If your business or project is going to build on something that someone else has done, you’re going to need to proceed with caution. You might have some kind of an understanding with the owner (or who you think is the owner) of the idea, technology or content; or you may think that the owner is “cool” about the “borrowing” and would never actually enforce his or her rights; or you may think what you’re “borrowing” is already in the public domain.
Nevertheless, you need to proceed with caution. The owner’s understanding of your understanding might not be the same as yours. The owner may not be who you thought. The owner might not be as “cool” as you thought, especially once you become more successful than him or her. Or the owner might be perfectly “cool” about it, but he or she might sell the company, die or retire, and someone whom you don’t know at all is now in charge, and that someone might be decidedly less “cool” about it.
Aaron | Sanders PLLC brings years of experience in identifying the legal traps both owners and creators can find themselves facing, sometimes within the same project. Contact us to see how we can help you avoid them.
The first step is to determine whether what you want to use is protectable. Not everything is protected by intellectual-property laws. (For a brief primer of IP protection, click here.) The ideas you want to use might be subject to an expired patent and is thus usable by anyone. Or you may be borrowing so little that the law won’t recognize it. Or what you’re borrowing might be subject to fair use or the First Amendment right to free expression. Or you might be able to acquire an enforceable license almost for free. Or what you thought was open source wasn’t as open as you thought.
If it’s determined that what you want to use is probably protectable, then you have a tough choice to make: seek a license, work around what’s protectable, or take your chances. Obviously, licensing is the safest thing to do because, at that point, everyone will be clear about what you can and can’t do.
Working around is less safe because you’re likely to still be pretty close to what you’re trying to avoid, and you might miscalculate. Taking your chances, of course, is the riskiest choice, though the risk often doesn’t manifest until you’ve become successful. If you’re planning for success (and if you’re not, then what are you doing?), you’ll want to take care of these issues now before you become a target.
Having said all that, it’s impossible to be aware of and account for every item of intellectual property that might possibly be applied to your business or project. There are millions of patents and countless copyrighted works and trademarks. Alas, ignorance isn’t a defense, but fear of unknown IP shouldn’t deter you too much—just be aware of the risk and do what you can to minimize it.