Ok, But What is Intellectual Property?
Before we take a deeper dive into specific issues, it’s really important that we’re all on the same page regarding the big question: what is intellectual property? Intellectual property is about creations of the mind (so far, the human mind, though there has been a case about whether or not a monkey can own the copyright of a selfie!). Creations of the mind can take a lot of forms, though, and in the world of intellectual property it matters WHAT that creation is...which brings us to the three main types of intellectual property: patent, copyright, and trademark. This site will mostly be focusing on copyright and trademark...patent doesn’t come up often in fan spaces, but for now, I’ll cover each of the three at a basic level.
Areas of Intellectual Property Law
Patent Law
Patent law covers inventions. Everything from the lightbulb, to the iPhone, to (somewhat controversially) the Epipen are or have been covered by one or more patents. The theory is that invention is expensive and high risk and that inventors that manage to create something that people want should be guaranteed those profits. Patent also has an element of public disclosure: in order to get a patent, you have to make a ton of information publicly available, so that once the patent expires ANYONE can make use of it without paying. We probably won’t talk a lot about patent here…it doesn’t really come up much in fandom spaces, but it’s still worth knowing what it is!
Copyright Law
Copyright, like patent, grants certain exclusive rights to the creator…but it’s otherwise quite different. Copyright covers things like art, writing, film, photography, and other creative works, and, mostly, protects those things against copying. Unlike patent, there is no violation of a copyright if there is no copy: if you come up with the same idea, independently, without ever being exposed to the original, you haven’t violated copyright. Of course…if the original is well known, proving that you didn’t ever see it becomes very tricky. Generally, copyright protects the right to copy, distribute, sell, or publish the protected work. This can also cover derivative works, which are works based on the original work: you can’t make a film adaptation of a book without the permission of the rights owner of that book! There are a number of limiting factors, such as fair use and the first sale doctrine, but we’ll get into those more later. If you want to see what we’ve covered on copyright, take a look here.
Trademark Law
Trademark is a bit of a strange beast in intellectual property law. It’s not really about the rights of the owner of the mark…it’s about consumer confusion. At its heart, trademark law is intended to prevent consumers from being confused and thinking a good or service comes from one source, when in fact it comes from another. Think about any time you’ve walked down the hair care aisle in your local drug store…the generics do their best to look like the brand name, right? What the creators of the generics are doing is trying to tread as close to the line as possible, playing on consumer recognition, without actually being at risk of violating trademark law. But this is why we can have Apple Computers and Apple Records…generally, no one thinks that the former is associated with the later (though I suppose the line has blurred since the introduction of Apple Music), they started in totally different markets, so it was fine for them to have similar names. To see what we’ve covered so far on trademark, check here.