After Your Mark Is Made: Comparing Trademark and Copyright

After experiencing the creative adventure that results in the development of your logo, brochure, web site or other graphic asset, what do you do with it legally? Your designer has created a piece of intellectual property which has value and is worthy of protection. But what kind of protection? Should you register the copyright or register the trademark? Or both? What’s the difference?

The essential difference between copyright and trademark can be summed up this way: copyright protects the person while trademark protects the intellectual property.

Copyright Summarized

Copyright is protection provided to creators (authors) of original works in tangible form. These works include not only graphic design, but also literature, drama, music, fine art – anything in a tangible form. Copyright protects a work whether it is published or not. The author of the work is automatically and inherently the owner of the copyright to any work he has created, and has the authority to reproduce the work, create derivatives from it, distribute copies, perform or display the work in public, and transfer rights to others.

Copyright is specific to a particular work and its use. In other words, it covers that unique creative expression by that author in that particular form. Since copyright is a bundle of rights, it can be transferred to another person or entity in full or in parts. It is important to note that, although copyright is claimed for a work as soon as it comes into being, to be legally protected, the copyright should be registered with the U. S. Copyright Office. Registration is the foundation for enforcement when copyright is infringed. Copyright has an expiration date; it can be willed or transferred to another, and it can be renewed.

Copyright protects the person while trademark protects
the intellectual property.

In the designer-client relationship, copyright looks like this: As the creator of a piece of intellectual property (for example, your logo), I inherently own the copyright to it. If you read the terms and conditions in our agreement, you will note that particular rights are transferred to you for particular uses. Generally, I transfer “all rights” to your logo and your web site to you, but will only transfer limited rights for things such as illustration and print design. A client can request a “buyout” of all rights to the work. Even if the copyright is transferred to them in full, and they register trademark on it, I remain the original author of the work and retain ownership of all preliminary work that went into it.

Trademark Summarized

A trademark can take the form of a symbol (logo), name, word, phrase or device that is associated with a trade good or service. The trademark prevents marketplace confusion by distinguishing one good or source of goods from another. Trademark rights are meant to prevent the use of similar marks from different sources for the same type of goods, but do not prevent marketing the same type of goods under a different mark.

[Tweet “Creators automatically own the copyright to what they create. bit.ly/1KnyohG”]

Trademark registration is handled through the U. S. Patent and Trademark Office. While it is fairly simple and inexpensive to register a copyright, trademark registration is a more involved and costly process. To protect trademark, the tm symbol is used with marks that are in general use but not yet registered. Once registered, the ® replaces the tm. I recommend that you work with a trademark or intellectual property rights attorney to research and register your logo as a trademark.

What if it’s my idea, but a designer creates the design?

Ideas cannot be copyrighted or trademarked. As the provider of an idea, you cannot claim copyright on the creative work made by another person. This is why designers transfer rights to their clients.  If you want to protect your idea,  you need to obtain a patent.  Contact the U. S. Patent and Trademark Office or a patent attorney to get more information.


Disclaimer: I am not an attorney and do not provide advice or counsel regarding intellectual property law. Please direct your questions to the government agencies linked above, or consult an attorney.


Additional Information:

Graphic Artists Guild’s Pricing and Ethical Guidelines

The Copyright Corner

All Things Copyright

LawMart

Alvalyn Lundgren

Alvalyn Lundgren is the founder and design director at Alvalyn Creative, an independent practice near Thousand Oaks, California. She creates visual branding, publications and books for business, entrepreneurs and authors. She is the creator of Freelance Road Trip — a business roadmap program for creative freelancers. Contact her for your visual branding, graphic and digital design needs. Join her on Twitter, Facebook, Instagram, and subscribe to her free monthly newsletter.

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