I get questions from folks on a fairly regular basis that are along the lines of:
“I started a brand new business and have a great name picked out! Can you help me copyright it?”
“I’ve finished my first novel and I’m pretty sure it’ll be on Oprah’s book list by the end of the year; will you trademark the title for me?”
“I just wrote a super cool character for my next comic but I don’t want anyone to steal it, will you copyright it?”
Unfortunately the answer to each question is, “No.”
In each of these questions the person is confusing copyright and trademark law. And they are not alone in making the mix up. Compounding the problem, myths and bad information about both sets of laws fly like fire through message boards, liked and up-voted and faved with abandon.
And I totally get it: as an artist understanding the difference between the two laws is not on the top of your to-do list. You didn’t go to law school; this isn’t your bag.
But you should at least have a passing familiarity with what each law can (and can’t) do. Both laws have the potential to impact what you create in some fairly powerful ways.
So here’s a short guide to the difference between copyright and trademark and what you can do with each. I have even included some gifs to increase the likelihood of this information being shared far and wide on the interwebs.
Who it protects: authors. “Author” is how the Copyright Act defines someone who creates an original work “fixed in a tangible medium of expression.” So don’t worry if you’re a fine artist or a musician: as far as the Copyright Act is concerned you’re an Author, too.
What it protects: the copyright law protects the expression of ideas, not the ideas themselves. For instance, if I take a lovely photo of a sunset, the copyright in my photo doesn’t prohibit other people from taking photos of sunsets or painting pictures of sunsets. The copyright prevents others from copying my expression, my actual photo. So don’t paint a picture that’s just a copy of my photo (for a great article on copyright and reference photos, check out The Artist’s J.D.).
For a work to be copyrightable it has to be original to the author and it has to be “fixed in a tangible medium of expression.” That means my excellent piece of improvisational street theatre, provided no one whipped out their smart phone to record its brilliance, is not copyrightable. It’s original, sure, but it only exists ethereally.
The broad categories of works that are copyrightable are:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
What rights it gives you: If you own the copyright in a work, which means either you are the author or you bought the copyright from the author (more on works made for hire in a second), you can prohibit other people from doing any of the following things with your copyrighted work:
(1) reproduce the work in copies or phonorecords;
(2) prepare derivative works of the work;
(3) distribute copies of the work to the public;
(4) perform the work publicly;
(5) display the work publicly; and
(6) if it’s a sound recording, distribute the work “by means of digital audio transmission.”
If you’re the owner of the copyright you’re the ONLY one who can do these things and the only one who can give other people permission to do these things. It’s pretty bad ass.
But what if you don’t want to lock down the rights to everything you make? What if you want to share and let others build on what you create? You can totally do that. I recommend reading up on Creative Commons licensing and fair use.
How long the rights last: There are a lot of different things that can influence how long a copyright lasts, but for the most part, a copyright will last the life of the author plus 70 years.
In my humble opinion this is both cool and awful. Cool because it gives creators control over their work and allows their families to benefit from that work after they’ve died. Awful because that means the public can’t do a whole lot with a copyrighted work for a very, very, very long time.
How do I get a copyright? Make something. Copyright protection is automatic. If you register the work you can get additional rights that are useful if you ever have to sue someone for infringement, but you have the exclusive right to do all of the things listed above as the creator of the work, just by creating the work.
When is an author not an author? When the creator has made a work made for hire. Works made for hire happen under two distinct situations and when they do the Copyright Act says, “person creating the thing: even though you’re the creator, you aren’t the author; the person you’re creating the work for is the author.” Works made for hire are most commonly the result of an employee creating something for an employer. In freelance, a work made for hire can exist if the parties have a contract that explicitly says the work is a work made for hire and (this is the part everyone forgets) the work fits into one of nice specific categories.
Why won’t you copyright my character/really cool story idea/business name: Because it’s an idea. Copyright doesn’t protect ideas. Imagine if only one person got to use the idea of a character who gains amazing, super-human powers and has a moral quandary about how and when to use those powers. Or if only one person could come up with a story based on a down-on-his-luck P.I. who is struggling with substance abuse and a serious lack of funds? If only one person got to lock down ideas like that, it would suck. We’d have only a handful of stories and Tumblr would be crickets.
And as for business names, those aren’t protected by copyright, they’re protected by…
Who it protects: Consumers. Yep, trademark law is there to protect the people who buy stuff; the people who make stuff benefit from trademark as sort of a side effect. They benefit a great deal, don’t get me wrong, but the law is there to protect consumers.
What it protects: Trademark law protects the marks–business names, logos, catch phrases–that companies use to identify their goods in the market place. The law wants those marks to be easily recognizable to the consumer so when she goes to buy a pair of sneakers she knows that the sneakers with the three stripes come from one company and the sneakers with the swoosh-y checkmark come from another company.
What rights it gives you: Trademark law limits the ability of one company selling a particular product to use a mark–words, images, distinctive color themes–that is used by another company selling similar products. If you are a trademark owner you can stop another business from using a mark that is similar to yours. Because the protection is so strong, you can’t limit folks from using a word or phrase they need to describe what they make or sell (more than one company can publish comic books so you couldn’t trademark the name “Comic Book Publisher”); you can only limit others from using marks that are distinctive to your customers as being associated with you.
You can also stop people from using your trademark to sell their goods or services. For instance if I sell t-shirts on Cafe Press that use the Batman logo, Warner Brothers can make me stop because people might get confused and buy my shirts thinking they’re official Batman merch. “But Katie,” you say, “your shirts are so poorly made no one would ever believe they’re official!” That might be true, but if my use of the trademark (including the name “Batman”) helps me get customers I wouldn’t otherwise get if I didn’t use the trademark, WB can tell me to cut it out. (Depending on what I’m doing I might have some valid arguments for using their trademark, eh-hem parody, but for purposes of this post, that’s not the case.)
How long the rights last: as long as you protect the distinctiveness of your mark. If you start letting other people use marks that are similar to yours or stop using the mark consistently, you can loose the protection trademark law offers. This is why companies can be so agro about trademark infringement; they don’t want to lose the protection, so they seem to go after everything.
How do I get a trademark? Well first you have to create the mark and start using it to sell stuff. Then, if you want the full protection of the law you’ll need to register it. Before a mark is registered many people opt to protect their mark by using the ™ symbol next to it. This is a way of letting other people know, “Hey! This is my trademark! Back off!” Once a trademark is registered you can use the far sexier ® symbol. Properly registering trademarks can be tricky so this isn’t a DIY project. Work with a real live attorney (not a legal services website) to figure out if it makes sense to register your mark.
Why won’t you register my book title? Because I can’t. Titles that are part of a series (think: The Babysitter’s Club) may qualify for registration, but titles that are of a single book won’t make the cut.
Live in Portland and want to learn more about this stuff? I’m teaching classes March 3, 10 and 17th at PNCA on intellectual property, contracts and negotiation. The classes are free for PNCA students and alums and open to the public for a small fee. The class is made possible with financial support from BridgeLab at PNCA and RACC.
Featured image is by Karen Cole via Flickr.com.
Categories: The Rest