Copyright vs Trademark: Common Misconceptions Clarified

Most recognize a copyright when we see it; the same goes for trademarks. However, when it comes to the nitty-gritty details, how much do you know about intellectual property laws?

As your business grows and you produce more intellectual property, you must know the differences between trademarks and copyrights. It’s for your legal rights, which you should also understand how to protect.

In this blog post, I’ll shed light on common misconceptions about copyright and trademark, how copyright and trademark laws work, the steps to register for copyright and trademark, and your rights.

Let’s get started!

Table of Contents

Understanding Intellectual Property

What’s the last book you read? The last song you listened to? The last movie or television show you watched?

Those are three examples of intellectual property.

Intellectual property, commonly abbreviated as IP, includes copyrights, trademarks, trade secrets, and patents. It also includes any original computer code, images, names, symbols, designs, inventions, and creative works. In that regard, it can be tangible or intangible.

For example, if your company has a new software idea, the software’s name is IP.

I’ll explore copyrights and trademarks more in the next two sections, but what are trade secrets? What about patents?

A patent is a safeguard for your original inventions, processes, and ideas. When you create something you want to pursue, you should register your idea at the United States Patent and Trademark Office (USPTO).

You can only register a patent if someone else hasn’t already done so. Further, your idea has to be patentable, which might require discussing the idea in full with an examiner. Your patent lasts for 17 to 20 years if you receive one. At that point, if you wish to maintain the patent, you must reapply.

A trade secret is information specific to businesses that provide benefits over other companies in your niche or industry. You should use a trade secret watermark or stamp on pertinent documentation.

Further, you should issue nondisclosure agreements to third parties you must share trade secrets with, such as for a business deal. There should be a clause in an employee’s contract that they must maintain trade secrets, and you should not allow all parties within a company access to these secrets.

What Is Copyright?

A copyright is a type of intellectual property that gives the author or creator of an original work the exclusive right to copy, adapt, display, distribute, and modify the copyrighted work.

A copyright protects original intellectual works upon creation. As the right holder of the copyright, you get to decide who can perform, display, adapt, distribute, or copy your IP. You can also determine if other people or parties can hold the rights.

Further, copyright laws allow you to decide the duration of the IP usage. For example, if you create a song that appears in a television commercial, you’d only allow the company producing the commercial access to the song for a limited time, say three months.

Copyright laws protect all forms of IP creation, including musical, visual, educational, artistic, and literary property. To qualify as an original work under copyright law, the Supreme Court has dictated that your work requires at least a “spark” of creativity.

While original works can constitute many creations, they don’t include listing contents or ingredients, alterations to typographical ornamentation like different colors or letters, variations on designs and symbols already familiar to the general public, slogans and phrases, and names and titles.

You can’t copyright discoveries, principles, concepts, processes, systems, methods, procedures, or ideas.

As the copyright holder, if you created a copyrightable IP on January 1^st, 1978, or after, the copyright extends for the rest of your life. After you’re gone, the copyright lasts for another 70 years.

What Is a Trademark?

A trademark is a type of intellectual property that has recognizable signs, like designs, symbols, words, phrases, or expressions that identify and differentiate a product or service from others.

Trademarks include designs, symbols, phrases, words, or a mix to identify any services or products you manufacture. Depending on your specialization, you will receive either a service mark or a trademark.

The Trademark symbol — *Trademark symbol*

The differentiation between the two is simple enough. A service mark only applies to services, but it works the same way as a trademark. Oppositely, trademarks are for products.

Applying for and receiving a trademark can prevent fraud and counterfeiting and confirm you as the creator of the service or product. However, your trademark only applies to how you use the term or symbol when manufacturing your services and products.

You don’t have to register a trademark for it to be effective. That said, if you don’t, you won’t get the full extent of legal protections offered to trademark holders.

Besides registering a trademark, you can also own one. This happens automatically as you begin manufacturing trademarked products and services. However, trademark rights apply to your geographic location, even as the trademark owner, which is why many owners decide to register.

Many trademark owners use the trademark symbol, ™, when referring to trademarked products and other goods. If you have a service mark instead, here’s what the symbol will look like: ℠.

You may also see products and services delineated with an R symbol, as so: ®. This symbol only applies to registered trademarks.

Copyright vs Trademark: Key Differences

Now that you better understand what copyright and trademark are, let’s review the differences to help you decide which is right for your business.

Symbols

Trademarks and copyrights use different symbols. You saw the trademark symbols above, whereas copyrights use the © symbol. Since the symbols to represent copyrights and trademarks use the corresponding letter, they’re easy to differentiate.

Duration

You’ll recall that a copyright applies throughout your entire lifetime, then 70 years after your death. Then, the copyrighted IP enters the public domain.

Trademarks have a lifespan of 10 years when registered in the US. However, you can continuously reapply to keep your trademark current, but you must use it in the interim.

Protections

Trademarks and copyrights offer varying degrees of legal protection; if they covered the same things, there would be no need for both.

For example, trademarks offer intellectual property protection for slogans, business names, logos, and brand names. Copyrights, on the other hand, cover architecture, computer software, video and audio materials, songs, movies, research, art, and writing, including novels and poetry.

Usage rights

While you don’t have to, you’re allowed to license your copyrighted material to third parties as the copyright owner and holder. You can even sell your copyright or allow another copyright owner to use your copyrighted materials, whether temporarily or permanently.

By comparison, you don’t lease out trademarks. If your trademark materials are being misused, you can exercise your rights with legal due process.

Steps for Registering a Copyright or Trademark

Protecting your IP starts with registering it. Here are the steps required to register a copyright and a trademark.

How to register for a copyright

Visit the United States Copyright Office website here, which will redirect you to the registration portal. According to the site, you can register 10 of your unpublished works per one application, choosing Group of Unpublished Works on your application.
Create an account on the U.S. Copyright Office site by clicking the Log in to the Electronic Copyright Office (eCO) Registration System. Here is the link to the registration page, which requires you to input your first and last name, email address, new user ID, password (then typing it a second time for verification), and two challenge questions if you forget your password.
After registering, log in. Here is the list of forms for copyright registration. Select the one appropriate for your IP.
Submit the form. The U.S. Copyright Office will review it, and if your IP is copyrightable and original, you should receive the copyright you seek.

How to register for a trademark

Visit the USPTO site here, which handles all trademark applications and service mark requests.
You will need a USPTO account if you don’t already have one, so click here to go to the registration page. Click Create a USPTO.go account, then input your email address, first and last name, and phone number, verifying the reCAPTCHA. Agree to the USPTO terms of service.
Sign into USPTO and review the trademark initial application forms. A Trademark Electronic Application System or TEAS Standard form is easier to apply for since it has fewer initial requirements. However, your fee per services and goods class is higher. A TEAS Plus application requires more from you but doesn’t mandate a high fee per class.
Complete your forms and submit them. You will receive a copyright if your IP is original and can be copyrighted.

Protecting Your Intellectual Property

Being an IP rights holder isn’t always as highly respected as you would hope. The internet is a vast place, and though not lawless, some people believe they can steal what doesn’t belong to them and use it as they wish.

How do you stop such nefarious violations of your trademarks and copyrights? Here are some strategies.

Know your rights

Trademark and copyright laws are different. Before you cry afoul that someone has used your IP without the legal right to, you must know the full breadth of what a copyright versus a trademark covers. This article will help you with that!

Register trademarks and copyrights

The full rate of copyright and trademark protection only kicks in when you register. Although navigating the correct forms is difficult, it’s worth taking the time to cement your IP has a trademarked product or service.

You should also register copyrights to cover your tail. This way, if the matter devolves into a case of he-said, she-said, you will have proof that you registered the copyright with the appropriate authorities, lending credence to your claims.

Limit exposure to copyrighted and trademarked materials

Non-disclosure forms, confidentiality agreements, limited use access, and licensing contracts ensure that only the preferred parties receive access to copyrighted and/or trademarked materials in your company.

The fewer people who gain access to copyrighted or trademarked materials, the lower the risk of being misused.

Exercise your rights

If you believe your trademark or copyright was violated, it’s time to put the IP law to work for you. You could try contacting the other party and informing them you’re the legal copyright or trademark owner.

Providing a cease-and-desist letter with your communication should curtail any further copyright or trademark violation. However, sometimes people don’t care, believing they can use the internet as a veil to mask their bad behavior.

Hire an attorney

In that case, you should consider hiring a lawyer or attorney to review the case.

Some cases of willful copyright infringement/trademark infringement that apply criminal penalties can result in payouts to the copyright owner (you) of up to $150,000.

Common Misconceptions About Copyrights

Copyright law is admittedly complex, and specific situations can sometimes create confusion about how and where the law applies.

Here are some copyright misconceptions that come up often so you don’t make these kinds of careless mistakes!

The myth: out-of-print materials aren’t copyrighted

This isn’t true. Remember, copyright applies for a static period, and that’s the only term of its application. If the author of the piece is still alive, or if it’s still within 70 years of their death, the copyright applies no matter whether the IP is readily available or long out of print.

The only exception is for IPs produced before 1978. These works might have statutory copyrights or could have already entered the public domain.

Under the 1909 Act, a copyright lasts for 28 years and can be reapplied for 28 years. According to the 1976 Copyright Act, a copyright term was 47 years; then, under the 1998 Copyright Term Extension Act, it is 67 years.

The myth: a lack of copyright symbol means there is no active copyright

Nope! Companies and individuals have no longer have to use a copyright protection symbol on IPs since 1989. A valid copyright registered through the U.S. Copyright Office applies whether the copyright owner uses the symbol or refrains.

The myth: fair use will get me out of hot water

Fair use copyright law allows non-copyright holders to quote some parts of an IP material for research, teaching, reporting the news, or debates. While this allows for educational use of copyrighted material, that doesn’t always mean claiming the copyright use is educational will get you out of trouble.

Ultimately, it’s at a judge’s discretion whether the usage constitutes fair use, so be careful.

Wrapping Up

Copyrights and trademarks are two forms of intellectual property (IP) that protect different kinds of products, services, and related names. As an IP owner, you can determine who (if anyone) can use your copyrighted materials and under which terms, including the duration.

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Frequently Asked Questions (FAQ)

1. I sent in an application for a copyright months ago and haven’t heard anything. Have I been denied?

Probably not. As of February 2024, USPTO is still processing copyright requests from May 2023, so it’s inundated at the moment. It doesn’t mean your copyright request was turned down.

2. Can I sell my copyright? For how much?

You can sell your copyright to another party if you wish. The amount you can ask for is at your discretion.

3. Is it free to register a copyright? What about a trademark?

Registering a trademark or copyright isn’t free. The cost for trademark registration is for each class of services or goods, with filing fees up to $525 per class. Registering a copyright can cost between $45 and $125, sometimes more.