2.1 Types of Intellectual Property in Art

Intellectual property in art encompasses copyrights, patents, trade secrets, and trademarks. These legal protections safeguard artists' creations, giving them control over their work's use and distribution. Understanding these rights is crucial for artists to protect their creative output.

Each type of intellectual property serves a unique purpose in the art world. Copyrights protect original works, patents cover inventions, trade secrets guard confidential information, and trademarks distinguish brands. Knowing how to leverage these protections can help artists thrive in their careers.

Copyrights and Related Rights

Copyright Protection and Moral Rights

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• Copyright grants exclusive rights to creators of original works allowing control over reproduction, distribution, and adaptation
• Copyrights protect various forms of artistic expression (literary works, music, paintings, sculptures, photographs)
• Duration of copyright typically extends for the creator's lifetime plus an additional 70 years
• Moral rights protect the integrity and attribution of creative works
• Artists retain moral rights even after selling their work includes right to claim authorship and prevent distortion or mutilation of their creation

Public Domain and Fair Use

• Public domain encompasses works no longer protected by copyright or never eligible for protection
• Works enter the public domain when copyright expires or creators voluntarily relinquish rights
• Fair use doctrine permits limited use of copyrighted material without permission for purposes (criticism, commentary, parody, news reporting, teaching, scholarship, research)
• Courts consider four factors when determining fair use: purpose and character of use, nature of copyrighted work, amount used, effect on potential market

Original and Derivative Works

• Original work of authorship refers to independently created works exhibiting minimal creativity
• Originality threshold relatively low requires more than mere copying but less than novelty
• Derivative works build upon or incorporate elements of preexisting works
• Creating derivative works requires permission from original copyright holder unless original work in public domain
• Derivative works receive separate copyright protection for new, original elements added

Patents and Trade Secrets

Patent Protection and Requirements

• Patents grant inventors exclusive rights to their inventions for a limited time in exchange for public disclosure
• Three types of patents: utility patents (new and useful processes, machines, manufactures, compositions of matter), design patents (new, original, ornamental designs for articles of manufacture), plant patents (new varieties of plants)
• Patent requirements include novelty (invention must be new), non-obviousness (invention not obvious to person skilled in the field), utility (invention must be useful)
• Patent duration typically 20 years from filing date for utility patents, 15 years from grant date for design patents

Trade Secret Protection and Maintenance

• Trade secrets protect valuable confidential business information that provides competitive advantage
• Trade secrets can include formulas, patterns, devices, compilations of information (customer lists, manufacturing processes)
• No formal registration process for trade secrets protection relies on maintaining secrecy
• Trade secret protection lasts indefinitely as long as information remains secret
• Businesses must implement reasonable measures to maintain secrecy (non-disclosure agreements, restricted access, confidentiality policies)

Trademarks

Trademark Registration and Protection

• Trademarks protect words, phrases, symbols, designs, or combinations thereof that identify and distinguish goods or services
• Trademark rights can be established through use in commerce or registration with the United States Patent and Trademark Office (USPTO)
• Registered trademarks receive nationwide protection and presumption of ownership
• Trademark protection lasts indefinitely as long as mark remains in use and proper renewals filed

Types of Trademarks and Distinctiveness

• Various types of trademarks include word marks, design marks, sound marks, color marks, trade dress
• Strength of trademark protection depends on distinctiveness categorized as fanciful (invented words), arbitrary (common words used in unrelated context), suggestive (hints at product qualities), descriptive (describes product features), generic (common name for product)
• Fanciful, arbitrary, and suggestive marks receive strongest protection
• Descriptive marks require secondary meaning (acquired distinctiveness) for protection
• Generic terms cannot be trademarked

Trademark Infringement and Dilution

• Trademark infringement occurs when unauthorized use of mark likely to cause consumer confusion
• Factors considered in infringement cases include similarity of marks, relatedness of goods or services, strength of plaintiff's mark, evidence of actual confusion
• Trademark dilution protects famous marks from uses that blur distinctiveness or tarnish reputation
• Dilution by blurring weakens mark's ability to identify and distinguish goods or services
• Dilution by tarnishment harms reputation of famous mark through association with inferior or unsavory products