Protecting Your Creative Efforts: The Very Basics of Copyright and Trademark

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I meet many creative entrepreneurs during my office hours at 202Creates and, while we do talk about various legal topics, the most frequently asked questions I hear are about copyright and trademark – essentially, they want to know how they should best protect their work.  Copyright and trademark are both concepts that fall under the broader category of “intellectual property.”  Patents are also another oft-referred-to type of intellectual property, but we’re just going to stick with copyright and trademark for our discussion here.

Let’s begin with some basic definitions:

Copyright

Trademark

Copyright protects “original works of authorship” that are fixed in a tangible form of expression.

  • An “original work of authorship” is created by a human author and must be at least minimally unique or creative.
  • The work must be “fixed in a tangible form of expression,” which means it is captured in a medium that can be perceived, reproduced, or communicated.

A trademark is a word, name, symbol, device, or any combination of these that is used (or intended to be used) to indicate the source of a good/service OR to identify or distinguish the good/service of one seller from another.

Here are some examples of what can be copyrighted versus trademarked:

Copyright

Trademark

  • Literary works
  • Musical works
  • Dramatic works
  • Pictorial, graphic, and sculptural works
  • Motion pictures
  • Sound recordings
  • Architectural works
  • Website
  • Business name
  • Business logo
  • Brand name
  • Product name
  • Tagline
  • Hashtag
  • Sound

One very practical thing to know about these forms of intellectual property protection is when the protection begins.  Notably, both copyright and trademark protection exist even if you have not registered them with the U.S. Copyright Office or U.S. Patent and Trademark Office (USPTO):

Copyright

Trademark

Copyright protection exists automatically from the moment an original work of authorship is fixed in a tangible form.

A mark (or property that you use or intend to use to identify your business as the source of certain goods/services) can be protected as a common law trademark once it is used in commerce.

Additionally, even without registration, you can put the public on notice that a work or mark is protected by copyright or trademark by using these familiar symbols:

Copyright

Trademark 

The “C” in a circle (©) represents the copyright symbol.  A copyright notice contains the following elements:

  1. The copyright symbol: © (or the word “Copyright” or “Copr.” or a combination of the word and ©);
  2. The year of the work’s first publication; and
  3. The name of the copyright owner.

For example:  In Michelle Obama’s book, Becoming, the copyright notice reads “Copyright © 2018 Michelle Obama” and on Instagram’s website, the copyright notice at the bottom reads, “© 2019 Instagram”.

The superscript symbol “TM” indicates a mark that is being used as a trademark, but is not a registered trademark (i.e., a common law trademark).  One difference between copyright and trademark symbols is that the copyright symbol © is the same symbol regardless of whether it is used before or after copyright registration.  With trademark symbols, there’s a difference: TM may be used to indicate unregistered common law trademarks and the “R” in a circle (®) symbol can only be used once a trademark has been properly registered.

The symbol is typically placed:

  • At the upper-right hand corner of a mark;
  • At the lower right-hand corner of a mark; or
  • Level with the mark.

One important caveat to beginning to use a mark in your business is that you should do your research to ensure that no one else is already using the exact mark or a mark that might be considered “confusingly similar” which may lead someone to confuse the source of a good/service.  For example, calling a new program “Lawyer in Your Pocket” may not be advisable if an existing business has the registered trademark “Pocket Lawyer” and provides similar services.  People could easily confuse the two, which could lead to an infringement claim.

Ok, so you’re probably asking yourself:  If I have copyright and trademark protection without registering, what’s the point of registration?  Well, the answer in both cases is that registration provides you with stronger protection and additional rights:

Copyright

Trademark

  • Registration establishes a public record of important facts relating to the authorship and ownership of the work: title, author, name and address of owner, year of creation, information about whether the work has been published, previously registered, or incorporates preexisting material.
  • Registration allows a copyright holder to sue for copyright infringement in federal court.
  • In the event that you prevail in a lawsuit to protect your copyright, you may be eligible to receive statutory damages and attorney’s fees.
  • Registration also allows a copyright holder to protect against the import of infringing copies into the U.S. by recording the registration with U.S. Customs and Border Protection.
  • Registration establishes a public record of important fact relating to the ownership, date of first use in commerce, and class of goods or services associated with the mark.
  • Registration allows you to use the ® symbol to indicate your claim to the mark.  Withstanding the scrutiny of the trademark registration process proves the brand’s uniqueness and is a valuable intangible asset for your business.
  • Common law trademark protection is limited to the area where the trademark is being used, whereas a registered trademark gives you protection nationwide.
  • Registration provides “constructive notice” to everyone in the United States that you are the owner of the mark.  If someone starts using a mark that is confusingly similar to yours, you can use your registration as proof that the other person should have known that you are the owner of that trademark.

My intellectual property protection conversations with creative entrepreneurs during office hours usually end around here.  While there’s a lot more to know about copyright law and trademark law, this basic information is often a good starting point.  At the very least, they leave knowing that they can start using the © and TM symbols to help protect their works and marks respectively – now so do you.

If you’re interested in copyright or trademark registration, contact me here to set up an initial consultation.

Photo by Roman Kraft on Unsplash.

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