Today licensing of intellectual property is a multi-billion dollar industry. In order to capitalize on such growth, entrepreneurs are seeking ways to protect and maximize the value of their ideas, inventions, artistic creations and other forms of intellectual property. In addition to creating lucrative licensing opportunities, intellectual property protects business assets, creates new revenue streams, provides security for loans and enhances value in the eyes of investors.
Whether you are a business owner or entrepreneur, knowledge of intellectual property rights has never been more important. Understanding the fundamentals of copyrights, trademarks, trade dress and patents is vital in today’s global market. Knowing how such rights are created, transferred and exploited will often determine the success or failure of a company. Unfortunately, many business owners fail to take the steps necessary to protect and enhance the market value of their intellectual property assets.
Below are some tips and strategies to protect, maximize and enhance intellectual property rights and assets.
Author’s Rights
Many valuable rights are often given away to publishers without proper consideration. Authors should be especially wary about signing any contract that states you are writing the book on a “work for hire basis”. Contract clauses should be carefully reviewed and negotiated because most terms favor the publisher. All rights in the work not specifically granted to the publisher should be reserved by the author. Authors should also seek to have most rights revert back to them if not exercised by the publisher within certain reasonable time periods. An arbitration clause should also be requested because arbitration is generally less costly and quicker than lawsuits in the event of disputes.
Protection of Creative Materials and Photographs
Almost all companies own rights in a variety of creative materials used in their business. Such materials may include software, promotional literature, training manuals, photographs, graphic designs, business plans and architectural drawing. Copyright law protect against the unauthorized copyright, distribution or other use of creative works. Certain common law rights are obtained automatically upon the creation of a creative work. Registration, however, is strongly recommended to obtain the full spectrum of benefits and protections available only through registration with the U.S. Copyright Office. One of the most important benefits obtained by copyright registration is the right to attorney fees and statutory damages in the event of infringement. Statutory damages can range from $750 to $30,000 per act of infringement to as much as $ 150,000 in cases of willful infringement.
Register Your Trademarks
A trademark is a word, slogan, design, logo which identifies the products and services of the owner. Today, a trademark can even be a hashtag, sound or scent. Trademarks represents the good will of a brand and are often the most valuable assets of a company. The prudent business owner will not leave to chance the protection of its name and trademark. Register important marks with the Patent and Trademark Office to: (i) obtain nationwide protection, (ii) prevent others from using and registering marks which are confusingly similar and (ii) obtain the right to treble damages in the event of infringements.
Incorporation, Domain and Business Names
It is a common misconception that trademark protection is obtained by incorporating under the business name. While incorporation does provide certain protections against personal liability, the corporate name is not a trademark registration. Similarly, domain name registration is merely an address listing and does not give trademark rights to use the name in connection with products and services. Only federal trademark registration provides assurances that a name can be safely used in the marketplace of interstate commerce.
Relationships with Contractors and Consultants
Working with contractors and freelancers can a trap for the unwary business owner. Many entrepreneurs mistakenly believe that they own the results of the services provided upon payment of the agreed fee. Copyright law, however, provides that independent contractors automatically retain the copyright to original works which they create absent a written agreement to the contrary. Business owners should therefore make sure that contractors and freelancers sign written agreements which carefully define ownership rights and include “work for hire provisions”. Loosely drafted agreements can result in defective grants of ownership which can expose the company to costly infringement claims.
Non-Disclosure and Non-Solicitation Agreements
Most business owners have proprietary information and data used to keep their business competitive. Often, however, business owners do not take adequate precautions to restrict sensitive information from being disclosed or misused. Entrepreneurs should be mindful to restrict the flow of confidential information whenever possible to avoid wrongful disclosure. Non-disclosure and non-solicitation agreements should be routinely required by business owners for all persons having access to proprietary business information.
Website Protections
Today most companies have websites on which products and services are sold, displayed or advertised. This creates both sales opportunities and potential liabilities. Savvy companies will want to make sure their websites take advantages of the protections afforded by the Digital Millennium Copyright Act. In addition, websites should be reviewed for proper disclosures, privacy protections and terms of sale.
About the Author
Neil Burstein is an attorney practicing entertainment and intellectual property law. His experience includes copyright, trademark, internet rights, contracts, publishing, film and infringement disputes. He speaks frequently on issues of entertainment, media and intellectual property. Representation includes authors, film makers, producers, screen writers, record labels, media personalities and brands in the luxury segment of the market.
Neil can be reached directly at nabesq1@gmail.com.
For more information visit www.neilburstein.com.