Copyright & Trademark 101

Copyright & Trademark 101

As promised, here is a brief introduction to two areas of law that pop up often for those that work in creative fields: copyright law and tradmark law. In typical lawyer fashion: please note that this entry and the contents of this webzine are not intended to be, and you should not rely on any materials herein as, a source of legal advice.

COPYRIGHT 101

Copyright is commonly thought of as unique territory for artists, authors, and composers. Copyright is a form of intellectual property protection afforded by the government to original works of authorship including, but not limited to, literary works, musical works, sound recordings, and pictorial, graphic, and sculptural works.

In the United States, copyright law is derived from specific language in the Constitution. The Copyright Clause’s function, namely “to promote the progress of science and useful arts,” exists to foster creativity by encouraging individual efforts to advance public welfare through the arts.

Upon creation, a work of authorship is automatically protected under copyright so long as it is original and fixed in a tangible medium of expression. The law grants artists, publishers, and writers the exclusive right to reproduce, distribute, or publicly display their original works, thereby preventing the unauthorized copying of a work of authorship.

Crucial to any discussion of copyright protection is the notion that registration of a copyright claim in the U.S. Copyright Office is not a condition of copyright protection. The copyright in a work of art, for example, immediately becomes the property of the artist who created it. Only the artist, or those deriving their rights through the artist, can rightfully claim copyright.

The law does, however, afford advantages to those adhering to certain formalities, such as placing a notice of copyright, the symbol ©, on publicly distributed copies. Additionally, no action for infringement of a copyrighted work can be initiated until registration of the copyright claim has been issued by the U.S. Copyright Office. To do so, the owner of a copyright in a work must deliver to the Copyright Office two complete copies of the work, together with a completed application for copyright registration, and the obligatory fee. More information about this process and copyrights in general can be found at: http://www.copyright.gov/.

The term of protection provided by copyright depends upon when it was first created. A work created on or after January 1, 1978, has a copyright that will endure for a term consisting of the life of the author and 70 years after the author’s death. Copyright of a work, if registered prior to January 1, 1978, and subsiding on that date, will endure for 28 years from the date it was originally secured an will be entitled to a 67 year extension.

Additional information about copyrights can be found at http://www.copyright.gov/

TRADEMARK 101

Trademarks consists of letters, words, phrases, symbols, logos, designs, shapes, colors, or other similar devices used by a producer, manufacturer, or merchant to identify and distinguish the source of their goods.

Unlike copyrights, trademarks are primarily designed to protect the consumers, not the creators, of a brand or product. Trademarks assist the consumer in distinguishing the goods of one producer from those manufactured or sold by others, allowing consumers to properly identify the origin or ownership of the goods to which the trademark is affixed. Examples of commonly recognized trademarks include the Nike swoosh, McDonald’s double golden arches, NBC’s three-toned chime, and Veuve Clicquot’s orange label.

Rights in a trademark are established through use of the mark in connection with goods and services in commerce. Trademarks may be registered with the United States Patent and Trademark Office, a process that is initiated through submission of either a “use” or “intent-to-use” application, depending on whether the mark has yet been used in the ordinary course of trade.

Federal registration of a trademark gives rise to the presumption that the registrant is entitled to exclusive use of the mark throughout the U.S. It is not necessary to have the mark registered, or to even have an application on file, in order to use the designation “TM” to notify the public of the user’s claim to trademark rights. However, it is only after the mark is registered with the US PTO that the owner can use the designation ®, signifying a federally registered trademark.

Trademarks that are considered “inherently distinctive,” due to the originality or uniqueness of the mark, are generally deemed stronger than generic marks. Inherently distinctive marks may be suggestive or evocative, including made up words that evoke qualities of the product, such as Slim-Fast.

Trademark law confers a perpetual right that is protected from the moment the mark is first used publicly. As long as the trademark continues to identify a single source, anyone using a similar mark, which creates a “likelihood-of-confusion” as to the origin of the goods or services, may be liable for trademark infringement.

The perpetual right granted by trademark law, however, depends on its use. A federal trademark registration has an initial term of 10 years, with available 10-year renewal terms. After the fifth year of the initial registration, the trademark owner must submit a declaration to the U.S. PTO, signifying that the mark continues to be used commercially. Otherwise, the registration will be canceled and the trademark rights will cease to exist.

Additional information about trademarks can be found at http://www.uspto.gov/.