Trademarks, Copyrights, and IP...oh My!

Written by Joey Novick – This article is from AIM Issue 2 (released November 2023).

I have attended a bunch of AIN conferences...

And conducted informal “legal clinics” for speakers and facilitators during the Open Spaces. The top question is always: “How can I protect the work I have created?” Great question! While each matter is naturally sensitive to the specific facts, I can offer you a map to guide you in your business planning.

Intellectual property (commonly referred to as IP) refers to creations of the mind: In our field of Applied Improvisation (AI), your IP is your workshops, programs, books, articles, recordings, slides – anything that is your own unique and original creation.

You can protect your work in two ways: by registering your trademark and registering your copyright. Let’s start with definitions, so we know what we are talking about.

A trademark is any word, phrase, symbol, design, or a combination of these things, that identifies your creative work as an AI practitioner. It’s how clients distinguish you from your competitors. Examples of trademarks in our industry are “Playfair” (Matt Weinstein’s company), “The Improvisational Lawyer” (me), and “Applied Improvisation Network” – all of us as an organization.

Copyright protects any original work of authorship that is fixed in a tangible form of expression. This includes photographs, illustrations, music, recordings, computer programs, books, poems, blog posts, movies, workshops, plays, and much more.

As an AI practitioner, once you have delivered a program, given a lecture, written an article or a book, it’s definitely time to plan to protect your creative work. The result of your creativity is who you are - and is what separates you from the pack. If you’re making money from your creativity, you’d be well advised to protect yourself.

There are interesting variations between the EU and the USA, so let’s explore those in more detail.

Trademarks in the European Union (EU)

In the EU, two main pieces of legislation govern trademark protection: the Community Trademark Regulation (CTR) and the Directive on the Harmonisation of the Laws of the Member States relating to Trade Marks (Trade Mark Directive).

The CTR has established a handy single registration procedure for trademarks that are valid throughout the entire European Union, providing protection against any unauthorized use of the trademark within the EU.

The Trade Mark Directive harmonizes the national trademark laws of EU member states. As an AI practitioner, this gives you greater consistency and certainty about the legal framework across the EU.

Trademarks in the United States

In the US and Canada, the big thing for AI practitioners to watch out for is theft via the internet. It’s mind-numbingly easy for anyone to search Google, ”click here” and voila – thousands of works to choose from and copy – one of which could be yours. Law-abiding citizens, remember: Just because something is on the internet, does not mean you can use it!

This was certainly what made the difference for such AIN members as Matt Weinstein and “Playfair”, as his workshops for colleges and corporations are all over the net. He has been diligent in protecting his IP with a long-time trademark registration. So it would be unwise to play unfair with Playfair!

The protection of trademarks in the United States is primarily federal law. Federal trademark laws are administered by the United States Patent and Trademark Office (USPTO), which examines and grants trademarks to eligible applicants.

To be eligible, your mark must be distinctive, non-generic, and not confusingly similar to other registered marks. A trademark can take many forms, including logos, slogans, and product names. You also have to provide evidence of your intended or current use of the mark in commerce.

For the AI practitioner, the primary benefit of trademark protection is the exclusive right to use the trademark in connection with your programs. This right provides legal protection against infringement by others and helps prevent the use of similar marks that could dilute the value of your trademark. You are also well-placed to license or sell trademarks to other businesses.

Copyright in the United States

Copyright protection is a fundamental aspect of intellectual property law in the United States. It refers to the legal rights given to the creators or owners of original works, allowing them sole authorization to control the use and distribution of their works. The Copyright Act grants the creators exclusive rights to reproduce, distribute, display, perform, and create derivative works of their original creations. Copyright is seen as so important that it is enshrined in the Constitution in article 1, section 8, clause 8.

In the United States, copyright protection is automatic and granted to the creator of an original work as soon as it is fixed in a tangible form, like a manuscript, recording, or photograph or – for the AI practitioner – a lecture, program, book or article. But it needs to be registered if the owner wants to monetize (such as selling a book) or license their work. For works created after January 1, 1978, copyright lasts for the life of the creator plus 70 years.

AI practitioners can rely on this copyright protection to safeguard their works from unauthorized use and exploitation by others. Infringement of copyright occurs when someone uses, copies, or makes derivative works from a copyrighted work without your permission.

This includes posting copyrighted content online, creating copies of books, lectures, workshops, slides or software without your express written permission.

If your client or rival or anyone else steals your creative work, then you can sue them for financial damages, legal fees, loss of income, and theft of your property.

The consequences can be severe – both financially and reputation-wise. Violators of copyright may be sued for damages and forced to pay monetary compensation to the copyright holder. In some cases, they may also face criminal charges, heavy fines, and imprisonment. Yup, you can end up in jail for copyright theft!

Copyright in the EU

EU copyright law aims to promote innovation, creativity, and protects the rights of creators by providing them with exclusive rights to their creations. The law ensures that creators receive financial benefits from their creations and that their works are not used without their permission.

This set of regulations, directives, and case law grants the creators of original works, known as rightsholders, exclusive rights to control the use of their intellectual property. This includes the right to reproduce, distribute, communicate to the public, and make derivative works based on their original creations.

One major difference with the United States is that copyright protection in the EU is automatic and doesn’t need registering.

Copyright infringement in the EU refers to actions that infringe on the exclusive rights of rightsholders. This includes using, uploading, or downloading copyrighted works without permission, as well as distribution, copying, import, and export, or selling pirated copies of copyrighted works. Infringement can lead to legal intervention, damages, and compensation for the injured party.

Wherever you are in the world, protecting your IP by establishing rights to your trademark and your copyright is an essential part of planning your business as a trainer, author, facilitator and presenter and – most importantly – as an AI practitioner.