What’s the difference between copyrights and trademarks? – Transcript

[Intro Music] This is Office Talk with Annette Stepanian.

Hey, Hey, Hey!  Welcome back to another episode of Office Talk. It’s always good to be back and talking to you one on one. Now before we dive into this week’s legal quickie episode, I wanted to let you know about a special opportunity to get your hands on my training – Let’s Get Down to Business. This  week only -so through Friday, September 22 of 2017, you can get my training along with 17 other resources for only $99. Now my training normally sells for $97 And so for $2 more, you can get your hands on over $1700 worth of product. And this is because I have decided to participate in the One Woman Shop Solopreneur Success Bundle. If you don’t know what that is, it’s basically your one stop shop for some of the best resources out there that’ll unlock your potential as a solo business owner and lead you to even greater success. Things like streamlining and automating, conquering your cash flow, mastering SEO, becoming an email marketing expert, maintaining your sanity as a business owner, and even how to launch your business the legal way from yours truly. For this week, only the solopreneur success bundle by One Woman Shop and 17 other amazing entrepreneurs is all available to you for $99. If you want to get your hands on it, head on over to yourlegalbff.com/solo. So that’s yourlegalbff.com/solo. I’m hoping you’ll take advantage of it because it’s pretty amazing. I mean for $99 to get access to all of this stuff is kind of bananas. So definitely check it out. So you can head on over to yourlegalbff.com/solo. 

Okay, well with that said, let’s dive into this week’s topic for this Legal Quickie episode. Now I recently came back from speaking at the inspired retreat by Amber Housley. If you don’t know Amber, she was one of my guests in a previous podcast episode. So make sure to check that out. And during the session, I decided to do something different. I decided to let the audience tell me what they wanted to talk about. By far the most popular topic that pretty much took up the whole hour was the issue of copyrights and trademarks. 

And I don’t know what it is, but the last week or so I’ve been getting so many copyright and trademark questions from folks. And I realized that you guys are really confused about it and what the difference is between the two. And I looked back at the episodes and although we’ve touched on topics about trademarks and copyrights, I’ve never really explained the difference and really explained what is a copyright versus what is a trademark. So I thought I would dive into that this week. 

Now, if you want to learn more about copyrights and trademarks, and you want to listen to some past episodes on this topic, head on over to the website. So annettestepanian.com/officetalk. And then scroll on down to where you see Protect Your Content. And there you’ll see some great episodes about this. So things like do I need to file for a trademark? What do you do if someone’s copied your work? Who really owns a copyright when I’m hired to do work for a client? I address all those questions in past episodes. 

But let’s take a step back. And let’s talk about what a copyright is. So what is a copyright? It’s a form of protection afforded by the laws of the United States to authors of published or unpublished original works of authorship. So let’s break it down and figure out what the heck that means. Now, anytime you create content that’s original, it demonstrates some element of creativity, and it’s fixed to a tangible form, okay? So that means it’s actually documented on paper. Or it’s, you know, something that you drew on canvas or something you recorded on a video camera. It’s not just an idea that you have in your head, but it’s actually there’s a physical manifestation of it. It’s something that could be protected under copyright law. So this is important because it’s not just a conversation you have with your girlfriend or a friend about something that you want to do. It’s not you know, this idea for a book that you have that never gets written. It’s when you actually put that pen to paper and actually write the book. That is something that could be potentially protected by copyright law. 

A copyright does not protect ideas or facts, but it’s the unique way in which you are expressing those ideas or facts. So let’s say you want to paint a picture of the Eiffel Tower. You’ve gone to Paris and you fallen in love with all tthe beautiful architecture, including the Eiffel Tower, and you’re so inspired. And you’re gonna put, you know your oil paint on canvas and get that painting going. Well, you can’t be the only one to paint a picture of the Eiffel Tower. But it’s the unique way in which you interpret and paint that Eiffel Tower that’s protected. So copyrights protect content that are original and creative in nature that are fixed to a tangible form. 

But they also have to fall into one of the various categories of work that can be copyrighted. So what are those? You’ve got first up literary works. This is your written word, whether it’s a book, a novel, a blog, post, a memoir – those qualify as literary works. 

Next up, you have musical work. So those are your songs, your compositions, dramatic works. 

So screenplays, architectural works like blueprints of different architectural designs. Pantomimes and choreography. Pictures, graphics and sculptures. Motion pictures and audio visual works, and sound recordings. 

So super important that when you are looking to see whether your content is something that can be copyrighted, it has to fall under one of these categories of work. 

Now, the moment that that pen hits that paper, the moment that you paint that Eiffel Tower painting, in theory, copyright protection is afforded at that moment, you don’t really need to do much else. But there are a few extra steps that you can take to make sure to protect your work even more. So the first thing you could do is put that little symbol that you see that see with a circle around it, the date that it was originally published and the owner of the copyright. You can put that on your work. So for example, let’s say you are a course creator, and you have created the workbooks that correspond with your online courses, make sure to put that notice on there that copyright notice on your work so that it puts the the reader, the user of those materials on notice that you are claiming copyright protection over that work. 

Another thing you could do is register your work with the US Copyright Office. Now you might be thinking: “Oh, hold up girlfriend, you just told me that the minute that I create a work, you know, the minute I write that novel, I paint that painting of the Eiffel Tower, it’s technically protected by copyright law. So why would I go through the hassle and the expense of registering my work with the US copyright office?”  

Well, I knew you would be thinking that my friend and here’s my answer. I like to think of registering your work with the US Copyright Office kind of like getting insurance. By getting insurance, you get some added protection and benefits that help protect that work. 

One of the benefits of registering your work with the US Copyright Office is that it creates a public record of your copyrighted work. So in theory, it puts people on notice that this work is protected under copyright law. And therefore they can’t claim that they weren’t aware that the work was copyrighted. 

Next, in order to sue someone for copyright infringement in federal court, you must have or be in the process of obtaining a valid copyright registration. Okay? So if for some reason you ever want to go after somebody who has infringed on your work and has maybe used it without your permission, or whatever the case might be, and you want to actually sue them, you need to have that registration in place. Another benefit is if registration is made, within three months of publication of that work, or at any time prior to an infringement of the work, you as a copyright owner are entitled to seek what’s called statutory damages and attorneys fees in federal court. Without registration, only an award of actual damages and profits will be available. And these can be quite difficult to prove. Now, before your head starts spinning, I know you’re probably thinking girl:  “I don’t know what an actual damage is. I don’t know what a statutory damage is. Why do I need to worry about this?”  I’m not going to bore you with all the details. And let’s sure hope that you never ever need to know what all of these things are. But what you need to understand is, statutory damages are much easier to prove and to claim and to receive, then things like actual damages and lost profit. And you want to preserve that benefit. And in order to do so you have to register your work with the US Copyright Office, but also satisfied the condition that registration is made within three months of publication of the work or at any time prior to an infringement of the work. 

So the question then becomes what content should I register with the US Copyright Office?  Should I take every piece of content I ever create and register it? What I usually advise people to do is to look at their portfolio of content. And some pieces of content are more valuable to you, as a business owner. Think of them kind of like assets. And which are the ones that you want to protect? So let’s say you have a course, let’s say that is, it’s a course that’s like your signature course it’s a big moneymaker for you. Or maybe you’ve written a book or you’ve designed a workbook or something to that effect, that is really a big piece of your revenue, then I would start considering registering that with the US Copyright Office. Again, think of it like insurance. For a small fee, you can just go ahead and protect and get the benefit of some of these protections that registration with the US Copyright Office affords you. 

Okay, now let’s talk about trademarks. Now, I like to think about trademarks as kind of like the brand elements of a business. So think about your logos, your slogans, your marks, things of that nature. Things that are identifiers of different goods and services in the marketplace. The example that I always love to give that I think most of us can relate to is Nike. So Nike is the brand name. The swoosh that we all know that is the logo. And just do it is the slogan. So these are all the different brand elements that are protected or can be protected by trademark law. 

Just like copyrights, you don’t technically need to register your trademark with the Trademark Office in order to claim trademark rights to a word bark logo or slogan or things of that nature. So you might be thinking: “Okay, what the heck, why not?” Well, there’s a thing called common law trademark where the first person to use that mark in connection with a good or service in the marketplace, technically has rights to that mark. 

However, just like copyright registration, trademark registration affords you many benefits. So things like one, it again creates a public record of your mark putting people on notice that you own the trademark to that mark, it creates a legal presumption that you have the exclusive right to use the mark throughout the United States. It gives you the right to bring legal action concerning the mark in federal court. And it gives you the ability to use that nifty symbol that R with the circle around it next to your registered mark. 

Okay, so there you go. When you want to think about the difference between copyrights and trademark think copyrights – content. So when you create content, that is stuff that is generally protected under copyright law. And trademarks, those are your brand elements. The purpose of trademarks is to be able to distinguish the different goods and services and to know who is the company behind that good or service. So trademarks are brand elements. Copyrights are content. 

If you’re interested in registering your work with the US Copyright Office, or your marks with the US Trademark Office, you could technically do it yourself. here is no technical requirement that a lawyer do this for you. However, there is a lot more to the process than what meets the eye. There is some legal judgment and analysis that needs to go along with it. And so I always recommend talking to a lawyer who has experience doing this kind of work. Because although technically, you there’s no requirement that a lawyer has to do this for you, they have the legal judgment and expertise to advise and help move along this process. Because it is kind of an investment. The filing fees, especially for the trademarks are not super cheap. So you want to make sure it’s done right. And so make sure to talk to a lawyer before you embark on this process. And these are both the services that I do provide and you can learn more about that over on my website at yourlegalbff.com. 

Okay, my friends with that said, I’m going to wrap it up for another episode. Thank you so much as always, for being here and for listening and for supporting the show. I appreciate having you here week after week. And I can’t wait to talk to you later. 

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