10 questions before you try to protect your work

Ten beliefs shape most first decisions about protecting creative work, brands and inventions. Answer all ten questions for yourself before you read the explanations. The ones you hesitate over are where to start.

The ten questions

1. Do you think your work has no copyright until you register it?
2. Does paying someone to create a logo mean you own its copyright?
3. If a domain name is available, does that make it a safe brand name?
4. Can you own an idea in the same way that you own the words or drawings expressing it?
5. Would one registration protect every valuable part of a product?
6. Can you safely show an invention publicly and sort out patents later?
7. Does patent pending mean an examiner has decided your invention deserves a patent?
8. Is calling something confidential enough to make it a trade secret?
9. Once you receive a registration certificate, is the protection work finished?
10. Does protecting your work mean keeping other people from using it?

Once you have answered all ten, read on.

Treat a project as several parts, not one thing. A cookbook contains writing, photographs, a series name and perhaps a confidential production method, and each part is protected in a different way. For every answer below, first name the part you are talking about.

The answers

1. Do you think your work has no copyright until you register it?

No. Copyright exists automatically in an original work by a human author once it is fixed, for example when you write the poem down or record the song 1. It comes from the federal Copyright Act, not from a certificate 9. A sketch you made years ago has an owner: you. Registration matters when you need to enforce. For a U.S. work you cannot file an infringement suit until the Copyright Office has registered or refused your claim, and statutory damages and attorney's fees are available only if you registered before the infringement began or within three months after first publication 10. Register online in the Copyright Office's electronic system (eCO) through its registration portal 11; current fees are on the Office's fee page 12. The steps are in Your first U.S. copyright application.

2. Does paying someone to create a logo mean you own its copyright?

No. A café pays an independent artist for a logo and receives the file. Owning the file or the original artwork is not owning the copyright 2. A transfer of copyright is valid only in a writing signed by the owner, here the artist 2. The other route, "work made for hire", makes the commissioning party the author from the start, but it covers only employees working within their job and nine listed kinds of commissioned work, such as a contribution to a collective work, a translation or an instructional text, each with a signed written agreement 9. A stand-alone logo from an independent artist is not on that list. So when you commission a logo, ask for a short signed assignment of the copyright to your business. That is a friendly conversation, not a sign of distrust. In the same document, settle whether the price covers future packaging, changes by another designer, and resale of the artwork. More in Who owns work made by employees and freelancers.

3. If a domain name is available, does that make it a safe brand name?

No. An open domain only tells you nobody has registered that web address. Trademark rights come from use: a business that uses a name for its goods or services has rights in the area where it trades, even without a federal registration 3. Picture two nearby bakeries with similar names: customers meet storefronts and delivery apps, not databases. A common reason the USPTO rejects an application is likelihood of confusion, meaning customers are likely to think your goods or services come from the same source as an existing mark's 13. Before you commit to a name:

1. Search the USPTO's Trademark Search system for the same or similar marks used for related goods or services 13.
2. Search state trademark databases, business name databases and the internet, because a USPTO search shows only federal applications and registrations 313.
3. If you plan to trade beyond your local area, apply for federal registration: it gives you rights across the whole United States, while use alone protects only the area you trade in 3.

More in Choosing a name you can grow with.

4. Can you own an idea in the same way that you own the words or drawings expressing it?

No. Copyright never protects an idea, procedure, process, system, method of operation, concept, principle or discovery, however it is described or illustrated 9. It protects your expression. Two people can write very different stories about someone who discovers a hidden city; neither owns the premise, and each owns their own text. A book explaining a new food-processing system stops others from copying its text and illustrations, but not from using the system itself 4. Inventions are a matter for patent law, not copyright 4. The rule also works in your favor: shared ideas leave room for your own work. When something feels copied, compare what actually traveled from one work to the other, the specific words, images or arrangement, not the premise.

5. Would one registration protect every valuable part of a product?

No. Each part of a product has its own route. Take a distinctive lamp: its original instructions and illustrations are covered by copyright 1; its brand name is a trademark 3; a new mechanism is a candidate for a utility patent, and a new ornamental shape for a design patent 5. Registering the logo does nothing for the mechanism. A patent gives you the right to stop others from making, using, offering for sale, selling or importing the invention; it does not give you permission to sell your own product 5. List the parts, mark the ones that matter commercially, and protect those. You do not need every right available.

6. Can you safely show an invention publicly and sort out patents later?

Not safely. A public disclosure, including a publication, public use or offer for sale, starts a one-year U.S. grace period: file within 12 months or lose the right to patent the invention in the United States 6. The same disclosure, although protected in the U.S., can stop you getting a patent in other countries 6. "I have a year" is a U.S.-only rule. The disclosure that counts can be a demo video, a conference paper or a price quote to a customer; anything made available to the public qualifies 6. In order:

1. Decide whether you want patents, and in which countries, before you show the invention.
2. If you do, file at least a provisional application before the first public demo, paper or sale. It sets your U.S. filing date and starts the Paris Convention priority year for filing abroad 6.
3. Until then, talk about the problem you solve, not the mechanism.

Have a patent attorney or agent registered with the USPTO review your plan before that first disclosure; a mistake here can cost you the patent outright, and the USPTO itself tells applicants new to patent law to consult one 6. More in Before you show an invention to the world.

7. Does patent pending mean an examiner has decided your invention deserves a patent?

No. "Patent pending" means an application has been filed, not that anyone has approved it. A provisional application lets you use the "Patent Pending" notice for 12 months, but it is never examined on its merits and never becomes a patent by itself 6. To keep its benefit:

1. Put a complete written description and every drawing needed to understand the invention into the provisional. You cannot add them later, and the claims in your later application must be supported by what you filed 6.
2. File it in Patent Center with the cover sheet (form PTO/SB/16) and the filing fee 6; current fees are on the USPTO fee schedule 14.
3. File the nonprovisional application within 12 months. That period cannot be extended; filing up to 14 months after the provisional needs a petition stating the delay was unintentional, plus a fee 6.

Provisional applications are not available for design inventions 6. Be wary of anyone selling a provisional as a cheap patent: the USPTO warns that some invention promotion firms misuse the provisional process and leave inventors with no patent 6.

8. Is calling something confidential enough to make it a trade secret?

No. Information is a trade secret only while it has economic value because others do not know it and cannot find it out by proper means, and while you make reasonable efforts to keep it secret. When either condition ends, the trade secret ends 7. A recipe, a process or a carefully assembled set of business information can qualify. A file stamped "confidential" but shared through a public link fails the second test. Build secrecy into your routine:

• List the information that is actually secret.
• Decide who needs each item, and give access only to them.
• Use a nondisclosure agreement when a partner needs to see something, and show only what that partner needs.

An NDA supports these efforts. It cannot make information that is already public secret again.

9. Once you receive a registration certificate, is the protection work finished?

No. A U.S. federal trademark registration is canceled unless you file maintenance documents on time 8:

1. Between the fifth and sixth years after the registration date, file a Section 8 declaration of use.
2. Between the ninth and tenth years, file a combined Section 8 declaration and Section 9 renewal application, and repeat it every ten years after that.
3. Each deadline has a six-month grace period with an extra fee. Miss the grace period and the registration is canceled or expires.

Registrations made through the Madrid Protocol (U.S. serial numbers starting with 79) file Section 71 declarations instead 8. When you stop using the mark for some of the listed goods or services, delete them, at the latest in your Section 8 or Section 71 filing 8. Current maintenance fees are on the USPTO fee schedule 14. Utility patents have their own schedule of maintenance fees after grant 5. Put every date in a calendar the day the certificate arrives. Then recheck your rights whenever the project changes: a brand expands, a collaborator leaves, a photograph moves into an advertising campaign, or software gains a new component. More in Keeping a U.S. trademark registration alive.

10. Does protecting your work mean keeping other people from using it?

No. Copyright gives you the exclusive right to do certain things with your work and to authorize others to do them 9. You decide who may use it, for what and for how long. An educator can allow free circulation with attribution; an illustrator can license a one-year campaign and keep the merchandise rights; a researcher can publish openly. A nonexclusive permission does not transfer ownership 9. An exclusive license does count as a transfer, so it is valid only in a signed writing 29. Write down what each permission covers, even a generous one. If you want to share openly, read Sharing your work openly on purpose.