Heather Meeker on The Basics of Intellectual Property Law

Intellectual property law is a topic that is easy to ignore, yet it’s paramount to have a foundation of understanding so you can protect yourself and your work. It’s a topic that lacks urgency until someone steals your work and makes a profit or a cease and desist arrives in your mailbox. The Internet has loose boundaries and infinite possibilities, and it behooves us to know some of the basics so your work doesn’t suffer the iron grip of the terms and conditions.

We spoke to Heather Meeker, a specialist in intellectual property licensing. Heather’s clients cover a range of industries including software, communications, educational testing, computer equipment and medical devices. She has wide-ranging experience in open source licensing strategies, and in intellectual property matters related to mergers and acquisitions.

She provides a general understanding of the basics of intellectual property law—a crash course that many of us creatives never received, or even thought about.

What’s a general rule of thumb for understanding intellectual property law and protecting your work?

Heather: Intellectual property law can be confusing, but it is worth investing the time and mental energy to understand the basics.

If you understand the four types of IP and what each one does, you will be much better equipped to protect your work — not to mention understanding the legal environment for creative work.

Copyright covers “works of authorship,” which include traditional works such as books, drawings, movies, plays and sound recordings, but also computer software and semiconductor layouts. An author owns a copyright as soon as the work is “fixed in a tangible medium,” or written down in any form. It’s not necessary to register a copyright to own it, but doing so is a good idea, if you think you will ever want to enforce your rights. Registration is inexpensive and not difficult.

Patents are much harder for most people to understand. A patent is a pure “negative right”  — meaning the ability to prevent others from making, using, selling or importing a product. It does not give the owner the right to do anything. Patents are expensive and time consuming to get — the inventor must submit a patent application and convince the patent office to issue the patent.  You have to prove your invention is new (in patent parlance “non-obvious” in light of prior inventions) and that you are the first inventor of it.

Trademarks are much more understandable. A trademark is a brand name or logo. They can usually be registered for a modest investment. Every business and artist has a trademark, whether they know it or not.

Trade secrets are also a common-sense IP regime. This area of law covers information that is confidential and has business value.

There are also some other kinds of IP that apply to artists, like “moral rights”.  In the US, these are less important than in some other countries. I know that’s a lot to read and understand, but if you understand it, you know more than most people already.  

People often confuse copyright and trademark, for example. So, next time you read something in the news saying that a business has has “copyrighted” its name, you will realize how much you know.

If you understand the four types of IP and what each one does, you will be much better equipped to protect your work — not to mention understanding the legal environment for creative work.

What’s the current landscape of intellectual property law? What’s falling behind and what’s setting up the creative culture for success?

Heather: IP law — like many of the technologies it protects — is in a constant state of adjustment and improvement. Each area has its own contours, but they are all intended to promote innovation and business activity. Some of the biggest issues in IP law today center on how much protection is necessary to promote the general good, and what exceptions are necessary to balance them.

For example, should patents protect software?  (And does the inclusion of software as patentable subject matter increase or decrease innovation?). How should people be able to use trademarks or media content to comment on, spoof or criticize the business activities of companies, particularly when those companies have a significant impact on the lives of the public? Should companies that do not make products (“non-practicing entities” or “patent trolls”) be able to sue for patent infringement, and if so, should courts grant injunctions — to command defendants to stop making their own products? Also, there is ongoing controversy about the length of the term of copyright, which has been extended several times with legislative change.

Let’s say a company is using your work without permission. What’s the professional process for reaching out and ensuring that the work is either compensated or taken off the site?

Heather: The strategies range from friendly reminders to extreme prejudice, depending on the relationship of the infringer to the IP owner. The owner would react differently depending on whether the infringer is a customer, competitor, or simply a bad actor. Many companies will not sue their customers at all, will sue their competitors only after a serious examination of the economics of suit, and sue bad actors almost as a public service.

What’s your definition of owning your content?

Heather: This is one area where lawyers and clients tend to talk at cross-purposes, because ownership of intellectual property is different from everyday concepts of ownership.

Intellectual property rights, are by definition, intangible things. That means that if one person uses them, it doesn’t prevent others from using them. They can be shared infinitely without loss, in a sense. Owning intellectual property only means that the owner can exclude others from using it. Without a legal system to support that, it would not work.  Intellectual property is a recent idea, in historical terms. The notion that you can prevent others from using your ideas, or expression, would have been bizarre to most people in history.

Everyday notions of ownership are much older and more accessible, and include the idea of being able to use a thing without interference from others. Of course, that implies the ability to exclude as well, but it centers on an idea called “quiet enjoyment” — a concept from the law of land ownership. For example, if you own land, you can defend it from trespassers — that’s exclusion. But it also means you can live there, build a house there, and so forth, and no one can kick you out.

Owning content, oddly, doesn’t exactly give you the right to use it.  For example, you could create a post-modern masterpiece like LHOOQ, you would own the copyright in that work.  But that only means other people could not copy your work.  Unfortunately, you copied from something else to create it.  Marcel Duchamp was able to make his version because the Mona Lisa is no longer protected by copyright, but if he had done it with painting made 20 years ago, it would have been a different story.  He might have been in the odd position of owning content he could not use.

In some countries — but not so much in the U.S. — there are also “moral rights” associated with art. These might include, for example, the right to be attributed, the right to prevent destruction of physical artworks, or the right to “disown” a work. These might also be considered ownership of content.

When artists say they own their content, they usually mean some mix of the everyday notion and the legal notions. Of course, artists shouldn’t stifle their own notions of ownership because of what lawyers think.  But artists who are trying to make a living at their art should understand that ownership of intellectual property will only allow them to control certain aspects of their content, and those aspects may be a subset of the rights that might be their due, as artists.  

Intellectual property is a recent idea, in historical terms. The notion that you can prevent others from using your ideas, or expression, would have been bizarre to most people in history.

What does the future of content look like to you?

Heather: As content becomes increasingly digitized, it is easier to copy.  Today, a certain level of infringement is inevitable, because digital content can be copied with little or no cost.  The content industry has been confronting this trend for decades. I think efforts to completely prevent reuse of digital content are probably ultimately futile, and those in the content generation business are best served to adapt their business to win in the marketplace. Some content companies are doing this, for example, by moving to VR or AR experiences that add a service or hardware component to content sales. Others take the approach of allowing fan content even if it might infringe, foregoing some enforcement of their IP rights in order to create an inclusive community around their content.

If you are a content creator, you should take a practical approach, understanding that having rights and enforcing them are different.  You should make sure you take the minimum steps to provide the most “bang for your buck” in protection. For example, watermarking of photos or videos, passwording files, or using formal DRM technology are all helpful. But of course, they are all technical rather than legal measures. Enforcing your legal rights will always be expensive, and you will probably only do that in extreme cases.  

Also, be sure to register your copyrights and trademarks. These are inexpensive measures that will help preserve your rights and give you an advantage if you ever need to enforce your rights.  Trademark registrations are usually done by lawyers, but they are not expensive.  Copyright registrations can be done on your own, if you put a bit of effort into learning how to fill out and file the forms.  There are instructions, and lots of other helpful information, at https://www.copyright.gov/registration/.

You can also hire a lawyer to help you with copyright registrations, but going through the process of filling out a draft form before talking to a lawyer will save legal fees and help you learn to file registrations on your own.

I think efforts to completely prevent reuse of digital content are probably ultimately futile, and those in the content generation business are best served to adapt their business to win in the marketplace.

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This interview was produced in partnership with WordPress.com& CreativeMornings.

Morning people get 15% off their WordPress.com site at wordpress.com/creativemornings.

Interview and photo by Paul Jun. Illustrations by Jeffrey Phillips. ‘Own Your Content’ illustration by Annica Lydenberg. Photo by Andrew Zinn.

Recommended tools by Heather:

• This Business of Music
• The Economist (technology section)

Good reads:

• The Shock of the New by Robert Hughes