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Protection of Intellectual Property — What’s An Artist To Do?

By Dr. John Dodds

There is a famous saying that artists only get rich after they die. It really does not have to be that way!

Protecting the intellectual property (creative talent) of an artist, whether painter, photographer, writer, musician, sculptor, or other, is neither difficult nor terribly expensive.  For artists, keeping control over and distribution of the artistic product is more important than the generation of money, per se.

The various forms of intellectual property (IP) include copyright, trademarks, patents, and trade secrets.

Each form might have a role for a particular work of art, but customarily, the most important IP tools for artists, in priority order, are copyright, trademarks, and patents.

Copyright Protection

A copyright is a type of intellectual property protection for “authors” of original works. Basically, a copyright protects an original work and allows the author an exclusive right to reproduce the work, prepare derivatives, distribute copies of the work, and perform it publicly.

Historically, copyrights have been important in protecting the rights for artists and authors. Today, copyrights are more and more important in protecting the rights of database creators. Note that the term “author” is interpreted broadly and can include performing arts.

Trademark (or Creating a ‘Brand’) for Your Art

Trademark is a word, phrase, symbol, design, or a combination of those. It distinguishes the source of one’s goods or services from those of others’.

A trademark can be valid only when it is used in connection with goods or services in commerce. They are important for distinguishing a product or a technology; for example, sounds and logos may be trademarked.

Geographical Indications

Geographical indications are also defined as a type of brand IP. A geographical indication is a sign used on goods that have a specific geographical origin and possess qualities or a reputation that are due to that place of origin.  Again, this can be broadly interpreted.

Patents

Historically, a patent was a grant made by a sovereign that would allow for the monopoly of a particular industry, service, or goods. Over time, the concept has been refined from a public policy perspective so as to produce a contract between the government and the inventor or creator.

In return for the right to exclude others from the “practice” of the invention, the government requests the inventor to fully disclose the enablement of the invention. Furthermore, the monopoly is now limited by time and clearly, is only applicable in the territory under the jurisdiction of the government.

A patent, as stated above, is an agreement between the government and the inventor. In  the United States, it is a fundamental right provided in Article I, Section 8 of the Constitution. Congress is empowered to “promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

In exchange for a limited-term right (usually 20 years) to exclude others from making, using, or selling the invention, the inventor must provide a complete and accurate public description of the invention and the best mode of “practicing” it. This provides others with the ability to use that information to invent further, thus pushing technology forward for the benefit of society.

So, whether you are an author, photographer, painter, sculptor, musician, or other artist,  take control of your creativity — give it to whom you choose or sell it, if you wish.

Dr. John Dodds is a patent attorney in Washington, D.C. He may be reached at j.dodds@doddsassociates.com.