Intellectual property law isn’t exactly a sexy topic … except, I truly think it is!
I’ve decided to write a series of posts about it, covering such topics as trademark vs. copyright, fair use exceptions, public domain, and common pitfalls. My aim is to help fellow creative individuals. Some posts will be most helpful to bloggers wanting to understand when they can and cannot use someone else’s photos. Some posts will be most helpful to writers wanting to know their legal rights surrounding their works. And some will be most helpful to crafters and Etsy sellers wanting to steer clear of legal wrongdoings.
Bear in mind that many countries (including the US, Canada, and the UK) have reciprocal agreements to honor each others’ IP laws, and ignorance is not an excuse. So, hopefully this series should be helpful to virtually all of my readers around the globe!
Before I begin, though: I am not a lawyer. This is not legal advice!
OK, so today’s post is going to be about the difference between trademark and copyright. These terms are often (wrongly) bandied about interchangeably. Today, I’m going to demystify these terms, in my layman’s understanding of them, at least!
Trademark law is intended to prevent confusion among consumers about commercial products. If I purchase a laptop bearing the Apple logo, I have certain expectations about the quality of the product. If a seller deceives me with a cheap Chinese knockoff bearing the Apple logo, this could harm both me as the consumer as well as Apple’s reputation.
Copyright law allows the creator of an original work to decide if, when, how, and by whom it may be reproduced. One key intention of copyright law is to encourage creativity by providing the incentive of legal rights to one’s original works.
The Types of Things They Cover
A trademark protects words, phrases, designs, logos, etc. A copyright, on the other hand, protects original works fixed in a tangible medium, such as songs, creative writing, paintings, and architecture, just to name a few.
For example, the name Mickey Mouse is a registered trademark of Disney Enterprises, and the television show Mickey Mouse Clubhouse is copyright protected.
For trademarks, note that different people can hold the trademark to the same word, phrase, or symbol for different categories of goods and services. For example, Taylor Swift holds the trademark for the phrase “shake it off” for use on clothing and stationery, while someone else holds it for use on diet shakes and weight loss supplements.
What They Don’t Cover
What trademarks do and don’t cover is pretty straightforward. Just note that extremely generic words or shapes may not be granted trademark.
But remember above where I said that copyright protection is for original works fixed in a tangible medium? This means that original works that are not permanent enough to be duplicated are not covered. A great example is sidewalk water art, which evaporates quickly in the sun.
Another example would be pancake art, or singing an original song in the privacy of your home and not recording it on your phone.
A formal legal explanation of “fixed in a tangible medium” can be found here, but basically the work has to be reproducible. After all, copyright means that you have the right to determine if, when, and how something is copied, and if it physically can’t be copied, then there’s nothing to copyright!
Anyway, back to delineating trademark and copyright…
How They Are Obtained
To hold a trademark for a word, phrase, or logo, you have to file an application with the US Patent and Trademark Office to it for a specific type of good and/or service. Copyright, however, is automatic as soon as you create your (original, fixed in a tangible medium) work! That being said, you can register your work with the US Copyright Office in order to make it easier to defend your copyright.
How Long They Last
Generally speaking, trademarks last ten years before they need to be renewed. For copyrights, it’s … complicated, but the short answer is “a long time.” Have a look here if you feel like reading some convoluted legalese. A general rule of thumb is that 1923 is a safe cutoff date for something being in the public domain, but definitely check on a case-by-case basis.
Violating someone’s trademark does not necessarily mean you are also violating their copyright, and vice versa. I will write a whole post about common violation pitfalls, but my experience as both a blogger and Etsy seller is that people usually either violate both at the same time, or they violate just trademark but not copyright.
So, what are your thoughts? Do you have any burning intellectual property questions for which you’d like me to investigate answers? I hope you all enjoy this series as much as I am enjoying writing it!
Until next time,