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Understanding the Difference Between Copyright and Trademark Law

Photo by: Giammarco Boscaro

People often use the terms “copyright” and “trademark” interchangeably, but they are two very different concepts and protect different things.

What is a copyright?

Copyright covers “works” that are “fixed” and are the original expression of the “author.” Its goal is to promote creativity and ingenuity by giving legal protection to the creator.

“Author” means creator—it does not apply only to people writing words. A photographer is an author. A choreographer is an author.

“Fixed” means that the work exists in a tangible format—it’s written down, recorded, or is otherwise visible to people other than the creator. Music that is played live but not recorded is not subject to copyright because it is not fixed.

Only certain “works” are subject to copyright, and these are listed in the statute governing copyright: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works.

Copyright exists immediately upon a work becoming fixed. If you are a photographer, your photos are copyrighted as soon as you take them and they are recorded on film or digital media. If you are an officiant, the ceremonies you write are protected by copyright as soon as you write them down.

However, if someone infringes your copyright (by, for example, taking your work and copying it for their own use), you cannot sue that person for copyright infringement unless you have registered your copyright with the U.S. Copyright Office.

How do I register my copyright?

Registration is a fairly straightforward process that creators can undertake even without assistance from an attorney. Registration can be done online by anyone or the forms can be printed and mailed.

You need to fill out a short application form, submit a copy of the work, and pay a fee. The basic filing fee is $55 per electronic application or $85 for a paper application. In most cases, works must be individually registered; however, photographers can submit multiple photos in one application.

After a processing time of several months, the Copyright Office will issue a

Registration Certificate. Your work will have a registration number, and this will provide what’s known as prima facie evidence that your claim of ownership is valid. 

Do I need to register my copyright?

In most cases, no. If you generate a lot of copyrightable material, the costs associated with filing many applications would add up fast. If someone infringes your work, nine times out of ten they do it unintentionally and are happy to remedy the infringement in whatever way you ask them to. In addition, litigation is time-consuming and very expensive. Unless you have suffered significant financial damages from the infringement, you are unlikely to want to sue the infringer.

What is a trademark?

A trademark can be a name, logo, color, or scent. The goal of trademark law is to prevent consumer confusion in the marketplace. If a consumer buys Brand X and

likes its quality, then the consumer should be able to consistently get that quality when buying items labeled Brand X. If Brand Y makes the same product with inferior quality, but labels it as Brand X, then the consumer has been duped. If Brand

X has a trademark registration, it can sue Brand Y for passing off its goods as Brand X’s goods.

Trademark registrations are issued by the U.S. Patent and Trademark Office (PTO).

A trademark registration can be for tangible items (“goods”) or a service. The primary requirement is that the goods or services must be “in use in commerce.” For example, if you are a florist called Above All Florist, and you have a website where you offer your florist services for hire, you are using the name “Above All Florist” in commerce.

On the other hand, if you want to start a DJ business and you have a name picked out, but you haven’t started the business yet and you are not yet offering your services for hire, then you are not using the name “in commerce.” However, you can file an “Intent-to-Use” application, which will have to be converted to a full application once you start using it in commerce.

How do I register a trademark?

Trademark applications are more difficult, time-consuming, and expensive than copyright applications. It is possible to file one yourself, but it’s much safer to hire an attorney to help you. There is a great deal of back-and-forth communication between the applicant and the PTO during the processing of a trademark application, and it’s very helpful to have a trademark attorney handling those negotiations on your behalf.

Application fees start at $225, and once a registration is issued, maintenance fees of several hundred dollars must be paid five years after registration, 10 years after registration, and every 10 years thereafter for as long as you are using the trademark in commerce.

You need to prove an association between your particular goods or services and what you want to trademark to acquire a registration.

Do I need to register my trademark?

It depends. If your business has a unique name and it’s unlikely that anyone else would want to use this name, then it’s probably not worth the expense of registering your name as a trademark.

Similarly, if you operate within a narrow geographical area—for example, Northern

California—it’s probably not worth the expense. You can only acquire trademark protection in areas where you are using the mark in commerce. If you have no intention to offer your goods or services to people living in Massachusetts, then someone in Massachusetts could register the same mark for the same goods or services without infringing on your mark. You would co-exist in different marketplaces because the chance of consumer confusion would be very low.

If, however, you market yourself nationwide, and especially if you have a business name that is not unique and could easily be used by someone else, then registering your trademark would be in your best interests. Of course, if someone else is already using the mark and has registered it, then you will be out of luck. For this reason, it’s wise to conduct a thorough search of other businesses before naming your business.

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