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Understanding the Distinct Benefits of Copyrights and Trademarks
When you’ve created an original piece of intellectual property (IP), both copyrights and trademarks may be necessary to protect your exclusive rights and benefits of use. However, they aren’t interchangeable. It’s important to appreciate the difference between what copyrights and trademarks protect - and how they both work.
Copyrights: Original and Tangible Work
Copyrights apply to original intellectual work, like artistic or written material. The work itself must be in tangible form. This can include:
- Research papers
- Software programs
An original work must be preserved in a medium that makes it possible for other people to appreciate the work, such as through reading, viewing, or listening to it.
Copyrights cannot protect things like ideas, unrecorded performances, or discoveries.
They can’t offer protection to material that is in common use, like a blank chart or calendar, or material that was once copyrighted but has since passed into what’s known as the public domain.
Protection in the USA
In the United States, the 1976 Copyrights Act offers protection to the creator of a tangible, original work the moment that work is created. As the creator, an individual owns the exclusive rights to their work for the remainder of their lifespan. Additionally, the creator’s estate can continue to enjoy that benefit for a further seventy years.
During the period of copyright protection, no one else can use the material or create material derived from it without permission or an arrangement.
When this period passes and a copyright expires, or a creator or estate waives their right to protection, previously copyrighted works enter the public domain and become available for use by anyone.
While it’s not necessary to register a copyright to benefit from basic protection under the law, properly registering a copyright:
- Places the work on a public registry
- Makes it easier to defend against improper use
- Legally protects financial interests
A US copyright doesn’t automatically protect work in other countries, but it’s important to note that many countries participate in copyright conventions, which are agreements to honor copyrights of participating countries equally.
Trademarks: Unique Brand Identifiers
Trademarks work in a similar way to copyrights but often apply to different types of assets. Trademarks cover anything that specifically identifies a brand and differentiates the goods or services of one company from those of any other.
A trademark can take a variety of forms, such as:
- A logo or symbol
- Distinct packaging
- A brand name
- A slogan
There are a few kinds of material that can’t be trademarked, like proper names without consent, or generic terms already in common use.
Trademarks are created once a party begins to routinely use a unique asset to distinguish its products during the course of doing business.
Routine use of an asset can establish a common-law trademark, and this type of trademark has no expiration. It can last as long as the asset is in use to identify a brand, and offers basic protection in the area where it is used.
A trademark owner can create a registered trademark at the state or federal level by filing to register their trademark. To file, an owner must complete a trademark search to be sure an asset isn’t already in use.
Registered trademarks provide greater legal and financial protection against infringement by parties who could potentially benefit from another brand’s status or negatively impact perception of a brand. State or federally registered trademarks protect an asset statewide or nationally.
Protecting Brand IP
A business or brand should consider how applicable both copyrights and trademarks may be for any material it produces.
While logos and symbols are typically trademarked, if these assets are original in design they can also be eligible for copyright protection.
Materials like pamphlets, web copy, flyers, or advertisements that bear company trademarks may also benefit from copyright protection that can prevent other companies from taking advantage of unique work.
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