Core Copyright

Lawyers and lay persons alike often conflate copyright with “intellectual property.” Later, I will attempt to define copyright — a proposition that is a bit more complicated than one may think — but in doing so, it is important to explain what copyright is not. To this end, it is important to explain why copyright is not the same as intellectual property.

It remains a bit surprising that “copyright” and “intellectual property” often are used interchangeably, even by lawyers who practice in one or more areas of intellectual property. In his book Copyright’s Highway, Paul Goldstein tells a story involving the legendary copyright lawyer and professor Alan Latman that captures the frequency with which these two terms are confused.

According to Goldstein, Latman once told a group of intellectual property specialists that most people -– even at times judges –- often do not know the difference between copyrights, patents and trademarks. “When I tell a general practitioner that I am a copyright lawyer, he immediately corrects me: ‘You mean patents!’ He then says, ‘Well, anyway, as a patent lawyer you can copyright a name for me, can’t you?’” The subtle joke is that you cannot receive copyright protection for a name or title (but you can receive trademark protection for a name).

In summary, “intellectual property” is a name that describes a class of several different legal regimes that generally concerns creations of the human mind. Copyright is but one of the legal regimes that fall under the umbrella of intellectual property.

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