What is Intellectual Property?

As online business owners in the information age, everything we sell is intellectual property. But what exactly does that mean? How can we protect our work when most of what we create is intangible? Tune in for an overview of intellectual property, including the difference between copyrights and trademarks and the steps you can take to protect your content and client work.

Key Takeaways

• Intellectual property refers to the laws that govern ownership of things created by the human intellect: ideas, designs, inventions, brand identity, artwork, etc.
• The main types of intellectual property are trademarks, copyrights, and patents. Generally, trademarks protect your brand, copyrights protect content, and patents protect inventions.
• When you understand your ownership rights in all the things you create (and then sell or give away) in your business, you get to stay in the driver's seat

Resources Mentioned

• Learn more about trademark registration services
• Watch the free masterclass 
• Follow Amy on Instagram @artfulcontracts

Next Steps

Thank you so much for listening! If you enjoyed this episode, please reach out and let me know by sending me a DM on Instagram @artfulcontracts

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Episode Transcript

Today we are taking it back to the basics and we're going to talk about intellectual property, copyrights, and trademarks and what the difference is, what they are, and why they are important for your business. Let's do it.

Hey, I'm Amy Nesheim, licensed attorney for online business owners and founder of my own business, Artful Contracts. You're listening to Legal Made Easy, the show that makes the legal aspects of online business easy to understand and implement so you can grow your business with confidence knowing you've got it all covered. Let's dive in.

Unless they are handcrafting some of their products that might have an intellectual property element, and maybe some of their branding might have an intellectual property element, but for a local storefront, it's not as important. But the way that we operate business, we're almost entirely in the online space, and everything we sell is intellectual property. Everything we put out is intellectual property. There is nothing tangible that we can point to unless you download your course files and save them on a flash drive. You're selling ideas and thoughts and knowledge. We are living in the knowledge economy. We are living in the information age. And what we sell is our ideas and our thoughts and our creativity and our unique way of packaging that all together. All of that is intellectual property.

I'm using that phrase over and over and I still haven't defined it. So that's what we're gonna do now. Intellectual property is a type of thing that you can own, just like real property and personal property. It's a category of things that humans can own. So real property is real estate, buildings, homes, land, leases, that kind of stuff. Personal property is all the stuff that you can own. Your computer, a mug, a notebook. I'm looking at my desk and listing the things on it. But all of that is personal property. Intellectual property is just another category of property, of things that humans can own, but it is a product of your intellect. It is what it sounds like. It's something that was created by a person's creativity, knowledge, imagination, and effort. And without that, it wouldn't exist.

There are laws around how real property is transferred, how real property is owned, right? And in the same way, there are also laws around how intellectual property is owned. Owned and transferred and shared and used. And because intellectual property is largely intangible, it's not something that you can pick up and hand to someone else, like personal property transfers just by the act of handing it over to somebody else, right? You can't necessarily do that with intellectual property. Or on the other hand, it's too easy to do it. If you hand out a PDF file, now there's a hundred million versions of it, right? But it's all the same thing. So who owns it? What did you actually give over? And so because it's all intangible, there are laws around it and defaults and rules that determine that. And that is what is so important as an online business owner to know what your rights are as the owner, whether you own something, what you're giving away. And that's what intellectual property deals with.

Intellectual property is a bigger category that can then be broken down into different types of intellectual property, different categories. The three that you hear about the most often, the three most common, are copyrights, trademarks, and patents. Each of these apply to a different type of things that you create with your mind. I'm not gonna go too much into patents because it's not as relevant for you. Patents are for designs, inventions, for technical specifications, that type of thing. Engineers get patents for blueprints for their projects, and drug companies get patents for the formulas for their medications. Service-based business owners, course creators, creative business owners don't deal with patents as much, so we're not going to talk about that.

The two kinds of intellectual property that are super relevant and super important for you are copyrights and trademarks. The easiest way to remember the difference is that copyrights protect your content and trademarks protect your branding. Copyrights refer to your ownership rights and the body of law around ownership of things that are created with creativity, imagination, and effort that are then put into a fixed format. So what that means is something that comes out of your head and then is put into a specific medium. So that might be a painting on a canvas, it might be this podcast, the recorded audio file. It might be the video of you presenting a course. It could be a PDF. Now I say that to clarify that ideas are not protected by copyright law. If something is just a thought in your head or just words that come out of your mouth but are not captured in any way, that is not subject to copyright, is not protected by copyright. So we're only really talking about things that are, I want to say in their final form, but it also applies to drafts. So it's just something that is captured. There is some tangible element to it, it can be reproduced in some way. It can still be digital, but it has to be recorded.

In contrast to that, trademarks refer specifically to branding items. Trademark rights refer to your ownership interest in your branding, in your brand identity, in the way that people recognize you. So a trademark is defined as a design, a phrase, an image, a word that a consumer looks at and sees and associates with a particular brand or a particular company. That includes things like a business name, a logo, a slogan. And it doesn't even have to be a word or a design. It can also be anything else that a person can perceive and then immediately think of a company, a specific company. So an example there is a specific blend of perfume that a hotel sprays in their lobby. They can trademark that because people walk into their lobby and they think hear they smell that scent and they think of that brand. I also think about like the cherry tomato companies that have those specific shapes for the containers that they sell their tomatoes in. It's like a little mound of cherry tomatoes, but it's formed in plastic. They've trademarked that shape because the shape is recognizable as their brand. Some companies have also trademarked a specific color as their, like Tiffany blue. You see Tiffany blue, you immediately think of Tiffany's. It's a trademark color.

One thing to remember here is that trademarks only apply in the context of businesses providing goods or services to the public. They don't apply to just anyone who thinks of something cool. I'm thinking about like kids messing around and somebody says some fun phrase and then another kid's like trademark. That doesn't work. That's not real. Trademarks only function in the context of brand recognition, and brand recognition only applies if there is a good or service being provided. Not necessarily sold, it could be free, but there is a good or service involved.

It's important to know the difference between copyrights and trademarks because they have different laws that apply to them. And that means different requirements for what you need to do to protect them and slightly different ways of enforcing your ownership. For both copyrights and trademarks, you do have some automatic ownership rights and some automatic protection in your ownership rights. For copyrights, just by creating something and putting it in that fixed format, you automatically own it. You own the copyright in the thing that you created. So if you create a course, you own the copyright to that course. If you write a book, you own the copyright to that book. If you write a PDF guide, you own the copyright to that guide. That happens automatically. You don't have to register anything with the U.S. Copyright Office to have that ownership. And that's a question I get a lot. You do not need to register anything to own the work that you created. You can register it, and that just gives you additional layers of protection. So if you don't register your copyright, you can't sue someone for infringing on it. You can write letters to them, you can tell them that you own it, but you just can't file a lawsuit for copyright infringement.

Trademarks are a little bit different. So with trademark rights, just by using a trademark, by using a business name, by using a slogan, you gain limited automatic protection in your geographic area and in your niche with your target market. Geographic area is not super relevant to the online space. The law has not caught up yet and set and like clearly defined what that means in terms of the internet. So that means that online business owners without a clear geographic area where they operate don't have that same level of trademark protection as a brick and mortar store. So if a brick and mortar store opens up, the same store selling the same things can't open up with the same name just down the street. But two online business owners who live next door to each other sell the same things, might have the same name. And it's not clear who's has the ownership rights in that because the geography is irrelevant if you're on the internet. Now there is a first in time element to that too, but there's just a lot more arguments involved and it gets turned into a bit of a mess trying to figure out those ownership rights.

But what you can do, the best way to protect your trademarks is to register with the US PTO. And what that does is puts everyone else on notice that you are claiming ownership of that trademark across the US. So there's no small limited geographic area involved anymore. There's no questioning where your trademark is relevant, it's across the entire US. And it puts a definitive date on when you started using it and when you get those rights from. And then you have the piece of paper that says that you own that and no one else can use it in your niche. Now I do say in your niche because there is such a thing as two businesses having the same name or using the same slogan or something like that if they serve different audiences. So just think of Dove soaps versus Dove Chocolates. They both have the name Dove, but they sell different things, so there's no conflict there. They can both have the trademark for Dove just associated with different products. There's also Delta Airlines and Delta Faucets. You can find lots of examples of this. What matters is the audience that they're serving. If there's no overlap in audience, if there's no overlap in their products or services, then there's no problem. And I went deeper on that on another episode, a few episodes back.

So that's a basic difference between copyrights and trademarks. Copyrights protect your content, trademarks protect your branding. Copyright protection happens automatically to a certain extent. Trademark protection does too, but it's more limited. You don't have to register a copyright with the US Copyright Office to be able to protect your work. But with a trademark, it's much more important that you register with the US PTO to get that trademark protection. But both of these fall under the category of intellectual property, intellectual property rights, and intellectual property ownership. So at the core, what we're talking about is rules around what you own. So at the core, what we're talking about is rules of ownership for all of the intellectual pieces of your business, everything that is creative and intangible, and your brand recognition and all the content that you create. Everything that you create for yourself and your business, but also everything that you create for your clients. Literally almost everything in your business is gonna fall into this category of intellectual property.

And when you own a piece of intellectual property, that means that you get to decide who uses it and how they use it and for how long they use it and whether they can allow other people to use it. So to make that a little bit more tangible, let's say that you have a lead magnet on your website. You own the copyright in that lead magnet because you created it. When someone else downloads it, what are they getting? That is what you get to decide because you are the copyright owner. So they may they might get the ability to look at it and use it for personal use only. They might have the right to edit it and use it for their internal business use but not sell it or not share with their clients. Or they might have the ability to make copies of it and use it for business purposes. When you understand your intellectual property rights, those are the types of decisions that you get to make intentionally so that you know exactly what is allowed to happen with your content, and then you can have ways to back it up and enforce your rights if somebody disrespects that or doesn't follow the rules that you laid out.

I know that was super high level, but we're gonna be doing a little bit of a run on intellectual property and copyrights and trademarks for a little bit on the podcast. So we're definitely gonna get more into some of that stuff. If there's anything you would like me to address more deeply on copyrights or trademarks, send me a DM on Instagram. I would love to hear what your concerns are about other people copying your content, how to use other people's content, or any questions you have about trademarks. As always, I want this podcast to be really helpful for you, so your feedback helps me do that. Alright, I think that's it for today. Thanks so much for listening, and I'll see you next week.