The legal field of intellectual property law can be a bit confusing since the difference between categories of IP can blur. This blurring is particularly true when we look at the difference between copyrights and trademarks.
The concept of copyright comes to us directly from the United States Constitution. Article I, Section 8 contains the following text,
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
Giving authors the exclusive right to their “writings” is copyright 101. Of course, the right has expanded beyond just the writings of authors. We now say that copyright is a form of protection for original works of authorship that are fixed in a tangible medium of expression. What type of “works” are covered?
However, less apparent creations are also covered. For example,
- Architectural drawings
- Code for a unique piece of software
- Dramatic performances
We’ve even seen legitimate questions raised as to whether a set of dance moves might be a copyrightable work. The wildly popular video game Fortnite incorporates more than a few well-known dance moves from other popular forms of entertainment such as television shows, which raises questions of whether the incorporation of such movements in the games constitutes copyright infringement. Copyright infringement is the unauthorized use of other parties copyrighted work and can result in severe financial and even criminal penalties.
“The Fresh Prince of Bel-Air” star Alfonso Ribeiro sued Epic Games, the maker of Fortnite, using just such a claim in 2018. Mr. Ribeiro claimed a character in the game was copying his “Carlton” dance from the Fresh Prince television show. Then an odd quirk of copyright law kicked in to place.
In the United States, a party can only sue to protect their copyright if they have registered the work with the Copyright Office. Mr. Ribeiro had not registered the Carlton dance, which isn’t surprising. When he applied for registration, the Copyright Office rejected his application. The Office noted “a simple routine made up of three dance steps” was insufficient to qualify for protection.
The decision left Mr. Ribeiro with the choice of accepting or appealing it, which would have cost significant amounts of money in legal fees. He decided to accept the decision. Since the dance could not be copyrighted, Mr. Ribeiro had no choice but to dismiss his lawsuit against Epic Games, as well.
This case is an example of the intricacies of copyright law. Copyright disputes often boil down to the details. Is a work of sufficient size to warrant protection? Is the work creative enough? Is there a public policy reason for allowing the work to be used regardless of copyright protection, such as fair use? These questions and other issues are where copyright attorneys make their money.
So, what is copyright? It is the exclusive right to control a creative work. No other party can use the work without the copyright holder’s express permission. For example, assume Stephen King writes a novel. He then signs a contract with his publisher, giving that company the right to reproduce and sell the story in exchange for paying King a hefty royalty. If a production company wishes to turn the book into a movie, they would need to pay King a fee for the right to do so as well.
Trademarks are similar to copyrights in that they protect original creations. However, the work in question are words, designs, logos, or symbols that identify the source of goods or service of one party. The mark also distinguishes the products or services from those of a third party.
An example of a trademark you are likely very familiar with is the word “Google.” If we are having a conversation with friends and someone mentions the name, you immediately picture a particular company in your mind. Indeed, the Google mark is so strongly associated with one niche of commerce – search engines – that people often refer to searching for something online as “Googling” it.
Importantly, a trademark can only cover a few words. “Just Do It” is a trademark registered to Nike that most people recognize. At three words, it meets the requirements of a mark in that it is sufficiently brief not to cause conflicts with copyright law [we’ll discuss below] while also identifying the source of goods in the eyes of consumers. If a person hears the phrase, they will associate it with Nike if they are familiar with sports products.
Does a trademark apply to the full world of commerce? Not usually. Trademarks are organized by classes of trade. The Patent & Trademark Office breaks them down into 34 categories for goods and 11 for services. The trademark classes break down as follows:
- 001 Chemicals
- 002 Paints
- 003 Cosmetics and cleaning products
- 004 Lubricants and fuels
- 005 Pharmaceuticals
- 006 Metal goods
- 007 Machinery
- 008 Hand tools
- 009 Electrical and scientific apparatus
- 010 Medical apparatus
- 011 Environmental control apparatus
- 012 Vehicles
- 013 Firearms
- 014 Jewelry
- 015 Musical instruments
- 016 Paper goods and printed matter
- 017 Rubber goods
- 018 Leather goods
- 019 Non-metallic building materials
- 020 Furniture and articles not otherwise
- 021 Housewares and glass
- 022 Cordage and fibers
- 023 Yarns and threads
- 024 Fabrics
- 025 Clothing
- 026 Fancy goods
- 027 Floor coverings
- 028 Toys and sporting goods
- 029 Meats and processed foods
- 030 Staple foods
- 031 Natural agricultural products
- 032 Light beverages
- 033 Wines and spirits
- 034 Smokers articles
- 035 Advertising and business
- 036 Insurance and financial
- 037 Construction and repair
- 038 Communication
- 039 Transportation and storage
- 040 Material treatment
- 041 Education and entertainment
- 042 Computer, scientific and legal
- 043 Hotels and restaurants
- 044 Medical, beauty and agricultural
- 045 Personal
Nike would file its trademark registration for “Just Do It” with a class 28 designation, for example. A roofing company would register its logo under class 37 and so on.
So, what is a trademark? It is a word, phrase, or symbol that identifies a company or product in commerce for consumers. If a consumer sees a store selling software with the Apple logo, the consumer will make certain assumptions regarding the quality and desirability of the software. In short, a trademark helps consumers distinguish between companies and products or services on the market.
Copyright and Trademark Difference
The difference between copyrights and trademarks is ostensibly what they protect. Let’s consider software as an example. As a software guru who has launched your own company creating software programs (congratulations!), you are going to need to register both a trademark and copyright for your products.
Let’s start with the copyright. I’m going to keep this simple for this article as software copyright issues can quickly become complicated. Generally speaking, however, a computer program is considered a literary work qualifying for copyright protection under Section 101 of the Copyright Act in the United States. Yes, the same protection as a novel.
What does the software copyright protect? The source code of the program. If you registered the code, a competitor could not copy it and incorporate it into its program without infringing on your rights. You may also have other rights known as “non-literal rights,” but that is a subject for another day.
Being a smart cookie, you are also going to trademark the name of the program. Let’s call it Awesome Software for giggles. Once the mark is registered, you’ve now have the exclusive right to use the name for business purposes, including marketing the software. Note how the trademark doesn’t provide any protection to the software code itself. The trademark merely protects the name and symbol associated with the programs, which prevents competitors from using the mark or other words and symbols sufficiently close to your brand that they will create confusion in the marketplace for consumers.
Let’s consider an example. Apple creates a new program that allows users to view each other for video conferencing through Apple devices. FaceTime, anyone? Apple would register a copyright for the code to that program. If a competitor copied sections of that code and incorporated it into the competitor’s products, Apple could file a lawsuit for copyright infringement.
Ah, but what if the competitor created a program from scratch that is remarkably similar to Apple’s video conferencing program, but doesn’t infringe? And then the competitor names the program FaceTyme. While the competitor would likely not run into copyright infringement problems, Apple would almost assuredly prosecute a trademark infringement claim since FaceTime and FaceTyme are sufficiently similar to cause confusion amongst consumers.
Difference Between Copyrights and Trademarks
So, let’s summarize. A trademark is a form of intellectual property that protects words or symbols that identify the source of a good or service. A copyright is a form of intellectual property that protects the creative work itself. In our sample above, copyright would protect the source code of our software while trademark law would protect the name of the program and who can use it to identify and promote the program.