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What’s the Difference between Trademark and Copyright Protection?

Copyright vs. Trademark

Many artists don’t know the difference between copyright and trademarks. This is understandable as legal constructs are the antithesis of creative expression. To an artist, IP Law is like ironing; you know you have to do it at some point, but either you’ll wait until the last minute or you’ll send it out to the laundry so you don’t have to think about it.

As a result, artistic types tend to lump together copyright protection and trademark protection (and even patents) into one idea, using the terms interchangeably with the same definition: legal stuff that protects my work from those wanting to leech off my creativity.

So here is a basic primer to help distinguish between copyrights and trademarks. While these things may carry over into countries beyond the U.S., that can be more complicated. So for this tutorial, assume these parameters apply to U.S.-based artists only. Also, in order for these rules to take effect, let’s assume the works were created after Jan. 1, 1978.

  1. Copyright protection is usually afforded to works of authorship like paintings, books, and photography, whereas trademark protection is applied solely to brand names, slogans, and logos, (although a logo can also be copyrighted). Trademark protection doesn’t describe the thing that the trademark is protecting.  (see Apple Denied iPad Mini Trademark)
  2. In both situations, the owner has the right to exclude others from using their work without permission
  3. A trademark requires a registration for protection. A copyright is automatic at the time you create your work and make it available to the public.  You don’t need to register the work, but there are advantages to doing so. (see Why Register a Copyright).
  4. A copyright registration is handled through the U.S. Copyright Office, which is part of the Library of Congress. trademarks are handled through the United States Patent and Trademark Office.
  5. Copyright registration provides legal protection for the life of the author plus 75 years. Works-for-hire  copyrights (see related article here) last for 95 years from publishing or 120 years from creation, whichever is shorter.
  6. Trademark rights can last forever. However, for trademark rights to continue, you have to use it, protect it against infringers, and renew it.
  7. Copyrighted music has a special provision: once a copyright owner has recorded and distributed the song, a license is available to anyone else who wants to record and distribute the work in the U.S. only needs to pay a fee to a central agency.  They do not need to make any agreements with the song’s owner, unless they wish to alter it.
  8. Copyright uses the symbol © which can be placed on any original piece of work you have created. You do not need to register to use the symbol. You are merely telling the world that you are claiming registration.  Registration however, will prove that the work is yours.
  9. When you create a trademark, you are permitted to use the TM sign to signify it as a trademark. If your trademark is then registered, you are able to use the ® sign. Using this symbol without registration is illegal.

A far as patents go, that area of law is much more complex.  Just think of patents this way; patents are scientific inventions or sometimes, industrial design.  They need to do something. They have a function, not just a creative idea put to paper.

So, those are the basic points.  Obviously, things can get pretty crazy with IP law or we wouldn’t need all these intellectual property attorneys.  Hopefully though, this primer will help distinguish these concepts enough so you can talk about them.



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About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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