Three Ways to Protect Your Original Idea by Michelle Kaminsky, Esq.

Three Ways to Protect Your Original Idea

There are different ways to protect original ideas. The method you choose depends on the kind of idea you have.

by Michelle Kaminsky, Esq.
updated September 04, 2020 · 4 min read

Woman writing in notebook by window

You're ready to unleash your blockbuster idea. You're convinced it will fund your retirement handsomely, and even your muse will get a cut. How can you make sure nobody steals your richly-deserved rewards?

It all depends on your idea which is also called "Intellectual property," (IP). IP includes almost any kind of original creation—a novel, a logo, a song, or a new process for developing film.

Which Kind of Protection Does Your Idea Need?

Legal protection falls into three basic categories: copyrights, trademarks, and patents.

  • Copyrights cover tangible artistic, musical, and literary works, such as paintings, lyrics, books, photographs, etc.
  • Trademarks apply to words, names, or symbols intended to identify and distinguish goods or services of one manufacturer from another.
  • Patents protect inventors' rights to their inventions; inventions which can vary from machines to chemical compounds and even plants.

Some ideas may require a combination of protections and copyrights, trademarks, and patents alone will not provide international protection of your property.  But, if you register in the United States, certain treaties and agreements will make protection abroad much easier.

About Copyrights

If you have an original idea, such as a premise for a screenplay that you've written a summary of, congratulations! Your work is copyrighted.

Copyright protection attaches when an original work is set into tangible form. What does that mean? A tangible form can be anything from recording dance steps on a DV recorder to putting music notes down on paper.

Once accomplished, you alone have the sole right to produce and reproduce your work.

In the U.S., there is no requirement to register your creation. There are, however, advantages to registration with the U.S. Copyright Office.

Registration allows you to establish a public record of your copyright, which can help support any potential infringement claims.

The registration process differs according to the type of material produced, but always involves sending a copy of your work and a processing fee.

The duration of a copyright varies according to when the work was created and registered, but normally it exists for the author's life, plus 70 years.

About Trademarks

Like copyrights, you are not compelled to register your trademark for protection. Use of the mark gives you rights to it. However, registering your trademark with the U.S. Patent and Trademark Office offers significant benefits.

With registration, the public is on notice that you own the mark. The law presumes it is yours and you gain the exclusive right to use the registered mark on the goods or services identified in the application, meaning that others cannot use a confusingly similar mark.

The process for registering a trademark is more complex than a copyright, so it's wise to make sure your application is professionally prepared.

Approval of a trademark (which includes a renewable 10-year term of validity) can take months or even years.

About Patents

According to statute, any person who "invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent" from the U.S. Patent and Trademark Office.

To protect your invention, you must apply for a patent. Unlike copyrights, there is no such thing as an automatic patent.

Obtaining a patent can be slow and costly, taking up to 2 years and costing in the six figure range.

Provisional Patents

For "utility" inventions, there is an alternative initial protection: a Provisional Patent. This application has few requirements, making it faster and easier to file, while providing a priority filing date and a "patent pending"status for 12 months.

During this time, you can more freely discuss your invention, test its potential and seek funding while deciding whether to commit more time and money toward the patent.

You also preserve the right to patent your invention should anyone else try after you.

Be aware, however, that a provisional application lasts for 12 months during which you will need to file the non-provisional application to complete your patent filing process. The Patent Office does not grant extensions.

While it may take years until your patent is granted, protection attaches upon filing the application. Accordingly, file as soon as possible.

With a patent, which lasts for 20 years, you have "the right to exclude others from making, using, offering for sale, or selling" your invention in the U.S. or "importing" the invention into the country.

The Trade Secrets Law

If your idea doesn't qualify for a patent, you can still seek protection under the trade secrets law if it's a secret and provides a competitive advantage.

A classic example is Coca-Cola's soda recipe—still a closely guarded secret. If you aren't sure which category applies, check out the FAQ pages on the web sites of the Copyright Office and the Patent and Trademark Office.

What Happens if Someone Steals Your Idea?

If infringement occurs, it is up to you to enforce your copyright, trademark, or patent. The respective government agencies are hands-off after registration.

To guard against disputes over authorship or inventorship, you should keep early drafts of your work and detailed records of the development of your ideas, including anyone you've shared it with along the way.

As you can see, registering your blockbuster idea with the appropriate governmental agency can help ensure that it remains your property—and that your all-important muse is kept happy.

Make sure your work is protected START MY REGISTRATION
Michelle Kaminsky, Esq.

About the Author

Michelle Kaminsky, Esq.

Freelance writer and editor Michelle Kaminsky, Esq. has been working with LegalZoom since 2004. She earned a Juris Docto… Read more