Updated: Apr 3
Many websites provide information about copyrights and patents. As long and wordy as they are, you must read a considerable number of them to gain even a general understanding of copyrights and patents. I have therefore assembled this summary where all pertinent information regarding them is found.
Did you know that the basis of copyrights and patents comes from the U.S. Constitution?
The Congress shall have 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.
--U. S. Constitution, Section 8
Did you catch the words, limited Times? Neither copyrights nor patents last forever. This is a good thing, because can you imagine the inventor of the screwdriver preventing anyone else from manufacturing a screwdriver forever?
Copyrights vs. Patents
A common question people have is, “What is the difference between a copyright and a patent?
Copyrights protect information “Information” includes 2D objects such as stories, movies, poetry, sheet music, videos, artwork, game rules, computer software, and recipes.
Patents protect things “Things” include 3D objects such as machines, tools, computer hardware, and games with physical pieces.
Copyrights are much easier to obtain, are far less costly, and provide protection for more years than patents.
Penalties for copyright and patent infringement
To motivate you to learn more about copyrights and patents, here is what can happen to those who infringe on other peoples’ creations:
Copyright infringement: Infringer pays for damages incurred and profits gained up to $150,000 for each work infringed. The court can issue injunctions to stop infringing acts and can impound the illegal works. Infringer can also be sentenced to jail.
Patent infringement is not a crime, so there are no criminal penalties. However, the owner of the patent can sue the infringer in civil court for “reasonable royalties” obtained by the infringer. If it can be proven that the infringer intentionally infringed, then the patent owner is entitled to “treble” damages. Treble is legalese for triple.
Given the ease of obtaining a registered copyright, it is to your benefit to protect your work before it becomes available across the world via the Internet.
The following material answers most people’s questions regarding copyrights and patents.
Work must be original, creative, and fixed in a tangible medium. “Fixed in a tangible medium” means that a poem copyrighted in printed form is not necessarily copyrighted in an audible format.
Virtually everything on the Internet is automatically copyrighted, whether or not a copyright application has been submitted, or a copyright notice is provided in the work.
Beware! If you copy a passage of text, video, recording, image, or even a URL from the Internet and use it to make money, the original creator of that work or property can sue you and will probably win.
Just because someone posted a video of someone else’s work doesn’t mean the content of that video isn’t copyrighted.
“But what if I purchase a movie and then
show a scene of it on my webpage?”
Sorry, you may not legally do that without receiving written permission from the creator. You purchased that movie for your enjoyment, not for the enjoyment of billions of other people who have access to your website.
If I create a webpage and reference on it a link to Google or even write the name “Google” (like I did just now), without Google’s permission, Google LLC could sue me and would probably win.
Quoting people’s work
If you include a copyrighted passage, image, or recording, of another creator’s work in a short story, novel, or even a webpage, you can be guilty of copyright infringement even if you credit the original creator unless you have written permission from that creator. The rationale for this restriction is although you’ve credited the original creator, you’re still making money from his or her work without his or her permission.
Exceptions for educational and scientific papers
For those of you who have written high school or college papers where you site other authors’ or researchers’ works, you don’t need their written permission so long as you give them credit. Educational and scientific research have relaxed rules in an effort to spur educational and technological advancement. Such relaxation does not apply to entertainment works such as short stories, novels, movies, and most Internet sites.
So why get a copyright?
If copyright protection exists automatically over the Internet, why should you copyright your work? The answer is that formally copyrighted material is recorded in the U.S. Copyright Office. Such a record will provide substantial evidence of who owns the work. That alone is a good enough reason for me.
International copyright agreements
The United States has made agreements with most countries around the world to help enforce intellectual property worldwide. This link provides a list of conventions, treaties, and other legal instruments to help protect copyrighted material internationally.
Patent invention must be shown to be:
Useful. You cannot patent a seventeen-sided dinner plate even if it may be “unique,” unless you can show there is a useful function of those seventeen sides beyond, “they look neat.”
Nonobvious. You cannot patent a knife with an ordinary sharp edge even though it’s useful, unless you can show how the design is unique from other knives.
It’s because of these two criteria that you cannot simply apply for a patent and then get one. Your patent attorney will,
Help you through the application process
Draft the patent document itself
Prosecute your patent application before the U.S. Patent and Trademark Office
Let’s say you want to patent a ball.
Your patent attorney argues your invention to the U.S. Patent and Trademark Office (USPTO). The USPTO responds with, “No, it’s not sufficiently unique.” Your attorney comes back to you and says, “The USPTO says it’s not sufficiently unique.”
You then have your attorney refine the definition to, “red ball.” Your attorney goes back to the USPTO, and then comes back to you with, “The USPTO says it’s still not sufficiently unique.”
You send your attorney back to the USPTO with, “A red ball that floats in the air, tracks flies and mosquitoes, and kills them with laser energy.”
Your attorney returns from the USPTO with your patent award.
Example patent award experience
Back in 2005, I and two of my friends were awarded a U.S. patent for a board game. This was very exciting for us! But upon reading the patent document, I became furious because the description of the game was unrecognizable to me. Imagine reading a patent describing a board game similar in general appearance (but not the rules or the look of the tiles) of a three-dimensional dominos game:
A plurality of "domino-like" game pieces include
indicia viewable on the top surfaces of the game pieces
that correspond to one, or the other, or both of two halves
of the game pieces. The indicia forms a binary set...
This went on for pages! I was so upset that my friends had to explain that patents always look this way, that the normal way people communicate is translated into legalese that lawyers and judges can understand.
Imagine Mr. Spock from Star Trek explaining how to play a board game. That’s what patent documents read like. This is why you can’t write them on your own. Unless, of course, you’re Mr. Spock.
The Fair Use Doctrine
There actually is a circumstance under which you can cite someone else’s copyrighted work without permission. This condition is found in Title 17, Section 107, of the United States Code (Copyright Act of 1976), which states,
“[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include,
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”
The parts of that which I understand say,
“You can cite a small portion of someone’s work if it’s for
criticism, comment, news reporting, teaching, or research.”
Let’s suppose I write a novel where I use the word “the” twice in a row all the time. You write a column criticizing my work, saying:
J.J. Richardson writes silly sentences like,
“The the cat ate the the mouse.”
You have just copied my work. But because you’re criticizing me, it’s not counted as piracy, copying, or plagiarism. Imagine what it would be like if no one could ever cite anyone else’s works in a book or movie review.
Remember the YouTube Pitch Meeting guy who shows LOTS of clips of movies while teasing them? I’ve wondered how he gets away with that. The answer is the Fair Use Doctrine. So long as he’s criticizing movies, he can use their material for free. It’s genius!
But what does “criticism, comment, news reporting, teaching, or research” mean? Hence, the four caveats that follow it: whether the work doing the citing is commercial or not, the nature of the copyrighted material, the amount of material referenced, and its effect on the market value of the cited work. These are the kinds of questions debated in a courtroom between expensive lawyers.
What about complementing someone’s work
Isn’t it fair when I site someone’s work, and then give him or her credit? Wouldn’t that be considered free advertising for the original author?
The answer is, giving the original author credit when copying someone’s work for commercial purposes (even in a complementary fashion) is admirable, but it could still be considered copyright infringement.
So, when can I quote someone’s work and when can I not?
I’m not sure. Does my website www.jjrlore.com exist for commercial gain? I think a lawyer opposing me could argue that point, given the first page of my website shows how to buy my books.
Maybe it’s true that I can print a small, offhand amount of copyrighted material for what I consider to be educational purposes. But because I have no courage, I’ll just quote from old writers like Mark Twain or Earnest Hemmingway who probably won’t rise from the ground and sue me.
Are you considering patenting your idea? Here's my advice to you
People individually are warm, caring, and heartfelt. But as a society, the world is dark and soulless. No one knows who you are, and no one cares. Your heartfelt artistic work or invention can be dismissed like worthless, rancid dribble without a trace of thought or feeling. It’s worse than dog-eat-dog. It’s dog-crush-and-grind-and-scrape-away-dog. Therefore, before you begin your copyright or patent application process, you should do all you can to determine if your idea or product will be accepted by the public.
This includes having someone else (this is very important!) present your idea or product to as many people as possible before spending any money on a copyright or patent application.
Instead of asking your friends,
“Would you like to read my story?”
“What do you think of my invention?”
have other people present your creation to strangers. Your friends and family love you. Complete strangers do not. It's those strangers who will determine the fate of your precious intellectual creation.
You have no idea how soulless the world is until you’ve tried to publish or patent something. This doesn’t mean you shouldn’t! It means you must be grown up about it.
I believe that copyrighting or patenting something is an experience everyone should have. Imagine what the world would be like if no one tried to create anything.