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Protect Your Intellectual Property Rights

If you are a creator – an author, musician, artist, photographer, graphic designer or programmer – working on your own (and not under contract to make your creations), you own any intellectual property (IP) created by your efforts. Even though many IP rights arise automatically with the creation of the work, it is essential for you to take proactive steps to protect and enforce those rights.

At Fergus, A Law Office, I can help walk you through these steps, from documenting your creations to collecting compensation for the use of your creative work when possible.

Knowledgeable Assistance And Proven Strategies For Artists And Entrepreneurs

When you need to protect your creative works, you need an attorney who’s knowledgeable and experienced and understands how to strategize for success. Throughout my career, I have represented many types of IP clients, including freelance authors, the spouse of a deceased celebrity and a musician whose music was being used by a Hollywood studio in a major motion picture without his permission.

Creative rights I can help you defend include:

  • Copyright matters: Do you need someone to negotiate on your behalf? I negotiate license agreements, draft transfers of copyright interests and advise clients on how best to protect and monetize their copyrighted works.
  • Trade secret disputes: Do you need to confidentially share a trade secret with others for business reasons? I can help you negotiate trade secret agreements and nondisclosure agreements to protect that secret.
  • Music and performing arts agreements: Are you a musician who needs an agreement to produce your next album? Do you need a contract with your band members allocating the rights to the music your band creates? I can help you negotiate and draft agreements to protect your rights while still achieving your goals.
  • Commercial use of a person’s image or likeness: Did a business use an image or likeness of you to sell a product? California has restrictions on the commercial use of a person’s image or likeness on products. I can help you negotiate agreements to protect the use of your image or likeness while still generating revenue for approved uses.

Frequently Asked Questions About Intellectual Property

Fergus, A Law Office, welcomes the opportunity to personalize answers to your questions about IP, such as the following:

What are IP rights and how do they work?

The following discussion outlines some of the basics of IP and its legal function for businesses and creative individuals. At its essence, IP refers to people’s original creative works, including literary and artistic creations, designs and the names of companies. Well-known protection mechanisms for IP include the following:

  • Patents: According to the United States Patent and Trademark Office (USPTO), a patent is “the grant…issued by the [USPTO]” of “the right to exclude others from making, using, offering for sale” the invention in the United States or importing the invention into the U.S. Types include utility, design and plant patents. Infringing on someone else’s patent can be a costly mistake once litigation occurs.
  • Trademarks: Per the USPTO, a trademark can be “any word, phrase, symbol, design or a combination of these” identifying the IP owner’s goods or services. Famous trademarks include the Nike “swoosh,” said to be worth billions of dollars, and the name Coca-Cola in cursive script.
  • Copyrights: These offer protection of rights to published and unpublished original works of authorship, such as literary, dramatic, musical, artistic, audiovisual and architectural works.
  • Licensing agreements: These are contracts granting permission for one party to use another party’s brand, patent or trademark with terms spelling out royalties and other forms of compensation.
  • Likeness rights: These are the legal control of a person’s name and images.
  • Trade secrets: These protect company-specific formulas, databases, processes, customer lists and strategic plans with which a business makes money.

Defining and protecting IP can be vitally important for any creative person, inventor or company seeking to protect their investment of time and resources.

Who owns the IP of a creation?

This question refers to determining who owns IP at the time of creation of the it and how IP can change hands via licensing or sale. Some rules of thumb are as follows:

  • A patent search can uncover the existence of a patent and its patentholder. The owner of a patent can transfer it to others. Employers and collaborators should consult with a patent law attorney to prepare to determine who owns a patent for an invention and how to negotiate acquiring the patent rights. If there is no patent, an innovator can proceed to pursue one.
  • A copyright or a trademark is presumed to belong to its creator. Employment contracts and other contractual agreements can and should specify any deviation from such an assumption.
  • Trade secrets are also assumed to belong to the company that uses them. Nondisclosure and confidentiality agreements can and should clarify any exceptions as well as how secrecy will be enforced in a working arrangement.

Companies often own the IP of employees, unless the employee has a specific clause in their contract (a rare concession granted to employees). Consultants and third parties who work with companies often have and retain rights to their own IP. Both sole ownership and joint ownership of IP are possible. To protect all concerned parties, employment and purchase contracts should specify the IP rights of employers, employees, sellers, purchasers and business partners.

In the worlds of creativity and business, IP ownership is important to spell out in relationships with clients, vendors and distributors of products and information. Ambiguity often leads to disputes and litigation. Business success and the integrity of innovators depend on clarity regarding IP ownership.

How can I protect my IP rights?

To approach a workable answer to this question, first, determine what type of IP you own or hope to create. Are you hoping to protect a piece of writing, a design for a logo or a list of names and phone numbers belonging to a certain market segment? Understanding the nature of the IP should help you realize how to protect it, such as with a:

  • Patent
  • Registered copyright
  • Registered trademark
  • Contract

If your invention or asset is eligible for a patent, copyright or trademark registration, you should act promptly. Time may be of the essence. Once you have your goal in mind, consult with an IP attorney who can help you begin the process of staking your claim of ownership through these established methods. It is important that you file your application for a patent, trademark or copyright as soon as possible to protect your legal right to enforce them.

If a contract is the way to protect your IP, take steps to create well-written contract. A strong contract allows you to protect your rights to ideas and inventions when working with employees, contractors and other third parties.

Finally, once you have put protections in place, enforce your IP rights through demand letters, lawsuits and other appropriate means. Failure to protect and enforce your IP rights can cause you to lose your IP as well as any profit you may have already lost. A knowledgeable attorney can help you create a cease-and-desist demand letter and stop infringers from stealing your IP.

Protect Your Creative Rights

It is important to understand the rights you have in the work you created. It is also important to retain a lawyer with the experience to advise you about protecting your rights and to negotiate agreements to monetize those rights.

If you are a creator, an experienced IP attorney can help. To schedule a consultation, call 866-256-5487 or contact my San Francisco office online.

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