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| Barbara Berschler |
Because your job as a public relations professional necessitates your work product incorporating creative, original material, you are constantly dealing with intellectual property (IP). Also, because much of your work will appear in the digital format, whether as a Web site, podcast or audiovisual event, the ease of duplication and dissemination of such digital work makes it all the more important to know where the material came from and how it will be used.
The purpose of this article is to acquaint you with some of the special characteristics of IP, and to identify some situations you may encounter with suggestions on how to address potential problems.
Unlike real estate or personal property, IP is intangible. Yet it does exist and can end up making some people very rich. As the words imply, IP is property that originates from the intellect. Typically, the IP will start with an “idea.” However, whether that idea can be protected from being used without your permission, depends on the manner in which that idea is expressed.
Idea Protection
Often I am asked by clients, “How can I protect my idea?” However, there is only a limited number of ways to protect a mere idea. One way is under patent law. However, to qualify for patent protection, the idea must meet stringent requirements. More likely, the situations in which you will encounter are when you are asked to deal with material that falls under the broad category of “trade secrets.” A famous example is the formula for Coca Cola, a secret kept for more than 100 years.
When the IP moves from the idea phase to being expressed in a tangible way, then other forms of IP protection can come into play. The most well known form of protection is by copyright law. Copyright protection attaches to works for which the author has taken an idea—which must be original—and fixed it in a tangible medium of expression. If a work qualifies for copyright protection, that protection attaches immediately. The author may decide to register the copyright with the Copyright Office.
However, registration is not necessary for the exclusive rights associated with copyright to attach. The main exclusive rights that the copyright owner acquires are the right to copy, distribute, display, perform and make derivative works based on the original. Examples of copyright protected works that you may encounter include: text, software, photographs, artwork, designs and music.
Another important form of IP comes under the general heading of trademarks. These marks must be used in association with goods or services. They can take a variety of forms, such as words, logos or designs. You need to be cognizant of what can constitute a trademark because you may be asked to incorporate such material in your work product.
Trade Secrets
The trade secret category, also considered as confidential or proprietary information, can cover a variety of materials that you may encounter and use. While working with your clients, you may gain access to their business plans, customer, vendor or contractor lists and price lists. To better protect the secrecy of this type of information, your clients may require you to enter into a confidentiality agreement. In turn, when you are involved with outside contractors, you should have them sign confidentiality agreements to protect not only your secrets but also those of your clients.
Other interesting areas of IP concern the “right of privacy” and the “right of publicity.” The right of privacy belongs to most people and means that someone else cannot take your likeness and use it for commercial purposes without your permission. As a private person, you have a right to maintain your privacy. The right of publicity is more often associated with celebrities. In such cases, someone else uses the image or voice of the famous person in association with their business enterprise, suggesting that there is some kind of endorsement by the celebrity. Such an unauthorized use would result in an infringement of the person’s right of publicity. Only the celebrity can exploit his or her famous status.
These rights should be considered whenever you use material that can identify another person, like incorporating photographs or voice recordings. Therefore, it is always important to know under what authority has a third party given you access to such materials.
Barbara Berschler is a general business and commercial law attorney with a particular focus on intellectual property issues associated with copyrights, trademarks, licensing agreements, trade secrets, Web site and software development at Press Potter & Dozier, LLC. She can be reached at [email protected].