An Intellectual Property Primer for Authors

One thing about intellectual property rights that constantly trips up authors is the difference between the different rights and how they apply to what we do creatively. “Intellectual property” (IP) as a legal term basically refers to a category of legal rights that protect the creative outputs of the human mind. The three main pillars of intellectual property in American law, and in most countries, are copyrights, trademarks, and patents.

What about plagiarism, I hear you ask? Isn’t that a form of IP? What if someone copies my work and doesn’t give me credit for it?

Well, yes, that’s what plagiarism is about: failing to give credit where credit is due. However, in the United States we only have a very limited set of laws about attribution/credit and they rarely cover authors. They focus more on works of visual art and architecture.

So what’s the difference between copyrights, trademarks, and patents, and, more importantly, how do we protect our IP rights as authors? Here’s a quick and easy guide which isn’t intended as formal legal advice, but hopefully will give you a bit of a foundation for understanding this challenging area of law. Moving from least important (to authors) to most important …

Patents

Don’t worry about them!

Why? Because patents protect inventions that are novel, useful, and non-obvious to those in the trade. It’s unlikely that any of our books are going to be patentable!

Trademarks

Occasionally worry about them.

Why? Because trademarks really don’t protect much of what authors do. Trademarks are rights in brands, logos, etc.—the symbols used in commerce to denote the source of a particular product or service, like the golden arches mark for McDonalds.

In the United States, you can only own a trademark that you are using commercially to distinguish your goods or services from someone else’s. People’s names can sometimes be trademarks, but author’s names usually do not work that way. Your name on your book isn’t likely to be protected as a trademark in the United States, although your publisher’s mark likely will be. So if you publish with HarperCollins, and they put their trademark on your book, they will be regarded as the commercial source of the book for trademark purposes. That’s because trademark law focuses on the commercial source, rather than the creative source of the work. There was a whole Supreme Court case on this issue (commercial versus creative source) some years back: Dastar v Twentieth Century Fox—hyperlinked here if you’re interested in learning more, or giving yourself a big headache!

Book titles are also not typically accepted as trademarks in the United States, partly because they are not actually the commercial source of the work and also because of concerns about scarcity: if one person claimed a title as an IP right, no one else could ever use it for their book.

Sometimes book series titles become trademarks but, again, this is the less usual situation in practice. While really famous franchised series titles like Harry Potter or Thomas the Tank Engine may be used as trademarks, that is the exception rather than the norm. In a recent furor in the romance novel industry, author Faleena Hopkins tried to register the word “cocky” for her series title and ultimately withdrew her application after a judge held at a preliminary stage of the case that she was unlikely to succeed.

Note that with trademarks (as with copyrights—see below), registration and ownership are separate issues. You can typically claim ownership of a mark you are using in commerce whether or not you register it, but there are a lot of advantages to registration, including presumptions of valid ownership.

Copyrights

Copyrights are the bread and butter of IP rights when it comes to authors. Copyright protects the actual words we put on the page: the fixed literal expression of our works. (It does not protect the ideas behind our work.) You can’t copyright an idea, but once you have written a manuscript, even a crummy first draft, copyright law protects your words against unauthorized copying or distribution. It also prevents others from creating “derivative works” without your authorization. Derivative works are works based on your work, including prequels, sequels and retellings.

Copyright law also protects other people’s work, including their song lyrics, poems, novels, scripts, etc. So you shouldn’t copy other people’s work without their authorization either, subject to the fair use exception which I’ve written about here. If works are in the public domain, you obviously don’t have to worry about infringing copyrights. However, if they are licensed under a creative commons license, you have to follow the license terms to avoid infringing copyrights. Common creative commons license terms includes the requirement to give attribution to the original creator on your work. (For more on the difference between creative commons and public domain works, this blog post may be useful.)

Speaking of attribution …

What about plagiarism?

Plagiarism is not an IP right as noted above. However, it is an important ethical business practice in the publishing industry. If you are accused of plagiarism, your publisher may withdraw your work from sale for fear of the negative publicity its continued sale might generate. You can’t “sue” someone for plagiarism, because there’s little in the way of law that helps authors on this front, but if you accuse someone else of plagiarism, their publisher may be prepared to remove it from sale.

Obviously a single blog column can’t comprehensively teach the whole of IP law, or even the slice of IP law likely to impact authors. However, hopefully this summary provides some sense of the major American IP rights for authors to understand the basic applications and limitations of the law.

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