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Protecting your work: Copyright, trademark or both?

If you have a phrase, song, book, movie, invention or other work that you plan to sell or share, you need to protect it. But how do you protect it? Many Americans assume (incorrectly) that copyrights and trademarks are one and the same. Let's explore the differences.

What do copyrights and trademarks protect?

Copyrights protect tangible works in physical form (i.e., works of art fixed in a tangible medium). This includes books, plays, movies, musical compositions (songs), sounds recordings, paintings, sculptures, photographs and other works of art.

Trademarks protect trade names (i.e., the name of your business), logos, certain short phrases when used to identify a brand, brand art, trade dress (i.e., packaging) and certain aspects of product design.

What don't copyrights and trademarks protect?

Copyrights do not protect:

  • Titles of books, movies and other works
  • Product names and business names
  • Slogans, expressions and short phrases
  • Lists of ingredients (e.g., recipes)
  • Ideas, including scientific discoveries and business procedures
Trademarks do not protect:
  • Generic terms
  • Marks that could be confused with other protected marks
  • A mark you have abandoned (you cannot reclaim a phrase you have let lapse)
  • Functional elements of designs/packaging

How do you get a copyright or trademark?

The good news is that it is fairly easy to "obtain" copyrights and trademarks. Obtain is in quotations because you may not have to do anything at all. Here are the differences:

Copyright protects works the moment you create them (e.g., put pencil to paper, a brush to canvas, or record a song). You can register your copyright with the U.S. Copyright Office in order to get irrefutable proof that the work of art is owned by you, but it is not a requirement. Registration is only required if you believe your copyright has been infringed and want to file a lawsuit.

For trademarks, there are multiple levels of protection - state laws as well as the "common law" protect trademarks and prohibit acts of unfair competition. This protection is automatic and may be conveyed to the public by use of the TM symbol, which doesn't require federal trademark registration. Federal law also protects trademarks, and you can register marks with the Patent & Trademark Office of the federal government. When you register a trademark, you can use the "circle R" symbol. State protection gives you trademark rights in your state. Federal registration gives you an exclusive right to use the trademark throughout the U.S. and gives notice to the public that you own the mark. Federal trademark registration is only available if you plan to use your trademark in more than one state.

How long are works protected with trademarks and copyrights?

Copyright protection of something you created lasts for your life plus 70 years. If you write your work anonymously, protection will usually last 95 years from the date you publish it.

Trademarks can last forever as long as the owners continue to use them. If your trademark is federally registered, you will need to renew it every 10 years.

A note about patents

Unlike copyrights and trademarks, patents protect inventions. If you have an invention that you plan to put in the public domain, you can request a patent from the USPTO. A patent will give you ownership over that invention for a limited amount of time (14 years if you request a design patent).

Confusing? I can help.

Taking the right steps to protect your intellectual property is important, but it can be confusing. I focus much of my legal practice on helping creative entrepreneurs protect their work and build successful business ventures. I'm happy to have a conversation with you about the protection and future of your work.

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