Trademark vs. Copyright
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Both trademarks and copyrights protect intellectual property that is uniquely and originally created. Trademarks protect a company’s right to differentiate themselves and their products from other goods and services in the market. Copyrights protect creative works against unauthorized distribution and plagiarism.
Though both can protect things like images and words, the nature of the protection comes down, in part, to how the property is used.
In this article, we'll cover:
What’s the Difference Between a Trademark and a Copyright?
While both a trademark and a copyright are intellectual property, they are used for different purposes. The purpose of a trademark is to help consumers avoid confusion about who is providing a good/service. The purpose of a copyright is to protect creators from others stealing or profiting off of their work.
Both in practice and in concept, a trademark and a copyright protect different things—even if on the surface, they sometimes look the same.
Brief Overview of a Trademark
Trademarks generally protect the use of a company’s name, product names, logos, and slogans. The purpose is to help customers differentiate between one business/product from another. (Think of the classic Coca-Cola logo with its bright red can or the Nationwide Is On Your Side jingle.) Trademarks help prevent fraud and confusion while also building strong brand loyalty.
Common law trademarks are unregistered marks that are used in commerce and have local protections. In order to have guaranteed national protections, a trademark must be registered with the United States Patent and Trademark Office (USPTO).
Have a trademark you’re ready to register? Check out our Trademark Service today!
Brief Overview of a Copyright
Copyrights protect original works of art, like novels, movie scripts, songs, paintings, and even other original work that we don’t often consider creative, like school exams and software codes. The purpose is to give full ownership and control over a work of art to the creator (or in some cases, the non-creator owner).
Copyrights have automatic rights as soon as the work is created, so long as it actually exists, whether that’s in a physical or digital medium. (Sorry about that dream you had about WALL-E before it was actually a movie, but you can’t copyright an idea.) However, many people choose to register their creation with the U.S. Copyright Office in order to have tangible, legal proof of their right to the work.
With all of this this in mind, you can usually spot the difference between a trademark and a copyright.
Trademark and Copyright Registration
Beyond the actual purpose of trademarks’ and copyrights’ protections being different, they also function differently when registered. Below, we’ve listed out a few of the common must-knows before registering a trademark or a copyright so you can see how they differ.
Cost To Federally Register
Average Processing Time
Duration of Exclusivity
$250/$350 per class
Unlimited with proper USPTO filings
Varies by registration claim
The creator’s life plus 70 years*
*Copyright exclusivity terms differ depending on if the work was created by a hired individual. Works made for hire have copyright protections for 95 years from the date of publication or 120 years from the date of creation, whichever expires first.
How Trademarks and Copyrights Work Together
Though they don’t have to, copyrights and trademarks often go hand in hand.
You know when you’re reading a recipe blog and have to scroll through the narrator’s first cousin’s wedding day story to get to the actual list of ingredients? This has become commonplace because while ingredient lists can’t be copyrighted, the actual story written and published can be—thus protecting that exact recipe.
Additionally, the title of your blog or cookbook can’t be copyrighted, but it can be trademarked. Together, trademarks and copyrights can protect a creative piece of work entirely. Let’s look at a more complicated example.
Taylor Swift and Intellectual Property
Like other celebrities, pop megastar Taylor Swift has an extensive collection of registered trademarks and copyrights.
Taylor Swift® was registered in 2007, one year after her debut album was released. Though names are typically not able to be registered with the USPTO, celebrities often make the case that their famous name, in connection to official merchandise, should be protected from infringement.
Swift’s usage of trademarks for her name, initials, signature, album titles, and even some particularly popular lyrics offers her brand security and exclusivity. Her actual music, however, is not trademarked.
Music, including the lyrics, are creative works that earn copyright protection. This means no one else can profit off the music or lyrics without permission.
Of course, it’s not always that straightforward, even for Taylor Swift. Consider the re-releases of her first few albums, now all “Taylor’s Version.” While Swift owned the copyright for the music and lyrics, her old recording studio owned the masters of her songs as they had been recorded. By re-recording with the copyrights she did own, she was able to then own and control the production and re-release of her music.
While your intellectual property might not be as complicated as Taylor Swift’s, there is one thing that is universal: whoever owns the trademark or the copyright is king of the product.
What is intellectual property?
Intellectual property is something that is creatively and uniquely made by humans. The bald man who is synonymous with Mr. Clean, Subway’s iconic Eat Fresh, and everything Disney has ever made are all examples of intellectual property.
Separate from trademarks and copyrights, patents are a form of intellectual property reserved for new inventions, like machinery, medicine, plants, and even designs.
What is the criteria for a trademark?
A trademark must be used in commerce in order to have any rights. This means that the trademark, whether it’s a logo, slogan, or something else, must be used in connection to the selling of goods and/or services.
What is the criteria for a copyright?
A copyright must be a work that is “fixed in a tangible medium of expression,” which is basically legalese for “it has to actually exist.” Whether the creation is something physical, like a sculpture, or something digital, like software code, to receive copyright protection it has to be established in a real form that could theoretically be accessed by someone other than yourself.
Can I ever disregard a copyright?
No. But also… yes. There are a few ways in which a copyright does not protect the use, sharing, and adapting of particular works. This is called fair use, and to qualify, works cannot be used for profit. A few examples of fair use include using copyrighted material for:
- Educational purposes
- News reporting
- Fan work*
*Though various creators have tried to sue over the use of copyrighted material in things like fanfiction and fan art, as long as the work is non-commercial (no money is made off of the work) and it is transformative (adding something new to the story) then the work is generally allowed to be created and distributed.
(Fun fact: this is why late ‘90s and early 2000s fanfiction usually included a “disclaimer” where the writer said they did not own the works. Fans were worried, and rightfully so, about getting taken to court over their free stories.)
Is there a religious exemption to copyrights?
Sort of. The Copyright Act does allow for religious institutions, like churches, to perform copyrighted materials of a “nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services.”
Though it can be a bit tricky to know if something qualifies for this exemption or not, it’s important to dive into the details. While a church band can do a cover of a song Glee-style no problem, they can’t adapt non-religious dramatic works.
For example, Texas megachurch The Door McAllen put on a Christian version of Hamilton, thinking that changing a few of the lyrics would be enough to legally produce and perform the musical.
However because dramatic works that are not already religious in nature do not have exemption, they were sent a cease and desist letter and forced to stop production. If continued infringement occurs, they could even face a copyright infringement lawsuit.
When in doubt, check with a copyright lawyer.