Everyone has heard of something being copyrighted or trademarked. However, people often use these terms synonymously when in fact they mean very different things and have very different implications. Although I explain the difference between a trademark and copyright, most of my focus is on explaining a copyright.
Let us begin with defining a trademark. A trademark is a name, symbol, design or logo which is used when goods are traded to indicate the source of those goods. A trademark distinguishes one good from another. For the purposes of this article, I will use the Mickey Mouse character to better illustrate the differences between a trademark and copyright. The Mickey Mouse character has been trademarked as a design of Disney. Using the character to sell goods would be an infringement of the trademark.
If you are interested in protecting a title, slogan, or other short word phrase, a trademark is better suited for your needs. Copyright law does not protect a bare phrase, slogan, or trade name. For example, Nike’s slogan “Just Do It” would need to be trademarked in order to be protected.
A copyright, on the other hand, is a form of protection to the authors or creators of original works of music, art, literature, motion pictures and even architectural works. Ideas, procedures, processes are NOT eligible for copyright protection. A copyright is distinct from a trademark in that a copyright is a tangible form of expression. The Copyright Act of 1976 allows the owner of the copyright to reproduce the work, distribute copies of the work, perform the work (piece of music), and display the work (art). Let’s look at Mickey Mouse’s character. Mickey Mouse has been copyrighted as a cartoon character and one would infringe the copyright by using the character of Mickey Mouse is one’s own cartoons.
It is important to remember that a copyright protects a form of expression, not the subject matter of the work. For example, if Steven Spielberg made a movie about aliens invading the Earth in 2525, that particularly movie and the text of the movie would be copyrighted. James Cameron can just as easily make his own movie with original text about the exact same subject matter.
A work is copyrighted at the very moment it is created. No registration is required to secure a copyright, however, there are advantages in registering a copyright. One of the advantages is that the copyright becomes part of public records. Another advantage is that an infringement suit can only be filed with a court once the work is registered.
Furthermore, using trademarked or copyrighted names, symbols, logos or artistic work would not lead to an infringement of the trademark or copyright if one receives the author’s consent or permission.
If you are interested in trademarking an item or creating a copyright, please contact Boyer Law Firm, and we will be happy to assist.
