Copyright: How it Relates to Protecting Inventions

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The federal copyright law protects all types of works of authorship, including writings of all kinds, music, movies, videos, drawings, paintings, sculptures, computer programs and photographs. However, copyright does not protect anything that does useful work -- in other words, it doesn’t protect inventions -- or at least those aspects of an invention that make it useful.

It might seem, then, that copyright law has little application to inventors, since they try to create things that do useful work. But, in fact, inventors create copyrighted works of authorship all the time, including, for example, drawings, written descriptions of experiments and other inventing activities, photographs, product manuals and advertisements for inventions. Although these works are important and helpful to inventors, they are not considered functional, under copyright law. All of these things can receive the same copyright protection as best-selling novels, movies or works of art.

Patent Drawings and Copyright Law

An inventor who files a patent application with the U.S. Patent and Trademark Office (USPTO) must include detailed drawings showing how the invention works, as well as a written description of the invention. An important issue -- particularly for the owners of design patents -- is whether the drawings are protected under copyright law?

Patent and copyright experts maintain that patent drawings are protected under copyright law. This principle is supported by case law (In Re Yardley, 493 F.2d 1389 (CCPA 1974) and federal regulations (37 CFR 1.84(s).)

However, the public is also granted an implied license to freely reproduce the contents of a published patent for purposes of making or using the invention. On that basis, you can download and copy issued patents without violating the patent owner’s rights in the drawings. However, other uses may violate the law.

Copyright Can Protect Invention Design

Although the jottings you make in your inventor’s notebook are protected, you probably won’t make money off these copyrights. After all, it’s not likely anyone would want to publish your inventor’s notebook or make a movie out of it. However, if someone does publish or modify your notebook, or if an angry employee posts your patent drawings on the Web (prior to a patent being issued), you can sue for copyright infringement for these uses.

Inventors ordinarily make money from their inventions. Although copyright can’t protect the functional elements of your invention, it can protect its nonfunctional artistic elements. These can include pictorial, graphic or sculptural features. These design elements may have value, whether or not your invention is patentable.

Not all design elements can be protected. Copyright protects only the nonfunctional design elements of a useful article if they can be separated from the functional elements. This separation can be actual physical separation or conceptual separation.

Any feature that can be physically separated from a utilitarian object and stand on its own as a work of art, is copyrightable provided that it is minimally creative and original. For example, the dancing figures on a music box could be removed from the box and stand on their own as sculptures.

However, many design features contained in utilitarian objects cannot be physically separated from the object. In this event, the feature is copyrightable only if it can be conceptually separated -- that is, the artistic features can be imagined separately and independently from the useful article without destroying the article’s functionality. In other words, the artistic features and the useful article could both exist side by side and be perceived as fully realized, separate works -- one an artistic work and the other a useful article that does work.

Sometimes it’s easy to tell that an artistic feature is conceptually separable from its utilitarian object. For example, a two-dimensional painting, drawing, or other graphic work is clearly conceptually separable when it is printed on or applied to useful articles such as containers, furniture or the like. Sometimes, however, it’s difficult to conceive of the art separate from the function -- that is, the art and function seem to merge so completely that one cannot exist without the other. When that happens, it’s hard to get copyright because the design is considered necessary to the function. Judges or Copyright Office examiners often resolve this issue by asking the question, “Can this work be created in many alternate ways and still function?” If there are many alternate designs, then the design is not crucial to the function.

Making Money From Copyrights

You can earn money from a copyright in a design or other work in two ways. You can:

  • sue people who copy your work without permission, or
  • earn money by licensing or selling your rights.

If someone uses your copyrighted work without your permission -- in legal terms, infringes your copyright -- you can go after them, make them stop and perhaps collect a financial payment for the damage they’ve done. You can take these actions against anyone who, without your permission, copies your work, displays your work, makes photos of it, broadcasts it on television or makes variations or miniatures of it.

You can also make money by giving your rights to someone else, either temporarily (a license) or permanently (an assignment). The money earned from licensing or selling copyrights can be substantial. For example, the artists who created Cabbage Patch Dolls earned millions from licensing their creation. In return for letting a company “use” their copyrighted designs, they earn a healthy royalty on each doll sold.

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