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What the Winklevoss Twins Can Teach You About Copyright & Intellectual Property So You Don’t Get Zuckerberged

Photo Credit: Cameron Winklevoss at the 2008 Beijing Olympics by Johnnyroee used under CC BY 3.0

Photo Credit: Cameron Winklevoss at the 2008 Beijing Olympics by Johnnyroee used under CC BY 3.0

Do you remember the movie “Social Network” that came out in 2010?

The movie’s main story line revolved around a toxic business relationship and intellectual property dispute that arose between Tyler and Cameron Winklevoss, known to the world as the Winklevoss twins, and the future owner of Facebook, Mark Zuckerberg.

The Winklevoss twins were students at Harvard and had hired Zuckerberg as an employee to work on the software of their social network business model and brand “UConnect.”

The twins would later claim that Zuckerberg stole their business model “idea” when he formed his own social network site “Facebook.” The twins sued Zuckerberg in federal court netting them millions of dollars in damages.

Ideas Are Not Copyrightable

Everybody knows that ideas are not copyrightable.

Does that mean then that whenever you have a brilliant and innovative idea for a business, a novel, a car design or have any other flash of true genius in the form of a concept or design that there is no law in place that can work to protect the intellectual property rights in your “idea”?

Is there no way to stop your “idea” from being stolen out from under you by trusted employees or other double dealing interests in situations similar to that of Mark Zuckerberg and those innocent and trusting Winklevoss twins?

The answer is that although the Winklevoss twins may have been “Harvard smart” students at the time of the famous “idea” stealing incident they were pitifully stupid or just plain lazy in terms of knowing how to protect their business interests and intellectual property rights.

Had the Winklevoss twins bothered to take the time to research the issue they would have found that intellectual property rights in ideas are highly protectable when the correct legal modalities are used to invoke that protection.

How to Protect Your Intellectual Property Rights in an Idea

There are many, many situations where a business finds that it needs to share confidential information concerning proprietary business ideas and similar information with employee and contractors in order to further business objectives.

The most effective method to protect an idea from unauthorized exploitation by other interests is to require any individuals given access to confidential information to sign, prior to any disclosure, two documents, the first is called a “covenant not-to-compete” and the second is called a “non-disclosure agreement.”

If the Winklevoss twins had asked their UConnect employees, such as Mark Zuckerberg, to sign those two types of agreements they would likely have had the evidence needed to prove their allegations “idea” theft.

Smart inventors and entrepreneurs know that all it costs to protect a “zillion dollar idea” is the insignificant amount of time and money needed to go online, go to a local law library or a local legal stationary store and buy or copy a generic “Non-Disclosure Agreement” form and a generic “Covenant Not-to-Compete” form.

It is solid business practice to require anyone with whom proprietary business information is shared to sign those types of agreements prior to making any confidential disclosures.

It is always a good idea when using generic agreement forms to read the documents carefully and if necessary adapt the wording slightly to more precisely cover your specific business and your particular “idea” or other confidential disclosures.

Non-Disclosure Agreements

A non-disclosure agreement is probably the most common and effective method of protecting any and all ideas from being stolen or otherwise exploited by others.

These agreements can be completed between a business entity or an individual and his employees, independent contractors and all other third party interests in a project.

The general purpose of this agreement is to maintain the confidential status of a project by preventing unauthorized disclosure concerning all aspects of a particular idea or other proprietary model or concept.

The agreement usually specifies the name of the disclosing party and the party receiving the confidential information and it will usually survive the relationship of the contracting parties, good or bad, to continue in full force and effect regardless of whether or not the idea is actually used or purchased.

For those seeking to protect their idea from unauthorized exploitation this is the most complete and effective means of achieving that goal.

Covenants Not-to-Compete

A covenant not-to-compete is an agreement that restrains a person from engaging in a similar competitive business.

These contracts are often regulated by State law and depending on the law of the State of contracting the agreement may not be allowed if it is worded in a manner that results in a restraint on trade.

However, many State courts find that the use of this type of agreement is completely permissible when used to prohibit an employee or contractor from misappropriating or “stealing” from an employer his proprietary business information such as branding models, ideas, inventions, customer lists and trade secrets.

Patent Law

Some ideas but not all ideas are eligible for the legal protections available under patent law.

In order to gain access to patent protections the idea or design must be able to meet patent eligibility requirements and an application must be submitted and ultimately approved by the United States Patent and Trademark Office.

A patent is a legal right, for a limited in time, to exclude others from using, selling, or making an invention or discovery as described in the patent.

For an invention or design to be patentable it must be useful, novel, not obvious and it must fall into one of four classes of patents which include, a useful process, a machine, a manufacture, a composition of matter, and lastly, any new and useful improvement to a useful process, machine, manufacture or composition of matter.

Evaluation Agreements

An evaluation agreement is sometimes called a “submission agreement” and it works to protect ideas that need to be submitted to others in some sort of evaluation process.

For example if someone had an idea for a TV show and wanted to submit that idea to a TV network associate in order to afford consideration of the proposed idea then that person might sign a submission agreement to initiate the evaluation.

This type of agreement allows one person to submit his idea for review while the other promises to evaluate the idea, opt for further exploitation of the concept and still agree not disclose the concept to others.

This agreement will be valid if the idea was actually solicited by the receiver of the disclosures and where there was a reasonable expectation of compensation by the disclosing party if the idea was subsequently used.

Many publishing companies have stock submission agreements available to those seeking to submit work for review.

As always, it is vital to carefully read any stock submission agreement before signing it in order to be sure that the rights of both parties are properly and fairly represented.

There are many legal methods of fully protecting our valuable and innovative ideas.

The Winklevoss twins really missed the boat when they failed to take the simple steps need to protect their business model “idea” from exploitation by duplicitous employee interests such those of Mark Zuckerberg.

However, don’t feel too bad for the twins, they hired lawyers that successfully took Facebook and Zuckerberg for millions on appeal despite the adverse effects of the twins undeveloped and inept business skills.

Because you don’t want to be Zuckerberged and you care about navigating copyright & IP smartly follow us on Twitter.

About the Author: Christine Varad is the principal writer and editor for Varacolors. She earned her JD in law from New England Law and holds a BFA from Massachusetts College of Art and Design. As an artist and a lawyer she has a long standing interest in Intellectual Property law and protecting the rights and interests of the writers and visual and performing artists the law was designed to protect.