Copyright, Trademark and Patents: A Guide for Journalists

Newspaper ImageEarlier this week, Cracked.com ran an article entitle 5 Everyday Things You Won’t Believe Are Copyrighted, which is a look into some of the more bizarre recent cases in intellectual property in Cracked’s traditional list format.

There was only one problem with the list: Nothing on the list is actually copyrighted.

Most of the discussions deal with trademark issues (though patent issues were also raised) and have absolutely nothing to do with copyright law.

But while Cracked may not be a great bastion of journalism, it’s far from the only site to make this mistake. During the Apple vs. Samsung patent trial, many journalists and editors insisted on calling it a copyright case and similar things happened during the Apple vs. Amazon trademark dispute (see comment pointing out the error, which was fixed) over the name App store.

The confusion is understandable but problematic. I have no reasonable expectation that a journalist would be an expert on intellectual property law but it is a part of your job as someone who is publishing content to a mass audience. Furthermore, if you’re covering intellectual property as part of your news beat, making simple mistakes can help perpetuate dangerous myths and misunderstandings that can negatively impact both your readers and the discourse they have on the subject.

With that in mind, I want to offer up a short, simple guide on the subject. This isn’t designed to make you an expert in the field, but to give you a basic handle on what the various terms mean and when they most likely apply.

This way, at least, we can all avoid using the word copyright when we mean something else.

Intellectual Property

Intellectual property is a blanket term that covers all types of intangible property and the laws that govern them. This includes copyright, trademark, patents and trade secrets.

When to Use It: Typically, this is the term that you would use when describing a case that expands across multiple areas of intellectual property. For example, if Company A sues Company B for both trademark and and copyright infringement, you can say Company A sued over various intellectual property infringements.

Copyright

Copyright is an area of intellectual property that deals with works of creative authorship such as books, music, movies, software, artwork, photography, etc. Copyright gives the copyright holder, usually the creator, the right to control who can copy, distribute, publicly display/perform a work. Copyright lasts the life of the author plus seventy years for works created by individuals and 95 years for works of corporate authorship.

When to Use It: Most copyright cases are clearly marked as such. However, you can assume most cases that deal with piracy, royalties for creative works and non-design plagiarism are copyright cases.

Trademark

Trademark is an area of intellectual property that deals with names, slogans, logos and other things used to identify a business, product or service in the marketplace. Trademark law deals with confusion in the marketplace and isn’t designed to prevent mere copying, but to prevent competitors from gaining an unfair advantage by using the mark and goodwill of another company. Trademarks can be perpetual as long as they are constantly used to represent a business interest.

When to Use It: There can be some overlap between trademark and copyright, especially with logos that are both artistic and used to identify a business. But those cases are rare. Trademark deals with business, product and service names as well as logos, slogans and so forth. These things are too short or non-creative to copyrighted, but enjoy trademark protection if they are used to identify a business. So if one company is suing another over having the same or a similar name or confusing logo, that’s almost certainly a trademark lawsuit.

Patent

Patent is an area of intellectual property law that deals with ideas and inventions. This can include the inventions themselves and, in the case of ornamental design on a practical object, its design can be patented as well. Patents must be applied for to be obtained as all patents must be approved by the government. Patents last for 20 years.

When to Use It: There is some overlap between patents and copyright as software, for example, is protected by copyright but can also be patented in some situations. Most useful objects can’t be copyrighted though they may be patents, disagreements about things like the shape of a cell phone fall under patent law. All cases dealing with inventions, discoveries and designs fall under patent law.

A Quick Example

To illustrate all of the above areas of intellectual property one lawsuit. Consider this example.

If I copied the software from an iPhone onto a new phone I designed, I would be violating copyright. If I also made the new phone look like an iPhone and use Apple-exclusive inventions, I would be violating patent. If I called it an iPhone, I would be violating trademark.

Rapid Fire Definitions

Finally, to help with at least some of the more common terms you’ll run across when dealing with intellectual property issues in your reporting, here are some quick definitions to let you “sanity check” your reporting.

  1. Fair Use: Fair use is an exemption to copyright law that allows others to use copyrighted works without permission from the rightsholder. The exemption is narrow and ambiguous, but centers mostly on the transformative nature of the use (commentary, criticism and parody are favored)and the impact on the market for the original work. Fair use is also applicable in trademark cases, though under different terms.
  2. Public Domain: When works do not have copyright protection, they are said to be in the public domain. These works can be copied freely without permission. Most works enter the public domain after expiration though some works, such as those created by the U.S. Government, are in the public domain upon creation.
  3. Work For Hire: Works for hire are works where the copyright rests not with the person who created the work but their employer. A work is said to be made for hire, and thus the copyright of the employer, if it is created in the course of an employees duties. With non-employees, such as freelancers, the issue is more complex and requires that the work qualify for such an arrangement and that an agreement be signed before work begins.
  4. Trademark Dilution: Trademark dilution is when a famous mark is protesting the use of the mark on unrelated products. It only applies to famous trademarks, non-famous ones have to prove that the new use will create confusion in the marketplace to prove infringement.
  5. Generic Trademark: Under rare conditions, a trademark can become so popular that it’s name becomes synonymous with an entire class of products or services and fails to indicate any exclusivity. At that point, in the U.S., the mark is considered to be in the public domain and exploitable by anyone. Common examples include Aspirin, Yo-Yo and Zipper.
  6. Prior Art: In patent law, prior art refers to all information relevant to the invention that was made publicly available before it was registered. However, if the invention itself is described in any prior art, the patent becomes invalid. Showing the invention in prior art is a common way to break a patent and end patent litigation.

While these are not all of the terms you will run across in your reporting, they are some of the more common and more commonly-confused ones out there.

The Symbols

Finally, in addition to the terms, intellectual property law comes with a slew of symbols and identifiers that you will likely want to be familiar with, they include:

  1. ©: The copyright symbol is used to indicate that a work is copyrighted. However, modern copyright law hade the symbol unnecessary, though it is still widely used.
  2. ™: The TM or, alternatively SM for “Service Mark” is used with logos, names, etc. that the user wants to claim as trademarked, but are not registered trademarks. Though trademarks don’t have to be registered to be protected, registering does provide many benefits.
  3. ®: The encircled R indicates a trademark name, logo or slogan that has been registered with the U.S. Patent and Trademark Office.
  4. Patent Pending: Patent pending is appended to products for which its creators have applied for one or more patents but have not completed the process and been issued the patent.
  5. Patent #: Used on products that have filed for and received one or more patents on the product. The number(s) can be used to look up what the patent is for and what is protected.

These five are by far the most common intellectual property-related symbols you’ll see. Though there are others, such as Creative Commons logos, those are less common and can be better explained elsewhere.

Bottom Line

In the end, you don’t have to be an expert in intellectual property to provide good coverage of it. All it takes is a basic understanding of the principles and the willingness to dig into the cases themselves. Usually, the information that you need to know is placed pretty front and center without having to go through too much legalese.

That being said, confusion is understandable as even experts on intellectual property are often wrong. To make matters worse, people are knowledgable about one field aren’t usually knowledgeable about others. For example, I’m pretty good with copyright and I know a fair amount about trademark, but I know next to nothing about patent law and had to research those portions heavily for this guide.

So, if you don’t know for certain whether to use copyright or trademark in an article, take a moment and look it up. The information is readily available and there are others out there, including many in your newsroom, who will likely be willing to help.

One Response to Copyright, Trademark and Patents: A Guide for Journalists

  1. Brenda Speer says:

    Yea, Jonathan! And thanks for posting this IP primer. As an IP attorney, I’m endlessly explaining these differences to people and informing them that the terms ‘patent,’ ‘trademark’ and ‘copyright’ are not synonyms, but distinct and different property rights as you’ve noted. It really is important that people grasp this so they can engage in intelligent discourse on the subject. I often use a transportation analogy to illustrate how the forms of IP differ: Although all forms of transportation (umbrella term, like ‘IP’), cars drive on land, ships sail on water and planes fly in the air–they are all forms of transportation, but are used for different purposes and are not interchangeable. However, at times, these forms of transportation can have overlapping functions into more than one situation, such as a hydroplane that can move both on water and in air, just as different forms of IP can overlap and protect different aspects of a single property (a book series with each book’s content subject to copyright, but the series title subject to trademark, like the Dummies, Idiots or Chicken Soup series).

    Keep up the good work!

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