Copyright vs. Trademark…Fight!

Today we’re taking a brief time-out from our publishing-as-business series to answer a reader’s question about the difference between copyright and trademark:

“What’s the difference between copyright and trademark? As an author, do I need to register both?”

The short answer is no, most authors don’t need trademarks. Though trademark may become relevant if you want to market merchandise featuring your series or characters’ names and likenesses.

But what’s the difference between trademark and copyright? Read on:

COPYRIGHT LAW covers creative works which are “fixed in a tangible medium of expression.” Protection is automatic and begins at the moment of creation.

Authors don’t have to register their works with the U.S. Copyright office in order to obtain a valid copyright. That happens automatically as soon as a work is written. Registration does impact the damages (money) an author can recover from an infringer, however, so it’s a good idea to register works with the copyright office upon publication. You can register your works online at http://www.copyright.gov.

TRADEMARK LAW covers words, names, symbols or slogans used in commerce to identify and distinguish the source of goods.

Novels, blog entries and short stories are all too long for trademark protection – they’re governed by copyright law instead. Trademark is generally only applicable to authors when dealing with products and merchandising – character T-shirts, for example. It’s possible to trademark character names and series titles, but only when they serve to identify the source of goods. The fact that a name appears in a novel isn’t sufficient for the Patent and Trademark office to issue a trademark. Series titles can be trademarked under the right circumstances, because a series of novels (or nonfiction works) is an independent product.

There are many other differences between copyright and trademark. A few of interest to authors:

1. Duration. Copyright lasts for the life of the author plus 70 years (for individuals – the duration differs slightly for entity publications). Trademark lasts as long as the mark is “actively used in commerce” in association with the relevant goods.

2. Originality. Copyright requires only minimal originality, whereas trademark requires far more – a valid trademark cannot merely describe the goods on offer.

3. Length. Copyright governs creative works of any length, from Tweets to full-length novels. Trademark governs only “words, slogans, logos, and phrases.”

Copyright and trademark also have some similarities: violation of either is called “infringement” and is legally actionable. Knowledge and intent are not necessary elements of copyright or trademark infringement. If you use someone’s legally protected work without a legally-recognized right, you are liable for infringement.

Traditionally-published authors usually don’t have to register copyrights for themselves – the publisher normally handles registration as part of the publishing process. Independent authors should register copyright at the time of publication (or before, if desired, though it isn’t a requirement.) In either case, authors should be aware that it’s not registration that creates the copyright – copyright attaches automatically at the time of creation.

Both traditionally-published and independent authors should consult an intellectual property attorney with questions about trademark. Trademark applicability varies widely, and most authors may never need one, so consult a professional if you have questions about your specific needs.