Intellectual Property Overview: Patents, Trademarks, Copyrights, and More.

In this article, we break down the different types of IP, including patents, trademarks, copyrights, and trade secrets (we touch on the right of publicity). The primary focus is on U.S. law (it is the biggest economy in the world), but the general categorization of IP rights here will help you understand IP everywhere.

What Is Intellectual Property?

Intellectual property is something that can be copied without taking away the “original.” Think about a pair of shoes: if someone took your shoes, you wouldn’t have them anymore. But if you created a photo or drawing and someone made a copy, you’d still retain your original. IP laws exist to give creators, inventors, and businesses the exclusive right to benefit from their creations for a certain period—essentially turning intangible creative output into “property” you can own, license, or sell.

First off, let’s start calling “intellectual property” IP. It’s the term IP professionals use.

IP is a form of property (or in the case of US patents, quasi-property). IP is the only form of property that can be stolen without depriving the owner of their copy. Imagine I steal your shoes. You no longer have them, I do. Now imagine that you are a musician and I copy your latest song without permission. You still have the song. You can still personally use it in all of the ways you could if I didn’t steal it (although your ability to license it or sell it for money would be impaired).

Because IP can be stolen in a way that doesn’t actually take the owner’s copy, IP is only valuable because of the laws that create it. If copyright law didn’t exist, you could copy this article and use it however you wanted. The P in IP — the property element — is entirely a creature of statute. This means that sometimes IP doesn’t behave in the way you would expect property to behave. Instead, it behaves exactly and only in the way the laws that protect it let it behave.

IP is intangible and ephemeral. If Congress were to legislate IP out of existence tomorrow (and leaving aside Fifth Amendment takings claims), IP would stop existing as an enforceable property right.

As a creature of statute, it is also highly territorial. Canada has its IP laws. The USA has its IP laws. If your work passes into the public domain in Canada but not in the United States, I could copy your IP all I want to in Canada without liability. You can’t use US copyright law to stop infringement in Canada. IP protection stops at the border.

Patents

Utility patents give you the right to stop others from making, using, or selling your invention for a limited time. That time frame has changed over the history of the United States, and is currently 20 years from the date you first filed for protection (plus adjustments than can be provided based on special circumstances). The lifespan of design patents differs.

The U.S. system recognizes three main types of patents:

Utility Patents
- Protect the function or process of an invention (e.g., an improved car muffler or a better bicycle gear system).
- Lasts 20 years from the date of filing (usually).
Design Patents
- Protects the ornamental design of a product (like a unique, decorative handlebar shape for a bike).
- In the U.S., these generally last 15 years from the date of issuance (for applications filed on or after May 13, 2015).
Plant Patents
- Protects new varieties of plants that can be asexually reproduced.
- Also typically last 20 years from the date of filing.
- When you see “patented roses” at the nursery, it usually means it is protected by a plant patent.

Note on international protection: Patent protection isn’t automatically global. You can seek international protection via mechanisms like the Patent Cooperation Treaty (PCT), but you still eventually need to apply for patents in each country (or region) of interest. Deadlines are key for all things patent, and a patent lawyer will help you meet the deadlines. Patent deadlines can be singularly unforgiving, so take it seriously.

Trademarks

A trademark is any word, phrase, symbol, design, or the like that help consumers understand the source of a good of service. It is conceptually a consumer protection law, although you wouldn’t know it by looking at how trademark litigation proceeds (competitors, and not consumers, litigate trademarks).

Trademarks are the Methuselah of IP. They last forever, provided that they continue to be used in commerce and the registration is properly maintained.

International perspective: Like all IP, trademarks are territorial. This isn’t as big an impediment as it is with other forms of IP. Many countries follow broadly similar principles. Treaties like the Madrid Protocol make it easy (not cheap though) to get (nearly) global protection.

Copyrights

A copyright protects “original works of authorship”—literary, musical, artistic, and other creative works. This can include books, movies, software code, photographs, and more. In the US, copyrights arise on their own when the protected material is first fixed in a tangible medium (I know, law school just slipped into my writing, sorry about that).

Copyright duration is a moving target, and changes as you move between countries. In the United States, as a general rule (talk to an IP lawyer if you need to know for sure), works created by individuals last for their life plus 70 years. Yup, you read that right. If somebody turned 5 years old on January 1, 2000 and created a cute picture, they have a copyright in it. If they lived to be 105, the copyright would expire in 2170. Yes, it would be copyright until 200 years after disco’s heyday.

A more predictable copyright term exists for “works made for hire”, which are typically works created by a corporate entity. In that case, it lasts for 95 years from publication or 120 years from creation, whichever happens first. So if Kindergarten Art, Inc. had hired the 5 year old to create their cute picture on January 1, 2000, it would expire in 2095 if it was immediately published upon creation, or as late as 2120 if it wasn’t published until 25 years after creation.

Remember when we discussed patent terms? 20 years from filing, which often means around 15 years from the day they issue. My explanation for the different — an order of magnitude — in terms is that patent infringers are typically big corporations with large lobbying budgets, while copyright infringers are typically just “some dude” who uploaded a file to Pirate Bay. Long copyright terms benefit corporations while short patent terms benefit corporations. You can do the math.

One thing to be careful about is copyright assignments. You should talk with your lawyer about them, and I don’t want to confuse anybody by trying to explain the many different assignment mistakes that can be made. Just make sure an IP lawyer reviews your employment and (particularly importantly) independent contractor agreements.

So far this sounds like a terrible deal for humans but a great deal for corporations. We live in a world of content that we can’t use even decades after the author died. In addition to public licenses (an article for another day), the U.S. Government did something great for people: U.S. Government works are generally not protected by copyright, meaning they are often free for the public to use.

Copyright is territorial, just as patents and trademarks are. Copyright protection is recognized internationally under various treaties (e.g., Berne Convention), but enforcement still requires each country to respect and enforce those rights within its borders.

Trade Secrets

Trade secrets can include formulas, practices, processes, designs, instruments, or any information that gives a business a competitive edge, provided it’s kept confidential. A good example is the formula for Coca Cola.

In the U.S., trade secret protection was handled on a state-by-state basis until the Defend Trade Secrets Act of 2016. The key to trade secret protection is taking reasonable measures to keep it secret. Even in the face of those measures, if somebody reverse engineers your secret or develops it indepenently, you have no protection against their use of it.

Right of Publicity

The right of publicity refers to an peron’s ability to control the commercial use of their voice, image, or even persona. This is still done on a state-by-state basis in the United States.

Let’s illustrate: If I take a photograph of the President and use it in an editorial way, such as use as part of a news article, the right of publicity is not engaged. However, if I start marketing “Presidential Booze” with the photograph on the label, that’s commercial use and I could be sued.

The right of publicity is more of an American IP right than the others. Other nations address these problems in different ways. Some are analogous to the U.S. approach, while others may approach it via privacy laws.

(Disclaimer: This article is for general informational purposes and does not constitute legal advice. Always consult a qualified attorney for guidance on your specific situation.)