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What Are Intellectual Property Rights?
Karin Coger • 2024-10-01
Dylan Carnahan:Welcome to the Simple Questions Podcast. This is your host, Dylan Carnahan. The question for this episode is, What are intellectual property rights? You will learn in this episode, the process for getting something copyrighted, how a trademark is different than a copyright, and advice for business owners. Our guest has over 20 years of legal experience, is the founder of Coger Law Firm, which offers virtual legal council services that specialize in trademark and copyright registration. I introduce to you Karin Coger. I am playing the guitar, sitting in a room with my guitar teacher, when he goes on to describe how Led Zeppelin was sued for playing music that sounded similar to another band. And at a young age, that just did not make sense to me. I didn't quite fully understand what that meant, or that that was even something that was necessarily applicable to music. And so we'll take a step back here, and I want to direct towards you, because this is a legal thing. How did you first here, then get involved with the legal system?
Karin Coger:So it was interesting. When I was in both junior high and high school, I was interested in media. So everything, TV, written movies, the whole nine. And then in high school, I attended high school outside of Philadelphia. There was a moot court program that was run by the Temple Law School. I think it was Beasley School of Law. So a law professor as well as law school students used to come to the school, I think bi-weekly, taught us about the legal system, taught us about litigation, and that was my first introduction.
Dylan Carnahan:I appreciate you sharing that because I think it's important to, and you'll hear from a lot of different guests that have been in the podcast about that early exposure. And so, Karin, there's one thing to hear about something, there's another thing to act on it. So, where do you go from there?
Karin Coger:So, law was not my first choice. Again, I told you my background was media, so when I attended college as a broadcast journalism major. So they had a mass media department, it was broken up to PR marketing, print journalism, broadcast journalism. But because I had this exposure to law, I also was pulled towards political science. And to be quite honest with you, like I said, it wasn't my first choice. I wasn't one of those people that came out the gate like, hey, I want to be a lawyer. However, everybody told me you should be a lawyer. So, as I broached, I guess it was junior and senior year in college, that's when people typically take the LSATs, if they are interested in going to law school, didn't want to, was still pushed because other people thought that this was going to be a good profession for me. Took the LSATs and then upon graduation, I looked at what was the salary for being a TV producer coming out of law school and what was your salary? Being a TV producer coming out of undergrad versus what was the salary be? Being a lawyer, it was still all skewed and wrong. But that's how I ended up going to law school instead.
Dylan Carnahan:Okay. That's an interesting pivot. And I can see some of the media elements within your presence, within your business. And I think you've done a very good job marketing yourself. We'll narrow down. So that's how you get to where you're at. And we're grateful that you're here. Let's focus on some of this copyright and trademark stuff. So we're going to go, for namesake, Simple Questions Podcast here with the What Is a Copyright? What is that?
Karin Coger:Sure. A copyright is legal protection that protects... The technical term is original works of authorship. So what I tell people is copyright protects your content. So it protects your books, your poems, your articles, your blogs, your music. You mentioned Led Zeppelin, dramatic works. It protects your screenplays. It protects your architecture designs. It protects your pictures. It protects sounds. It protects speeches. So any content that you put out there into the world, you do have the opportunity to receive copyright protection.
Dylan Carnahan:Well, that's good to hear. What are some of the benefits of that protection? What does that grant you?
Karin Coger:Okay. So the benefits are huge, especially in today's day and age. So as soon as you produce something, you are producing and putting this podcast into what's called a fixed medium. It's being recorded. So you are technically the copyright owner of this podcast session. But when you take the extra steps and you file for copyright registration in the copyright office, number one, it allows you to sue other people if you are being infringed upon. I say that it's important especially in today's digital age, because in the world of social media, I hear it every day. Somebody stole my TikTok, somebody copied my video, somebody did this. I'm being infringed upon. And if you go and attempt to file an infringement claim with any of the social media platforms, whether it's Facebook, Twitter, TikTok, YouTube, the very first question they're going to ask you is, do you hold a copyright for the work that you are claiming is being copied or infringed upon? Now, there is such a thing as like, basically like emergency copyright registration or special handling. So let's say you did not copyright your video or your blog, and you found somebody straight up copied it from you. You want to pursue them. You can run down, I say run down, but you can apply online to the Copyright Office for special handling.
Dylan Carnahan:Interesting. So this, again, copyright gives you more tangible ownership of your content. Therefore, in the event of infringement, you have that to kind of substantiate your rights.
Karin Coger:Right. They call it a prima facie case, meaning I am showing that I am a copyright owner. I have this certificate is filed with the US Copyright Office. I now have the ability to go into court and file a claim to recover damages. I believe you can recover damages up to $150,000. You can recover attorney's fees. If you do not have that copyright registration, you will not be able to do those things.
Dylan Carnahan:Interesting. There are two things that come to mind with some of the things that you said. The first of which is, what is the timeline to go through the process for copyrighting? You mentioned this expedited emergency copyright that you could receive, but let's say you were proactive or had more foresight. What's the length of that process?
Karin Coger:It's actually pretty short. You can receive copyright registration anywhere from three to six months, from your date of submitting your application.
Dylan Carnahan:Okay. That's reasonable. Another thing is the kind of infringement. Now, I understand that this would have different meanings depending upon the medium, right? Say like a brook versus a song, but what and I guess if you're owning it, you may have a subjective feeling as to what that is. So how would you quantify infringement of someone's copyright?
Karin Coger:So you use the example of Led Zeppelin, and there are a few other cases that I can mention. Recently, Ed Sheeran has faced a few infringement lawsuits. I believe he was accused of infringing upon Marvin Gaye. So again, when you're listening to that song, you're like, hey, that sounds like that other song over there that I know about. Now, if that second person, the accused infringer, infringer did not get permission to use elements of that original song, they can be accused of copying or infringement.
Dylan Carnahan:Okay. That makes sense. That's fairly straightforward. With the going through this process, we're going to be people that are listening to this are from all over. So is this in the United States? We're talking about the United States. Is the copywriting, is that, is there a state element or a federal element or a combination of the two?
Karin Coger:So, US copyright laws are federal, so they do apply across all 50 states.
Dylan Carnahan:Okay. That makes perfect sense. Now, we talked about the advent, you know, this three to six month timeline that you can get in an emergency copyright in the event that you have something that qualifies for that. Should someone that is proactive, should they wait to release their works until their copyright is done?
Karin Coger:No. So, you can actually file for copyright registration of unpublished works. So, if you have a collection of blogs that you haven't put on your website yet, or if you're a photographer and you have a whole bunch of photos, but you haven't published them yet, you can file them as unpublished works with the Copyright Office in anticipation that you are going to publish them in the future.
Dylan Carnahan:Okay. That's good to know that you have that ability. It doesn't just have to be out there and then this reactive nature to it. How does someone go about copywriting something more abstract like software or these unpublished works?
Karin Coger:It's still the same process. The copyright registration process is logging into the website, entering the owner information, who is the claimant. I don't want to muddle the waters, but who owns the copyright? Who's claiming to be the owner of the copyright? And you submit a deposit. A deposit is an example of what you would like to copyright. So when you say abstract work, sometimes people mention software. Well, software actually isn't abstract. It's written down in code. So you submit that code as your deposit. That's your sample.
Dylan Carnahan:Okay. There are tangible things. Therefore, submit said tangible things for review. What are some misconceptions that people have had when they've come to you over copywriting things that you'd like to address?
Karin Coger:Some misconceptions are if things are on the Internet, they are free for me to use. So I believe most of us do this probably on a daily basis. You see a picture of Jennifer Lopez, and you just copy that picture you saw on Google and upload it to your Facebook, but that picture doesn't belong to you. In fact, that picture probably doesn't even belong to Jennifer Lopez. The picture belongs to the photographer who took the picture. So you actually see a lot of these celebrity lawsuits, because again, they're celebrities, they see a picture of themselves, they think it's great, they put it on Instagram, and now the photographer has sued them.
Dylan Carnahan:Yeah, there is this element of that you have the access through the Internet to this content, therefore, you can easily overlook the fact that there is ownership that is not yours.
Karin Coger:Correct. And there are definitely steps that you can take online to obtain pictures that may not be subject for copyright. There is, I don't know if you remember this, I don't know if I'm dating myself. Are you familiar with the site Flickr?
Dylan Carnahan:Yeah.
Karin Coger:Okay.
Dylan Carnahan:No, I'm on, I got you.
Karin Coger:So let's say you're a photographer and you're on Flickr, you upload your photo and you may say, all rights reserved. If you want to use this and this is what Getty does, you need to use this. However, there are other types of copyright licenses. So you might upload it and say, hey, you can use it, just give me attribution. Meaning you say, oftentimes you see on Instagram, photo cred. So you give somebody the photo cred and therefore you are not infringing. And there's a license that may say, yes, you can use it and you can even alter it, but give me credit. So there are various different levels of licensing. And if you go on Google images, if you go on Flickr and actually look for that information, you can find out which licenses are available to you. Also, there are other sites such as Unsplash, iPhotos, but there are definitely sites where you can find photos that are free for you to use.
Dylan Carnahan:I think this brings up a good, a different perspective of the copywriting that we kind of followed the initial line of the question in, which is that you are more of a consumer, so to speak, of content. Therefore, if you're ingesting that and utilizing that within your own works, you need to be cognizant of what copywriting and licensing surround that.
Karin Coger:Absolutely. The other place where it really rears its ugly head is Apparel, selling on Etsy, selling t-shirts. So let's say somebody has an amazing phrase that they use, or they have an amazing picture. Again, somebody takes that, they put it on a t-shirt. People do it every single solitary day. So what is the risk that you run when you do that? Because a lot of people do it. You see fake Louis Vuitton bags that are being sold on the street. It's done absolutely every day. But it's the type of person that is going to pursue you if you do that. So for instance, if you are selling on Etsy and you're selling Disney characters on your mug, Disney, they protect their intellectual property. They are going to come out and they're going to tell you to take that down. In addition to telling you to take it down or sending a cease and desist, they may say, and now you need to pay me a fine because it's my intellectual property. So the risk that you run is, is the copyright holder or registrant going to pursue you for infringement?
Dylan Carnahan:You are beholden to the person that has rights over that content once you utilize it. So you're incurring risk that they could take action against you. And what degree of action? They have the ability, as you said, to kind of maybe claw back and find you or something that effect, or simply just tell you, hey, stop that.
Karin Coger:Right. And so I will say, people that do copyright holders or registrants that are proactive, they often have services, watch services. So they're watching the Internet, they're watching Etsy or eBay for products that pop up with their, their protected material on it. And a lot of times, most people don't know these copyright laws, and a lot of times they will send a simple cease and desist. Or if you're on a site like Etsy, they'll just take it down and tell and send you an email like, hey, this was copyright infringement. We took your listing down. Don't do it again. If you do it again, you might not have been aware. But now that you're aware and if you do it again, we're going to shut down your shop and hold all your money.
Dylan Carnahan:These platforms that people are utilizing, they are entities that can have legal issues too. So they're looking after their best interests. Etsy is going, hey, we don't want to be involved with whatever you're infringing, say with Disney. Therefore, we'll have you take that down as a way to proactively ensure that they're not in trouble for any infringement.
Karin Coger:That's correct. I will say that I talked about licensing, I talked about looking at licensing. But there are also simple ways to not infringe upon somebody's copyright. So let's take the world of blogging, for instance. Let's say I see a blog, it's amazing. I don't want to write the blog myself. Just e-mail the blog owner and say, hey, can I republish this on my website? They may say no, they may say yes, but just link to my blog. Don't just copy mine, write a three sentence intro paragraph and link to it, and you have that e-mail and therefore you're covered because you got permission.
Dylan Carnahan:That's a method I'm sure a lot of people don't even think to utilize, because it's kind of scary to have that interaction and it's easier to not worry about that, maybe take that. So I think that's good advice. And I think too, I'm going to make an inference here, that when you have conversations like that, it would be beneficial to have it in a medium that's documented as well.
Karin Coger:Absolutely, because if there is that lawsuit or that accusation, you just pull up the e-mail and that's why I mentioned e-mail. It doesn't even have to be a complicated contract that you go to a lawyer for or whatever. If you just ask permission, you get it and it's documented, you're covered.
Dylan Carnahan:Yeah. Documentation is beneficial because again, it's kind of like the whole, again, that's what the copywriting really is, right? It's a document that has fiated to use some rights over that content. So the more kind of nodes, I guess you can have of documentation can help support your rights, whether that's using something that's original of your own or utilizing someone else's. Let's, I want to make a distinction here. So how is a trademark different than a copyright?
Karin Coger:So my motto to make things really simple are, trademarks protect your business and your brand, and copyright protects your content. So a trademark protects a word, a phrase, a design, a logo, something that identifies who you are as a business or brand. The name of your podcast, you can file for a trademark for that. If you have a logo for your podcast, you can file a trademark for that, and it protects you and your identity with the podcast. But then what you would have to do to protect your actual podcast episodes are then file copyright registration for the podcast episodes.
Dylan Carnahan:This is all, they're directly related and they fit within the larger, I guess, ideal of protecting intellectual property rights.
Karin Coger:Correct. And even though you didn't ask this, I'm going to throw it in there. The other form of intellectual property rights are patents, and that protects inventions.
Dylan Carnahan:And that's going to be something physical, would it be accurate to say physical in comparison to say a copyright?
Karin Coger:Yeah. So, Patton, you are going to submit documentation of how you created a new product, just to put things really, really, really simply. It's the process.
Dylan Carnahan:Okay. So, a question I would have over, say, a trademark is, and this kind of goes back to something earlier I mentioned about the copyright, that a trademark, if you had not acquired one, would you have any rights over that brand, being that you don't have anything filed, or is there a similar process that, say, the copyright where you can maybe have an expedited instance to gain that right?
Karin Coger:So I'm going to give you an attorney answer. It depends.
Dylan Carnahan:Makes sense.
Karin Coger:Yeah. So it depends. Have you been using the trademark? How long have you been using the trademark? Do people know that you're using the trademark? Is it identified as your goods? So let's say you've been using a mark for five years, and then somebody starts using it or wants to use it, and they file a trademark application, and you find out about it, it's like, oh, no, hey, you know. Now, obviously, if you have trademark registration, that is the highest level of protection. If you went ahead and protected yourself outright. But if you find out that somebody else is using a mark that is just like yours, similar, or has the likelihood to cause confusion, you can, there are still ways to address the situation. But again, the highest level is for copyright and trademark is registration. And even though you didn't ask this, I'm going to throw this tip in there, which is what a lot of people do is they go and start a business, and they'll go and go and go daddy or name cheap and get their domains. Like, oh, the domains, you know, open. I'm free to operate this business, you know, under this name and they don't take the extra step to either one, do the trademark search, which is searching all the other trademarks that are out there to see if it's available, and number two, to register it. And I want to say that is the number one mistake that most businesses make.
Dylan Carnahan:Yeah. And I'm sure that that's a hard, emotional, and perhaps even financial thing to retroactively undo if you haven't done that due diligence.
Karin Coger:That's correct.
Dylan Carnahan:So you're going to want to do that up front.
Karin Coger:Right. So again, imagine you've been operating your business. Let's say you make makeup, and you've been making lip gloss in your community for five years. It's going well. You're starting to expand. You're selling online. Now you're getting merch with your company name on it. You have T-search, you have other products, and you're growing, you're all excited. And then you get hit by the Kardashians that already have that name trademark, and they're hitting you with a cease and desist. So at this point, you've now spent blood, sweat, tears, money in developing your brand, and you pretty much have to take it down.
Dylan Carnahan:Yeah. And that's not easy to do. And I think that that just goes to, I think, the power of the information you're sharing, because it is vital to have some of these questions that you're asking yourself and following up on, you know, at the onset of whatever your project is, whether that be a work that you're doing or maybe a business, right? What, how long is the process for a trademark? I know we talked about the the duration of maybe three to six months for a copy. Right.
Karin Coger:It's a lot longer. So right now, trademarks are taking about 12 to 18 months. So if you submit a trademark application today, it's taking the trademark office about six months to even look at it. You'll submit it. They'll say, hey, we got it. But nobody's really looking at it for like another six months. And that is partially due to the pandemic. So during the pandemic, so many people started opening their own businesses, you know, and therefore filing for trademark registration.
Dylan Carnahan:Yeah. So there's a high volume. I know there's something similar with obtaining a passport, right? There was kind of a backlog. And so that creates a longer feedback loop. So that's unfortunate. What are there anything? Is there anything else specifically you want to mention about trademarks that may be unique or different than, say, a copyright?
Karin Coger:I mean, they are so different. The only other information I would give you about trademarks, and again, we're in a digital age. A lot of people sell online. A lot of people sell on Amazon, for instance. Amazon does have its own sort of trademark program called Brand Registry. Again, you want to have a trademark to protect your brand, but you can go through their internal program. To get yourself a level of Amazon trademark protection, if that makes any sense.
Dylan Carnahan:Okay.
Karin Coger:Without going through all the leads and the details.
Dylan Carnahan:Yeah. There's an elephant in the room that there are people, like we mentioned with the whole copyright thing, there are people that are utilizing this, and there are people that may be being harmed by this. So as far as a user and creator aspect, which is AI. So what advice do you have for people that are content creators regarding AI? And then we can kind of shift to the other end of the spectrum, which is someone that just is using it.
Karin Coger:I'm laughing because I literally have a 10-page document that I need to read with the instructions that the United States Patent and Trademark Office actually just came out with about AI use. So as you know, AI in the way that we are using it, generative AI in the way that we're talking about it right now, has really only been around since November of 20, I think it was 2021, right? And so there were some initial policies or guidelines, i.e. can I copyright a graphic that I created using AI, using mid-journey, using dolly? And the straight up answer is no, you just created that because what is it doing? It's actually generative AI trains on things that other people have already created. So if you're creating that, you're using somebody else's stuff. But now if you create it and you incorporate it into something else or into another picture, or you add elements, does it now give it some type of originality, right? Recently, a few of the social media platforms have changed and added a button that asks you to identify whether or not AI was used to create this content. So I mean, that's as recent as in within the past two months. So law is always slower than technology. So like I said, it changes every day, and everybody from the government to the smallest business owner is trying to figure out what to do when it comes to AI and content.
Dylan Carnahan:Yeah, no, it's understandable. That's the inherent nature of legislation. And as you mentioned, this is new. And not only is it new, it's being adopted more and it's changing itself. So I'm grateful they could speak to that a little bit because I know that that's something that's going to be even more common within our lives, I'm sure, as the future plays out. All right. I'll back up a little bit and just ask this, what advice do you have for business owners?
Karin Coger:So for business owners, again, at the very beginning stages of your business, when you're forming it, when you're coming up with your name, not only do you do a business search, so search your state, your state's commerce office. They have the listing of all the business names that have been registered. Search GoDaddy, do your Google search, but also invest those funds into speaking to an intellectual property attorney such as me, and even doing the first phase of registration, which is the search. The search is the most important part. So before you fall in love with that brand name that you created, and a lot of times, again, people don't necessarily infringe purposely. You might have seen something that aspires you and you created something you think it's your own original creation only to find out. Somebody else has already registered it. So invest that money upfront, because that is the main thing that people say like, oh, I feel like it's cost prohibitive to invest in trademark registration or even the trademark search, but it's more costly to invest all that money in your business only to find out that it's really not buyable.
Dylan Carnahan:Well said. What's the best way for people to learn more about you and the work you do?
Karin Coger:Sure. They can find you my website, which is cogerlawfirm.com, so that's C-O-G-E-R, lawfirm.com. If they want to book a discovery call, so I do do a 15-minute free session through my office for people to ask questions such as this and find out if this is something they need to do or they need to look into, they can book that at go.cogerlawfirm.com. I'm on all socials either at Coger Law Firm or under my name, Karin Coger, ESQ for Esquire.
Dylan Carnahan:Excellent. We'll make sure that all of that is in the show notes for this show. Karin, thank you for sharing your knowledge and time today.
Karin Coger:Thank you for having me. This is so enjoyable.
Dylan Carnahan:That wraps up our conversation with Karin. We talked about how long it takes to get a trademark, copywriting software, and should you wait to release content before copywriting. Go to this episode's show notes to see any resources Karin mentioned during our episode. And lastly, subscribe to the Simple Questions Podcast to get notified when our latest episodes are released. Thank you for listening. And remember to keep asking questions.