10 / 25 / 2015

5 Things Most People Get Wrong About Intellectual Property Law

While copyrights and trademarks feature heavily in advertising, most of us see their related symbols on a daily basis – we may feel we have a fair understanding of their meanings.

However, people get several things wrong about intellectual property laws – here are five of them.

1: Companies Are Unethical for Enforcing Trademarks

When we hear about smaller companies or even individuals (artists or businesses) infringing on the rights of a larger company, people tend to think the bigger group is being unethical towards the smaller.

However, trademarks must be enforced if a brand or individual wants to secure their ownership – if not, having multiple bodies producing trademarked goods would render the symbol meaningless.

2: Anyone Selling Fan Fiction or Art is Breaking the Law 

Creating fan art or fiction in tribute to a well-loved film, novel, or other form of entertainment is legal – depending on its purpose and background. Anyone owning the copyright of a piece of fiction owns the rights to all the characters used within it (unless, as in the case of Marvel Studios, certain properties have been sold off to another group), and the nature of the fan-work itself determines its legality.

Fan art or fiction that aims to transform certain aspects of a work (such as changing a character's sexuality) is generally acceptable, as is parody. The latter is a type of criticism, which is protected by US law. Any fan-work which is sold for profit is likely to be in breach of IP laws.

3: Trademarks can Only be Owned by Creators 

A business or organization can hold a trademark on a work they had no hand in creating.

For example, in 2006, Walmart tried to trademark the universally-recognized 'smiley face' image, but was unsuccessful: this had been around since the 1970s, and was ruled as being in the public domain by the court.

Meanwhile, in 2007, celebrity Paris Hilton sued Hallmark after they used her catchphrase (“that's hot”) and likeness on a greeting card. She won. This highlights how unpredictable the field of trademark-infringements can be.

4:  Copyright Applies to Similar Plot Elements 

Many stories feature similar tropes and plot-points (compare and contrast the Star Wars, Harry Potter, The Lord of the Rings franchises, for example), but this does not fall into copyright-infringement.

Copyright law protects the way in which ideas are expressed, rather than the specific ideas: using similar characters, plot-points, settings and other essential elements is permitted. Copying direct parts of a work explicitly is a breach, though, and can lead to legal action.

5:  Covering a Song is Legal without Permission

Thanks to YouTube, people around the world can share videos of covers of hit songs, allowing millions to discover their talents. However, posting a video of a cover performance requires a synchronization license from the holder of the original work's copyright. The publisher of a specific song should be contacted before a video is recorded and uploaded.

Intellectual property law is a serious business across the States, from Alaska to Houston. Business lawyers can provide impartial guidance on knowing your rights – and enforcing them.

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