The laws protecting intellectual property (“IP”) are some of the more-often misunderstood in the US—very often, people don’t know whether they have something that needs copyright, trademark or patent protection, or some combination of the three. And, equally often, they don’t know whether what they have is protectable at all. While each area of IP has its particular rules for what is and is not covered, one thing is common to all three areas: “ideas” are not protected—expressions of ideas are.
An example will help:
For purposes of copyright law, an idea for a musical about two people from very different backgrounds who fall in love and raise the ire of their respective families and friends is not protectable—it’s just an idea. But once that idea is put down in writing—let’s call it “West Side Story,” then it becomes a tangible expression of that idea, and protectable under copyright law. And it doesn’t matter that we’re using the example of a piece of musical theatre: the same thing holds true for books (versus ideas for books), songs (versus songs in your head), and so forth. Any original work of creative authorship is protectable by copyright law, once it’s expressed in a tangible form, and not before.
So go trademark and patent laws, as well: an idea for a logo isn’t protectable by trademark law until the logo is created and used in commerce; and an idea for an invention isn’t protected by patent law until it is “reduced to practice”—either the invention itself is produced or a patent application containing it is filed. (Both trademark and patent law have additional requirements, not relevant here.)
So you have to make something before you get to protect it—that seems sensible, right? Well, the abundance of confusion out there is understandable. Even those who should know the most about this stuff—mega-companies like Microsoft, Philips, and DSM—get it wrong, and contribute to the public’s misunderstanding in the process. Look no further than http://ideasmatter.com/, a website put together by the aforementioned three IP giants, ostensibly to educate the public. This site undeniably muddies the distinction between what is protected by IP law and what’s not…and perhaps intentionally so. Why would these three players try to overstate the reach of IP protection? Let’s just say that they probably have a stake in making the public think that without strong IP laws, people wouldn’t continue to have ideas. Oh, and also maybe that if you have an idea, you should be afraid—very afraid—that a corporate giant with an army of lawyers has had it first…and think that you should exit the arena quietly.
Well, at LegalZoom, we want you to hang in there. For a better understanding of what is and isn’t protected by IP law, you can check out LegalZoom’s various Education Centers—just go to www.legalzoom.com and follow the links to Trademark, Patent and Copyright.