FORTUNE Small Business:

Can I patent someone else's work?

There are other ways to keep copycats from stealing your vendors' products.

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(FORTUNE Small Business) -- Dear FSB: My store sells a line of goods such as potholders and tote bags made by a local artisan from ethnic cloth she buys. They're popular, but the artisan is a hobbyist with no desire to patent or copyright them. I plan to start selling the items online, and hope to keep rivals from copying them. But can I patent or copyright someone else's work?

- Charles Phillips, Owner, The Personal Touch, Culver City, Calif.

Dear Charles: Absent a 'work made for hire' agreement or an assignment of rights, you can't patent someone else's invention, or copyright her work, says Peter Sloane, an intellectual property lawyer with Ostrolenk Faber Gerb & Soffen in New York City.

If you don't hold a patent or copyright on the items, you might seek an exclusive license to sell them, adds Greenberg Traurig's Ian Ballon, who works in the firm's Los Angeles and Silicon Valley offices.

To obtain the rights to profit from the artisan's work using any of these methods, you'll need a savvy intellectual property lawyer to draft an agreement. However, notes Sloane, "The shape of functional products such as potholders and tote bags is usually not legally protected."

And, you say the artisan buys the fabric she uses. If she doesn't design it, she has no rights to offer you, Sloane says.

"If the artisan can identify the fabric's designer, try to obtain an assignment of rights from him or her," he adds.

You should also know that if the fabric is truly ethnic or ancient, it is likely to be in the public domain, and not entitled to legal protection. To top of page

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