Intellectual Property: What Artists Should Know
Demystifying Copyrights, Trademarks, and Patents in the Music Industry
***The following content is for general informational purposes only and is not intended as legal advice. While it provides insights into legal issues, it does not create an attorney-client relationship. For legal advice, please consult a licensed attorney.***
You’ve likely heard the terms “intellectual property” (or its abbreviation, “IP”), “copyright,” and “trademark,” or seen the ™ and ® symbols floating around in your creative spaces. But do you know exactly what they mean and how they apply to you and your artistic creations? Do you know that you probably already own IP? The purpose of this article is to define the various categories of IP relevant to the music industry, and break down the legal mechanisms available for protecting your IP.
Topics such as licensing and selling IP will be discussed in later articles.
The Basics - What is IP?
To understand the term intellectual property (IP), you must first understand the concept of “property” itself. Legally speaking, the term property refers to something that can be owned or possessed, and is accompanied by a “bundle of rights,” such as rights to possess, enjoy, sell, destroy, license, etc. The origins of property law are quite interesting and date all the way back to our most ancient civilizations (give it a Google if you’re interested!).
There are several types of property, including real property (land, buildings, houses, etc.), personal property (physical/tangible items, instruments, gear, cars, etc.), and intellectual property (intangible creations of the mind - songs, riffs, lyrics, poems, artwork, logos, designs, inventions, trade secrets, etc.).
The term “intellectual property” is used in various ways:
To simply define an intangible creation of the mind. For example, the song you wrote is considered a piece of IP; or
To refer to a particular area of the law surrounding the protection of IP. For example, IP attorneys practice IP law (FYI - IP law also falls under the umbrella of entertainment law. An entertainment attorney’s areas of practice usually includes IP law as well); or
To refer to the mechanisms that serve to protect these intangible creations from unauthorized use. For example, copyrights, trademarks, and patents.
Like other types of property, IP can be owned by an individual person, several people at once, companies, trusts, estates, government entities, universities, etc. IP is an asset that can be bought, sold, licensed, or used as collateral.
IP can also be stolen or used without the owner’s authorization.
How to Protect Your IP
There are various mechanisms to protect IP. The proper mechanism depends on the type of the IP. This section will focus on copyrights and trademarks (and will touch briefly on patents), as these are most relevant to the music business. More specifically, what they are, how to obtain them, whether and how to register them, how to enforce them, and how long they last.
First, let’s clarify the distinction between copyright and trademark, then we’ll break each down.
Copyright vs. Trademark
In the most simple of terms:
Copyright - Protects original creative works and expressions of ideas (lyrics, melodies, songs, album artwork, photos, etc.).
Trademark - Protects words, names, symbols, or designs used in commerce (logos, stage names, band names, etc.).
Copyright Explained
A more complete definition of copyright is “a legal mechanism that protects original works of authorship as soon as an author fixes the work in a tangible form of expression.” Let’s break down this definition into its elements:
Original works - Works are considered “original” when they are created by a human author. I.e., there was creativity involved in the making of the work, and the work was not merely a copy of something someone else made previously. For example, new lyrics that you develop in your mind while driving may be considered an “original work.”
Fixed in a tangible form of expression - The original work must be “fixed in a tangible form of expression,” such that the original work can be perceived, reproduced, or communicated for more than a short time. For example, you pull over and send the lyrics as a voice note to your bandmate, or type the lyrics in your notes app so that you don’t forget them. You’ve now fixed the lyrics in a tangible form of expression.
It’s important to note that copyrights do not protect mere ideas, but rather the expression of ideas, hence this “fixing” requirement.
Fixed by the author - The “fixing” of the original work must be done either by the author themselves, or under the supervision of the author. For example, say someone overhears you singing the new lyrics and then secretly texts the lyrics to someone else. In this example, there is no copyright since you were not the one who “fixed” the lyrics, and the lyric thief did not “fix” the new lyrics under your supervision or at your direction.
How to Obtain, Register, & Protect a Copyright
A copyright comes into existence the moment that the original work is fixed in a tangible form of expression. That’s it. It’s that simple. You may be realizing by this point that you do in fact already own various copyrights. However, have you “registered” any of them?
The best way to protect your original creation is to formally register the copyright with the US Copyright Office. Here is a link to the US Copyright Office’s registration page. The registration fees can be found here, and they provide tutorials here. You can DIY, or save time and stress and hire an attorney to assist with registration for pretty reasonable fees.
Registration is optional, but it carries enhanced protection. For example, if you register your copyright you can easily establish your ownership, take your case directly to a federal court, receive statutory damages (without having to prove your actual damages), and recover your attorney’s fees if you win. Registration also makes your case more appetizing to attorneys, since their fees will be paid by the other party if they are successful.
If you do not register a copyright and wish to enforce your rights against someone using your material without your authorization, you can still do so. However, you’ll have to first get over a few hurdles including proving your ownership (not as easy as you might think), navigating the state court system (especially complicated if your going after someone in another state), and proving your monetary damages (also not easy to do).
How Long Does a Copyright Last?
How long a copyright lasts depends on various factors. In most cases, a copyright lasts the for the lifetime of the original author plus another 70 years. All copyrights eventually expire, and then the original work becomes part of the “public domain,” which means it can be used by anyone without permission or compensation. For example, the “Happy Birthday” song became public domain in the US on June 27, 2016.
How to Enforce a Copyright
A wise first step to take if you feel that someone is violating your copyright is to gather the evidence and consult with an experienced attorney to find out if you in fact have a strong case and what your options are. Many attorneys will offer free consultations. Even if you don’t end up hiring an attorney, you will likely learn something valuable from the consultation.
It may be tempting to want to aggressively threaten to sue someone who is using your work without your authorization. This direct aggression rarely works in your favor. A well-written demand letter drafted by and sent on the formal letterhead of an experienced entertainment attorney can do wonders. A formal demand letter shows you are reasonable yet serious, and ready to engage the proper professionals to take legal action if needed.
I am not telling you to abandon litigation all together. I am merely recommending you take practical and methodical steps. If your rights are in fact being violated, you can and should enforce them.
Remember, you will have an easier time defending a registered copyright than you will an unregistered copyright.
Trademark Explained
A more complete definition of trademark is “a legal mechanism that protects any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods.”
Unlike copyrights, which protect creative expressions, trademarks protect, well… marks (words, names, symbols, designs) that are used in trade (commerce).
How to Obtain, Register, & Protect a Trademark
A trademark comes into existence the moment the mark is used in commerce (i.e., once the mark is printed on goods or used in advertisements). A logo designed in photoshop is not considered trademarked until it’s first use in commerce.
Similar to copyrights, trademarks exist without formal registration, but the protections are greatly enhanced by registration. The “™“ symbol implies an unregistered trademark, while the “®” symbol implies a registered trademark.
The best way to protect your trademark material is to register with the US Patent and Trademark Office (USPTO) by using the Trademark Electronic Application System (TEAS). You can find the USPTO’s main website here, registration tutorial videos here, FAQ page here, and fees here. Similar to the enhanced protection of registered copyrights, registering a trademark also publicly establishes your ownership, allows the case to go straight to federal court, allows you to use the “®” symbol (which puts the public on notice that the mark is protected by law), broadens the geographical scope of the protection, provides statutory damages and recovery of attorney’s fees if successful, provides a basis for international protection, etc. Registering a trademark also increases the value of the mark and allows you to license it.
An unregistered trademark still carries some protection, but that protection is limited in geographical scope, and results in additional hurdles should you seek to enforce your rights with respect to the mark
While registering a copyright is generally straight forward, registering a trademark is more complex, and I recommend working with an attorney if you can. If an attorney is not in your budget right now, then watch the video tutorials linked above, do your research, and read all instructions carefully.
How Long do Trademarks Last?
Unlike copyrights, which expire, trademarks can go on indefinitely, provided certain conditions are met, and depending on whether the trademark was formally registered with the USPTO.
Registered trademarks have an indefinite duration so long as the registration is renewed every 10 years, the mark is continuously and actively used in commerce, and the registration is not otherwise cancelled.
Unregistered trademarks have an indefinite duration so long as the mark is continuously and actively used in commerce. However, unregistered trademarks carry less legal protections.
Rules on expiration/cancellation vary based on many factors, however the general assumption is that a trademark that has not been used for 3 years is considered abandoned, and it’s registration (if registered) may be cancelled.
How to Enforce a Trademark
Similar to copyrights, the best initial steps for enforcing your trademark rights include consulting with an experienced attorney to learn about your options.
Remember, you will have an easier time defending a registered trademark than you will an unregistered trademark.
Patents
Unlike copyrights and trademarks, patents must be registered with the USPTO. The types of IP that patents pertain to include inventions, innovations, processes, novel methods, etc. A “patent” is physical document issued by the government that gives you a legal right to exclude others from making, using, or profiting off something that you invented. You must first apply to obtain a patent from the government before you can successfully stop someone from making, using, or profiting off of something that you invented.
Examples of patents in the music industry include the phonograph, an instrument supporting device invented by Eddie Van Halen, the Moog synthesizer, Auto Tune, Bose’s noise reduction technology, Pro Tools, Spotify’s content recommendation algorithms, etc.
I can dive deeper into patents if there is a demand for this subject matter from the readers.
Closing Remarks
If you made it this far - great job! My hope is that by this point you have a better understanding of the concept of IP, the difference between copyrights (original creative works) and trademarks (marks used in commerce), and the legal mechanisms available to protect your IP.
As always, the topics covered here contain more twists, turns, and caveats than can possibly be addressed in a single article. In fact, law schools have separate courses for each topic, and IP attorneys are constantly wrestling with the gray areas of IP law. This article is merely a broad stroke of the fundamentals and should not be considered as a complete explanation of IP in any way.
Let me know what other topics you would like to read about!