Intellectual Property Rights and the Hypnotherapist

By Tim Brunson 

Many hypnotists and hypnotherapists as well as others in the integrative health community spend a considerable amount of time writing, communicating, and developing ideas. However, I have never seen any conference or workshop address the nature and dynamics of intellectual property rights. This topic is important for several reasons and therefore should be a mandatory topic for discussion.

Intellectual property laws are designed to protect your creative works, your branding, and your ideas. Conversely, they are not meant to suppress further intellectual development which should occur subsequently. The protection of the rights of the originator and the subsequent developer are similarly important to the evolution of our profession. Should someone attempt to inhibit intellectual property rights by stealing, such as in the form of plagiarism, trademark infringement, or patent violation, then the entire profession (and the public) has been harmed. Civil penalties are designed to prevent such activities. However, should someone prevent further intellectual development by inappropriately trying to enforce a misconceived claim of an intellectual property right, they could also be the subject of civil actions for damage. And, most importantly, they can be found guilty of “restraint of free trade” under the Clayton Act. The latter is a criminal felony punishable by incarceration. This article is meant to give a non-attorney’s opinion of how intellectual property rights apply to the hypnotherapy profession. My thoughts are based on attaining two masters degrees in business, teaching on the faculty of two universities and many years as a business owner and entrepreneur. I have relied heavily on prior legal advice and resources such as the Library of Congress and BitLaw.com. I will discuss my opinion and ideas on how this applies to many aspects of our profession. Intellectual property in the US is covered under three sets of laws. These are copyright, trademark, and patent. Unfortunately, I too often hear and read about the ill-informed throwing around these terms with reckless impunity. The resulting misconceptions lead to threats and retards the development of ideas. And as mentioned above, ignorance of the terms may open the parties to civil and criminal action.

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When someone creates a verbal, written, or audio work then they have the right to profit from their creation for a specific period of time. This is called a copyright. Under the current law you do not have to claim your copyright (or defend it) in order for it to be valid. Violations are handled in civil courts and the penalties, to include court costs, can be very steep. Copyright protection is strengthened if the work is filed with the Library of Congress. However, this does not stop non-filed works from being protected.

While a lot more can be copyrighted than you probably think, there are specific things that cannot. A copyrighted work must be in tangible form. This means that it must be written, recorded, or notated before copyright protection can be expected. When you give a speech, your content is probably not protected. However, if you record or transcribe it, this is a whole different situation. And, titles, names, short phrases, slogans are not copyrightable. This means that “Tim Brunson”, “the Brunson technique”, “You gotta do it the Brunson way!” are not covered by copyright laws.

Then this brings up the concept of trademark. A trademark or service mark is a branding concept which allows you to relate a word, phrase or symbol to a specific product or service. The big difference between copyright and trademark is the right holder’s responsibility to defend. I’ve read and been informed by my attorney that a trademark holder can lose their rights if they fail to protect them when they detect a violation. But with a copyright, a lack of defense does not threaten your rights under that law.

Again, everything that you may wish to trademark may not be allowable under the law. For instance, you cannot trademark a name, geographic location, a number, or a descriptive phrase. So, “Tim Brunson”, “Chicago”, “386”, and “perfect pools” cannot be trademarked. Also, a trademark is considered only valid for a class of commerce. For instance, Delta Airlines holds the trademark for the word “Delta” only so far as it pertains to the airline industry. If Delta River Boats decides to use the word “Delta” in regards to their business, as this is a different class of commerce, it is generally acceptable. Protecting a trademark is somewhat more complex than a copyright. You must make it very clear that the allowable trademark or service mark is intended to be used as such. And again, you must be willing to defend it in court if necessary. Having a trademark searched and registering it with the US Patent and Trademark office I would like to believe would give you a superior claim in court.

This leaves me to the final category, which involves ideas, procedures, principles, and devices. The Copyright Act specifically exempts these from that law. They can only be protected by obtaining a patent. Writing your ideas or procedures in an article, book, or conference handout does not protect them under copyright law. While such actions may preclude verbatim copying of words or duplication of audio or video recordings, the ideas, procedures or principles discussed are not protected unless they are patented. This means that if I developed “the six step Brunson technique of medical hypnotherapy” and someone else decided to comment on my ideas or even incorporate them into courses which they present, then unless I have a patent I have no grounds to complain. The fact that I have taught my techniques for 25 years does not prevent others from using my ideas. Of course, if they were to reprint my course handout, I would assume that I would have grounds to pursue action under the copyright law.

As I speak, teach, write, and develop ideas and theories, I am extremely concerned that I do not infringe on the intellectual properties of others and that I protect my rights to my works, branding, and ideas. Also, I am very concerned that my contributions create value to my profession and the public. Therefore, I am concerned that less than altruistic individuals or organizations may attempt to steal my intellectual property and thereby begin controlling its further development. While I know that nothing can be “taken with me when I go”, I would like to leave a legacy based upon my contributions. It is not about money.

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I address my concerns in several prudent ways. First, for the most part my work is written or subject of an audio or video recording. If I give a speech which has unique information which I wish to protect, I record or transcribe it. Although copyright notice is not required, I normally clarify my intent by including an appropriate statement. Second, other than articles, all of my courses, workshops, and books have a unique title which I promptly claim a trademark. Of course, I make sure that the title meets trademark criteria. And thirdly, while I have been advised on multiple occasions to patent some of my ideas, I have not done so at this point. My concern has not been so much that I protect my ideas for the purpose of monetary gain. Rather, I hope that my contributions will benefit others and that people smarter than me can build on my ideas. Nevertheless, I may eventually go the patent route to prevent some unscrupulous entrepreneur from trying to pawn off my ideas as his own and therefore restricting further use. (This is why CERN and Tim Berners Lee decided to protect the concept of the World Wide Web.) Unfortunately there are those who inappropriately attempt to assert intellectual rights due to honest ignorance. And, sometimes it is due to malicious ignorance coupled with short-sighted, self-serving greed. These people will use threats and intimidation. The fact that they have successfully bullied numerous people previously, does not make them any more right. In fact, if they have misrepresented their claims and led others to a loss of financial potential and cause a “restraint of free trade”, then the misguided claimant could become the target of civil and criminal action.

If you are the target of such misbehavior or have suspicions that you may be the subject of legal action involving intellectual property rights, then seeking competent legal advice should be a priority. The fact that someone is emotionally and vigorously harassing you does not mean that you have committed a transgression. Upon initial contact you could ask them for documentation. If it is a trademark issue they should have a registration letter that gives the specifics of the marks to include the class of commerce to which it is applied. If it is a patent, they should be able to give you similar documentation. If it is a claim of a copyright violation, I would suggest inquiring how the work was recorded or notated and how you could get a copy to verify the potential violation. If an attorney sends you a “cease and desist” letter, I feel that it is in your rights to request such information. (In one such case after receiving an attorney’s letter, I requested the trademark registration and found the person who originally called me had vastly exaggerated the scope of his trademark. And, this trademark did not apply to the class of commerce which I was operating within. It was obvious that the attorney had not done his homework before sending the letter. This “oversight” could be the grounds for a complaint to the attorney’s bar association.) However, you need to use good judgment and promptly seek legal assistance. Regardless, the fact that someone makes a claim does not mean that you are automatically at fault. If they are sincere, they should have no problem providing you with the documentation. This is much cheaper than going the legal route. But remember that anyone can intimidate by filing a law suit. All they need is the ability to pay a filing fee. This does not mean that you are guilty. On the other hand, the claimant may be equally liable for civil damages and even criminal charges if their action is not based upon facts and the law. So, likewise you can file a counter suit and even press criminal charges.

Over the past year I have learned of two incidents involving intellectual property rights within the hypnotherapy profession. One involved a close friend who was upset at a conference organizer for “allowing” another colleague to present a workshop similar to hers and who had “obviously” used her material. The second incident concerned a publisher who has admitted to frequently bullying others not to write or teach about certain techniques or to use certain names or terms based upon his copyright claims. While I am not going to comment on the merits of either claim, what I have noticed is considerable confusion and misconceptions that have further fueled emotion-laden controversies. These could have been prevented had the parties been educated on the actual law versus relying upon fears and greed as their guides.

In closing, I want to remind you that this article is not “legal advice”. Merely, it is my view and opinion based upon years of business education, research, and unfortunately more than one opportunity to pay for legal advice concerning this matter. Although I hope that this has been a benefit to the reader, obviously if any of the foregoing strikes a chord, I would suggest that you embark on further research and hire a competent property rights attorney to advise you.

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