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Copyright Basics: Understanding Your Rights as a Creator

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Do You Need a Copyright and How Do You Protect It?

If you create something that’s an original, including a painting, sketch, body of written work such as a screenplay or novel, or piece of music, you automatically own the copyright to that work.

However, the automatic copyright that comes along with creation can be hard to enforce, which is why many people choose formal copyright registration. This can make copyright infringement issues easier to deal with or provide additional legal paths to protecting your rights.

What Is Copyright?

Copyright is a legal right of ownership over a specific type of creative work. If you own the copyright, you are the only person with the legal right to:

  • Reproduce the work or give permission for the work to be reproduced
  • Create derivative work based on the original
  • Distribute or sell the work or give permission for it to be sold or distributed
  • Display the work or give permission for it to be displayed
  • Perform the work or give permission for it to be performed

These rights are obviously important. Without copyright, the novelist doesn’t retain control over the ownership of his or her writing, which can mean others can publish it without permission and reduce potential profits for the writer. The same can be true for a variety of works, and businesses also benefit from copyrights.

For example, information that is written by a business owner or their staff and published on the business’s website is generally owned by that business. Imagine that a business invests heavily in thought leadership to position itself as an authority in an industry. It can be damaging to that business’s brand if others steal the content and publish it on their own sites.

What Can Be Protected by Copyright?

All types of “authored” works can be copyrighted. In this case, the term “author” doesn’t just refer to someone who uses text to create narratives. It’s a broader concept to refer to the original creator of a work.

Types of work that can be copyrighted included, but aren’t limited to:

  • Literary works such as short stories, poems, essays, novels, and nonfiction
  • Dramatic works, such as film and stage scripts
  • Musical works, including lyrical and instrumental songs
  • Works of fine art, including sculptures, drawings, paintings, collages, and digital images
  • The results of some of the above, such as movie films and sound recordings
  • Architectural drawings and other related works
  • Some technical drawings
  • Computer programs
  • Certain types of maps

What Isn’t Protected by Copyright?

Copyright only applies to works that are “fixed,” which means they are captured in some sort of tangible, permanent medium. This can include digital files.

However, you can’t copyright an idea, procedure, or discovery. Slogans and names also can’t be copyrighted, though you may be able to trademark such phrases. For example, Coca-Cola is a trademarked name.

How Long Is Copyright Good for?

While there are some specific details, and each unique case should be reviewed to determine the exact length of a copyright, general rules apply. For any work created after January 1, 1978, copyright usually extends to 70 years after the death of the author. Copyright can also be extended in some cases.

If the copyright was the result of work created for hire, the timeline is different. The copyright is typically considered good for the shorter of 120 years from creation or 95 years from publication.

An Example of Creator’s Rights

A tattoo artist named S. Victor Whitmill once tried to hold up the release of the blockbuster movie, The Hangover II, based on a copyright infringement issue. The artist claimed that Warner Brothers recreated a tattoo he designed for Mike Tyson for one of the characters in the film.

The judge who heard the motions to halt the film did not grant them. However, she did indicate that Whitmill had a valid copyright infringement case based on the fact that Warner Brothers recreated the tattoo in its entirety without getting his permission. He was, in fact, the “author” of the original work, which means he held the copyright to it.

The case didn’t end up playing out in court, so we don’t know what the ultimate decision would have been. Instead, Warner Brothers settled the case with Whitmill. The outcome of the settlement is confidential, but it’s realistic to assume that Warner Brothers didn’t want to risk more publicity issues or holding up the film release and recognized that it may have made a copyright overstep.

Protecting Your Right to Your Work

Registering your work with the copyright office is an important step in many cases. If you’re not sure if formal copyright registration is the right step for you, consider talking to a copyright attorney.

If you feel that your copyright has been infringed upon, the first step is rarely litigation. Many times, people don’t realize they’ve overstepped a copyright and are happy to make a correction once they receive notice, so that’s often the first place to start.

However, asking nicely obviously isn’t always the right option — it likely wouldn’t have worked in the Whitmill vs. Warner Brothers case, for example. Understanding your legal options is important. If you are dealing with a potential copyright infringement issue, we can help. Give the team at Katie Charleston Law, PC, a call today at 463-229-6788 to find out more about our services and how we can help you protect your copyright.

What Is Patent Infringement?

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Understanding Patent Infringement

posted by: Katie Charleston Law, P.C.

According to the U.S. Patent and Trademark Office, more than half a million patents have been filed every year since 2010. Between around 250,000 and 388,000 patents were approved for each of those years.

Patents are an important legal step in protecting your ownership rights for an invention or innovation. If you have patents, it’s important to be aware of patent infringement risks. On the flip side, if you create, produce, and sell products, you also have to be aware of the patent rights of others and ensure you don’t infringe upon them.

Keep reading to find out more about patent infringement, including what it is exactly and when it might occur.

The Definition of Patent Infringement

Similar to copyright infringement, patent infringement occurs when one party infringes upon the intellectual property rights of another. Patent rights deal very specifically with concepts such as designs, inventions, and systems, though, and not ideas or creative works.

Patent infringement occurs when one entity uses a patent-protected product, invention, or system in a way that oversteps the rights of the company or person who owns the patent.

For example, Nintendo once lost a patent case when it was sued by iLife, a medical device company. At first glance, you might wonder what a medical device company had to do with a gaming company. However, iLife successfully demonstrated in court that Nintendo’s Switch controllers used accelerometer technology that was patented by iLife. The fact that iLife used the technology to track motion to provide safety protocols for the elderly and Nintendo used it to track hand motion for game controls did not keep this from being a patent infringement.

Nintendo had to pay $10 million in damages.

When Might You Have a Patent Infringement Claim?

However, you can’t simply demonstrate that a product is similar to your patented product. Patent infringement cases must meet certain requirements to ensure success with a case.

What Is the All-Elements Rule?

First, patent infringement requires that the issue at hand pass the “all-elements rule.” This rule says that for patent infringement to occur, 100% of the elements in at least one of the claims in the patent must be present in the so-called infringing product or design. If one element is not present, then the product doesn’t infringe on the patent holder’s rights.

This means that every element has to be looked at, not just the invention itself. This is one reason that you can have smartphones that, at first glance, appear super similar being made by different brands. In reality, the elements of those devices are usually quite different.

Geographical Limitations

Patent infringement is also limited by geography. If you file a patent with the USPTO, you are typically getting a U.S.-based patent. Your rights in that case would not extend into international markets.

If you are interested in global markets or international protection, it’s important to talk to a lawyer versed in international business topics to find out how to protect your products and rights outside of the United States.

The Claims of the Patent

Finally, it’s important to remember that patent infringement cases are complex and detailed, and they don’t actually look at the product itself. Instead, they look at the claims of the patent.

Patent applications include a description of products, which might describe the use of the product or how it is made. They also include claims, which describe what is legally protected under the patent. You can have three main types of claims:

  • Things, which refers to items made of matter
  • Methods, which refers to the way things are made
  • Use, which refers to the specific way the things are used

Is Defense Against a Patent Infringement Claim Possible?

Of course, the shoe can easily be on the other foot when it comes to patent infringement. It’s not uncommon for a business to create and market a product without realizing it infringes on a patent and end up in litigation over the matter. The good news is that there are definitely defense options against such claims.

One defense is to demonstrate that the all-elements rule doesn’t apply. For example, in another Nintendo patent case, a company called Gamevice claimed that the Nintendo Joy-Con controllers for the Switch infringed upon Gamevice’s patent for its Wikipad.

Nintendo won in this particular case, and it was determined there was no infringement.

Among other things, the Gamevice controllers only work on a tablet while the Switch controllers don’t have to be connected to the device to function.

There are a number of other possible defenses in such cases, including prior commercial use, patent misuse or exhaustion, experimental use, and statutory limits.

Get Help From an Experienced Business Legal Team

If you’re facing a patent infringement issue — regardless of which side you are on — getting experienced legal help with your case is important. Patent cases can make or break companies or product lines, and there may be millions of dollars (or more) on the line in your case.

A patent attorney can help you understand what type of case you are dealing with and how best to proceed. If you are making a patent infringement claim, they can build an argument that your patent rights were infringed upon and help you seek a resolution or compensation.

If you’re being slapped with a patent lawsuit, an attorney can defend you and protect your rights.

To find out more about how we can help with your patent issues, make an appointment with Katie Charleston Law, PC, today. Give us a call at 463-229-6788.

What to Do if Your Intellectual Property Rights Are Violated

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4 Steps to Take If You Believe Your Intellectual Property Rights Have Been Violated

posted by: Katie Charleston Law, P.C.

Intellectual property can be valuable for brands, businesses, and individuals such as authors and artists. When someone violates your trademark, copyright, or other intellectual property rights, it can feel like a serious attack. It may, indeed, be a costly issue.

Annually in the United States, businesses lose billions of dollars related to intellectual property issues. For example, around $29 billion is lost due to counterfeit or pirated goods, according to the U.S. Department of State. Obviously, you should take intellectual property rights seriously.

But before you jump into business litigation over a trademark or patent concern, read up on intellectual property rights below. Then learn about some steps you can take if you believe yours are being infringed upon.

What Are Intellectual Property Rights?

Intellectual property rights are those related to the ownership of intangible assets. Typically, the person who creates something owns the rights to the intellectual property.

However, in business settings, when people create inventions, works of art, or other intangible assets within the context of their job, the business may own the intellectual property rights for those assets.

4 Types of Intellectual Property Rights

While there are many types of intellectual property, there are four major categories. They are:

  • Patents. These are intellectual property rights over inventions. Inventions can be tangible items, such as machines, or ideas, such as processes.
  • Trademarks. Trademarks refer to phrases and images that distinguish the brand, service, or product of a specific company. Nike’s check is an example of a logo that is trademarked.
  • Copyrights. This type of intellectual property right covers ownership of material created by someone. Poems, songs, novels, plays, and even computer programs can be copyrighted.
  • Trade secrets. Trade secrets refer to business intellectual property that involves information that is valuable to the company when the value would decrease if the information were shared publicly. The formula for Coca-Cola is an example.

Ways Intellectual Property Rights Can Be Violated

Your intellectual property rights can be violated purposefully by another business or person. But it’s also possible that someone might infringe on your rights without meaning to.

Some common intellectual property rights violations include:

  • Someone attempting to market a product very similar to one you have a patent for
  • Another company using an exact or almost exact replica of your logo, even if they didn’t realize this was the case
  • Another person publishing a story that has the same plot and characters as yours
  • A business using a very similar tagline to one you have trademarked

Steps to Take if You Think Your Intellectual Property Rights Have Been Violated

Intellectual property enforcement is a specific area of the law, and there are options to legally protect your intellectual property rights. A lawyer can help you understand what options you might have, but if you aren’t sure the situation calls for legal action just yet, you can start with the steps below.

Notify the Potential Violator

People infringe unknowingly on other’s intellectual property rights all the time. As the old saying goes, there’s nothing new under the sun, and it’s perfectly reasonable to believe that people might come up with similar logos, brand names, or product concepts.

If you don’t have any reason to think that someone has maliciously infringed on your rights, consider notifying them of the issue in writing. Depending on how serious the issue is or the scale of the infringement, you might send an email or a hardcopy via USPS certified mail to create a paper trail.

Be professional but firm. Include any backup documentation demonstrating your trademark or other official claim to the intellectual party.

Ask a Lawyer to Send a Letter

If the other person or business doesn’t agree to stop using your intellectual property, you may want to take communication to the next step. You might consider starting with this step if you feel that someone is purposefully infringing on your intellectual property rights.

A letter from a lawyer may be seen as more official than communication coming directly from you. Your attorney will also be able to cite case law to help demonstrate the seriousness of the issue and your case against the other entity. The fact that you have gone so far as to involve an attorney may also ensure that the other party understands you are serious about enforcing your intellectual property rights.

Consider Whether You Can Settle the Case Out of Court

If you have sustained damages, such as lost sales, because of the intellectual property right infringement, you may want to discuss monetary compensation.

Begin by talking to your attorney about options for settling out of court, as this is typically a lower-cost and less time-consuming path.

File a Lawsuit for Intellectual Property Infringement

If all else fails, your lawyer can help you file a lawsuit. Note that you can’t file a trademark or copyright lawsuit in federal court if you haven’t already trademarked or copyrighted with the USPTO, though.

Work With a Trademark Litigation Attorney

A trademark litigation attorney can help you understand what your rights are and how to enforce them. If you believe your intellectual property rights are being infringed upon, reach out to Katie Charleston Law, PC, at 317-663-9190 to find out how we can help you protect your brand and business.

The Importance of Trademark Registration for Your Business

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7 Important Benefits of Trademark Registration

posted by: Katie Charleston Law, P.C.

You might have heard that it’s unnecessary to register your trademark. If a trademark is used in commerce in a specific region, you do automatically have some trademark rights, after all. That’s assuming no one else used the same or a very similar trademark first and that you can prove your case.

However, the U.S. Patent and Trademark Office correctly notes that these common law rights are limited. They don’t offer you full protection in the case of business litigation. Keep reading to find out more about the benefits of more official trademark registrations.

Trademark Registration Lowers Your Burden of Proof

If you rely on common law rights and the fact that you’ve used a trademark for a certain period of time, for a certain purpose, and in a certain geographical region for business protection, your burden of proof can be high. When someone else infringes on what you believe to be your common law trademark rights and you want to take action against them, you have to prove all those factors.

In contrast, if you have a federal or state trademark registration on file, there is a presumption of ownership. You may still need to make a case that your trademark rights were infringed, but you don’t have to start that case by proving the trademark is yours to begin with.

Trademark Registration Forces You to Conduct Due Diligence

Of course, the tables can certainly flip. What if you’re the newer business on the block and you want to use a trademark? How do you know that someone else isn’t already using it? You could put your business at risk for a trademark lawsuit if you don’t do your due diligence.

Luckily, that due diligence is baked into the trademark registration process. When you register a trademark, you have to search the trademark database and ensure that your new trademark doesn’t infringe upon any other trademarks already in existence. Ultimately, this step can provide a certain peace of mind for your business and brand as it moves forward.

Trademarks Can Increase Trust in Your Brand or Product

When you have a registered trademark, you can use the trademark symbol. This is a recognized symbol that offers some level of legitimacy for products and brands in the public eye. That trust can help you grow your business, build customer loyalty, or ease customer cynicism about trying new goods or services.

Trademarks Support Brand Recognition

When you register a trademark and use it consistently, you can also support better brand awareness. When consumers can associate your brand or products with a specific trademark, including a logo or tagline, they become more aware of encounters with your brand.

Think about some of the most recognizable brands in the world: Apple, Google, Amazon, Coca-Cola, Toyota, McDonalds, and Mercedes-Benz.

Chances are, just reading the name of each of those brands invokes an image or concept in your mind. The apple with the bite out of it, the multi-colored G, and the infamous script on a specific red background are examples of trademarks that enhance brand recognition. These are elements that are synonymous with each brand, and they all start with the power of a trademark.

Federal Trademarks Create a Launch Point for Foreign Trademark Filing

If you go through the process of registering a federal trademark in the United States, you create a path forward that allows you to file foreign trademarks. For businesses that plan to eventually expand into global markets, this can be an important early step.

Trademarks Can Increase the Value of Your Business

Trademarks are a form of intellectual property, which means they come with a value of their own. The goodwill that the trademark and branding have — the positive affinity they evoke with consumers — can play a big role in business valuation. For example, Coca-Cola’s brand value was a whopping $97.88 billion in 2022, and a good portion of that value comes from the strength of the trademarks.

By protecting your business trademarks via formal registration, you protect potential intellectual property assets. Those assets may help increase the value of your business, which can help you sell it for more or leverage it for funding in the future.

A Federal Trademark Provides the Right to File a Federal Lawsuit in a Trademark Matter

Did you know that you can’t file a federal trademark lawsuit if you don’t have a federal trademark registered? You might have some other legal options to protect your business and brand, but they can be limited if you haven’t registered the trademark.

Get Help With Your Trademark Issues Today

You can also register trademarks at the state level. A trademark attorney can help you understand your options, which trademark registrations you might qualify for, and how best to protect your business interests. They can also help you with the tedious task of registering your trademark with the relevant authority.

If you want to protect your business by registering a trademark, we can help. Our law office can also assist you if you are facing trademark litigation. To find out more about our services and how we can help you protect and grow your business, reach out to Katie Charleston Law, PC, by calling 317-663-9190 today. Our team can set up an appointment to find out more about your needs and provide you with some options for our services.

How Do I Find Out if My Idea Is Already Trademarked?

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What Research Should You Do Before Using a a Business Idea?

posted by: Katie Charleston Law, P.C.

Your business ideas are important assets. Whether you’ve come up with a new process or have an idea for a logo or business tagline that will resonate with consumers, protecting your intellectual property is critical for supporting the future success of your business. One way you can do this is with trademarks.

However, before you can register a trademark, you have to find out if someone else is already using it and if their use prohibits yours. Failing to do your research on trademarks and other intellectual property rights can land you in unwanted business litigation. For example, if you simply start using a logo without doing your homework, you might unknowingly infringe upon someone else’s trademark and end up dealing with a lawsuit.

Trademarks can be powerful, but they aren’t the only type of protection you can leverage for business ideas. Understanding which type of intellectual property right protection is best in your case and how to check for existing trademarks and patents can help you avoid these issues.

Know What Type of Protection Is Right

Start by understanding what type of protection may be best. Three common types of protection you can seek for intellectual property include patents, trademarks, and copyrights.

  • Trademarks protect a design, phrase, word, or combination of all three elements. Registering a trademark keeps someone else from registering a trademark that is the same or too similar and limits how other people can use the mark. Trademarks are appropriate when the mark in question distinguishes your brand, goods, or services from others. Examples of trademarks include McDonald’s golden arches, the multi-colored Google logo, and the red-and-white bulls-eye of Target.
  • Patents protect specific types of inventions. A patent keeps others from copying your design or product and selling their version, potentially diluting the value of your product. To be approved for a patent, an invention must be a unique and new design or a substantial and unique improvement on a previous concept. Thomas Edison patented the electric lightbulb, for example, and Apple patented the original iPhone.
  • Copyright protects the ownership rights to created works like novels, short stories, fine art, photographs, films, music and software code. The Harry Potter books, the song “Africa” by Toto, and the Jurassic Park movies are some examples of created works that have copyright protection.

Understand Whether Someone Beat You to It

Once you know which type of protection is the right choice for your business idea, you’ll need to check to ensure someone else isn’t already using it. If someone starts using a logo concept before you do and can prove it, they might be able to stop you from trademarking it. If someone has already trademarked it, you may not be able to use it.

Here are some tips for finding out whether someone has beat you to the punch:

  • Check with the United States Patient and Trademark Office. You can search the USPTO trademark database to find out if anyone is using a mark that’s too similar to the one you want to use. You can do the same thing with the USPTO patent database, if applicable.
  • Conduct an online search. While it won’t turn up official results, a Google search can be helpful in understanding whether anyone else is using your idea and where and how they are using it.
  • Hire a professional. The USPTO trademark database is not especially user-friendly, and it can be difficult to ensure you conduct a holistic search. Working with an experienced professional can provide peace of mind that you have done everything you can to ensure a trademark or business idea is available before you take steps to register and use it.

Limitations on Trademark Protection

In most cases, someone can’t register broad trademarks on basic concepts such as words or colors. People certainly can’t just buy up trademarks to keep them from others or position themselves for selling them in the future, as one might do with domain names.

To successfully register a trademark, someone has to indicate how it’s related to a brand or goods and services. For example, Target doesn’t have the right to tell all people they can’t use a red bulls-eye. Archery companies still put red bulls-eyes on targets and other products, for example. That’s because Target’s trademark is limited to use associated with a retail store. No one is going to confuse an archery target as being the retailer.

So, even if you find that someone is using a mark similar to yours, you may be able to register it anyway. If you are using the mark in a completely different manner or industry and there’s little to no chance the marks could become confused in consumer minds, you may not have to worry that someone beat you to it.

Work With a Business Law Team to Protect Your Business Ideas

As you can see, there isn’t always a black-and-white answer to questions and issues involving trademarks and other intellectual property rights. Working with an experienced legal team from the beginning can help you trademark ideas successfully, avoid litigation and other costly issues, and protect your business ideas

Registering your trademark isn’t always as simple as it sounds. Reach out to Katie Charleston Law, PC, for experienced legal help in protecting your intellectual property rights by calling 317-663-9190.


Copyright Infringement in the Entertainment Industry: What You Need to Know.

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Copyright infringement has been a persistent issue in the entertainment industry for decades. With the rise of digital technology, piracy has become more prevalent and easier to commit, resulting in significant financial losses for artists, producers, and studios. In this blog, we will explore the impact of copyright infringement on the entertainment industry and discuss ways to combat this issue.

Copyright infringement occurs when someone uses a copyrighted work without permission from the owner or violates one of the exclusive rights granted to the copyright owner. In the entertainment industry, this often takes the form of unauthorized reproduction, distribution, or performance of a copyrighted work. This can include music, movies, TV shows, books, and other forms of creative content.

The impact of copyright infringement on the entertainment industry is significant. Piracy results in billions of dollars in lost revenue each year. It affects everyone in the industry, from artists and creators to producers and distributors. When a copyrighted work is pirated, the people involved in its creation and distribution lose out on potential income. This can make it difficult for them to continue producing high-quality content and can even lead to job losses.

One of the biggest challenges in combating copyright infringement is the ease with which it can be committed. With the rise of the internet, it has become incredibly easy to share and distribute copyrighted content without permission. Piracy websites, torrent sites, and peer-to-peer file sharing networks make it simple for anyone to download and distribute copyrighted works. This has made it challenging for authorities to track down and prosecute those who engage in copyright infringement.

To combat copyright infringement, the entertainment industry has taken several steps. One of the most effective measures has been to educate the public on the importance of respecting copyright laws. Many artists and producers have spoken out about the negative impact of piracy and encouraged fans to support their work by purchasing it legally. Additionally, many studios have implemented anti-piracy measures, such as digital rights management (DRM) technology, to make it more difficult for pirates to copy and distribute copyrighted content.

Another effective approach has been to work with law enforcement agencies to track down and prosecute those who engage in copyright infringement. This has involved cooperation between the entertainment industry and law enforcement to identify and shut down piracy websites, arrest and prosecute individuals who engage in piracy, and raise awareness of the issue. This approach has resulted in many high-profile cases, including the shutdown of the file-sharing website Megaupload and the prosecution of its founder, Kim Dotcom.

To protect your intellectual property in the entertainment industry you should work with an experienced attorney. Intellectual property law is complex, and it can be challenging to navigate on your own. An attorney can provide you with the guidance and support you need to protect your creative works and ensure that you receive fair compensation for your efforts.

An attorney can help you register your copyrights, trademarks, and patents to establish legal ownership of your intellectual property. They can also assist you in drafting contracts and licensing agreements that protect your rights and ensure that you receive appropriate compensation for your work.

If you suspect that someone has infringed upon your intellectual property, an attorney can help you take legal action. They can send cease and desist letters, file lawsuits, and represent you in court. They can also help you negotiate settlements to resolve disputes without going to court.

When selecting an attorney to represent you, it is essential to find someone with experience in intellectual property law and the entertainment industry. Look for an attorney who has worked with clients in your industry and has a track record of successfully protecting their intellectual property rights.

Working with an attorney can be a valuable investment in protecting your intellectual property in the entertainment industry. They can help you navigate complex intellectual property laws, register your creative works, draft contracts and licensing agreements, and take legal action against those who infringe upon your rights. By partnering with an experienced attorney, you can ensure that your hard work and creativity are protected and that you receive fair compensation for your efforts.

In conclusion, copyright infringement remains a significant challenge for the entertainment industry. Piracy has resulted in billions of dollars in lost revenue, making it difficult for artists, producers, and studios to continue creating high-quality content. However, by educating the public, implementing anti-piracy measures, and working with law enforcement, the industry can take steps to combat this issue. It is essential for everyone to recognize the importance of respecting copyright laws and to support artists by purchasing their work legally. Only by working together can we ensure that the entertainment industry continues to thrive and produce the content we all enjoy.