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Copyright Protection - The Misunderstood Cousin of Trademarks & Service Marks

Many people who want to protect their brand confuse copyright protection with trademark and service mark protection. Often they will be starting a new business venture and ask whether or not they can copyright their logo or brand. While technically you can copyright a logo or brand, doing so does not provide the holder with a significant degree of protection when compared to the benefits conferred through trademark and service mark registration. The reason for this is the unique nature of copyright.


Copyright is a creation of federal law. It was created to protect original works of authorship. These original works of authorship include literary and artistic works, photographic images, musical compositions and scores, performances and other types of works. Copyright is an automatic right that attaches whenever the work is attached to a fixed medium. This means that copyright attaches when a book or story is reduced to writing or the musical score is composed. As such, copyright does not protect ideas. Copyright protects the expression of those ideas as attached to a fixed medium such as paper, an online digital presentation or a CD-ROM.


Copyright holders are granted four exclusive rights. Copyright holders are granted the right to reproduce the copyrighted work. They are also granted the right to publicly display the work. Holders are also granted the right to create derivative works from the original copyrighted work. Finally, they are granted the right to distribute the copyrighted work through sale, rental, and lending. Infringement occurs when there is an unauthorized violation of these exclusive rights.


Copyright infringement actions must be brought in federal court. Before such an action can be filed, the copyright holder must have obtained or have substantially complied with the filing requirements mandated by the United States Copyright Office.


Copyright protection differs significantly from trademark and service mark protection. Copyright protects against the unauthorized use or violation of the exclusive rights granted to the holder/owner. As such, it requires, in most circumstances, the exact replication of the copyrighted work. Trademarks and service marks, however, protect against a mark being duplicated or used in a confusingly manner. Thus, exact copying of a trademark or service mark is not required for the holder/owner to obtain injunctive relief or a cease and desist order. In many copyright infringement cases, however, such exact copying or substantially identical use is often required to obtain such relief.


The duration of copyright protection also differs substantially from trademark and service mark protection. Trademarks and service marks can last in perpetuity as long as they continued to be used in commerce to distinctively identify the source of a good or service. Copyright protection, for works created after 2002, last for the duration of the author’s life plus seventy years. After a copyright has expired, or if the author fails to renew it in the time required by the United States Copyright Office, the work becomes part of the public domain.

While trademark and service mark protection are the foundations of brand creation, some form of copyright protection does play a role. While copyright protection automatically attaches upon creation of the work, you should take the extra step of filing the work with the United States Copyright Office. Doing so is fairly inexpensive and obtaining registration grants a presumption of ownership and validity. Registration also places others on notice that your work is copyright protected and immediately capable of being enforced in federal court. If you are using a website to promote, market or sell your brand, then the website content should be copyright protected. If you are using unique photographs that incorporate your brand, copyright registration should be sought.


The following are key points to remember about copyright protection:


(1) Copyright protects original works of authorship such as literary and artistic works, photographic images, musical compositions and scores, performances and other types of works;


(2) Copyright automatically attaches at the time of creation and does not require the work to be used in commerce like trademarks and service marks;


(3) Copyright holders are granted the exclusive rights to do the following: (1) the right to reproduce the work; (2) the right to publicly display the work; (3) the right to create derivative works; and (4) the right to distribute the copyrighted work through sale, rental, and lending;


(4) Copyright is a creation of federal law and enforcement actions must be brought in federal court;


(5) You must secure registration or have substantially complied with the filing requirements for seeking registration from the United States Copyright Office;


(6) Copyright in works created after 2002 last for the duration of the author’s life plus seventy years;


(7) Infringement actions typically involve the violation of one or more of the four exclusive rights granted to the copyright holder/owner; and


(8) Copyright infringement generally requires exact copying of a portion of the work whereas trademark protects against the unauthorized use of confusingly similar marks.


Overall, copyright protection is fairly inexpensive to secure from the United States Copyright Office, which is a prerequisite to filing suit for infringement. That said, copyright protection is somewhat limited in scope when it comes to enforcement due to requirements that protectable content be exactly copied and/or substantially similar to the original work. Nevertheless, copyright registration and enforcement can go a long way towards limiting competitors from using your content to advance their own for profit endeavors - mostly through the use of injunctive relief remedies.


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