Sometimes we get very random questions at ICD that intrigue me and make me go chasing down the Google rabbit hole! One such question that we’ve gotten more than once (OK, it’s been 3 times now), that I felt may be beneficial to do an article on is “What is the difference between a Trademark and a Copyright, and do I need either?”
Before we dive in, I need to note that no one at ICD, to my knowledge, is a lawyer, so this is not legal advice. But, we have consulted with legal sources and have compiled our best stab at this question!
What is the difference?
According to Legal Zoom:
“Copyrights and trademarks protect distinct creations. Generally, copyrights protect creative or intellectual works, and trademarks apply to commercial names, phrases, and logos.
Copyrights primarily protect the rights of people who create literary, dramatic, musical, artistic, and particular other intellectual works (like history tests and software code).
Trademarks protect the use of a company’s name and its product names, brand identity (like logos) and slogans.”
In essence, copyright protects something you created and in one form is an automatic protection granted by the Constitution in the US. While trademark legally protects a brand or company and must be filed for.
What does a copyright protect? Copyright protects literary, dramatic, musical, and artistic works, including:
- Other forms of original writing
- Other forms of audio and video materials
- Computer software
Copyright protection means that the copyright holder (or creator) of the work retains exclusive rights to print, display, distribute and perform the work. In addition, the holder has exclusive rights to publish and transmit the work on the Internet, which is an important clarification, especially for today’s age.
In order to warrant copyright protection, a work must be original, meaning your picture of Batman you created can’t be copyrighted because Batman is not original to you.
A copyrighted work must be “fixed in a tangible medium of expression.” While that may sound technical, it’s important to understand. That’s why the following cannot be copyrighted:
- Listings of ingredients or contents (although a recipe or instructions can be copyrighted)
- Works that are considered “common property,” such as calendars or height and weight charts.
Basically, the work must be established in some fixed form, such as a book, map, chart, print, dramatic work, sculpture, film, sound recording, or computer program. It’s not enough to say you had that idea first. The idea of creation but be written or created in a tangible way to be protected.
Copyright lasts for the life of the author or creator of the material, plus seventy years and now extends to performance, display, and web transmission of the work in question.
Ways to ensure your Copyright:
- Properly marking: You can make sure your work is properly marked, such as signed or with a watermark, and that there’s a clear evolutionary footprint from the work to your business.
- Poor man’s copyright: This is the practice of sending your own work to yourself, thereby establishing that the material has been in one’s possession for a particular period of time. However, there is no provision in copyright law for any such type of protection, and poor man’s copyright is not a substitute for registration.
- Creative Commons: Creative Commons offers free copyright licenses that allow you to mark your creative work with the freedoms you want it to carry.
- Use the copyright symbol: At a minimum, you can use the © symbol to denote a copyrighted work.
- Additionally, although not required, you might decide to actually register your work with the U.S. Copyright Office. To do so, you’ll have to complete the application process—which includes paying a fee and sending a copy of the work to the U.S. Copyright Office—in order to officially register for your copyright.
What does a Trademark protect? A trademark protects items such as:
- Brand names
- Business names
The Trademark Process:
Since trademarking is a much more legal process, I’ll turn again to Legal Zoom:
“The trademark registration process is thorough. U.S. Patent and Trademark attorneys are known to scrutinize applications closely.
Aside from ensuring that an application includes the necessary supporting materials, an examining attorney determines if the proposed mark conflicts with current trademarks.
If it is too similar to other marks, the application is either returned to the applicant with requested changes and revisions or rejected.”
In short, you probably want to hire a lawyer for that trademark application!
Note: There is a common law trademark method, but it offers fewer protections. A common law trademark is a trademark established solely through use in commerce in a specific geographical area. Business names, logos, and phrases that are regularly used–even though they have never been federally registered–can all be considered common law trademarks.
How does this apply to my comic?
In the indie comic world, your characters, scripts, and art are automatically protected through copyright, though, you can take it a step further and file for registered copyright. Your brand name, slogan, and logo would be protected if you file for a trademark on those items, trademark does not happen automatically.
I see indie comic creators tell people their character is trademarked often. Don’t tell people your character is trademarked, because likely it’s not, it’s copyrighted. However, you could trademark your character’s name. It’s the same thing with your brand. Your brand is very likely not copyrighted. If it’s anything, it’s trademarked.
Now, there are some overlapping grey areas that we won’t get into here, that’s why you should have legal help, and laws and rules are very different in other countries. Copyright and trademark are both important protections and, when understood properly, can be used to effectively protect your creations. Knowing your rights and the ways intellectual property protections work can help you make the most of your work and can prevent legal battles.