Intellectual property stands as the umbrella term for any legal, enforceable rights of ownership applied to creative and other intangible mental expressions that become commercial products. These may include music, art, literature, inventions, discoveries and theories, particular word combinations or designs, and symbols. In certain cases and jurisdictions, intellectual property also comprises trade secrets such as recipes. This essay details the three types of intellectual property that exist in the United States as of 2011: copyright, trademarks and patents. This essay also examines a recent legal case concerning intellectual property rights and fair use of an image acquired on the Internet.
Copyright in the simplest definition refers to the limited right to create copies of an original work (Schwabach, 2007). In its current manifestation copyright also protects a number of other legal rights, including the right to present or stage any given work of art, the right to exhibit any given image, the right to disseminate or circulate a protected work, the right to broadcast a copyrighted work digitally or otherwise, and the right to draw from an existing copyrighted work to create and distribute a new work (Schwabach, 2007).
Examples of items or creative works that can be subject to copyright law include any “original works of authorship fixed in any tangible medium of expression” such as literary works, dramatic works, recordings, movies and graphic expressions such as photos (Schwabach, 2007).
Simply put a trademark refers to a label that can be affixed on any commercial good that sets it apart from other competitors’ goods (Schwabach, 2007). Trademark is the stamp or proof of brand ownership by interested parties that is enforceable in a court of law (Schwabach, 2007). Examples of trademarks include edible and consumable products such as food and alcohol, as well as tangible products such as clothing and accessories (Schwabach, 2007).
Patent refers to the exclusive right bestowed upon an owner, whether an individual or a collective such as a company or corporation, which allows the patent owner to actively and legally put a stop to other individuals or groups from producing, utilizing or marketing an invention or design as detailed in the patent (Schwabach, 2007). Patents can be bought, or in certain cases the patent holder may allow others to use the patented product in exchange for money, commonly known as royalties (Schwabach, 2007).
Three main types of patents exist: utility patents, design patents, and plant patents. Utility patents cover inventions reconfigured to offer a new function; design patents apply to the design of pre-existing products, and plant patents pertain to types of plants that may be reengineered and re-grown via grafts (Schwabach, 2007). In common usage when people refer to patents, they are referring to utility patents. A patent allows its owner to effect legal action in cases where the patent has been demonstrably infringed (Schwabach, 2007).
Legal and ethical issues abound in the realm of intellectual property ownership rights. Ledwon (1997) discussed the issue of copyrighting as it pertains to indigenous cultures and storytelling, as well as Native American life stories (Ledwon, 1997). While it is clear that Native American tribes often encounter legal issues through the misappropriation of ancestral property, less well known are the issues of intellectual property rights in Native American life stories, specifically in regards to ownership (Ledwon, 1997). For Ledwon (1997), Native Americans must preserve the rights of authorship rights even though the collaborator will be at liberty to seek compensation (Ledwon, 1997).
In Ledwon’s (1997) words, “when such a life story is, as often happens, written in collaboration with a non-Native editor, translator, or transcriber, the commodification and objectification of the Other becomes a real possibility. This hazard of appropriation is always present when a text is the product of two unequally powerful cultures. Collaborations also raise some thorny issues of copyright, since the law is uneasy with the concept of more than one author for a single work” (Ledwon, 1997).
Image editing and image use is another thorny area in the intellectual property debate. A recent example that appeared in the news concerned the work of an artist that came to light during the Obama campaign and the Associated Press news agency in 2009 (O’Rourke, 2009). The “HOPE” poster referred to a photo of Barrack Obama gazing skyward in a serious and iconic stance supported by a red white and blue backdrop and the word HOPE splashed across the bottom of the poster (O’Rourke, 2009). Designed by Los Angeles artist Shepard Fairey, the poster became the rallying image for Obama’s presidential campaign (O’Rourke, 2009).
Not only did the poster sell hundreds of thousands of copies, it also became part of the National Portrait Gallery’s permanent collection (O’Rourke, 2009). The Associated Press claimed the image Fairey used was based on a 2006 photo owned by the agency and subject to copyright (O’Rourke, 2009). The Associated Press then sued Fairey, arguing that to use the photo required permission under copyright law and that therefore the agency deserved “credit and compensation” (O’Rourke, 2009). Fairey in turn sued the Associated Press “claiming that he was protected from copyright infringement by the doctrine of “fair use,” (O’Rourke, 2009).
Fair use, according to O’Rourke (2009) gives permission to use copyrighted material – in a limited sense – without the express permission of the copyright owner, subject to specific conditions including “how much of the original was used, how much it was transformed and whether or not the new work hurts the value of the original” (O’Rourke, 2009). This particular case became complicated by the fact that Fairey not only found the image on a Google search, but also “admitted that he had been “mistaken” and that he had not only used the photo that the AP claimed he did, but had falsified and destroyed evidence in an effort to corroborate his original claim” (O’Rourke, 2009).
Images found on the Internet in the digital age complicate the issue of copyright. In the case of large organizations like the Associated Press that trade in information, copyright becomes a serious issue, since it leads to loss of control over the use of its properties and the resultant loss of revenue. However, the Internet makes it nearly impossible to protect images. Information is so readily within reach that the issue of “ownership of intellectual property and the policing of copyright infringement” becomes incredibly challenging to maintain (O’Rourke, 2009).
While the Associated Press represents one of the more aggressive stances employed by companies with copyrights to protect and enforce, the agency has recently announced that it has created and added “software to its [online] content that would track its use and monitor the web for any possible copyright violations (O’Rourke, 2009).
References
Ledwon, L. (1997). Native American life stories and authorship: Legal and ethical issues. The American Indian Quarterly 21.4: 579-594.
Schwabach, A. (2007). Intellectual property: a reference handbook. Santa Barbara, CA: ABC-CLIO.
O’Rourke, M. (2009). Fair or foul? A contentious battle between an artist and the AP will help clarify fair use rights and copyright law. Risk Management 56.10: 14-15.