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Whether it’s a book that’s going to put War and Peace to shame or an app that’s going to be like Instagram, Lyft, and Candy Crush merged to make one super-app, you know this is the real deal. You also know it’s so great that people are definitely going to want to steal it. The only problem? You don’t know the first thing about the law and have no idea how to protect yourself.
Stress no more. With the help of some amazing intellectual property lawyers, we’ve created a four-step process to make sure your idea gets the protection it deserves.
Before diving in, please keep in mind that this is not legal advice. For that, your best bet is to follow up with an IRL consultation with a qualified lawyer.
One of the most important points to remember is that the law does not protect your ideas (yes, it’s bold-level important). When you’re in the process of bringing your idea to fruition, Shahrina Ankhi-Krol, the founder and owner of Ankhi-Krol Law, a New York City-based boutique law firm focused on the needs of start-ups and small businesses, recommends you “do not discuss your ideas with people without proper safeguards.”
The proper safeguards she’s referring to here are non-disclosure and non-compete agreements. And make sure you’re getting those agreements from real lawyers. “Do not just download one from the Internet,” warns Betty Tufariello, CEO & Founder of IntellectuLaw. “Unfortunately, many of the publicly-available NDAs are unenforceable and therefore useless.”
Once your idea has materialized, it’s time to determine the sort of protection you’re going to be needing. If you have an invention, odds are you need a patent. “A patent is a limited-duration intellectual property right relating to an invention, granted by the United States Patent and Trademark Office in exchange for public disclosure of the invention,” says Ankhi-Kro.
“Patentable materials include machines, manufactured articles, industrial processes, and chemical compositions.” If your invention falls under a more creative umbrella, chances are you need a copyright. “Copyright law protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture,” explains Tufariello.
“Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.”
If you’re filing a patent, get ready for “a relatively expensive and time-consuming process,” warns Judith Szepesi, a founding partner at HIPLegal LLP. “I would never advise someone to file a patent on their own,” adds Barbara Friedman, former chair of the Intellectual Property Section of the State Bar of California. “Obtaining help from a legal professional is critical.”
On the other hand, filing a copyright is a much simpler process. In fact, Kendra Stephen, a business and intellectual property lawyer who helps online business owners protect themselves, explains “your work is protected under common law the moment you create it.” That being said, Stephen warns that you still “need to register it to get the full protection that is provided through the Federal Government.”
But don’t worry too much about that. “Filing a copyright application is much easier and most people can probably do it on their own by just reading the circulars and instruction sheets available on the Copyright Office’s website,” says Friedman.
If you do choose to take any sort of legal action, Ankhi-Kro encourages you to hire an attorney focused on these highly-complex areas of law. Moreover, she suggests you “do your research before hiring an attorney and opt for ‘live’ attorneys instead of automated websites.”
While filing for a patent can be a grueling and expensive process, it’s worthwhile if you truly believe in your idea. “For patents, there is a real risk someone else could patent an idea you came up with and keep you from using your own idea,” says Szepesi.
“Patents primarily have value as sales and marketing tools, and to increase the valuation of your start-up. Failing to protect your innovations may lead to not obtaining funding, or having a lower valuation of your start-up during acquisition or other exits.”
When filing a patent, it’s crucial to determine how much long-term potential your invention has. “For patents, consider how relevant your invention is to your future products and to your competitors,” says Friedman. “Patents take over two years to issue generally. In many areas, the innovative feature you came up with today will not be relevant in six months, much less two years.”
Not only is copyright a less grueling process than filing for a patent, but it’s also less loaded. “For copyright, there is no real risk,” says Szepesi. “If you don’t register your copyright, you may not be able to collect significant damages but that’s the only potential downside.” The important thing to think about here is how realistic it is that people will actually be trying to steal your creation.
If it is very likely, filing for federal protection could save you a lot of money. “When you register your copyright with the United States Copyright Office (USCO) you are protected by a number of legal rights,” says Stephen. “Copyrights granted by the USC have the ability to sue in a federal court, the ability to recover statutory damages up to $150,000.00 for willful infringement, and the ability to recover attorneys’ fees.”
You now have the primer on how to protect your idea. Go forth and prosper, my friends.
This story was originally published on March 26, 2018. It has been updated (and will continue to be updated) to include new tips, advice, and guidance, to ensure we are always giving you the best, most valuable resources.