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Listen, Do You Want to Know a Secret?

When we talk about intellectual property law, we usually are discussing three main areas of intangible property rights: copyright, the law of creative expression; trademark, the law of commercial names and designations; and patent law, the law of novel, functional inventions. There they are, the Big Three, each with elaborate Federal statutes and administrative agencies to oversee them, specialized lawyers, and commonly-held misperceptions.

There's one more area-the overlooked red-headed step-child of intellectual property law. It covers the intangible stuff that doesn't qualify for protection under the Big Three. This is the Trade Secret Law, and my apologies to any red-headed step-children out there reading this article. It's just an unfortunate, but oddly stirring and effective, figure of speech.

Ideas aren't protectable. The manifestations of ideas, be they books, inventions, or whatever, are. But if you have a great idea for (a cure for cancer, nose hair removal, hangover remedy, etc.) the best way to protect your idea is to not tell anybody about it, because no law out there is going to help you once you do. If you start running around telling anybody who'll listen about your great idea, if the idea is indeed all that you think it is, the idea will spread virally, and before you know it, somebody out there will put it into practice. And there is nothing you can do to stop them. I get a steady stream of calls from people who have great ideas for products, for games, for teaching methods, for all sorts of things, and they want me to help them protect their ideas. I have to share the sad news that they can't.

There's good reasons for this. Intellectual property laws don't exist, at their philosophical core, to create property rights for people. Rather, they exist to encourage activity in the arts and science for the public good. To get protection, you have to produce something in order to invoke the statutory protections of IP law, which generally gives the creator/inventor a limited monopoly to then exploit the new thing.

But not telling anybody about your idea is profoundly unsatisfying, to say the least. So how do you get your brilliant idea out there and not get screwed in the process? I generally tell clients they have two choices:

1) Develop your idea: Not too obvious, huh? If you have something tangible that represents your idea, you probably will have something that will be entitled to copyright or perhaps even patent protection. Say you've developed a board game-perhaps the basic contours of game aren't protectable, but your game pieces, the design of the board, and the verbiage of your directions are likely things that are covered by copyright. Even if your basic idea or concept remains unprotectable, at least you have something that nobody can legally copy and that you can take to market, several steps of anybody else who latches on to your idea and tries to run with it.

And you can brand what you've developed, using trademark law to at least protect your brand. Give what you've created a name, and if you can hit the market just right (and yes, this is a very, very big if), your branded creation becomes the original, the first one, the marquee thingee, maybe even a status item. In our consumer culture, you really can't underestimate the value, the cache, of branding, and of being there first. There's plenty of perfectly fine inexpensive high-tech office chairs out there (I'm sitting in one right now), but there's only one Aeron Chair. There's dozens of sleek and cheap MP3 players you can buy, but you'll label yourself a big, dumb loser in the eyes of your teenager if you have anything but an iPod.

2) Pitch your idea to a targeted company: This is where things can get dicey. As I've already said, if you start broadcasting your idea to anybody who'll listen, soon it will be everybody's idea. Same thing, especially, if you tell one person in a company that's good at making the sort of thing you describe.

So, the preferred course of conduct is to try to get the targeted company to sign what's called a confidentiality agreement, which says, basically, "If I show you mine, you won't steal it." "Try" is the operative word here, because many companies just won't do it. Whether these companies are just being jerks or are trying to protect themselves from the inevitable crank lawsuits that hit them every time they introduce a new product is a fair question. (Not that I'm rushing to these companies' defense, but I've had my share of people coming to my office claiming to have created something that later became wildy profitable for somebody else, and a good number of these people were just plain nuts.)

If a company does agree to sign a confidentiality agreement, it usually will be a standard agreement that they provide. And some that I've seen are what I'd call "empty catsup bottle" agreements: they look substantial at first, but you smack 'em around a little and realize there's nothing in there. Generally these agreements say that the company agrees to meet with you, and if they decide to take your idea and run, they'll agree to "good faith negotiations" to license the idea from you. Then comes the fun part, the exceptions. They won't play ball with you if they, in their sole discretion decide that your idea is "obvious", or if they decide, in their sole discretion, that your idea is "substantially similar" to something that's already out there, or if they decide, in their sole discretion, that they've already thought of something "substantially similar" to your. And they might even ask you to waive any rights you might have to sue them for almost everything in return for taking a meeting with you.

Uh-oh. Agreements like this are not much different than having no agreement at all. You've got the smiling legal department of a big faceless company saying "Trust us!" What do you do?

If you really believe it's the right company and your idea is the right idea, you take the meeting. You hold on to every email, every letter, and you take notes of every phone conversation. You have a lawyer or business consultant look everything over, and have them go with you to the meeting. Like my suggestion #1 above, you develop the idea as far as you can, building a prototype if possible, or at least have a professional looking graphic representation of your idea. Put a copyright notice on whatever you are going to show; even better, register the copyrights with the Copyright Office. Then you hold your nose and take the meeting.

The more developed your idea and professional your presentation, the more likely you're going to be taken seriously and the less likely you're going to be ripped off. As I often tell clients, most long standing, successful businesses don't stay that way for long by brazenly ripping people off. But on the other side of the coin is the adage from our pal Mr. Balzac: "Behind every great fortune there is a crime."

It's a Hobson's choice, but this is the way of the world. There's really only one way to ensure absolutely that your brilliant idea will never, ever get stolen from you: that's by never telling a soul about it.

© 2007 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.