Types of Intellectual Property: A Brief Introduction for Artists & Entrepreneurs

‍Artists and entrepreneurs are often told to that their intellectual property (“IP”) is their most valuable asset. But there are many different types of IP with varying requirements for and scopes of protection. It can be difficult to navigate what types of intellectual property you own (or could own) and what steps make sense to take if you’re on a budget. This post offers creatives and startups a brief overview of different types of IP and what each type protects.

1.     Copyright

Copyright protects “original works of authorship fixed in any tangible medium of expression.”[1] This includes writing, music, dramatic works, choreographic works, photography, sculpture, graphic works, film, and architecture. Copyright protection does not include ideas; it protects original expression. An owner of a copyright has the exclusive right to reproduce, prepare derivative works, distribute copies, perform publicly, and display the copyrighted work.

In the U.S., copyright rights attach as soon as the work is fixed; registration with the U.S. Copyright Office is not necessary to enjoy copyright rights. However, there are benefits to registration which may make the application fee worthwhile to an artist or business. The term of the copyright for most works created after 1978 is the life of the author plus 70 additional years. The term of the copyright of anonymous works, works made for hire, and pseudonymous works is 96 years from the first year of publication or 120 years from creation, whichever is first.[2] Special rules apply to works first published between 1923 and 1963; care should be taken to review whether the copyright term has expired for these works.

Examples: The sound recording of and lyrics to “Trying Times” by James Blake.

2.     Patents

U.S. Patents gives inventors the right to “exclude others from making, using, offering for sale, or selling” an invention or import that invention into the U.S.[3] For a patent to be issued, four conditions need to be met: (1) the invention must be able to be used, not merely a theory; (2) there must be a clear description of how to make and use the invention; (3) the invention must be something that has not been done before; and (4) the invention must not be an obvious change to something existing according to someone in the relevant industry. There are three types of patents in the U.S.: utility, design, and plant patents. Patent applications and issuance are required for all types of patent protection. Utility and design patents are discussed further below.

a.     Utility patents

Utility patents may be awarded to “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.”[4] Utility patents have a term of up to 20 years from the filing date of the first non-provisional application.[5] The United States Patent and Trademark Office (“USPTO”) charges an application fee and maintenance fees to obtain and maintain a patent.

Examples: A new type of chemical formula or engine.

b.     Design patents

A design patent may be awarded to “any new, original and ornamental design for an article of manufacture.”[6] The design must be applied to or embodied in an article of manufacture; a claim to a picture or print along is not proper subject matter. The design must not be purely dictated by function. Design patents have a term of 15 years from the date of grant.[7] The USPTO charges a fee for design patent applications.

Examples: The ornamental designs on a chair or shoes.

3.     Trademarks

‍Trademarks are devices (such as words, logos, product packaging, sounds, and colors) that identify the source of a good or service and distinguish that source from other sources.[8] Trademark owners can stop others from using a confusingly similar mark in connection with related goods or services. A trademark is always connected to specific goods and/or services sold to consumers under the mark. A generic term cannot function as a trademark.

‍In the U.S., trademark rights are created upon use of the mark in commerce with the associated goods and/or services. Registration with the United States Patent and Trademark Office (“USPTO”) or a state is not required for a trademark to exist. However, there are benefits to federal registration which may make the application fees and process worthwhile.

Example: COCA-COLA for soft drinks.

4.     Trade Secrets

‍ A trade secret is generally information that has value in remaining secret and for which the owner has taken reasonable steps to keep secret.[9][10] For example, information pertaining to business information, codes, formulas, and/or prototypes. Most U.S. states have adopted the Uniform Trade Secret Act (“UTSA”). The states that have not adopted the UTSA evaluate trade secrets according to their own law, which defines trade secrets in a similar but not exact fashion as the UTSA.

‍ There is no registration process for trade secrets. The costs associated with this form of IP are those involved with taking reasonable measures to keep the information secret.

Examples: The Coca-Cola formula.

5.     Name, Image and Likeness

‍Name, image, and likeness (“NIL”) rights do not currently fit perfectly into any existing IP framework. There is no one law that covers NIL. Rather, NIL rights may be protected with a mixture of existing federal and state laws including, but not limited to state rights of publicity, state data protection laws, federal unfair competition law, and federal trademark law.

Most of these laws pertain to lawsuits that a person or business can bring if their NIL is being used without their consent. For example, someone may bring a false endorsement lawsuit under unfair competition law if a business uses their name, image or likeness in a way that suggests an association between the person and business where none exists. Or, a person may bring a state right of publicity lawsuit if an entity uses their name, image, or likeness in an advantageous way without their consent. A person’s name or likeness can develop into a trademark with proper use. Some artists and public figures may choose to register their name and/or likeness as trademarks.

If you are an artist or entrepreneur with questions about what types of IP you own and strategies for protecting IP, we invite you to book a Consultation with us!

[1] 17 U.S.C § 102(a).

[2] 17 U.S.C. § 302.

[3] 35 U.S.C. § 154(a)(1).

[4] 35 U.S.C. § 101.

[5]  35 U.S.C. § 154(a)(2).

[6]  35 U.S.C. § 171(a).

[7]  35 U.S.C. § 173.

[8] 15 U.S.C § 1127.

[9] 18 U.S.C. 1839(3).

[10] Legal Information Institute, trade secret, https://www.law.cornell.edu/wex/trade_secret (last visited Mar. 20, 2026).