Dear Rich: Nolo’s Patent, Copyright & Trademark Blog

Dear Rich: I developed a new sporting event and would like to find out how I can go about getting it patented or copyrighted? I have read about other types of inventions but not about the development of a new sport. The short answer to your question is that you may be able to patent your new sport but you will have a hard time claiming a copyright. Patents have been issued for new games, (ping-pong poker, anyone?) for variations on existing games (arena football anyone?), and even for competitive techniques within sports (ready to improve your putting?). (You can read more about these sorts of patents in this article.) Under a recent patent ruling a process or method (such as a sport with rules), may qualify for a patent if it affects some hardware -- that is, it is tied to a particular machine, object, or apparatus, or it transforms an object into a different state or thing. In short, as long as your 'invention' includes a physical element such as a football, hockey stick or some other object or hardware, you probably satisfy this requirement. As for copyright, you cannot copyright a system or method (although you can copyright expressions of that game -- for example, a Wii version of the sport, a book about it, or demonstration videos). Of course, the Dear Rich staff notes that your biggest challenge may not be getting the patent, it could be gathering the resources to stop others from playing it without paying you. 

Dear Rich: I have a question. I am starting a fan club for a local racer under his parents' request, and this kid is going to make it big. We have already been invited to NASCAR, but that will be at least 3 years away. His family and I want to protect any merchandise from being pirated and his name being used without his permission. We want exclusive rights to produce any merchandise with his name, car, logo, or anything associated with him. What do we do to make sure that he reaps all the profits and not someone just looking to strike it rich off of his fame? I'm so glad you asked. The short answer to your question is that there's no short answer. The local racer -- assuming he's over 18 -- controls all rights to his own publicity or merchandise under legal principles known as the "right of publicity." (If the racer is not over 18, the parents and the racer can sign over these rights, but the Dear Rich staff recommends a new agreement be made once the racer reaches the age of majority.)  So, it's up to him to decide who has the right to use his image and name, and it's up to him to pursue the bad people who use those rights without permission.

Once he enters the world of NASCAR, he will probably be required to assign (give up) most of those rights to NASCAR and his sponsor. NASCAR drivers make money in three ways: they get a percentage of prize money, a percentage of merchandise sales, and earn money from personal endorsements. It's all part of the modern racing world. (BTW, here's a blog where you can learn a lot of fascinating stuff about the business of NASCAR.)  There's an upside to these deals as well, since the team sponsor or NASCAR will be out there purusing the bad guys (which can be very expensive and time-consuming). Also, keep in mind that should this racer become a superstar, he will be able to set the terms of the deals and choose his sponsors.

Got a question for Dear Rich? Send it to dearrichquestion@gmail dot com, and make sure it has the header: "Question."

Dear Rich: I have a question. Is it true that our church can't show sporting events like football games on our big screen TV? I'm so glad you asked. Rather than give you a lot of legal backstory about non-musical works and copyright legislation (you can read about that stuff in this Slate article), the bottom line is that you'll likely run afoul of the law if your church uses a TV screen larger than 55 inches. If you do "Drive 55" you'll need a public performance license. Of course, if your flock doesn't mind mixing with infidels, you can move services down the street to a tavern with the appropriate licenses. Or you could just wear your fan gear to church and schedule services an hour later. I wish I had time to go into the relationship between contact sports and salvation -- remember the first time an NFL player kneeled in prayer in the end zone? -- but let's save that discussion for our Sunday blog. P.S. Click here for information on how to measure your TV screen size.

Dear Rich: I have a question. How do I get a patent on a golf club? I'm so glad you asked, because coincidentally I was just reading about a design patent for a one-fingered golf glove. As you may know, there are two types of patents associated with golf products: design patents which give the inventor rights over design; and utility patents which gives the inventor rights over the functioning invention. You can learn how to get both by reviewing the patent information at Nolo. Or if you're just interested in golf patents, check out Dave Dawsey's Golf Patents website. Dave (the "Golf Lawyer with a Grip on the Industry") tees off daily with fresh IP golf news.

And, if you've already decided to go ahead with applying for a patent for your club, you might find Nolo's Patent Pending Now! software useful for filing that all-important provisional patent application, or PPA.