2.1 Types of Intellectual Property in Art
3 min read•august 9, 2024
Intellectual property in art encompasses copyrights, patents, trade secrets, and trademarks. These legal protections safeguard artists' creations, giving them control over their work's use and distribution. Understanding these rights is crucial for artists to protect their creative output.
Each type of intellectual property serves a unique purpose in the art world. Copyrights protect original works, patents cover inventions, trade secrets guard confidential information, and trademarks distinguish brands. Knowing how to leverage these protections can help artists thrive in their careers.
Copyrights and Related Rights
Copyright Protection and Moral Rights
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- grants exclusive rights to creators of original works allowing control over reproduction, distribution, and adaptation
- Copyrights protect various forms of artistic expression (literary works, music, paintings, sculptures, photographs)
- Duration of copyright typically extends for the creator's lifetime plus an additional 70 years
- protect the integrity and of creative works
- Artists retain moral rights even after selling their work includes right to claim authorship and prevent distortion or mutilation of their creation
Public Domain and Fair Use
- Public domain encompasses works no longer protected by copyright or never eligible for protection
- Works enter the public domain when copyright expires or creators voluntarily relinquish rights
- doctrine permits limited use of copyrighted material without permission for purposes (criticism, commentary, parody, news reporting, teaching, scholarship, research)
- Courts consider four factors when determining fair use: purpose and character of use, nature of copyrighted work, amount used, effect on potential market
Original and Derivative Works
- Original work of authorship refers to independently created works exhibiting minimal creativity
- Originality threshold relatively low requires more than mere copying but less than novelty
- Derivative works build upon or incorporate elements of preexisting works
- Creating derivative works requires permission from original copyright holder unless original work in public domain
- Derivative works receive separate copyright protection for new, original elements added
Patents and Trade Secrets
Patent Protection and Requirements
- Patents grant inventors exclusive rights to their inventions for a limited time in exchange for public disclosure
- Three types of patents: utility patents (new and useful processes, machines, manufactures, compositions of matter), design patents (new, original, ornamental designs for articles of manufacture), plant patents (new varieties of plants)
- requirements include novelty (invention must be new), non-obviousness (invention not obvious to person skilled in the field), utility (invention must be useful)
- Patent duration typically 20 years from filing date for utility patents, 15 years from grant date for design patents
Trade Secret Protection and Maintenance
- Trade secrets protect valuable confidential business information that provides competitive advantage
- Trade secrets can include formulas, patterns, devices, compilations of information (customer lists, manufacturing processes)
- No formal registration process for trade secrets protection relies on maintaining secrecy
- protection lasts indefinitely as long as information remains secret
- Businesses must implement reasonable measures to maintain secrecy (non-disclosure agreements, restricted access, confidentiality policies)
Trademarks
Trademark Registration and Protection
- Trademarks protect words, phrases, symbols, designs, or combinations thereof that identify and distinguish goods or services
- rights can be established through use in commerce or registration with the United States Patent and Trademark Office (USPTO)
- Registered trademarks receive nationwide protection and presumption of ownership
- Trademark protection lasts indefinitely as long as mark remains in use and proper renewals filed
Types of Trademarks and Distinctiveness
- Various types of trademarks include word marks, design marks, sound marks, color marks, trade dress
- Strength of trademark protection depends on distinctiveness categorized as fanciful (invented words), arbitrary (common words used in unrelated context), suggestive (hints at product qualities), descriptive (describes product features), generic (common name for product)
- Fanciful, arbitrary, and suggestive marks receive strongest protection
- Descriptive marks require secondary meaning (acquired distinctiveness) for protection
- Generic terms cannot be trademarked
Trademark Infringement and Dilution
- Trademark occurs when unauthorized use of mark likely to cause consumer confusion
- Factors considered in infringement cases include similarity of marks, relatedness of goods or services, strength of plaintiff's mark, evidence of actual confusion
- Trademark dilution protects famous marks from uses that blur distinctiveness or tarnish reputation
- Dilution by blurring weakens mark's ability to identify and distinguish goods or services
- Dilution by tarnishment harms reputation of famous mark through association with inferior or unsavory products
Key Terms to Review (20)
Artist resale right: The artist resale right is a legal provision that grants artists a percentage of the sale price when their artwork is resold in the secondary market. This right aims to ensure that artists benefit financially from the increased value of their work over time, acknowledging their ongoing contribution to the art world and providing them with a continuous income stream. It connects to broader intellectual property rights by emphasizing the importance of protecting the economic interests of creators in an evolving marketplace.
ASCAP: ASCAP, which stands for the American Society of Composers, Authors, and Publishers, is a performance rights organization that plays a vital role in protecting the rights of songwriters and composers. By collecting licensing fees from businesses that play music, ASCAP ensures that its members receive royalties when their works are performed publicly. This organization supports the creative rights of artists and helps maintain the integrity of the music industry.
Attribution: Attribution refers to the process of identifying and assigning credit to the creator of an artwork or cultural product. This is crucial in various contexts, as it not only acknowledges the artist's original work but also influences the value and rights associated with that work, impacting intellectual property rights, public domain status, and authentication efforts. Proper attribution can protect artists’ moral rights and help prevent art fraud by ensuring that works are correctly linked to their creators.
Campbell v. Acuff-Rose Music, Inc.: Campbell v. Acuff-Rose Music, Inc. is a landmark Supreme Court case decided in 1994 that established important precedents for the Fair Use Doctrine in copyright law, particularly as it pertains to transformative works. The case involved the rap group 2 Live Crew and their parody of Roy Orbison's song 'Oh, Pretty Woman,' leading to a ruling that determined transformative use can qualify for fair use even if it has a commercial purpose. This decision significantly impacted the way copyright law interacts with artistic expression and creativity.
Copyright: Copyright is a legal protection granted to creators of original works, giving them exclusive rights to use, reproduce, and distribute their creations for a certain period of time. This concept is crucial in the art world as it helps ensure that artists can control their work and receive compensation for their efforts while also balancing the public's access to cultural materials.
Copyright Act: The Copyright Act is a set of laws that grants creators exclusive rights to their original works, including the right to reproduce, distribute, perform, and display their creations. This legal framework protects the interests of artists and encourages the production of new works by ensuring that creators can control how their art is used and monetized, which is essential in various areas like licensing, royalties, and ownership disputes.
Copyright Office: The Copyright Office is a governmental body responsible for overseeing the registration and protection of copyrighted works in the United States. It serves as a central resource for authors, artists, and creators to secure their intellectual property rights and provides essential information on copyright laws, registrations, and related policies that affect various types of creative works.
Creative Expression: Creative expression refers to the manifestation of ideas, emotions, or concepts through various forms of art, including visual arts, music, literature, and performance. It encompasses the individual artist's unique perspective and interpretation, which is protected under various types of intellectual property laws to encourage innovation and protect artistic rights.
Derivative work: A derivative work is a new creation that is based on or incorporates one or more preexisting works, transforming, adapting, or altering them in some way. This can include adaptations, translations, or any form of creative transformation of the original work while still retaining a connection to it. Derivative works are important in the context of intellectual property as they help to expand and reinterpret existing creations, but they also raise questions about ownership and rights of the original creators.
Fair Use: Fair use is a legal doctrine that allows limited use of copyrighted material without obtaining permission from the copyright holder. This principle is crucial in balancing the rights of creators to protect their works with the public's interest in accessing and using those works, particularly in areas such as criticism, comment, news reporting, teaching, scholarship, or research.
Infringement: Infringement refers to the violation of someone’s rights, particularly concerning intellectual property, such as copyrights, trademarks, and patents. In the context of art, it often involves unauthorized use or reproduction of artistic works, which can lead to legal consequences. Understanding infringement is essential as it helps define the boundaries of ownership and the rights of creators to control their works in various forms, especially in the digital age and across social media platforms.
Lanham Act: The Lanham Act is a federal statute that governs trademarks, service marks, and unfair competition in the United States. This law provides a national system for trademark registration and protection, helping to ensure that consumers can identify the source of goods and services while preventing confusion in the marketplace. The Lanham Act is crucial in the realm of intellectual property, particularly as it relates to the protection of artistic works and brand identities.
Licensing Agreement: A licensing agreement is a legal contract that allows one party to use the intellectual property of another party under specific conditions. This agreement outlines the rights granted, the duration, and any compensation or royalties that must be paid for the use of the intellectual property, which can include copyrights, trademarks, and patents. These agreements are crucial in the art world, as they protect the interests of both the artist and the licensee while fostering creative collaboration.
Moral Rights: Moral rights are the personal rights of an artist to protect their personal and reputational interests in their works. These rights allow artists to claim authorship, object to derogatory treatment of their work, and control how their creations are used, ensuring that their integrity and legacy remain intact.
Patent: A patent is a form of intellectual property that grants an inventor exclusive rights to their invention for a limited time, typically 20 years. This exclusivity prevents others from making, using, or selling the patented invention without permission, encouraging innovation by allowing inventors to profit from their creations. In the context of art, patents can apply to unique designs, processes, or technology used in creating artwork, while also intersecting with social media as artists navigate their rights over original works shared online.
Plagiarism: Plagiarism is the act of using someone else's work, ideas, or expressions without proper attribution, presenting them as one's own. This unethical practice undermines originality and creativity, which are foundational elements in the realm of art and intellectual property. It can encompass various forms, including copying text, images, or even concepts from another creator, all of which raise significant legal and ethical concerns in artistic fields.
Rogers v. Grimaldi: Rogers v. Grimaldi is a landmark case that addresses the balance between artistic expression and the rights of individuals under the Lanham Act, specifically concerning trademark law in the context of creative works. The case involved actress Ginger Rogers suing a film producer over the use of her name in the title of a film, which she claimed misled consumers about her involvement in the project. This case highlights the complexities of intellectual property rights in art, particularly how artistic works can use names and trademarks without infringing on rights when there is a clear artistic purpose.
Threshold of Originality: The threshold of originality is a legal standard used to determine whether a work qualifies for copyright protection, requiring that the work possesses at least a minimal level of creativity and originality. This concept is essential in assessing whether an artwork can be protected under intellectual property law, as it establishes the baseline that differentiates creative works from mere ideas or unoriginal expressions. The threshold is not set high, meaning even slight originality can meet this requirement.
Trade secret: A trade secret is a form of intellectual property that includes any confidential business information that provides a competitive edge. This can include formulas, practices, processes, designs, instruments, patterns, or compilations of information. Trade secrets are protected as long as they remain secret and provide economic value from not being publicly known, making their management crucial for businesses in creative industries.
Trademark: A trademark is a recognizable sign, design, or expression that identifies products or services from a specific source, distinguishing them from others in the marketplace. Trademarks can include words, logos, symbols, and even sounds or scents, serving to protect consumers from confusion and to ensure that brands can maintain their reputation. This form of intellectual property is crucial for artists and creators, especially in relation to how they present their work and interact with audiences through various platforms.