protects the patent against the creation of similar designs.
I hope that this overview has been helpful in distinguishing the different types of intellectual property protection out there. I plan on getting into some of these areas in more depth in future posts, keep an eye out or feel free to contact me with suggested topics or questions.
These posts are not intended to be legal advice and are not a substitute for the advice of a licensed attorney in your area.
[Image Credit: http://www.cian-erc.org/img/intellectual_property.jpg]