Intellectual Property: A primer for startups

I know Intellectual Property are the last words you want to hear when you’re starting a company. The words you’re probably thinking about are product-market fit, users, venture capital, and growth. Try as you might, there are certain aspects of Intellectual Property (or IP) every startup should be familiar with, especially with regard to protecting your own IP and respecting the IP of others.

IP mainly consists of copyright, trademark, and patents. Copyright and patent law are protected under the U.S. Constitution, and trademark is protected under the Lanham Act, a federal statute.

What is Copyright?

It’s just that. It’s a right to copy. It’s also gives you a right to prevent others from unauthorized uses of copying. It protects the expression of ideas such as writings, movies, and photographs. It does not protect against ideas themselves. For example, you can copyright your screen version of Romeo and Juliet, but you can’t copyright a scenario where two star-crossed lovers fall in love.

In order for a work to be copyrightable, it can’t fall into a prohibited subject matter like an idea, and it has to be original. Original is a loose term, and basically means it has to have some level of creativity. It also has to be fixed, or in a “tangible medium of expression”. Expressions such as unrecorded broadcasts or projections on a screen don’t count.

What are Trademarks?

Trademarks are symbols or words used to identify brands. We see them everywhere in our daily lives. For example, the Nike swoosh is a registered trademark of Nike. When you see the swoosh, you automatically think Nike. This is incredibly important to brands, as some view their trademarks as the most valuable part of their business. Trademarks allow consumers to recognize the source of a good or service.

What are Patents?

Patents protect rights embodied in technological innovation. Unlike copyright however, when determining protection for a patent, the USPTO will focus on the text describing the invention, not the actual product or work itself. Contrary to what you might expect, a patent breaks down in painstaking detail how exactly to make or use whatever the inventor wants to patent. In order to patent an invention, it has to be new, it can’t be obvious when looked at everything else that’s in the world already, it has to “do” something, and you have to tell us how you did it. There are also specific limitations to what you can patent. For example, you cannot patent a law of nature or something that is naturally occurring like an animal or plant regardless of the resources you expended to discover them.

What Creative Startups Should Know

You’re probably asking yourself how these three dense topics affect you. As a creative startup founder, you will undoubtedly encounter IP, either on your side (you creating it) or the other side (you using it). You should care about all three of these forms of IP because if you’re creating any of them, you’ll want to get protection. The reason we grant protection is to incentivize creators like you to keep making them. Protection rewards you for your work.

Registration and infringement relief are very closely related for all three. For example, you can’t get statutory damages for copyright infringement if you didn’t register which means you can’t get damages irrespective of your actual damages. In other words, that sucks and you should register your copyrights. I know anything law related is the bane of most founders’ existence, but there are advantages to being on top of this stuff. Think of it as creative insurance.

It’s also important to know what is protected when you find yourself wanting to use someone else’s IP. For example, you could be making a video for your startup and want to use a song for the background. If you didn’t find that song on a website like Free Music Archive, and know you don’t need to purchase a license, chances are you need to get permission. In cases of IP, err on the side of asking for permission first rather than forgiveness later. IP lawsuits can be incredibly expensive and messy. Trust me, that’s the last thing you need when starting a company.

To learn more, check out my Ignite talk on IP or feel free to e-mail me.

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