A copyright protects the expression of an idea, but not the idea itself. Copyright generally protects the creator of original art, literature, or design from having their creations copied and sold by others without making payment to the copyright holder. We commonly think of copyright protecting written works, images, and sound recordings, but the protection of copyright law can extend to the performance of music and plays, films, computer software, and architecture. Copyright can protect poetry, novels, essays and articles, photographs, choreography, painting, sculpture, poster graphics, and furniture design.
Article 1, Section 8, Clause 8 of the United States Constitution grants Congress the authority to pass laws securing to authors “the exclusive Right to their respective writings” for limited times. The current term of copyright protection under federal law is “life of the author plus 70 years,” for works created after January 1, 1978. Works-for-hire, anonymous works, and pseudonymous works are protected for a period of 95 years from the date of first publication or 120 years from creation, whichever ends first.
Unlike trademark and patent protection, copyright “subsists,” which means protection begins automatically upon creation. To be protected by copyright, however, a work must be original; it must be creative; and it must be “fixed in a tangible medium.” You cannot copyright the spoken word unless you record it. However, even temporarily storing a document on a hard drive will suffice to fix it in a tangible medium.
A copyright can be registered with the U.S. Copyright Office, but that is not a requirement for enforcing or protecting your copyright. If you register your copyright, though, you’ll have a public record (and presumption) of ownership, and you will be in a stronger position to recover attorney fees, costs, and statutory damages in the event someone infringes on your copyright.
A trademark identifies the source of goods or services, protecting the goodwill of a business or individual. Trademarks are generally words, phrases, symbols, images, designs, or combinations thereof that distinguish the source of goods. Service marks perform the same function for services (e.g., firms that provide legal, marketing, or accounting services), rather than goods. Common examples of trademarks include Nike (both the word itself and the design of the company’s famous swoosh logo) and Coca-Cola (again, both the words and the famous script logo). Phrases can also be trademarked, such as KFC’s “It’s finger lickin’ good.”
Trademarks are governed by both state and federal law, though most trademark owners seek federal registration of a mark. To qualify for federal registration, a mark must be distinctive and must be used in commerce. You cannot maintain registration of marks that are not being used in commerce.
There are generally two ways to establish the distinctiveness of a trademark or service mark. You can show that the mark is “inherently distinct,” i.e., that it’s unlike any other mark being used for a similar purpose. Alternatively, you can show that the mark has obtained “secondary meaning,” such that, when people see or hear the mark, they instinctively think of your product. Secondary meaning is commonly achieved through advertising.
Federal trademarks are registered with the U.S. Patent and Trademark Office. The term of a trademark is 10 years, but trademarks can be perpetually renewed for additional 10-year-periods, provided you demonstrate the mark is still being used in commerce.
Trademarks and copyrights both protect intellectual property rights. A trademark or service mark is a word, phrase, or logo that identifies the source of goods (e.g., the Nike company or Coca-Cola corporation), thereby protecting the goodwill of the mark’s owner. Trademarks are generally registered with the U.S. Patent and Trademark Office for a period of 10 years and may continually be renewed, provided the mark continues to be used in commerce.
Copyrights, on the other hand, protect the expression of an idea. Copyright generally protects the creator of original art, literature, or design from having their creations copied and sold by others without making payment to the copyright holder. To qualify for copyright protection, you must show that your idea was original, creative, and “fixed in a tangible medium.” The current term of copyright, for most works, extends for the life of the author and 70 years after the author’s death.