Understanding Copyrights + Trademarks

I see a lot of confusion amongst creative business owners about the differences between copyrights and trademarks.  Sometimes people use these terms interchangeably, however they are their own distinct set of laws and apply to different types of works. Here is a quick primer on the differences between copyrights and trademarks.

COPYRIGHTS

What is the purpose of a copyright? A copyright is a form of protection given to the author of published or unpublished “original works of authorship.”  The copyright gives the owner of a creative work the right to keep others from the unauthorized use of the work.

What kinds of work does copyright law protect? Literary, musical, dramatic, pictorial, graphic, sculptural and audiovisual works are just some of the types of work that can be protected by copyright laws.  Copyright law also protects pantomimes and choreographic works, sound recordings, architectural works, and motion pictures. Copyright does not protect ideas or facts (like standard measurements, calendars, lists or tables), rather it protects the way in which those facts or ideas are expressed.

For example, let’s say you have the idea of design a graphic of the map of the United States.  Your actual expression of that – the graphic of the map can be protected by copyright, however a copyright will not prevent others from using the underlying idea of creating graphics of a map of the United States.

How do you get a copyright? A copyright is created the moment the work this fixed to a tangible form.  In other words, the moment you put pen to paper, a paintbrush to the canvas, or take a picture with your camera, the work is protected by copyright.   Technically, you do not need to publish a work, include a copyright notice on the work, or register your work with the U.S. Copyright Office to be afforded the protection under the copyright laws.  There are, however, advantages for doing so. First it puts others on notice that the work is protected by copyright, so they can’t utilize the work and claim that they didn’t know that the work was under copyright protection. Also having a copyright registered with the U.S. Copyright Office is a prerequisite for filing a claim for infringement in court.

How long does copyright protection last? Copyright protection lasts for the life of the work’s creator +70 years. If the creator is a business, then copyright protection lasts between 95-120 years.

To learn more visit the U.S. Copyright Office’s Website.

TRADEMARKS

What is the purpose of a trademark? The purpose of trademark is to prevent customer confusion about products in the marketplace. It is also designed to prevent dilution of the goodwill of a brand.

What kinds of work does trademark protect? Trademarks protect the expression used to identify and distinguish a product or service in the marketplace, such as names, logos, slogans, and other commercial signifiers.  Under the concept of trade dress, the law can also protect things like distinctive product shapes, packaging, or store décor, so long as they don’t have a functional purpose.

In order to acquire trademark protection,  your mark must be distinctive (unique enough that customers recognize it on its own) or have secondary meaning (customers recognize the through its continued use over time). 

How do you get a trademark? Trademark ownership is actually determined by who first uses the mark in a commercial context.  By registering a trademark with the U.S. Patent and Trademark Office you have other benefits: in the event you ever want to sue another for trademark infringement, it creates a presumption that you were the first to use the mark in commerce and that the later user deliberately copied the mark.  First use can also be established by filing what’s called an intent to use trademark registration application with the U.S. Patent and Trademark Office.

How long does trademark protection last? Trademarks will expire by law after 10 years unless the owner files an Application for Renewal before the end of the tenth year following the date of registration. A trademark can renewed for 10-year periods for an unlimited number of times.

On a side note, patent law is what protects the use and development of an invention. To learn more about trademarks and patents, visit the U.S. Patent and Trademark Office’s Website.