Hello there! I assume you’re reading this blog because copyright and trademark laws are confusing. I don’t disagree. In fact, it was so confusing to me I took some classes on it to get a better grasp of what we’re dealing with. It’s a shame both business and art degrees don’t always require these as part of the curriculum, but it is what it is.
This blog isn’t a substitute for legal advice. If you’re dealing with a legal issue, please consult a lawyer. I am only covering information related to copyright and trademark in the United States since that is where I reside.
This blog will be covering copyright as it relates to art since that’s really all I care about. People don’t seem to understand it and don’t really take the time to look it up. I mean, the whole reason copyright even exists is to help encourage artists to create more so it’s good to know how to use it to protect yourself.
So what is copyright exactly?
According to the US Copyright office (https://www.copyright.gov/help/faq/faq-general.html): “Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.”
No offense to them, but this doesn’t explain anything in a way I understand. Copyright basically protects artistic expression. That cat you drew on a napkin. Protected. That video you took of your dog. Protected. That dance you did on the side of the road. Also protected. This random blog I have decided to write. Protected.
Let’s start with that whole rumor that you send yourself a copy of your work as proof of you owning it – everyone calls it the poor man’s copyright. There isn’t anything in the law that says that is protected and I am not even sure how such a thing started. I hear that all the time. Your art is protected when you make it but there is a difference between protections when registered versus unregistered.
If you register your work and someone uses it, you can sue for damages if it's worth it. Otherwise, you take that registration number and issue an official takedown. You can do the same thing without registration, but it's a lot easier to counter your takedown without a registration. If that happens, then you have to get a lawyer involved to send an official notice of Cease & Desist, which can get expensive if you don't know someone already. In many cases that isn't worth it. You see this a lot of the time with Etsy. You can't counterclaim trademarks on Etsy like you can copyright which is interesting.
Copyrights are valuable as it provides you protection in a different way to build up your brand. While copyright is valuable to have, it's not as valuable in the long run as trademark is.
Okay so what is trademark?
According to the trademark basics bootcamp class I took: "It is any word, symbol, design, or combination of those that identifies the source of goods and distinguishes them from the goods of another party."
Trademark has two types of marks as well. Trademark itself indicates the source of the goods or products while Service mark indicates the source of services. Trademark is NOT automatic like copyright.
So I mentioned that trademark is more valuable than copyright. Well why is that? Trademark allows you to build brand equity. Brand equity far exceeds the value copyright brings. It costs big money but it also brings in big money.
Wikipedia defines brand equity as "the worth of a brand in and of itself or the social value of a well-known brand name."
Why is brand recognition important?
Well, since you're probably an artist reading this, the best way to explain this is with fandoms. Why do people draw art from fandoms? Not only do they like the stories and characters, it has a mass appeal. If I were to draw something from say, Harry Potter, people know who that character is. There are movies and books about him. We know a lot about the character, what it looks like and it's easy to create designs that relate to the character. Suddenly I have a lot of eyes on my design. It's like heck yeah, I can sell this and make a lot of money because people really like it and want it on things.
Can I legally sell that design? Nope. You need licensing for it which is a whole different issue I am still working on understanding the ins and outs of. Not only are you dealing with copyright issues with Harry Potter, you've now pushed into trademark. Harry Potter is a protected trademark. Trademark protects logos, names, reputation, brand and identity. By creating an unauthorized work, you are crossing those lines.
Trademark is much more serious to cross than copyright. A brand has to protect their mark and issue takedowns. It's one of the most valuable assets a company can have after all. It's also the least tangible but violating it can be very expensive.
Another thing, trademark protection isn't the same in every country. Unlike the agreements the United States may have with other countries for copyright, trademark is a more local issue for many. Protection isn't the same from country to country and you'll want to register in every country you care about, which gets expensive.
What can be protected by trademark?
Since this one is harder to understand, I'll provide an example. Louboutin is a high end shoe designer that is recognized by their red soles on their shoes. It's their trademark. There are a few articles you can read that cover their trademark in court battles here and here.
Microsoft owns the startup and shutdown sounds for windows as a trademark.
Ferrari owns their design of their vehicles and has even won a lawsuit against a kit car maker for infringement.
Honestly, this is the one I didn't think was even possible and yet Verizon trademarked a scent? I had to look it up to even verify because I didn't believe it.
I also had a hard time understanding this one but Burberry's pattern is protected both as a mark and a pattern. They even went after Target for use here.
What can't be protected by trademark?
I was pretty mind blown about some of the things you can trademark so what things can't be trademarked if all that can be?
- Too Generic
This is pretty obvious but I'll explain it anyways because trademark has changed over time which is why you have companies with names like General Mills and General Electric. If they tried to trademark those names today, they wouldn't be accepted. So what is too generic? Anything with Standard or General brand. General Motors, if someone tried to register it today, wouldn't be accepted. Since it was registered before the changes, it's allowed but it would be considered generic under todays rules.
- Too Descriptive
This one I feel you see a lot anyways with small businesses that don't have registered trademarks. Companies named things like Quality Dry Clean, Vision Center, Chinese Restaurant or Korean BBQ can't have a trademark. It's describing something and there would be confusion for a source.
- Too Functional
This one also seems pretty obvious. Vision center or doctors office wouldn't be able to be trademarked. They are functional and obvious but there wouldn't be any strength or way to protect it.
Copyright & Trademark Registration Differences
Copyright is immediate. You create something, you have the copyright for it regardless if you register for it or not. Obviously you should register for anything you intend to post or share online, especially if you intend to profit off of it. Registration grants you the right to sue for damages.
Trademark is not immediate or automatic. Trademark rights can be created in two ways though: Common law and federal registration. Registration grants you the right to sue. You have no rights at all if you don't register.
In the United States, it is first to use so you are kind of protected at least? Common law trademark rights are created when your trademark is used in commerce but is limited to the geographic area where your mark is used. You'll see a lot of people use TM or SM next to their names but that just means they are claiming use. The mark isn't registered and they aren't allowed to use the ® without registration. The trademark office can and will sometimes decline if used prior to registration.
Federal registration rights are only created when you register with the USPTO under the legal presumption that you own the trademark. This allows you to use the trademark in all 50 states and US territories but not outside of those. There are also interesting exceptions to this but I'll cover that later in a different post as this one has become lengthy. This registration does grant you use of the ® and helps you when you're registering in other countries. This also allows you to take people to court for damages and will help you if people are knocking off your products. You'll gain protection from the US Customs and Border Protection as you'll have a record of registration with them.
Anyways, hopefully this helps some!