In a horror movie, you think the monster is a werewolf, but it’s just a guy in a hairy suit. The same can be true with intellectual property. Not every idea, name, or concept is a valuable asset you can protect. Knowing the difference can save you a ton of time, money, and heartache.
Welcome to Know Your Rights, or more aptly this time of year, Know Your Frights, your spooky playbook for intellectual property and business law. Last week, we talked about the big, scary monsters of intellectual property you can use for protection: patents, trademarks, copyrights, and trade secrets. This week, we’re going to talk about the things that look like great monster ideas but are actually just, well, not what they appear to be, and nothing that can be protected by IP law.
Creators, especially those in the indie space, often have big ideas and assume every single one is a valuable piece of IP. Totally understandable, and it’s crucial to believe in your work! But the law isn’t always on your side, so this week, I’ll go over what isn’t truly protectable and why. This information will help you be like the “final girl” in a slasher film: the one who knows the rules and avoids the classic mistakes that get everyone else killed.
So, let’s pull back the curtain and look at what lacks the substance to be protected.
Can You Copyright Your Killer Idea?
What can and can’t be protected by copyright law is a common IP misconception for creators. Copyright law doesn’t protect a mere idea. It protects the specific expression of that idea.
Let’s use a horror movie example. The idea of a group of teenagers going to a cabin in the woods and getting picked off one by one? That’s not protected by copyright. It’s a classic trope. Anyone can make a film with that idea.
However, your specific screenplay with your unique dialogue, characters, and plot twists? That’s an expression of that idea, and it is absolutely protected by copyright. So, you can’t copyright the concept of a slasher film, but you can copyright your specific script for one. That’s why there is a wide variety of vampire and zombie movies.
This is a critical distinction. If you pitch an idea for a show without any tangible expression, a producer can legally take that idea and run with it. It’s a terrifying thought, but it’s how the law works.
The Jump Scare of Patents: The Non-Obvious Rule
Like with copyright, patents can’t protect an abstract idea or an idea that isn’t broken down into distinguishing specifics. You have to have a unique idea, it has to be described in enough detail for anyone reading it to know how to make or implement it, and it has to work as described. Design patents for how something that’s made looks are a little different, but they still have to be put in detailed drawing form.
There’s another key requirement for patents that many creators overlook or misunderstand: your invention must be “non-obvious.” This means it can’t be something that a person with ordinary skill in the field would find obvious to create based on prior knowledge.
Let’s say you’re a guitar player and you invent a new pickup that’s only a slight, simple variation of an old design. That’s likely not patentable because most skilled guitar techs probably could have thought of it. If you’re a special effects artist and invent an improvement on realistic-looking prop body parts by adding something common in the toolkit of special effects artists. That may be considered “obvious.” But if you come up with a completely new, innovative, and unexpected way to change the sound of a guitar, or use a material in your body part props that’s from, say, the automotive industry that’s kind of a wild idea to use? Now you’re in the patent zone.
The law wants to protect true innovation, not just minor tweaks.
Does Your Business Name Suck? Why a Generic or Descriptive Name Can't Be a Trademark
Now let’s think about trademarks. A trademark is supposed to identify the source of your goods and services. So, if your band name is “The Rockers,” that name is probably too generic or descriptive to be protected unless you’re a classical string quartet. That name just describes what you do and the type of music you make.
If you could trademark the word “slasher” for a horror film, you’d be preventing many other filmmakers from describing their own movies. The USPTO won’t let you monopolize a common term that everyone needs to use.
A strong trademark needs to be distinctive. A made-up word, a random word used in a new context, or a suggestive name works best. Think of a band name like The Misfits or The Clash. Those names don’t describe what they do or the kind of music they make. They’re highly distinctive names that aren’t descriptive and have become iconic brands.
When Protection Dies: Expiration of Rights and the Public Domain
If what you have CAN be protected by intellectual property law, when does that protection die? Most kinds of intellectual property protection are designed to expire under certain conditions. For copyright and patents, it’s when a specified time period ends. For trademarks, it’s when it stops being used by the owner of the rights. Both patents and trademarks can expire prematurely if renewal and maintenance fees aren’t paid. Trade secrets and confidential information are easily ruined by accidental or malicious exposure.
Let’s look at the public domain, which is a frighteningly complicated intellectual property issue. Once a work is in the public domain, it is no longer protected by copyright and is free for anyone to use, adapt, and build upon. The two main ways a work enters the public domain are:
- Copyright expiration. In the U.S., this generally happens 70 years after the creator’s death (for works created after 1978). For older works, it’s more complicated.
- Lack of protection. Some things are just not protectable from the start, like facts, ideas, or works created by the U.S. government.
Why is this scary for creators? Because the lines can be confusing and blurry.
- If you write a song that is a direct copy of a song that has entered the public domain, you are not committing copyright infringement. But you need to see whether both the lyrics and the musical composition are in the public domain.
- If you sample a song under copyright protection, or a snippet from a movie or show that’s under copyright protection, no matter how small the sample is, that can be copyright infringement, not fair use.
- Including someone else’s lyrics in your novel could be copyright infringement.
Let’s use Dracula as an example. Anyone can make a new film about Dracula. Bram Stoker’s novel is in the public domain. But you cannot make a new film with the specific likeness and storyline from Francis Ford Coppola’s Dracula film because that work is still under copyright. If you’re a Dracula fan like me, check out my October episodes, because in one, I’ll be looking at the copyright battles between Stoker’s estate and the creators behind the original Nosferatu and how Universal got to use Stoker’s story, as well as some other Dracula-related IP trivia.
If you’re not creating 100% original work, no matter what field or industry you’re in, you need to know your fair use law.
How to Survive
In the end, protecting your creative work is a lot like surviving a horror movie: you have to know the rules. Don’t be the person who gets killed in the first five minutes because you didn’t know them.
Some ideas are monstrously good because they can be protected by intellectual property rights. Others are like a specter, lacking in protectable substance. Knowing what you can and can’t protect is the first step toward building a successful business and brand and a lasting legacy.
Don’t let your creative work or business become a horror story. Intellectual property is one of the most terrifyingly useful tools you have. If you’re a creator or other entrepreneur ready to build a frighteningly powerful brand and business, you need to know how to use it. You don’t have to face the darkness alone, though.
I help entrepreneurs across the U.S. make smart, legally sound decisions about their intellectual property. I’m an attorney in Champaign-Urbana, Illinois, but I serve intellectual property clients nationwide.
If you’d like to consult with me, you can use my contact form or book a consultation online at kingpatentlaw.com or by calling my office at 312-596-2222 or 217-714-8558.
Please check out the other posts and pages on my website for more information on copyright and other intellectual property and business law issues. I’m also on most major podcast platforms as “Know Your Rights: Your Intellectual Property and Business Law Playbook” and on most social media as @kingpatentlaw.
This blog post’s content is for informational and educational purposes only and does not apply to every situation. It is not legal advice. It does not create an attorney-client relationship or make the author your lawyer.
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