Core Copyright

Lawyers and lay persons alike often conflate copyright with “intellectual property.” Later, I will attempt to define copyright — a proposition that is a bit more complicated than one may think — but in doing so, it is important to explain what copyright is not. To this end, it is important to explain why copyright is not the same as intellectual property.

It remains a bit surprising that “copyright” and “intellectual property” often are used interchangeably, even by lawyers who practice in one or more areas of intellectual property. In his book Copyright’s Highway, Paul Goldstein tells a story involving the legendary copyright lawyer and professor Alan Latman that captures the frequency with which these two terms are confused.

According to Goldstein, Latman once told a group of intellectual property specialists that most people -– even at times judges –- often do not know the difference between copyrights, patents and trademarks. “When I tell a general practitioner that I am a copyright lawyer, he immediately corrects me: ‘You mean patents!’ He then says, ‘Well, anyway, as a patent lawyer you can copyright a name for me, can’t you?’” The subtle joke is that you cannot receive copyright protection for a name or title (but you can receive trademark protection for a name).

In summary, “intellectual property” is a name that describes a class of several different legal regimes that generally concerns creations of the human mind. Copyright is but one of the legal regimes that fall under the umbrella of intellectual property.

Opinions differ about how many legal regimes fall under the category of intellectual property. Generally speaking, most people will agree that copyright, trademark, and patent law fall under the umbrella of intellectual property, mostly decided under federal law. As a general premise, I usually add licensing law and trade secret law under the intellectual property umbrella. Licenses and trade secrets are decided under state law.

What gets included as a form of intellectual property umbrella likely will vary according to whom you ask: others likely will agree with my addition of trade secrets, while some may question my addition of licensing. In any event, here’s a visual that outlines how I view the various forms of intellectual property:

(Aside: There is an important intersection between copyright and licensing that is relevant to much of what we do today online, hence the gray background that spans the copyright and licensing circles in the image above. We will return to this issue in a future post.)

Below are brief definitions for the forms of intellectual property besides copyright:

• Patent law protects original ideas, methods, processes, and machines that are unique, useful, and not obvious. Patent law is governed exclusively by federal law.
• Trademark law protects symbols, drawings, words or names that are used to distinguish one business from another business. Trademark law may be governed by federal or state law, but today federal law provides the bulk of trademark protections.
• The law of trade secrets protects formulas, devices, or patterns that one business uses to give it a competitive advantage over another business. Trade secrets are governed mostly by state law.
• Information licenses grant access to information under certain conditions. Like trade secrets, information licensing law is governed exclusively by state law, usually as a form of contract.

It is important to distinguish copyright from intellectual property for several reasons, but mostly to highlight that lack of a problem with one form of intellectual property doesn’t necessarily mean that there is no intellectual property problem at all. To illustrate this, let’s return to Alan Latman’s prior example.

According to longstanding doctrine, as well as a provision of the Code of Federal Regulations (CFR), short phrases like titles, names or slogans are ineligible to receive copyright protection. Therefore, a title or short term like The Sopranos cannot receive copyright protection. That same title, however, may be eligible for trademark protection. Indeed, the term “The Sopranos” has received several federal trademarks, including for various media, food products, and video games.

While this publication focuses exclusively on the form of intellectual property called copyright, one should realize that other forms of intellectual property may be relevant to a particular business, creative, or legal scenario.

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