What Is Not Intellectual Property?
It can be hard to tell what is—and what isn’t—protected by intellectual property rights. Some things are inherently devoid of IP rights, like facts of the universe and ideas that haven’t left your brain. Other things may have once been intellectual property, but have since lost that status and entered the public domain. Let’s examine what intellectual property is, then dig in to what it isn’t.
In this article, we'll cover:
Defining Intellectual Property
Intellectual property includes assets centered around human creativity and innovation. Trademarks, copyrights, patents, and trade secrets are broad categories of IP. More specifically, intellectual property can consist of things like books, recipes, songs, drawings, architectural blueprints, marketing strategies, and new technologies.
Intellectual property is protected by federal and state law. At the federal level, trademark rights are governed by the Lanham Act, trade secrets by the Economic Espionage Act of 1996, copyrights by the Copyright Act of 1976, and patents by the Patent Act.
Can I use someone else’s intellectual property?
If you use intellectual property without the owner’s permission, you are violating their rights. As a result, you could be sent a cease and desist letter or even get sued. If you want to use someone’s IP, getting their permission to do so is often the safest course of action.
Trademarks are a form of intellectual property that gain additional protections when registered. Want help applying for federal registration? Learn about our Trademark Service.
What Is Not Protected By Intellectual Property Rights?
Intellectual property rights do not protect anything that falls outside the realm of human creation. This includes, but is not limited to:
- Facts
Facts cannot be protected as IP. Realities like “2 + 2 = 4” and “71 percent of Earth’s surface is water” are simply, well, facts. As such, they cannot be owned. - Ideas
Until they’re spoken, written, or otherwise recorded, ideas are not protected by intellectual property rights. Keep in mind that while saying an idea aloud to someone technically renders it protectable, unless it’s also recorded in a verifiable medium, your rights to the idea may be hard to prove. - Titles
While titles are technically human creations, they are not protected by IP rights. The same title can be used for multiple songs, books, movies, and articles without disrupting the rules set forth in copyright law. However, if a title is trademarked, it maybe be unavailable for others to use. - Domain Names
Unless trademarked, domain names are not intellectual property, and therefore are not protected by IP rights. Learn more about when you can trademark your domain.
What is the public domain?
The public domain includes creative work and inventions whose intellectual property rights expired, were relinquished by the owner, or were otherwise taken away. Once a work enters the public domain, it is available for anyone to use without permission.
Copyrighted material enters the public domain once the copyright term ends. For authored works created after 1978, this term lasts for the life of the creator plus 70 years. Patents also enter the public domain once they expire. Patent terms last 15 or 20 years depending on the patent type.
What is fair use?
Fair use is a concept in U.S. law that allows for specific types of use of copyrighted material or trademarks. For example, if the purpose of using the IP is to comment on or critique it, the use is likely allowed. The same is true of parody.
Keep in mind, however, that an intellectual property owner can take legal action against you even if you believe you’re using the material in a way allowed by fair use. Prior to using someone else’s IP, it may be worth speaking to an intellectual property lawyer to ensure the use is legal.
Common Misconceptions about Intellectual Property
Intellectual property is a category of assets that can be hard to pin down. As a result, misconceptions abound. Let’s take a look at a few prominent myths surrounding intellectual property.
Myth 1: Patents have global rights.
Patents have rights only in the country where they’re applied for. To extend protections, you’d need to apply for a patent in every country where you wish to have patent rights. You can also apply for a patent using the international Patent Cooperation Treaty (PCT), which has 150 member nations, and allows you to apply for multi-nation patent protection in one application.
Myth 2: Anything on the internet is fair game.
Just because something is on the internet does not mean it’s in the public domain and available for use without permission. In fact, most of the content you interact with online is protected by copyright. When in doubt, get permission from the copyright owner before using material for your own means.
Myth 3: I can post a cover of a song online without permission.
Unless a song you want to cover is in the public domain, permission must be requested from the copyright owner (and granted!) in order to legally post it online. To use the song itself, you’ll also need to buy a mechanical license. And if you post a video along with audio, a synchronization license will be required, too.
Myth 4: Content I created for my job is mine.
When you create work for hire, it is the property of the hiring party unless a different agreement has been reached. By creating work such as written content, code, videos, or graphic art for an employer, in most cases you give up ownership rights to that work.
Myth 5: Trademark registration creates trademark rights.
Trademark rights are gained when a trademark is used in commerce. Registration significantly enhances those rights, especially when you register your mark at the federal level, but registration is not required to have rights in a mark. However, doing so provides nationwide protection, the presumption of ownership, and gives you the right to sue in federal court.
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