Photo from sierra-arts.org
Last week, I spoke with a client who had discussed the new book she was working on with a “friend.” That friend then took the idea, and discussed it with another writer who writes about the same industry. The second writer though it was a fantastic idea and is not considering writing a similar book. The client wanted to know what she could do in this situation to protect her idea. Unfortunately, I had to tell her that she may have let the cat out of the bag too early.
To understand why she slipped up, we need to discuss briefly copyrights, trademarks, and patents and why they won’t protect the idea and nondisclosure/confidentiality statements.
Copyrights protect original works of authorship fixed in a tangible medium of expression. A copyright protects protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. Enough with the legalese, what does this all mean to the client? The client’s rights to the book are protected by copyright, her actual written words that she formed from her idea. The second writer can’t take her words and pawn it off as her own, but she can take the idea, put it in her own words, then sell the book without worrying about copyright infringement.
A patent protects inventions or discoveries, not an intangible idea. Trademarks protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others. So, if she had a publishing company, the client may want to trademark the name of the company, but that won’t help to protect her literary work.
Since none of the government’s protections of intellectual property would help the client out here, what could she have done? The best legal solution is a nondisclosure or confidentiality agreement. This is a contract, hopefully drafted by an attorney, which prevents the person receiving your idea from discussing it with a third party. You should check to see whether or not your confidentiality agreement has a penalty provision that states what happens when the person who was sworn to secrecy decides to spill the beans. This is the “teeth” of the agreement. Unfortunately, the client in this scenario didn’t have such an agreement in place, and there isn’t much that could be done after the fact.
While a confidentiality agreement is the best legal solution, the best practical solution is to just not tell anyone about your idea. Then, once you’re ready to market your idea, make sure you do it so well that it makes it hard for anyone else to compete. Most of the time, a solid business sense works much better than the law.