How to Protect Your Intellectual Property

How to Protect Your Intellectual Property

Hey hey lovelies! As promised, our resident smartypants, Maria Spear of Spear Intellectual Property Law is back today to put some more smarts in our brains! (Her first post was NOT to be missed.) Today’s all about protecting yourself and your ideas as best you can. I’m sure we’ve all been witness to some nasty bouts of idea theft, from small time bloggers to big time corporations. In this installment, Maria shares her top tips on how to protect your intellectual property, and avoid those situations altogether. Don’t forget to save this one in your bookmarks to come back to again and again. Now sit back, get comfy, and hey hello again to Maria!

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I’m back! Today’s discussion (in the form of a list) will cover topics like copyright and trademark registration, using web policies, and other good practices for safeguarding your IP (that’s short for intellectual property – those lovely intangible assets).

Using Watermarks and the Copyright Notice

Though using a watermark won’t stop someone from downloading or taking a screen shot of your photographs, artwork, or other web content, a strategically-placed watermark might make it difficult for others to make use of your images for their own personal (or commercial) gain. Some folks elect to use a copyright notice as a watermark. What’s a copyright notice? Scroll down to the very bottom of this page and you’ll see one: “© 2016 Lovely Indeed.” You’re no longer required to use a copyright notice on copies of works published on or after March 1, 1989 (so, yeah, all blogs likely fall in this category), but using the notice informs the public that that work on which the notice appears is your copyrighted work and provides the year of first publication. If your work has a proper notice, it will prevent a copycat from claiming “innocent infringement” (in other words, that he or she didn’t know the work in question was protected). Use of the notice and the © symbol is at your discretion, and registration of your work with the Copyright Office is not a prerequisite to using the symbol. And speaking of copyright registration…

Registering Creative Works with the Copyright Office

As stated in my previous post, copyright law protects original works of authorship in the areas of literary works, musical works, dramatic works, choreography, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings, architectural works, compilations, and collective works, along with any derivative works. You’re not required to register a work with the Copyright Office in order to have protection — your rights are effective the minute your work is embodied in some tangible form (recorded on a voice recorder, written down, designed on a computer screen or piece of paper, etc.), but there are benefits to doing so, like the potential to recover your attorneys’ fees and costs, and the right to recover what are called “statutory damages” (cash money in the mount of $750-$30,000 per work, and up to $150,000 per work if the infringement was willful). The Copyright Office’s eCo Registration System is a fairly user-friendly system for registering works online and has some tutorials available on the registration process.

Registering Your Trademarks with the Trademark Office

Choosing a brand name takes so much time, and with exclusive use of that name in connection with your goods and/or services, you build up what’s called “goodwill” in your brand. Goodwill is essentially legal-speak for reputation. It’s that “it factor” that allows a consumer to associate a particular level of quality with your brand. Though you acquire rights in a trademark the minute you begin using it in commerce and you don’t have to register it in order to use it, registration has some benefits, such as being able to use the ® symbol (reserved for federally-registered trademarks only), creating a public record of your ownership of the mark, your date of registration, and your date of first use of the mark (which is important if you find yourself arguing with an infringer that attempts to claim its use of a similar brand name predates yours), the ability to file a lawsuit in federal court (as opposed to state court), and the potential to recover your attorneys’ fees. Remember, in the last post, when I mentioned the use of your trademark as a “tag” on another’s Etsy page or product? That could amount to trademark infringement and/or unfair competition, and a letter or takedown request has more bite if your trademark is federally registered.

It’s important to note that not every trademark is registrable in accordance with the Trademark Office’s standards (marks that are generic or descriptive are difficult to register). Also, it’s usually wise to do a trademark search, or have one performed for you, to make sure there isn’t someone out there using your name (or something similar) in connection with products or services similar to yours. No one likes to be on the receiving end of a nasty cease-and-desist letter!

Don’t want to bother federally registering your mark? Consider using the “TM” symbol next to your trademark as it appears on your goods or in connection with your services. This puts people on notice that you consider this name or logo to be your trademark.

Policing Your Mark

Consider setting a “Google Alert” for 1) your name, 2) your blog name and/or product name, and/or 3) any trademarks you consider to be your proprietary marks. Policing your trademark isn’t about being the bad guy, but is more so about being aware of who and how others might be using your mark and, if someone else does begin using your mark in connection with similar goods or services, ensuring that they stop. Again, it’s about preserving all of that goodwill you’ve built into your brand. If you don’t, and others in your field begin using your trademark, your mark could lose protection.

Becoming Acquainted With Takedown Procedures

Many, many websites have a Copyright Policy or Intellectual Property Policy (Etsy has one, Facebook and Twitter each have one, YouTube has one, and on and on). Sometimes these policies are lumped into a larger Terms of Use — if not, you’ll usually see a separate link to the IP policy. The incentive for having such a policy lies in the Digital Millennium Copyright Act (sometimes referred to as the “DMCA”). The DMCA limits the liability of online service providers for any copyright infringement committed by its users, so long as the service provider 1) registers an agent with the Copyright Office, and 2) posts and adheres to the policies outlined in a Copyright Policy or Intellectual Property Policy. The DMCA’s safe harbor does not protect online service providers that don’t act in accordance with their own policies. An example of a Copyright Policy at work would be if you were to take your iPhone, videotape a movie at the movie theater, and post it to YouTube. (Ok, kind of an extreme example, but bear with me). If you upload it to YouTube, and the copyright owner sees it, the copyright owner would swiftly submit a takedown request via YouTube’s form, YouTube would take it down, and YouTube would be insulated from any liability (read: a lawsuit) due to your infringing actions. It’s a safeguard that says “hey, online service provider, create a policy, stick to it, and you’ll be safe from the infringing activities of your users.”

Creating A Strong Terms of Use For Your Website

Finally, we come to Terms of Use (sometimes referred to as “Terms,” “Terms of Service,” or a “User Agreement”), which serve as an agreement between you (the website provider) and the users of your website. So long as a user or visitor abides by the terms of your website, the user is permitted to use the website. I know you all check the “I agree” box and fully read those terms before proceeding with a website or app, right? (No one does. Except maybe me, because I’m a techlaw nerd and I love reading them.) But really, Terms of Use are pretty important, especially if 1) you have folks posting content to your website or interacting with one another, or 2) you’re worried about your content being used in a manner that you don’t approve of. For example, if you have a DIY, recipe, or other instruction-based site where you teach folks how to make things, you likely don’t want to prevent them from making these things for their enjoyment (otherwise, why would you be making your instructions public?). You would likely have a problem, however, if you found out that someone was using your set of instructions or your recipe to create something and sell it for a profit, right? But is there a provision in your Terms of Use prohibiting use of your website for commercial purposes? Martha’s got one (of course she does). To the extent your Terms includes such a provision, and you have a copycat situation on your hands (like the type described in the previous post), and you can prove that a copycat had access to and visited your website, that adds breach of contract to the potential claims you have against a copyright infringer. Further, content usage guidelines (such as how to give attribution and link to your site) might also find a happy home in your Terms.

As with my previous post, you should consider this material as educational, not as specific legal advice. Also, notice that this post doesn’t (nor could it!) dive into every scenario or every area of IP. Not all of the items above will apply to everyone, and every factual situation is different – so, when in doubt, consult privately with a trusted attorney.

Maria Spear launched Spear IP in 2015 to serve creatives, entrepreneurs, “solopreneurs,” and businesses of all sizes in connection with copyright, trademark, technology, and new-business needs. She loves talking with clients about protecting their IP and planning for the execution of their next big idea. Maria is an IP nerd at heart and, when not practicing law, enjoys reading Terms of Use, listening to soundtracks, and singing, and she could not be happier that coloring for adults is now a thing.

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Phewph! Got all that? So. How well are you protected? After reading this, I’m hard at work on my Terms of Use to get it up to snuff. So many thanks to our girl Maria of Spear IP for helping make all this a little more clear. Be sure to follow her on Twitter and Facebook, too – she shares all kinds of interesting stuff. And now, what else are you wondering about? Does this leave any big questions hanging in your mind? Leave them in the comments and maybe we can convince her to come back again! xoxo

P.S. Be sure to read our post on Making Sense of Copyright Law (And What to do if You’re Copied)!

  1. Pooja on said:

    I’ve been having nightmares about Intellectual Property and this is incredibly useful. Specially concerning Google Alerts. It seems like an easy way to see if anyone is talking about you and talking about your content. Thank you for sharing !

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