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Trademark vs. Copyright: Which do you need to protect your brand and business?

What’s the difference? And why it matters — a lot.

One of the hottest topics amongst creative business owners, small businesses, and especially coaches, graphic designers, musicians, and photographers is protecting your original work. 

Whether you’re concerned about someone disclosing your trade secrets, want to cover your intellectual property (IP), don’t want someone copying the website you worked so hard on, or want to make sure there is licensing permission for the photos you took (and they don’t get uploaded to a stock site without your permission — yikes!), having the right coverage in place to protect your brand is necessary. 

That’s a hard thing to do when you’re not quite sure how! So, let’s talk about copyright, trademark, and the difference between the two. 

TLDR; Copyright protects original work, whereas a trademark protects items that distinguish or identify a particular business from another. 

What is copyright?

According to the US Copyright Office, “Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression.” 

A few more details about this: 

  • Copyright protects original works. Something created by an individual (who didn’t copy it) and has a minimal degree of creativity. Some things don't qualify as creative, such as titles, names, short phrases and slogans, familiar symbols or designs, variations of typographic ornamentation, lettering, or coloring, and listings of ingredients or contents.
  • Copyright protects fixed works. This means the work is captured in a permanent medium (like writing it down or recording it) such that it can be perceived, reproduced, or communicated for a long period of time. 
  • Copyright protects expression. Not ideas, procedures, methods, systems, processes, concepts, principles, or discoveries.

In other words, you are a copyright owner! If you’ve created something of your own idea and documented it, you technically own the copyright to that piece of work, automatically. 

While the copyright exists automatically, you, as the owner, can also take certain actions, such as registering the work with the Copyright Office to enhance the protection of it. While registering the work isn’t mandatory, it is necessary to enforce the exclusive rights of the copyright through litigation.

What is a trademark?

According to the USPTO, “A trademark can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services. It’s how customers recognize you in the marketplace and distinguish you from your competitors.” 

A trademark identifies you as the source of your goods and services and offers legal protection to your brand. 

Just because you have a registered trademark, doesn't mean you own a particular word or phrase and can prevent others from using it. 

You do, however, have rights to how that word or phrase is used with your specific goods and services. 

Similarly to copyright, you become a trademark owner as soon as you start using your trademark with your goods or services. But, your rights are limited unless you register your trademark with the USPTO. 

Did you know, the use of “TM” is used if you haven’t filed an application to register your trademark, and the use of an ® with the trademark indicates that it’s been registered with the USPTO.

So…what’s protected? 

A trademark protects a word, phrase, design, or a combination of any of these thighs, that identifies your goods or services, distinguishes them from the goods or services of others, and indicates the source of your goods or services.

For example: 

  • The name of your business 
  • Your brand’s logo
  • A tagline or slogan

Registering your trademark with the USPTO ​protects the trademark from being registered by others without permission and helps you prevent others from using a trademark that is similar to yours with related goods or services. Plus, it's not as expensive as you might think! Registering a trademark starts at just $250.

A copyright protects artistic, literary, or intellectually created works, such as novels, music, movies, software code, photographs, and paintings that are original and exist in a tangible medium, such as paper, canvas, film, or digital format. 

For example: 

  • A photo you take 
  • A spreadsheet you design
  • The copy on your website

Registering your copyright protects your exclusive right to reproduce, distribute, and perform or display the created work, and prevents other people from copying or exploiting the creation without the copyright holder’s permission.You can register up to 10 unpublished works with the same application, and each application costs $55.

When do I need a trademark? When do I need a copyright?

The short answer is that you need both, and you need them….well, yesterday. With social media acting as a primary method of marketing, your brand and original works are highly consumable by just about everyone — you want to know they can’t be copied! 

You should register your trademark when you start your business, and have a company name and logo. 

You should register your copyright when you are getting ready to publish an original work of substance. 

What about patents? 

Good question! The USPTO says that a patent protects, “Technical inventions, such as chemical compositions like pharmaceutical drugs, mechanical processes like complex machinery, or machine designs that are new, unique, and usable in some type of industry.”

Basically, you want a patent (not a trademark or a copyright) for an original invention. A patent protects your idea, not just the expression of that idea, which is covered under copyright, or the business that expresses it, which is covered under a trademark.

A patent protects inventions and processes from other parties copying, making, using, or selling the invention without your (the inventor’s) consent. 

Can I license any of my copyrights, trademarks, or patents?

In short, yes. But you should contact an attorney to answer your specific questions. For the purposes of general information, a license allows a copyright owner to retain the rights to the original work while giving another party the right to use it. 

The Artists’ Lawyer has your back

Need a recap? Not sure about next steps? Check out our Copyright Registration Guide or our How to Trademark and Protect Your Brand Guide.

If you’re dealing with a sticky situation regarding the protection of your original works, you might consider purchasing one of the templates in our online contract template shop: 

And, if you want help registering your trademark, you can get in touch with our team at our sister company, East + Bay Law firm, to schedule your trademark registration project. 

Welcome!

Hi there! Welcome to my free resources page, where I share all kinds of freebies, templates and guides for creative business owners, artists, and entrepreneurs. If we haven't met yet, hi! I'm Magi. I'm lawyer, educator, photographer, storyteller, traveler, and entrepreneur. My journey has taken her from photographing professional surfers while swimming in some of the world's most epic waves to receiving a Juris Doctorate from Rutgers Law. If I'm not photographing a wedding with my husband, Scott, in a remote locale, managing our team of Associate Photographers, or providing legal counsel to creative business owners, then you can probably find me eating an açai bowl, chasing my pup, Arti, around the beach, or watching SVU reruns in our bungalow. I hope you find these intentionally-crafted resources useful, and if there's anything else I can do for you and your business, please reach out!

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Disclaimer

This information is made available for educational and general informational purposes only; it is not legal advice for an individual case nor does it guarantee any future result. This material may be improved upon or updated without notice, and The Artists’ Lawyer will not be held responsible for any outcomes as a result of this education. Do not act upon this information without seeking individual advice from a lawyer licensed in your state. You understand that viewing this information does not establish an attorney-client relationship between you and The Artists’ Lawyer, or the founding attorney, Magi Fisher.

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