Copyright vs Trademark

Copyright and trademarks are both types of intellectual property. They are designed to protect their creator’s rights. Copyright and trademark protect different types of intellectual works. Copyright is used for written and other creative works, including books, art, photos, and film. Trademarks protect brand names and logos and prevent confusion among the potential customers of a brand.

Quick Guide: What is Copyright? | What are Trademarks? | Differences between Copyright and Trademark | What about patents?

What is Copyright?

Copyright law has existed in the United States since the country’s founding. The U.S. Constitution authorized Congress to grant “authors” exclusive rights to their original “writings” for a limited time. That’s exactly what copyright is – the exclusive right to use a creative or informational work for a limited amount of time.

Copyright applies to more than just writings. It protects all kinds of artistic works. Books, stories, and plays are covered by copyright, but so are songs, videos, photographs, and even architecture. Ideas aren’t protected by copyright, but expressions of ideas are – whether they are expressed in words, sounds, or pictures. Copyright protection kicks in as soon as a new work is created.

What is the purpose of Copyright law?

Copyright serves a couple of purposes for authors, artists, and society as a whole. First, copyright protection ensures that writers and artists get paid. If everyone could reproduce artists’ works without permission, no one would have the incentives to pay for their work. Second, copyright allows creators to control what other people do with their work. For example, a musician who owns the rights to their songs can prevent a politician whose ideas they disagree with from using their music.

For society, this ensures that artists and writers continue to create new works. Without the ability to be paid, or to control what happens with their works, artists and writers would probably create less work overall. Copyright provides incentives for people to create more, which is seen as a benefit to society.

What is Fair Use of Copyrighted Materials?

Fair use is a legal doctrine that allows the use of copyright-protected works in certain circumstances. Limited use of another person’s work is sometimes acceptable for educational purposes, or to provide commentary. Also, since authors and artists are often inspired by one another, using portions of a previous work as a small piece of a new work is sometimes allowed.

A common example of fair use is a review of a book or movie. For example, in a book review, a critic might quote a portion of a book to make a point about why the book is good or bad. As long as the reviewer quotes small portions, and adds their own commentary, this would be considered fair use.

Each specific use of copyrighted material is different and there are no clear rules about what will be considered fair use. The U.S. Copyright Office includes some information about fair use on its website.

Copyright and the Public Domain

The public domain refers to all creative works that are not protected by any intellectual property rights, such as copyright protection. The creator of a copyrighted work can voluntarily admit their work to the public domain. But, one of the most important ways that copyrighted work is admitted to the public domain is by the passage of time. For works created since 1978, copyright-protected materials in the United States enter the public domain 70 years after the death of the creator.

What are Trademarks?

Trademarks have been protected by state law since the country was founded. In 1946, Congress passed the Lanham Act, which established a federal system for protecting trademarks.

Trademark law protects commercial brand names and logos. It prevents competitors from using a company’s trademarks.

To be eligible for trademark protection, a trademark must be used in commerce, and must be “distinctive.” The reason a mark must be used in commerce is to prevent people from registering trademarks they never intend to use. Otherwise, people might register trademarks solely to prevent others from using them.

The “distinctive” requirement prevents companies from registering plain words or phrases that already exist, without changing their meaning. For example, Nike Inc. can trademark the word “Nike” as a shoe manufacturer, preventing other companies from using that word when selling shoes. However, a shoe company would probably not be able to trademark a generic phrase like “tennis shoes.”

What is the purpose of Trademark law?

There are two main purposes that trademark law serves. One is to help businesses by preventing competitors from piggy-backing on their reputation. If anyone were allowed to sell “Nike” shoes, sales by the real Nike, Inc. would likely suffer. Some businesses would sell low-quality shoes branded as “Nike” shoes, and customers would lose trust in the brand name.

The second purpose is to protect consumers. Without trademark protection, consumers couldn’t be sure whether they were buying legitimate products. Consumers associate certain brands with a certain level of quality. Without trademark protection, deceitful businesses could mislead consumers by selling low-quality goods.

Differences between Copyright and Trademark

Copyright and trademark law have different purposes, as described above. There are also practical differences between copyright and trademark law in the United States. The registration processes are different, and so is the protection the owner receives with each type of intellectual property.

Copyright and Trademark Registration

You do not need to register your intellectual property to benefit from copyright or trademark law in the United States. But there is a process for registering both types of property that makes it easier to protect your property. Registration is also required to sue for copyright and trademark infringement.

Copyright Registration Cost

The cost to register a single work, by a single person or business, is $45. The process can be completed online with the U.S. Copyright Office.

For multiple works, multiple authors, paper filings, or other scenarios, there may be additional fees. A complete schedule of fees charged by the U.S. Copyright office is available here.

Copyright Registration Time

For online filings, the U.S. Copyright office grants registration after about 6 months. For paper filings, processing times can exceed 1 year.

Trademark Registration Cost

Registering a trademark is more expensive than registering copyright. Applying for a trademark will cost at least $250. The process can be completed online with the U.S. Patent and Trademark Office (USPTO).

The USPTO charges a fee for each type of good or service that an applicant seeks to use its mark for. For example, a company selling sports gear would need to pay the fee once to trademark its basketballs, and again to trademark its jerseys. For more complicated applications, the USPTO charges $350 per type of good. The USPTO publishes more information about trademark fees.

Trademark Registration Time

The trademark registration process takes about 1 year, on average. The USPTO provides a guide that describes the registration timeline in 6 steps.

Copyright and Trademark Infringement

“Infringement” means the unauthorized use of copyrighted or trademarked property. Uploading a movie to YouTube without the owner's permission is a common example of copyright infringement. Trademark infringement could involve selling counterfeit goods, such as shoes branded “Nike” that are not manufactured or sold by Nike.

Both copyright and trademark infringement can lead to both civil and criminal penalties. This means that if someone infringes, they might be sued in civil court or prosecuted by the government for a crime.

In civil suits for both copyright and trademark, the court may award a plaintiff an injunction or monetary damages. An injunction award would mean a court order for the infringer to stop their behavior. Monetary damages mean the infringer must pay money to the plaintiff.

In criminal cases, brought by the government, infringers may have to pay fines or even be sentenced to time in prison.

Copyright and Trademark Symbols

Some copyright and trademark protections are granted automatically. They can be established even without formal registration. These facts might cause people to wonder about the purpose and meaning of the copyright and trademark symbols, © and ™.

These symbols simply remind viewers that the owner claims their works are protected. They do not have any legal meaning, except to prove that any potential infringer knew the work was protected.

Anyone can use these symbols with their works or marks to claim ownership. Registration is not required to use the symbols.

What about Patents?

Like copyright and trademark, patent law grants exclusive rights to reproduce and sell certain works. The difference between patents, trademarks, and copyright is the type of work that is protected. Patents protect inventions, like new machines, medicines, materials, or processes. Copyright protects works of literature and art, including visual art, music, and performance art.

Trademarks protect brand names, logos, and other signals that consumers use to identify products or services.