Is Your Intellectual Property Truly YOUR Intellectual Property?

Is Your Intellectual Property Truly YOUR Intellectual Property? by Pat Werschulz

Today I’m going to go on a little bit of a rant about some misconceptions people have about intellectual property.

There is a database directory of lawyers called AVVO that allows people to post questions of a general nature to lawyers. Then, different lawyers can choose to answer those questions. The questions are usually sorted according to the type of law that the person is asking about. AVVO recommends that the questions be of a general nature and not specific to your circumstances, because if you have specific circumstances, you really should engage an attorney. However, people seem to break this rule, trying to get free legal advice.

I often read the questions for intellectual property. What’s disturbing is the general theme of all of these questions. They all start out with “Can I take…?” They usually refer to a famous logo, maybe a famous Disney® character:

  • Can I take the NFL logo and put it on a baseball hat because it’s a baseball hat and not football?
  • Can I take Star Wars® characters and make cartoons of them going to a regular high school and show the cartoons on YouTube®?  
  • Can I take downloaded copies of photographs of famous people and print them on tee-shirts?

They take something that’s pretty well known and seek to modify it, then put it on a t-shirt, coffee mug, or try to sell it on Amazon®—you name it. They have all these great ideas for starting a business, but notice how these questions always start with: Can I take…?

Well, no, you may not! You cannot, and may not, take other people’s property. There’s no scheme within the intellectual property laws that allow you to take somebody’s trademarked or copyrighted material, modify it, and then slightly use it. You can’t do that. It’s called taking. Taking is another word for stealing.

Almost 90% of the questions start in this manner. Just because we have the technology to easily steal, copy, and manipulate other people’s intellectual property does not mean it’s okay to do so.  

Usually, the other follow-up question is: Isn’t this fair use? Well, the laws about what is fair use are fairly narrow. How do you determine whether your use is “fair use?” When you’re in court defending your use as fair use, and the judge or jury decide, you’re already in trouble. It doesn’t matter if you do not charge or are a non-profit. That’s only one of four factors.

Word to the wise: Don’t start your business by taking somebody else’s intellectual property and using it to build a business.

Patricia Werschulz

Patricia P. Werschulz
Werschulz Patent Law, LLC
23 North Avenue East
Cranford, NJ 07016
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