By Barbara I. Berschler, Esq., Press, Potter & Dozier, LLC
This is the first part of a two-part series on what PR, advertising and marketing professionals should know about intellectual property.
Because to do your job as a public relations, advertising or marketing professional, your work product incorporates creative, original material, of necessity, you deal with intellectual property (IP) every day. Whether it is IP that originates with you, your client or your contractors, you need to understand the implications of using it in your work product so there will not be any unpleasant surprises to ruin your day.
Because much of your work will appear in digital format - whether as a website, promotional and informational material, podcast, or audio-video event - the ease of duplication and dissemination of such digital work makes it all the more important to know where the material comes from and how it will be used.
The purpose of this two-part article is first, to acquaint you with some of the special characteristics of IP in general, and second to identify some situations you may encounter, whether in the digital or non-digital world and offer some suggestions on how to address potential problems.
What is Intellectual Property?
It is critical to understand exactly what is intellectual property. Unlike real property or personal property like vehicles or equipment, IP is intangible. Yet it does exist and can end up making some people very rich. As the words imply, IP is property that originates from the intellect. Typically, the IP will start with an idea. However, whether that idea can be protected from being used without your permission, depends on the manner in which that idea is expressed.
What are basic categories of IP?
IP takes a variety of forms. I will describe some that you are likely to encounter in your work.
Ideas: Often I am asked by clients, “How can I protect my idea?” However, there are only a limited number of ways to protect a mere idea. One way is under patent law. However, to qualify for patent protection, the idea must meet stringent requirements. More likely, the situations in which you will encounter ideas that should be protected are when you are asked to deal with material that falls under the broad category of “trade secrets.” A famous example of a trade secret is the formula for Coco Cola. That secret has been kept for more than 100 years.
Copyrighted Works: When the IP moves from the idea stage to being expressed in a tangible way, then other forms of IP protection can come into play. The most well-known form of IP is work that is protected by copyright law.
Copyright protection attaches to works for which the author has taken an idea, which must be original, and fixed it in a tangible medium of expression. If a work qualifies for copyright protection, that protection attaches immediately. The author may decide to register the copyright with the Copyright Office, however that is not necessary for the exclusive rights associated with copyright to attach. The main exclusive rights that the copyright owner acquires are the right to copy, distribute, display, perform, and make derivative works based on the original. Examples of copyright-protected works that you may encounter include text, software, photographs, artwork, designs, and music.
Trademarks: Another important form of IP comes under the general heading of trademarks. These marks must be associated with goods or services. They can take a variety of forms, such as words, logos, designs, trade dress. To qualify for trade mark protection, the mark must be used in conjunction with an enterprise. Marks do not exist outside their context with the business or enterprise of the owners. Therefore, a not-for-profit as well as an individual can own the mark provided they are using it in association with their activity. You need to be cognizant of what can constitute a trademark because you may be asked to incorporate such material in your work product.
Trade Secrets: The trade secret category, of which I spoke earlier, really covers a good deal of material which you may encounter and use. Other ways to refer to this protectable information are as confidential or proprietary information. During the scope of your work with your clients, you may gain access to their business plans, customer, vendor or contractor lists, personnel information, price lists. In order for them to protect the secrecy of this information, your clients should have you enter into a confidentiality agreement. In turn, when you are involved with outside contractors, you may want them to sign confidentiality agreements to protect not only your secrets but those of your clients.
Other Intellectual Property: Other interesting areas of IP concern the “right of privacy” and the “right of publicity.” The right of privacy belongs to most people and means that someone else cannot take your likeness and use it for commercial purposes without your permission. As a private person, you have a right to maintain your privacy. The right of publicity is more often associated with celebrities. In such cases, someone else uses the image or voice of the famous person in association with their business enterprise, suggesting there is some kind of endorsement by the celebrity. Such an unauthorized use would result in an infringement of the person’s right of publicity. Only the celebrity can exploit his or her famous status. These rights should be considered whenever you use material that can identify another person, such as by incorporating photographs or voice recordings in your work product. Therefore, it is always important to know under what authority has a third party given you access to such materials.
I’ll have more on intellectual property in my second article, which will appear later this month.
