by Nicholas Wells
Trademarks and copyrights are two very different types of intellectual property rights. You may need both, but first you’ll need to understand the difference between them.
The short answer is that a trademark is a “brand” and a copyright protects a creative work. But that’s not very precise, so let’s dig deeper.
A copyright is a legal right that gives the creator of a work an exclusive right to control how that work is used. Copyright only covers the tangible expression of an idea, but not the idea itself (that’s what patents are for). So if you create an original work, such as a sculpture, an oil painting, a computer graphic image, a poem, a magazine article, a novel, a screenplay, a musical composition, a musical performance (with caveats), or even a computer program (more caveats), then your work is protected by copyright. That protection begins as soon as you create the work and lasts until 70 years after you die, in most cases. (But see my article in January’s 15 Bytes about registering your copyrights.)
You can license or transfer (assign) all or part of the copyright in your work. For example, you can grant someone a right to make certain types of reproductions of your work, or to perform your work only in certain geographic areas.
Copyright is mentioned in the U.S. constitution. Its purpose is two-fold. Copyright encourages those with creative abilities to create works because they have a legal right to control how those works are used. Having those works created will benefit society. Eventually, copyright expires and the public gets unfettered use of the creative work.
The U.S. is a member of several treaties that result in your copyrighted work being automatically protected in almost every country in the world.
A copyrighted work is normally indicated with a Circle-C symbol. The standard format is © [year of creation] [name of the creator or copyright owner].
Changing gears now, a trademark is a word, symbol, or design (and sometimes other things) that is used to identify the source of goods or services that are being sold. A trademark is all about commerce. It’s the “brand” that you want people to associate with your goods or services.
Trademarks can be registered with the state government (which is of limited value, but appropriate for some local businesses), or with the federal government (which is harder, but provides significant legal benefits). You can claim anything as a trademark by placing a TM symbol next to it, but that doesn’t have much legal impact.
If you apply to register a federal trademark for your particular goods or services, your application will be “examined” to make sure it doesn’t conflict with anyone else’s trademark. You don’t register a trademark in the abstract—you must define the goods and services that you will sell using the trademark. Once your trademark is registered, no one else can register a confusingly similar trademark. You show that your trademark is registered using a Circle-R symbol. You get exclusive use of your trademark in the U.S. If you want your trademark to be protected in other countries, you’ll have to register your trademark there as well. (It does get expensive.)
Some things can’t be trademarked. For example, words that just describe what you’re selling generally can’t be trademarked because those words need to be available for others to use in describing what they are selling.
A trademark can last forever, but you’ll need to file forms regularly with the U.S. Patent and Trademark Office to show that you’re still using your trademark.
The U.S. Copyright Office is online at www.copyright.gov; the U.S. Patent and Trademark Office is online at www.uspto.gov.
If you’re creating art, film, music, or written works, you are creating copyrighted materials. That’s automatic. The exact scope of your copyright and how you can use it depends on what you’ve created, what you based your work on, and what you plan to do with it.
Unless you want those who purchase your products or services to associate them with a particular word or design, you probably don’t need a trademark. Most artists, musicians, and authors prefer that their name be associated with their work. In that case, you don’t need to trademark your name (though it is done in some quarters, such as by Italian clothing designers). But if you are selling your works under a creative name (such as a collection of landscape paintings sold under the name “Apple Crate Art”), then you may want to protect that name as a trademark. If you operate a gallery or a website that uses a particular name or design that you want people to associate with that gallery or website, then you’ve got a trademark that you should protect.
Importantly, titles (of books or artwork) cannot be copyrighted or trademarked. They are considered too short to have the needed “originality” for a copyright. And titles are not considered to function as trademarks. You can, however, copyright a design that incorporates a title. And you can trademark the name of a series of works (artwork, books, or otherwise), because in that case the name identifies more than a single work.
UTAH’S ART MAGAZINE SINCE 2001, 15 Bytes is published by Artists of Utah, a 501 (c) 3 non-profit organization headquartered in Salt Lake City, Utah.
Categories: Hints 'n' Tips | Visual Arts
Great article on basics of copyrights and trademarks. I’ll point out, however, that intellectual property can be a very complicated area of law, and it’s always a good idea to seek the counsel of an intellectual property attorney when dealing with intellectual property. It’s particularly important to seek the advice of a qualified professional in regards to securing a federally registered trademark or copyright, and always prior to using someone else’s in your artwork or business, or allowing someone else to use your copyrighted material or trademark.