Intellectual Property (IP) is a umbrella term for creations of the mind—non-physical but identifiable property—such as inventions; designs; literary and artistic works; and symbols, names, and images used in commerce. In the U.S., there are 3 main types of IP: Copyright, Patents, and Trademarks.
This research guide includes primary law, secondary sources, and search materials for Copyright, Patents, and Trademarks as well as select resources for International & Foreign IP and related state doctrines—Trade Secrets, Unfair Competition, and Personality Rights.
The U.S. Copyright Office defines "copyright" as:
[T]he author's (creators of all sorts such as writers, photographers, artists, film producers, composers, and programmers) exclusive right to reproduce, prepare derivative works, distribute copies, and publicly perform and display their works. These rights may be transferred or assigned in whole or in part in writing by the author. Unless otherwise agreed in writing, work created by an employee is usually owned by the employer.
"Original works of authorship" are copyrightable. §102 of the Copyright Act includes:
The following are NOT copyrightable:
For more on works not protected by copyright, see U.S. Copyright Office, Circular 33.
Registration is not required for copyright protection—any original work "fixed in any tangible medium" is protected by copyright. In addition to establishing a public record of a copyright claim, registration offers several other statutory advantages:
For more on copyright registration, see U.S. Copyright Office, Circular 2.
The USPTO defines a "patent" as:
A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office…What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.
The subject matter of a patent must be:
For more on patentability, see the USPTO's Patent Basics.
USPTO defintion: "[A]ny new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof."
USPTO defintion: "[A] new, original, and ornamental design for an article of manufacture."
USPTO defintion: "[A]ny distinct and new variety of plant."
The USPTO defines a "trademark" as:
A trademark includes any word, name, symbol, or device, or any combination used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name.
Any word, symbol, phrase, or other type of distinguishing mark that is sufficiently distinctive—capable of identifying the source of a particular product—can be trademarked.
There are 4 levels of distinctiveness:
|Distinctiveness||Meaning||Level of Protection|
|Arbitrary or fanciful||no logical relationship to the underlying product||Strong|
|Suggestive||evokes or suggests a characteristic of the underlying product||Strong|
|Descriptive||directly describes the underlying product||Possible|
|Generic||describes the general product category||None|
The USPTO may refuse to grant trademark if the mark is:
For more on grounds for refusal of a mark, see the USPTO's Possible Grounds for Refusal of a Mark.
Common law rights do not require registration; however, there are many benefits to registering a trademark:
For more on the benefits of registration, see the USPTO's Why Register Your Trademark.
The Uniform Trade Secrets Act (UTSA) § 1(4) defines "trade secret" as:
[I]nformation, including a formula, pattern, compilation, program, device, method, technique, or process that:
- Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
- Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
To date, 47 states and the District of Columbia have adopted the UTSA, a piece of legislation created by the Uniform Law Commission (ULC). Ohio's version is
[T]he term “trade secret” means all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if—
- the owner thereof has taken reasonable measures to keep such information secret; and
- the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.
The Fifth Circuit defines “unfair competition” as:
An umbrella term for "all statutory and non-statutory causes of action arising out of business conduct which is contrary to honest practice in industrial or commercial matters."
For example: trademark infringement and misappropriation (which often invokes the Right of Publicity). Not unlike evidentiary exceptions, it is helpful to think of examples of unfair competition rather than attempt to define the term in the abstract. Other practices that fall into the area of unfair competition include:
For more examples, see McCarthy on Trademarks and Unfair Competition § 1:10.
The principle which protects personal writings and any other productions of the intellect or of the emotions, is the right to privacy, and the law has no new principle to formulate when it extends this protection to the personal appearance, says, acts, and to personal relation, domestic or otherwise.
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 213 (1890).
The right of privacy encompasses four different interests, which map to four distinct types of invasion of privacy:
An encroachment into plaintiff’s physical solitude or seclusion.
- Public Disclosure of Private Facts
The disclosure of private information, even though the information is true, in a way a reasonable person would find objectionable, e.g., disclosing the past of a former prostitute.
- False Light
The publication of information that places plaintiff in a false light, e.g., using a person’s picture in connection with an article in which no reasonable connection exists; nonetheless, with an implication that such a connection exists.
Use of the plaintiff’s name or likeness for defendant’s benefit without permission.
William L. Prosser, Privacy, 48 Calif. L. Rev. 383 (1960).
There is significant overlap in the definitions of appropriation and the right of publicity.
Generally, the right of publicity prevents the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion. The right of publicity is often divided into five separate interests:
For a concise history, see Right of Publicity.com.