This article originally appeared on my now long defunct podcast Art/Geek.
Techies and artists seem to have so little in common. We manipulate electrons and bits with manic precision. They fling paint and images like maniacs. We dream of being the soul of a new machine. Their souls machine new dreams. We write code. They write kōan. But when it comes right down to it, we are all in the business of creating ideas, concepts, schemes, designs. We do have some things in common though: Both artists and techies want to get our due for our work, if not in money than in credit.
The law provides for three ways to make sure that you get the benefit of your ideas, your work and your brand. In fact, if you live in the U.S., some of that protection is built right into the most basic law of the land, the Constitution. Article I, section 8 says that Congress has the power…
…To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
Lawyers generally interpret this to mean that Congress has two separate powers, one to grant patents and a second, different power to grant copyrights. A patent is the right of an inventor to prevent others from using his or her invention. A patent is a kind of a bargain: The inventor gets the exclusive right to profit from their invention for a limited term (20 years in the U.S). In return, society as a whole gets the invention when the patent runs out. The idea behind patents is that it will be better for inventors to get a patent than to try and keep their invention secret.
Getting a patent is not easy, nor should it be since a patent is a very broad monopoly. If you hold a patent on some invention, I can't use that invention without your permission, even if I thought of it independently. In order to get a patent, you need to come up with some invention that is really novel, novel in the sense that no one has thought of it before. Recently there has been a lot of criticism of the U.S. patent system for granting patents on fairly obvious 'inventions'. One of my particular favorites is U.S. patent 6,004,596 which provides a exclusive monopoly to the inventors of:
A sealed crustless sandwich for providing a convenient sandwich without an outer crust which can be stored for long periods of time without a central filling from leaking outwardly. The sandwich includes a lower bread portion, an upper bread portion, an upper filling and a lower filling …
Good thing this patent wasn't around when my mother used to stamp out sealed peanut butter and jelly sandwiches by making the regular kind and then using a coffee mug as a sort of cookie cutter.
In contrast to a patent, a copyright is easy to get. In fact it is automatic. Simply by typing these words as I am right now, I am magically creating a copyrighted work. Copyright protects the authors of any original work, be it prose, poetry, music, art and even computer programs. Copyright means that the author has exclusive ownership over the work for some period of time. For new works copyrighted in the United States (this article for example) the copyright lasts the whole life of the author, plus 70 years. Although copyrights are easy to get, they are a much weaker protection than a patent. A patent means that you more or less own the invention, the idea. A copyright means that you own your expression of the idea. Thus, while I own this article and could sue you if you turned the first few paragraphs into the lyrics of a Country and Western song, I would be helpless if you simply went out and wrote your own Country and Western song about patents and trademarks.
Although copyrights are automatic, you can register your copyright. Registration is mostly a processes of sending a copy or two of your work to the copyright office and paying a small fee. Even though you automatically own the copyright on whatever you create, registration strengthens your hand if you do need to sue over that Country and Western song.
Finally, there are trademarks. A trademark is a name or a symbol that you use to identify your business or product. The idea of a trademark is that you should be able to stake out some kind of symbol or name or catch phrase that uniquely identifies your product or business. Like copyrights, trademarks are pretty easy to get. In the U.S., you can register your trademark with the government in pretty much the same way that you register a copyright and for pretty much the same reasons: If someone violates your trademark, you are going to have an easier time in court if you took the trouble to register it first. Interestingly, different companies can use the same trademark, as long as they are in very different businesses. Sometimes this leads to interesting collisions, as when a small computer company founded in the 1970s took the same name, Apple, as an existing music publisher. After all, what could personal computers have to do with music? The rest is, as they say, legal train wreck history.