The concept of the ownership of property is nothing new. What makes the intellectual portion different is really more in the nature of the property itself, not so much in the rights which are inherent in ownership. Basically, just as a real property owner has the right to evict an individual from his or her land, an owner of intellectual property has the right to exclude others from the use of that property without permission from the owner. Intellectual property can also be transferred like other forms of property through purchase, option, assignment or licensing. Where the intellectual nature of the property differentiates itself from other forms of property is that it is generally intangible, that is, it is the product of creation, concept, expression, invention, and other products of the mind which may make it more difficult to define.
Generally speaking, intellectual property lies in three main areas which are subject to protection from the federal government, as well as from many foreign government: Patents, Trademarks and Copyright.
This office does not provide patent related services, however, the following is a brief overview to differentiate the nature of this form of Intellectual Property. A patent is actually a grant from the government (specifically, the Patent and Trademark Office, or “PTO”) which secures the right of an inventor the exclusive right to manufacture, use, sell or otherwise transfer an invention for a specific period of time. To qualify for a patent, the inventor must demonstrate that the invention is novel, genuine, useful and not obvious. A patent agent or attorney registered with the PTO can assist in the evaluation and prosecution of a patent.
You have probably heard the treatise that one cannot copyright an idea. What one can copyright is the expression of an idea, that is, the tangible form of that which one has created in one’s mind. This expression can be in the form of literary property such as a book, a magazine article, or a screenplay, a painting, a photograph, lyrics and/or music to a song or other similar creations. It can even be in the form of a game created for the computer or other types of programming. To qualify for a copyright, the work must be original, have some creativity, and it must be in a “fixed medium of expression,” such as in written format or on a recorded device. While a copyright is actually protected in common law once it assumes its tangible form, it is a good idea to place a copyright notice followed by the year of creation and the name of the copyright owner on the work. In addition, the work can be registered with the Register of Copyrights in Washington, D.C. for a nominal fee.
While a trademark or service mark is similar to patents and copyrights in the concept of originality, it plays a somewhat different role in the marketplace. The trademark serves to identify those goods or services in the marketplace as belonging to a specific source, the owner of the mark. It can be in the form of a simple word, a logo, a symbol, an expression or even a sound. The owners of famous trademarks such as Coca Cola, Levi’s, and Disney are known to aggressively protect the infringement of their marks throughout the world. Most registered marks may belong to companies you’ve never heard of before.
You may identify your mark as belonging to you by placing a TM by the mark where it is displayed, and, assuming the mark has cleared a search and is available, may be registered with the Secretary of State’s office in any state where it is used or with the PTO once the mark has been used in commerce. Unlike copyrights, which can be enforced in over 100 countries outside of the United States with a U.S. registration, U.S. trademarks are generally only protected within the United States, and on a limited basis in a few other countries, requiring the registration in those other countries within which you may wish to market your prduct or service. The U.S. became a signatory to the Madrid Protocol in 2003, which provides the ability to apply for registration in other signatory countries through the USPTO.
Good question… I’m still working on that one (after over 30 years). But I can tell you what I know so far, and a lot of it relates to intellectual property. The entertainment industry is really not so different from other industries, only that the product is unique. The creative process behind manufacturing entertainment necessarily raises questions concerning ownership and artistic control, and therefore may dictate who becomes the next star screenwriter, director, author, composer or otherwise and who will reap the benefits of whose labor. Much time is spent, therefore, in the entertainment lawyer’s offices hashing out who wrote or created what and how much, what credit should be attributed to whom and at what cost.
Even while certain concepts have set formulas, such as compulsory license royalties, etc., it is not so easy to conclude who may be entitled to those royalties. An attorney’s role should be to come into the picture with certain knowledge of “industry standards” while being open and flexible enough to accommodate those creative minds in an environment of ever changing media and “go with the flow,” so to speak.
Some of the contractual issues an entertainment attorney may have to deal with emanate from concepts relating to artistic control, which may wind through a chain of title commencing with an idea, the expression of the idea (sound familiar?) as in a novel, the purchase of the rights to that novel by a producer, the hiring of a screenwriter who may take an equity interest in the property and/or create his/her own expression of that idea, the hiring of a director who again may contribute something original to the property, and the actors who often, depending on his/her particular stature, may take the reins and contribute significantly on a creative level as well. All of the above will likely result in a written agreement addressing artistic control on some level.