June 04, 2018
Originally posted 2017-02-27 12:05:34
By Ann Marie Sallusti | amdlawgroup.com
Many people may confuse a trademark and a copyright. A trademark is generally a word, phrase, symbol or design or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.On the other hand, a copyright is the limited period of exclusive rights to copy, license, or otherwise exploit fixed literary or artistic expression.
Why would a creator want to protect their copyright? Trademarks and copyrights are becoming the cornerstone of a franchise system, where creators can use the licensing of their marks and/or their copyright as a major profit center. Essentially, the trademark and the copyright become the product, rather than a representation of the product. Federally registering trademarks and copyrights can help protect designs and works from subsequent users and protect the originality of the creator’s work and ideas.
Copyrights, like trademarks, “may” be federally registered, but it is not mandatory. Copyrights can be registered with the United States Copyright Office. In order to bring a claim for infringing on a copyright, the copyright must be federally registered. Under copyright law, protection begins when the work is created and will last for the life of the author plus 70 years after his/her death. The work is protected only if it is an original work of authorship fixed in any tangible medium of expression. A copyright is fixed when, a work is independently created with at least a small amount of creativity, placed in a relatively stable and permanent embodiment. The embodiment must be so permanent, where it can be reproduced for a period of time longer than transitory duration.
When a creator federally protect their copyright, their right to reproduce, right to public performance, right to performance of a sound recording, right to derivative works, right to distribute and right to display are protected. The author, the employer of the author if it is a work for hire, or a person who receives the legal rights by a transfer in writing, a license, or inheritance can enforce the copyright. An infringement claim is measured from the first date of use without permission. A creator can bring an infringement claim for a registered copyright in federal court and seek civil remedies (damages, injunction, impoundment, attorney and court fees) and criminal remedies (fine and/or imprisonment).
A creator may not be able to enforce their copyright because of the Fair Use Defense. The Fair Use Defense is when a creator may not be able to enforce rights against an infringer whose purpose was to criticize, comment, report, teach, and/or research the work.When deciding fair use purpose, a court will consider, the character of the use, amount and substantiality of the copied parts, nature of the copyrighted work and the effect of the use on the potential market. Furthermore, reproduction rights may not be enforced against librarians and educators who make limited copies for educational use and public performance and/or display rights may not be enforced if any of the exemptions apply; such as, teaching, instructional, religious, charitable, and home style.
Works that are not considered protected by copyright law include:
Overall, a creator should federally protect their work in order to protect their ingenuity. Also, federally registering a copyright prevents future infringement issues and saves time and money in the long run. A copyright not only represents the product, it identifies the product to the consumers, who will probably remember the product because of the brand/mark.
*Note: All of the copyright information in this presentation fall under the Copyright Act of 1976, and became effective Jan. 1, 1978.
For information on how to apply copyright law pre-1978, see http://www.kasunic.com/1909_act.htm#a24