What is intellectual property law?

The four branches

• Patent — inventions and designs. Federal registration with the USPTO required. 20 years from filing for utility patents, 15 years from grant for design patents.
• Copyright — original works fixed in a tangible form: text, software, music, film, photographs, artwork, architecture. Protection arises automatically on creation; registration with the Copyright Office is still needed before suing a US infringer and to obtain statutory damages and attorney fees. Life of the author plus 70 years, or 95 years from publication for works made for hire. Ideas, facts and methods are not protected — only the expression.
• Trademark — names, logos, slogans, sounds and other identifiers of the source of goods or services. Rights come from use in commerce; federal registration adds nationwide priority, the ® symbol and stronger remedies. Renewable indefinitely while the mark is used.
• Trade secret — formulas, processes, customer lists, pricing and other information with value from being secret. Protection lasts as long as secrecy is maintained through reasonable measures; the federal Defend Trade Secrets Act allows suit in federal court, alongside state laws.

Related rights include rights of publicity (control over commercial use of a person's name and likeness, under state law) and protection against unfair competition and false advertising.

Choosing between them

The same asset can qualify for more than one form. Software may be copyrighted as code, patented as a process, branded by trademark and kept partly as a trade secret. Patent and trade secret pull in opposite directions: a patent requires publication, a trade secret requires silence, and once disclosed the choice cannot be undone.

The mistake businesses repeat

Ownership. Work created by an employee within the scope of employment generally belongs to the employer, but work by a contractor does not — without a written assignment, the copyright stays with the contractor, whatever the invoice says. The same applies to logos, websites and code built by freelancers. Written assignment and confidentiality terms signed before the work begins prevent this, and missing assignments are one of the most common problems found during due diligence when a company is sold or raises money.

Fair use and other limits

Copyright allows fair use of protected works for purposes such as criticism, commentary, news reporting, teaching and research, judged by four factors including the purpose of the use and its effect on the market for the original. Trademark law allows comparative advertising and descriptive use of a term in its ordinary meaning. These limits are fact-specific; using someone else's work because it was “on the internet” is not fair use in itself.

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AI and intellectual property

Works generated entirely by AI without human creative input are not protected by US copyright, according to the Copyright Office and the courts, though human selection, arrangement and editing can be. Whether training AI systems on copyrighted material is fair use is being decided in ongoing litigation, with early decisions pointing in different directions depending on the facts.

Enforcement

Most IP disputes start with a cease-and-desist letter. Online, platforms remove infringing content through the DMCA notice-and-takedown process, and marketplaces such as Amazon run their own brand-protection programs. Lawsuits are brought in federal court for patents and copyrights and usually for trademarks; the Copyright Claims Board offers a low-cost option for small copyright claims up to $30,000. Counterfeit goods can be stopped at the border by recording a registered trademark with US Customs.

Protecting your IP

Search before adopting a brand name to avoid conflicts, register important trademarks and copyrights, mark confidential documents, limit access to trade secrets, use non-disclosure agreements, and get written assignments from everyone who creates anything for your business. An intellectual property attorney can help decide which protections are worth the cost for a given asset.

Deadlines

Copyright claims must generally be brought within three years, trade secret claims under federal law within three years of discovery, and patent damages are limited to the six years before suit. Trademark rights can be weakened by long delay in objecting.