by Mona Adele

Created on: February 22, 2009

Intellectual property is intangible. It is not fungible. Intellectual property law is therefore complex, varied, and often overwhelming. However, knowing how to distinguish the rights that attach to intangible property is important to anyone engaged in business or the creative process.

BASICS OF INTELLECTUAL PROPERTY LAW

Intellectual property law concerns copyright, trademark, and patent law. It also addresses trade secrets, trade dress, name & likeness and right of publicity. Some state laws also protect ideas. Anyone in industry, business or a creative field should be aware of the rights they hold and must protect and enforce. Similarly, people interested in creating something "new" based on the works of others must bear in mind that rights holders have the ability to protect their own interests.

*One thing to ALWAYS keep in mind. It is ALWAYS smarter to create your own work than use someone else's. Even if your use of another person's work toes the line of fair use, LEGAL FEES ARE EXPENSIVE, and having to pay the costs of defending yourself in an infringement action will almost always be greater than just coming up with something on your own.*

COPYRIGHT

Your copyright attaches the moment to put your work in a fixed, tangible medium. "Fixation" means writing it down, saving it to a hard drive, or otherwise putting it in a more permanent form that takes it out of the realm of mere idea. According to 17 U.S.C. 102, the categories protected by copyright include:

"(1) Literary Works

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion picture and other audiovisual works;

(7) sound recordings; and

(8) architectural works."

Copyright protection does not extend to ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries. In other words, it doesn't protect inventions or "useful" works. Inventions and useful works are discussed in the "patent law" section, below.

Software has been a tricky area of copyright for decades. It is undisputed that the literal elements of a computer program (i.e. the script/code, written in computer language) are protected- that is to say, all courts who have ruled on the issue (i.e the 3rd and 9th Circuits) have agreed that writing code in computer language constitutes a literary work. However, the non-literal elements are a bit more problematicthe structure,

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